Paul N. Lalley, Esq., Campbell Durrant, P.C. | February 2021
In a decision issued on February 10, 2021, the Commonwealth Court affirmed the dismissal of a lawsuit filed by a former borough police chief whose position was eliminated by Borough Council. The decision in Romutis v. Borough of Ellwood City ruled that the Borough Code authorizes the hiring of a police chief outside of the civil service process, and that a police chief who is so hired lacks the statutory protection from dismissal of the Borough Code’s civil service provisions.
Chief Romutis was hired as the Borough of Ellwood City’s Chief of Police in 2010. The Borough did not hire Romutis through a civil service noncompetitive examination process. Instead, Romutis was given an employment contract that specifically stated that his employment as Chief was “at will” and stipulated that if the Borough terminated his employment “without just cause” it would pay him six months of severance. In May of 2014, Borough Council voted to eliminate the position of Chief of Police. The Borough offered Romutis the six months’ severance payment provided in his employment contract – along with a release of claims – but Romutis refused it. He did not request a hearing before the Borough’s Civil Service Commission. Instead, Romutis sued the Borough, claiming, among other things, that Borough Council’s elimination of his position violated his employment contract and that his termination violated public policy, as reflected in the civil service provisions of the Borough Code: specifically, Section 1190(a) of the Borough Code, which limits the grounds for removal of police officers.
The trial court granted summary judgment in the Borough’s favor, finding that Romutis’ employment contract specifically provided that he was an “at will” employee, and that the Borough had tendered to Romutis the six months’ severance required by the contract. The trial court further found that because Romutis was not hired through a civil service process, the civil service protections of Section 1190(a) of the Borough Code did not apply to him and could not serve as the basis for a public policy claim.
In a published en banc decision, the majority of the Commonwealth Court affirmed the dismissal of Romutis’ lawsuit. The Court held that the language in Section 1184(d) of the Borough Code regarding the civil service hiring of a borough police chief is “not mandatory,” and, therefore, “a borough can hire its chief of police through this alternative civil service procedure or not.” (Emphasis in original). Accordingly, because it was lawful for Borough Council to have appointed Romutis to his position as Chief outside of the Borough Code’s civil service provisions, the Court agreed that the civil service removal provisions of Section 1190(a) of the Borough Code did not apply.
What is particularly interesting in Romutis is what the Court wrote about its 2012 decision in Braun v. Borough of Millersburg. The Braun case also involved an action by a borough police chief whose position was eliminated by Borough Council. The Commonwealth Court in Braun ruled that the police chief’s lawsuit could proceed because Section 1190(a) of the Borough Code gave the chief statutory protection from removal from his position. The Court in Romutis did not expressly overrule Braun, although it referred to the Braun opinion as “very light on detail and analysis.” Instead, it distinguished Braun on the basis that “the former chief in that case was subject to civil service appointment.” There was a dissenting opinion by Judge McCullough, who opined that Section 1190(a) of the Borough Code applies regardless of the method of appointment of the police chief.
Because the Romutis decision was so recently issued, it is not known whether a further appeal will be filed with (or, if filed, actually heard by) the Pennsylvania Supreme Court. But the Romutis decision is interesting because it effectively overruled Braun without doing so explicitly. The Braun decision had caused consternation to municipal law practitioners because it was at odds with what had been a longstanding view that police chiefs who were not appointed to their positions through a noncompetitive civil service process could be removed from their positions without following the restrictions of statutory civil service removal procedures. So in effectively overturning Braun, the Court in Romutis has returned to the prevailing pre-Braun view. The decision also has implications for first class townships because of the similarity of the civil service provision in Section 638(d) of the First Class Township Code for the appointment of the police chief.