Yantsin v. City of Aberdeen

• Decision Date: 22 October 1959
• Docket Number: No. 35040,35040
• Parties: Nicholas YANTSIN, individually and as Assignee of Peter Butorac and John Augustine, Appellant, v. CITY OF ABERDEEN, a municipal corporation, Respondent.
• Court: Washington Supreme Court

Page 787

54 Wn.2d 787

345 P.2d 178

Nicholas YANTSIN, individually and as Assignee of Peter Butorac and John Augustine, Appellant, v. CITY OF ABERDEEN, a municipal corporation, Respondent.

No. 35040.

Supreme Court of Washington, Department 2.

Oct. 22, 1959.

John H. Kirkwood, Aberdeen, for appellant.

Lester T. Parker, Aberdeen, for respondent.

HILL, Judge.

Quaere: Does the suspension of a member of a police department under a provision in a civil service ordinance reading,

'* * * Nothing in this section shall limit the power of an officer to suspend, without pay, a subordinate for a period not exceeding thirty (30) days.'

constitute a violation of his constitutional right not to be deprived of property without due process of law?

For our present purposes, it is assumed that the suspension was without cause, and that the officer suspended had no right of review.

Answer: No. Due process of law is not applicable unless one is being deprived of something to which he has a right. Bailey v. Richardson, 1920, 86 U.S.App.D.C. 248, 182 F.2d 46, 58.

A police officer has no property right in public employment which is protected by the due process clause provisions in our state and federal constitutions. As said in Ludolph v. Board of Police Commissioners, 1938, 30 Cal.App.2d 211, 216, 86 P.2d 118, 121,

'The right to an office or of employment with the government or any of its agencies is not a vested property right, and removal therefrom will not support the question of due process.'

See also Perez v. Board of Police Commissioners, 1947, 78 Cal.App.2d 638, 650, 178 P.2d 537; Angilly v. United States, 2 Cir., 1952, 199 F.2d 642; State ex rel. Thompson v. Morton, 1954, 140 W.Va. 207, 84 S.E.2d 791.

This is not to say that a police officer does not have rights under civil service that will be protected, but they are only the rights given to him by the legislation creating the civil service system under which he is employed. Payne v. State Personnel Board, 1958, 162 Cal.App.2d 679, 328 P.2d 849; Pauley v. Noeppel, 1953, 1 Misc.2d 928, 120 N.Y.S.2d 472; Risley v. Board of Civil Service Commissioners, 1943, 60 Cal.App.2d 32, 140 P.2d 167.

Before the adoption of civil service systems or other legislative assurances of tenure, the right of the proper authorities to suspend or remove policemen, firemen, or other public employees was absolute. Civil service and other types of tenure legislation have placed restrictions on the power to suspend or remove employees who come within their purview. It is, however, clear that the rights and privileges of public employees, including their protection against arbitrary suspension or dismissal, vary from state to state, from city to city, and even from department to department within the same city, in accordance with the provisions of the particular civil service system under which they are employed. Any prerequisites and conditions relative to suspension and removal are determined by the governing statute, charter, or ordinance; and, absent such prerequisites and conditions, the city has the right to suspend or remove employees without giving any reason therefor. State ex rel. Schussler v. Matthiesen, 1946, 24 Wash.2d 590, 597, 166 P.2d 839; Darnell v. Mills, 1913, 75 Wash. 663, 135 P. 475; Price v. City of Seattle, 1905, 39 Wash. 376, 81 P. 847; Easson v. City of Seattle, 1903, 32 Wash. 405, 411, 73 P. 496.

The complaint here is that the suspension provision of the civil service ordinance does not give the police officers the protection to which they believe they are entitled; but that has no relationship to due process. Provisions giving a superior officer the right to suspend an employee, without pay for not to exceed thirty days, without the filing of charges or a hearing of any kind violate no constitutional rights. Similar provisions have been upheld in this state without discussion of due process. Schell v. City of Aberdeen, 1947, 28 Wash.2d 335, 183 P.2d 466; State ex rel. Ausburn v. City of Seattle, 1937, 190 Wash. 222, 237, 67 P.2d 913, 111 A.L.R. 418. (For a similar provision in the Washington State Patrol Act see Laws of 1943, chapter 205, § 2, p. 637 [cf. RCW 43.43.060] referred to and upheld in State ex rel. Gebenini v. Wright, 1953, 43 Wash.2d 829, 264 P.2d 1091.)

Cases are cited in the appellant's brief where the language would seem to indicate that an employee does have a property right in his job. These cases concern the rights of an individual against third persons who have wrongfully interfered with his employment, or his prospective employment. See Baun v. Lumber and Sawmill Workers Union, Local No. 2740, 1955, 46 Wash.2d 645, 284 P.2d 275; Minch v. Local Union No. 370, International Union of Operating Engineers, 1953, 44 Wash.2d 15, 265 P.2d 286; Mahoney v. Sailors' Union, 1953, 43 Wash.2d 874, 264 P.2d 1095; Jones v. Leslie, 1910, 61 Wash. 107, 112 P. 81, 48 L.R.A.,N.S., 893. Here we are concerned with the relationship of a municipality and its employees; and, as we have seen, the right of the city to suspend or remove is absolute in the absence of limitations placed thereon by civil service or other tenure guarantees.

Consideration of Other Contentions Made by Appellant.

The appellant, a police captain in the city of Aberdeen, brought this action against the city for pay lost during a fifteen-day suspension, and he sues also as the assignee of two patrolmen, each of whom lost thirty days pay in consequence of a suspension for that period. A demurrer to the second-amended complaint was sustained; the plaintiff refused to plead further, and a judgment of dismissal was entered. On the appeal therefrom, in addition to the basic issue heretofore considered, the appellant...