Glover v. City of Kalamazoo

98 Mich. App. 465 (1980) 296 N.W.2d 280

GLOVER
v.
CITY OF KALAMAZOO

Docket No. 44222.

Michigan Court of Appeals.

Decided July 1, 1980.

Plaszczak & Bauhof, P.C. (by James F. Bauhof), for plaintiff.

Don M. Schmidt, City Attorney, and William S. Baird, Assistant City Attorney, for defendant.

Before: ALLEN, P.J., and M.F. CAVANAGH and C.W. SIMON,^[*] JJ.

C.W. SIMON, J.

Defendant appeals as of right from a February 23, 1979, order reversing the suspension and discharge of plaintiff, a Kalamazoo police officer, and reinstating him with back pay.

This proceeding arose out of an altercation between plaintiff and a citizen, Larry Jack, on October 23, 1975. During a traffic stop, an argument led to blows. Plaintiff arrested Jack and charged him with obstructing a police officer. Plaintiff testified at the preliminary examination of Jack. The case against Jack was later dismissed. As a result of plaintiff's testimony at the preliminary examination, perjury charges were brought against plaintiff. Due to the pending criminal charges, plaintiff was suspended indefinitely.

The charges against plaintiff were dismissed at trial because the court found that the prosecution did not use due diligence to produce two res gestae witnesses.

The Chief of Police then reviewed the matter and terminated plaintiff on October 21, 1977, due to his false testimony.

Plaintiff requested a hearing pursuant to the veterans preference act, MCL 35.402; MSA 4.1222, within the required 30 days.

On December 15, 1977, and February 21, 22, 1978, a veterans preference hearing was held. The hearing officer found plaintiff guilty of official misconduct.

On May 11, 1978, pursuant to statute, the Mayor of Kalamazoo rendered his decision holding plaintiff guilty of official misconduct and affirming his removal from the police department.

Plaintiff appealed this decision to the Kalamazoo County Circuit Court which reversed the mayor's decision and reinstated plaintiff with back pay from the date of his suspension until the date of the mayor's decision. The circuit court held that plaintiff was wrongfully deprived of his right to a hearing on the indefinite suspension; that the suspension without a hearing was a violation of due process; and that the burden of going forward with evidence was wrongfully placed upon the plaintiff in the veterans preference hearing.

On appeal, defendant argues that the trial court erred in finding noncompliance with the veterans preference act because plaintiff waived his right to a hearing by not filing a written protest within 30 days of his suspension.

In pertinent part, MCL 35.402; MSA 4.1222, provides:

"* * * such veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing * * *."

However, the statute requires the veteran to file a written protest of noncompliance with the act or waive the privileges and benefits therein:

"Provided, however, that where such veteran has been removed, transferred, or suspended other than in accordance with the provisions of this act, he shall file a written protest with the officer whose duty under the provisions of this act it is to make the removal, transfer, or suspension, within 30 days from the day such veteran is removed, transferred, or suspended; otherwise the veteran shall be deemed to have waived the benefits and privileges of this act * * *."

Since plaintiff did not file a written protest within 30 days of his suspension, it would seem that he waived his right to a hearing thereon. However, we find that the time limitation was tolled while the criminal charges were pending against plaintiff. Michigan State Employees Ass'n v Civil Service Comm, 406 Mich. 313, 319; 279 NW2d 530 (1979). In Michigan State Employees Ass'n, the Michigan Supreme Court held that the time limitations for protesting discharge set forth in the Civil Service Grievance and Appeal Procedure were tolled from the time investigation is begun with an eye toward potential criminal prosecution until the prosecution terminates. Similarly, we hold that the time limitation for protesting suspension set forth in the veterans preference act was tolled by the criminal proceeding pending against plaintiff at the time he was suspended.

Thus, plaintiff's protest was timely filed both as to the suspension and discharge following dismissal of the criminal charges against him. Subsequently, a hearing was held and a decision adverse to plaintiff was rendered by the mayor.

We hold that the trial court erred when it found a violation of the hearing requirement of the veterans preference act. Plaintiff could have, but need not have, demanded a preference hearing at any time during the criminal prosecution. In the absence of such a demand, defendant had no affirmative duty to hold a hearing on the suspension.

We also hold that plaintiff was not deprived of procedural due process as a result of his suspension. It is clear that defendant had an opportunity to be heard on the suspension. Plaintiff could have demanded an earlier hearing if he so desired. On these facts, the hearing plaintiff received satisfied procedural due process.

Defendant also argues that the trial court erred when it held that the burden of going forward with evidence was wrongfully placed on plaintiff in the veteran's preference hearing. We agree.

This issue arises because the hearing officer requested that plaintiff, as petitioner, proceed first. This is a question of order of proofs, since the burden of proof was properly placed upon defendant. As a general rule, the order of proofs is within the discretion of a trial court. See GCR 1963, 507.2. Thus, there will be no interference by an appellate court unless there is an abuse of discretion. In re Mann's Estate, 219 Mich. 695; 189 N.W. 991 (1922). While we believe that the better procedure in a veteran's preference hearing is to require the city to present its ground for suspension and termination first, we find that there was no abuse of discretion on these facts.

In conclusion, we hold that the trial court erred when it reversed the mayor's decision and ordered plaintiff reinstated with back pay.

Reversed. No costs, a public question.

ALLEN, P.J., not participating.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.