O'Dell v. Gerholz, 85
| Decision Date | 02 October 1950 |
| Docket Number | No. 85,85 |
| Citation | 44 N.W.2d 157,328 Mich. 631 |
| Parties | O'DELL et al. v. GERHOLZ et al. |
| Court | Michigan Supreme Court |
Leon A. S. Seidel, Flint, for plaintiffs and appellants, Richard C. Fruit, Flint, of counsel.
John T. Damm, Ford Kennedy, Flint, for defendants and appellees.
Before the Entire Bench.
This is an appeal from the order of the circuit court of Genesee county dismissing certiorari and affirming the action of the Flint civil service commission in upholding the discharge of plaintiffs as police officers.
The police officers were discharged by James T. Byars, chief of Flint police department, from the service of the city on September 3, 1947. The basis of the discharge in each case was that the police officers were involved in certain misconduct during the early morning hours of August 29, 1947. Written notice of discharge setting forth specific charges involving violations of the rules and regulations of the division of police was served upon each of the discharged officers on September 4, 1947. The officers gave notice of appeal to the civil service commission and a combined hearing on the appeals was held September 23, 1947. As a result of the hearing, the civil service commission found that the discharges were proper and the action of the chief of police was sustained.
The testimony taken before the civil service commission shows that officers Fortune and O'Dell had completed, while officer Gillespie had commenced, a tour of duty at midnight August 28, 1947. Shortly thereafter, on August 29, 1947, officer Gillespie started to take Miss Kime, a stenographer in the police department, and the other two officers home in the official investigation car which it was his assignment to drive. On the way home the group stopped at officer O'Dell's home for a drink. Miss Kime was taken home and the three officers proceeded to the Chicken Shack for some food. While so driving one of the officers picked up two girls and all proceeded to the Chicken Shack for food and drink. The party then returned to O'Dell's house where more drinks were served.
The specific charges against officer Gillespie were drinking while on duty in violation of section 88 of the rules and regulations of the division of police; failure to notify dispatcher when leaving police cruiser in violation of section 76 of rules and regulations of division of police.
The charges against officer O'Dell were drinking intoxicating liquor while in uniform in violation of section 88; transporting unauthorized persons in police cruiser in violation of section 78 of the rules.
The charges against officer Fortune were drinking intoxicating liquors while in uniform in violation of section 88 of the rules; using police cruiser to transport two women from the Chicken Shack to the home of Fortune and conduct unbecoming an officer in that he was openly in the presence of a woman with a known police record in violation of section 146 of the rules and regulations of division of police.
Following the hearing, the civil service commission entered the following order:
'In the matter of the appeal of Leland Fortune, Loren Gillespie and Elton T. O'Dell to the Civil Service Commission of the City of Flint, we find that after a full hearing, and from the evidence produced at such hearing, that their discharges from the City of Flint Police Department were not for political or religious reasons or for reasons other than the good of the service, and find that the discharges were proper.
'The action of the Chief of Police is therefore sustained and the appeals are dismissed.'
On August 31, 1948, plaintiffs filed petition for a writ of certiorari in the circuit court of Genesee county and on the same date the court issued the writ returnable September 30, 1948. The cause came on for a hearing, resulting in dismissal of the writ of certiorari and affirmance of the action of the civil service commission.
Plaintiffs appeal and urge that they did not receive a full and complete hearing before the civil service commission; that there was not competent and credible evidence showing by a clear preponderance of evidence that plaintiffs were guilty of any substantial misfeasance or nonfeasance affecting public welfare; and that the civil service commission improperty excluded plaintiffs' defense which would have disclosed that plaintiffs were discharged for political reasons.
The civil service commission of the city of Flint exists by virtue of the charter of the city of Flint. The charter provision of the city of Flint governing investigation of a discharge of an employee reads as follows: ...
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