Deering v. City of Seattle

• Decision Date: 01 April 1974
• Docket Number: No. 2058--I,2058--I
• Citation: 520 P.2d 638,10 Wn.App. 832
• Parties: Henry R. DEERING, Appellant, v. The CITY OF SEATTLE, a municipal corporation, et al., Respondents.
• Court: Washington Court of Appeals

Page 832

10 Wn.App. 832

520 P.2d 638

Henry R. DEERING, Appellant, v. The CITY OF SEATTLE, a municipal corporation, et al., Respondents.

No. 2058--I.

Court of Appeals of Washington, Division 1.

April 1, 1974.

Rehearing Denied May 13, 1974.

Heavey & Picton, Bernard J. Heavey, Jr., Seattle, for appellant.

John P. Harris, Corp. Counsel, Seattle, for respondents.

JAMES, Judge.

Plaintiff, Henry Deering, was a Seattle fireman for approximately 8 1/2 years and had achieved 'regular' as distinguished from 'probationary' civil service status. He received written notice from the fire chief that, because of charges submitted by his superior officers, a 'trial board' 'disciplinary' hearing would be conducted pursuant to Seattle fire department regulation 5.04.03(c). A hearing was held and the trial board recommended that 'Deering's employment in the Department should be terminated.' Thereafter, the chief, acting in his capacity as the 'appointing authority' and pursuant to Seattle civil service rule 12.03, 'discharged' Deering by filing 'a written statement of the reasons for such discharge with the (civil service) Commission.' In response to a 'notice' from the commission and pursuant to article 16, section 12 of the city charter and civil service rule 12.04, Deering requested and was granted an 'investigation' of the reasons given for his discharge.

The commission concluded that Deering's discharge was justified. Deering filed a petition for writ of mandate in Superior Court seeking reinstatement and back pay. The trial judge refused to consider Deering's offer of proof concerning the conduct of the trial board hearing. He determined, as a matter of law, that the trial board hearing was 'without legal significance, and the manner in which said Fire Department hearing was conducted is not judicially reviewable.' Conclusion of law No. 1.

The trial judge confined his consideration to a review of the record of the civil service commission 'investigation.' He found that Deering was represented by counsel, presented evidence, and was permitted to cross-examine adverse witnesses. He found that substantial evidence supported the commission's conclusion that Deering's discharge was for 'just cause.' He concluded that the commission did not act in an arbitrary and capricious manner and denied Deering's petition.

On appeal, Deering's first argument is that '(h)e that takes the procedural sword shall perish with that sword.' Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959) (Frankfurter, J. concurring in part, dissenting in part). He reasons that while there is no Civil service provision requiring a trial board disciplinary hearing, the department's own rules make such a hearing mandatory. Deering asserts that the fire department violated both the letter and spirit of its own rule which provides that:

To insure fair and just treatment of the offender, the Personnel Officer will conduct disciplinary hearings only after accumulating all evidence and in the presence of all witnesses which he and the accused may consider necessary.

Fire department rule 5.04.03(c)(3). He alleges that the trial board's failure to follow its own rules so 'tainted' all subsequent proceedings that they were void and his dismissal invalid. He specifically alleges that at that hearing he was 'denied (the) right of counsel; denied the right to cross-examine his accusers; and denied the right to call witnesses in his behalf.'

Deering cites in support of this argument Vitarelli v. Seaton, Supra; Dillon v. Lapeer State Home & Training School, 364 Mich. 1, 110 N.W.2d 588 (1961); and Brininstool v. New Mexico State Bd. of Educ., 81 N.M. 319, 466 P.2d 885 (1970). But in none of these cases was a de novo hearing available to the discharged employee. Moreover, Dillon and Brininstool both involve hearings Required by statute.

In response, the defendants cite McTiernan v. Gronouski, 337 F.2d 31 (2d Cir.1964), in which a postal employee sought reinstatement. The employee argued that during the investigation which preceded his dismissal, the post office violated a postal manual regulation requiring disclosure of evidence. The court observed that the employee requested and received a de novo civil service commission hearing and that prior to that hearing the employee received notice of the evidence against him. The opinion concluded that

any error which may have clouded the earlier proceedings because of this non-disclosure has been cured, and appellant cannot now rely on that non-disclosure in pressing his efforts to have his dismissal overturned. Green v. Baughman, 100 U.S.App.D.C. 187, 243 F.2d 610, cert. denied, 355 U.S. 819, 78 S.Ct. 25, 2 L.Ed.2d 35 (1957).

(Footnote omitted.) McTiernan v. Gronouski, Supra at 35. Similarly, under Seattle's city charter the civil service commission is also required to give a de novo hearing and exercise its independent judgment. State ex rel. Perry v. Seattle, 69 Wash.2d 816, 420 P.2d 704 (1966). We find the reasoning of McTiernan persuasive.

Deering makes the related argument that the trial board hearing was constitutionally defective in failing to provide procedural due process. We will assume that Deering's status as a civil service employee is a constitutionally protected 'property' right, ¹ Cf. Helland v. King County Civil Service Comm'n, Wash.App., 519 P.2d 258 n.1 (1974), and that he may not be deprived of that right without due process of law.

For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' Baldwin v. Hale, (1 Wall.) 68 U.S. 223, 233, 17 L.Ed. 531 (1863). See Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed 914 (1876); Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897); Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972).

Though Deering strenuously argues that the trial board hearing contaminated the commission hearing, neither in his briefs on appeal nor in his oral argument has he been able to explain any way in which the commission hearing was affected. The record discloses that the commission refused to consider any evidence concerning the substance or conduct of the trial board hearing. The trial board's only function was to investigate the charges against Deering and to make a disciplinary 'recommendation' to the fire chief. Therefore, Deering suffered no 'deprivation' as a consequence of that hearing. His deprivation occurred when he was discharged by the fire chief.

Although the appropriate charter and civil service provisions speak of 'removal' and 'discharge' of a civil service employee by the 'appointing authority,' it is clear that, as provided by civil service rule 12.03,

(a) regular employee may be discharged from the City service Only upon the filing by the appointing authority of a written statement of the reasons for such discharge with the Commission;

(italics ours) and that thereafter, as provided by article 16, section 12 of the city charter and civil service rule 12.04, the final decision shall be made by the commission. After an employee's demand for an 'investigation,' his 'discharge' becomes at most a temporary 'suspension' and the 'reasons' assigned by the chief for his dismissal become merely charges which the...