Daley v. Judge of District Court of Western Hampden
| Decision Date | 19 October 1939 |
| Citation | 304 Mass. 86,23 N.E.2d 1 |
| Parties | THOMAS F. DALEY v. DISTRICT COURT OF WESTERN HAMPDEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 23, 1937.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, JJ.
Police Officer. Westfield. Civil Service. Waiver. Notice. Time. District Court, Review of removal in civil service.
The police commission of the city of Westfield, and not the mayor, under the charter and ordinances in effect in 1936 had authority to remove the chief of police from office for cause. A police officer, by proceeding by a petition for review under G.L (Ter.
Ed.) c. 31, Section 42B, of an order removing him, instead of by a petition for a writ of mandamus which he could have maintained on the ground that the notice given him under Section 42A was merely of a hearing respecting his suspension and did not justify his removal, waived his right to contend that the order of removal was for that reason unlawful.
A finding by a judge, reviewing under G.L. (Ter. Ed.) c. 31, Section 42B, an order removing a police officer, that the statement of reasons set out under Section 42A for contemplated action were adequate, showed no error.
An order of removal of a police officer "on charges of neglect of duty, of conduct unbecoming an officer and for acts contrary to the good order or discipline of the service and for insubordination, as more fully set forth in" a notice previously given him under G.L. (Ter. Ed.) c. 31,
Section 42A, which contained the date of each offence charged, complied with the requirements of the statute.
A notice to a police officer of his removal after hearing of charges received by him on the fourth day after the hearing, a Sunday having intervened, complied with the requirements of G.L (Ter. Ed.) c. 31,
Section 42A, of a notice within three days.
Evidence before a judge reviewing under G.L. (Ter. Ed.) c. 31, Section 42B, the removal of a police officer by a police commission, did not require a conclusion that the commission's refusal of a request by the officer for a second continuance of the hearing held by it under Section 42A was wrong as a matter of law.
Testimony that a police officer smelled of "liquor on his breath" and that he walked "very unsteadily" and in that condition entered an automobile and drove it upon a public way, warranted a finding by a commission, and its affirmance by a reviewing judge under G.L. (Ter. Ed.) c. 31, Section
42B, that the officer was guilty of conduct unbecoming an officer, and justified his removal, although he was not in uniform or performing the duties of his office when such conduct occurred.
PETITION, filed in the Supreme Judicial Court for the county of Hampden on February 17, 1937, for a writ of certiorari.
The petition was heard and was dismissed by order of Pierce, J. W. A. Heaphy, for the petitioner.
H. B. Putnam, City Solicitor, for the respondent.
The petitioner was removed from the position of chief of police of Westfield by the police commission of that city after a hearing on thirty-five charges of alleged misconduct preferred by the commission. He seasonably filed a petition in the District Court for a review of the action of the commission in removing him. G.L. (Ter. Ed.) c. 31, Section 42B. The commission found him guilty on all the charges. The judge in the District Court found that as to thirty-four of the charges the action of the commission was not justified. He found, however, that the action of the commission was justified as to one charge -- of conduct unbecoming an officer on a single occasion.
The petitioner has brought a petition for a writ of certiorari to obtain a review of the decision of the judge in the District Court and his reinstatement as chief of police. A single justice of this court dismissed the petition. The case is here on exceptions to the refusal of the single justice to give certain requests of the petitioner for rulings of law. The substance of these requests for rulings may be stated as follows: (1) that as matter of law the power to remove the petitioner was vested in the mayor of Westfield with the approval of the city council and not in the police commission; (2) that the petitioner was not lawfully removed in accordance with the provisions of G.L. (Ter. Ed.) c. 31 Section 42A; (3) that as matter of law the act of the police commission in refusing to grant the petitioner a continuance of the hearing before it, because of his inability to be present on account of illness, was erroneous and prejudicial to the petitioner; and (4) that as matter of law the evidence submitted in support of the only charge sustained by the judge in the District Court, even if believed, did not justify the removal of the petitioner.
The petitioner, on November 23, 1936, received from the police commission two letters bearing that date. One letter notified him to appear for a hearing before the commission to be held on the twenty-eighth day of November on his "suspension as Chief of Police because of neglect of duty, more specifically for neglect of duty" on sixteen different days, "for conduct unbecoming an officer" on two occasions, "for acts contrary to the good order or discipline of the service" on one occasion, and "for insubordination" on sixteen different occasions, the date in each instance being specified. The other letter stated that the petitioner was relieved of his duties as chief of police pending a hearing on the charges preferred against him. On November 28, the day set for the hearing by the notice, the petitioner appeared before the commission and pleaded not guilty to the charges made. At his request a continuance of the hearing to December 5 was granted. The petitioner was not present at the hearing on December 5. The request of his counsel for a further continuance was denied. Following the hearing the commission made an order removing the petitioner.
1. The petitioner contends that the police commission was not vested with the power to remove him as chief of police.
The city of Westfield was incorporated by St. 1920, c. 294. Section 5 of said c. 294 provides that "All heads of departments and members of municipal boards" (with exceptions not here material) "shall be appointed by the mayor except as otherwise provided herein, subject to confirmation by the city council," and Section 7 provides that "The mayor may, with the approval of a majority of the members of the city council, remove any head of a department or member of a board," with certain exceptions here immaterial. The power given by the city charter, in the sections above quoted, to appoint and to remove officers of the city, is in terms limited to the appointment and removal of heads of departments and members of municipal boards. It is the contention of the petitioner that as chief of police he was the head of a department of the city and therefore removable only by the mayor with the approval of the city council.
But the language of the charter makes it plain that the head of the police department in the city of Westfield is not the chief of police but the police commission. Section 8 of the charter provides that "There shall be the following departments, boards and officers in the city . . ." including "The police department, under the charge of a commission, which shall consist of the mayor, who shall be the chairman, and two members who shall be appointed by him subject to confirmation by the city council . . . ." As a chief of police of the city is not the "head of a department or member of a board," he is not removable by "The mayor . . . with the approval of a majority of the members of the city council" under the provisions of Section 7 above quoted.
The city charter vested the legislative powers of the city in the city council (St. 1920, c. 294, Section 4), and in Section 17 further provided, with exceptions not here material, that "the legislative powers of the city council may be exercised as provided by ordinance or rule adopted by it." The city council in 1921 made provision for the exercise of certain of its legislative powers by the adoption of an ordinance entitled "An ordinance relating to the Police Department." This ordinance among other things provided: A set of rules issued by the chief of police in accordance with the ordinance contained the provision: "The Chief of Police shall be subject to the ordinance relating to the Police Department and to the rules and regulations of the department."
The judge of the District Court rightly ruled that the city council, in the exercise of its legislative powers, by the enactment of the ordinance delegated the power of appointment and removal of all police officers, including the chief of police, to the police commission.
2. The petitioner contends that the police commission in removing him from office did not comply with the requirements of the applicable civil service statute, G.L. (Ter. Ed.) c. 31, Section 42A. The statute provides that...
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