Righter v. Civil Service Commission of City of Adrian, 519

• Decision Date: 20 September 1965
• Docket Number: No. 519,No. 3,519,3
• Citation: 1 Mich.App. 468,136 N.W.2d 718
• Parties: Joseph C. RIGHTER, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF ADRIAN, Defendant-Appellee. Cal
• Court: Court of Appeal of Michigan — District of US

Page 718

136 N.W.2d 718

1 Mich.App. 468

Joseph C. RIGHTER, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF ADRIAN, Defendant-Appellee.

Cal. No. 519.

Court of Appeals of Michigan, Division No. 3.

Sept. 20, 1965.

Kelman, Loria, Downing & Craig, Detroit, for appellant.

Edward N. Mack, Adrian, for appellee.

Before GILLIS, P. J., and T. G. KAVANAGH and QUINN, JJ.

GILLIS, Judge.

On April 18, 1964 appellant Joseph C. Righter, a 55 year-old police sergeant from the city of Adrian, was called before the Adrian city administrator and told that he had been observed visiting a certain single woman, who will hereinafter be referred to as Miss X, 'at such hours and in such a manner as to bring discredit upon the police department.' Appellant was questioned by the city administrator as to whether he had frequently been to Miss X's home in the late hours of the evening and in the early hours of the morning. Appellant stated that the only time he ever went to the home of Miss X was to pick up some mail which he delivered to the post office for her and he denied that his actions were improper.

The answers of appellant were contrary to information set forth in a written report previously given to the city administrator by other law officers who had been assigned by the administrator to conduct an investigation.

Appellant was then advised that unless he resigned within 24 hours, he would be discharged from the department. Upon his refusal to resign appellant was served with a notice of discharge which alleged that on at least eleven different occasions between March 24, 1964 and April 14, 1964, during the late evening and early morning hours, he sought the company of a female person, who was not his wife or a member of his family, using devious and surreptitious actions, which constituted substantial failure of good behavior, contrary to section 14 of act 78, P.A.1935, as amended, hereinafter referred to as the municipal civil service act. C.L.S.1961, § 38.514 (Stat.Ann.1958 Rev. § 5.3364). The notice did not specifically charge any immoral conduct.

Appellant requested a hearing before the Adrian civil service commission and was furnished a bill of particulars enumerating the dates and times of the alleged visits. On May 5, 1964 the three-member civil service commission conducted a hearing in which numerous witnesses testified. Their testimony established that all of the visits were made in the evening when the sergeant was off duty. Appellant contended that Miss X was an elderly spinster, whose age he approximated at 60 years, for whom he performed heavy chores which she was unable to do. Testimony further disclosed that some of the visits were made on the sergeant's day off but did not commence until late evening.

Appellant has been married for 35 years. His wife and 30 year-old son testified that they knew he occasionally did some work for the woman. Miss X testified that appellant came to her home, moved furniture, moved boxes from the cellar to the upstairs portion of the house, took her to the post office or bank and drove her around to different places where she had to pay bills. She explained that she did not own or drive an automobile. Appellant was not paid for these services, but testified that he expected to inherit from her. Other witnesses testified that appellant generally would park a considerable distance away from the woman's house and on one occasion when he parked in front of her house, he ducked out of sight when another car approached.

The woman lived within view of the county jail. A deputy sheriff testified that he sometimes 'teased' appellant by stepping out of the county jail when he observed appellant going toward Miss X's house. The witness stated he would stand where appellant was able to see him and thereafter appellant would continue past the woman's house until the witness went inside the jail, whereupon appellant would turn around and walk back to the woman's house. Testimony further disclosed that the actions of the appellant caused considerable gossip among sheriff's department personnel.

The defendant civil service commission upheld the discharge but made no specific findings of fact. On appeal the circuit judge affirmed the commission. The four issues before this Court are:

1. Was the civil service commission required to render findings of fact and conclusions of law?

2. Did the conduct of appellant constitute a 'failure of good behavior'?

3. Could appellant be discharged without forewarning and an opportunity to discontinue the disapproved behavior?

4. Was the penalty imposed excessive and improper as a matter of law?

1. Appellant contends that section 7 of the State administrative procedure act, C.L.S.1961, § 24.101 et seq. (Stat.Ann.1961 Rev. § 3.560(21.1) et seq.), which requires findings of fact and conclusions of law, applies to the Adrian...