State v. Stavar ( 1978 )

CROCKETT, Justice:

The Attorney General initiated this proceeding in district court to remove Karl J. Stavar, Chief of Police of Helper from that office.

The complaint charged him with:

committing Malfeasance in Office, in that during his term, as Chief of Police said defendant did intentionally and knowingly breach the trust imposed upon him by virtue of his office to a substantial degree and in such a way as to offend against the commonly accepted standards of a person in his office.

Section 77-7-1 states:

All officers of any city . . . not liable to impeachment shall be subject to removal as provided in this chapter upon being convicted of a felony, an indictable misdemeanor, a misdemeanor involving moral turpitude or malfeasance in office.

Section 77-7-2 continues:

. Such accusation may be initiated by any taxpayer, grand jury, or county attorney for the county in which the officer was elected or appointed, or by the attorney general.

The trial court granted -the defendant’s motion to dismiss on two grounds, that: (1) the accusation “does not state facts with sufficient particularity to state a cause of action,” and (2) the accusation failed to allege that the defendant had been convicted of any of the offenses enumerated in 77-7-1, the trial court stating that “a conviction must precede the initiation of any action under 77-7-2.” The state appeals.

In approaching the issues involved herein, it should be noted that a proceeding such as this to remove a public officer is a civil proceeding, as contrasted to a criminal proceeding wherein one is charged with a crime which might subject him to fine and imprisonment.¹ The fair import of Sec. 77-7-1 quoted above is that as a foundation to such an action it must be alleged that the defendant has been previously convicted of one of the offenses listed in that section.

In view of the existing, and possibly continuing, controversy in this matter, and its possible effect as precedent, we deem it appropriate to observe that the fact that U.C.A.1953, Sec. 10-3-911 authorizes the Board of Commissioners to remove a Chief of Police does not necessarily mean that that is the only way that it may be done. We can see no reason why the fact that such a procedure is so spelled out in that section, relating to Cities, should be regarded as inconsistent with or destroying the effect of the other procedure for removing officers for cause, as provided in Secs. 77-7-1 and 2 quoted above. It is significant that section 2 says that the proceeding can be initiated by any properly interested party, including any taxpayer. This indicates legislative recognition of the fact that in some instances, for a number of reasons, including possible involvement themselves in failure to perform public duties, or even actual corruption, public officials may fail to initiate such proceedings against public officers when it should be done; and that in such an exigency the alternative procedure under Secs. 77-7-1 and 2 should be available.

Because of our disposition of this case as explained herein, it is not necessary to now decide whether a Chief of Police is a public officer within the meaning of Sec. 77-7-1 and 2 providing for the removal of public officers. However, it is our tentative view that he should be so regarded. Definitions are many and varied. It can be said generally that a public officer is one who is appointed or elected and has the responsibility of exercising judgment and initiative in performing important functions of government.²

For the reasons stated above, we reserve judgment as to whether, under a complaint properly pleading a statement of facts which would meet the requirements of the statute referred to, such a proceeding would lie against a Chief of Police. Notwithstanding the reservations just stated, it is our conclusion that the trial court properly granted the defendant’s motion to dismiss for the reason that the accusation did not meet the requirement of the statute.

Affirmed. No costs awarded.

MAUGHAN, and HALL, JJ., concur. WILKINS, J., concurs in result.

1 . Cf. State v. Guerts, 11 Utah 2d 345, 359 P.2d 12.

2 . See such definitions in 67 C.J.S. Officers, Secs. 2 and 5.