NO. 94-271
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN THE MATTER OF THE TERMINATION
OF WAYNE ABBEY,
Petitioner and Appellant,
CITY OF BILLINGS POLICE COMMISSION,
CITY OF BILLINGS, MONTANA, and BRUCE
McCANDLESS, Acting City Administrator,
Respondents and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carter N. Picotte, Helena, Montana
For Respondents:
James L. Tillotson, Billings City Attorney,
Billings, Montana
Submitted on Briefs: October 5, 1994
Decided: December 15, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a review by the Thirteenth Judicial
District Court, Yellowstone County, of a decision by the Billings
City Police Commission and subsequent modification of that decision
by the City Administrator. We affirm.
We consider the following issues on appeal:
I. Did the District Court err in affirming the Billings City
Police Commission's denial of Abbey's Prehearing Motion to Dismiss?
II. Did the District Court err in holding that the expert
testimony of Officer John Carpani and Captain Douglas Dreezen
regarding the accident was proper and that any opinion testimony
from Larry Deschene and Cliff Fillner was harmless error?
III. Did the District Court err in upholding the Billings Police
Commission's denial of Abbey's motion for a ruling of "Not Proven"
following the City's case-in-chief?
IV. Did the District Court err in upholding the Billings Police
Commission's finding that there was substantial evidence to show
that Abbey was guilty of the alleged misconduct?
V. Did the District Court err in affirming the Acting City
Administrator's decision to modify Abbey's punishment?
Wayne Abbey (Abbey) was a Billings City Policeman. Abbey was
assigned Car #1421 for his regular shift beginning in the evening
of March 24, 1992. Something happened to severely damage the car
either before or during Abbey's shift. Abbey claimed the damage
was done to the car before he began his shift and while the car was
parked in the city parking complex. Abbey did not report the
damage immediately upon beginning his shift. He claims that he
believed that the car had been damaged by someone prior to his
shift and that that person had already reported the damage.
Abbey claims that he continued his shift, putting a piece of
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side molding trim that had been knocked loose from the car in the
back seat and later throwing it out in a dumpster on Minnesota
Avenue. Much evidence was presented at Abbey's hearing that showed
that the accident actually happened at a railroad switch close to
this dumpster during Abbey's work shift.
The Police Department charged Abbey with four counts of
violating various Billings Police Department directives such as:
neglect of duty, misconduct in his office, conduct unbecoming a
police officer, guilt of a crime and/or conduct such as to bring
reproach upon the police force. Abbey moved to dismiss the charges
against him during a prehearing conference. The motion was denied.
Pursuant to 5 7-32-4151, et seq., MCA, a hearing was held before
the Police Commission on September 2 and 3, 1992.
The Commission found that substantial evidence existed to
support all four counts charged against Officer Abbey and suspended
Abbey for three weeks. The Acting Billings City Administrator,
Bruce McCandless, agreed with the Commission's findings and
conclusions and pursuant to 5 7-32-4160(2) and (3), MCA (1991),
modified Abbey's punishment from suspension to termination.
Abbey appealed the Commission's decision and the modification
of his punishment to the Thirteenth Judicial District Court,
Yellowstone County. Abbey appeals the District Court order dated
April 21, 1994, affirming the Commission.
Did the District Court err in affirming the Billings
City Police Commission's denial of Abbey's Prehearing
Motion to Dismiss?
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Abbey maintains that he was prejudiced before the hearing
began. The prejudice was caused by the inclusion with the
complaint of various documents including a City of Billings
investigative police report and the results of a polygraph test
conducted on a fellow officer who shared Abbey's police car, #1421.
Abbey argues that he was prejudiced by the Police Commission having
seen the erroneously admitted polygraph test. Abbey argues that
the Commission did not follow the rules of evidence and that such
a departure caused him a lack of due process.
The City of Billings argues that the investigative report to
which Abbey objects was a Billings Police Department Internal
Affairs Summary dated May 19, 1992. The report contained a summary
of the evidence against Abbey, including reference to the polygraph
test. Captain Douglas Dreezen (Captain Dreezen) who had recovered
the side trim from car #1421 wrote the report. Captain Dreezen
also testified to the actual site of the accident. According to
the City of Billings, this report was neither admitted into
evidence nor was it considered by the Police Commission.
The District Court must review the findings of a police
commission as to whether the commission findings are supported by
substantial evidence. Gentry v. City of Helena (1989), 237 Mont.
353, 773 P.2d 309. When the decision on review by a district court
of proceedings before a police commission is conducted under § ?-
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, § Z-4-704(2) (a), MCA. Termination of
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Wong (1992), 252 Mont. 111, 827 P.2d 90.
Here, Abbey has claimed that he was prejudiced because his due
process rights were violated by the Commission's refusal to grant
a dismissal due to having seen improper evidence. Therefore, we
will review the Commission's decision as to whether the Commission
was in "violation of constitutional or statutory provisions" and
whether the Commission's refusal to dismiss was "arbitrary or
capricious or characterized by abuse of discretion." Section 2-4-
704(Z) (a) (i) and (vi), MCA.
The District Court found that Abbey was not prejudiced by the
Commission's having seen the objectionable documents. The court
stated that many times a court acting as a finder of fact has to
determine whether evidence can be admitted. Here, the Commission
determined that it would not consider the results of the polygraph
test nor permit the officer involved to testify. The Commission
determined that such prohibition would prevent prejudice to Abbey.
In evaluating Abbey's due process rights, we note that
firefighters have a property interest in their position because of
the civil service nature of their employment. Welsh v. City of
Great Falls, (1984), 212 Mont. 403, 690 P.2d 406. We alluded to
the same property interest held by police officers. Termination of
Wong (1992), 252 Mont. at 118-19, 827 P.2d at 95. In Cleveland
Board of Education v. Loudermill (1985), 470 U.S. 532, 542, 105
S.Ct. 1487, 1496, 84 L.Ed.2d 494, 504, the United States Supreme
Court held that notice and an opportunity to respond to the charges
constitutes the process due an employee with a property interest in
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his employment.
The Police Commission provided Abbey his due process rights.
The Commission provided notice and a hearing at which Abbey was
adequately represented by counsel. Abbey's contention that strict
adherence to the rules of evidence is the minimum process due him
has no foundation in the law. Nor is there any indication here
that the rules of evidence have been ignored or applied
incorrectly.
Further, Abbey has not demonstrated prejudice from the
Commission's refusal to dismiss his action following the
Commission's perusal of objectionable papers. The Commission
correctly cited Montana's law concerning polygraph results, and
refused to consider such results or permit testimony of the officer
in question. The Commission did not act arbitrarily in its refusal
to dismiss because the Commission considered the appropriate law
and specifically refused to accept into evidence the results of the
polygraph test and the summary of evidence against Abbey. Abbey
was provided proper hearing and no action by the Commission
prejudiced Abbey's ability to be heard.
We conclude the Commission did not abuse its discretion by
acting arbitrarily when it refused to dismiss the action because of
the questionable documents.
We hold the District Court did not err in affirming the
Billings City Police Commission's denial of Abbey's Prehearing
Motion to Dismiss.
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II.
Did the District Court err in holding that the
expert testimony of Officer John Carpani and Captain
Douglas Dreezen regarding the accident was proper and
that any opinion testimony from Larry Deschene and Cliff
Fillner was harmless error?
At the Commission hearing Officer Carpani, Captain Dreezen,
and Motor Pool Manager Larry Deschene (Deschene) and City of
Billings Purchasing Agent Cliff Fillner (Fillner) testified
concerning technical information and certain opinions as to the
possible place of damage to car #1421.
On review of the Commission proceedings, the District Court
determined that Deschene and Fillner were not expert witnesses in
accident reconstruction and, therefore, they should not have
testified concerning their opinions as to what actually happened to
police car #1421. However, the court determined that this was
harmless error. The court also determined that Officer Carpani and
Captain Dreezen had been sufficiently qualified to testify as
expert witnesses.
Abbey argues that it was not harmless error to allow Fillner
and Deschene to testify concerning their opinions of the accident.
Abbey further contends that Officer Carpani and Captain Dreezen are
not experts in accident reconstruction. The City of Billings
argues that both Officer Carpani and Captain Dreezen investigated
many vehicular accidents. According to the City of Billings,
Officer Carpani had special training in accident reconstruction.
The City of Billings also contends that the opinion testimony of
Deschene and Fillner should not have been ,permitted by the
Commission but that its inclusion did not prejudice Abbey.
A. Expert Testimony
An expert witness is one who is able to provide understanding
that is beyond the jury's experience. Mason v. Ditzel (1992), 255
Mont. 364, 842 P.2d 707. The District Court had to determine
whether the Commission made an "error of law" in permitting the
opinions of Captain Dreezen, Officer Carpani as well as Deschene
and his assistant Fillner. Section 2-4-704(2) (a) (iv), MCA. We
will use the same standard when reviewing the District Court.
Officer Carpani testified that he had investigated many
vehicular accidents in his years on the police force. In addition,
Officer Carpani testified that he had attended a two week school at
Northwest University for the purpose of studying accident
reconstruction. Officer Carpani also testified that part of his
job with the police force involved investigating serious accidents.
There is no question that Officer Carpani was qualified as an
expert in accident reconstruction. He has special knowledge in
accident reconstruction gained at a reputable University and has
used that knowledge in his employment with the City of Billings.
He was qualified as an expert and his opinions as to the site and
cause of the accident were appropriate. The District Court did not
err in finding Officer Carpani qualified as an expert.
Captain Dreezen is the Captain of Operations Division; his job
responsibilities include internal affairs investigations of his
officers. He testified that part of his job duties involved
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investigations into police vehicle damages. The present action is
an outgrowth of his internal investigation concerning the damage to
Abbey's car. Captain Dreezen testified that he had investigated
many vehicular accidents in his years on the force. In a prior
case we determined that a policeman with 14 years experience was
properly permitted to testify to the cause of an accident. Hart-
Anderson v. Hauck (1989), 239 Mont. 444, 781 P.2d 1116. Although
the record does not tell us the number of years Captain Dreezen has
spent on the police force, his testimony clearly evinced years of
investigation into vehicle damage and his familiarity with
investigation of vehicular accidents in general:
A. . . .Two vehicles strike each other, it knocks debris,
dirt, mud, whatever from underneath the fender wells, and
ends up on the street or the pavement or whatever.
Q. In your experience, does that happen when a car is
merely parked in a spot with no collision?
A. With no collision?
Q. No impact.
A. No.
Captain Dreezen went on to testify that the parking spot in
which Abbey claimed to have found the damaged car, had none of
those things. The parking spot was clean when Captain Dreezen
inspected it. Captain Dreezen subsequently investigated the
dumpster where Abbey said that he had thrown the piece of strip
molding trim that had been loose on the car.
Captain Dreezen testified that he also investigated the area
around the dumpster because he did not feel that the damage had
occurred as reported by Abbey. Captain Dreezen testified at length
9
about where he felt the real site of the damage occurred. The City
introduced pictures of the railroad switch which allegedly did the
damage and also pictures of the switch in relation to the damage on
the car. Captain Dreezen testified to the white paint on the
switch and the white paint chips found at the base of the switch.
Car #1421 is white. Further Captain Dreezen testified that the
black substance found on car #1421 was the same substance that
existed on the switch itself.
Captain Dreezen supported every detail of his testimony by
logical analyses from his experience and reasons for his
assumptions concerning the damage and the site of the damage. The
only piece of unsupported speculation in Captain Dreezen's
testimony was objected to by Abbey's counsel and sustained by the
Commission.
We conclude that the District Court did not err in determining
that Captain Dreezen and Officer Carpani were sufficiently
qualified as expert witnesses and could, therefore, give their
opinions concerning the possible sources of damage to car #1421.
B. Lay Opinions
Abbey objects to the following opinions in the testimony of
Deschene and Fillner:
Deschene: And to me it didn't look like -- it looked
highly unlikely that the damage could have happened in
that spot.
Deschene: There was damage underneath the fender part on
the bottom part of the vehicle that appeared that the car
was hit on the bottom, or ran over something.
Fillner: The direction of the scrape appeared to me that
the car had been moving backwards.
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The Commission allowed this testimony over Abbey's counsel ' s
objection. Both parties in this case recognize that the above
testimony is improper lay witness testimony. The District Court
concluded that the testimony should not have been permitted. The
court determined that the inclusion of these opinions from lay
witnesses was harmless error.
Abbey argues that the cumulative effect of the lay testimony
prejudiced him. The City of Billings argues that the lay witnesses
merely testified to facts already in evidence.
Harmless error is an error committed during the trial
proceedings which does not affect the substantial rights of the
party. Barrett v. Asarco Inc. (19901, 245 Mont. 196, 799 P.2d
1078. Thus, in order for the District Court to reverse the
Commission, Abbey had to show that Deschene's and Fillner's
testimony violated his substantial rights. We conclude that he has
not shown that.
The majority of Deschene's and Fillner's testimony constituted
their observations of the parking space occupied by car #1421 as
well as their observations of the car itself. Personal
observations by lay witnesses are admissible in evidence. The
objectionable opinions, although not properly permitted by the
Commission, are no more than repetitions of the much more detailed
testimony of the police experts, Captain Dreezen and Officer
Carpani. Because the opinions of Deschene and Fillner added
nothing new and controversial to the hearing, and Abbey has not
shown that the testimony affected his substantial rights, we
11
conclude that the opinions offered by Deschene and Fillner were
harmless error.
Therefore, we hold that the District Court did not err in
determining that the opinions erroneously admitted during the
Commission proceedings from Deschene and Fillner were merely
harmless error.
III.
Did the District Court err in upholding the Billings
Police Commission's denial of Abbey's motion for a ruling
of "Not Proven" following the City's case-in-chief?
At the end of the City of Billing's case-in-chief, Abbey's
attorney petitioned the court to make a finding of "not-proven"
concerning all four counts of the charges against Abbey. This
motion is the same as a directed verdict. A directed verdict is
properly granted when it appears as a matter of law that the
nonmoving party could not recover upon any view of the evidence.
Nautilus Ins., Inc. v. First National Ins., Inc. (1992), 254 Mont.
296, 837 P.2d 409.
The Commission determined that enough evidence had been
presented to it to require continuation of the hearing. When
reviewing denial of motion for directed verdict, only substantial
evidence in the record supporting the jury's [trier of fact's]
finding is required. Nelson v. Flathead Valley Transit (1992), 251
Mont. 269, 824 P.2d 263. Also in reviewing a denial of a motion
for directed verdict, we must take the plaintiff's evidence as
presented to be true. Krueger v. General Motors Corp. (1989), 240
Mont. 266, 783 P.2d 1340. Here, when accepting the City's evidence
12
as true, the District Court was correct in determining that
substantial evidence existed to continue the hearing.
Two experts testified that the accident could not have
happened where Abbey found the car at the beginning of his shift.
Further, the City introduced evidence in the form of photographs
that showed a direct match between the damage to the car and the
railway switch that Captain Dreezen determined had been the cause
of damage to car #1421. Both the Motor Pool Manager and Purchasing
Agent testified that they observed no evidence of an accident at
the spot that Abbey claimed he found the car already damaged. This
evidence constitutes enough evidence to warrant a continuation of
the hearing.
We conclude that the District Court did not err in upholding
the Billings Police Commission's denial of Abbey's motion for a
ruling of "Not Proven" following the City's case-in-chief.
IV.
Did the District Court err in upholding the Billings
Police Commission's finding that there was substantial
evidence to show that Abbey was guilty of the alleged
misconduct?
Abbey argues that the City had no evidence for their case
except for inadmissible hearsay and conjecture. Abbey claims that
the only appropriate evidence at the hearing came from his own two
eye-witnesses who testified that the damage had been done to the
car before the time Abbey testified he became responsible for the
car. The City of Billings argues that the record presents
overwhelming evidence that Abbey was not telling the truth about
the damage to car #1421.
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The Commission was required to use the substantial evidence
standard of proof. Gentrv, 237 Mont. at 358, 773 P.2d at 312-13.
"Substantial evidence is that evidence that a reasonable mind might
accept as adequate to support a conclusion; it consists of more
than a mere scintilla of evidence but may be somewhat less than a
preponderance." Barrett, 245 Mont. at 200, 799 P.2d at 1080.
The Commission issued the following findings:
1. Police Car #1421 was damaged by being backed into a
railroad switching device located on Montana Rail Link
right-of-way near Minnesota Avenue and South 27th Street.
2. The damage occurred sometime between 9:00 p.m. on
March 24, 1992, and 3:00 a.m. on March 25, 1992. The
vehicle strip molding located in a dumpster near
Minnesota Avenue and South 23rd Street came from police
car #1421.
3. Officer Abbey placed the strip molding from police
car #1421 in the dumpster.
4. Officer Wayne Abbey was driving car #1421 at the
time it was damaged. He did not disclose essential
information concerning that damage, including his
knowledge of where the accident occurred. Officer Abbey
did not report the accident when the accident occurred,
nor did he remain at the scene of the accident.
5. Officer Abbey's written supplement concerning the
damage to police car #1421 was inaccurate and misleading.
The District Court in reviewing these findings used the
substantial evidence test. Gentrv, 237 Mont. at 358, 773 P.2d at
312-13. The court found substantial evidence to support the
Commission's findings. In reviewing the record, we conclude that
substantial evidence exists to uphold the court's findings.
The record shows overwhelming physical evidence that the
damage could not have happened in the parking spot where Abbey
first took responsibility for car #1421. Both testimony and
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physical evidence showed that it occurred at the railroad switch
near the dumpster where Abbey deposited the car trim. Further,
there is no question that Abbey did not report the accident when it
happened but waited until approximately five hours into his shift
to inform the police department of the damage. Even if one assumes
the truthfulness of Abbey's claims that the damage was waiting for
him at the beginning of his shift, the fact remains that he did
nothing to report the damage as required by police regulations.
A number of witnesses testified that the parking spot in which
the car was located showed no signs of any accident having occurred
there. The only person to have noticed anything about the parking
spot was Abbey as reported in his accident report. He claims that
he found physical evidence of the damage having been done there,
but this evidence was never presented at trial nor corroborated by
any of the other witnesses. The only physical evidence presented
showed that the accident occurred in a railroad yard.
Abbey argues that he had two eye-witnesses that testified that
the damage happened before he took responsibility for his car on
the evening of March 24, 1992. The record shows that the testimony
of three officers was presented concerning the damaged car. None
of these witnesses were "eye-witnesses." Their testimony was
contradictory and equivocal.
We conclude that the record contains substantial evidence that
the City's charges against Abbey were correct and that the court
was not in error in upholding the Commission's decision.
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V.
Did the District Court err in affirming the Acting
City Administrator's decision to modify Abbey's
punishment?
In an order dated October 2, 1992, the Acting City
Administrator, Bruce McCandless (McCandless) confirmed the Police
Commission ruling and modified the three-week suspension that the
Commission had levied. McCandless stated that Abbey had violated
the trust of the citizens of Billings by submitting an untruthful
report. He, therefore, terminated Abbey from the police force.
Abbey argues that the City Administrator acted beyond his
authority. The City of Billings argues that the City Administrator
has the jurisdiction to modify the decision of the Police
Commission.
In reviewing the actions of the City Administrator, the
District Court concluded that the City Administrator had not
exceeded his authority pursuant to 5 7-32-4160, MCA, when he
modified the ruling of the Police Commission.
The law in effect at the time of the hearing before the
Commission was the 1991 version of our codes. Section 7-32-4160,
MCA (1991), reads:
Decision by police commission -- veto power of mayor.
(1) The police commission must, after the conclusion of
the hearing or trial, decide whether the charge was
proven or not proven and shall have the power, by a
decision of a majority of the commission, to discipline,
suspend, remove, or discharge any officer who shall have
been found guilty of the charge filed against him.
(2) Such action of the police commission shall, however,
be subject to modification or veto by the mayor, made in
writing and giving reasons therefor, which shall become
a permanent record of the police commission; provided,
however, that where and when the police commission
16
decides the charge not proven, the decision is final and
conclusive and is not subject to modification or veto by
the mayor or to any review.
(3) Where the oolice commission decides the charqe
proven, the mayor, within 5 days from the date of the
filing of such findings and decision with the city clerk,
may modify or veto such findinqs and decision. (Emphasis
added.)
Section 7-32-4153, MCA (19911, describes a mayor as a:
. . . "city manager", "city commissioner", or any other
name or designation used to identify or designate the
chief executive of any city or municipality.
It is clear from the wording of this statute that McCandless
did not exceed his authority by modifying Abbey's punishment. The
record shows that McCandless filed his modification within the time
limit permitted by the statute.
This Court upheld the plain meaning of this statute. In
Gentry, 237 Mont. at 362-63, 773 P.2d at 315, the Police Commission
recommended that three officers receive only temporary suspensions.
The City Manager modified the ruling terminating all officers and
we upheld that action.
However, we note that the 1993 Legislature has deleted
subsection (2) and (3) of 5 7-32-4160. 1993 Mont. Laws 1661. That
statute now reads:
Decision by police commission. The police commission
shall, after the conclusion of the hearing, decide the
appeal and must have the power, by a decision of a
majority of the commission, to sustain, modify, or
overrule the disciplinary order of the mayor, city
manager, or chief executive.
This is a drastic departure from the 1991 version.
We conclude that pursuant to the 1991 version of § 7-32-4160,
MCA, the City Administrator had the authority to modify the
17
decision of the Police Commission. We hold the District Court did
not err in affirming the Acting City Administrator's decision to
modify Abbey's punishment.
Affirmed.
We Concur:
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