Bratcher v. Winters

153 S.E.2d 375 (1967) 269 N.C. 636

P. M. BRATCHER, Petitioner,
v.
Carmi E. WINTERS, Elliott A. Bennett and D. M. Parker, Jr., constituting the Civil Service Board of the City of New Bern, a municipal corporation, Respondents.

No. 119.

Supreme Court of North Carolina.

March 22, 1967.

Barden, Stith, McCotter & Sugg, by L. A. Stith, David S. Henderson, New Bern, for petitioner.

A. D. Ward, New Bern, for respondent.

HIGGINS, Justice.

The Petitioner, P. M. Bratcher, instituted this proceeding in the Superior Court by petition for writ of certiorari to review: (1) the order of the Chief of Police of New Bern dated October 11, 1966 demoting him from Captain of Detectives to patrolman in the uniform division of the Police Department; and (2) to review and reverse the December 2, 1966 order of the Civil Service Board of the City dismissing him from the Police Department on the basis of written charges filed by the Chief of Police.

The Civil Service Board of New Bern filed answer to the application for the writ, setting up as its defenses: (1) the demotion order of the Chief of Police was entered as an administrative regulation of the Police Department. The order is neither judicial nor quasi-judicial and is not reviewable on certiorari; and (2) the Civil Service Board of New Bern is set up by the City Charter with powers to dismiss, remove, discharge, fine, or suspend, without pay, any member of the Police Department upon written charges and after hearing. The order of the Board is final, and not reviewable by the Court.

The questions of law involve the Superior Court's power by certiorari to review: (1) the order of the Chief of Police demoting Petitioner from Captain to patrolman; and (2) the order of the Civil Service Board dismissing the Petitioner from the Police Department upon written charges after hearing. G.S. § 1-269 provides that certiorari is the appropriate process by which the Superior Court may review the proceedings of bodies exercising judicial or quasi-judicial functions in cases in which appeal is not authorized. "* * * (W)hen a governmental agency has power to remove a public officer only for cause after hearing, the ouster proceeding is judicial or quasi-judicial in its nature, and may be reviewed by certiorari." Russ v. Board of Education, 232 N.C. 128, 59 S.E.2d 589 (citing approximately 30 cases). The general rule is that if the act of removal is executive it is not reviewable on certiorari, but if it is on hearing and formal findings, it is reviewable. Stated in another way, the writ may be invoked only to review acts which are clearly judicial or quasi-judicial. McQuillin, Municipal Corporations, Vol. 4, Sec. 12.267, p. 397; In Re Burris, 261 N.C. 450, 135 S.E.2d 27.

From the foregoing it seems obvious that the order entered by the Chief of Police on October 11, 1966 demoting Petitioner from Captain of Detectives to patrolman in the uniform division of the New Bern Police Department was the administrative act of the Chief of Police and neither judicial nor quasi-judicial in its nature. Hence the order is not reviewable by the Superior Court. In Re Burris, supra. Judge Mintz so decided and the decision is affirmed.

Judge Mintz likewise correctly held the writ did bring up for the Court's review the order entered by the Civil Service Board on December 2, 1966 dismissing the Petitioner from the Police Department. The record discloses that the Civil Service Board for the City of New Bern was created in 1957 under authority of the City Charter, which among other provisions contains the following:

"(N)o member of the Police Department of the City of New Bern shall be dismissed, removed or discharged except for cause upon written complaint and until after he has been given an opportunity to be heard by the Civil Service Board in his own defense, and in the event such member is convicted of violating the rules and regulations of the Police Department said Board may dismiss or discharge him. * * *"

The Chief of Police charged Petitioner with having violated General Order No. 7 of the Police Department and suspended him from the Police Department. This suspension order was entered November 7, 1966. Appellant filed a written demand for a public hearing on the charges and for a stenographic record of the hearing. The Board denied the request for a public hearing and for a stenographic report thereof, although the Petitioner agreed to pay for the record. The Board conducted the hearing but failed to provide any record except the very sketchy notes of the Board's Secretary. At the conclusion of the hearing, the Board entered an order dismissing the Petitioner from the Police Department.

The Court's judgment (including the findings of fact, the conclusions of law, and the final disposition) is quoted in full in the statement of facts. Obviously Judge Mintz concluded that Order No. 7, as charged in the written accusation, was nothing more than the proposal of the Police Department. It did not become valid and binding until approved by the City Council and the City Manager. Evidence of such approval was lacking. As a basis for the findings and order, proof was required that a valid order had been violated. Proof was not offered. The record fails to show wherein Judge Mintz committed error of law in reversing the order of the Civil Service Board on the ground stated.

By what is said herein, this Court may not be understood as approving the type of record made at the hearing before the Civil Service Board. The Charter required notice, written charges, and the hearing of witnesses and the examination of pertinent documents. Upon the basis of what is made to appear at the hearing the Board may dismiss, discharge from service, fine, or suspend without pay, a member of the Police Department. Court review contemplates findings of fact supported by evidence and conclusions based thereon. An aggrieved party, if he so demands, is entitled to a record which discloses at least the substance of the evidence which he may challenge as insufficient to support the findings. The record in this case does not meet this minimum requirement.

The Petitioner will pay that part of the costs attributable to his appeal. The Civil Service Board will pay the remainder of the costs.

On Petitioner's Appeal: Affirmed.

On Respondent's Appeal: Affirmed.