              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles Kern                                     :
                                                 :
                       v.                        :    No. 1877 C.D. 2017
                                                 :    Submitted: August 10, 2018
Green Tree Borough and Green Tree                :
Borough Civil Service Commission,                :
                        Appellants               :



BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER1                                FILED: January 31, 2019


      Green Tree Borough (Borough) and the Green Tree Borough Civil Service
Commission (Commission) appeal the December 7, 2017 Order of the Court of
Common Pleas of Allegheny County (common pleas), which granted the statutory
appeal of Charles Kern, a Borough police officer (Officer).2 Officer had been
suspended by Borough Council for one day after sending an e-mail to Borough
Police Department employees, which the Chief of the Borough Police Department
(Police Chief) considered unprofessional and insubordinate. Officer appealed to the
Commission, which denied his appeal and sustained the suspension. Upon further
appeal, common pleas reversed the Commission’s Decision and ordered that the


      1
          This case was reassigned to the author on October 23, 2018.
      2
          Although the Commission is a named appellant, it has declined to file a brief.
charges against Officer be withdrawn, his lost wages returned to him, and references
to the incident removed from his personnel files. In doing so, common pleas found
that Officer’s meeting with Police Chief prior to the imposition of the suspension
did not satisfy the due process requirements for a pre-disciplinary conference (PDC)
established in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
For the reasons that follow, we reverse.


   I. Factual and Procedural Background
         A. Assignment of Officer to Position of Business Liaison Officer
      The facts are largely undisputed. On January 20, 2017, Police Chief assigned
Officer to work as the Business Liaison Officer. This assignment required Officer
to collect information from local businesses, including contact information and the
existence and location of any security cameras. In addition, Police Chief believed
the Police Department would benefit from having “face time” with the managers of
local businesses, as it would demonstrate that the Police Department was concerned
about their businesses. (Commission Finding of Fact (FOF) ¶ 3; Notes of Testimony
(N.T.) at 66, Reproduced Record (R.R.) at 67a.)          Police Chief discussed the
assignment with Officer. Officer questioned whether the assignment was “that great
of an idea” given that “the information hasn’t really been relevant,” and it tended to
get “stale quickly.” (FOF ¶ 4; N.T. at 66, R.R. at 67a.) Police Chief, however,
reiterated that he wanted the assignment completed. (FOF ¶ 4.) On Friday, January
27, 2017, Officer sent the following e-mail to Police Chief, as well as all Police
Department employees:

      By default, I have been given the new title of “Business Liaison
      Officer”. I know you all are jealous and feel slighted that you weren’t
      chosen for this promotion, but let’s face it . . . you can’t all be as good

                                           2
      as me. I’m still in the process of negotiating the wage increase but I
      have a feeling it will be substantially higher than the “Crossing Guard
      Liaison Officer” position that [another officer] chose over this one. So,
      with that said, I am going to begin the arduous journey of compiling
      tons of useless phone numbers, names, and other irrelevant information
      that will be outdated by the time I finish. HAHAHAHA

      So my question to all of you is what information can I, as the Business
      Liaison Officer, get from these businesses that will help you in
      performing your jobs easier when you go to calls. Please keep the
      responses short . . . 5 or 6 paragraphs will do.

      Business Liaison Officer Charles Kern.

(FOF ¶ 5; R.R. at 153a.) Police Chief read the e-mail and then, on Monday, January
30, 2017, forwarded it to the Borough Mayor, who is head of the Police Department,
because he believed the e-mail was unprofessional and disrespectful and to inform
the Borough Mayor that he was considering recommending that Officer be
disciplined.


          B. Disciplinary Proceedings
      On Thursday, February 2, 2017, Police Chief met with the Union Steward
about the e-mail and explained that he was considering recommending disciplinary
action against Officer. For support, Police Chief pointed to Chapter II, Section 17
of the Police Department’s Policy and Procedures Manual (Chapter II, Section 17),
which lists, as duties and responsibilities of Borough police officers, that they “[b]e
civil and respectful to their superiors . . . courteous and considerate,” and directs
them to “[r]efrain from all communication that discredits . . . superiors.” (FOF ¶ 9.)
Prior to meeting with Officer, Police Chief gave Union Steward an opportunity to
discuss the matter with Officer. Police Chief, Officer, and Union Steward then met.
Police Chief did not present Officer with written charges, but he stated that he


                                          3
believed Officer’s e-mail violated Chapter II, Section 17 and could subject Officer
to discipline.   Officer responded that he did not intend for the e-mail to be
disrespectful but that he was simply trying to gather information from the other
officers in a lighthearted manner.      Police Chief directed Officer to write a
memorandum to explain his actions, which Officer submitted on February 2, 2017.
The memorandum read,

      Chief, I am responding in regards to our conversation regarding the
      “Business Liaison Officer” e[-]mail that I sent to the department last
      week. I in no way intended the e[-]mail to be insubordinate or
      undermine the task in [sic] which you assigned to me. I was writing in
      a joking manner to the guys, trying to be funny while asking for their
      input. I apologize for the perceived insubordination that it may have
      appeared to you or others. It honestly was not meant to be that way. I
      have begun the task that you requested and will keep you updated as to
      its progress.

(R.R. at 154a.) At the end of the meeting, Police Chief said that they would have
another meeting that afternoon; however, Officer was unavailable at that time. The
next day, Police Chief consulted with Union Steward who agreed that the due
process requirements of Loudermill had been satisfied and, consequently, no
subsequent meeting was held.
      On February 4, 2017, Police Chief requested that the Borough Council take
disciplinary action in the following memorandum:

      After consulting with the Mayor, I did an investigation of the facts. I
      conducted a Loudermill hearing on February 2, 2017 with [Officer] and
      his union representative . . . . [Officer] admitted sending the e[-]mail,
      but stated he meant no malice or offense, and had intended it to be taken
      as a joke. I directed him to submit a memorandum regarding the
      incident, which is also attached. [Union Steward] had been informed
      of the nature of the offense immediately prior to the hearing, and I
      spoke with him during the morning of February 3, 2017 and confirmed

                                         4
       the union was in agreement [that] the requirements of Loudermill . . .
       had been met during our interactions the previous day.

(R.R. at 151a-52a.)
       On February 6, 2017, before a meeting of the Borough Council, Police Chief
recommended a one-day suspension for Officer’s conduct. The Borough Council
voted to impose a one-day suspension on Officer.
       The following day, the Borough Council issued a Notice of Suspension and
Statement of Charges to Officer informing him that his conduct violated Chapter II,
Section 17, and warranted a suspension of one day.


           C. Officer’s Appeal to the Commission
       Pursuant to Section 1190(c) of the Borough Code, 8 Pa. C.S. § 1190(c),3
Officer elected to appeal the suspension to the Commission.                           Before the
Commission, the primary issue was whether the meeting of February 2, 2017,
between Police Chief, Officer, and Union Steward satisfied the due process
requirements of a PDC as established in Loudermill.
       At the outset of the hearing, Officer, pro se, read into the record his motion to
“dismiss the action pending against him” because his due process rights had been
violated. (N.T. at 9-13, R.R. at 10a-14a; Trial Ct. Record at 153-55.) Officer argued
that he had not been afforded a PDC consistent with the due process requirements
established in Loudermill, and there was no emergency that justified his suspension
without a proper PDC. The Commission deferred decision on Officer’s motion until




       3
          Section 1190(c) provides, in pertinent part, that after a written statement of charges has
been provided, a “person shall have ten days from the date of receiving the notice to submit a
written request for a hearing to the civil service commission . . . .” 8 Pa. C.S. § 1190(c).


                                                 5
testimony could be taken because issues of fact existed as to what transpired at the
PDC.
       The Commission then heard the testimony of Union Steward, Police Chief,
and Officer.
       Union Steward testified as follows. His role is to act as the voice of the union
and as a liaison between the police department officers and the union. On February
2, 2017, Police Chief called Union Steward into his office and showed Officer’s e-
mail to Union Steward. Police Chief told Union Steward that he considered the e-
mail insubordinate and that Police Chief was “going to proceed with discipline.”
(R.R. at 34a-35a.) Police Chief directed Union Steward to retrieve Officer for a
meeting. When Union Steward spoke with Officer and informed him that Police
Chief considered the e-mail insubordinate, Officer “was completely shocked . . . that
this e-mail was being taken as insubordinate” because he did not intend it to be
insubordinate. (R.R. at 39a-40a, 55a-56a.) At the meeting between Police Chief,
Officer, and Union Steward, Police Chief explained that he felt the e-mail was
insubordinate and that “he was going to take it upstairs,” which, Union Steward
explained, meant that the Borough Council was going to decide if Officer should be
disciplined because, according to the Police Department’s own rules and regulations,
Police Chief could not unilaterally impose discipline. (R.R. at 34a, 36a, 42a, 59a.)
Officer explained during the meeting that the e-mail “was an attempt at humor.”
(R.R. at 39a, 42a.) Police Chief directed Officer to write a memorandum to “say
what he was thinking.” (R.R. at 37a.) At the end of the meeting, Police Chief said
that there would be another meeting that “afternoon[] after he went upstairs” with
Officer’s memorandum. (R.R. at 38a.) However, that afternoon, Police Chief called
Union Steward and told him that another meeting was unnecessary because the



                                           6
meeting in the morning sufficed to satisfy the requirements of Loudermill, and
Officer “said everything that he thinks he needs to say.” (R.R. at 38a.) Union
Steward testified that he “wasn’t abreast of all of the things of Loudermill hearings.”
(R.R. at 54a.)
      Police Chief testified as follows. On February 2, 2017, he first met with Union
Steward and showed him Officer’s e-mail. Police Chief and Union Steward “had a
long discussion about the e-mail and [its] contents.” (R.R. at 71a.) Union Steward
expressed to Police Chief that he thought that Officer was “trying to be funny” and
not disrespectful. (Id.) Police Chief showed Union Steward Chapter II, Section 17,
and they agreed that this “would be a relevant section.” (Id.) Police Chief then gave
Union Steward an opportunity to speak with Officer “in private” before Police Chief
met with Officer and Union Steward. (R.R. at 72a.) At the meeting between Police
Chief, Officer, and Union Steward, Officer explained that he did not intend to be
disrespectful, but was trying to obtain the information Police Chief wanted, albeit in
a “joking,” “lighthearted” manner. (R.R. at 72a-73a.) Police Chief did not present
Officer with “formal charging documents,” but Police Chief did reference Chapter
II, Section 17, and he “detailed the process” for disciplinary action. (R.R. at 73a,
81a.) Police Chief explained that he could not impose discipline; rather, he could
only recommend to the Borough Council that an officer be disciplined. Police Chief
directed Officer to write a memorandum, which Officer did. At the end of the
meeting, Police Chief said he would meet again with Officer and Union Steward at
the end of the day shift, around 2:45 p.m. However, when Police Chief spoke with
Union Steward, Union Steward said that Officer was in two preliminary hearings
and thus unavailable. Police Chief replied, “we will see if we have to do this
tomorrow.” (R.R. at 75a.) On February 3, 2017, Police Chief again spoke with



                                          7
Union Steward, asking him what else were they “going to do in this hearing?” (Id.)
Police Chief asked Union Steward “if he felt that the tenets of the Loudermill
[hearing] had been met,” and Union Steward agreed that the requirements of
Loudermill had been met and a subsequent meeting was unnecessary. (Id.) As a
result, no further meeting was held. Police Chief then recommended to the Borough
Council that Officer be suspended for one day.
      Officer testified on his own behalf as follows. At the meeting with Police
Chief on January 20, 2017, where Officer was assigned the task of Business Liaison
Officer, the general tenor of the meeting was joking. Officer’s e-mail was “a
continuance of that initial conversation.” (R.R. at 122a.) On cross examination, in
light of Officer’s motion to dismiss, Borough Attorney asked what Officer would
have done differently at the PDC had Police Chief provided him with written
charges. (R.R. at 127a.) Officer answered that he would have told Police Chief, as
he had done in his direct testimony, of the “jovial nature” of the January 20, 2017
meeting and, then, when the Borough Council received Police Chief’s memorandum
recommending discipline, the Borough Council would have had Officer’s “side of
the story.” (Id.) When Borough Attorney noted that Officer had provided a written
memorandum following the PDC, Officer responded that his memorandum had “no
detailed information” and “was more or less an apology.” (R.R. at 127a-28a.)
Officer explained that, after discussing the matter with Union Steward, Officer
thought it would be best simply to apologize in the hope that Police Chief would
keep the matter “in-house” and “move on.” (R.R. at 128a.) Officer stated that Police
Chief told him to write what was discussed at the January 20, 2017 meeting, and
what they discussed was, “[h]ey, I’m sorry, I didn’t mean for you to interpret it this
way.” (R.R. at 128a-29a.) Officer agreed with Borough Attorney that there was no



                                          8
limitation placed on him as to what he could have included in his memorandum.
(R.R. at 128a.)
      Following the hearing, the Commission issued its Decision and Order. The
Commission rejected Officer’s argument that his due process rights were violated at
the PDC. (Commission Decision and Order at 4-5.) The Commission noted that
“[a]t all relevant times Officer” knew Police Chief was considering recommending
Officer be disciplined and Police Chief’s reasons for doing so. (Id. at 5.) Further,
the Commission noted, Officer was given an opportunity to explain his conduct and
that explanation had remained the same throughout the proceedings. (Id.) The
Commission concluded that due process did not require Officer be provided with a
written statement of the charges at the PDC, reasoning that the purpose behind the
PDC was to give the employee an opportunity to explain his side of the story before
a decision on whether to impose discipline was made. (Id.) Given the foregoing,
the Commission found due process had been satisfied.
      The Commission also concluded that Officer’s e-mail violated Chapter II,
Section 17, his conduct constituted intemperance and was unbecoming an officer,
and a one-day suspension without pay, being supported by the evidence, was neither
arbitrary nor discriminatory. (Id. at 6-7.)


          D. Officer’s Appeal to Common Pleas
      Officer appealed to common pleas, which sustained the appeal. Common
pleas’ opinion, issued pursuant to Rule 1925(a) of the Pennsylvania Rules of
Appellate Procedure, Pa.R.A.P. 1925(a), explained that Officer was deprived of his
due process rights because “he was not given notice of the charges against him at a
meaningful time, giving him a date, time and place to respond” and, further, once at



                                              9
the PDC, Officer “was not charged, and he was led to believe that he would be
afforded another meeting.” (Common Pleas 1925(a) Opinion at 9.) Common pleas
noted that Officer was taken directly to the PDC with no notice. Best and common
practice was, common pleas stated, to provide an employee with a letter, 24 hours
before the PDC, so that the employee would have time to prepare. (Id. at 6.) At the
PDC, common pleas recounted, Police Chief did not charge Officer. In fact, Police
Chief stated that Officer and Union Steward would need to return for a second
meeting, but Police Chief concluded that no additional meeting was necessary, and
Union Steward agreed because he was not familiar with the requirements of
Loudermill. (Id. at 6-7.) The PDC, common pleas concluded, was merely a “pro
forma meeting.” (Id. at 7.) As a result of the lack of due process, the Borough
Council had before it only Officer’s memorandum, which was an “apology e-mail,”
and Police Chief’s version of the events, which did not include the fact that the
conversation between Officer and Police Chief on January 20, 2017, when Officer
was assigned the task of Business Liaison Officer, was “humorous.” (Id. at 7.)
       Borough now appeals to this Court.


   II. Discussion
       A. Arguments on Appeal
       On appeal,4 Borough contends that Officer was afforded a PDC consistent
with the requirements of Loudermill. According to Borough, Officer was given


       4
         Where, as here, a complete record was made before the Commission, our standard of
review is limited to determining whether constitutional rights were violated, whether an error of
law was committed, or whether necessary findings of fact are supported by substantial competent
evidence. Section 754(b) of the Local Agency Law, 2 Pa. C.S. § 754(b); Johnson v. Lansdale
Borough, 180 A.3d 791, 799 (Pa. Cmwlth.), petition for allowance of appeal denied, 195 A.3d 853
(Pa. 2018).


                                               10
timely notice of the PDC. Contrary to common pleas’ conclusion, Borough argues,
it was not required to give Officer advance notice of the charge against him. The
notice Police Chief gave Officer at the outset of the PDC was sufficient to satisfy
due process. Further, Borough argues, Police Chief afforded Officer multiple
opportunities to respond to the charge against him, first orally at the PDC, and then
in writing after the PDC. In both instances, Borough contends, Officer knew that
Police Chief was recommending discipline and his reasons for doing so.
      Officer, pro se, argues that Borough’s argument that advance notice of the
charge was not required is misplaced because he was never given actual notice of
the charge. Rather, Police Chief made “a basic accusation” against Officer and
offered Officer “the option to provide his . . . opinion on the subject.” (Officer’s
Brief at 6.) Indeed, according to Officer, Police Chief told Officer that he had not
filed any charge against Officer, and that there would be another meeting after Police
Chief “took the matter upstairs,” apparently meaning that Police Chief would discuss
the matter with the Borough Mayor or legal counsel before determining whether any
discipline was appropriate. (Id.) Officer argues that Police Chief’s statement that
he was considering disciplinary action is not the same as actually taking disciplinary
action. In short, Officer argues, the notice requirements of Loudermill required that
Officer be actually charged and, thus, notice was not met when Police Chief said he
was considering having Officer charged. Further, Officer contends, he was not
afforded the opportunity to respond to Police Chief’s allegations. The PDC, Officer
argues, was just an investigatory interview conducted so as to determine if discipline
might be imposed at some later date. As a result, Officer’s response to the PDC was
informal and incomplete.




                                         11
      B. Analysis
      “An essential principle of due process is that a deprivation of life, liberty, or
property ‘be preceded by notice and an opportunity for hearing appropriate to the
nature of the case.’” Loudermill, 470 U.S. at 542 (quoting Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 313 (1950)). In balancing the competing interests of
the employee and the governmental employer – “the private interests in retaining
employment, the governmental interest in the expeditious removal of unsatisfactory
employees and the avoidance of administrative burdens, and the risk of an erroneous
termination” – the Supreme Court concluded in Loudermill that an employee is
entitled to “some kind of hearing.” Id. at 542-43 (citation omitted). However, while
“some kind of hearing” is required, it “need not be elaborate.” Id. at 545. The type
of hearing required will depend on “the importance of the interests involved and the
nature of the subsequent proceedings.” Id. (citation omitted). In general, though,
“something less than a full evidentiary hearing is sufficient prior to adverse
administrative action,” particularly where, as here, post-termination proceedings
allow for “a full administrative hearing and judicial review.” Id. (citation omitted).
The essential requirements are three-fold: “oral or written notice of the charges
against [the employee], an explanation of the employer’s evidence, and an
opportunity to present [their] side of the story.” Id. at 546. The purpose of the
“hearing” is “not [to] definitively resolve the propriety of the discharge.” Id. at 545.
Rather, “[i]t should be an initial check against mistaken decisions – essentially, a
determination of whether there are reasonable grounds to believe that the charges
against the employee are true and support the proposed action.” Id. at 545-46
(emphasis added). As we have stated, the purpose of a PDC is to give the employee
“the opportunity to respond to allegations . . . before [the employee] is deprived of



                                          12
[a] significant property interest.” Pavonarius v. City of Allentown, 629 A.2d 204,
207 (Pa. Cmwlth. 1993) (emphasis added).5
       “Notice is sufficient . . . if it apprises the vulnerable party of the nature of the
charges and general evidence against” them, and “is timely under the particular
circumstances of the case.” Antonini v. W. Beaver Area Sch. Dist., 874 A.2d 679,
686 (Pa. Cmwlth. 2005) (citing Gniotek v. City of Philadelphia, 808 F.2d 241, 244
(3d Cir. 1986)). In other words, the notice must be “of such specificity to allow [the
employee] the opportunity to determine what facts, if any, within [their] knowledge
might be presented in mitigation of or in denial of the charges.” Gniotek, 808 F.2d
at 244. Advance notice, however, is not required. Antonini, 874 A.2d at 686.
Notice given at the time of a PDC may satisfy due process. Gniotek, 808 F.2d at
244.    “‘[T]he timing and content of notice . . . will depend on appropriate
accommodation of the competing interests involved.’” Antonini, 874 A.2d at 686
(quoting Gniotek, 808 F.2d at 244).
       Applying these principles here, Officer was not deprived of due process
because of a lack of notice. As we have set forth, due process does not require that
advance notice be given in every instance and, contrary to common pleas’
suggestion, the circumstances of this case did not warrant 24 hours’ advance notice.
Nevertheless, Police Chief provided Officer with some advance notice that he
considered Officer’s e-mail insubordinate, in violation of Chapter II, Section 17, and
was considering recommending that the Borough Council impose discipline against
Officer. As recounted in the testimony before the Commission, Police Chief first
spoke with Union Steward about Officer’s e-mail and explained that he was

       5
         The right to “some kind of hearing,” Loudermill, 470 U.S. at 542, applies to an employee
regardless of whether he is facing termination or suspension. Jaruszewicz v. Dep’t of Envtl. Res.,
648 A.2d 1285, 1288 (Pa. Cmwlth. 1994).


                                               13
considering recommending disciplinary action against Officer because he thought
the e-mail was insubordinate. (R.R. at 39a-41a, 69a-72a.) Police Chief then gave
Union Steward an opportunity to discuss the matter with Officer “in private” before
the PDC was commenced. (R.R. at 72a (emphasis added)); see Copeland v. Phila.
Police Dep’t, 840 F.2d 1139, 1145 (3d Cir. 1988) (finding no due process violation
where the officer’s commanding officer told him before his PDC that a urinalysis
showed that the officer had tested positive for marijuana and an inspector told the
officer of this finding at the PDC). Moreover, the PDC occurred in temporal
proximity to Officer’s sending of the e-mail, only one week. The events, therefore,
were still fresh in Officer’s mind, and he did not need a lengthy amount of time “to
gather his thoughts and his evidence and to make an informed decision about the
best way to respond to the charges.” Staples v. City of Milwaukee, 142 F.3d 383,
386 (7th Cir. 1998); cf. Morton v. Beyer, 822 F.2d 364, 371 n.11 (3d Cir. 1987)
(where there was a “significant lapse in time between the alleged improper conduct
and the” PDC, the employee “should have been provided sufficient time . . . to
recount the facts in his own mind” so as “to prepare himself to demonstrate . . . that
reasonable grounds to believe that the charges were true did not exist”). Indeed,
Officer’s response to the allegations has remained the same. Consistently at the
PDC, in the post-PDC memorandum Officer sent Police Chief, and in Officer’s
testimony before the Commission, Officer’s defense has always been that he did not
intend to be insubordinate and was attempting to be humorous, and he apologized
for any perceived insubordination. Because Officer was given some advance notice
of the allegations against him and the events occurred in temporal proximity, he had
sufficient time to enable him to prepare a defense and, therefore, notice was timely
under the circumstances.



                                         14
      Officer contends, however, that the issue of the timeliness of notice is
irrelevant because he was never given actual notice of the charge. In other words,
Officer suggests that he had to be presented with a formal charge at the PDC.
However, adequate notice does not require the filing of formal charges. In Gniotek,
several police officers were suspected of accepting bribes. 808 F.2d at 242. At a
PDC, each officer was provided a form stating, “[w]e are questioning you
concerning testimony presented in Federal Court under oath by . . . an admitted
number writer, that he paid you $60 per month for an extended period beginning in
1982 for protection of his illegal activities.” Id. at 244. The Third Circuit held that
“[t]his statement, clearly, gave [the officer] notice of the charges and nature of
evidence against him.” Id. The form was sufficiently specific, the court continued,
to allow the officer “the opportunity to determine what facts, if any, within his
knowledge might be presented in mitigation of or in denial of the charges” and, thus,
due process was satisfied. Id.
      In Copeland, a police officer met with an Internal Affairs Bureau investigator
who at that meeting, informed the officer that, based on a urinalysis, he had tested
positive for marijuana. 840 F.2d at 1142. At the end of the meeting, the investigator
informed the officer that he “was suspended with intent to dismiss.” Id. The Third
Circuit rejected the officer’s argument that he was deprived of due process because
the City of Philadelphia did not prepare formal, written charges against him until
after he had been dismissed. Id. at 1145. The court reasoned that the officer was
given notice and a hearing on his use of an illegal drug prior to his dismissal, which
was ultimately the charge that resulted in his dismissal. Id. at 1145-46; see also
Schmidt v. Creedon, 639 F.3d 587, 599-600 (3d Cir. 2011) (holding that where the
notice “described in sufficient detail the conduct that was the basis for [the officer’s]



                                           15
suspension,” the fact that the notice did not identify the specific rule the officer
violated did not deprive him of due process).
      Persuaded by these cases, we also conclude that Officer was not deprived of
due process merely because he was not formally charged at the PDC. As the
testimony showed, Officer was well aware that Police Chief was considering
recommending to the Borough Council that Officer be disciplined. (FOF ¶ 11.)
Moreover, Officer knew that Police Chief was considering recommending discipline
because of Officer’s e-mail, which Police Chief believed was insubordinate and in
violation of Chapter II, Section 17. (R.R. at 39a-41a, 73a.) It was Chapter II, Section
17, which the Borough Council cited for imposing the one-day suspension. (Id. at
150a.) In short, the oral notice Police Chief provided Officer apprised him of the
nature of the charge against him, and the lack of a formal charge did not deprive
Officer of due process because he was afforded “[t]he opportunity to present reasons
. . . why [the] proposed action should not be taken.” Loudermill, 470 U.S. at 546
(emphasis added).
      Finally, Officer was not deprived of due process because of a lack of a
meaningful opportunity to respond. Officer “present[ed] his side of the story,” both
at the PDC and in writing after the PDC, stating that he did not intend to be
insubordinate and that he was attempting to be humorous, and he apologized for any
perceived insubordination. Id. (stating that “[t]he opportunity to present reasons,
either in person or in writing, why proposed action should not be taken is a
fundamental due process requirement”). As already noted, Officer’s defense of his
action has been consistent from the PDC, to the post-PDC memorandum he sent
Police Chief, to his testimony before the Commission. The only difference the
Officer has cited, as explained in his testimony, was that, according to him, had a



                                          16
proper PDC been held, he would have explained that the meeting where Police Chief
assigned Officer to work as the Business Liaison Officer was of a “jovial nature.”
(N.T. at 126, R.R. at 127a.) Nothing, however, prevented Officer from explaining
the nature of the meeting either at the PDC or in his post-PDC memorandum. Thus,
Officer had the opportunity to present this fact but, for whatever reason, chose not
to do so.
      While Officer cites to Jaruszewicz v. Department of Environmental
Resources, 648 A.2d 1285 (Pa. Cmwlth. 1994), in support of his argument that he
was deprived of a meaningful opportunity to respond in that the PDC was merely an
investigatory meeting and Officer anticipated a second PDC, Jaruszewicz is
distinguishable. There, a Department of Environmental Resources (DER) park
ranger was suspected of having encouraged the girlfriend of a colleague who had
been killed to sue the Commonwealth for his death. Id. at 1286. The assistant park
manager investigating the incident met with the park ranger twice but revealed the
identity of the park ranger’s accuser only at the second meeting. Id. at 1288. At the
second meeting, during which the park ranger identified members of her family that
might have witnessed the conversation the park ranger had with the girlfriend, the
assistant park manager told the park ranger that he would investigate further and
possibly convene the parties at the next meeting. Id. However, no additional
meeting was held, and the park ranger was suspended after the assistant park
manager spoke only to the girlfriend’s witness, and not the park ranger’s family
members. Id. We held that the park ranger’s pre-disciplinary rights were violated
because she “was not given an adequate opportunity to respond to the complaint
against her before she was formally suspended.” Id. at 1289. We stated that while
the park ranger had “an opportunity to respond to the complaint against her at the



                                         17
second meeting,” the assistant park manager’s “actions also left the impression that
he would be holding another meeting prior to taking disciplinary action,” which
“stripped [the park ranger] of the opportunity to fully respond to the complaint[.]”
Id.
       Here, though, the circumstances do not involve the recollection of several
witnesses to a conversation, some of whom were not questioned by the governmental
employer. The facts have been largely undisputed, and the only question has been
Officer’s intent behind the e-mail and how others who received the e-mail perceived
it.6 In addition, unlike in Jaruszewicz, where the impression was left that another
meeting would be held, here, after Police Chief gave that impression, he consulted
with Union Steward, and Union Steward agreed that no additional meeting was
necessary. Moreover, as previously discussed, Officer had a meaningful opportunity
to respond to Police Chief’s allegation that Officer’s e-mail was insubordinate.
Therefore, Officer’s right to a meaningful opportunity to respond was not violated.




       6
          The Commission ultimately concluded that even if Officer intended the e-mail to be a
joke, it “was still inappropriate, disrespectful and intemperate.” (Commission Decision and Order
at 6.) The Commission highlighted that while Officer asserted “the e[-]mail was meant to be an
extension of [the] cordial and joking tone” of the January 20, 2017 meeting, the January 20, 2017
meeting was a “private discussion” between Officer and Police Chief, whereas the “e[-]mail was
sent to all employees of the Department who were not aware of the alleged tone and tenor of any
previous private conversations between” Officer and Police Chief. (Id. (emphasis in original).)
Therefore, recipients of the e-mail “could only interpret [it] based on its content.” (Id.)


                                               18
   III.   Conclusion
      For the foregoing reasons, we conclude that prior to the imposition of the one-
day suspension, Officer was afforded his constitutional right to due process at the
PDC. Accordingly, we must reverse the Order of common pleas and reinstate the
Commission’s order sustaining the one day suspension of Officer.



                                      _______________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        19
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles Kern                           :
                                       :
                 v.                    :   No. 1877 C.D. 2017
                                       :
Green Tree Borough and Green Tree      :
Borough Civil Service Commission,      :
                        Appellants     :


                                 ORDER


     NOW, January 31, 2019, the December 7, 2017 Order of the Court of
Common Pleas of Allegheny County is REVERSED, and the order of the Green
Tree Borough Civil Service Commission is REINSTATED.



                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Kern                           :
                                       :
            v.                         : No. 1877 C.D. 2017
                                       : Submitted: August 10, 2018
Green Tree Borough and Green           :
Tree Borough Civil Service             :
Commission,                            :
                  Appellants           :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT                              FILED: January 31, 2019

            Respectfully, I dissent. The due process requirements established in
Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), are not very
onerous, but they do require the public employee to be informed of the discipline
under consideration.   Here, Officer Kern was not informed that he could be
suspended either before or at the meeting with Green Tree Borough’s Police Chief,
Colin Cleary. Because I agree with the Court of Common Pleas of Allegheny
County’s (trial court) determination that Officer Kern did not have a Loudermill
hearing, I would affirm.
            As noted by the majority, Loudermill requires notice and the
opportunity to be heard before a public employee’s employment can be terminated.
In Loudermill, two discharged school district employees brought actions against
their respective boards of education to challenge the termination of their
employment.
             The United States Supreme Court held that a government employee has
a property interest in his employment, and, thus, is entitled to a pre-termination
hearing that satisfies due process, i.e., notice and the opportunity to be heard.
Loudermill, 470 U.S. at 542. This pre-termination hearing “need not be elaborate”;
in general, “‘something less’ than a full evidentiary hearing is sufficient prior to
adverse administrative action.” Id. at 545 (quoting Mathews v. Eldridge, 424 U.S.
319, 343 (1976)). The pre-termination hearing serves as “an initial check against
mistaken decisions – essentially a determination of whether there are reasonable
grounds to believe that the charges against the employee are true and support the
proposed action.” Id. at 545-46.
             In Ray v. Civil Service Commission of Borough of Darby, 131 A.3d
1012 (Pa. Cmwlth. 2016), we considered whether the borough’s pre-termination
hearing complied with the notice requirement of Loudermill. In Ray, the police chief
notified an officer, in writing, that his conduct had violated departmental rules and
that he could be disciplined in a way that would affect his earnings. A Loudermill
hearing was scheduled and attended by the officer and his counsel. One day later,
the chief notified the officer that he had been suspended and that the chief planned
to recommend that the borough council terminate the officer’s employment. The
officer appealed, contending that the written notice of charges was inadequate
because it did not specifically state that a suspension or termination was a possibility.
We rejected this contention. We held that the notice was sufficient because it stated
that the officer “may be subject to disciplinary action that could affect [his] pay.”
Ray, 131 A.3d at 1020.
             Unlike the officer in Ray, Officer Kern did not receive a written
statement of charges, let alone notice that he could be disciplined in a way that would


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affect his pay. Officer Kern testified that he was not informed at the meeting that he
might be suspended or subject to a wage loss, and Chief Cleary did not refute this
testimony. Likewise, Officer Kern was not advised that a suspension would be on
his record for three years and could hinder his ability to be promoted. Notes of
Testimony (N.T.), 9/12/2017, at 3. Because Officer Kern was not informed either
before or during the meeting that he could be suspended, I agree with the trial court’s
conclusion that Officer Kern did not receive the minimum notice required by
Loudermill.
              In addition, Officer Kern was not given an adequate opportunity to
respond. Chief Cleary told Officer Kern that he would hold a second meeting after
Officer Kern and his Union Steward, Officer Jerome Geiger, had the opportunity to
consult with their union representative. N.T., 3/1/2017, at 74. The trial court found
that all three men believed there would be another meeting. Instead, Chief Cleary
cancelled the second meeting. Officer Kern, relying on Jaruszewicz v. Department
of Environmental Resources, 648 A.2d 1285 (Pa. Cmwlth. 1994), argues that as a
result of the cancellation of the second meeting, he did not receive a complete
opportunity to respond, as required by Loudermill.
              In Jaruszewicz, the department gave the public employee the
impression that another meeting would take place. This Court concluded that the
department “stripped [the employee] of the opportunity to fully respond to the
complaint prior to [the deprivation] by indicating to [the employee] that she would
have such an opportunity at another meeting and then not holding such a meeting.”
Jaruszewicz, 648 A.2d at 1289 (emphasis added). Chief Cleary told Officer Kern
there would be another meeting. The majority concludes that this does not matter
because Chief Cleary and Officer Geiger agreed that another meeting was not


                                       MHL-3
necessary. I disagree with this conclusion. First, Officer Geiger did not have the
authority to waive Officer Kern’s Loudermill rights. Second, the majority does not
consider how the lack of a second meeting affected Officer Kern’s Loudermill rights.
Had the second meeting occurred, Officer Kern could have provided a complete
explanation of his conduct before Chief Cleary forwarded his recommendation to
the Borough Council.
             Chief Cleary asked Officer Kern to write the memorandum about his
email, and Officer Kern composed the memorandum as an apology to Chief Cleary.
He did not use it as a means to present his side of the story. Although Officer Kern
acknowledged that no one placed limitations on the content of his memorandum, he
testified that Chief Cleary told him to simply write a “to/from” to Chief Cleary about
the intent of Officer Kern’s email. N.T., 3/1/2017, at 127-28. Chief Cleary did not
say that the memorandum would be forwarded to a third party.
             It would have been a simple matter for Chief Cleary to issue a brief,
written statement of charges and ask Officer Kern at the February 2, 2017, meeting
to explain why he should not be suspended. Had this information been conveyed,
Officer Kern could have written a more complete response and explained that the
humor in his email simply continued the tone of his earlier meeting with Chief
Cleary. This may have caused Chief Cleary to recommend a reprimand instead of a
suspension. With a more complete explanation, the Borough Council may not have
accepted Chief Cleary’s recommendation for a one-day suspension and imposed a
different sanction, or no discipline at all.
             In summary, the standards for a Loudermill hearing are not difficult to
satisfy. Because Chief Cleary’s oral statement of charges did not inform Officer
Kern that he could be disciplined in a way that would affect his wages, it did not


                                         MHL-4
satisfy the minimum notice requirement of Loudermill. Ray, 131 A.3d at 1020.
Even Chief Cleary had doubts about whether his meeting with Officer Kern satisfied
Loudermill, which is why he sought assurance from Officer Geiger, who testified
before the trial court that he did not understand Loudermill requirements.
             For these reasons, I would affirm the trial court’s decision.

                                    ______________________________________
                                    MARY HANNAH LEAVITT, President Judge




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