concurring and dissenting.
Though I concur with the majority that Koleen Short (Short) is entitled to a hearing, I disagree with the majority’s reasoning that the Borough of Lawrenceville’s (Borough) personnel policy gave her a reasonable expectation that dismissal could occur only after a hearing. Rather, I believe that due to the manner in which Short was dismissed, her reputation was damaged and a hearing required.
Short was employed as the secretary/treasurer of the Borough from July of 1991 until October 3, 1994. At its October 3, 1994 meeting, the Borough council unanimously voted to dismiss Short. The reason cited for her dismissal was “gross accounting irregularities”, and a police officer publicly escorted her from that meeting, informing her that “she would be arrested if she were found in the Borough Office.” Though Short requested a hearing in connection with her dis*1275charge, the Borough never responded to that request.
Before the trial court, Short contended that she was entitled to a hearing based on the provisions of the personnel manual that provided that upon dismissal, employees “shall be allowed complete due process of law and shall be informed of the reason(s) for dismissal and allowed appeal procedures”, and that her reputation had been blackened so that she was entitled to a hearing in that regard. The trial court, not addressing the injury to Short’s reputation, found that the Borough, through its personnel policy, caused Short to have an “expectation of continued employment "with the guarantee that dismissal could occur only after due process of law”, and held that Short was entitled to a due process hearing.
The Borough appealed to this court, contending that under the Local Agency Law, its personnel policy did not create a property interest of the expectation of employment so that a due process hearing was inappropriate. Though the majority agreed that the policy did not constitute a contract granting Short a property right in her employment or a reasonable expectation of continued employment, it held that the personnel policy does give her a reasonable expectation that dismissal could occur only after due process.
Employment with the government of this Commonwealth is not a matter to which one has a per se right. Office of Administration v. Orage, 511 Pa. 528, 515 A.2d 852 (1986). Absent a contract, local agency employees have no property rights in their employment unless an expectation of continued employment is guaranteed by contract or statute and where no legislative or contractual expectation of employment exists, a public employee is considered to have at-will employment only. Rowe v. Township of Lower Merion, 120 Pa.Cmwlth. 73, 547 A.2d 880, 882 (1988).
Commonwealth authorities and agencies do not have the power to enter into contracts of employment that contract away the right of summary dismissal, since the power to confer tenure must be expressly set forth in the enabling legislation. See Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960). Moreover, an employee handbook or policy manual that is issued by a Commonwealth agency is not a legislative action in itself and, thus, cannot be considered a contract guaranteeing a property right in employment unless the legislature has so provided. Pivarnik v. Department of Transportation, 82 Pa.Cmwlth. 42, 474 A.2d 732 (1984). Because Short has failed to prove that she possessed a valid expectation of continued employment, I disagree with the majority that Short be entitled to a due process hearing.
Nonetheless, I concur with the majority that Short be given a due process hearing, not on a right to continued employment, but based upon her property right in her reputation. Because in Pennsylvania, an individual’s reputation is an interest that is recognized and protected by our highest state law — our constitution — the preservation of an individual’s reputation is a fundamental interest that cannot be abridged without compliance with the constitutional safeguards of due process and equal protection. R. v. Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994); Simon v. Commonwealth, 659 A.2d 631 (Pa.Cmwlth.1995). Because Short possesses a property interest, not in her continued employment but in her reputation, and because her reputation may have been injured by the Borough’s actions, Short was properly granted a due process hearing.