Retired, dissenting:
The majority affirms the trial court (except as to damages) because “a number of the procedural formalities essential for a fair determination of an officer’s right to administrative sick leave were absent in the instant case .... ” This, says the majority, requires the conclusion “that appellee was denied procedural due process in his Police Department hearing .... ” (ante at 524.)
As nearly as I can understand it, the majority reaches its conclusion because it says some fundamental elements of procedural due process of law were lacking at the administrative agency level. But, on the other hand, the majority concludes there is a lack of a record of the administrative proceedings in this case. As I read the opinion, the court says the record does not reveal whether Officer Jones received procedural due process1 and therefore it holds that he was deprived of it. I find that passing strange.
Not only is the majority opinion inherently inconsistent, but one is unable to understand what it really stands for — except that it holds there was a denial of due process of law and affirms the judgment (except for damages).
Essentially, it misapplies the exposition in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), on the fundamentals of due process in administrative hearings. There, the issue was whether due process requires that prior to the termination of Social Security disability benefits, the recipient must be afforded an opportunity for an evidentiary hearing. After an exploration of due process requirements in administrative hearings, the Court held that an evidentiary hearing was not required. The majority would have done well to benefit from the guidance of Eldridge.
I believe the court’s opinion, if allowed to stand, will cause untold confusion in the personnel administration of the local government. At the least, the majority should take us into its confidence on what it is actually deciding in the matter of procedural due process of law. In an important sense, the court leaves the field of administrative law in disarray in this jurisdiction.
. E.g„
(a)“We are unable to determine from the record what notice, if any, Officer Jones received of his rights before the Police Department Police and Fire Clinic Division.”
(b) “The record is silent as to the extent to which Officer Jones’ rights to know the evidence against him and respond to it were protected.”
(c) “Although it is uncontested that Officer Jones was permitted to be represented by counsel, it is not ascertainable from the record at what time he was apprised of this right.” (Emphasis added.)
(d) “The record is silent too as to whether Officer Jones was allowed by the Police Department Police and Fire Clinic Division to call witnesses and to cross-examine government witnesses.”