Fifteen former police officers from Delaware County, Pennsylvania will not be reinstated according to a three judge panel and must now decide whether to continue their appeals. The officers were involved in a scandal in 2009 involving the dissemination of answers to a in service training test mandated by the Municipal Police Officer’s Education and Training Commission (MPOETC).
The thought of a cheating scandal among police officers is troublesome. Are these in-service classes so difficult that the officers must cheat to pass? Is the hiring process so flawed that those being hired don’t possess the intelligence necessary to do the job? Reactions to the press reports range from shock to anger and every possible reaction in between. However, as police officers, you should know not to rely on the facial aspects of the press reports. There are details deeper in the story that tell something entirely different.
The opinion of the court has a detailed explanation of the events which led to the officer’s decertification. In fact, the decision indicates some troublesome scenarios where those who serve and protect may not be well protected.
MPOETC prepares three versions of examinations for each in-service course: Test 1, to be administered following each training course; Test 2, a retest for officers who fail Test 1; and Test 3 for officers who fail both Test 1 and Test 2 and must re-take the course. MPOETC sends police academies a CD-ROM containing the tests and answer keys. The academies print copies of the tests and answer keys.
Sean Gallagher, an officer in Oxford, Chester County, and a part-time officer in Trainer, Delaware County, sent an e-mail captioned “FW: Answers for Act 180 if you need them” containing the answers to four exams for the 2009 classes. Two officers who received the e-mail forwarded it to their Chief. He contacted William Davis, the director of the Delaware County Police Academy. Davis contacted MPOETC who instructed him to immediately discontinue using Test 1 and implement Test 2.
John Ryan, an 18 year veteran instructor was instructing on February 25, 2009 and passed out Test 2. While grading the tests, Ryan noted he had never had so many officers fail. When he rechecked the tests, he realized all of the wrong answers were the same. Had he given Test 1, each officer who failed would have scored 90 or 100%. He also noticed other officers had erased answers which were correct for Test 1 and entered the correct answer for Test 2.
MPOETC began an investigation following the trail of e-mails and text messages where the answers were sent. Interviews were conducted with the officers involved and their chiefs. In March 2011, MPOETC ruled that 15 had cheated on the exam. Their certifications were to be revoked and they would be barred from further training and ineligible for certification.
Most of the officers challenged the decertification. Twelve of the officers are members of Delaware County Fraternal Order of Police Lodge 27 and are represented by longtime solicitor S. Stanton Miller who was consulted for this article.
Included in MPOETC’s regulations is their list of reasons why an officer can be decertified which are set forth at 37 PA Code § 203.14. Revocation of certification. Most interesting here are (6) Conviction for a disqualifying criminal offense, and (9) Cheating.
Under the rules, a disqualifying criminal offense is defined as one for which more than one year in prison can be imposed. Therefore, an officer can be found guilty of a misdemeanor of the third degree, retain his/her certification, and continue in his/her job. Examples include DUI 1st and some 2nd Offense, Harassment, Defiant Trespass, Disorderly Conduct, Loitering and Prowling, Selling Liquor to Minors, Open Lewdness, Prostitution and Patronizing Prostitutes.
Cheating is the unauthorized possession of a test, examination, quiz or questions, answers or answer keys. This case reveals the possession does not have to be voluntary or knowing. In fact, culpability does not seem to play any role in whether you are guilty or not, you must merely be suspected of possession.
Let’s try to put this into perspective.
In case one, a police officer goes out on a bender, heads over to the local women’s college, climbs the fence clearly marked as private property, peeps in the windows under cover of night, and flashes the family jewels. When patrol closes in, he leads them on a chase through the city.
In case two, a veteran detective, respected throughout the county by officers, prosecutors and defense attorneys with an impeccable record and a high conviction rate receives an unsolicited e-mail claiming to contain the answers to in-service tests. Believing it to be a joke, he hits delete.
Which man do you want on your department or backing you up? Under the rules of MPOETC, the officer in case one retains his certification and can continue to be employed as a police officer while the detective in case two can have his certification revoked permanently.
This class was comprised of 52 officers from various departments throughout Delaware County. According to the investigators, the secretary for the Police Academy did receive the CD supplied by MPOETC. As was her usual practice, she prepared 35 copies of Test 1 and 10 copies of Test 2 for each of the four sessions.
When instructed to do so by Davis, she stated she did shred Test 1 and printed out the copies of Test 2 and 3. Once it was determined that the class would exceed 35 students, who printed out the additional tests and did s/he print from the proper file on the CD?
While you could ask everyone involved, the answer would be their recollection only. The answer sheets required the officers to sign and print their name and fill in the name of the academy and test version. The officers turned in the tests and the answer sheets separately. The tests used by the officers are not attached to the answer sheets and do not contain any information linking the tests to officer.
Six officers admitted to having received the answers by various means. They made notations on their answer sheets but then erased the answers and entered the correct answers. These admissions all took place on the Legal Updates test.
There is a question to intent and degree of culpability. There is also a question of application of the Garrity Rule and whether punitive action by MPOETC can be considered a proceeding to which immunity can be applied. Without a license to practice law, this analysis is left to members of the Bar.
The Officer Safety Awareness test presents a much different case. Officers Collins, Cosentino, Boyd, Curran, DiNardo, Ely, Heine, and Detective Irey all deny receiving the answers to this test. They were denied polygraph exams. They recall taking Test 1. And there is no report of erasures or changed answers on their tests.
MPOETC found, and the Court upheld, that despite their denial of possessing the answers, Curran, Boyd, DiNardo, Ely, Fuller and Irey recorded the same answers on the test. They received a grade of 40% but would have received 90% on Test 1 with the same wrong answer to Question #9. From this evidence, the Commission inferred that the officers possessed the answers to Test 1. There was no other evidence against these officers. The MPOETC could not produce the test booklets and relied solely on the recollections of the staff.
Collins and Cosentino are believed to have been seated next to each other during the test and had the same answers. They received 40% but would have received 100% on Test 1. Heine also received 40% but would have received 100% on Test 1. This evidence supported the Commission’s inference that Collins, Cosentino and Heine possessed answers to the Test 1 and used them during the test. Nobody reported seeing anyone copying from anyone else. And of course, if they had been given Test 1, scoring 100%, they would have to have the same answers.
The MPOETC uses a preponderance of the evidence standard in deciding their cases, meaning the burden of proof is a fact is more likely than not. Even to the layperson, this should be easy. Nine officers would have passed under Test 1. They recall taking Test 1. All papers which would indicate which test they had taken were destroyed by MPOETC.
In the narrative of events, the court states, “During the subsequent Officer Safety Awareness test, someone in the class asked him (Ryan) to verify the test number. After responding that it was Test 2 or Test B, he checked to make sure that he was handing out Test 2 versions. In the classroom, only he had a copy of the Test 1 version for the Officer Safety Awareness course, which he had used to take the test himself to prepare for the class.” Since we know the secretary prepared 35 copies of the test and there were 52 officers in the class, are we sure the extra copies needed weren’t made from the Test 1 copy Ryan had with him in error? We also know the officers recorded the test version on the answer sheet “as directed by the instructors.” And if Test 1 was destroyed, why did Ryan have an answer key for Test 1 to compare the results to?
This is not meant to call the character of John Ryan into question in any way. Ryan is an honorable and distinguished man. But so are the officers affected by this debacle. These men lost their careers. Their reputations were trashed in the press and any chance to redeem their names was shredded. Even the investigators, while recommending decertification, also recommended these officers be immediately considered for reinstatement. MPOETC adopted their punitive recommendations in full and then denied the reinstatement.
In the matters of the Officer Safety Awareness test, MPOETC believes they distributed Test 2 but cannot prove it, the officers believes they were given Test 1. In support of their belief, one specifically recalls marking his answer sheet as such and none of these answer sheets were changed to show answers consistent with Test 2. With this number and caliber of officers involved, it stands to reason something went wrong with this test. All of the officers passed the retest. Here, decertification and banishment from a career are simply not supported by the facts.
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Barbour et.al. v. Municipal Police Officers Education and Training Commission 599 C.D. 2011 to 610 C.D. 2011
Robert was raised by a 28 year police veteran in Marple Township PA where his parents taught him love and respect for the law and others. Robert served in the U.S. Marine Corps in the early 1980s as a Military Police Officer. After his discharge, he pursued a career as a municipal Police Officer in suburban Philadelphia in Radnor Township. He was involved in an on-duty vehicle accident which caused him to leave law enforcement after 7 years on the force. Robert enrolled in college earning his Associates Degree, Summa Cum Laude, in Paralegal Studies with a minor in Administration of Justice from the Delaware County Community College, a Bachelor’s Degree, Cum Laude, and a Certificate in Paralegal Studies from Widener University in Chester PA and his Juris Doctor from the Widener University School of Law. During Law School, Robert served a clinical internship with the Delaware County (PA) District Attorney’s Office. He currently volunteers his assistance with photography services to the Delaware County Law Enforcement Officer’s Memorial Foundation and the Marine Corps Law Enforcement