Opinion
No. 18,146.
Decided February 16, 1959.
Proceedings to review decision of the State Civil Service Commission, and from a judgment vacating an order of removal the Commission brings error.
Affirmed.
1. CIVIL SERVICE — Charges — Hearing — Findings. Where no findings were made with reference to any of the seven charges against plaintiff by the Civil Service Commission, and the testimony before the Commission being in conflict, it only is vested with authority to determine the facts.
2. Employee — Charges — Order of Removal — Sufficiency. Where an order of removal by the Civil Service Commission is not predicated upon any of the charges against which the employee was required to answer and defend, but upon other grounds not constituting sufficient cause for removal, such order of removal cannot be upheld.
3. Charges — Proof — Findings — Sufficiency. Where a civil service employee was charged with acts and omissions which if proved would warrant his removal, but an order of removal was made on grounds not charged, findings of fact which do not constitute sufficient cause for removal and which are not within the purview of the charges cannot be the basis for removal.
4. Commission — Procedure — Charges — Findings. The Civil Service Commission is without authority to try an employee on matters other than those charged, and to find him guilty of shortcomings with which he was not charged and to remove him for reasons not valid legal grounds for removal.
Error to the District Court of the City and County of Denver, Hon. William A. Black, Judge.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mrs. PATRICIA H. MALOY, Assistant, for plaintiff in error.
Mr. MAX P. ZALL, Mr. RONALD I. ZALL, for defendant in error.
HEREIN we refer to plaintiff in error as the Commission, to defendant in error as Conklin, the Board of Commissioners of the Soldiers and Sailors Home as the Board, and to the Soldiers and Sailors Home as the Home.
For a period of about two and one-half years prior to May 2, 1956, Conklin had served as commandant of the Home, he was in the classified civil service of the state of Colorado, held his position pursuant to and was subject to removal as provided by Article XII, Section 13, of the Constitution of Colorado.
On May 2, 1956, the Board filed with the Commission its written request that it immediately suspend Conklin as commandant of the Home, and, on hearing, that Conklin be discharged from the classified service and from his position as commandant. Reasons set forth as grounds for such requested actions were:
"1. — That Respondent has negligently and willfully failed to properly administer the State Soldiers and Sailors Home in that:
"(a) He has failed to properly control fiscal matters at the Home, there being a complete failure of supervision, proper bookkeeping and internal control, such failure resulting in a shortage of funds at the Home and loss of such funds by said Home, and by the people of the State of Colorado.
"(b) By reason of the use of heavy handed methods, abusive language and lack of self control, he has caused a large turnover in employee personnel at the Home, such turnover being detrimental to the general efficiency and proper administration and operation of the Home.
"(c) By completely failing to obtain a complete physical inventory of the assets of the Home, for his own protection, the protection of the Board, and the protection of the people of the State of Colorado.
"2. — That Respondent has willfully failed and refused to cooperate with the Board of Commissioners of the Soldiers and Sailors Home in matters concerning policy, operation, regulation and administration of the Home.
"3. — That Respondent has been willfully insubordinate to the Board of Commissioners, wholly refusing to obey and carry out the orders of said Board, and has used abusive language against and threatened with physical violence one member of said Board of Commissioners.
"4. — That Respondent has been and is incapable of, preparing or supervising the preparation of a proper and complete budget concerning operation and administration of the Home, and that his inability and failure to do so has resulted in great detriment to the Home in securing legislative appropriations for the operation and maintenance of said Home.
"5. — That by reason of abusive treatment of members at the Home by Respondent, and by further reason of a complete lack of kindness and human understanding on the part of Respondent, there has been a large turnover in the membership at the Home, such large turnover being indicative also of lack of administrative ability on the part of Respondent and being detrimental to the very purpose for which the Home was established.
"6. — That Respondent by reason of lack of proper supervision and administration of the boiler construction project at the Soldiers and Sailors Home, and misuse of authority caused the loss of money to the Home and the people of the State of Colorado, this Board never having been properly informed by Respondent of such conditions.
"7. — That Respondent has failed to make proper inspections, reports to this Board at regular Board meetings, and has failed and deliberately refused to obey and carry out instructions and policies of this Board of Commissioners."
The request for immediate suspension was denied, hearing date set and copy of the charges and notice of hearing served on Conklin, who answered denying the charges. A hearing was had, at which hearing fourteen witnesses testified at the request of the Board and eight at the request of Conklin. The hearing was completed June 7, 1956, and on July 23, 1956, the Commission entered its Findings and Order as follows:
"The Civil Service Commission is convinced that an unfortunate condition has developed at said Soldiers and Sailors Home consisting of a complete breakdown and loss of confidence between the Board of Commissioners of said Institution and the present Commander thereof, and of such a serious nature that it will be impossible to effect a satisfactory restoration of relationship between them, and that a continuation of this situation would be extremely detrimental to the future successful operation of said Institution.
"While the Civil Service Commission is of the conviction that the Board of Commissioners of said Institution, or at least a part of them, have been more or less jealous of their statutory authority and reluctant to properly delegate authority to the Commander who is the Director thereof; however, said Commander has failed through lact of tact, diplomacy, and self-control to meet the situation, and has irritated members of the Board of Commissioners, and aggravated rather than controlled the unfortunate situation of disagreement existing between himself and said Board of Commissioners;
"IT IS THEREFORE THE JUDGMENT OF THE COLORADO CIVIL SERVICE COMMISSION that the Respondent, Norton C. Conklin, Commander and Director of said Colorado State Soldiers and Sailors Home, Homelake, Colorado, should be and hereby is removed as Commander and Director of said Institution, to become effective with the close of business on July 31, 1956; that said employee, Norton C. Conklin, shall be entitled to his accumulated annual leave for which he shall be paid beyond the termination date of his employment as set herein.
"IT IS FURTHER ORDERED that the status of said Norton C. Conklin as a certified employee of State of Colorado and his rights as such shall be and are terminated."
Conklin sought review of this order in the district court by proceedings under Rule 106 (a) (4), R.C.P. Colo. The trial court entered judgment vacating the order of removal and the Commission is here by writ of error seeking reversal of the judgment and reinstatement of the order of removal.
Analysis of the above findings indicates the Commission determined that at the Home:
1. An unfortunate condition was developed — loss of confidence between the Board and Conklin — that a continuation of this situation would be detrimental to the future successful operation of the Home. The Commission makes no finding as to whether the Board or Conklin is chargeable with this "unfortunate condition."
2. (a) That the Board or part of them have been more or less jealous of their statutory authority and reluctant to property delegate authority to Conklin.
(b) Conklin has failed through lack of tact, diplomacy and self-control to meet the situation and has irritated members of the Board and aggravated rather than controlled "the unfortunate situation of disagreement existing between himself and said Board * * *."
The Commission made no specific findings with reference to any of the seven charges preferred against Conklin. There was much conflict in the testimony at the hearing with reference to the charges, and only the Commission, trier of the facts, is vested with authority to determine the facts.
The Commission's order of removal is in no way predicated on any of the charges against which Conklin was required to answer and defend, but is based entirely on findings of loss of confidence between the Board and Conklin, lack of tact, diplomacy and self-control to meet the "situation" (loss of confidence), has irritated members of the Board and aggravated an unfortunate situation. Conklin was never charged with these matters and had he been so charged they do not constitute sufficient grounds for his removal.
To summarize, Conklin was charged with acts and omissions which, if proven, generally would warrant his removal. He has never been found guilty of any of these charges, so cannot be removed on account thereof. Conklin was never charged with lack of tact, diplomacy, etc., and was never tried therefor, though found guilty thereof. Findings on matters not within the purview of the charges cannot be the basis for removal; doubly so when the facts found do not constitute sufficient grounds for removal.
It was improper for the Commission to try Conklin on matters other than those charged, and against which he was required to defend; it was improper to find him guilty of shortcomings of which he was not charged and it was improper to remove him for reasons that were not valid legal grounds for removal. Such order of removal cannot be sustained.
The judgment is affirmed.
MR. JUSTICE SUTTON and MR. JUSTICE DOYLE dissent.