Cain v. Civil Service Commission

411 P.2d 778, 159 Colo. 360, 1966 Colo. LEXIS 731
CourtSupreme Court of Colorado
DecidedMarch 7, 1966
DocketNo. 21731
StatusPublished

This text of 411 P.2d 778 (Cain v. Civil Service Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cain v. Civil Service Commission, 411 P.2d 778, 159 Colo. 360, 1966 Colo. LEXIS 731 (Colo. 1966).

Opinion

Mr. Justice Moore

delivered the opinion of the Court.

This case involves a review of proceedings originally commenced by the entry of an order by the Chief of [362]*362Police of the City and County of Denver. The order was served on plaintiff in error, Cain, on February 28, 1963, to the effect that he was “discharged from the Classified Service,” of the city in which he had theretofore been employed as a police officer. Attached to the instrument served upon him was a document entitled “Notice of Intention to Initiate Disciplinary Action and Specification of Charges.”

It was alleged in the statement of the charges that on or about the 21st and 22nd of February, 1963, Cain, who at that time was a police officer, repressed, concealed and distorted facts concerning important happenings and other information of concern to the department. The information thus concealed and distorted consisted in part of his knowledge that he previously had stolen merchandise (a typewriter) in his possession, his disposition of the stolen merchandise, and the source and manner in which he acquired the typewriter. He was further charged with making a false report orally to his commanding officer and to the commanding officer of the Internal Affairs Bureau of the (Denver Police Department concerning his participation in a transaction involving merchandise which he had reason to believe was stolen property.

It was further alleged that Cain did, on the 22nd day of February, 1963, fail to make to his superior officer a full and complete disclosure pertaining to the performance of his official duties. As a result of these specifications Cain was charged with violations of the Rules and Duty Manual of the Denver Police Department, to-wit, Section 7.1 pertaining to the duty of all officers to report to the department crimes, important happenings, and other information of concern that come to their attention. This section also requires that an officer shall not repress, conceal or distort the facts of any such incident, and further states that it shall be deemed neglect of duty to withhold such information. Rules Section 7.4 requires all members of the department [363]*363to report promptly, in the manner prescribed by reporting procedure, and also states that they shall not make a false report, either orally or in writing. Section 8.9 makes it a violation of the Rules and Regulations to wilfully depart from the truth, either in giving testimony or in connection with any official duties.

Applicable sections of the charter of the city were specified, in furtherance of which the Rules and Duty Manual of the Denver Police Department were adopted by those with authority in the premises. On March 4, 1963, the Manager of Safety and Excise of the city signed an order entitled “Departmental Order of Disciplinary Action” by which Cain was notified that he was “hereby discharged from the Classified Service of the City and County of Denver.” He thereupon filed his petition before the Civil Service Commission of the city, the prayer of which was as follows:

“WHEREFORE, appellant requests a full review of said Order by the Civil Service Commission, reinstatement in the classified service of the Police Department of the City and County of Denver as a Patrolman, First Grade, with full reimbursement of pay and other benefits accruing while under suspension, and for such further relief as the Commission may find fit and proper.”

As provided by the city charter the Civil Service Commission held hearings which were concluded on December 5, 1963, in the course of which eleven witnesses were called, including Cain himself. On December 24, 1963, the Commission ruled that:

“* * * the Chief of Police and Manager of Safety should be sustained in their decision heretofore entered. :¡: * * 3 ?

Upon review in the district court, the action of the Civil Service Commission was upheld.

The decision of the Commission, which the district court affirmed, contained the following pertinent language:

“3. That the respondent, Douglas K. Cain, did wilfully [364]*364and with full knowledge fail and refuse to truthfully respond to interrogation by his superior officers concerning his connection, if any, with a typewriter.
“* * * The Commission believes that the respondent, Douglas Cain, refused to tell the truth to superior officers until his falsehoods were continually pointed out to him during a polygraph examination; but, more important, the Commission feels that the respondent, Douglas Cain, did not tell the truth when testifying under oath before this Commission and we make specific reference to Respondent Cain’s testimony that he had never used the subject typewriter while in his possession and that, in fact, he had never had the same out of its case. The Commission must contrast this sworn testimony with the sworn testimony of respondent’s wife, Mrs. Cain, who was excluded during her husband’s testimony but who later testified regarding her knowledge of the typewriter that she first observed the same opened and on a card table in respondent’s apartment prior to their marriage.”

Cain first denied any knowledge of the typewriter involved in this proceeding, when questioned with regard thereto, but finally retracted this denial and admitted trading it to the witness Naiman as part payment on the purchase of a refrigerator. Counsel for Cain urges that there was a failure in the evidence to establish that the typewriter which Cain traded for the refrigerator was the identical machine taken in the burglary of a business establishment on August 21, 1959. Cain, again belatedly, testified that he obtained the machine about three years prior to the date of the hearing (December, 1963) from a personal friend, who subsequently died, as security for a loan of $10. We have read the entire record and find ample testimony to support the conclusion that the typewriter traded by Cain was the one taken in the burglary.

While it is true that the Commission did not find Cain [365]*365was in possession of a stolen typewriter, it is perfectly obvious that the Commission was simply holding that it was not necessary to determine that the typewriter he had in his possession was in fact stolen in order to hold and find that he did in fact lie to his superior officers and commit breaches of those rules and regulations for which he was charged. In the case of Davis v. Salter, 149 Colo. 476, 370 P.2d 458, this court held that an employee may be discharged from Career Service for falsifying an application for city employment.

Cain was also charged by the Chief of Police with conduct unbecoming an officer and a gentleman, and the Commission found that this charge was true. In the case of Hawkins v. Hunt, 113 Colo. 468, 160 P.2d 357, this court had occasion to review a similar charge filed against an Officer Hunt who contended that the charge was so ambiguous and uncertain as to amount in practice to a nullity. We quote from that case the following pertinent language:

“* * * It is true that the rules are not so explicit as to specifically advise one of everything he may do and still be classified as an officer and a gentleman and those things he may not do without loss of that classification.

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Bluebook (online)
411 P.2d 778, 159 Colo. 360, 1966 Colo. LEXIS 731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cain-v-civil-service-commission-colo-1966.