Summary
In Reeb v. Civil Serv. Comm'n, 31 Colo. App. 488, 503 P.2d 629, 631 (1972), the Colorado Supreme Court decided a permanently certified employee under civil service may be removed or disciplined only upon written charges and hearing.
Summary of this case from Yakima v. Yakima PoliceOpinion
No. 71-180
Decided November 28, 1972.
State civil service employee brought this action to review Civil Service Commission's order discharging her from her employment. District court ordered reinstatement of employee, and Civil Service Commission appealed.
Affirmed
1. CIVIL SERVICE — Employee — Removed — Discipline — Only — Written Charges — Hearing. A permanently certified employee under civil service may be removed or disciplined only upon written charges and hearing.
2. Disciplinary Hearing — Only Charge — Employee — Committed Crime — Court Acquittal — Conclusive — Bars Redetermination — Commission. Where the only charge against civil service employee at disciplinary hearing was that she had committed criminal offense of shoplifting on a specified date, the employee's acquittal of that charge by a court of competent jurisdiction is a conclusive determination on the issue of her guilt and operates as a bar to a redetermination of that issue by Civil Service Commission in the disciplinary proceedings.
3. Disciplinary Hearing — Sole Allegation — Employee — Committed Crime — — Acquittal of Charge — Causes — Allegation to Fail. Although, in general, the acquittal of a civil service employee in criminal proceedings does not bar the institution of disciplinary proceedings against such employee, where the sole allegation against plaintiff in disciplinary hearing was that she had committed a specific crime on a specific date, her acquittal of that charge in an appropriate criminal action causes the allegation to fail, and thus the Commission's discharge of plaintiff may not stand.
4. Effective Date — Rule Allegedly Violated — Subsequent — Date of Violation — Employee — May Not Be Discharged. Where civil service rule which employee was alleged to have violated had as its effective date, a date subsequent to the date the alleged violation was to have occurred, the employee may not be discharged for violation of a rule that was not in existence at the time of the alleged violation.
Appeal from the District Court of the City and County of Denver, Honorable Saul Pinchick, Judge.
Holme, Roberts Owen, John L. Kane, Jr., for plaintiff-appellee.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Robert L. Hoecker, Assistant, for defendant-appellant.
Carol Jean Reeb, plaintiff-appellee, a certified employee in the classified service of the State of Colorado, held a position as supervisor at Mount View Girls School. She was suspended from this position and later discharged by her supervisor. Subsequently, the Civil Service Commission of the State of Colorado sustained the suspension and dismissal of plaintiff, and she brought the present action for review of the final order of the Commission. The trial court set aside the Commission's order and directed the Commission to reinstate plaintiff. We affirm the judgment.
In the proceedings before the Commission, a bill of particulars was filed setting forth the charge against plaintiff. The material allegations were:
I.
"On November 21, 1968, the Respondent, Carol Jean Reeb, was suspended from employment at the Mount View Girls' School as a result of information regarding charges of shoplifting against the Respondent; thereafter, on the basis of additional information the Respondent was dismissed as of December 12, 1968 for violation of a state statute contrary to Article XI, Section C, 2a of the Colorado Civil Service Rules and Regulations as more fully set forth in paragraph II hereafter.
II.
"On September 26, 1966, the Respondent, Carol Jean Reeb, did willfully and unlawfully take possession of merchandise owned and offered and displayed for sale by the Joslin Dry Goods Company in its store located in the Villa Italia Shopping Center in Jefferson County, Colorado, with the intention of feloniously converting such merchandise to her own use without paying the purchase price therefor, contrary to the provisions of C.R.S. '63, 40-5-28, as it appeared on September 26, 1966."
In answer to the charge, plaintiff established by official records that a criminal prosecution had been commenced against her in the County Court in Jefferson County in which it charged that on September 26, 1966, plaintiff took certain merchandise from Joslin Dry Goods Company with the intention of feloniously converting such merchandise to her own use contrary to the provisions of C.R.S. 1963, 40-5-28. The criminal prosecution was terminated, and judgment of acquittal was entered after trial of the case. Plaintiff moved the Commission for a dismissal of the disciplinary proceedings on the grounds that her acquittal in the criminal case constituted a complete defense to the charge contained in the bill of particulars. The Commission overruled the motion, proceeded to take evidence, found that on September 26, 1966, plaintiff had willfully and unlawfully taken merchandise from Joslin Dry Goods Company contrary to the laws of the State and the rules of the Commission, and ordered her discharged.
[1] A permanently certified employee under civil service may be removed or disciplined only upon written charges and hearing. McDevitt v. Corfman, 108 Colo. 571, 120 P.2d 963; Benson v. People ex rel. McClelland, 10 Colo. App. 175, 50 P. 212.
[2] The only charge against plaintiff which the Commission could consider was the one set out in the bill of particulars. The charge therein contained was that plaintiff committed the criminal offense of shoplifting on September 26, 1966. Her acquittal of the criminal charge by a court of competent jurisdiction is a conclusive determination on the issue of her guilt and operates as a bar to a redetermination of the same issue by the Commission. See Sell v. United States, 336 F.2d 467.
Our Supreme Court in Harper v. Blasi, 112 Colo. 518, 151 P.2d 760, recognizes the rule that where the same acts or transactions constitute a crime and also a private wrong, the acquittal of defendant upon trial of the criminal offense is no bar to the prosecution of the civil action against him. The Commission contends that since disciplinary proceedings are civil in nature such proceedings are not barred by an acquittal in criminal proceedings based upon the same transaction which forms the basis of the disciplinary proceedings. Although the Commission's contention is a correct statement of the general rule, the specific terms of the charges filed against plaintiff make it inapplicable to the present case.
[3] As a basis for her discharge, plaintiff was not accused of conversion or other civil wrongs; rather, the sole accusation against her was that, on a specific date, she had committed the crime of shoplifting. However, the Commission has no jurisdiction to try, or re-try, plaintiff on such a criminal charge, and the acquittal judgment in the criminal action conclusively establishes that plaintiff was not guilty of the crime charged. Thus, the sole allegation against plaintiff in the disciplinary proceeding fails, and the Commission's discharge of plaintiff may not stand.
[4] There is an additional defect in the proceedings which would also require that the Commission's order be set aside. The civil service rule which plaintiff was alleged to have violated has as its effective date January 1, 1968. Yet, the alleged violation took place on September 26, 1966. Rules and regulations of the Civil Service Commission may not be applied retroactively. See California Co., v. State, 141 Colo. 288, 348 P.2d 382; McCowan v. Equitable Life Assurance Society, 116 Colo. 78, 179 P.2d 275. Plaintiff may not be discharged for violation of a rule of the Commission that was not in existence at the time of the alleged violation.
Judgment affirmed.
JUDGE PIERCE and JUDGE SMITH concur.