Reynolds v. Kirkland Police Commission, s. 36286

• Decision Date: 15 August 1963
• Docket Number: 36329,Nos. 36286,s. 36286
• Citation: 62 Wn.2d 720,384 P.2d 819
• Court: Washington Supreme Court
• Parties: Clem J. REYNOLDS, Appellant, v. The KIRKLAND POLICE COMMISSION composed of William Wills, Robert Gardner and Edward Oban, Commissioners, Respondents. George WILLIAMS, Appellant, v. The KIRKLAND POLICE COMMISSION and W. Wills, Ed Oban and Bob T. Gardner, as members thereof, Respondents.

Page 720

62 Wn.2d 720

384 P.2d 819

Clem J. REYNOLDS, Appellant, v. The KIRKLAND POLICE COMMISSION composed of William Wills, Robert Gardner and Edward Oban, Commissioners,

Respondents.

George WILLIAMS, Appellant, v. The KIRKLAND POLICE COMMISSION and W. Wills, Ed Oban and Bob

T. Gardner, as members thereof, Respondents.

Nos. 36286, 36329.

Supreme Court of Washington, Department 2.

Aug. 15, 1963.

Torbenson, Thatcher & Stevenson, Regal & McDonell, Seattle, for appellant.

Hall, Cole & Lawarence, Kenneth A. Cole, Joyce M. Thomas, Seattle, for respondents.

DONWORTH, Judge.

This is a consolidated appeal from orders entered by the superior court of King County affirming the temporary suspension and permanent demotion of appellants, Chief of Police Clem J. Reynolds and Police Sergeant George Williams, by the Kirkland Police Commission. Dissension within the Kirkland Police Department formed the factual foundation for the action taken against appellants.

The proceedings that led to the orders of the Kirkland Police Commission, which were affirmed by the superior court, present a tangled web, which will be set forth to the extent made possible by the record.

Sometime prior to January 17, 1961, Sergeant Williams was suspended from the Kirkland Police Department (the record does not indicate specifically who suspended him). This suspension was a result of complaints against Sergeant Williams by some of the officers with whom he worked. January 17, 1961, an informal hearing was held before the police commission, where several officers, notably the three other police sergeants on the force, made oral complaints to the commissioners, which Sergeant Williams was given an opportunity to refute. At the conclusion of the testimony, the chairman adjourned the meeting, stating that the commission would weigh the evidence and make a recommendation.

January 26, 1961, the police commission held a meeting attended by the commissioners and Police Chief Reynolds. The chairman stated that they could not find enough evidence to warrant the dismissal of Sergeant Williams. The suspension given was sustained to that date, but the commissioners said they would recommend to the mayor that Sergeant Williams be reinstated. The commissioners also expressed to Chief Reynolds that they believed that he should be able to clear up any trouble within the department, and that he was expected to do so.

The mayor, on January 26, 1961, sent a letter to Chief Reynolds recommending that Sergeant Williams be reinstated and instructing that the recommendation be carried out. Sergeant Williams was reinstated by Chief Reynolds.

February 16, 1961, another meeting of the police commission was held. At that meeting, chairman Wills stated: (1) that the meeting was called to discuss the current morale problem which had existed for the past six weeks; (2) that it was his belief that the problem centered around two persons--Chief Reynolds and Sergeant Williams; (3) that the members of the commission had had many discussions on the problem in an attempt to come up with a solution, but to no avail, as the problem was becoming more acute; and (4) that the time had come when the commission had to make a recommendation to the mayor to be carried out to the best of his judgment for the welfare of the police personnel and the city of Kirkland. The chairman called for discussion, whereupon it was moved and seconded that the mayor request the immediate resignation of Chief Reynolds and Sergeant Williams. The three commissioners voted in favor of the motion, and the meeting adjourned.

On this same day, February 16, 1961, the mayor sent separate letters to appellants suspending them and stating in each letter, as the cause for suspension, 'We see no other means by which to correct department morale.'

Appellants both demanded a hearing by the commission on their respective suspensions.

March 4, 1961, appellants were sent notices entitled, Notice of Hearing and Specification of Charges. The notice stated that the hearing would be held March 13, 1961, and that it would be 'confined to whether such suspension was made for religious or political reasons, or whether it was, or was not, made in good faith for cause.'

The notice to Sergeant Williams stated:

'You are further notified that the reason given for such suspension are as follows:

'1. Incompetency, inefficiency, inattention to or dereliction of duty;

'2. Conduct prejudicial to the morale and respect of fellow officers and conduct subversive to the good order and discipline of the police department;

'3. Other acts or failure to act which, in the judgment of the mayor, and Police Commission are sufficient to show that you are unsuitable to be employed in the public service in the capacity of a sergeant of said police department.'

A similar letter was sent to Chief Reynolds. Comparing the reasons given for suspension with those set forth in regard to Sergeant Williams, only the first and third were given (the letter in regard to Chief Reynolds said, 'in the capacity of Chief of Police'). These reasons for suspension were given by the police commission 18 days after the suspensions made by the mayor had become effective.

March 9, 1961, some 22 days after the suspensions, appellants were sent, by the police commission, a 'Supplemental Specification of Charges,' which, by general and specific allegations, purportedly specified in detail the charges which constituted the reasons given in the notices of March 4, 1961.

Sometime prior to the hearing of March 13, the mayor offered to compromise the actions against appellants by reinstating appellant Williams as a patrolman and appellant Reynolds as a sergeant. This was with the approval of the commissioners. The offers were refused.

The hearing, beginning on March 13, 1961, lasted two days. At its conclusion, the police commission made findings and affirmed the order of the mayor as modified, such modification being that the suspension was to cease on April 1, 1961, and appellant Williams was demoted to the grade of patrolman and appellant Reynolds was demoted to the grade of captain.

It is the primary contention of appellants that they were denied a fair hearing and a procedural due process. They contend that the commissioners acted as both accuser and judge; that, after the preliminary investigations, the commissioners had determined the problem and the solution; that the case was prejudged; and that the proceedings after the suspension were only to justify a predetermined result.

In Yantsin v. City of Aberdeen, 54 Wash.2d 787, 345 P.2d 178 (1959), we held:

'A police officer has no property right in public employment which is protected by the due process clause provisions in our state and Federal constitutions. As said in Ludolph v. Board of Police Commissioners, 1938, 30 Cal.App.2d 211, 216, 86 P.2d 118, 121.

"The right to an office or of employment with the government or any of its agencies is not a vested property right, and removal therefrom will not support the question of due process." P. 788 of 54 Wash.2d, p. 179 of 345 P.2d.

Although holding that due process had no applicability, we further stated:

'This is not to say that a police officer does not have rights under civil service that will be protected, but they are only the rights given to him by the legislation creating the civil service system under which he is employed. * * *'

The rights of civil service employees pertaining to their removal, suspension, or demotion include, at least, that the procedure, prerequisites, and conditions set forth in the governing statute, charter, or ordinance be followed. In the instant case, the initial inquiry is what statute, charter, or ordinance governs. Strangely enough, there is no quick answer.

Laws of 1937, chapter 13 is entitled 'Civil Service in Police Departments.' Section 1 provides:

'The provisions of this act shall have no application to cities and towns which at the present time have provided for civil service in the police department or which shall subsequently provide for civil service in the police department by local charter or other regulations which said local charter or regulations substantially accomplish the purpose of this act, nor to cities having a police force of not more than two persons including the chief of police.' (RCW 41.12.010)

In Yantsin v. City of Aberdeen, supra, with reference to the city ordinance there in issue, and the above statute, this court stated, at page 791 of 54 Wash.2d, at page 180 of 345 P.2d:

'Obviously Aberdeen had provided for civil service in its police department at least five years before the statute was enacted. It is, therefore, not necessary to determine, as in the case of cities which subsequently provided 'for civil service in the police department by local charter or other regulations' whether 'said local charter or regulations substantially accomplish the purpose of this chapter."

In May, 1953, the city of Kirkland enacted ordinance No. 643, entitled:

'An ordinance of the city of Kirkland, Washington, creating and establishing a police commission providing for regular meetings thereof, setting its duties and creating and establishing a merit system for the police department of the city of Kirkland, providing grades and fixing a point system for promotion.'

The trial court found that 'the function of the Police Commission of Kirkland, as constituted, is not inconsistent with the purposes set forth in chapter 41.12, RCW.' Error is assigned to this finding.

After a complete reading of RCW chapter 41.12 (Laws of 1937, chapter 13, p. 23), we are of the opinion that its purpose is to establish a civil service system to (1) provide for promotion on the basis of merit, (2) give police officers tenure, and (3) provide for a civil service commission to administer the system and to investigate, by public hearing, removals, suspensions, demotions, and discharges by the appointing power to...