Paytas v. City of Warren Police Department 71 Mich. App. 403

J. H. Gillis, P. J.

Plaintiff was suspended from the Warren Police Department and ultimately dismissed from his position as a Warren Police Officer. The Warren Police and Fire Civil Service Commission upheld this dismissal on March 14, 1974. The decision of the civil service commission was appealed to the Macomb County Circuit Court and affirmed by an order of that court dated September 30, 1975. Plaintiff now appeals from the circuit court order.

Plaintiff had a history of mental and physical health problems. He had been lawfully absent from work since March 23, 1973, and was awaiting the outcome of a petition for medical disability retirement. In late August of 1973 the petition for disability retirement was denied, and plaintiff was subsequently ordered back to work. Plaintiff, however, did not return to duty. Senior Inspector Charles L. Groesbeck then submitted a recommendation of dismissal to Warren Police Commissioner Milford S. Gilliam. That recommendation contained background information concerning plaintiff’s history of problems and certain circumstances indicating plaintiff’s possible incompatibility with his coworkers. The recommendation also contained a list of formal charges and specifications that constituted the grounds for dismissal. Plaintiff’s refusal to return to duty provided the basis for the central charge, wilful disobedience of orders. Com*406missioner Gilliam suspended and ultimately dismissed the plaintiff, basing his decision upon the formal charges set forth by Senior Inspector Groesbeck. Subsequently, a civil service hearing was conducted upon the charges, and the order discharging the plaintiff from the Warren Police Department was upheld. The civil service commission found plaintiff guilty of four charges: 1) wilful disobedience of orders from a superior officer; 2) being absent from duty without permission; 3) making a false statement or report; and 4) being absent from home, while unable to report for duty, without first reporting to the officer in charge.

On appeal plaintiff first argues that it was improper and prejudicial under MCLA 38.514; MSA 5.3364 for Commissioner Gilliam, and subsequently the civil service commission, to consider the letter, prepared by Inspector Groesbeck, recommending dismissal. Plaintiff contends that the letter contained prejudicial background material and incidents arising more than 90 days prior to the formal charges. At the beginning of the hearing before the civil service commission, counsel for the plaintiff made this same objection. The commissioners admitted some familiarity with the recommendation for dismissal. However, each commissioner indicated on the record that the decision of the commission would be made upon the evidence submitted. Moreover, there is no evidence on the record that the commission considered the contents of the letter recommending plaintiff’s dismissal in determining plaintiff’s guilt or the punishment imposed. Further, the instant case does not come within the holding of Konyha v Mount Clemens Civil Service Commission, 393 Mich 422; 224 NW2d 833 (1975), where a civil service commission considered a fireman’s entire *407record, including prior misconduct that had been the subject of punishment, when determining the punishment for a subsequent offense. Konyha merely precludes the consideration of uncharged allegations of misconduct when disciplining a fireman or policeman. The background material present in the recommendation for dismissal was not an exposé of prior misconduct but was more in the nature of a history of plaintiff’s health problems and an explanation of the circumstances immediately preceding plaintiff’s refusal to return to duty. Finally, plaintiff testified on direct examination substantially as to the matters which appear in the letter recommending dismissal. These background matters were explored in an attempt by the plaintiff to explain his health problems and his subsequent refusal to return to duty. Due to the foregoing reasons, we find this argument to be without merit.

Next, plaintiff alleges that a new charge was brought against him for the first time during the civil service commission hearing — i.e., by being absent for five days without permission, plaintiff automatically resigned per a department regulation. We find this issue also to be without merit. While there is argument on the record to the effect that plaintiff’s absence for more than five days should constitute an automatic resignation, the commission ruled that this would not be considered as a charge against the plaintiff. Furthermore, such a charge or finding does not appear in any form in the commission’s final order of dismissal.

Finally, plaintiff argues that there was insufficient evidence to support the basic charge, wilful disobedience of orders, because plaintiff relied upon advice from his doctor and lawyer before *408refusing to return to work. We have reviewed the record and determine that the civil service commission’s finding of guilty of wilful disobedience of orders is supported by competent, material and substantial evidence. Hunn v Madison Heights, 60 Mich App 326; 230 NW2d 414 (1975).

We have considered appellee’s allegation that this matter is improperly before the Court and find such allegation without merit in light of Jones v Chrysler Corporation, 394 Mich 432; 231 NW2d 642 (1975).

Affirmed. Costs to appellee.

W. Van Valkenburg, J., concurred.

T. M. Burns, J.

(dissenting). Plaintiff argues that his "basic right to a fair and impartial hearing” was denied him by the prior submission to and consideration by the commission of a police department memo outlining a history of plaintiff’s problems with superior officers.

"A departmental trial board hearing is not a trial and, therefore, need not comply with all the rules of evidence and procedure applicable to a trial. However, because a trial board hearing affects an 'important interest’, i.e., the officer’s employment future, the hearing must comply with 'rudimentary due process’.” Sponick v Detroit Police Department, 49 Mich App 162, 188; 211 NW2d 674 (1973).

In Konyha v Mount Clemens Civil Service Commission, 393 Mich 422; 224 NW2d 833 (1975), the Supreme Court found a local civil service commission’s consideration of uncharged allegations of past misconduct improper in discharging a fireman for sleeping through roll call. The Court held that the firemen and policemen’s civil service act, *409MCLA 38.501 et seq.; MSA 5.3351 et seq., precludes an appointing authority from considering uncharged allegations of employee misconduct when disciplining a fireman or policeman. Konyha, supra, at 424.

Attached to the charges against the plaintiff submitted to the civil service commission was a detailed account of the background for the charges. The memorandum reflected poorly upon plaintiff’s performance as a police officer in relation to fellow officers and his superiors and provided support for the conclusion that plaintiff should be discharged. I have no doubt that the author of the memorandum had no improper motive in presenting the document to the commission before the hearing, and I am sure that the commissioners attempted to disregard the memorandum and to judge only the facts brought out at the hearing.

Submission of the memorandum, however, was highly improper and certainly violated "rudimentary” due process. I must conclude that the plaintiff was prejudiced by the memorandum’s submission to and consideration by the commissioners before the hearing; indeed, even before the formal charges were set out. I don’t believe that the plaintiff could have received a fair hearing before an impartial commission under the facts of this case.

I would reverse the order of the circuit court and set aside the order of dismissal of the civil service commission.