Erkman v. Civil Service Commission of Provo City

198 P.2d 238, 114 Utah 228, 1948 Utah LEXIS 123

• Court: Utah Supreme Court
• Decided: October 7, 1948
• Docket: No. 7120.
• Status: Published

Opinions

WOLFE, Justice.

Appeal by the plaintiff from an order and judgment of the Fourth District Court which vacated a writ of certiorari theretofore issued by it to review a decision of the Civil Service Commission of Provo, hereafter referred to as defendant commission. The effect of the lower court’s order vacating the writ of certiorari was to affirm the order of the defendant commission which in turn upheld the discharge of plaintiff by the chief of Police of the City of Provo.

The scope of review on certiorari is limited by the terms of Section 104-67-8, U. C. A. 1943, which provides as follows:

“The review upon this writ [certiorari] cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.”

And Section 15-9-21, U. C. A. 1943, provides that:

“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.” (Italics added.)

The judgment of the district court was based solely on the record of the hearing before the Civil Service Commis sion on plaintiff’s appeal to that commission from his discharge by the Chief of Police. Since our action on this appeal will likewise be based altogether on that same record, we may treat this for the purpose of simplicity as if it were a direct appeal from the defendant commission to this court, although technically the question before us is whether the district court erred in refusing to set aside the order of the defendant commission. But that question depends upon whether the defendant commission failed regularly to pursue its authority, or, in other words, whether it acted arbitrarily, or, stated still another way, without basis of reason.

If the defendant commission’s action was based upon reason, with evidence to support it, the judgment of the district court is correct and we must affirm. If the action of the commission is not based on reason, i. e. is arbitrary, we must reverse the district court. But as said before, since our conclusion must necessarily depend on the record of the proceedings before the defendant commission, and except as our judgment will have to operate on the judgment of the district court, we consider the case is if the appeal were directly from the defendant commission to this court.

Plaintiff’s discharge was for conduct evincing disrespect for a superior officer and conduct evincing disrespect for a fellow officer, and came as a result of his appearance before the City Commission of Provo on June 19, 1946, at which he demanded the removal of Chief of Police Mower and Sgt. Loveless, a member of the force. The meeting was a public one and was attended by representatives of the press.

The evidence adduced at the hearing before defendant commission established that during the war years a practice had grown up within the Provo City police force of taking tires which were so badly worn as to be no longer usuable on emergency vehicles, and placing them in the hands of persons not entitled to have them. Although there was no evidence that any member of the police force personally profited from these transactions, the city of Provo thus lost whatever value such tire carcasses had, either as “turn-ins” on new tires or as carcasses fit to be recapped and used on non-emergency vehicles.

Plaintiff, who had been a member of the police force since May, 1942, except for a two-year period during which he was a member of the armed forces, was aware of this practice, but made no complaint of it until after he was discharged from the force as an economy measure on December 31, 1945. (That discharge is not the one involved in this appeal. After his discharge as an economy measure plaintiff had instituted mandamous proceedings to compel his reinstatement on the police force. Those proceedings having been determined in his favor, he was restored to active duty on May 21, 1946.)

During the spring of 1946, and before his reinstatement, plaintiff, upon his own initiative, conducted an investigation into the affairs of the police department with particular reference to the tire transactions above mentioned, and reported the results thereof to the city commission. The commission thereupon conducted an investigation culminating in a public hearing about May 20, 1946, which was attended by plaintiff, Chief Mower, Sgt. Loveless, a representative of the OPA, representatives of various tire dealers, and other members of the police force. All persons there were given an opportunity to make statements and charges, and to ask and answer questions of the others.

Although it appears that Sgt. Loveless was primarily responsible for the tire transactions, and that Chief Mower had been derelict in his duty in failing to halt such practices although he was aware of them, the city commission apparently did not regard the offenses as being so serious as to require the removal of the respective officers.

Thereafter, plaintiff was invited by the acting mayor to attend a public meeting of the city commission to be held on June 19, 1946. At that meeting he was invited to make a statement, and he thereupon demanded the removal of Mower and Loveless for their admitted parts in the tire transactions. It was plaintiff’s statement at this meeting which was the basis of his discharge for cause, which is the discharge here involved.

Plaintiff advances three propositions as showing that the action of defendant commission was unreasonable, arbitrary, and capricious. The first is that he was denied due process of law because the specification of charges filed with defendant commission by Chief Mower set forth that plaintiff appeared before the city commission and charged Mower and Loveless with misappropriation of public funds, whereas the evidence showed, and defendant commission found, that he merely demanded the removal of those officers for the part they admittedly played in the tire transactions. The second contention is that the evidence adduced before the commission does not support the charges made against plaintiff. These first two propositions may be conveniently discussed together.

As to the first contention, we think the specification of charges filed with defendant commission sufficiently informed plaintiff that the particular conduct upon his part which would be relied upon to support the order discharging him was his appearance before and statement to the city commission on June 19, 1946. Plaintiff cannot complain that the evidence failed to show that he was guilty of making a charge as serious as that set forth in the specification. Plaintiff had notice that his conduct before the city commission on June 19, 1946 would be called into question, and he had an opportunity to be heard and to furnish any explanation or proof which he cared to. He admitted that at that meeting he had demanded the removal of Mower and Loveless.

Nor is there any merit to plaintiff’s contention that the evidence failed to sustain the charges of the Chief of Police as grounds for dismissal. There is evidence that plaintiff and Mower had had personal difficulties prior to January 1, 1946; that plaintiff had interceded with mayor-elect Anderson to oppose the appointment of Mower as Chief of Police; that plaintiff had been aware of the misappropriation of tires prior to his first discharge; that plaintiff in undertaking an investigation of affairs of the police force on his own initiative was not influenced by unselfish motives of clearing up an unwholesome situation, but for the selfish purpose of showing that he had a better right to be retained on the force than certain other officers. From this, defendant commission could reasonably find, since plaintiff had already given to the city commission all the information he had concerning affairs in the police department, that when he appeared before the city commission on June 19,1946, his purpose in demanding the removal of Loveless and Mower was to embarrrass them publicly and to create lack of discipline and disorder on the police force; that he was motivated by a desire for revénge for his first discharge from the force. The evidence sufficiently supports the finding of defendant commission that by appearing before the city commission on June 19, 1946 and publicly demanding the removal of Mower and Loveless, plaintiff was guilty of such conduct.

In saying what we have, we do not intend to convey the idea that members of the police force, including the Chief of Police, are by virtue of their position to be insulated from criticism for practices involving even petty conversion of public property. Public officers, though innocent of any wrongful intent, all too often fail to realize that they are servants of the people, endowed with a public trust, and they should be most zealous to conduct themselves in accordance with that trust. The best' way to do that is to practice scrupulousness in the smaller as well as the larger matters. The commission could find* however, in this case that the conversions, if such they could be termed, did not merit the public denunciation given them by the plaintiff, or at least not his demand for the removal of the Chief of Police and his fellow officer, Loveless. A less vindictive approach to the problem than that taken by plaintiff would have been more indicative of a desire to improve the public service, and less of a desire to “get” those with whom the plaintiff was at odds. It lies with the commission to weigh all the factors in the case, the motives of the plaintiff in his demand before the city commission that Mower and Loveless be discharged, the motives of Mower in bringing charges and ordering plaintiff’s dismissal, and the effect on the morale of the police force if plaintiff were retained as compared to the effect on that morale if he were dismissed. All these matters were for the commission and unless its decision is not based on reason we cannot disturb it.

The final contention of plaintiff is that no proper findings of fact were made by defendant commission as required by Section 15-9-21, U. C. A. 1943, and Rule XII of the Rules and Regulations of Civil Service Commission, Provo City, Utah. The substance of this argument is that after defendant commission conducted a hearing on plaintiff’s discharge the said commission voted to sustain Chief Mower’s order of discharge and requested the city attorney of Provo to prepare findings of fact; that thereafter the city attorney did prepare findings of fact; and that such findings were thereafter signed by two members of defendant commission, at separate times, and not at a time when defendant commission was in session. Plaintiff contends that such findings were a nullity on the grounds that they were not prepared by the commission and were not adopted or approved in a regular business meeting, but were signed by the members individually. In this argument there is no merit. Assuming without deciding that failure on the part of defendant commission to make formal written findings of fact would be a fatal error, requiring a new hearing, there was no such failure here.

It is the custom in courts of law, at least in this jurisdiction, for the court to ask counsel for the prevailing party to draw proposed findings of fact. That practice is so general as to be said to be the universal practice in this jurisdiction. Yet it would not be seriously contended that such proposed findings, when approved and adopted by the court, are not proper findings of fact sufficient to satisfy the statutory requirement in that regard. There is no good reason why the same procedure should not be followed by the Civil Service Commission. In fact, there are more compelling reasons for upholding this practice in proceedings before the boards and commissions. The commissioners, generally being laymen, are not ordinarily skilled in preparing papers of this kind, and when the drawing of findings of fact by counsel for the prevailing party might be a relatively simple matter, the same matter might be extremely difficult for members of. the commission. And since procedure before the commission is, in general, considerably less formal than court procedure, there is no apparent reason for holding commission procedure to more formal standards in the matter of making findings of fact.

Nor is it material that the defendant commission did not meet in formal session to adopt the findings of fact. To require such a formality would bind the commission to considerably greater formal exactitude than binds the highest, and assumedly the most formal tribunal of this state. The members of this court do not meet in formal session to approve proposed opinions. There is no apparent reason to impose upon the commission the burden of acting in a more formal manner. It is sufficient if a majority of the commission signs the findings.

On the record before us it cannot be said that the action of the defendant commission, was arbitrary, capricious or unreasonable, and therefore, the or der of the trial court setting aside the writ of cer-tiorari, is affirmed. Costs to defendants.

PRATT, J., concurs.