No. 88-405
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
PATRICK GENTRY, THOMAS DAMON,
and ROBERT GLEICH,
Petitioners and Appellants,
-vs-
CITY OF HELENA and THE POLICE
COPMISSION OF THE CITY OF HELENA,
Respondents and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of ~ e w i s& Clark,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles A. Graveley argued, Helena, Montana
Gregory A. Jackson argued; Jackson & ice, Helena,
Montana
For Respondent:
David Hull argued, City Attorney, Helena, Montana
I'
A
.
r l
r .-... Submitted: March 9, 1989
Decided : May 11, 1989
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appellants patrick Gentry, Thomas Damon and Robert
Gleich, police officers for the city of Helena, appeal from a
decision of the District Court, First Judicial District,
Lewis and Clark County, which upheld on judicial review the
decision of the Helena Police commission and the modification
of its findings by the Helena City Manager which resulted in
appellants' termination.
Charges of misconduct against each of the three officers
before the police Commission of the city of Helena were
reduced to writing and timely served upon the officers in
accordance with S 7-32-4156, MCA. A subsequent trial was
held before the Commission pursuant to 5 7-32-4162, MCA.
After trial, the majority of the Commission determined that
Officer Gleich should be suspended from the Helena Police
Department for 30 days without pay; that Sergeant Damon
should be demoted to the rank of patrolman; and that
Patrolman Gentry should be suspended without pay for a period
of 90 days and that a letter of reprimand be permanently
placed in his personnel file. One member of the Commission
dissented, agreeing that Officer Gleich was the least
culpable of the three officers involved and agreeing with his
punishment as determined by the Commission, but disagreeing
as to Officer Gentry and Sergeant Damon. It was the minority
member's opinion that the latter two officers should be
terminated.
Under the statutes providing for procedures before the
Police Commission, the decision of the Police Commission is
subject to modification or veto by the mayor. Section
7-32-4160 (2), MCA. The term "mayor" includes the city
manager. Section 7-32-4153, MCA. When a charge against a
member of the police force is found proven by the Police
commission and is not vetoed by the mayor, the mayor (or city
manager) must make an order enforcing the decision of the
Board or the decision as modified by the mayor (city
manager). Section 7-32-4161, MCA. In this case, the city
manager of Helena modified the Helena police Commission
decision by permanently terminating the employment of
Officers Damon, Gleich and Gentry from the Helena Police
Department, effective immediately.
Decisions of the Helena Police Commission, as modified
by the mayor or city manager, are subject to review in the
~ i s t r i c tCourt. Section 7-32-4164, MCA. In this case, the
officers petitioned for review before the District Court,
~ i r s t ~udicial District, ~ e w i s and Clark County. The
District Court affirmed the decision, opinion and order of
the Helena Police commission and the modification thereof by
the city manager of June 1, 1988. The decision of the
~ i s t r i c tCourt on review is now appealed by the officers to
this Court. On consideration, we affirm.
We find the principal issue, raised directly by the
attorney for Gleich, and indirectly by the attorney for the
others, is whether substantial evidence supports the decision
of the police commission as modified by the city Manager. To
avoid an unnecessary recitation of facts, we will set out
only those facts found by the Police omm mission as requiring
discipline. The Police Commission found that Officer Gentry
was properly charged by two citizens' complaints and for
dishonesty; that Sergeant Damon was properly charged under a
citizens' complaint and for dishonesty; and, that Officer
Gleich was properly charged with dishonesty. The Commission
reported on dishonesty and the citizens' complaints as
follows:
DISHONESTY
It is undisputed that Gentry and Damon were at the
Hofbrau from 12:OO p.m. on July 31 until at least
4:30 p.m. Capt. Morley testified that when Gentry
and Damon left the Hofbrau, they were "under the
influence." Given Capt. Morley's years of
admirable experience with the Helena Police
Department, the Commission yields to his
determination as to Gentry and Damon's condition.
~ollowingthe Hofbrau, the two officers went to the
Red Meadow, where they stayed for several hours,
and then O'Toole's, Glen's Western Bar, back to the
Red Meadow, down to Jester's, and back to the Red
Meadow again.
Mrs. ~eating,whose testimony the Commission finds
credible, testified that both Gentry and Damon were
intoxicated during their conversation with her the
evening of July 31. During his telephone
conversations with the police dispatcher, Gentry
stated that he was drunk and also later stated that
Damon was drunk.
Officer Zaharko, both in his statement and in his
testimony before the Commission, indicated that
Damon was "intoxicated" to the point where he was
passing out and waking up in the front seat of
Gentry's vehicle. The Commission finds it very
difficult to believe that these officers, after
being at the party and later to a number of bars
for a total of eight or nine hours, were sober.
But, in fact, that is exactly what the officers
have asked the Commission to believe. All credible
evidence is to the contrary and the Commission
finds the officers' testimony in this regard not
worthy of belief.
Not only did the officers misrepresent the
condition of Gentry and Damon to their superiors
during the investigation, they continued this
misrepresentation under oath before the Commission.
For the charges of dishonesty, therefore, the
Commission finds the charges proven.
CITIZEN'S COMPLAINTS
Turning then to the citizen's complaint lodged by
Kathy Keating concerning the July 31, 1987,
incident, the Commission finds that the credibility
of the officers' version is again highly suspect.
Mrs. Keating was returning from a church music
festival at the lake when she encountered Damon and
Gentry. She testified that she was not personally
acquainted with either officer, and had to identify
them from a department photograph during the
investigation. She further testified that the
officers' intoxicated condition caused her concern.
Phil Keating, Kathy's husband, testified that she
relayed the same version of the events to him
immediately after the incident. He further
testified that he had no grudge against the Helena
Police Department.
The officers, on the other hand, have a great deal
to lose in this proceedings. They could be subject.
to discipline up to and including termination.
While the officers' attempted "cover up'' of their
activities that evening, from their point of view,
may be understandable, it is certainly not
excusable.
The omm mission therefore finds that the testimony
of Mrs. eating is credible, and believes that
Officer Gentry represented that he and Sgt. Damon
were "undercover" during their conversation on the
evening of July 31. The Commission further finds
that such a statement, made by an intoxicated
police officer, even though off-duty, certainly
constitutes conduct such as to bring reproach upon
the Helena Police Department.
In regard to the second citizen's complaint
concerning Patrolman Gentry confronting Mrs.
Keating on August 9, 1987, and telling her that
"we" could lose our jobs over her complaint--the
Commission again finds that Mrs. Keating's version
is the more credible version. his conduct on the
part of officer Gentry was again conduct such as to
bring reproach upon the Helena police Department.
The findings of the Commission concerning the charges
against Officer ~ l e i c hare as follows:
The Commission finds that Officer Gleich, although
guilty of covering up his fellow officers'
misdeeds, is the least culpable of the three
officers involved. Officer Gleich was not involved
in the citizen's complaint, and at worst he merely
went along with his fellow officers' version of the
night's events.
In doing so, however, officer Gleich has not only
misrepresented the facts to his superior officers,
he has misrepresented them to the Commission while
under oath. The Commission finds that such conduct
cannot be condoned and therefore has determined
that Officer Gleich be suspended from the Helena
police Department for 30 days without pay.
The written report of the Helena Police Commission
recited a number of other facts which supported its findings
of fact foregoing. We do not set those out in this Opinion
in full because it is unnecessary for our review and it would
be painful to detail the day's progress of these three
officers following their attendance at a luncheon in honor of
a retiring police officer.
The District Court noted that the standard of review of
a decision of the police commission in the ~istrictCourt is
whether the findings of the Commission are supported by
substantial evidence. ~iskovich v. City of Helena (1976),
170 Mont. 138, 143, 551 P.2d 995-998; In the Matter of Raynes
(1985), 215 Mont. 484, 493, 698 P.2d 856, 862. The findings
of the Commission are final and conclusive if supported by
substantial evidence. ~ a i l e yv. City of Helena (1910), 42
Mont. 216, 218, 112 P.2d 69, 70; Raynes, 698 P.2d at 862, 42
St.Rep. at 576. The ~istrictCourt, sitting as an appellate
court, is not authorized to determine penalties, sanctions or
disciplinary measures that may be taken against a police
officer. City of Helena v. ~istrictCourt (1975), 166 Mont.
74, 77, 530 P.2d 464, 465-466. When the decision on review
by a district court of proceedings before a Police Commission
is conducted under § 7-32-4164, MCA, and the District Court
decision is appealed to us, we adopt the standard of review
set forth in the Montana Administrative Procedure Act, S
2-4-704(2) (el, MCA, to the effect that the administrative
findings, inferences and conclusions and decisions will not
be reversed or modified unless they are "clearly erroneous in
view of the reliable, probative and substantial evidence on
the whole record. "
We determine that substantial evidence on the whole
record does support the findings and conclusions of the
Helena police omm mission, and the decision as modified by the
City Manager.
Aside from the substantial evidence issue, the officers
raise other issues which they contend require a reversal.
They are:
(1) The Police Commission's findings of dishonesty
cannot be supported as a matter of fact or law;
(2) The testimony that Mrs. eating had taken a
polygraph examination was improperly admitted;
(3) The police commission unduly prolonged the hearing
by requiring the officers to begin their case in chief at
9:30 after the case had already been in progress for 114
hours ;
(4) The City Manager should not have testified before
the police Commission because of his veto authority over the
actions of the Police Commission; and,
(5) That the citizens' complaints should not have been
considered because no citizen had signed any complaint
against any officer.
The officers also complained, without listing the
subjects as issues, that Officer Gentry had not been advised
prior to the formal filing of charges of any administrative
or disciplinary proceedings against him; that the officers
should not have been suspended in excess of 10 days; that the
"modification of findings" made by the City Manager was not
an "order" required by the statute; and that the punishment,
that is the termination of employment of the officers, was
disproportionate to the misconduct charged.
DISHONESTY FINDINGS
This issue involves whether the Police Commission b a rs
correct in determining that all these officers lied during
the investigation and under oath to the police Commission
when they denied that officers Damon and Gentry denied being
drunk but admitted to drinking from 1 2 : 3 0 in the afternoon
until late the same evening at several bars in Helena.
Gleich testified that both officers were sober when he
transported them in a city police car from the Red Meadow bar
in Helena to the parking lot of the Hofbrau, another bar,
where the officers had left their car.
Several witnesses who met or observed Damon and Gentry
during the course of the afternoon and evening testified that
they were intoxicated or that they exhibited strong evidence
of drinking by their actions. An audiotaped telephone record
of Gentry's call for a ride in a police car are revealingly
stark about his condition. The amount of liquor they admit
drinking over the period of time militates against their
sobriety. Very substantially, the record supports the Police
Commission that these officers were in fact intoxicated, and
that they were dishonest in denying it, especially under
oath.
The appellants, especially Gleich, maintain that when
they testified that Damon and Gentry were sober, and not
impaired by their drinking, they were merely expressing a
matter of their judgment or opinion, not fact, and thus
cannot be guilty of dishonesty. The officers cannot escape
the tenor of their testimony this easily. heir statements
were intended to state facts, and for the Commission to
accept their statements as facts. The evidence supports the
Commission's findings of dishonesty.
The police Commission did find that Officer Gleich was
"less culpable." He undoubtedly was torn between loyalty to
his brother officers and his duty to state the facts openly.
He apparently chose the wrong course, and the Commission and
the City Manager set the consequences.
EVIDENCE - -A POLYGRAPH EXAMINATION
OF
Before the Police Commission, witness Kathy Keating
answered the following questions:
Q. Now, Kathy, subsequent to all this, were you
asked to take a lie detector test?
A. Yes.
Q. And did you take a test?
A. Yes I did.
Under S 37-62-302, MCA, "results" of a polygraph
examination may not be introduced into or admitted as
evidence in a court of law. Here the "resultsw were not
admitted into evidence, but the fact that Mrs. eating took a
polygraph examination was admitted. There was no objection,
however, and the chairman of the omm mission later admonished
the other members that evidence of taking the polygraph
examination was not to be considered by them in determining
the credibility of Mrs. Keating. The District Court, in
examining this issue, found no prejudice to the officers from
the admission of this testimony so as to be reversible. We
agree.
LENGTH - HEARING
OF
The hearing before the Commission began early in the
morning, October 8, 1987, and, approximately 114 hours
thereafter, at 9:15 p.m., the City finished presenting its
case. The chairman of the Commission told counsel that he
wanted to finish the case and that they were to proceed with
their presentation. At 12:30 p.m., October 9, 1987, the
chairman informed counsel for the appellants that the matter
could be continued until Tuesday of the following week.
However, the appellants decided to go forward and the hearing
was completed after about 204 hours. The session was
inordinately long, and undoubtedly a wearying one for the
Commission, and all the counsel for all parties. However, as
the District Court noted, again one cannot put a finger upon
any prejudice as to the officers as a result of the long
hearing. There is no reversible error in the manner which
the hearing was conducted.
TESTIMONY - - -
OF THE CITY MANAGER
The appellants argue that because the City Manager has
veto and modification powers over the Commission's decision,
there is an inherent conflict of interest in allowing his
testimony. The District Court examined the record and found
no specific incidence of a biased or prejudicial statement in
the record, and his review of the City Manager's testimony
did not reveal any such prejudicial statement. On appeal the
petitioners have failed to demonstrate any prejudicial effect
of this witness's testimony and there is no rule otherwise
which prevents the testimony of the City Manager before the
police Commission even though subsequently he will make a
decision which may modify or reverse the findings of the
Police Commission.
NO
- SIGNATURE - COMPLAINT
ON
The complaint lodged by Mrs. Keating was not signed by
her. Appellants rely on § 7-32-4156, MCA, which states that
any charge brought against a member of the police force must
be in writing. There is however no statutory requirement
that the complainant sign the charge and so no error occurred
in the lack of her signature on the formal complaint filed.
SUSPENSION -----
FOR MORE THAN TEN DAYS
Section 7-32-4163, MCA, provides that the mayor or the
chief of police subject to the approval of the mayor has the
power to suspend the policeman for a period not exceeding ten
days in any one month with or without pay. The statute
further provides that any officer suspended with or without
pay is entitled to appeal that suspension to the Police
commission. In this case the officers were suspended with
pay from September 4 to November 30, 1987. They did not
appeal the suspension to the police Commission as allowed by
$ 7-32-4163, MCA. The record shows no prejudice to the
officers by their suspension pending the disposition of the
charges against them.
MODIFICATION - FINDINGS
OF
The objection of appellants here to the modification
made by the city Manager is that it is not an "order"
required by S 7-32-4161, MCA. The tenor of the instrument as
modified by the City Manager is certainly an order because it
was the subject of review before the Helena police commission
and before this Court on appeal. We do not find the issue to
be substantive.
- -OF NOTICE
LACK
Under this issue, the appellant Gentry contends that he
had not been advised prior to the formal filing of charges of
any administrative or disciplinary proceedings against him.
He had received two notices but neither one referred to an
"incident" which occurred on August 9, 1987. However, our
examination of the procedures leading up to the hearing
before the Police Commission shows that the charges against
the officers were in writing and copies served upon them 15
days before the time fixed for hearing of such charge. The
provisions of 5 7-32-4156, MCA, were complied with and on
that basis the Police Commission was empowered to proceed in
the matter.
PROPORTIONALITY - DISCIPLINE
OF
We find no merit in this issue which would require a
reversal of the District Court's review or of the findings
and conclusions of the Helena Police Commission, as modified
by the City Manager. The extent of the penalty to be levied
against a police officer or officers for proven charges of
misconduct, absent a constitutional violation, are generally
matters for determination by the police Corrmission and
subject to the modification of the mayor or city manager.
They are thus empowered by statute. If the city of Helena
determines, as it did in this case, that officers who are
dishonest under oath are not trustworthy enough to serve as
police officers for the city of Helena, that kind of decision
relating to the personnel of the city is beyond our reach and
jurisdiction. City of Helena v. ~istrictCourt, supra, 166
Mont. at 77. Section 7-32-4155, MCA, gives the Police
Commission the power to decide all charges of misconduct.
brought against any police officer who has been guilty of
misconduct in his office, or of conduct unbecoming a police
officer, or whose conduct has been such as to bring reproach
upon the police force. If the charges are proven, the
Commission, and thereafter the mayor or city manager are
empowered to discipline, suspend, remove or discharge any
officer who has been found guilty of the charge filed against
him. Section 7-32-4160, MCA. In this case, it appears that
the Commission, and the City Manager, acted within the powers
given to them by statute. We find no reversible error in
their decisions. Affirmed.
-- ._
We Concur: /C
Mr. ~usticeJohn C. Harrison, dissenting.
I would concur with this Court's opinion finding no
reversible error in the termination of the two officers,
Patrick Gentry and Thomas Damon, but would hold contrary to
this Court's opinion regarding Robert Gleich who I feel
should be reinstated. His contact with the other two
off-duty officers was when he brought the patrol car to the
Red Meadow bar's parking lot at approximately 9:30 p.m. on
the evening in question and drove them home. In arriving at
my decision it is important to note that the Police
Commission recommended that Gleich be suspended from the
Department for 30 days without pay. I would follow the
recommendation of the omm mission as to Officer ~ l e i c hand not
that of the City Manager who set all the findings of the
Police Commission aside and made his own decision.
While I agree that the City Manager has set a high
standard of honesty for police officers, which standard will
undoubtedly be well-drilled into the Department, I feel that
that ~ l e i c h was somewhat of an innocent bystander in this
matter and I believe he was salvageable and should have been
eventually kept on the force.
A