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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sgt. John Snyder,

:

Appellant

:

:

v.

: No. 1341 C.D. 2004

: Argued: February 1, 2005
Wilkinsburg Civil Service Commission :
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER. Judge
HONORABLE
JIM
FLAHERTY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SMITH-RIBNER

FILED: March 11, 2005

Sergeant John Snyder (Sgt. Snyder) appeals from an order of the
Court of Common Pleas of Allegheny County that affirmed a decision of the
Borough of Wilkinsburg Civil Service Commission (Commission) upholding the
five-day suspension imposed upon Sgt. Snyder for falsely accusing his superior of
cheating and encouraging other officers to cheat on a promotional examination for
the position of Sergeant in violation of Section 3.12 of the Borough Police
Department's Rules and Regulations (Regulations). The issues raised are whether
the suspension violated Sgt. Snyder's freedom of speech guaranteed by the First
and Fourteenth Amendments to the United States Constitution; whether Section
3.12 is unconstitutionally overbroad on its face and as applied; and whether the
finding that Sgt. Snyder violated Section 3.12 is supported by substantial evidence.

In July 2001 Lieutenant Michele Krempasky (Lt. Krempasky) of the
Borough Police Department filed a formal complaint with the police chief, alleging
that Sgt. Snyder had been making false statements to officers that the Lieutenant
was having an affair with another officer and that she cheated on promotional

examinations. The police chief assigned Lt. Dale Rummel to conduct an
investigation to determine if Sgt. Snyder violated Department policy prohibiting
sexual harassment and violated Section 3.12 of the Regulations, which provides:

Criticism: No member of the Department shall criticize
or ridicule the Wilkinsburg Department of Police, any
other city department, any State agency, or members of
the State Pennsylvania Judiciary, their policies, or their
officers by speech, in writing, or by expression in any
other manner, when such speech, writing or any such
expression is defamatory, obscene, unlawful, exhibits a
reckless disregard for truthfulness, or tends to undermine
the operations of the Police Department, any other
Borough department, any State agency, or the Judiciary
by impairing their efficiency or their operation or
maintenance of discipline. (Emphasis added.)
Lt. Rummel recommended that Sgt. Snyder be suspended for five days after
finding that he violated the sexual harassment policy and Section 3.12. The police
chief, however, suspended Sgt. Snyder for ten days (five days for each violation),
stating that his disrespectful behavior of making defamatory statements against his
superior would not be tolerated. Sgt. Snyder appealed to the Commission.

Sgt. Daniel Cuiffi, Officer Isador Trunzo and Officer Thomas Proctor,
who is Lt. Krempasky's husband, testified as follows. On several occasions, Sgt.
Cuiffi and Officer Trunzo heard Sgt. Snyder making statements to officers within
and outside the Police Department regarding Lt. Krempasky's alleged sexual
relationship with Sgt. Ron DePellegrin. Sgt. Cuiffi told Sgt. Snyder several times
to stop making the statements. Also Sgt. Cuiffi and Officer Trunzo heard Sgt.
Snyder stating that Lt. Krempasky had answers to the promotional oral
examination and that she gave them to Sgt. DePellegrin, who was promoted
because of his relationship with Lt. Krempasky. Officer Proctor testified that when
he confronted Sgt. Snyder, he denied making the statements about Lt. Krempasky's
2

relationship with Sgt. DePellegrin but questioned her honesty on the examinations.

Sgt. Snyder testified that Officer Schneeman informed him that Lt.
Krempasky encouraged officers to obtain fraudulent doctors' excuse slips for sick
leave to avoid losing points on the promotional examinations;1 he personally saw
Lt. Krempasky telling Sgt. Cuiffi and Officer Bender to get doctors' excuse slips in
"any way they could" when they indicated that they did not have them. N.T. at
p. 134. He reported Lt. Krempasky's alleged conduct to his union and to the police
chief in July 2001, after the Lieutenant filed a complaint against Sgt. Snyder and
after the investigation of his allegations was stopped. Sgt. Snyder admitted that he
reported Lt. Krempasky's alleged conduct based in part on a "personal" reason,
stating that "if those officers, specifically Lieutenant Krempasky, would have
suffered the loss of those points, she would have been dropped lower on the list
than me, obviously giving me the chance for a promotion instead of her." Id. at.
p. 139. Sgt. Snyder failed the promotional examination and was not promoted.

Lt. Krempasky denied Sgt. Snyder's accusations. She testified that the
officers would lose one point on the promotional examination for each sick day
exceeding five sick days if doctors' excuses were missing from their files, that
before the scheduled promotional examination the Borough officer gave her sheets
listing recorded sick days for each officer taking the examination and that she gave
the officers the lists because she could not ascertain whether they submitted excuse
slips for their sick days. She stated to them: "This is the list of sick days that you
have used ... this year. If you have excuses that you have not turned in to your

1Pursuant to the personal jacket review under the Borough Civil Service Rules and
Regulations applicable to promotional test scores, one point out of a possible promotional test
score of 100 points is deducted, up to five points, for each sick day without an excuse slip if sick
leave exceeds five days. Commission's Findings of Fact No. 30.
3

file, you need to get them in by this date." Id. at p. 169. She further testified that
Sgt. Snyder was not present when she made the statements to the officers.

The Commission sustained Sgt. Snyder's appeal from the five-day
suspension for sexual harassment because he did not make statements regarding Lt.
Krempasky's alleged sexual relationship directly to her and because the Borough
failed to follow its procedure for investigating the harassment charge. As for the
five-day suspension for violating Section 3.12 of the Regulations, the Commission
accepted the testimony of Lt. Krempasky and the other Borough witnesses and
rejected Sgt. Snyder's conflicting testimony. The Commission referenced Sgt.
Snyder's testimony in which he admitted that, although excuse slips were missing
from the officers' file, the payroll records showed that the Borough approved the
officers' sick leave. The Commission found that by accusing Lt. Krempasky of
fraudulent conduct without any factual basis, Sgt. Snyder exhibited a reckless
disregard for the truth and undermined the operations of the Police Department.
The Commission accordingly upheld the Section 3.12 suspension, and Sgt. Snyder
appealed to the trial court, which affirmed the Commission's decision.

Sgt. Snyder argues here that the Borough's action to suspend him for
reporting fraud violated his constitutional right to freedom of speech.2 In City of
San Diego, California v. Roe, ___ U.S. ___, 125 S. Ct. 521 (2004), the court held
that public employees do not relinquish all First Amendment rights enjoyed by
citizens but that public employers, however, may impose certain restraints on

2Where, as here, the trial court did not take additional evidence, the Court's review of the
civil service commission's adjudication is limited to determining whether constitutional rights
were violated, whether an error of law was committed, whether the commission's findings of fact
are supported by substantial evidence and whether an agency practice and procedure was not
followed. Section 754(b) of the Local Agency Law, 2 Pa. C.S. §754(b); Veit v. North Wales
Borough, 800 A.2d 391 (Pa. Cmwlth. 2002).
4

employees' speech that would be considered unconstitutional if applied to the
general public. Id. A public employee's allegation that he or she was disciplined
for exercising the right to freedom of speech is reviewed under the two-part
analysis set forth in Pickering v. Board of Education, 391 U.S. 563 (1968), i.e.,
whether the speech touches upon matters of public concern rather than personal
interests and whether the employee's interest in making the speech is outweighed
by the employer's interest in promoting efficient public services.

The question of whether an employee's speech addresses matters of
public concern is determined by the content, form and context of the speech.
Connick v. Myers, 461 U.S. 138 (1983). In general, speech touches upon matters
of public concern when it involves issues necessary and appropriate to enable the
public to make informed decisions regarding the operations of government. Banks
v. Wolfe County Board of Education, 330 F.3d 888 (6th Cir. 2003). Sgt. Snyder's
statements accusing his superior of fraudulent conduct involving civil service
examinations touched upon matters of public concern, and, consequently, any
interest in his First Amendment rights must be balanced against the Police
Department's interests in maintaining efficient law enforcement operations free
from internal division and disruption.
Although
Sgt.
Snyder
made no public speech as did the employee in
Sacks v. Department of Public Welfare, 502 Pa. 201, 465 A.2d 981 (1983), Sgt.
Snyder argues that the holding in Sacks applies to his case. There an employee of
the Department of Public Welfare was suspended for ten days for criticizing,
during a public speech, alleged medical assistance fraud. After reviewing the
analyses in Pickering and Connick, the Supreme Court stated:
[T]he principles which we distill from the
foregoing discussion are (1) as the public interest value
5

of the speech increases, government's disciplinary action
related to the speech activity will proportionately
increase in difficulty of justification; (2) in most cases,
factually accurate but critical statements made by a
public employee may not be punished at all; (3) false but
harmless statements also may not be punished if the
government is unable to demonstrate that the statements
were in some way injurious; (4) the claim that false
statements were per se harmful requires an equation of
the interests of the agency criticized with individuals who
are in positions of authority in the agency, and whether
such an equation will be made will depend on the nature
of the speech in question.
Id. at 215, 465 A.2d at 988 (emphasis in original). The Borough contends,
however, that Sacks does not apply because Sgt. Snyder did not make a public
speech; he made public allegations of fraud despite evidence to the contrary.

In a paramilitary organization, such as a Police Department, discipline
and respect for the chain of command are critical to maintaining order and public
safety. Williams v. Seniff, 342 F.3d 774 (7th Cir. 2003). The Commission found
that Sgt. Snyder made the statements to the officers accusing Lt. Krempasky of
fraudulent conduct without any factual support. Sgt. Snyder admitted that he did
not report Lt. Krempasky's alleged conduct until after she filed complaints against
him and that he had a personal reason for making the accusation. The Court
concludes that the Commission's finding that Sgt. Snyder's behavior undermined
the Police Department's interests in maintaining discipline and respect for the chain
of command is supported by substantial evidence. Hence, the record shows that
the Police Department's interests outweighed Sgt. Snyder's free speech interests,
and the resulting suspension therefore did not violate his constitutional rights.

Sgt. Snyder next argues that Section 3.12 of the Regulations is
unconstitutionally overbroad on its face and as applied to this matter because it
indiscriminately prohibits any criticism of the Police Department or government
6

entities and their personnel, which has a chilling effect on the officers' exercise of
their freedom of speech. Courts must determine in these situations whether the
state has a legitimate and substantial interest in regulating speech and, if so,
whether the interest is being pursued by means of broadly stifling fundamental
personal liberties. Shelton v. Tucker, 364 U.S. 479 (1960). Sgt. Snyder relies on
Gasparinetti v. Kerr, 568 F.2d 311 (3d Cir. 1977), where the court struck down
police department regulations as an overbroad prohibition on the officers' speech.

The regulations at issue in Gasparinetti provided that police officers
and civilian employees shall not (1) "by manner, gesture, or speech criticize or
make derogatory reference to Department orders or instructions either to the public
or to the members of the Department," (2) "censure other Department members
concerning official transactions within the Department," and (3) "publicly
disparage or comment unfavorably or disrespectfully on the official action of a
superior officer...." Id. at 314. The court concluded that the police department
"indiscriminately cast its net so as to catch ... much speech in which [its]
legitimate interest is minimal" without providing interpretative guidance for
construing the terms of the regulations. Id. at 317. The court distinguished a
regulation upheld in Magri v. Giarrusso, 379 F. Supp. 353, 357 (E.D. La. 1974), as
not impermissibly vague or overbroad. Article 33 of the regulation provided:
Members and employees shall not publicly
criticize or ridicule the department, its policies or other
employees by talking, writing or expressing in any other
manner, where such talking, writing or other expression
... tends to impair the operation of the department by
interfering with its efficiency; interfering with the ability
of supervisors to maintain discipline; or having been
made with reckless disregard for truth or falsity.
7

Unlike the regulations in Gasparinetti that prohibited "derogatory
reference," "censuring" and "public disparagement" without further interpretative
guidance, Section 3.12 of the Regulations here sets forth specific categories of
unprotected speech. It prohibits speech which is defamatory, obscene or unlawful,
exhibits a reckless disregard for truthfulness or tends to undermine operations of
the Police Department by impairing its efficiency or its operation or maintenance
of discipline. Section 3.12 provides greater guidance for ascertaining prohibited
speech than the regulations upheld as constitutional in Magri, and it is reasonably
specific so as to inform officers of prohibited speech without sacrificing the Police
Department's interests. Thus the Court concludes that Section 3.12 is not
impermissibly overbroad on its face or as applied in this matter.

Finally, in finding that Sgt. Snyder's behavior exhibited a reckless
disregard for truthfulness and undermined efficient law enforcement operations,
the Commission accepted the testimony of Borough witnesses and rejected Sgt.
Snyder's conflicting testimony. The Commission is the fact finder authorized to
make credibility determinations and to resolve all conflicts in the testimony.
McNaughton v. Civil Service Commission of the Borough of Camp Hill, 650 A.2d
1157 (Pa. Cmwlth. 1994). Because the Commission's findings are based on its
credibility determinations, this Court may not disturb those findings on appeal
where they are supported by substantial evidence in the record. Id. Accordingly,
as the evidence amply supports the Commission's finding that Sgt. Snyder violated
Section 3.12 of the Regulations, the Court shall affirm the order of the trial court.

DORIS A. SMITH-RIBNER, Judge
8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sgt. John Snyder,

:

Appellant

:

:

v.

: No. 1341 C.D. 2004

:
Wilkinsburg Civil Service Commission :

O R D E R

AND NOW, this 11th day of March, 2005, the order of the Court of
Common Pleas of Allegheny County in the above-captioned matter is affirmed.

DORIS A. SMITH-RIBNER, Judge