Vetterli, Chief of Police v. Civ. Serv. Com. of S.L.C. , 106 Utah 83 ( 1944 )

James S. Ramsey was a first grade patrolman of the Salt Lake City police force on May 31, 1941, employed in the classified civil service. He had a satisfactory record for 16 years. For several months he had domestic troubles which resulted in loss of sleep, nervousness and worry. He was assigned to night shift at the time here involved, and he was familiar with the rules of discipline and the regulations of the department.

When he discovered that his wife had left home on May 30 contrary to his wishes, he decided to leave town. He did not request any leave of absence nor make any disclosure of his plans to anyone in the police department, although he had ample opportunity for doing so prior to his departure. He made preparations for leaving, more than 12 hours prior to the last shift on which he worked. He packed his personal belongings in several boxes, and when he reported for duty on May 31, he did not wear his uniform, but he took with him some of the necessary equipment. He drove the police patrol car, accompanied by officer Haight. Not even Haight had any information as to the planned departure from the State. During the last shift Ramsey worked, he detoured from his assigned area to go home to leave part of the police equipment.

Ramsey left for Oregon in an automobile shortly after he completed his shift. When he failed to report for duty on the morning of June 1, a search was made for him. No one was found at his home. About a day or two later Mrs. Ramsey telephoned to the police station to report that she had found a note addressed to her, on top of a stack of police equipment at their home, reading: "Dear Bee: I am sorry that I cannot live under these conditions any more. Good bye, Jim." Mrs. Ramsey stated that she tried to locate him, but did not succeed. Officer Steinfelt made a report to the chief of police in which he concluded that Ramsey had deserted the police force. On the basis of such report, on June 3, 1941, Reed E. Vetterli, chief of police, wrote a letter to the City Commission and sent a copy to the civil service commission, in which he stated that officer Ramsey was dismissed from the service with prejudice and his name ordered off the payroll effective at the conclusion of business as of May 31, 1941.

Ramsey, it appears, obtained his first information about the letter of the chief of police from a friend in Salt Lake City who sent newspaper clippings concerning the incident to him at Forest Grove, Oregon. None of the city or police officials learned anything as to his whereabouts until June 11, when Ramsey wired the Mayor of Salt Lake City, who was commissioner of public safety, stating that he had been ill, and asking if his job was still open. From the time he left on May 31 until after he returned on June 14, Ramsey made no effort at all, other than the wire to the mayor, to contact any one in the police department, nor to offer any reason or explanation for leaving the state without notification or without first obtaining a leave of absence.

On June 16 Ramsey interviewed the chief of police. There was some effort to induce the chief to recall the letter of dismissal and arrange a suspension for 6 months. The chief offered to recall the letter if Ramsey would resign, but the latter declined to resign and indicated that he intended to appeal to the civil service commission. It appears from the record that from June 3 until June 18 the chief was of the opinion that his notice to the city commission of the discharge of Ramsey from the police force was subject to its approval or disapproval, and a letter to such commission dated June 18 indicates such belief. On June 24, 1941, the chief of police addressed a letter to Ramsey and sent copies to both the city commission and the civil service commission, in which the chief advised Ramsey that the city commission refused to review his case, and that said letter should be considered "sufficient notice that you were discharged from the service of the Salt Lake City police department, the discharge dating from the conclusion of business May 31, 1941."

On Monday, June 30, Ramsey filed an appeal with the civil service commission. The commission then informed the chief of the appeal and requested him to file specific charges as the basis for the dismissal. The report of officer E.J. Steinfelt was embodied in the charge which stated that the conduct of Ramsey constituted desertion from the police force.

At the hearing there was little dispute as to the facts. The chief of police objected to any and all proceedings on the ground that the appeal had not been perfected within the time allowed by law, and that the commission was without jurisdiction. The objections were overruled and the hearing was conducted. Thereafter, the commission wrote a decision in which it found that the chief issued an order of "removal and discharge" on June 24, 1941, and it concluded:

"In this case Ramsey failed to report for work on the morning of June 1st; absented himself from the City and State, without leave properly procured from his Chief of Police, and without reporting to his Chief, or to his Sergeant, for two weeks; and then he failed to give to the Chief any satisfactory or sufficient reason for his absence."

The commission made findings to support the charges filed by the chief of police; but it concluded that while such conduct justified punishment, outright dismissal was too severe in view of Ramsey's record of 16 years of satisfactory service, and in view of the fact that there was no crime nor any moral turpitude involved. The commission concluded that it had jurisdiction to modify the order of the chief, and it ordered suspension without pay for six months and directed the chief to reinstate Ramsey at the expiration of such period. By his application for writ of review, the chief of police questions the validity of the order of the civil service commission, and its jurisdiction to modify the order of dismissal.

Owing to the fact that both the chief of police and the civil service commission desire to have the statute involved in this case construed by this court, and in view of the conclusions reached as to its meaning, we shall not discuss either (a) the proposition that the appeal was not in time, or (b) the contention that Ramsey deserted the police force by unexplained absence of more than 2 weeks which constituted a voluntary severance from his position in consequence of which no appeal would lie to the commission to relieve him of the consequences of his voluntary severance from employment. We shall consider merely the question of whether the commission exceeded its authority in setting aside the order of dismissal and outright discharge and in substituting therefor an order of suspension for a period of six months.

Two questions are in reality involved: (1) Is the authority of the civil service commission, on appeal from an order of the head of a department, limited to affirmance or disaffirmance of such order, or may it, as the commission did here, substitute a lesser punishment for the alleged misconduct? (2) If it may but affirm or reverse the department head, is it limited to affirmance where it finds the discharged officer guilty of the misconduct charged by the department head?

The answer to such questions involves the interpretation of the following section of our statutes (15-9-21, R.S.U. 1933, now U.C.A. 1943):

"All persons in the classified civil service may be removed from office or employment by the head of the department for misconduct, incompetency or failure to perform his duties or failure to observe properly the rules of the department, but subject to appeal by the aggrieved party to the civil service commission. Any person discharged may within five days from the issuing by the head of the department of the order discharging him appeal therefrom to the civil service commission, which shall fully hear and determine the matter. The discharged person shall be entitled to appear in person and to have counsel and a public hearing. The finding and decision of the civil service commission upon such hearing shall be certified to the head of the department from whose order the appeal is taken, and shall be final, and shall forthwith be enforced and followed by him."

In support of the contention that the commission possesses the authority asserted by its judgment and order, counsel for defendants point to the wording of our statute wherein it is provided that upon appeal the commission "shall fully hear and determine the matter." They urge upon us the construction thereof rendered in the case of Hackett v. Morse, 45 Cal. App. 788,188 P. 308, 309, wherein the court said:

"It is our opinion that, since the board shall fully hear and determine the matter, it must hear and pass upon all questions involved in the controversy. The question of what is reasonable punishment for an offense is as important as whether or not an employe committed an offense, and is as necessary for the accomplishment of the purposes of the civil service system that the board have power to investigate the one as the other."

In that case a fireman was discharged by his superior officer for alleged insubordination. On appeal to the civil service board, a decision was rendered in which the board held that he was not guilty of such insubordination as would justify his discharge, and it ordered in lieu of discharge, that he be denied compensation for two months.

Plaintiff, on the other hand, insists that the reasoning of the California court is not persuasive for the reason, among others, that the ordinance there construed differs materially from the statute here involved. The provisions of the charter of Oakland, California, construed in the Hackett case, specify that any person may be suspended, fined, or discharged by the commissioner in whose department he is employed, while the cited statute of this state provides only that a person may beremoved from office or employment by the head of the department for the causes stated, and that a person so discharged may appeal to the civil service commission. Furthermore, by the provisions of Section 15-6-64, U.C.A. 1943, the department head is authorized to suspend an officer for a period of not more than 15 days, but there is no right of appeal from such suspension. Thus, if the commission, on an appeal to it from an order of dismissal, is empowered to impose a suspension, it may on appeal render a judgment which the department head could not impose in the first instance.

To the effect that the words "remove" and "discharge" in the context do not comprehend the power of suspension, plaintiff cites: Kennedy v. Board of Education, 82 Cal. 483,22 P. 1042; Lotts v. Board of Park Com'rs of L.A., 13 Cal. App. 2d 625,57 P.2d 215; Weigle v. City and County of 1San Francisco, 23 Cal. App. 2d 274, 72 P.2d 902; and Boise v. Mayor of City of Fall River, 257 Mass. 471,154 N.E. 270. That "remove from office" and "discharge" are synonomous expressions as used in our statute, is clear from a cursory reading thereof. The power to "remove from office" conferred upon the head of a department means not a temporary but a permanent removal from office or discharge. Hence it is true that if the commission may order a suspension from office as a substitute for discharge, on an appeal it may do that which the removing officer in the first instance could not lawfully have done, if the suspension is for more than 15 days.

However, if the statutes were such as to indicate a legislative intent to give such authority to the commission, though withholding it from the head of the department who is first called upon to assess the grievousness of the misconduct of an officer, that intent should, of course, be given effect. However, such is not the case. The circumstances that there is given to the department head a specific but limited power of suspension without any review thereof by the commission; and likewise a power of discharge, which, however, is subject to review, but no power to impose a period of suspension longer than that which might be imposed without a right of review; all suggest, in the absence of other provisions indicating a contrary intention, the following legislative intent:

That for infractions of the rules of conduct the department head might suspend a person for 15 days, as a means of effecting discipline in his department. That in such sphere of discipline, he is in nowise subject to the supervision of the commission. That in aggravated cases and in cases where 2, 3 the disciplinary measures given exclusively to the department head prove inefficacious, the power to discharge is conferred; but because of the severity of the penalty, as well as because of the fact that it involves a permanent severance from the department, thus affecting the make-up of the personnel, over whose appointment the commission is given a limited control, a right to appeal to the commission is granted to the discharged officer or employee. The civil service commission is made the ultimate authority to determine whether the discharge should or should not stand. To this end the commission is given the authority and duty to "fully hear and determine the matter." That is, it is to accord a full hearing to the appellant and to the department head as to the truth or falsity of the charges made, and thereupon to determine whether to affirm or to set aside the order made. We do not find in our statute any phrase which grants the same jurisdiction on appeal as is conferred where the power on appeal is to "affirm, modify or reverse" — an expression usually if not universally employed where such authority is actually conferred. The substitution of suspension for 6 months without pay, in lieu of dismissal, was beyond the power of the commission.

So concluding, we are confronted with the second question posed. We state it here in different form: May the commission upon finding that the charges made by the department head are true, nevertheless set aside the order of dismissal? This question must not be confused with the question of whether or not in our opinion the conduct of defendant Ramsey merited dismissal. It is a question of what authority is conferred upon the commission by the statute.

Appellant asserts that the power of the commission on appeal is merely to inquire into whether the chief in the instant case substantiated the charges made against Ramsey; and it having here found that he had, it had no discretion, but had the duty to sustain the order of discharge. On the other hand, defendants assert through their respective counsel, that since the commission found that the penalty imposed was too severe, it follows that the only order which the commission could consistently make, if it lacked the power to impose a substitute punishment, would be to reinstate Ramsey as of the date of the order of discharge. We are of the opinion that both contentions must fail.

The contention of defendants, it must be admitted, seems logical enough. The penalty being determined by the commission to be too severe and the commission being confronted with the question of whether to uphold or set aside the order assessing it, it follows that the latter is the only just course. But the opinion of the commission which states that the penalty was too severe for the misconduct proved, was expressed in the light of the supposed authority of the commission to modify such penalty. It could not consistently be of the opinion that the judgment of dismissal was not too severe but entirely justified, and yet modify the same. It may well be in the instant case, that had the commission concluded that it had no power to modify the judgment of the department head, that it would conclude that from the standpoint of justice to the appealing officer on the one hand and discipline in the department on the other, it should uphold the order of the Chief of Police.

However, we are not persuaded that under the statute the commission on an appeal must sustain the department head in every case in which it finds substantiated the charge of "misconduct" or of "failure to perform his duties" or of "failure to observe properly the rules of the department," however 4 slight the infraction of such rules might be. If it must, then any failure of duty or any infraction of the rules would justify dismissal insofar as the commission's power on appeal is concerned. But the power to "fully hear and determine the matter" does, in our opinion, give authority to determine whether the order of discharge is justified by the conduct of the officer. In Hawkins v. City of Steubenville, 134 Ohio St. 468,17 N.E.2d 641, 643, a statute of Ohio is discussed which provided for an appeal to a commission from an order of discharge, the commission being given authority to affirm, modify, or disaffirm the order made by the department head. Where a member of the police department was involved, the statute provided for a further appeal from the judgment of the commission to the court of common pleas, to "determine the sufficiency of the cause of removal. Gen. Code Ohio, § 486-17a. Upon the affirmance of an order of dismissal of the officer by the commission, an appeal was taken to the court of common pleas where it was held that there was not sufficient cause for removal of the officer, but that disciplinary action was justifiable, and it substituted for discharge suspension for four months.

On appeal from said judgment, the Supreme Court of Ohio held that the jurisdiction of the court of common pleas was limited to determination of whether there was sufficient cause for removal, and that it was without power to modify the judgment of the commission. However, it also ruled that the court was not bound to affirm the decision of the commission upon finding that the officer was guilty of the several charges preferred against him. "It will be noted," says the court, "that the statute employs the words ``may be removed.' Under this language, removal by the director of public safety, or by the civil service commission, of a police officer upon a finding of guilty of the offenses listed in the statute, is not made mandatory. By the same token, if the Court of Common Pleas finds that the officer was guilty of one or more of the statutory charges preferred against him, but is of the opinion that there is not sufficient cause for removal, it is not mandatory upon the court to affirm the commission."

We are of the opinion, and so hold, that the power conferred on the commission to "determine the matter" brought before it on appeal, is the power to determine the sufficiency ofthe cause of removal, and not simply to adjudge whether 5 the cause alleged by the department head is true. It having that authority, it is not our province to interfere with the exercise of that judgment and direct an order of affirmance or reversal of the order of discharge. We are limited in this proceeding to a determination of whether the commission regularly pursued the authority conferred upon it, and clearly we may not reverse the case on the facts unless the commission acted arbitrarily or capriciously. Pincock v. Kimball, 64 Utah 4,228 P. 221. Having determined that it exceeded its authority by substituting six months' suspension for discharge, its judgment so ordering is set aside and the cause is remanded to the civil service commission. Each party shall bear his own costs.

WOLFE, C.J., and M.J. BRONSON, District Judge, concur.