§ 2.44.080. Suspension and removal

A. Complaints—Charges—Information Required. Complaints or charges against any member of the department for violation of the police rules and regulations, ordinance of the borough, directives, or for conduct unbecoming an officer may be made in writing by any citizen or other member of the department giving the time, place and character of the offence and the name of the officer charged.

B. Record of Complaints—Charges. The charges or complaints shall be signed by the complainant and shall be filed in the office of the chief, or, in case of charges against the chief, filed with the borough clerk so as to be referred to the mayor and the council.

C. Departmental Hearing.

1. Notice of Hearing. Such complaint shall be served upon the member or officer so charged, either by personal service or by certified mail, return receipt requested, to his or her place of residence as listed in the police records, with notice of a designated hearing thereon before the chief, which shall not be less than fifteen (15), or more than thirty (30), days from the date of service of the complaint.

2. Chief as Complainant. In the case where the chief is the complainant, the hearing shall be held before the mayor and the council. When the chief has reason to believe that the charges made may result in the imposition of a penalty in excess of suspension for more than five days or a fine exceeding five days pay, he or she may, in his or her discretion, dispense with a departmental hearing and request that the mayor and the council or their designated representative, conduct a hearing.

3. Procedure. The chief or the mayor and the council, as the case may be, shall have the power to subpoena witnesses and documentary evidence. At the departmental hearing, the chief, or his or her designated representative shall hear and examine the complaint and the accused, and may, if in his or her judgment it is required, call for witnesses on both sides. The hearing shall otherwise be private as to the parties in interest, unless both parties thereto shall otherwise request, in which event the hearing shall be public.

4. Intention. It is the intention of this subsection to give every member of the department against whom a charge has been lodged a fair hearing upon such charge and give him or her every reasonable opportunity to make his or her defense. The strict rules of evidence shall not apply, though any decision shall be based upon the weight of competent, credible evidence in the form of documentation and/or sworn testimony presented. The complainant shall have the burden of proving the charges outlined in the complaint based upon the preponderance of the evidence.

5. Determination of Findings by the Chief. A written determination containing the findings of fact shall be made by the chief or his or her designated representative as hearing officer within thirty (30) days of the hearing.

D. Authority of the Chief—Referral to the Mayor and the Council.

1. Authority—Penalty Power of the Chief. In the instance where the chief, or his or her designated representative, is the hearing officer, he or she shall have the power and authority to dispose of the charges against the accused. If, in his or her opinion, the accused is not guilty of the offense charged he or she shall so advise the complainant in writing. In the event that the accused is found guilty of the charges, the chief may impose such penalty or penalties as are within his or her power. The chief may not impose a penalty exceeding five days suspension or a fine exceeding five days' pay.

2. Referral—Appeal to the Mayor and the Council. Where the chief finds that the penalty should be greater than five days' suspension or a fine of more than five days' pay, he or she shall refer the matter with written recommendations and findings to the mayor and the council who shall review the record below, if they determine that the record below is adequate to make a determination. The mayor and the council, in such circumstances, shall render a decision within thirty (30) days of the referral of the matter. Where it is determined that the record below is inadequate, a hearing de nova shall be held in accordance with the provisions of this section. In any event, the accused, if found guilty, may appeal in writing to the mayor and the council and deliver such to the borough clerk within ten (10) days of the chief's decision.

E. Hearing by the Mayor and the Council.

1. Procedure. In the circumstances, as previously described, when the mayor and the council hold a hearing, the mayor and the council shall promptly fix a time and place for the hearing and give due notice thereof through the borough clerk, to the complainant and the accused. The mayor and the council shall proceed to hold an open and fair hearing, examine witnesses under oath and keep a record of the evidence, employing a competent stenographer or reporter if determined necessary by the mayor and the council. Both complainant and defendant may be represented by counsel and the borough solicitor may, if requested, act in advisory capacity to the mayor and the council, but not otherwise. Evidence shall be presented to the mayor and the council by a member or officer of the police department as designated by the chief. The hearing may be adjourned from time to time if necessary, but not so as to unduly delay decision. At the close of the hearing, the mayor and the council shall review the evidence and determine the guilt or innocence of the defendant, based upon the preponderance of the evidence.

2. Majority Vote Required for Guilty Verdict. The majority vote of the mayor and the entire council shall be required to find a verdict of guilty. If the defendant is found guilty, then a majority vote of the mayor and the council present shall fix the penalty. The penalty, if any, shall be imposed by the mayor and the council, and shall be according to the nature and seriousness of the offense.

F. Suspension.

1. Suspension Without Pay.

a. Whenever any member or officer of the borough police department is charged under the law of this state, another state or the United States, with an offense, such police officer may be suspended from performing his or her duties with pay, until:

i. The case against the officer is disposed of at trial;

ii. The complaint is dismissed; or

iii. The prosecution is terminated.

b. If a grand jury returns an indictment against such officer, or the officer is charged with an offense which is a high misdemeanor or which involves moral turpitude or dishonesty, such officer may be suspended from his or her duties, without pay, until:

i. The case against him or her is disposed of at trial;

ii. The complaint is dismissed; or

iii. The prosecution is terminated.

c. If a suspended police officer is found not guilty at trial, the charges are dismissed or the prosecution is terminated, such officer shall be reinstated in his or her position and shall be entitled to recover all pay withheld during the period of suspension subject to any disciplinary proceedings or administrative action.

d. If any borough police officer is suspended with pay and is found guilty of the charges brought against him or her, the police officer shall reimburse the borough for all pay received by him or her during the period of his or her suspension.

2. Surrender of Police Property. During a period of suspension, the member shall forthwith tender his or her service revolver, his or her badge and his or her police I.D. to the chief.

G. Emergency Suspension. Emergency discipline shall take the following forms:

1. Any command or supervisory officer of the department shall have the authority to impose emergency suspension until the next business day against a member or employee of the department when it appears that such action is in the best interests of the department, and consistent with these rules.

2. A member or employee receiving an emergency suspension shall be required to report to the chief on the next business day at nine a.m., unless otherwise directed by his supervisor. The command or supervisory officer imposing or recommending the suspension shall also report to the chief at the same time. Thereupon, the matter may be resolved informally and duly noted in a written report filed in the office of the chief or the matter may proceed to a formal hearing as provided in this section.

(Prior code § 4-8)