Williams v. Mayor and Bd. of Aldermen of City of Atlanta

• Decision Date: 09 July 1968
• Docket Number: 2,No. 43671,Nos. 1,3,43671,s. 1
• Parties: B. M. WILLIAMS v. MAYOR & BOARD OF ALDERMEN OF the CITY OF ATLANTA et al
• Court: Georgia Court of Appeals

Page 239

163 S.E.2d 239

118 Ga.App. 271

B. M. WILLIAMS v. MAYOR & BOARD OF ALDERMEN OF the CITY OF ATLANTA et al.

No. 43671.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 9, 1968.

Rehearing Denied July 31, 1968.

Certiorari Denied Sept. 24, 1968.

Beryl H. Weiner, Atlanta, for appellant.

Henry L. Bowden, Ralph C. Jenkins, Atlanta, for appellee.

Syllabus Opinion by the Court.

EBERHARDT, Judge.

Appellant, an Atlanta policeman, was tried before the Atlanta police committee of the board of aldermen on charges of violating rules and regulations of the police department. It was charged, inter alia, that appellant violated Rule 5 of the rules of the Internal Security Division of the department by refusing to give the name of an informer to a lieutenant of the division after having previously advised him of information received from the informer of wrongdoing on the part of certain police officers. Rule 5 provides that each member of the department must furnish the division (concerned with the investigation of conduct, honesty, morale, etc. of policemen) with all information in their possession which the division determines to be required in its investigation of any matter involving the department.

Upon being found guilty and discharged by the committee, appellant filed his application for certiorari in the Superior Court of Fulton County. This appeal follows from the overruling of that application. Held:

1. Appellant admits that he refused to identify the informer but contends that because of public policy he was not required to do so and that there was therefore no authority for his discharge which, under Deason v. DeKalb County Merit System Council, 110 Ga.App. 244, 138 S.E.2d 183, must be held to be arbitrary, indiscriminate and void.

While as a general rule the government may be privileged to refuse to make public the identity of informers who furnish information relating to violations of law (see Code § 38-1102; Morgan v. State, 211 Ga. 172, 84 S.E.2d 365; Anderson v. State, 72 Ga.App. 487, 34 S.E.2d 110; Crosby v. State, 90 Ga.App. 63, 82 S.E.2d 38; Roddenberry v. State, 90 Ga.App. 66, 82 S.E.2d 40; Hodges v. State, 98 Ga.App. 97(7), 104 S.E.2d 704 (rev'd on other grounds, 214 Ga. 614, 106 S.E.2d 795; Staggers v. State, 101 Ga.App. 463, 465(5), 114 S.E.2d 142; McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 82; 8 Wigmore, Evidence § 2374 (McNaughton rev. 1961); 58 Am.Jur., Witnesses § 534 (1967 Cum.Supp.); Annot., 76 A.L.R.2d 262), we have been cited no authority to sustain the proposition that a police officer is privileged to refuse to disclose the identity of an informer to his superior officers in the internal workings of the police department. If the purpose of the privilege is to protect the public interest in effective law enforcement (see Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; People v. McShann, 50 Cal.2d 802, 330 P.2d 33; State v. Hardy, 114 So.2d 344 (Fla.App.)), or, as Wigmore suggests, if it applies 'wherever the situation is one where without this encouragement the citizens who have special information of a violation of law might be deterred otherwise from voluntarily reporting it to the appropriate official' (8 Wigmore, supra, at 768), the record fails to demonstrate any need for the extension of the rule to the facts of this case. Nothing to the contrary appearing, we would assume that the public interest in effective law enforcement is better protected by making full disclosure of all information relating to supposed wrongdoing of police officers to the division created to investigate such matters. Accordingly the 'informer privilege' does not protect appellant against Rule 5, which is but a restatement of the policeman's obligation under the general law.

2. (a) Appellant complains of the fact that the hearing before the Police Committee was held at night, or at an 'unseemly hour.' While most people would prefer getting their work done during the day, or on a day shift, there is nothing illegal about holding a night session of court or of an administrative body and this does not affect the validity of its judgment. Farmer v. State, 91 Ga. 720(3), 18 S.E. 987. It appears that the committee had been in session, disposing of other cases or matters during the preceding evening, and reached appellant's case in due course about ten minutes of 1:00 A.M., when it was called for hearing.

(b) At the beginning of the hearing before the Police Committee the following colloquy occurred:

'Mr. Edwards: I would like to make a motion at this time. This is the first time in my practice of law that I have ever been in a hearing to be started at ten minutes to 1:00 in the morning. I feel like it is really an imposition on everybody, including the members of the Board, to start a hearing at this time. 'The Chairman: Mr. Edwards we have all of the people here, they have sat with us all this long, and if the committee has no objection, we are going to dispose of this matter. 'Mr. Edwards: All right, sir, I would like to ask for the rule of all of the witnesses, Mr. Chairman.'

It is contended that this colloquy amounted to a motion for continuance and that the decision by the committee to proceed was in effect overruling the motion.

This contention is without merit. In order for a party successfully to complain of a ruling which he contends to have been a denial of a continuance, he must be able to show a formal and proper motion in the record as the basis of the contended-for error, and this rule is technically construed. Trammell v. State, 183 Ga. 711(1), 189 S.E. 529; Atlantic Coast Line R.R. Co. v. Cohn & Co., 4 Ga.App. 854(1, 2), 62 S.E. 572; Leverett, Hall & Christopher, Georgia Procedure & Practice § 14-9, p. 325 (1957). The colloquy here appears to be similar to that occurring in Kittle v. Brown, 28 Ga.App. 212, 213(2a), 110 S.E. 740, where "upon call of the case, the defendant's counsel stated that his client was sick and unable to attend court and that he desired to make a motion to continue said case," the court observing that 'the defendant's counsel made no motion for a continuance, but merely stated that he desired to make such a motion.' Not only was no motion for continuance actually and formally made in this case, but no reason was given why proceeding with the hearing at that hour, albeit unusual, would harm appellant. Since there was no formal and proper motion for continuance showing harm, no error appears in this connection. And compare Farmer v. State, 91 Ga. 720, 18 S.E. 987, supra, holding that a night session of court is not illegal.

3. There is no merit in the contention that the trial court's sustaining of appellant's exception number 11 to respondents' answer to the petition for certiorari established as the law of the case that the conduct of the proceedings was illegal. The thrust of the exception does not go to the answer as a whole, and we construe the order sustaining the exceptions as striking only the paragraphs setting forth affirmative matters but leaving intact the paragraphs admitting or denying paragraphs of the certiorari petition.

4. Error is enumerated upon the allowing of the Chief of Police and the city's attorney to remain in executive session with the committee, contrary to the department's Rule 11, which provides: 'In the trial of any member of the Department charged with the violation of the rules and regulations of the Department, after testimony and argument have been heard, the room shall be cleared, and the committee shall go into executive session before the decision of the committee is...