No. 84-163
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN 'THE MATTER OF WILLIAM RAYNES,
a Police Officer.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Clary & Clary; Thomas Clary, Great Falls, Montana
For Respondent :
David V. Gliko, City Attorney, Great Falls, Montana
Submitted on Briefs: Dec. 20, 1984
Decided: April 30, 1985
Filed: j.\pp -,,
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Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This an appeal from the District Court of the Eighth
Judicial District, in and for the County of Cascade, State of
Montana, upholding the findings and decision of the City
Police Commission of Great Falls, Montana. The District
Court upheld the findings of the Police Commission finding
the conduct of Officer William Raynes unbecoming an officer
and upholding his dismissal from the Great Falls Police
Department. Sergeant William Raynes appeals. We affirm the
decision of the District Court.
On December 6 through 9, 1982, the Police Commission of
the City of Great Falls, was informed of charges which
alleged that Sergeant William Raynes engaged in cond.uct
unbecoming a police officer and that such conduct brought
reproach upon the police force of that city. On January 12,
1983, the Police Commission issued its findings of fact,
conclusions of law, and judgment and recommendation which
found Sgt. Raynes guilty of the cha-rges and recommend.ed his
permanent discharge from the Great Falls Police Force.
The findings and conclusions of the Police Commission
were confirmed by the City Manager of the City of Great Falls
by an order dated January 14, 1983. Appeal was sought by
petition for judicial review to the District Court of Cascade
County. The Honorable James Wheelis from Missoula was called
in to hear the appeal and as previously noted, affirmed the
findings and conclusions and judgment of the Police
Commission.
For some eighteen years the petitioner, William Raynes,
served the City of Great Falls as a police officer, rising to
the rank of Sergea.nt. Prior to the events that led to this
case, his record indicates that he served Great Falls as a
fine officer and had been given recommendations and
promotions due to his exemplary service. A summary of Sgt.
Raynes' testimony indicates that while a member of the Police
Department, he became interested in hypnosis. Throughout his
career as a police officer he pursued this interest in
hypnosis by considerable outside reading and by taking
courses offered by both private and public sources. His
intention was to further his interest in hypnosis therapy,
thereby becomming a better policeman by working with people
in that capacity. He testified that due to economic needs,
he felt it would be in his best financial interest to set up
a private hypnosis service to aid people suffering from
weight and smoking problems. Prior to doing so, he consulted
his attorney, Mr. Clary, regarding licensing of the
operation. In addition, he testified that he was cleared by
the Police Department and received no opposition to his
efforts to setup a private hypnosis business.
Sgt. Raynes advertised in the Great Falls Tribune, the
local newspaper, that hypnosis therapy was available to
persons with weight and smoking problems. Through these ads
and by word of mouth from people who had already used his
services, he began to build up a clientele in addition to his
duties as a police officer. F7hile the record contains no
definite information as to the number of people that
consulted him, it is obvious that over a period of time he
built up a fair practice.
Rumors began circulating in Great Falls and complaints
were made by several women to either friends or family,
prompting an investigation into Sgt. Raynes' activities as a
hypnotist. The allegations contained information that
sexual advances were being made by Sgt. Raynes in the
treatment of certain women. Ultimately a complaint was filed
against Sqt. Raynes under the provisions of Title 7, Chapter
32, pt. 41, MCA. This complaint was later amended charging
Sgt. Raynes with conduct that was unbecoming a police officer
and which brought reproach upon the police force.
The Police Commission named a private practitioner in
the City of Great Falls, Mr. Robert James as a hearings
examiner. He was named due to the fact that legal questions
were presented to the Commission and the Montana Rules of
Evidence were to govern the hearing for Sgt. Raynes, pursuant
to section 7-32-4155, MCA, which gives the Police Commission
jurisdiction to hear such matters. The complaint filed with
the Police Commission contained six counts. Count four was
dismissed due to the failure of the victim witness to appear
and Sgt. Raynes was found guilty of the remaining five
counts. Sgt. Raynes was represented by counsel, and the City
of Great Falls was represented by City Attorney, David Gliko.
The record indicates that in December of 1973, Sgt.
Raynes signed the Law Enforcement Code of ethics in which he
agreed to keep his private life unsoiled as an example to
others. In addition, the Police Department manual was
introduced which provided that:
"Public respect for the police department
is necessary for effective law
enforcement. Police officers should be
above reproach. If one officer is
dishonest, the entire department ma17 be
discredited. An officer must avoid any
conduct which would reflect poorly on
himself or the department."
The code of conduct in the Department manual is not a
condition of employment but is a guideline for police
conduct.
Count I of the charges against Sgt. Raynes indicates
that Jane Doe-1 read an advertisement in a newspaper
indicating a person could stop smoking through hypnosis. She
called the number listed in the ad and talked to Sgt. Raynes.
An appointment was set for the purpose of receiving
counseling and self-hypnosis to help her stop smoking. Her
testimony indicates that during the first session with Sgt.
Raynes he advised her he was a police officer and that she
had nothing to worry about. During the session he touched
and held her hand for the purpose of creating a sexuality
that "she did not know existed within her." She was told
that sexual feelings would build in intensity and could be
moved to different parts of her body. Sgt. Raynes admitted
using this type of technique. This session with Jane Doe-1
was tape-recorded by Raynes and introduced as an exhibit. It
indicated extensive references to sexual feelings. She
testified that the tape either ran out or was stopped prior
to the end of the session. The Commission found that she was
a credible witness and noted that as a result of her
experience, she did not trust the police or the police
department.
Jane Doe-2 had a session with Sgt. Raynes for weight
control counseling. She also testified that he introduced
himself as a policeman. Again that first session was
tape-recorded and the tape reflected this same attempt to
create a sensual feeling in her hand that he said she could
move around to various parts of her body. The tape also
indicated many sexual and sensual references; but very little
about weight control.
During the second session with Jane Doe-2, Sgt. Raynes
again created a "sexual feeling" in her hand, but the tape
indicates no weight control counseling was discussed. During
that session he asked if he could kiss her, which he did, and
advised her that she would feel no shame or embarrassment.
During that session Sgt. Raynes engaged in sexual intercourse
with her. She testified that she believed that she was under
the influence of hypnosis during the second session. Sgt.
Raynes, during examination, admitted the sexual contact with
Jane Doe-2. In addition, he asked Jane Doe-2 to accompany
him to Helena, Montana, for more sexual activity. The Police
Commission found that following the second session with Jane
Doe-2, Sgt. Raynes erased the tape-recording of that session.
The Board found that as a result of these sessions with Sgt.
Raynes Jane Doe-2 was embarrassed and ashamed. The Board
found her to be a credible witness.
Jane Doe-3 was contacted by the Police Department and
asked to participate in the investigation of Sgt. Raynes.
She agreed to cooperate and contacted Sgt. Raynes by phone,
during which he indicated he was a police officer. She told
Sgt. Raynes that she wanted to quit smoking and had sessions,
all of which were taped.
During these sessions, Sgt. Raynes made extensive and
constant sexual suggestions. Jane Doe-3 did not encourage
this behavior, and again he attempted to create a "sexual
feeling" in her hand which he said would build and intensify.
Sgt. Raynes discussed with her "enhancing sexual feelings
through hypnosis" and told her that she was beautiful and
desirable. He begged her to come back for further
treatments. During his testimony he admitted sexual
references and that his actions were "totally out of line."
The Commission found Jane Doe-3 to be a credible witness.
Jane Doe-4 attended a session with Sgt. Raynes for the
purpose of receiving counseling through hypnosis in weight
control. She testified that she knew he was a policeman
prior to making her appointment, and that he told her he was
a policeman and that he could be trusted. During the
session, Sgt. Raynes suggested to Jane Doe-4 that he could
create a "sexual feeling in her hand" and that she could
transfer it to other parts of her body. He admitted using
these techniques and admitted placing his hand on her breast.
She did not encourage such contact, was embarrassed and did
not return. The Police Commission found her to be a credible
witness.
Jane Doe-5 read an article in a newspaper which
described the use of hypnosis by the Great Falls Police
Department. The article included a photograph of Sgt. Raynes
holding an award. Beneath that article she saw St. Raynes'
advertisement for his private hypnosis service. She called
Sgt. Raynes for hypnotic treatment for weight control and
attended two sessions for which she was charged $60. During
the first session, he advised her he was a. Police Sergeant
and could be trusted. During both sessions, he suggested
that she could experience a "sexual feeling" on the back of
her hand. During the second session he made sexual
references, kissed her on the neck and removed her blouse.
During that session Sgt. Raynes engaged in sexual intercourse
with her. Like a prior Jane Doe, he made suggestions that
she accompany him to Helena for further sexual activity.
Sometime after the session with Jane Doe-5 she was
called by Raynes who advised her that her ex-husband had
filed criminal charges against her. As Jane Doe-5 explained
as taken from the trial transcript: "Yes, he [Sgt. Raynes]
said that he--he said, 'well, I get people out of trouble for
speeding tickets and such things.' And he said he would get
me off the hook. " The Commission found Jane Doe-5 to be a
credible witness.
Following the above summary of the facts presented at
the hearing, the Police Commission made its findings of fact
and judgment. Those findings found that there was
substantial-, credible evidence indicating that Sgt. Raynes
engaged in conduct unbecoming an. officer, and that his
conduct brought reproach upon the Police Department. The
charges set forth in counts 1, 2, 3, 5, and 6 are true; the
fact that he was off-duty when the incidents occurred did not
excuse his conduct. He had represented to some of his women
clients that he was a police officer in order to give them
confidence in him. This was not a case where a public
employee engaged in conduct in the privacy of his home, it
was a case of a public employee who established a private
business, dealt with women named in the complaint, and used
his status as a police officer to gain their confidence and
trust. There was substantial evidence showing that he gained
their confidence and trust in order to attempt to seduce
them. The Commission found that this conduct was
reprehensible and repugnant and constituted conduct
unbecoming an officer.
The Commission further found his explanation that he
attempted to create a "sexual or sensual" feeling in a
woman's hand to prove that hypnosis in fact worked,
unpersuasive. The back of the hand is a place one ordinarily
does not expect to feel sexual sensations. The Commission
found that he was selective in his methods of hypnosis with
various persons under his care.
The Commission recognized the right of privacy of
individuals under the federal and state constitutions.
However, in its opinion, the right of privacy does not
necessarily extend to all conduct of an off-duty police
officer . It found in this case, that the state had an
overriding and compelling interest in protecting the public
and preserving the integrity of the Police Department and
that such interest overrode Sgt. Raynes' right to privacy.
The Commission further found that Raynes' argument that the
City had changed the conditions of his employment by adopting
a code of conduct was without merit. They found that his
conduct was unbecoming a police officer and brought reproach
upon the Police Department. His conduct was unwarranted
despite the fact that the Commission interpreted the "Code of
Conduct" as a guideline for conduct and not a condition of
employment.
The Commission recommended that despite his record of
eighteen years with the police department, his conduct in
this case did not constitute a mistake which would warrant a
suspension or reduction in rank. It felt his conduct was
such that, effective immediately after the hearing, Sgt.
Raynes should be permanently discharged from his position and
duty as a police officer.
The appellant appealed to the District Court requesting
a review of the questions of and facts regarding the
Commission's decision. The District Court upheld the Police
Commission, thereby necessitating this appeal.
Three issues are presented to this Court for review:
(1) Should the District Court have ordered a new
hearing for Sergeant William Raynes because of the failure of
the Police Commission to allow William Raynes to obtain
certain prehearing information through normal discovery
procedures and by the failure of the Police Commission to
allow William Raynes to have witnesses testify as to the
standard of conduct at the Great Falls Police Department?
(2) Did the City of Great Falls meet its burden of
proof for each of the charges brought against William Raynes?
(3) Should the District Court have found that the
termination of William Raynes was excessive punishment in
view of the amount of time and the record of William Raynes
as a police officer for the City of Great Falls?
The appellant argues under his first issue, that the
petitioner Raynes should have obtained a new hearing from the
District Court to allow certain prehearing information
through normal discovery procedures; and because of the
failure of the Police Commission to allow petitioner Raynes
to have witnesses testify as to the standard of conduct at
the Great Falls Police Department.
Appellant further argues that because Raynes was not
charged with criminal sexual conduct and because no criminal
charges had been filed against him, the Police Commission and
the District Court could not presume the alleged conduct of
Raynes and these women was anything but consensual. He
further argues that under section 49-2-303, MCA, the law does
not allow the termination of a government employee's position
based upon non-criminal conduct with a member of the opposite
sex. Under the same issue, he buffers his argument that
under Article 11, section 10 of the Montana Constitution, he
has the right of privacy essential to the well being of a
free society and this shall not be infringed without a
showing of a compelling state interest. In support of his
argument, he cites Smith v. Price (1980), 446 F.Supp. 828 at
834: "They [police and city officials] disapprove--as most
citizens do--of police officers running around on their
wives." However, the court said that the defendant-official
must show that the officer's off-duty marital misconduct in
some way affected the performance of his duties and adversely
affected the public image of the officer as a police officer
or of the police department as a public body. He argues the
City of Great Falls failed to show such evidence, and
therefore, a termination cannot be supported.
However, if appellant had properly Shepardized Smith v.
Price, supra, he would have discovered that the Fifth Circuit
Court of Appeals in Smith v. Price ( 1 9 8 0 ) , 616 F.2d 1371,
held that: (1) the police officer's dismissal was not
Constitutionally improper, and (2) the police officer's
challenge to regulations which are not asserted as a basis
for his discharge was nonjusticiable. Therefore, as noted in
respondent's brief, the above case in its final holding by
the Fifth Circuit is totally in support of the City's
dismissal of Sgt. Raynes.
As the District Court noted in its order on appeal,
this is not a case that involves the question of private
sexual practice or mores. This case involves an advertised
business about which there is substantial evidence to show
that the petitioner traded upon his position as a police
officer to gain the trust of his customers, then breached
that position of trust through wholly unexpected practices.
It is this which separates this case from cases relied upon
by the petitioner. We agree.
In addition under this issue, the appellant argues that
he was denied discovery relevant to his defense of
"discriminatory law enforcement" and denied discovery to test
the credibility of the witnesses. Throughout his hearing he
attempted obtain information concerning various
disciplinary cases that occurred to officers of the Great
Falls Police Department over a ten year period. Questions on
examination of Chief of Police Anderson, and certain
interrogatories which were submitted by his counsel were
denied by the Police Commission pursuant to Rule 26(c)
M.R.Civ.P., in an order dated April 27, 1982, which states:
"The protective order is granted for the
reason that information requested by
Sergeant Raynes is irrelevant to the
proceedings and, further, the information
sought is not reasonably calculated to
lead to the discovery of admissible
evidence."
A second order was issued by the hearings examiner for the
Police Commission on May 12, 1982, in response to appellant's
request to modify the order of April 27, 1982. In the second
order the hearings examiner noted:
"AS indicated previously, the
interrogatories propounded by Sergeant
Raynes, which are subject to the
protective order, are irrelevant to these
proceedings. Sergeant Raynes is
presently in possession of the names of
the persons the City of Great Falls
intends to call as witnesses. Only three
of these are employees of the City. The
officer has the authority, through
discovery, to establish evidence as to
the veracity and character of these
witnesses without obtaining the
information requested in his previous
interrogatories."
The question here is totally one of relevancy. A
review of the pertinent precedent shows that past conduct or
action is never admissible as relevant in a case regarding a
specific charge. Here, the proposed evidence was not
relevant.
The Commission recognized the right of privacy of the
individual under the federal and state constitutions but held
that the right does not necessarily extend to all conduct of
a police officer while not on duty. The Commission found
that the state has such an overriding and compelling interest
in protecting the public and preserving the integrity of the
Police Department that such interest overrides Sgt. Raynes'
right to privacy. This finding of the Police Commission was
upheld by the District Court, and we agree.
Issue two, concerns whether the City of Great Falls met
its burden of proof for each of the charges against Sgt.
Raynes. We have previously set forth the summary of the
findings of fact and conclusions of law of the Police
Commission of the City of Great Falls. This d-ecision was
reviewed by Judge Wheelis called in to sit as District Judge
for Cascade County, who noted that the District Court in this
case is charged with reviewing the questions of law and fact
implicit within the Police Commission's decision. The review
of the law is to determine whether the rulings are correct; a
review of the facts is based on the substantial evidence
test. Miskovich v. City of Helena (1976), 170 Mont. 138, 551
P.2d 995. The findings and decisions of the Commission are
deemed final and conclusive provided that substantial
evidence exists to support them, Baily v. The Examining and
Trial Board (1910), 42 Mont. 216, 112 P. 69. The District
Court held that the findings and conclusions of the Police
Commission with regard to the charge of conduct unbecoming an
officer and with regard to dismissal of the petitioner from
employment, were based on proper rulings of law and
substantial evidence. Therefore, the District Court affirmed
the judgment of the Police Commission. We uphold the
District Court's decision in upholding the findings of fact,
conclusions of law and judgment of the Police Commission.
The final issue before us is whether or not the
termination of William Raynes was excessive punishment in
view of the excellent record and eighteen years of service he
had as a police officer with the City of Great Falls. Here
the District Court in reviewing the termination of Sgt.
Raynes found there was substantial evidence to support the
Commission's decision. We find that because of the nature of
the petitioner's conduct, the punishment given by the
Commission was not such as to constitute abuse of discretion
and the dismissal as ordered by the Commission is upheld.
We affirm.
We concur: A+