Rinaldi v. Civil Service Commission, City of Livonia

• Decision Date: 18 May 1976
• Docket Number: Docket No. 22152
• Citation: 69 Mich.App. 58,244 N.W.2d 609
• Parties: Charles J. RINALDI, Plaintiff-Appellant, v. CITIL SERVICE COMMISSION, CITY OR LIVONIA, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 609

244 N.W.2d 609

69 Mich.App. 58

Charles J. RINALDI, Plaintiff-Appellant, v. CITIL SERVICE COMMISSION, CITY OR LIVONIA, Defendant-Appellee.

Docket No. 22152.

Court of Appeals of Michigan.

May 18, 1976.

Released for Publication Aug. 11, 1976.

Charest, Clancy & Katulski by C. R. Charest, Livonia, for plaintiff-appellant.

Harry C. Tatigian, Livonia, for defendant-apppellee.

Before V. J. BRENNAN, P.J., and MAHER and BRITTEN, ^* JJ.

PER CURIAM.

Plaintiff, a former City of Livonia police officer, appeals a Wayne County Circuit Court's October 22, 1974 order denying superintending control and affirming the decision of defendant, Civil Service Commission of the City of Livonia, that discharged plaintiff from his position. We affirm the decision of the circuit court.

Plaintiff was accused of leaving the scene of an accident in which he was involved while off duty. This conduct caused him to be discharged by the Livonia Chief of Police. Plaintiff appealed the chief's decision to the commission.

After an extensive, three-day administrative hearing, in Janury, 1973, plaintiff's discharge was upheld by the commission. He sought, and was denied, superintending control, raising a number of issues that he has renewed on this appeal of the order denying superintending control.

I

He first contends that his discharge was based on rules and regulations that were either invalidly adopted or not adopted at all by the civil service commission. The charter for the City of Livonia, ¹ reads, in part:

'(T)he Civil Service Commission shall (1) establish and administer * * * rules and regulations governing the terms and conditions of employment and service * * * (2) establish and administer rules and regulations governing residence requirements, probation periods, service records, seniority, hours of service, work-week, vacations, leaves, time off, promotions, demotions, suspensions, removals, reinstatements, resignations, lay offs, and age limits * * * (3) make such rules and regulations, not inconsistent with this Charter, as it deems necessary and advisable for the administration of the Civil Service program * * *.' Chapter V, § 16, Subsection (b).

The charter also states:

'Any employee or officer in the classified Civil Service may be removed, suspended, or demoted by the appointing authority for cause, as shall be established by the Civil Service Commission, by an order in writing stating specifically the reasons therefor. * * *' Chapter V, § 16, Subsection j.

Under this authority granted in the charter, the commission had promulgated, as of the time of plaintiff's discharge proceedings, thirty-five rules and regulations. Rule 27, entitled, 'Suspensions, Demotions and Removals' delineates the causes for removals, suspensions and demotions of civil service employees and establishes procedures to be followed. Listed in Rule 27.2 are twenty-one causes, including:

'(b) Any act that would reflect unfavorably on the prestige of the city.

'(c) Violations of specific rules and regulations of their own department if not in conflict with the Rules and Regulations of the Civil Service Commission. Departmental rules must be reviewed by the Civil Service Commission before taking effect.'

Plaintiff was charged with violating commission Rule 27.2(b), above, and with violating two rules and regulations of the Division of Police found in Section 8.27 of the Division of Police Manual:

'Section 8.27. A member of the Division found guilty of violating a rule or regulation of this Division * * * or violating any one of the following listed offenses shall be subject to reprimand, suspension with resultant loss of pay, dismissed, or suffer such other lawful punishment as the Chief of Police may direct.

'8. Conduct unbecoming an officer, which shall include any act or conduct not specifically mentioned in the rules or regulations which tend to bring the Department into disrepute or reflects discredit upon the individual as an officer.

'33. Failure to report a known violation of law or city ordinance.'

The commission found that plaintiff did not violate commission Rule 27.2(b), but had violated Sections 8.27(8) and 8.27(33) of the Division of Police Rules and Regulations.

Plaintiff contends that the city charter does not permit an employee to be discharged for the violation of department or division rules alone. He contends that commission Rule 27.2(c), authorizing departments to promulgate rules and regulations concerning discharge, is a delegation of the commission's power to the Division of Police that is not allowed by the charter.

The charter clearly allows the commission to establish rules and regulations concerning discharge. There can be no successful argument here that any provisions in the charter would have prevented the commission from initially establishing on its own the particular standards of conduct that plaintiff was found to have violated. See Brady v. Detroit, 353 Mich. 243, 248, 91 N.W.2d 257 (1958). Plaintiff must show that the commission, in Rule 27.2(c), has abdicated its charter given responsibility by allowing the Division of Police to establish rules and regulations. Plaintiff has failed to make this showing.

We do not consider Rule 27.2(c) an unlawful delegation of power by the commission, for we do not consider the rule as a delegation of power at all. The rule merely allows a department to initiate the rule-making process. The commission's review and imprimatur are necessary before the proposed rules and regulations may be effective; the commission retains the power given it by the city charter. The function of the Division of Police in this instance is advisory only and involves no impermissible delegation of the commission's authority. Cf., Davis v. Imlay Township Board, 7 Mich.App. 231, 236, 151 N.W.2d 370 (1967).

Consequently, we need not decide if the city charter would ever allow the commission to delegate rule-making powers in discharge matters to the Division of Police. ²

The plaintiff argues, for the first time on appeal, that the rules and regulations of the Division of Police were never actually reviewed by the commission, as required by Rule 27.2(c), and are therefore ineffective. This assertion was not advanced below; on appeal a case will not be reviewed on a theory different from that on which it was tried. ³ E.g., Thompson v. City of Ecorse, 7 Mich.App. 492, 495, 152 N.W.2d 51 (1967).

II

Plaintiff's second ground for appeal is that the rules and regulations which he was found to have violated are too vague and fail to provide sufficient guidance on the prohibited conduct. Plaintiff cites Civil Service Commission of Mamtramck v. Pitlock, 44 Mich.App. 410, 205 N.W.2d 293 (1973), and Sponick v. Detroit Police Department, 49 Mich.App. 162, 211 N.W.2d 674 (1973), where this Court decided that 'conduct unbecoming an officer' is too vague a standard of behavior. The commission would ask us to reconsider the Pitlock and Sponick cases in light of Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), where the U.S. Supreme Court upheld Article 133 of the Uniform Code of Military Justice ('conduct unbecoming an officer and gentleman') against constitutional attack.

Pitlock expressly avoided any constitutional question, 44 Mich.App. 410, 412, 205 N.W.2d 293, 294, but held that the 'conduct unbecoming an officer or employee' rule was 'no rule at all and, therefore * * * (did) not comply with the express requirements of Hamtramck's Charter.' 44 Mich.App. 410, 413--414, 205 N.W.2d 293, 295.

Sponick clearly concluded that a regulation proscribing 'conduct unbecoming an officer' is to vague to be valid, relying on the Pitlock analysis, Supra, and on a constitutional analysis found in Avrech v. Secretary of Navy, 155 U.S.App.D.C. 352, 477 F.2d 1237 (1973). The constitutional underpinnings of Avrech, and hence, of Sponick, have been substantially removed by the Parker v. Levy, supra, opinion. The Levy opinion upheld the court martial of an Army physician under the 'conduct unbecoming an officer and gentleman's standard. The Court's opinion emphasizes three characteristics of the physician's case in rejecting the 'vagueness' challenge: (1) Prior construction of the regulation narrowed its scope and supplied 'considerable specificity by way of examples of the conduct.' 417 U.S. 754, 94 S.Ct. 2561, 41 L.Ed.2d 456. (2) The regulations 'by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain.' 417 U.S. 755--756, 94 S.Ct. 2561, 41 L.Ed.2d 457. (3) Because of the 'reasons which differentiate military society from civilian society, * * * Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter.' 417 U.S. 756, 94 S.Ct. 2561--2562, 41 L.Ed.2d 458.

Of these three characteristics of the Levy case, this Court is of the opinion that the second is clearly present here. ⁴ Fleeing the scene of an accident in which one was involved fits squarely into the prohibition of Division of Police Manual, § 8.27(8), 'conduct unbecoming an officer'. The plaintiff should reasonably have understood that his speedy departure from the accident, and his failure to return when chastised by a witness who had followed him, was conduct that was proscribed by the Division of Police rules and regulations. ⁵

We also believe that, as in the military, a police force may require a higher standard of conduct of its officers than a civilian employer demands of its employees. See Royal v. Ecorse Police & Fire Commission, 345 Mich. 214, 219--220, 75 N.W.2d 841 (1956). A police officer, intent on retaining his position on the force, can expect that he will be held to a higher standard of conduct regarding obedience to the laws and ordinances of this state than would a common civilian. The...