Monday, May 19, 2008

admin. law - impartial tribunal - right of expression - state constitution

Day v. Civil Service Commission - Commonwealth Court - May 19, 2008

http://www.courts.state.pa.us/OpPosting/CWealth/out/550CD05_5-19-08.pdf

Police officer was dismissed after publicly criticizing fellow officers, contrary toi departmental regulations. The court upheld the civil service decision to dismiss the officer.

due process - impartial tribunal - state constitution
While rejecting his claim on the facts, the court recognized that under Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), due process is violated where prosecutorial and adjudicatory functions are commingled, and that "the due process rights of Pennsylvania citizens are broader than those afforded by the U.S. Constitution."

This was clarified in Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994), where the court said that: [T]he form of impermissible “appearance” of bias and partiality proscribed in Lyness must clearly be one that arises from an actual environment of commingled functions. Given the nature and constraints of our various governmental bodies, the question of due process reasonably involves an inquiry into the nature of the process actually provided. Id., 538 Pa. at 281-282, 648 A.2d at 307." However, the court found "no evidence whatsoever of a commingling of functions" in the case, "not even an appearance of impropriety."

right of expression - state constitution
A person's free speech rights under Article 1, Section 7 of Pennsylvania Constitution are "broader free expression rights than does the federal constitution. Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002). Notwithstanding this broader penumbra, Pennsylvania law allows an employer to implement a chain of command policy to regulate the time, manner, and place of expression....We must remember that speech can also constitute conduct, and an employee’s conduct, in the workplace, may be regulated by the employer. Fuller v. Borough of Waynesburg, 503 A.2d 1031 (Pa. Cmwlth. 1986)...."

In this case, the "department’s regulation, which prohibited criticism of the department made to the public rather than to the appropriate supervisory personnel, was not constitutionally overbroad. Id., at 1033, n.4. The chain of command policy regulating procedures to follow when making complaints of improper conduct by fellow officers and superiors is necessary for the orderly and efficient operation of paramilitary organizations, such as a police department."

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