City of Dallas v. Hammond , 1985 Tex. App. LEXIS 6985 ( 1985 )

ASHWORTH, Justice,

dissenting.

I respectfully dissent.

The City Manager did not have the authority to enhance the disciplinary action of the Chief of Police.

All of the pertinent provisions of the Dallas City Charter must be examined together in order to determine their intent and effect. Chapter XII, sec. 4, provides that the Chief of Police has the exclusive right to suspend or discharge officers. The same section provides that an officer who has been discharged or suspended has the right to a hearing before the City Manager. The City Manager shall proceed to inquire into the cause of the suspension or discharge and render judgment thereon, which judgment, if the charge be sustained, may be suspension, reduction in rank, discharge, or such modification or amendment as to him may seem just and equitable under all the facts and circumstances of the particular case.

We first note that the provisions of this section are directed toward officers who have been suspended or discharged by the Chief of Police. While a harsher punishment than suspension would be discharge, it logically follows that the action available to the City Manager is to affirm the suspension or discharge, or to reduce it. There certainly is no express provision for enhancement.

The majority state that the provision for modification or amendment gives the City Manager the authority to increase the disciplinary action of the Chief of Police and cite Black’s Law Dictionary as authority. It is doubtful the framers of the Charter had Black’s Law Dictionary before them as the Charter provisions were being formulated. It is more reasonable to assume that the usual definitions of such words were before them, such as those from WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1981): Modify: “to make more temperate and less extreme: lessen the severity of;” Modification: “the act or action of changing something without fundamentally altering it;” Alter: “to cause to become different in some particular characteristic ... without changing into something else;” Alteration: “the act or action of altering ... the result of altering.” To say that modification and alteration as used in the context of punishment or disciplinary action, provide for increase or enhancement in severity flies in the face of the common meaning and understanding of those words. The majority opinion states:

This grant of the right to modification or amendment is not restricted by any words which would limit the right to one of diminishment of the punishment previously assessed. Had that been the intent of the charter, it would seem reasonable that it would have said so.

This writer borrows those same statements and says:

This grant of the right to modification or amendment does not contain any words which would authorize enhancement of the punishment previously assessed. Had that been the intent of the Charter, it would seem reasonable that it would have said so.

When the Charter says the Chief of Police has the exclusive right to suspend or discharge, it means just exactly what it says. On appeal, the City Manager can affirm such action but cannot himself assess it for the first time.

There is yet another, and more compelling reason, why the City Manager cannot assess suspension or discharge for the first time. All Dallas policemen live, and sometimes die, by the Dallas Police Department General Orders. Section 502.07 of General Order 500 was apparently drafted from Ch. XII, sec. 4, of the Charter. Such General Order provides for the appeal of disciplinary action to the City Manager. If the City Manager upholds a discharge, demotion or suspension, then the employee may appeal to the Civil Service Trial Board. Again, we see the General Order contemplates at most only an affirmance of the disciplinary action of the Chief of Police, and certainly not an enhancement. To hold that despite such order, the City Manager can discharge a policeman who appeals a five-day suspension, is contrary to all concepts of justice and fair play.

The judgment should be affirmed.

JORDAN and BURDOCK, JJ., concur.