The opinion of the court was delivered by: Judge Leavitt
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
The Ross Township Civil Service Commission appeals an order of the Court of Common Pleas of Allegheny County (trial court) reversing the Commission's determination that Officers William Barrett and Benjamin Dripps (collectively, Officers) were ineligible to sit for a promotional examination because they had received "formal written reprimands" less than one year before the date of the examination. The trial court found that the letters sent to the Officers by their Police Chief were not intended to be formal reprimands of the type to disqualify them from sitting for the examinations; accordingly, the Commission lacked grounds to bar the Officers from taking the exam. Discerning no error in the trial court's holding, we affirm.
In January of 2011, the Commission posted a notice of a promotional examination for the position of police lieutenant with the Ross Township Police Department. The Officers applied to take the exam. Commission rules provide that an officer is not eligible to sit for a promotional exam if he has received a "formal written reprimand" within one year of the deadline for submitting an application. Rules of the Civil Service Commission, Township of Ross §4.4(b); Reproduced Record at 102a (R.R. ___). On their applications, the Officers responded "yes" to the question of whether they had received a "formal written reprimand" within the prior year. However, they also provided an explanation that although each officer had received a disciplinary type letter, it did not constitute a "formal written reprimand." Each application contained a copy of an e-mail from the Ross Township Solicitor's Office stating that the letters in question were not intended to serve as formal written reprimands and, thus, would not bar the Officers' ability to sit for the promotional exam. The e-mails were dated one week after the exam notice was posted.
The first letter, dated May 11, 2010, was sent by the Police Chief, Ralph Freedman, to Officer Dripps, a 14-year veteran. The letter stated that police officers under the supervision of Officer Dripps had not properly secured a crime scene. The Police Chief's letter identified itself as a "Letter of Reprimand." R.R. 98a. The second letter, dated August 2, 2010, was sent by the Police Chief to Officer Barrett, a 24-year veteran. The Police Chief's letter expressed concern that Barrett's private polygraph business did not conform to department rules for outside business and had the potential to create a conflict of interest; the Police Chief criticized the decision of the "prior administration" to allow Barrett to do this business. R.R. 89a. The letter identified itself as a "written reprimand" but did not use the term "formal." R.R. 90a.
Upon receiving his letter, Officer Barrett filed a grievance, which resulted in a meeting attended by Barrett, his attorney, the Police Chief, the Ross Township Solicitor, the Township Manager and union representatives. The grievance was resolved when Barrett was given an assurance that the Police Chief's letter was not a formal written reprimand and, as such, would not affect his ability to sit for the promotional exam. Further, the letter would be removed from his personnel file after a few months time.
Upon receiving his letter, Officer Dripps contacted the Police Chief to start the grievance process. However, Dripps abandoned the grievance when the Police Chief assured him that the letter would not affect Dripps' ability to sit for the promotional exam. The Police Chief also assured Dripps that the letter would be removed from his personnel file in a few months time.
In December 2010, prior to the posting of the notice for the promotional exam, the Police Chief removed his letters from each Officer's personnel file. Shortly thereafter, the Police Chief retired.
The Commission rejected the Officers' applications to sit for the promotional exam. It held that the Police Chief's letters were "formal written reprimands" that disqualified the Officers from sitting for the exam. The Officers appealed and received a hearing before the Commission.
At the hearing,*fn1 the Commission's solicitor, Michael Sherman, served as the hearing officer and prosecutor. To support the Commission's disqualification decisions, the solicitor offered and admitted into evidence the Police Chief's letters to the Officers, over the objections of their counsel. The solicitor made evidentiary rulings on the case presented by the Officers, and he advised the Commission on the adjudication.
Barrett and Dripps testified about why the Police Chief's letters were not formal written reprimands. They had responded "yes" to the application question, lest they be accused of dissembling about the letters sent to them by the Police Chief. Barrett testified that he denied the factual allegations in his Police Chief's letter at the grievance meeting. However, he agreed not to pursue his grievance after he was assured that the letter was not a "formal written reprimand" and would not affect his ability to sit for a promotional exam. Dripps testified that he immediately contacted the Police Chief because he also was concerned that the letter would affect his pay and his eligibility for promotions. Because of the Police Chief's assurances that the letter would be removed from his file and have no impact on his ability to sit for promotional exams, he agreed to drop the matter. Otherwise, he would have grieved the letter. Dripps offered into evidence a text message on his cellphone from the Police Chief that stated, "Took your letter out. You are clear for test. December 29, 2010." R.R. 64a. The evidence was refused admission.
The Township's solicitor, Bonnie Brimmeier, confirmed that at the meeting on Barrett's grievance, everyone agreed that the Police Chief's letter would not impede Barrett's eligibility to take the exam. She also testified that the Township's Board of Commissioners was informed, in executive session, of the resolution. The commissioners agreed that the letter was not intended to be a "formal written reprimand" or an action that would disqualify Barrett from sitting for the exam. Brimmeier confirmed that the e-mails attached to the Officers' applications were written at her direction and that she agreed with the opinion stated therein. Brimmeier noted that her knowledge of Dripps' case was secondhand because she did not meet him.
Officer Matthew Grubb, vice president of the Ross Township Police Association, corroborated the Officers' testimony. He explained that everyone understood the Police Chief's letters were not intended to be formal written reprimands. He also testified that he was notified by the Police Chief when the letters were removed from the Officers' personnel files.
The Commission found that the Officers' testimony about the Police Chief's assurances was hearsay and could not support a factual finding. Likewise, it found that the Township Solicitor's opinions about the legal significance of the Police Chief's letters were irrelevant. The Commission found that the Police Chief's letters must have been formal written reprimands because a grievance is not available for a lesser disciplinary action. It also noted that the agreement of the Township Supervisors to resolve Barrett's grievance violated the Sunshine Act, 65 Pa.C.S. §§701-716, and, thus, was a nullity. The Commission drew a negative inference from the fact that the Police Chief did not testify and found that his testimony, if given, would have refuted the Officers' claims that his letters were not intended to be formal written reprimands. The Commission found, in any case, that the Police Chief was not authorized to remove his letters from the Officers' personnel files. In accordance with these factual findings, the Commission found that the Officers had received formal written reprimands within the year prior to the promotional exam, which rendered them ineligible to take the exam. The Officers appealed to the trial court.
Before the trial court, the Officers argued that the Commission's factual findings were not supported by substantial evidence. Specifically, they argued that the Commission erred in drawing a negative inference from the Police Chief's absence from the hearing. They also argued that their evidence proved that they did not receive formal written reprimands. In response, the Commission argued that the Officers did not have a right to appeal because the Commission's decision to bar them from the exam did not impact a protected property interest, but, in any case, substantial evidence supported its findings. The trial court reversed the Commission.
First, the trial court held that the Officers had a right to appeal. Their interest in being allowed to sit for the promotional examination, for which they met all qualifications, was in the nature of a protected property interest.
Second, the trial court held that the Commission's finding that the Officers had received formal written reprimands was not supported by substantial evidence. The Commission erred in drawing a negative inference from the Police Chief's absence and using that inference as the basis of a factual finding. The trial court found that the circumstances warranting use of the adverse inference rule did not exist because the Police Chief was a witness available to both parties and because his testimony would have been merely cumulative of other evidence.
Third, the trial court found that the Township Supervisors' executive session did not change Barrett's discipline but, simply, clarified the meaning of the Police Chief's letter. The trial court agreed that determining eligibility to sit for a Civil Service examination was beyond the authority of the Police Chief or the Township. On the other hand, the trial court reasoned that the Township retains the exclusive prerogative to determine what level of discipline to impose ...