Allison v. City of Southfield, Docket No. 94643

• Decision Date: 16 December 1988
• Docket Number: Docket No. 94643
• Citation: 432 N.W.2d 369,172 Mich.App. 592
• Parties: Fred ALLISON, Daniel Mead, and Jan P. Strock, Plaintiffs-Appellees, v. CITY OF SOUTHFIELD, Edward Ritenour and Rollin F. Tobin, Defendants-Appellants. 172 Mich.App. 592, 432 N.W.2d 369
• Court: Court of Appeal of Michigan — District of US

Page 369

432 N.W.2d 369

Fred ALLISON, Daniel Mead, and Jan P. Strock Plaintiffs-Appellees, v. CITY OF SOUTHFIELD, Edward Ritenour and Rollin F. Tobin Defendants-Appellants.

Docket No. 94643.

172 Mich.App. 592, 432 N.W.2d 369

Court of Appeals of Michigan.

Submitted June 8, 1987.

Decided Nov. 7, 1988.

Released for Publication Dec. 16, 1988.

[172 MICHAPP 593] Carson, Fischer & Potts by David William Potts and Harry Joel Newman, Birmingham, for plaintiffs-appellees.

Susan P. Ward, Asst. City Atty., Southfield, for defendants-appellants.

Before GRIBBS, P.J., and HOLBROOK and MOORE, ^* JJ.

HOLBROOK, Judge.

Defendants, the City of Southfield, its director of public safety, and its former chief of police, appeal from an order granting a declaratory judgment that PR 3.01, an internal police rule regulating secondary employment, was unconstitutional as applied to plaintiff police officers employed by the city. Secondary employment [172 MICHAPP 594] refers to the practice of public employees holding an additional, part-time job. We reverse.

Plaintiffs desire to conduct a part-time business as private investigators in addition to their employment as police officers. To that end, they formed a corporation and applied for a private investigator license. Their stated business purpose was to serve civil process and to perform preemployment investigations of their clients' prospective employees. Despite plaintiffs' assurances that they would conduct their business to avoid any conflict of interest with their duties as police officers and that they would not compromise confidential police information, the chief of police advised plaintiffs that they were denied permission to engage in their proposed secondary employment. After unsuccessfully exhausting grievance procedures, plaintiffs instituted this action for declaratory judgment.

At issue is the constitutionality of PR 3.01, which was the stated policy relied upon by defendants in denying plaintiffs permission to engage in secondary employment. This rule states in pertinent part:

"Members of the Southfield Police Department shall devote their entire time and attention to the service of the Department. They are expressly prohibited from engaging in any other business or employment during ON or OFF DUTY hours, while on leave or furlough, unless approval has been granted by the Chief of Police or his duly authorized representative in writing.

"A. Definition of business activity

"1. Business activity includes participation in or affiliation with any commercialized business activity, except solely by investments, for the purpose of financial gain.

"B. Members desiring outside employment

[172 MICHAPP 595] "1. Members of the Department who desire to engage in outside employment or business activities must request authorization by submitting an application through channels, to the Chief of Police. Application must contain:

"a. The nature of employment or business activity.

"b. The nature of duties to be performed, including the number of hours per day which will be worked.

"c. The anticipated length of time such member expects to engage in outside employment or business activity.

"d. Whether the officer submitting the request will be available for call-back emergency duty.

"C. Certain types prohibited: Request for permission will not be granted in the following cases:

"1. Engaging in employment or business that is licensed by the State of Michigan Liquor Control Commission.

"2. Employment where the Uniform of the Department would be worn (unless otherwise authorized by Council action).

"3. When the employment or business activity is of such nature or is so located that the officer would not be available for call-back emergency duty.

"4. Employment of personnel working in the capacity of private 'Security Guard' where a conflict of interest or separation of authority would exist." (Emphasis in the original.)

The circuit court invalidated the rule on the ground that it was impermissibly vague because plaintiffs were unable to discern what types of secondary employment are prohibited. The court further stated that "[w]ithout sufficient guidelines, the decision making process becomes arbitrary, capricious and infringes upon Plaintiffs' right to due process under the law."

A statute or, in this case, a regulation is violative[172 MICHAPP 596] of due process on the ground of vagueness when it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." People v. Biegajski, 122 Mich.App. 215, 225, 332 N.W.2d 413 (1982), lv. den. 417 Mich. 1080 (1983) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 [1939] ). Essentially, the doctrine of vagueness ensures that a regulation give its readers fair notice of what types of conduct are prohibited. People v. Webb, 128 Mich.App. 721, 725-727, 341 N.W.2d 191 (1983), lv. den. 418 Mich. 966 (1984). Here the meaning of what the regulation prohibits is not at all obscure--police employees are unambiguously prohibited from secondary employment unless prior approval is obtained. Thus, this case lacks the vagueness problems presented by regulations prohibiting conduct unbecoming a police officer. See Sponick v. Detroit Police Dep't., 49 Mich.App. 162, 174-176, 211 N.W.2d 674 (1973); Golembiowski v. Madison Heights Civil Service Comm., 93 Mich.App. 137, 153-156, 286 N.W.2d 69 (1979), lv. den. 408 Mich. 893 (1980). But cf. Rinaldi v. Livonia, 69 Mich.App. 58, 65-68, 244 N.W.2d 609 (1976). Even if one of the evils sought to be prevented by the vagueness doctrine is the vesting of unstructured discretion and the resultant arbitrary and discriminary enforcement of the law, see People v. McCumby, 130 Mich.App. 710, 713-714, 344 N.W.2d 338 (1983), lv. den. 419 Mich. 911 (1984), the doctrine is not triggered unless the wording of the promulgation is itself vague. We conclude that, whatever constitutional deficiencies may be presented in this case, PR 3.01 is not void for vagueness.

Plaintiffs argue in the alternative that PR 3.01 violates their right to substantive due process. We look to Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. [172 MICHAPP 597] 1440, 47 L.Ed.2d 708 (1976), for the standard to evaluate a due process challenge to the power of a police department to regulate its officers. In Kelley, the Supreme Court held that the right to due process is violated if the party challenging the regulation "can demonstrate that there is no rational connection between the regulation, based as it is on the county's method of organizing its police force, and the promotion of safety of persons and property." Id., p. 247, 96 S.Ct. at p. 1446. Thus, the burden of proof rests with plaintiffs here. See also Local No. 201 (AFL-CIO) v. Muskegon, 369 Mich. 384, 392, 120 N.W.2d 197 (1963), cert. den. 375 U.S. 833, 84 S.Ct. 54, 11 L.Ed.2d 64 (1963). The Court in Kelley upheld the validity of a police regulation governing the length of officers' hair. The Court noted that the paramilitary nature of a police force commands a more deferential approach to the constitutional protections of police officers than those afforded the general public, particularly when the Fourteenth Amendment liberty interest at stake is not a recognized right of a fundamental nature, but merely implicates "the more general contours of the substantive liberty interest." Kelley, supra, 425 U.S. at p. 245, 96 S.Ct. at p. 1445. Therefore, the Court held that the state interest in requiring a uniform appearance of police officers was justified by the need to make officers recognizable as such to the public or the need to enhance esprit de corps. Either was a "sufficiently rational justification" to defeat a due process challenge, notwithstanding the lower court's finding that the police force had failed to demonstrate a public need for the regulation. Id., at p. 248, 96 S.Ct. at p. 1446.

Plaintiffs do not controvert the authority of the chief of police under city ordinances to regulate secondary employment so that legitimate police interests are not impeded. We think that it is beyond peradventure that regulation of police secondary[172 MICHAPP 598] employment is within the constitutionally permissible scope of regulation recognized in Kelley. This position is also in accord with the weight of authority from other jurisdictions. See 94 A.L.R.3d 1230, Secs. 2-3, 5, pp. 1233-1240, 1242-1245.

In support of PR 3.01, defendants asserted that the operation of a private investigation business would present potential conflicts of interest between plaintiffs' employment as police officers and their secondary employment as private investigators. Defendants particularly emphasized the potential for misuse of confidential police information in furtherance of private investigatory activities. Defendants also feared that the operation of a joint enterprise among police officers holding different ranks on the force would create the appearance of favoritism when the same officers exercised their supervisory authority over each other in the course of police duties. Other reasons cited by defendants included the possible pursuit of police time to pursue private investigatory functions and the potential civil liability of the city for acts committed by plaintiffs acting as private investigators. We conclude that these concerns amount to a sufficiently rational justification to uphold PR 3.01 against an asserted due process deficiency. In so deciding, we do not suggest that the circuit court's finding that plaintiffs' proposed business does not interfere with the effective performance of their duties as police officers was clearly erroneous. See Saunders v. Dearborn, 107 Mich.App. 499, 507, 309 N.W.2d 641 (1981). Rather, that finding was beside the point. Once a rational justification for PR 3.01 was established, judicial inquiry could advance no...