Civil Service Commission of City of Tucson v. Livingston

• Decision Date: 19 August 1974
• Docket Number: No. 2,CA-CIV,2
• Citation: 22 Ariz.App. 183,525 P.2d 949
• Parties: The CIVIL SERVICE COMMISSION OF the CITY OF TUCSON, Paul Miner in his capacity as Secretary to the Civil Service Commission of the City of Tucson and as Personnel Director of the City of Tucson, and William Gilkinson, Chief of the City of Tucson Police Department, Appellants and Cross- Appellees, v. Marv Davis LIVINGSTON, Appellee and Cross-Appellant. 1545.
• Court: Arizona Court of Appeals

Page 949

525 P.2d 949

22 Ariz.App. 183

The CIVIL SERVICE COMMISSION OF the CITY OF TUCSON, Paul Miner in his capacity as Secretary to the Civil Service Commission of the City of Tucson and as Personnel Director of the City of Tucson, and William Gilkinson, Chief of the City of Tucson Police Department, Appellants and Cross- Appellees, v. Marv Davis LIVINGSTON, Appellee and Cross-Appellant.

No. 2 CA-CIV 1545.

Court of Appeals of Arizona, Division 2.

Aug. 19, 1974.

Rehearing Denied Sept. 18, 1974.

Review Denied Oct. 8, 1974.

Cusick, Watkins, Stewart & Harris by Hugh W. Stewart, Tucson, for apellants and cross-appellees

Barry M. Corey, Tucson, for appellee and cross-appellant.

OPINION

HOWARD, Judge.

The appellee, a member of the City of Tucson Police Department, was charged with violating three departmental regulations, to-wit § 6--8.401(7), conduct unbecoming an officer; § 6--12.102, unauthorized wearing of the police uniform; and § 6--6.305, unauthorized leaving of assigned area. The specifications to the charges read as follows:

'6--8.401(7)

Officer Livingston, in the company of two other officers, visited the residence of 2454 East Mountain View, on of about June 25, 1972, for the purpose of engaging in a licentions and morally unacceptable party terminating in sexual intercourse between Livingston and a female by the name of Manuella (sic) Luna. At the time of this party and sexual relationship, Livingston was fully aware that Manuella (sic) Luna and other females present were employed as nude models, and quite probably prostitutes, at Nik's Fliks and Chiks (an adult theater of known disrepute at 4557 South 6th Avenue). Knowledge of this occurrence was brought to the attention of the Department during an investigation conducted by Mr. Alex Dressler, a reporter for the Arizona Daily Star, and Sergeant T. Kehoe of the South Tucson Police Department. Possession of this information by the newspaper and other official agencies places the Department in a position of great embarrassment. Officer Livingston had, in fact, been previously warned by a fellow officer as to the nature of loose moral character of the females involved at the party.

6--12.102

On or about June 25, 1972, Officer Livingston attended the aforementioned party wearing the uniform trousers and issue footgear easily recognizable as a portion of the official uniform of the Tucson Police Department.

6--6.305

On or about June 25, 1972, officer Livingston absented himself from his assigned area without proper authorization by his supervising officer. In so doing, he left his area of responsibility unprotected and violated standing instructions from his Squad Sergeant, L. Erdman #142.'

'Nik's Fliks' is known as a 'hard core porno house'. The girls working there are called 'models'. A person can 'rent' a model at the business establishment and take her into a private room on the premises. There the 'client' can body paint the nude model whom he has 'rented' or take pictures of her in any position he desires. The models can also be rented on a 'take out' basis. Pornographic movies are shown on the premises; also, various artificial sexual stimulators are sold.

At the hearing it developed that prior to the incident in question and unbeknownst to appellee the activities of certain girls who worked at 'Nik's Fliks and Chiks' were being investigated by the Vice Squad of the City of Tucson Police Department. At the same time a similar investigation was being carried on by Sgt. Kehoe of the South Tucson Police Department and Alex Dressler, a reporter for the Tucson, daily Star. This culminated in the South Tucson Police Department charging two of the girls with operating a bawdy house. These girls informed Sgt. Kehoe and Mr. Dressler that various police officers had been patronizing some of the girls and they were being offered the girls' 'services' free of charge. The Tucson Police Department, upon being informed of these allegations, undertook its own investigation. Upon questioning, Manuela Luna told the investigators that she had sexual intercourse with the appellee at a party on June 25, 1972. When questioned about her activities at Nik's Fliks prior to the party she admitted she had acted as a prostitute and made her contacts at Nik's. The evidence introduced at the hearing showed that on June 11, 1972, Manuela Luna was arrested for offering to commit a lewd act. She was subsequently found guilty of that crime on July 17, 1972.

It was also disclosed at the hearing that appellee prior to the incident in question and earlier that evening had been on duty in a patrol car with Officer Sanders. Sanders had previously answered a prowler call on June 7, 1972 at a house on Mountain View. From his contact with the girls in the house on that occasion he came to the conclusion that the house 'appeared to be a sort of a house of ill repute'. Earlier in the evening of June 25, 1972, at appellee's request, Sanders and appellee went to the Mountain View address on their 'lunch' break. En route, Sanders told Livingston that the house 'looked like a whore house.' Upon arrival, Sanders and appellee declined an invitation by the girls to enter the house, but Sgt. Livingston returned later in the evening, after duty, to attend a party.

Appellee admitted that he was wearing the pants from his uniform at the party. He also admitted that he knew Manuela Luna worked at Nik's Fliks. His defense to the evidence was that he did not know that Manuela or the other girls were prostitutes; that both he and Manuela were not married and therefore their act of intercourse was not a criminal offense (adultery); and that he did not place much faith in Sanders' characterization of the house since Sanders commonly referred to girls as 'whores'. Chief Gilkinson's position can best be stated by reference to his testimony at the hearing:

'There is a potential for any police officer to become involved in something that eventually will lead to the officer, in official capacity, somehow being swayed to either do something or not do something on the basis of what has transpired. For any police officer to become involved with anyone who might be promiscuous, if not a prostitute, he will become vulnerable to whatever might transpire afterwards. If the officer is assigned to a sensitive position thereafter in his career, thereafter his vulnerability is obvious and he may have to repay someone a favor. Now when a man exposes himself to that possibility he is no longer a professional police officer, he thereafter can belong to anyone anyone who would want to pull that string, and frankly gentlemen, we can't afford it.'

The Civil Service Commission upheld appellee's discharge and found:

'(1) That Marv D. Livingston while employed as a law enforcement officer . . . associated in a non-duty capacity with a female of alleged disrepute.

(2) That Mr. Livingston engaged in an act of sexual intercourse with such a female at a party attended during his offduty hours.

(3) That the conduct of Mr. Livingston in this regard and his association with such person, or persons, was known to employees of a local newspaper.

(4) That such conduct of Mr. Livingston was unbecoming a Police Officer, either while on or off duty, was detrimental to the law enforcement profession the City of Tucson Police Department, and the City of Tucson.'

Appellee, by means of a special action in the superiro court, challenged the ruling of the Civil Service Commission on three grounds: (1) The findings of fact entered by the Civil Service Commission do not substantiate the charges brought and are not sufficient to warrant his discharge; (2) the Civil Service Commission erroneously admitted evidence regarding prior alleged misconduct of the appellee which had not been specified in the charges; and (3) the regulation pursuant to which the appellee's termination was upheld is void because of its unconstitutional vagueness, overbreadth, and indefiniteness. The trial court after reviewing the transcript of the proceeding before the Commission, found that § 6--8.401(7) of the Regulations of the Tucson Police Department was unconstitutionally vague, indefinite, and overbroad and that therefore the Commission proceeded in excess of its jurisdiction in upholding the discharge of the appellee. The trial court further found that, with the exception of the invalidity of § 6--8.401(7), the decision of the Civil Service Commission was not arbitrary, capricious, or an abuse of discretion or an act in excess of its jurisdiction or legal authority. The court ordered the Commission to reinstate appellee and award him his back pay.

This appeal questions the conclusion of the trial court that § 6--8.401(7) suffers from constitutional infirmities. Appellee filed a cross-appeal which shall treat as a cross-question.

In order to bring the issues involved into proper focus so that proper legal principles can be discussed, it is well to first recognize that the relationship between the City of Tucson and appellee is that of employer and employee. The laws relative to that relationship have been modified by the civil service laws, the object of which is to protect the employees and public from the spoils system. The purpose of civil service is to secure more efficient employees and thereby promote better government. Civil Service Board v. Warren, 74 Ariz. 88, 244 P.2d 1157 (1952). One of the objectives of civil service laws is to take from the appointing officer the right of arbitrary removal of an appointee. Absent such laws a public employee has no protection against suspension and removal with or without cause.

Chapter XII of Charter of the City of Tucson creates a civil service commission and a classified service for certain city employees, officers, deputies and clerk. § 3(c)of the said chapter provides in part:

'Persons who have served through their probationary period and who have received permanent appointment in the classified service...