Wiggins, In re, 54926

• Decision Date: 18 January 1978
• Docket Number: No. 54926,No. 1,54926,1
• Parties: In re Otis L. WIGGINS
• Court: Georgia Court of Appeals

Page 290

242 S.E.2d 290

144 Ga.App. 707

In re Otis L. WIGGINS.

No. 54926.

Court of Appeals of Georgia, Division No. 1.

Jan. 18, 1978.

Rehearing Denied Feb. 7, 1978.

Moore & Szczepanski, Edward W. Szczepanski, Columbus, for appellant.

Eugene Hardwick Polleys, Jr., Lennie F. Davis, Columbus, for appellee.

BELL, Chief Judge.

The appellant, a Columbus police officer, appeals from an order of the superior court sustaining his dismissal for conduct unbecoming an officer and for falsification of reports. The factual basis for these charges arose out of an altercation in a tavern that occurred on September 30, 1976.

Immediately following the incident, on October 1, 1976, an internal police department investigation was conducted in which witnesses were interviewed to include the appellant. The investigation was completed on October 14, 1976 and appellant was notified in writing of the results and formally charged with the above violations of the "Police Manual." At this same time he was given an opportunity by the chief of police to respond thereto at a scheduled interview with the latter on October 21, 1976. The appellant was notified by letter on October 21, 1976 that he was dismissed from the Columbus Police Department effective that date for the violations noted in his October 14, 1976 letter. Appellant was advised of his right to appeal to the personnel review board. An appeal was filed. At this hearing all the witnesses who were interviewed in the internal police department investigation were called and they testified under oath, and appellant was afforded an opportunity to cross examine them. The chief of police also testified at this trial type hearing. The personnel review board sustained the dismissal. Appellant then petitioned the superior court for a writ of certiorari. The court sanctioned the writ and the personnel board answered. The court after a hearing made findings of fact and conclusions of law and overruled the petition and sustained the decision of the personnel review board. Held :

1. At the police department investigation appellant was not confronted by any witness who gave testimony against him and was not permitted to cross examine these witnesses prior to the date of his discharge on October 21, 1976. It is on this factor that he contends that he was denied due process of law under our Federal and State Constitutions. While he was not granted a hearing prior to the initial discharge, he was granted a trial type hearing on his appeal before the personnel review board where he was confronted by the witnesses and afforded the opportunity to cross examine the witnesses and to offer evidence in his own behalf. In Aycock v. Police Committee, 133 Ga.App. 883, 212 S.E.2d 456 we held, citing Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, that due process was not violated by the failure to grant a trial type hearing before rather than after an adverse personnel action was taken against an Atlanta police officer. This rule applies here and the trial court correctly concluded that appellant was not denied due process by the failure to grant him a hearing prior to the dismissal action taken against him by the chief of police.

2. Appellant also contends that he was discharged in violation of Section 16B-10-6 of the Columbus Code. It provides in part " . . . Dismissals of permanent employees shall be effective only after the person to be discharged has been...