Opinion
No. 161301.
1947-10-16
STATE ex rel. MERRILL v. GREENBAUM et al.
Bailey & Bailey, of Akron, for relator. Roy E. Browne, City Law Director, and Alexander Greenbaum, both of Akron, for defendants.
Mandamus action to compel payments of police pension by the State of Ohio, on relation of DePerry W. Merrill, against Alexander S. Greenbaum and others.
Writ granted.Bailey & Bailey, of Akron, for relator. Roy E. Browne, City Law Director, and Alexander Greenbaum, both of Akron, for defendants.
RAY B. WATTERS, Judge.
The relator, DePerry W. Merrill, a retired policeman, brings this action against the Trustees of the Police Pension Fund of the City of Akron, Ohio, and John Currie, Director of Finance of said City, in mandamus, to compel payment of a pension for nearly twenty-one years service on the Police Department of Akron; said Board having rejected his application for pension on February 27, 1947.
He alleges that he served as such policeman from July 20, 1926, to November 2, 1946, when he voluntarily resigned.
The defendant Board of Trustees in the first defense, after admitting certain matters not in dispute, defends on the ground that under Section 16 of the Pension Board rules it was invested with a discretion to refuse to grant him a pension, and that it did so because of his neglect and non performance of duty as a police officer.
The second defense is that the relator did not resign voluntarily from the department, but that he was forced to resign because of non-feasance and mal-feasance in office.
The third defense is a sort of public policy defense, and the fourth defense is in the nature of a general denial.
The reply of the relator is a general denial of the answer.
The relator for some time prior to November 2, 1946, was a member of the vice squad of the Akron Police Department. He was a patrolman only and spent the major part of his time in the office answering calls and receiving complaints, and so forth, on the phone. He had suffered a heart condition some time before. On December 5, 1944, he turned down a chance to become a sergeant, when in a letter to Mr. Ream of the Civil Service department, he requested that his name be withdrawn from the eligible list of sergeants due to ill health. (See Relator's letter and Exhibit 2.) At times he went out on raids when so ordered by his superior in charge of the squad, Lieutenant Clarence Cunningham.
Generally then the evidence showed that he was on what is termed light work due to his health and probably his long service.
On or about November 2, 1946, the administration authorities became dissatisfied with vice conditions. Lieutenant Cunningham had been ‘called on the carpet’ and had resigned. Thereafter Mr. Merrill was called into the Mayor's office, in the presence of the Chief of Police Lynett, the Mayor, Mr. Slusser, and Mr. Browne, the Law Director, apparently on the theory that he was acting in the capacity of assistant chief of the vice squad, probably due to his position in the office.
Actually he was not in such position of authority, but merely a patrolman member of the squad the same as other members thereof, with perhaps some seniority rights due to long service. In other words, his position was comparable to that of a private in the army, the police departments generally being conducted along military lines, and those of us who are familiar with that know that as such private you take orders from your immediate and other superiors, but do not give any.
There is some dispute as to what was said, but in general and in substance he was told that certain vice conditions were not being handled by the squad, and he was therefore guilty of neglect of duty and would have to resign or face charges. There is testimony to the effect that he said in substance ‘I guess I am guilty of that but nothing else.’
The evidence shows that no specific act or acts of wrongdoing were presented against him then, or at this trial, or before the Pension Board. Therefore the only conclusion the court can reach is that no such specific charges existed, or could have been filed against him, or, if filed, could have been proven.
Also his civil service record shows no suspensions over the years and that he resigned in good standing.
The evidence further shows that Merrill at said conference above mentioned on November 2, 1946, said in substance that he was ready to quit anyhow because of ill health; that he didn't want any fight, and that all he wanted was his pension, and he did thereupon sign the resignation addressed to the Pension Board (Relator's Exhibit 3) and see also (Relator's Exhibit 5).
There was also some talk about his pension matter being up to the board, but that the Mayor would do nothing to oppose it. (See Mayor's testimony.)
Between then and February 27, 1947, the date when the Pension Board at its hearing turned down his pension, various articles appeared in the newspaper concerning Merrill's resignation and other matters concerning the affair. These articles were read to and by the Pension Board members. (See page 7 bottom of Relator's Exhibit 9 covering the hearing.)
No hearing of testimony was had by said Board at the hearing. No witnesses were called before it, although Merrill was given an opportunity to testify. (See later on this.) The rules of the board are silent upon this. It is probably true that the Board has no power to subpoena witnesses in, and there seems to be no specific procedure provided for a hearing, although I would see no reason to prevent calling in those willing to testify. It would seem that rules should be adopted on that for future matters. The Board it appears relied upon the newspaper articles and rumors and information that they as members had individually picked up here and there.
As was said at the trial, these newspaper articles were admitted in evidence not for any probative value they might have as proof of Merrill's guilt of any misconduct, but simply because the Pension Board members did consider them in their decision to refuse the pension. These articles of course were no evidence of misconduct before the board and could not be so considered.
The Board took the position that their attention was thus publicly challenged to the matters set forth therein, and that this placed the burden on Merrill of coming before them and proving his innocence.
His then counsel took the correct position that it was up to the Board to first entertain evidence proving his guilt, and that not having been done, advised his client not to offer himself. (See Relator's Exhibit 9 at page 3, the stenographic report of the hearing before the Board.)
However the Board did offer him the opportunity of appearing before it, so it cannot be said that he was deprived of his right to present his claim. This in itself distinguishses the present case from Wright v. Morrison, 80 Ohio App. 135, 75 N.E.2d 106.
In that case no hearing was held and no opportunity given claimant to present her claim. So that court held that the court could not order the pension, but should send the case back to the Board for a hearing and determination.
The Court in that case on page 148 of 80 Ohio App., on page 112 of 75 N.E.2d, cited Dawn v. Kyle, 75 Ohio App., 30, 60 N.E.2d 733, and this language therein with approval:
‘[only when the board accords] such a hearing and makes an affirmative finding in her favor, or arbitrarily, and unreasonably, and in bad faith refuses to do so, when in actual fact she is entitled, does a non-discretionary duty arise to pay her the pension.’ (Italics by this court.)
In other words the court said that the board cannot arbitrarily and unreasonably refuse the pension. This is another distinguishing element in our case from 80 Ohio App. 135, 75 N.E.2d 106, cited above. This latter phase is more fully discussed later herein.
There is no question but what the Board was wrong in its hearing procedure, but in fairness to them it should be said that they felt that they had the primary duty of protecting the fund in their trust, and they therefore put the burden upon Merrill of proving his claim in court (see Relator's Exhibit 9), and further they were disturbed by the question of whether the resignation was ‘voluntary’ as used in the rule, and were under the impression that they could refuse the pension at all events if they so desired.
With these last mentioned questions we will now concern ourselves, to-wit:
(1) Did the Pension Board have the right to exercise an arbitrary discretion in granting or refusing the pension?
(2) And was Merrill's resignation ‘voluntary’ in the sense that that term is used in Section 16 of the rules of the Board?
In the case of State ex rel. Dieckroegger v. Conners et al., 122 Ohio St. 359, 171 N.E. 586, 587, the City of Cincinnati police relief fund was in issue. The pension board there had passed rule 45 which provided that ‘Any member of the Police Department who has served fifteen consecutive years, who is discharged for any offense other than dishonesty, cowardice or being convicted of a felony, shall, upon the approval of the Board of Trustees of the Police Relief Fund, be paid * * *.’
The policeman in that case was discharged from the force for reasons other than dishonesty, cowardice, and conviction of a felony, and the board turned down his application for pension on the ground that the words ‘ upon the approval of the Board of Trustees of the Police Relief Fund’ gave them a discretion, outside, over and above the three conditions or grounds for refusal to pay set forth in said rule 45.
The court said in syllabus three, after quoting rule No. 45 in full, that said rule ‘ does not confer upon such board a discretion to deny a pension to a ‘member of the police department who has served fifteen consecutive years, who is discharged for any offense other than dishonesty, cowardice, or being convicted of a felony.’'
The Supreme Court said further on page 364 of 122 Ohio St., on page 588 of 171 N.E.:
‘The Legislature vested in the board of trustees of the police relief fund discretion only to prescribe the rule by which qualifications for pension will be determined and the rule by which the amount of such pension will be computed. Manifestly, the requirement that qualification be determined by rule excludes any implication that the Legislature intended that the board of trustees of the police relief fund should determine qualification in any other manner * * *.’
In other words the board has full discretion to lay down the conditions upon which a pension will be refused, but if the claimant meets the conditions, the board has no discretion to refuse to order the pension. To do so is an arbitrary abuse of discretion.
The Supreme Court said further on page 365 of 122 Ohio St., on page 588 of 171 N.E., referring to the phrase ‘upon the approval of the board’ in the rule 45:
‘Manifestly, if the phrase were there inserted for the purpose of investing such board with an absolute discretion, it was unnecessary to have made any provision for length of service or character of discharge. On the other hand, if we were obliged to hold that it was the intention of the board of trustees by Rule 45 to invest itself with an absolute discretion, then it would be our duty to hold that in doing so it exceeded the power conferred upon it by [General Code] section 4628 and that its action in that respect was void.’ (Italics by this court.)
The court, it will be noted, did not say that said rule No. 45 was void, but that ‘its action in that respect’ was void. It is obvious that by ‘in that respect’ the court meant in so far as the board attempted to give itself ‘an absolute discretion.’ Therefore rule 16 cannot be said to be void as a whole.
Section 16 of the rules of the Akron Police Pension Relief Fund is as follows:
‘Any legally, duly appointed and qualified police officer who has performed duties as a police officer in the Police Department of the City of Akron, Ohio, for a period of twenty (20) years or longer, may voluntarily retire from said service as such police officer, and may apply to the Trustees of the Police Relief Fund of the City of Akron, Ohio, for pension.
‘If it be found by the Board upon proper proof submitted to said Board of Trustees of the Police Relief Fund and to the satisfaction of the said Board, of the truth thereof, that said Police Officer has served a period of twenty (20) years or longer in said Department as Police Officer, said Board of Trustees of the Police Relief Fund of the City of Akron, Ohio, may retire him on pension and place him on the pension rolls and participate in said Funds, and order paid to him out of the funds of said Board of Trustees the sum of Three Dollars ($3.00) per month for each year he had served continuously before his retirement.’ (Italics by this court.)
This section is the one applicable to the case at bar, as the relator had served a while over twenty years.
Section 16-a applies to those who have served twenty-five years or longer, and is as follows:
‘Be it provided, that any legally, duly appointed an qualified police officer who has performed duties as a Police Officer in the Police Department of the City of Akron, Ohio, for a period of twenty-five (25) years or longer, may voluntarily retire from said service as such police officer, and may apply to the Trustees of the Police Relief Fund of the City of Akron, Ohio, for pension.
‘If it be found by the Board upon proper proof submitted to said Board of Trustees of the Police Relief Fund and to the satisfaction of the said Board, of the truth thereof, that said Police Officer has served a period of twenty-five (25) years or longer in said Department as police officer, said Board of Trustees of the Police Relief Fund of the City of Akron, Ohio, shall retire him on pension and place him on the pension rolls and participate in said funds and order paid to him out of the funds of said Board of Trustees the sum according to rank as hereinafter provided:
Chief of Police ........ the sum of $125 per month
Inspector of Det ........ the sum of $125 per month
Captain of Police ........ the sum of $115 per month
Lieutenant of Police ........ the sum of $110 per month
Deputy Inspectors ........ the sum of $110 per month
Sergeants of Police ........ the sum of $105 per month
Detectives of Police ........ the sum of $105 per month
Patrolman ........ the sum of $100 per month.' (Italics by this court)
It will be noted that neither of the sections above lay down any conditions or grounds for refusing to grant the pension except that the resignation must be voluntary and as to time of service.
In Section 16 we have the wording ‘may retire him on pension.’ In Section 16-a we have the language ‘shall retire him on pension.’
The Board then in rule 16 has laid down no conditions, the happening of which will deprive the policeman of his pension. They have covered the required time of service and the matter of voluntary retirement and amount of pension to be paid, but that is all. In using the language ‘ may retire him on pension,’ they (the Trustees) have by rule, by the use of the word may attempted to confer upon the board the absolute and arbitrary discretion as to whether the policeman can receive his pension. This the Board cannot do, and its attempt to do so is absolutely void, and for all intents and purposes the word ‘may’ will be interpreted as ‘shall.’
This court holds this in view of the Supreme Court ruling in 122 Ohio State above discussed, and attention is again called to that court's language quoted above from page 365 of said case, 171 N.E. 588.
If the argument of the defendant Pension Board were sound, it could refuse to grant a pension although the necessary term of service had been served, just because in its arbitrary and absolute discretion it did not want to allow it. The Supreme Court holds such an attempt or rule is void in said respects.
The Board can make its rules which will defeat the granting of a pension, but having made them, or having made none, they have no further discretion in the matter, and the policeman having not come under any of the conditions which forfeit his right, is entitled to his pension and cannot be deprived of same by any arbitrary discretion of the Board.
There is a grave question whether under Section 16 the nature of the resignation is a condition precedent to obtaining a pension. However we will assume that a ‘voluntary’ resignation is one of the conditions precedent. The facts of the resignation have been discussed earlier herein.
The term ‘ voluntarily resign’ is in my opinion used in Section 16 in contradistinction to the term ‘ discharged for cause’ that is, misconduct. He was not discharged for cause. He was threatened with charges generally, but the evidence shows that there were no specific charges that could have been filed, or if filed could have been proven. He was given a choice and exercised his will to resign rather than force the filing of charges, which it develops would have been unprovable. Had charges been filed, and he had then been discharged from the force, his resignation would be in order and would not be ‘voluntary.’
If the Board desired to deprive a policeman of his pension if he resigned when under fire or while under suspicion, etc., they could have so provided specifically, and if that is what the rule means, they should so provide. However, as it is, all ambiguity must be resolved in favor of the pensioner.
It is also significant that the resignation already prepared and signed by him was addressed to the pension board. He was given no impression that his resignation would defeat his pension.
Another thought on the matter of resignation-it seems logical to hold that if an officer is under fire and is threatened with the filing of charges to such an extent that his act of resignation is against his will, and not his free act, but forced, and it is later shown that no charges could have been proven, then he did not resign at all, and would still be a member of the force.
As stated before, in 80 Ohio App. 135, 75 N.E.2d 106, cited above, the court held that the fact that the claimant was given no hearing upon her claim before the board, violated the due process clause of the Ohio Constitution and the whole proceeding was void. So the court there refused to grant the pension, but sent the whole matter back to the Board for a legal determination.
The case at bar is distinguishable. Here the claimant was given an opportunity to present his claim and to have a hearing along lines suggested by the Board. So it cannot be said strictly that no hearing was had. Further in our case the Board's action was an arbitrary abuse of discretion, which is a further distinguishing fact and brings the matter under the exception cited in 80 Ohio App. 135, at page 148, 75 N.E.2d 106, where the court approves 75 Ohio App. 30, 60 N.E.2d 733, quoted above.
In any event it would be a vain and useless act to send it back to the Board. The mere reading of the stenographic transcript of the Board's proceedings at the hearing is a complete answer to that. (See Relator's Exhibit 9.)
Therefore, in view of the conclusions reached, the Relator is entitled to a writ of mandamus as prayed for, granting to him the Sixty Dollars per month pension.
This matter being of great interest and importance to the defendant Pension Board will no doubt be appealed to the higher courts for a final determination for future guidance. This cour will await the final results with great interest.
A journal entry may be prepared with exceptions to the defendants.