Judge denies council’s appeal on fired police officer

PUNXSUTAWNEY — The appeal filed by Punxsutawney Borough Council to Jefferson County Common Pleas Court regarding the reinstatement of terminated Punxsutawney Borough Police officer Brian Andrekovich was denied by President Judge John H. Foradora in an opinion released Wednesday.

In its July 2010 report, the Punxsutawney Civil Service Commission ordered that Andrekovich be reinstated with the department after council fired him stemming from the Aug. 15, 2009, death of Stephen Obbish, 48, in the back of a borough police cruiser.

Aug. 9, 2010, Punxsutawney Borough Council voted 5-1 to appeal the commission’s order.

Foradora said that the court concurred with the commission’s report, in which it said there was insufficient evidence to support the council’s reasoning behind firing Andrekovich.

In his opinion, Foradora wrote, “Without guidelines designed to funnel an officer’s discretion, though, council itself has little basis to conclude that an officer’s decision amounts to a violation of policy or law. That was certainly the case here, because there were no policies telling Andrekovich what to do on Aug. 15, 2009. He had to decide, based on his training and experience, how to handle what he assessed as a typical public drunk.

“When Obbish died approximately five hours after Andrekovich had been dispatched to the Goodwill Store (in the Punxy Plaza), though, council decided that the officer’s on-field decisions were in derogation of Punxsy PD’s rules and regulations,” Foradora wrote.

Regarding the charge that Andrekovich left his shift 20 minutes early that day, Foradora said, “Leaving early, by itself, was not problematic. Even if there was a policy stating that an officer could not leave early without approval, it was not enforced. Rather, as Chief Tom Fedigan testified, he had no problem with officers leaving early, provided that a relieving officer was present and able to respond in the event of a call.”

Foradora wrote that in this case, a relieving officer was present when Andrekovich left early Aug. 15, 2009.

“While it may have been (Officer Jeff) Winfield, who was specifically scheduled to relieve Andrekovich insofar as the former’s shift began when the latter’s concluded, (Officer Sean) Weaver, who had begun his shift at noon, was on duty and ready to handle calls when Andrekovich left the station for the day.”

Having left before Winfield arrived, however, Andrekovich had not discussed Obbish with him. Yet because Punxsy Borough Police had no written or unwritten protocol regarding the exchange of information, Andrekovich did not violate any policy, Foradora wrote.

Foradora wrote, “The court, having reviewed the entire record, including the video surveillance DVD, the hearing transcripts, and the exhibits produced at that hearing, agrees that the evidence was insufficient to sustain the charges identified by council in its statement of charges and as further defined in his termination letter,” and that “the court agrees that council terminated Andrekovich when there was not sufficient evidence to sustain the charges against him.

“Andrekovich had no forewarning of that result, though, which leaves the court to wonder how council could reach its conclusion when Andrekovich’s decisions that day were not proscribed by law, by necessary implication given a police officer’s role, or by applicable written policies.

“Implicit in its report, the commission wondered the same thing and correctly decided that charges one, two, and four were not supported by the evidence,” Foradora wrote.

The judge cited Cities v. Upper Yoder Township (Pa. 1984), which says, “A police officer may not be disciplined for violation of an official duty unless there is an established legal duty which has been violated.”
“The court concurs with the commission’s report, which, unlike Borough Council’s Statement of charges and termination letter, was well supported by the evidence,” he wrote.

Fedigan declined comment regarding the ruling Wednesday. Mayor James T. Wehrle was contacted, but did not call back. Council President Susan Glessner did not return calls from The Spirit. Council’s Solicitor Timothy Morris was unavailable.