Opinion
No. 77-511
Decided September 22, 1977.
Police chief dismissed police officer who had impermissibly obtained information for use on sergeant's examination. Civil service commission reinstated officer with a period of suspension and, on review, district court affirmed civil service order, and city and chief of police appealed.
Affirmed
1. CIVIL SERVICE — Commission — Modifies Penalty — Police Officer — Issue for Court — Abuse of Discretion — Administrative Control — One Factor. Where civil service commission has modified the penalty imposed in a disciplinary action against a police officer, the question on court review is limited to whether the Commission abused its discretion in that respect, and the problem of administrative control of the department is only one factor, albeit an important one, in resolving that question.
2. Determination — Commission — Abuse of Discretion — Penalty Imposed — — Police Officer — Factors for Consideration — Stated. In determining whether civil service commission abused its discretion in modifying penalty imposed in disciplinary action against a police officer, factors to be considered, in addition the problem of administrative control of the department, are the nature of the violation, the service record of the officer, and such other circumstances as may bear on the issue in each particular case.
3. ADMINISTRATIVE LAW AND PROCEDURE — Determination — By Commission — Propriety — Penalty Imposed — Information — In Files — Properly Considered — — Available — Both Parties — Absence from Record — No Reversal. In assessing propriety of penalty imposed upon police officer in disciplinary action, a civil service commission is entitled to take administrative notice of information in its records or which is otherwise available to it because of its function, and while this information should ordinarily appear in the record on appeal before the Commission's reliance thereon may be approved, in a situation where the same information was available to the opposing party and the accuracy of the Commission's finding as to it was unchallenged, the Commission's finding issued partly in reliance thereon will not be set aside.
Appeal from the District Court of Adams County, Honorable Abraham Bowling, Judge.
Leland M. Coulter, Charles H. Richardson, for petitioners-appellants.
Hardee Greener, P.C., Clell W. Hardee, for respondents-appellees The Civil Service Commission of the City of Aurora, consisting of T. H. Pickens, Chairman; Adolph Turkowski, Vice-Chairman; and Joan R. Iverson, Commissioners.
Leonard M. Chesler, Stanley Erickson, Jr., for respondent-appellee Tony Joseph Rodriguez.
Appellants, City of Aurora, the Chief of Police, the Police Department, and the City Manager, appeal from a judgment of the district court in a C.R.C.P. 106(a)(4) proceeding which judgment affirmed an order of the Aurora Civil Service Commission reinstating Officer Tony Rodriguez with the Police Department. We affirm.
The Commission's findings reflect the following facts. In December of 1973 and February of 1974, Rodriguez, who had a 10-year record of unblemished service with the Police Department, took a written examination administered by the Commission for the position of sergeant. Both times he failed. Pursuant to Commission policy, Rodriguez arranged for an individual review session concerning the exams. During the session a representative of the Commission read aloud the questions which Rodriguez had missed on the previous examination, along with his incorrect answers. Commission policy directed that no written summary or recording of the session be made. In March Rodriguez took and passed a third exam.
A subsequent investigation disclosed that, during the review session, Rodriguez had worn a concealed electronic surveillance device which relayed the conversation to a tape recorder operated by another officer located outside the building. Pursuant to the city charter, the Chief of Police initiated disciplinary action against Rodriguez and ordered his dismissal based on findings that he had violated the following rules of the Department:
(1) "Availability When on Duty"
"Members on duty shall not conceal themselves except for some police purpose. They shall be immediately and readily available to the public during duty hours."
(2) "Standard of Conduct"
"Members and employees shall conduct their private and professional lives in such a manner as to avoid bringing the Department into disrepute."
The decision of the Chief of Police was reviewed and approved by the City Manager.
Pursuant to the city charter and at Rodriguez's request, the Commission conducted a hearing to review the dismissal. During the hearing the specification concerning "Availability When on Duty" was dismissed by stipulation of the parties, and the Commission affirmed the Police Chief's finding that Rodriguez had violated the regulation governing an officer's conduct. However, the Commission modified the disciplinary action taken by the Chief of Police and ordered that Rodriguez be reinstated but demoted to the rank of Agent and suspended for 90 days without pay.
The principal question presented for our review is whether, in view of this court's decision in Thomas v. Denver, 29 Colo. App. 442, 487 P.2d 591 (1971), the Commission abused its discretion in modifying the disciplinary action taken by the Chief of Police.
Insofar as pertinent here, the provisions of the Aurora City Charter are the same as those of Denver, considered in Thomas, supra. Each charter grants the Chief of Police the power to discipline members of the department. After a disciplinary action is approved by the City Manager, it is subject to review by the Commission. The provision governing review of the Commission provides:
"In reviewing the disciplinary action, the Civil Service Commission shall give due weight to the necessity for maintaining administrative control of the department by the Chief of said department. The Commission shall view the full record before it and shall make written findings affirming, reversing or modifying disciplinary action, in whole or in part."
In Thomas an officer of the Denver Police Department was found guilty of both conduct prejudicial to police discipline and failure to disclose information which could have been of assistance to the police department in the investigation of a crime. This court held that since the misconduct of the officer was directly counter to the basic functions of a police department, the mitigation of the police chief's disciplinary action by the Commission, of necessity, represented a "direct disregard of the need of the chief to maintain administrative control." Accordingly, the Commission's decision to reinstate the officer after he had been terminated by the police chief was set aside.
[1,2] We recognize that Thomas may be construed, as the City urges, to stand for the proposition that the necessity of maintaining administrative control of the department requires the Commission to affirm the penalty imposed by the chief of police in each case where it determines that an officer has, in fact, violated department regulations. This is because any department regulation may be urged as supporting the basic functions and primary purposes of the police department. However, strict adherence to that concept would render the Commission's power to review meaningless. Thus, we hold that where, as here, the Commission has modified the penalty imposed in a disciplinary action, the question on review is limited to whether the Commission has abused its discretion, and the problem of administrative control of the department must constitute only one factor, albeit an important one, in resolving this question. Other factors consist of the nature of the violation, the service record of the officer, and such other circumstances as may bear on the issue in each particular case. To the extent that Thomas is inconsistent with the views as express here, we overrule that decision.
Based on its findings that for 10 years Rodriguez had "performed his duties as a police officer . . . in a professional and effective manner," that most of the members of the Department eligible to take the promotional exam had shared in the knowledge wrongfully obtained by Rodriguez, and that the punishment was "not consistent with punishment heretofore meted out for violations of the rules and regulations of the Department," the Commission concluded that the penalty imposed upon Rodriguez was too severe. The City contends that Rodriguez's service record, together with the fact that Rodriguez shared the information with other candidates for sergeant, are not sufficient mitigating factors to justify the Commission in modifying the penalty imposed by the Chief of Police. The City's argument ignores the additional finding of the Commission that the penalty imposed was not consistent with disciplinary action taken by the Chief of Police for other violations of the regulations of the Department. This finding, which indicates that similar misconduct was not considered by the chief necessarily to require termination, demonstrates that the Commission gave due weight to his need for maintaining administrative control of the department, and that it concluded that administrative control would not be imperiled by modification of the penalty.
[3] Further, the fact that the Commission took official notice of inconsistent disciplinary action not appearing in the record before us does not change our conclusion. The record indicates that another candidate who was successful in the Sergeant's exam was not disciplined for using the information obtained by Rodriguez. As to the other examples of inconsistent disciplinary action, the Commission is entitled to take administrative notice of information in its records or which is otherwise available to it because of its function. See generally, 2 K. Davis, Administrative Law Treatise, § 15.01 et seq.; cf. Sakal v. Donnelly, 30 Colo. App. 384, 494 P.2d 1316 (1972). While this information should ordinarily appear in the record on appeal before we may approve the Commission's reliance thereon, see Geer v. Stathopulos, 135 Colo. 146, 309 P.2d 606 (1957), nevertheless, where, as here, the same information is obviously available to appellants but they do not challenge the accuracy of the Commission's finding either in the district court or in this court, we will not set aside the Commission's finding.
Looking then to all three factors relied upon by the Commission in mitigating the penalty imposed by the Chief of Police, we are unable to conclude that the Commission abused its discretion. Hence, we affirm the judgment of the district court.
JUDGE PIERCE and JUDGE VAN CISE concur.