Erkman v. Civil Service Commission of Provo City

I concur in the result.

In sustaining the trial court's action in dismissing the writ of certiorari I do so on the narrow ground that I cannot say the Civil Service Commission acted arbitrarily or capriciously in making its findings of fact and in rendering its decision.

I have no quarrel with Mr. Justice Wade's statement that an employee of a public department should be protected in his efforts to hold other employees to a proper discharge of their duty. If the only conclusion the Civil Service Commission could rightly reach was that appellant was bringing to light irregularities on the part of city employees, then it acted capriciously in sustaining the ouster of appellant. However, I believe the facts and circumstances as testified to by the witnesses and the reasonable inferences the Commission could draw from those facts would permit other conclusions.

The Civil Service Commission found that appellant's public demand on June 19, 1946 that Chief of Police Mower and Sgt. Fred Loveless be removed was for the purpose of obtaining revenge for appellant's previous release on December 31, 1945 and to create a lack of discipline and disorder in the police force. The Commission did not find that appellant's disclosure of irregularities was a basis for misconduct or a reason for his dismissal. It found his subsequent *Page 238 activities, and particularly his demand for removal, which was made long after the disclosure, had the effect of creating disorder and lack of discipline in the police department.

In determining whether or not the Commission acted capriciously, the following facts are considered by me to be important and pertinent: Appellant, while he was a member of the police force, became aware of the questionable practice but did nothing about disclosing to his superiors, or to the public, any knowledge he might have had until some time after he was discharged from the service on December 31, 1945. After his discharge, he made a detailed investigation to determine whether other members of the department who had not been discharged could be charged with inefficiency and be removed from the force. He was of the opinion that Mower, who later became Chief of Police, was responsible for his discharge and undoubtedly there was no spirit of comradery existing between the two. As a matter of fact, prior to his discharge in 1945, appellant voluntarily went to the home of Mayor-elect Anderson, prior to Anderson's taking office, and informed Anderson that he was in favor of appointing a party, other than Mower, to the office of Chief of Police. Early in March of 1946, he informed the City Auditor that Loveless had been selling tires belonging to the city and that he wanted to obtain certain information from her files and records. During March or April, 1946, he requested a meeting with Mayor Anderson and informed the Mayor that Loveless was misappropriating funds. On March 22, 1946, in a meeting with the City Commission, the press, an OPA representative, and agents of the tire companies, a full hearing was had and all parties concerned were given an opportunity to be heard. on this same date, and just before the meeting closed, pursuant to a previous court order, appellant was reinstated on the police force. The record does not indicate what his activities were from that date until his appearance before the City Commission on June 19, 1946, at which time he *Page 239 publicly demanded that both Chief Mower and Sgt. Loveless be discharged from the force. Appellant's reasons for including Mower in his demand, even if believed by him, would hardly justify a reasonable person in demanding his removal. The record does not indicate that Mower participated in the scheme and as soon as his attention was directed to the matter by Mayor Anderson, the practice was stopped. He knew tire carcasses were being left with the dealers, but did not know that some of the tires were going to other parties. After he assumed his office, he approved payments for three tires at different prices, but there is no showing that in these instances Mower knew of the irregularities connected with the old casings.

To me, the facts indicate that particularly in the case of Mower, appellant not only became informer, he assumed the role of prosecutor and judge and apparently was unwilling to wait for or abide by a decision of the City Commission. Mower took office on January 8, 1946, so that he had only been in control of the department a short time when his attention was called to the practice and it was stopped. There is evidence that Mower was not culpable in the performance of his duties and I believe the Civil Service Commission could reasonably find that appellant far exceeded his duties as either a citizen or a police officer in an effort to oust and discredit the Chief of Police so that the latter could not effectively administer the affairs of his office.

Whether or not I agree with the findings of the Commission is not the test that can be applied in this instance. There is evidence from which the Commission could find appellant's actions were for revenge and subversive to good order in the police department. In view of this, we cannot substitute our conclusions for those of the Commission. I am of the opinion that the trial court did not err in dismissing the writ of certiorari. *Page 240