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Commission: No new hearing

November 6, 2010

PUNXSUTAWNEY — Former Punxsutawney Borough Police Officer Sean Weaver was turned down Friday for a hearing by the Punxsutawney Civil Service Commission in a continued attempt to get his job back.

Commission Solicitor Jeff Lundy, who was not available for Monday’s meeting, filed his opinion on two issues: As to whether Weaver would be granted a hearing by the commission, and a request by Timothy Morris, Punxsutawney Borough Council solicitor, regarding the candidate eligibility list.

Lundy said the commission received a letter from Weaver Sept. 23 requesting a hearing in regard to an appeal of council’s decision to not hire him on a permanent basis as a full-time borough police officer while on probation.

The commission also received position statements from Morris on behalf of the borough and attorney Jeffrey DuBois on behalf of Weaver, Lundy said, explaining that the commission is created statutorily pursuant to the borough code.

The commission’s powers include setting forth rules and regulations to be governed thereby, Lundy said. The principal function of the commission is to provide an eligibility list to council of qualified applicants for police positions, and to conduct hearings in the event of an appeal from disciplinary action of borough council in removing, suspending or reducing ranks of police officers.

Implementing those obligations can be found in the commission’s rules and regulations.

A hearing can be requested by a disqualified applicant and a police officer who has been suspended, removed, or reduced in rank, Lundy said, while Section 5 of the rules and regulations addresses the issue of a probationary officer.

Also, “Section 5.5 provides in its concluding sentence, ‘Any probationer who is notified in writing that his or her appointment will not be made permanent has no rights of appeal under these rules and regulations,’” he said.

Both parties agree that there was notification in writing that the appointment would not be made permanent, but Lundy said the difficulty is under borough code statute 11.86, which uses language similar to the cause provision that applies to other officers.

“It appears to suggest that it is a similar situation, but specifically, the rules don’t provide for the commission to hear that appeal under its rules and regulations. The Court of Common Pleas or a higher court could certainly do so,” Lundy said, adding that until the court tells the commission otherwise, it must abide by the rules that have been established.

“Mr. Weaver asserts that the process was flawed and in violation of the law,” Lundy said. “However, neither the borough code nor the rules and regulations of the commission — even if a letter was sent or not sent — confers any specific jurisdiction upon the commission to hold a hearing as to such assertions. The case law also suggests otherwise.

“Accordingly, my opinion is that the Punxsutawney Civil Service Commission does not have jurisdiction as to a probationary officer’s challenge to the actions of borough council in not making a probationary appointment permanent,” Lundy said.

The commission requested that Lundy provide comments as to solicitor Morris’s letter of Nov. 1, wherein the borough requests the eligibility list be reinstated.

“The letter indicated that by not extending the eligibility list, it has created a hardship for the borough,” Lundy said. “The police department is currently undermanned. If not reinstated, the additional time necessary to recruit and test officers will leave two positions vacant.”

“I request that the list from September be reinstated,” Morris wrote in his letter.

Lundy said the commission requested that he provide comments regarding the previous eligibility list that was not extended by the commission.

“My understanding is that the previous eligibility list was not extended within the original expiration date, and accordingly, pursuant to 5.1 of the code, the commission has no authority to reinstate or resurrect that list,” Lundy said, noting that he referred the borough to Section 5.6 in regard to provisional appointments.

“This gives the borough the authority to nominate a person to the commission for a non-competitive examination, and such nominee may be certified by the commission as qualified after a non-competitive examination, and may be appointed provisionally to fill such vacancy,” Lundy said. “So, it’s not like there isn’t a remedy available when there’s not a list.”

Commission member Rich Alexander made a motion to accept Lundy’s opinion to deny Weaver a hearing on not being hired by the borough. The motion passed 2-0, with Chairman Bill Leiberton and Alexander voting yes. Commission member Mike Ruffner was absent.

Leiberton made a second motion that the eligibility list not be resurrected based on the solicitor’s opinion. That motion passed 2-0.

Weaver and his brother, Mike, attended the meeting but made no comments regarding Lundy’s opinions and the commission’s vote.

Police Chief Tom Fedigan informed the commission that it must decide on some dates and times to be advertised before the process may begin to construct another list.

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