City of Tucson v. Mills

• Decision Date: 05 November 1976
• Docket Number: CA-CIV,No. 2,2
• Citation: 559 P.2d 663,114 Ariz. 107
• Parties: The CITY OF TUCSON, the Civil Service Commission of the City of Tucson, Schuyler Lininger and Jane Doe Lininger, husband and wife, George Codd and Jane Doe Codd, husband and wife, Paul Miner in his Capacities as Secretary of the Civil Service Commission and Director of Personnel of the City of Tucson, William J. Gilkinson, Chief of Police of the City of Tucson, and Gene Reid, Director of Parks and Recreation, Appellants, v. Lennis J. MILLS, Appellee. 2154.
• Court: Arizona Court of Appeals

Page 663

559 P.2d 663

114 Ariz. 107

The CITY OF TUCSON, the Civil Service Commission of the City of Tucson, Schuyler Lininger and Jane Doe Lininger, husband and wife, George Codd and Jane Doe Codd, husband and wife, Paul Miner in his Capacities as Secretary of the Civil Service Commission and Director of Personnel of the City of Tucson, William J. Gilkinson, Chief of Police of the City of Tucson, and Gene Reid, Director of Parks and Recreation, Appellants, v. Lennis J. MILLS, Appellee.

No. 2 CA-CIV 2154.

Court of Appeals of Arizona, Division 2.

Nov. 5, 1976.

Rehearing Denied Dec. 21, 1976.

Review Denied Jan. 25, 1977.

James D. Webb, Tucson City Atty. by Thomas J. Wilson, Asst. City Atty., Tucson, for appellants.

Quigley & Quigley, P.C. by James E. Quigley, Tucson, for appellee.

HOWARD, Chief Judge.

This is an appeal from a judgment ordering that the decision of the Civil Service Commission, upholding the suspension of appellee Mills, be set aside and that appellee be provided with his previously suspended credentials and be reinstated as an employee of the Parks and Recreation Department of the City of Tucson.

The facts of the case are as follows. Appellee, a duly qualified and permanent employee of the City of Tucson, was serving in the capacity of a parks guard at the time of his suspension on November 1, 1973. On November 21, 1973, Mills was served with a personnel action form discharging him from his position effective as of November 9, 1973. This action was precipitated by the revocation of appellee's status as a special patrolman by William J. Gilkinson, Chief of the Tucson Police Department, pursuant to Tucson Code Sec. 20--11.6. Such special status is required in order to be a parks guard.

Mills appealed his termination to the Civil Service Commission of the City of Tucson. The Commission ruled that the appellee no longer qualified for the position of parks guard and appellee filed a special action in superior court seeking review of this ruling. The trial court ordered appellee reinstated in his former position, with all benefits thereof, effective as of November 24, 1974. The ruling was in turn appealed to this court culminating in our decision in Civil Service Com'n of City of Tucson v. Mills, 23 Ariz.App. 499, 534 P.2d 430 (1975).

It was our opinion that the general personnel action form suspending Mills did not enable him to adequately prepare an explanation or defense. The notice of dismissal failed to state grounds with the requisite degree of specificity. ¹ The mere allusion to 'incidents' failed to satisfy either Chapter XXII, Sec. 3(c) of the City of Tucson Charter or Rule XI, Sec. 2, Tucson Civil Service Commission's Rules and Regulations. We therefore ordered the matter remanded to the Commission for further proceedings.

Pursuant to the mandate of this court, the Civil Service Commission convened on September 17 and 18, 1975, and conducted a full hearing on the termination of Mills. Prior to the hearing dates, Mills had been notified of the specifications supporting the basis for his discharge. These grounds were as follows:

'1. On or about October 11, 1973, after the receipt of a restraining order, Mr. Mills became disorderly, threatening the safety of his family which resulted in a call to Tucson Police officers in order to claim and restrain him. Said acts occurred at 8011 East 2nd Street with Officers Woodward and Harriman responding, in addition to Lieutenant Zuniga.

2. On or about October 27, 1973, at approximately 1:00 A.M., in the parking lot of the Southern Arizona Bank building at 44 East Broadway, Mr. Mills engaged in an argument with his wife, became abusive and disorderly, and did further assault and batter one John Wellman by striking Mr. Wellman in the face.

3. That on or about October 27, 1973, at approximately 2:30 A.M., Mr. Mills further engaged in disorderly conduct at 8011 East 2nd Street, resulting in a call to the Tucson Police Department. Officers appeared and restrained Mr. Mills which required at one point, the removal of three weapons and ammunition from Mr. Mills' possession, in addition to his police officer identification. Officer Webb and Sergeant Tripp were the field officers.'

After hearing extensive argument, the Commission found just cause to exist for Mills' termination and upheld the discharge. This ruling of the Commission was again appealed by way of special action to the superior court which held that the actions of the Commission in upholding Mills' dismissal were arbitrary, capricious and not based upon just cause. This appeal followed.

Four questions have been presented for our determination:

1. Was appellee automatically entitled to reinstatement when he appeared before the Civil Service Commission in September, 1975?

2. Did the conduct exhibited in the incidents cited in the notice of termination constitute just cause for the action taken by the Tucson Chief of Police?

3. Did the superior court by the terms of its judgment err in its determination of just cause?

4. Did the superior court improperly substitute its judgment of the evidence for that reached by the Civil Service Commission?

We have reviewed the record and find that appellant's contentions have merit. Therefore, we reverse. Before reaching the issue of just cause, however, it is necessary that we first consider appellee's argument that he was entitled by the mandate of this court to reinstatement when he appeared before the Commission in September, 1975.

Evidently it is appellee's position that our remand for further proceedings in Civil Service Com'n of City of Tucson v. Mills, supra, was a mandate to perform a ministerial act (i.e., reinstatement). Mills asserts that failure to follow this mandate violated due process of law. We disagree.

The specific language used in Mills was:

'We find that we need only address ourselves to the order of reinstatement. The general rule seems to be that where an administrative agency has been found to have acted in violation of procedural requirements or arbitrarily, the administrative agency is entitled to have the proceedings returned to it. English v. City of Long Beach, 35 Cal.2d 155, 217 P.2d 22 (1950); Straub v. Department of Public Welfare, 31 Wash.2d 707, 198 P.2d 817 (1948); 2 Am.Jur.2d Administrative Law Sec. 765. Therefore, the lower court should have ordered the matter remanded to the Civil Service Commission for further proceedings.' 23 Ariz.App. at 502--503, 534 P.2d at 434.

The superior court understood this language to mean that the matter was to be referred back to the Commission for further review and inquiry into the basis of Chief Gilkinson's action. This interpretation was correct.

A remand for further proceedings means that the case is returned to the administrative agency so that it may take further action in accordance with applicable law. Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 59 S.Ct. 301, 83 L.Ed. 221 (1939). Such a remand does not dismiss or terminate the administrative proceeding. Rather, the administrative agency may take a fresh look at the matter involved. Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 68 S.Ct. 822, 92 L.Ed. 1196 (1948); 2 Am.Jur.2d Administrative Law Sec. 766 (1962).

'Where the administrative body has made invalid or inadequate findings or has not afforded a fair hearing, the court granting judicial review can and should remand the case to the administrative body 'for further proceedings to the end that valid and essential findings may be made. " (Emphasis ours) Pennsylvania State Athletic Commission v. Bratton, 177 Pa.Super. 598, 112 A.2d 422, 425 (1955).

In short, our mandate required that specification for the grounds for termination be provided, not that appellee be reinstated. The Commission did not err in failing to order appellee's reinstatement.

As the final three issues raised on appeal are integrally related, we shall consider them together. The laws and procedures governing Civil Service termination and subsequent review are as follows. Ch. XXII of the Charter of the City of Tucson creates a civil service commission and a classified service for certain city employees, officers, deputies and clerks. Its purpose is to secure more efficient employees and thereby promote better government. Civil Service Com'n of City of Tucson v. Livingston, 22 Ariz.App. 183, 525 P.2d 949 (1974). Sec. 3(c) of said chapter provides in part:

'Persons who have served through their probationary period and who have received permanent appointment in the classified service shall not be . . . discharged . . . except for just cause, which shall not be religious or political.'

Sec. 10--10(12) of the Tucson City Code enumerates certain conduct which may constitute 'just cause' 'The following shall constitute just cause, Although enumeration thereof shall not exclude other causes, namely: Incompetence; insubordination; inattention to duties; discourteous treatment of the public or fellow employees; violation of the ordinances of the mayor and council, the rules and regulations of the commission, and the rules and regulations of the department in which an employee is employed; absence from duty without leave; physical or mental unfitness to perform prescribed duties; excessive use of intoxicating liquors; addiction to the use of narcotics; immoral conduct; conviction of a crime involving moral turpitude; failure to pay or failure to make reasonable provision for payment of just debts due and owing; and conduct, while either on or off duty, tending to cause scandal to the service. In no cause shall any political or religious belief or affiliation or any indefinite or vague charges, such as for the good of the service, be considered just cause.' (Emphasis added)

It is clear that the Civil Service Commission cannot base 'just cause' upon arbitrary or capricious reasons, yet a finding of misconduct justifying suspension or discharge need not be predicated upon...