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A former Wilkes-Barre police officer disciplined multiple times and ultimately fired for pulling out his loaded gun and saying he would kill himself if he were sent back to night shift has lost his appeal to collect unemployment compensation.
A state Commonwealth Court on Tuesday ruled against Kyle Rogers, who was terminated by Mayor Tony George last year for repeatedly violating the Wilkes-Barre City Police Department’s Code of Conduct.
The gun incident was the last straw for Rogers, who faced three other misconducts during his 23-month employment with the department. He was not charged criminally and went to work for the Harveys Lake Police Department after Wilkes-Barre let him go. He was hired as a corrections officer at an annual pay of $30,163 at the Luzerne County Correctional Facility in February of this year.
In his appeal, Rogers argued the city failed to present “competent and credible evidence” to show he “engaged in willful misconduct” while on the Wilkes-Barre police force. He was hired on Feb. 6, 2014, and fired on Jan. 8, 2016.
But the court disagreed in the opinion published by Judge Patricia A. McCullough in favor of the June 21, 2016, order issued by the state Unemployment Compensation Board of Review. In its review of the case, the court said the issue before it was not the validity of Rogers’ discharge, but whether he was entitled to unemployment compensation.
Rogers initially was denied unemployment compensation. But he appealed, and a referee assigned the case reversed the denial. The city followed with its own appeal to the Board of Review.
“Here, with four violations of the Code of Conduct by (Rogers) within a one-year period, the record contains substantial evidence to support the board’s finding of willful misconduct,” McCullough wrote.
The court’s decision spelled out the violations and corresponding disciplines:
• March 12, 2015, arguing with a superior, two days’ suspension
• July 7, 2015, failing to appear at three preliminary hearings, written reprimand
• Oct. 15, 2015, asleep while on duty behind the wheel of his patrol car, two days’ suspension
• Dec. 15, 2015, flagrant misuse of his firearm, punishable by up to five days’ suspension.
The court noted that Rogers did not dispute the first three violations, but maintained he was joking when he said he was going to kill himself when he pulled out his gun.
McCullough’s opinion contained Roger’s statement given at a Loudermill hearing on Dec. 28, 2015, before his termination:
“Around 1600 hours, I walked into the room where bidding was being held. Officer (Mark) Hilpp and Officer (Joseph) Homza were in the room. Officer Hilpp was standing next [to] the window of [the] room or the left of the bid board. Officer Homza was sitting to the right of the bid board on the desk. I was standing directly in front of the bid board about 3 to 4 feet away. Both were talking about bidding. As they were talking, I attempted to make light of my situation by quickly removing my weapon from my holster and pointing it at [the] bid board. At no time did I directly point my weapon at either Officer Hilpp or Homza. I joked that, ‘If I have to go back to night shift, I would have to shoot myself.’
“Both Officer[s] Hilpp and Homza explained that what I did was inappropriate, and I agreed. None of the above excuses my actions on December 15, 2015. I am just trying to explain why I did what I did. I know that handling a firearm safely is a serious matter and something that should not be joked with. I realize that my impulsive action could have resulted in someone being seriously injured or killed. I apologize for this momentary lapse of judgment and expect there to be consequences.”
The court stated that the Board of Review “found (Rogers’) testimony that he neither pointed his weapon at another officer nor assaulted another officer to be credible.”
But the mayor disputed the board’s finding. “He pointed the gun at two officers,” George said.
The Luzerne County District Attorney’s Office investigated the gun incident and cleared Rogers of any criminal wrongdoing.
The Wilkes-Barre Police Benevolent Association filed a grievance in an attempt to have Rogers reinstated on the grounds that he was terminated without just cause.