Umholtz v. City of Tulsa

• Decision Date: 24 May 1977
• Docket Number: No. 48401,48401
• Citation: 565 P.2d 15,1977 OK 98
• Parties: John A. UMHOLTZ and Clarence Beard, Appellees, v. CITY OF TULSA, Oklahoma, a Municipal Corporation, and Jack Purdie, Chief of Police, Appellants.
• Court: Oklahoma Supreme Court

Page 15

565 P.2d 15

John A. UMHOLTZ and Clarence Beard, Appellees, v. CITY OF TULSA, Oklahoma, a Municipal Corporation, and Jack Purdie, Chief of Police, Appellants.

No. 48401.

Supreme Court of Oklahoma.

May 24, 1977.

Phil Frazier, Tulsa, for appellee John A. Umholtz.

Frank M. Hagedorn, Tulsa, for appellee, Clarence Beard.

Waldo F. Bales, City Atty., by Imogene Harris, Asst. City Atty., Tulsa, for appellants.

DAVISON, Justice:

Appellant, City of Tulsa, appeals from the granting of a writ of prohibition by the District Court of Tulsa County, which prohibited the City from suspending two officers of that City's police force without providing the officers with a presuspension review and an opportunity to be heard.

The City attacks the granting of the writ of prohibition on four grounds:

1. Prohibition was inappropriate because it prohibited an administrative or ministerial act, and not a judicial or quasi-judicial act.

2. Prohibition was inappropriate because there was an adequate remedy at law.

3. The court erred in requiring the city to utilize procedures approved by the Board of Commissioners in a resolution, before suspending, for approval of the procedures in a resolution did not have the effect of law.

4. Even assuming the procedures set forth in the resolution of the Board of Commissioners were law, the City substantially complied with the procedures set forth in the resolution.

The facts out of which the controversy arose are as follows: On July 17, 1974, John Umholtz and Clarence Beard, plainclothes officers of the Tulsa police force, who at the time were driving an unmarked car, attempted to stop the car of a young married couple who were on their way to the maternity ward of a Tulsa hospital. In the process of attempting to stop the vehicle, a scuffle allegedly took place, and one of the officers discharged a firearm.

Several complaints were filed against the officers on the day of the incident, and the Internal Affairs Division of the Tulsa Police Department conducted an investigation. On August 28, 1974, more than a month after the incident, both officers were notified that they were being suspended without pay. Officer Umholtz was suspended for a period of ten days, and Officer Beard was suspended for a period of twenty days. Shortly after being notified of their suspension, the officers went to District Court seeking a writ of prohibition, which was subsequently granted. In granting the writ, the court prohibited the City from suspending plaintiffs without granting to them, at a fixed time and place, an opportunity to review and rebut any citizen's complaint made against them and to be heard, and further prohibited the withholding of plaintiffs' pay for the period of suspension.

In its finding of facts, the District Court found that the Board of Commissioners of Tulsa had passed a resolution in 1973 for the purpose of handling citizens' complaints against police officers and provided an investigative procedure for handling those complaints. The resolution provided a procedure whereby officers would be given notice of a complaint made against them and a time and place arranged to review the complaint. Among other things, the court also found that the administrative office of the Police Department of the City of Tulsa failed to comply with the aforesaid procedure, set forth in the resolution prior to suspending the plaintiffs.

I

A writ of prohibition is an extraordinary remedy which is generally inappropriate unless three elements ¹ are present these elements are:

1. A court, officer, or person has or is about to exercise judicial or quasi-judicial power.

2. The exercise of said power is unauthorized by law.

3. And the exercise of that power will result in injury for which there is no other adequate remedy.

Appellant's first attack upon the issuance of the writ asserts that the writ should not have been issued because no judicial or quasi-judicial powers were being exercised by the City, as the act of suspension was an administrative or ministerial act. We do not agree.

In Gray v. Board of County Commissioners, Okl., 312 P.2d 959 (1957), this Court stated:

"A quasi-judicial duty is one lying in the judgment or discretion of an officer other than a judicial officer."

In Thompson v. Amis, 208 Kan. 658, 493 P.2d 1259 (1972), the Supreme Court of Kansas set forth a definition of "quasi-judicial" which we cite with approval. At page 1263 of that decision, the Kansas Court stated:

" * * * quasi-judicial is a term applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of (a) judicial nature."

Officer Umholtz and Officer Beard were not summarily suspended. Rather, they were suspended, an investigation was conducted by the Police Department, and it was only after such investigation that the decision to suspend them was made. Under these facts, we hold that the Department, in suspending the officers, was engaged in a quasi-judicial function and exercising a quasi-judicial power.

II

Having determined that the power being exercised by the Police Department was quasi-judicial in nature, we consider whether the City's exercise of the quasi-judicial power was authorized. In discussing this issue, we will divide our analysis into two portions. First, we will discuss the City's power under its Charter and under a resolution of the City's Board of Commissioners. Secondly, we will discuss the Constitutional requirements of Due Process.

Section 8, Chapter 16, of the Charter of the City of Tulsa provides:

SECTION 8. SUSPENSION, REMOVAL AND DEMOTION.

"All officers and employees in the classified service shall hold their respective positions during good behavior regardless of changes of City Officials or City Administrations and shall be suspended without pay, demoted or removed from the same only for good and sufficient cause.

Persons in the classified service who are suspended without pay for more than ten (10) days, removed, or demoted, shall be notified of the specific cause thereof in writing within five days thereafter. A copy of such statement of cause shall be filed with the Personnel Director. Within ten (10) days from the receipt of such notice, the person affected may make a written request to the Personnel Director for a hearing before the Commission, and the Commission shall hold a public hearing within twenty (20) days after the filing of the request therefor. If such person shall fail to request a hearing before the Commission as provided herein his suspension without pay for more than ten (10) days, removal or demotion shall be final.

In the hearing upon a discharge or other disciplinary action before the Commission, not less than four members of the Commission shall sit and participate. The City Attorney or one of his assistants shall present the charges upon which the discharge or disciplinary action is based. The Commission shall rule upon the question of admissibility of evidence, competency of witnesses, and any other question of law. The employee may represent himself or be represented by counsel or person of his own choosing. The hearing shall be informal and shall be conducted in accord with the rules of evidence generally followed before administrative tribunals, and without formal or technical adherence to those rules which prevail in a court of law. The burden of proof shall be upon the disciplinary authority from whose action the appeal is taken and no disciplinary action shall be approved unless sustained by a preponderance of the evidence.

If after the hearing before the Commission the person is found to be suspended, removed, or demoted without adequate cause he shall be restored to his former position without loss of pay. If after hearing the evidence, the Commission shall find cause for disciplinary action it may approve or modify the action taken by the disciplinary authority, provided any right of appeal to the Courts shall not be abrogated. It shall be the duty of the Commission to make and render in writing its findings of facts and its decision thereon.

A department head may for misconduct, suspend an employee without pay for a period not to exceed ten (10) days for any one offense and not to exceed twenty (20) days in any calendar year. The department head shall give written notice of such suspension to the Personnel Director. There shall be no appeal from such action by a department head.

No person in the classified service shall be suspended, removed, or demoted because of his race, creed, color, religious or political beliefs or affiliations, except when such person advocates or belongs to an organization which advocates the overthrow of the government by force or violence."

We first note that the Charter provision clearly anticipates and provides for suspension of officers and employees prior to any notice of hearing. Under the Charter provision, Officer Umholtz, who was suspended for ten days, would not be entitled to a hearing either before or after his suspension, while Officer Beard, who was suspended for twenty days, would be entitled to a post-suspension hearing. Nothing in the Charter requires notice and review of a complaint prior to suspension. We thus conclude that the City Charter does not require such notice or review.

We next consider the effect, if any, of a resolution passed by the Board of Commissioners It is equally clear that the resolution was intended to be nothing more than a public announcement of, and a strong endorsement of procedures for investigating complaints against Police Department officers and employees, which were prepared and provided by the Police Department. The resolution reads in part:

in 1973. ² There can be no doubt that the intent of the City was to adopt a resolution and not enact an ordinance. The document is termed a resolution, the first four paragraphs of the document start with the words "whereas...