Civil service could make him fire-proof

Friday, December 19, 2003

By Jonathan D. Silver, Pittsburgh Post-Gazette

It might not be so easy to get rid of Ken Fulton.

Earlier this month, Democratic county Chief Executive-elect Dan Onorato notified the Allegheny County police superintendent that he and 18 other mostly high-ranking county employees would be fired when Onorato takes office Jan. 2.

The purge will sweep out most of Republican Jim Roddey's appointees. There's no question that when Onorato says go, almost all of them must pack their bags and leave; the warden, the public defender, the county manager, all serve strictly at the pleasure of the chief executive.

Fulton, though, is a different animal. Even as rumors swirl about possible successors, a legal loophole apparently will save Fulton a job, though not his position.

Fulton, 53, is the only lame-duck department head who took a civil service exam for his position, as required by state statute. As a result, even Onorato concedes that Fulton might be afforded certain job protections not extended to department heads who serve strictly at the will of the chief executive.

"I would say there's an issue there. I think the issue is whether you can terminate the superintendent of police without going through the Civil service process," said county Solicitor Charles McCullough, who has turned in his own resignation to Onorato.

Depending on who is interpreting the state statute, passing the test might mean Fulton could be fired only for just cause -- negligence or insubordination, for instance -- and only after a Civil service hearing, explained attorney Michael Colarusso, who represents Fulton and the Western Pennsylvania Chiefs of Police Association.

"Allegheny County offered Ken Fulton a civil service examination, which he took and passed," Colarusso said. "The worst that would happen to him is he would go back to assistant superintendent. He's been a county police officer for years. You can't just throw him out on the street."

Fulton declined comment on his strategy but said he ideally wants to maintain his position as superintendent. Even if demoted, he indicated he would consider remaining for a time at police headquarters as an assistant superintendent.

That might ease the transition for a new superintendent, one handpicked by Onorato. Equally, it could make things uncomfortable if the old boss has to work under the new one.

Onorato said he had been aware of the issue of Fulton's civil service exam before sending out the pink slip. A review is still under way to determine exactly what protections are enjoyed by Fulton.

Either way, Onorato believes in his supreme authority to tap his own police superintendent.

"Can I change the superintendent of police? The answer is absolutely yes. The superintendent of police works for the highest elected official," Onorato said. "The chief of police for every mayor and borough and township works at the will of the elected official. It's no different [for the county]. It's been that way for 200 years."

Onorato said he has not received any notification of any challenge to replace Fulton. If Fulton decides to stay on as an assistant superintendent after the first of the year, Onorato said he expects him to be a team player.

"We told Kenny's people that, obviously, if civil service allows him to bump backward, we'll honor the civil service. It's really an issue for Kenny," Onorato said. "If he gets bumped back, I would expect him to act like a professional and follow the chain of command of the police department, and I'm sure he would."

Roddey announced Fulton's appointment to superintendent May 10, 2000. Fulton, who had served as assistant superintendent since January of that year, became qualified for the superintendent's position later that month under civil service rules, according to Colarusso.

The test was noncompetitive, meaning Fulton was the only person who took it. Many police chiefs throughout the state take such an exam for their positions, McCullough said.

"Police, in general, have civil service protection," McCullough said. "Otherwise you could promote everybody up the ranks from the police bureau, make them the chief and then fire them, and then you would destroy their union."

Although the county's administrative code does not specifically address the superintendent's position, McCullough said, opponents of Fulton could try to argue that the code exempts all department heads from due process when it comes to being fired.

In other words, even the police superintendent might be able to be summarily fired from the county police force.

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