Bennett v. Price
| Decision Date | 28 October 1968 |
| Docket Number | No. 22145,22145 |
| Citation | 446 P.2d 419,167 Colo. 168 |
| Parties | Earle L. BENNETT, Plaintiff in Error, v. Wayne G. PRICE, Alex Clark, Jr., and Joseph A. Martise, all members of the Pueblo Civil Service Commission, Defendants in Error. |
| Court | Colorado Supreme Court |
Kettelkamp, McGrath & Vento, W. C. Kettelkamp, Jr., Pueblo, for plaintiff in error.
Gordon D. Hinds, Pueblo, for defendants in error.
Earle L. Bennett, plaintiff in error, prior to the initiation of these proceedings, had been a police officer of the City of Pueblo for eight years. The defendants in error were, at all times material to this litigation, members of the Civil Service Commission of the City of Pueblo, and will be referred to collectively as the Commission.
Bennett was discharged pursuant to prescribed procedures by the Chief of Police 'for violations of Pueblo Code of Ordinances Sec. 10--2(d) and Sec. 10--11(d)(4).' This order was appealed by Bennett to the Commission, which, after a De novo hearing, affirmed the order of the Chief of Police.
After a review under R.C.P.Colo. 106(a)(4), the decision of the Commission was affirmed by the District Court. The matter is here on writ of error.
Bennett challenges the decision of the Commission on two grounds, which are set forth in his Summary of Argument in these words:
A review of the testimony reveals virtually no conflict--so far as it relates to that which is basic to a consideration of the issues before us. The minor points of disagreement relate primarily to inferences drawn from the acts of Bennett, which, under the circumstances, we do not regard as significant to our decision. The admissions in Bennett's testimony are alone sufficient to support the action of the Commission.
Bennett had been a Pueblo police officer for eight years. On March 22, 1965, he went to the personnel department and asked the clerk for permission to see his file in order to get certain information relating to a previous in-service injury. Upon examination of the file he discovered a sealed envelope upon which was typed, 'Do Not Open Unless Authorized To Do So.' He asked the clerk, 'Does that apply to me, or not?' She said, 'I do not have authority to open it--I believe the Civil Service Commission would be the only ones that could open it.' He returned the file to the clerk and left the personnel office; he stated that he then decided to return to the personnel office, remove the envelope from his file, examine the contents, and then return the envelope to the file. He returned, obtained his file, removed the envelope, and put it under his jacket. At this point Donald Hatfield, Director of the Civil Service Commission, and Jones, a police captain, came into the office. Bennett had a friendly conversation with Hatfield, but did not request his permission to open the envelope; instead, he left the office, the envelope still hidden under his jacket. Bennett then went to a parking lot, opened the envelope and discovered that the contents related to a prior complaint made against him by a former captain of the police department. Before he was able to return the envelope to the file--if such was his intention--Captain Jones and Hatfield, who, in the meantime, had discovered the removal of the envelope, confronted him in his car as he was leaving the parking lot; Bennett handed the file to Hatfield. These proceedings were then initiated.
Alleged Error I: The decision of respondents in discharging petitioner was arbitrary and capricious.
Bennett concedes that the issue is not what the court would have done had it been the administrative agency, but rather, whether the action taken by the administrative agency was the result of an honest judgment and whether that action was reasonable. He further concedes that action by an administrative agency is not arbitrary merely because the reasonableness of the agency's action is open to a fair difference of opinion, or because there is room for more than one opinion. 2 Am.Jur.2d Administrative Law § 651.
In a legal sense, discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all the circumstances before it being considered. Rio Grande County v. Lewis, 28 Colo. 378, 65 P. 51; Sharon v. Sharon, 75 Cal. 1, 16 P. 345; Howard v. Lindmier, 67 Wyo. 78, 214 P.2d 737.
In determining whether any administrative action is arbitrary, capricious, unreasonable, or an abuse of discretion, it is necessary to look at the functions of the agency involved and the totality of the factual background in which the agency was functioning at the time of the challenged act. In evaluating that action, we must recognize that the primary responsibility for the function under review lies in the administrative agency and not in the courts.
Here we are concerned with the police department and the Civil Service Commission in relation to disciplinary action taken against a police officer growing out of the officer's violation of an ordinance. The penalty was discharge.
The ordinances of the City of Pueblo (Sec. 10--11(c)) authorize any department head (the Chief of Police) to suspend, demote or impose such other reasonable disciplinary action as he may deem advisable, including discharge. Specific procedures are set forth to meet 'due process' requirements. These were followed and no question on this score is raised.
Among the six grounds for discipline or discharge (Sec. 10--11(d)) are two on which the Commission relies here. One, And two,
Section 10--2(d), relating to personnel records, in pertinent part, after providing what shall be kept as records, provides:
Bennett testified that he was familiar with the ordinances of the city; he had an opportunity to request the permission of the director to open the file or to remove it for examination, but, instead, he...
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