Konyha v. Mount Clemens Civil Service Commission of City of Mount Clemens

• Decision Date: 21 January 1975
• Docket Number: No. 10,10
• Parties: Steven KONYHA, Plaintiff-Appellant, v. MOUNT CLEMENS CIVIL SERVICE COMMISSION OF the CITY OF MOUNT CLEMENS, State of Michigan, Defendant-Appellee. 393 Mich. 422, 224 N.W.2d 833
• Court: Michigan Supreme Court

Page 833

224 N.W.2d 833

Steven KONYHA, Plaintiff-Appellant, v. MOUNT CLEMENS CIVIL SERVICE COMMISSION OF the CITY OF MOUNT

CLEMENS, State of Michigan, Defendant-Appellee.

No. 10.

393 Mich. 422, 224 N.W.2d 833

Supreme Court of Michigan.

Jan. 21, 1975.

Law Offices of Leonard C. Jaques, P.C., by Leonard C. Jaques, Detroit, for plaintiff-appellant; Kenneth A. Webb, Detroit, of counsel.

Daner, Freeman, McKenzie & Matthews, P.C., Mount Clemens, for defendant-appellee, by George J. Freeman, Kenneth E. Scherer, Mount Clemens.

Before the Entire Bench, except FITZGERALD, J.

LEVIN, Justice.

Steven Konyha seeks reinstatement with back pay as a fireman with the Mt. Clemens Fire Department.

Konyha was discharged by the Chief of the department for sleeping through a roll call immediately before a change in shift.

The Mt. Clemens Civil Service Commission found this disciplinary action 'justified'. ¹

The circuit court affirmed after affirmatively resolving the propriety of the Chief's and the Commission's consideration of Konyha's prior conduct as a fireman in determining the extent of punishment.

The Court of Appeals in an unpublished memorandum opinion affirmed stating that the 'determination of defendant Commission was based upon competent, material and substantial evidence on the whole record. Const.1963, art. 6, § 28.' ²

We hold that the Firemen and Policeman's Civil Service Act ('all charges (against a policeman or fireman) shall be void unless filed within 90 days of the date of the violation'.) ³ precludes an appointing authority from considering uncharged allegations of employee misconduct when disciplining a fireman or policeman.

The cause is remanded to the Mt. Clemens Civil Service Commission for reconsideration of the appropriate discipline for sleeping through a roll call.

I

The Act provides job security for firemen and policemen during 'good behavior and efficient service.' Firemen and policemen may be disciplined, including discharge, 'for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office'. ⁴

Konyha and the other men on duty had shared watches throughout the night. When Konyha's watch terminated at 4 a.m., he awakened John Pieknik, another firefighter, to take over the watch. Konyha then did his laundry, showered, and eventually went to sleep. At 6:30 a.m. Pieknik said over the public address system: 'Time to get up', and repeated it again:

'Q. You said, 'Time to get up, time to get up?'

'A. Yes.'

Konyha testified he did not hear this wakeup call.

A lieutenant sleeping in the dormitory testfied that he was awakened by the public address system; he was not asked, and did not say, whether he attempted to awaken Konyha.

When Konyha failed to report at 7 a.m. for the roll call, the Chief and the lieutenant went to awaken him. The Chief testified that Konyha, upon being awakened, admitted that he had heard the wakeup signal and then went back to sleep. ⁵ The Commission asserts that this 'admission' indicates 'willful' misconduct.

Konyha's infraction occurred on August 28, 1970. The Chief, on September 25, after 'quite a period of consideration', presented Konyha his 'notice of discharge'. ⁶ The notice characterized Konyha's failure to be at 'roll call on the on-coming and off-going platoons' as 'a neglect of duty'.

Konyha had failed timely to respond to an emergency alarm due to oversleeping on April 2, 1970. He was formally charged and disciplined with a two-day suspension.

The September 25 notice of discharge charges that Konyha's failure to respond to the roll call on August 28, together with the previous oversleeping charge, 'exhibits a pattern on Mr. Konyha's part which endangers the lives and properties of the citizens of Mount Clemens and also his fellow firefighters.'

The Chief's discharge of Konyha and the Commission's validation of his action were not based solely on the specifications of the charge. Konyha had been with the department for three years and the Chief considered his 'whole file', 'his whole record' in reaching his decision.

Apart from the April, 1970 suspension, Konyha had neither been charged nor disciplined for any of these other purported incidents. Allegedly, on June 18, 1969, a little over a year before the August 28 incident, Konyha had slept through another roll call. Although the Chief wrote Konyha a letter concerning the incident, formal charges were not filed. The Chief, with the benefit of hearsay, also testified to other instances of Konyha oversleeping: 'I had been informed, though, that Mr. Konyha was sleeping right up to roll calls and through roll calls by his officer in charge at that time.'

It appears that the Chief's discharge of Konyha was predicated not only on this particular missed roll call and the earlier infraction, but rather was motivated by a general dissatisfaction--not charged--with Konyha's performance. Konyha had failed to achieve a step increase given those 'showing normal progress.' His advance was delayed 'because of the his lack of initiative and lack of performing his duties here in the station.'

Konyha's counsel continually objected to introduction and consideration of testimony regarding alleged incidents and matters not included in the charge and, citing the statute, objected to testimony about uncharged incidents more than 90 days old.

The City Attorney argued the propriety of considering Konyha's entire performance as a fireman: 'It is not a single incident. It is a group of activities. * * * I don't feel that the Civil Service Act prevents the overall conduct of an employee from coming to the attention of a Civil Service Commission merely because there was no complaint or no specific charge filed with the Civil Service Commission. * * * The nature of the discipline is dependent upon the overall behavior of the respondent, as of necessity it must be. * * * He's being disciplined, he's being disciplined on the basis of his overall conduct as a fireman.'

The Chairman of the Commission ruled the testimony admissible: I think that the entire record of the man, as far as his performance of the duties of a fireman, have to go to the final determination by the chief.'

II

The statute reads:

'Provided, however, No member of any fire or police department within the terms of this act shall be removed, discharged, reduced in rank or pay, suspended or otherwise punished except for cause, and in no event until he shall have been furnished with a written statement of the charges and the reasons for such actions, and All charges shall be void unless filed within 90 days of the date of the violation, except in the case of a probationer, whose violations may accumulate for the probationary period.' (Emphasis supplied.) ⁷

The circuit court construed this language as a statute of limitations prohibiting the Bringing of charges for infractions more than 90 days old. The Commission contends that earlier charges are void only to the extent that they 'cannot be used to prove present charges' but are viable and 'relevant in determining (the) penalty that should be imposed for a proven violation.'

The purpose of the Act is to provide Discipline may not be imposed because of Discipline may not be imposed because of vague misgivings about performance. Discipline is justified only 'for cause'. A written statement of charges and the reasons for the disciplinary action must be furnished. The appointing/removing authority bears the burden of justifying its action.

Permitting consideration, for the purpose of assessing punishment, of charges not brought within 90 days would expose policeman and fireman to discharge for any infraction of any rule. Whenever there is an adjudicated violation--and almost everyone can be found guilty of violation of some rule or regulation--the appointing/removing authority could 'justify' and discipline, including discharge, on the basis of the offender's 'whole file'.

The statutory language and legislative purpose renders the sentencing analogy inapposite. Permitting an appointing/removing authority to justify the imposition of discipline on the basis of the 'whole file'--not charged and which Could not be charged because antedating 90 days--would be to allow it to say one thing and do another; that is, to allow it to say that Konyha was discharged for missing the roll call but, since discharge is clearly excessive and cannot be 'justified', to allow it to in fact discharge him because of general dissatisfaction with his performance, in derogation of his legislatively granted job security.

III

The circuit court relied on Town of West New York v. Bock, 38 N.J. 500, 186 A.2d 97 (1962) as supporting the Commission's consideration of Konyha's 'whole file'. ⁸ Bock, a fireman, was formally charged with tardiness on three separate, but recent (within the preceding 3 to 4 weeks) instances. Evidence was...