Matter of Termination of Wong , 49 State Rptr. 158 ( 1992 )

No. 91-176
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN THE MATTER OF THE TERMINATION
OF WILLIAM WONG,
WILLIAM WONG,
Petitioner and Respondent,
-vs-
CITY OF BILLINGS AND
BILLINGS POLICE COMMISSION,
Respondents and Appellants.
APPEAL FROM: District Court of the Thirteenth Judicial Dhtrict,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Bonnie J. Sutherland, Assistant City Attorney,
Billings, Montana
For Respondent:
David W. Stiteler, Montana Public Employees
Association, Helena, Montana
Submitted on Briefs: August 15, 1991
Decided: February 2 1 , 1992
Filed: 2 1 1992
+&
.
Cuerk
Justice Karla M. Gray delivered the Opinion of the Court.
The City of Billings appeals from an order of the District
Court of the Thirteenth Judicial District, Yellowstone County,
reversing the decision of the Billings Police Commission and
remanding for another hearing. We reverse.
The dispositive issue before this Court is whether the
District Court erred in reversing the decision of the Police
Commission (Commission) and remanding for another hearing, based on
the Commission's failure to grant a continuance. One other issue,
whether the discharged police officer received sufficient notice of
the charges against him, is addressed herein.
Pamela and William Wong separated in 1983; their marriage was
dissolved in 1987. During 1987, William Wong (Wong), a police
officer for eighteen years with the Billings Police Department,
began visiting his ex-wife Pamela at her residence, usually in
uniform, and threatening her with various harmful actions. From
1987 through 1989, Wong continued his on-duty and off-duty
surveillance and harassment of Pamela Wong.
Pamela feared her ex-husband during his visits to her home
because he threatened her with physical violence, with verbally
abusive and denigrating language, and with the authority he
possessed as a police officer. On one occasion Wong told her he
knew that her car registration and insurance were running out and
that he would make certain she was pulled over to have them
checked. On another occasion, Wong threatened to kill her. During
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many of these intimidating episodes, Wong wore his police revolver.
Wong also began a series of visits and calls, usually while in
uniform, to Pamela's babysitters during this time. These visits
frightened the babysitters and several of them quit because of the
intimidation. Most encounters with the babysitters occurred at
Pamela's residence. Neighbors corroborated that on some of these
occasions, Wong pulled his police cruiser into Pamela's driveway,
flashed the cruiser's lights, honked the horn and waited for his
children to leave the house and come out to the car. He would then
speak to the babysitter.
Pamela attempted to stop the unannounced visits to her home by
obtaining a restraining order against Wong. This failed to stop
him. When the one-year restraining order lapsed and the visits
continued, Pamela called Chief Ellis E. Kiser, Wong's supervisor,
to complain. On November 2, 1988, Chief Kiser issued Wong a
written order to cease visiting his ex-wife's home while on duty.
Wong violated Chief Kiser's order on numerous occasions between the
time it was issued and his termination on May 11, 1990.
Wong harassed Pamela's friends, Wally and Sandy Persoma and
their children, by making rude gestures to them on numerous
occasions while they were in public. The Persomas telephoned
Chief Kiser to complain of Wong's continued harassment: their calls
prompted Chief Kiser to issue a written reprimand and warning to
Wong .
In December of 1988 and March of 1989, Wong filed charges
against Pamela alleging neglect of their children. Caseworkers for
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the Department of Family Services investigated the charges. No
neglect was found.
In August of 1989, Wong initiated a police report against
Pamela regarding her "harassment" of him while she worked in her
official capacity as a detention officer. Pamela's supervisor
determined that these allegations were without merit, but Wong
persisted in pressuring Pamela's superiors to take action,
threatening to go to the sheriff and possibly the police commission
if Pamela did not receive at least a reprimand.
Pamela filed a citizen's complaint with the police department
against her former husband in August of 1989. A copy of this
complaint was sent to Wong on August 14, 1989. The complaint
alleged an ongoing pattern of harassment against herself, her
babysitters, certain friends and others. Most of the actions
complained of occurred while Wong was on duty and in uniform.
Pamela's complaint prompted an internal investigation by the
Billings Police Department during which it was discovered that Wong
also had been using police department property for his own
purposes. Because the allegations lodged against Wong were of a
serious nature, Wong was advised in November of 1989 that a
Commission hearing would be held.
Wong contacted Montana Public Employees Association counsel
Dave Stiteler (Stiteler) in November, 1989, with regard to the
upcoming Commission hearing. Stiteler told Wong that he would
provide representation if scheduling permitted.
A formal complaint alleging thirty-nine charges was served on
4
Wong March 27, 1990, twenty-two days before the Commission hearing
was scheduled to begin on April 18. Wong contacted Stiteler
immediately upon receiving the complaint, but he did not provide
Stiteler with a copy of the complaint for approximately a week
thereafter. Stiteler mailed a request for postponement on Wongls
behalf to the Commission on April 5, 1990. The Commission denied
the request on April 10, 1990, one day after receiving it.
Stiteler then referred Wong to private counsel in Billings.
Wong consulted with counsel on or about April 12, 1990, and was
informed that counsel would represent him upon payment of a
retainer. Wong declined. Two days prior to the start of the
hearing, Wong contacted the same Billings attorney and requested
representation at the hearing. Counsel declined to undertake the
representation at that point on the basis that, at that late date,
there was insufficient time for him to prepare Wongls case.
The hearing was held April 18, 1990 through May 2, 1990.
Bonnie Sutherland represented the City of Billings; Wong presented
his own defense. The Commission assisted Wong with hearing
procedures. Wong subpoenaed witnesses, admitted exhibits, and
cross-examined witnesses.
The Commission ultimately concluded that Wong was guilty of
thirty-five of the thirty-nine charges, thirty-one of which
represented conduct which bore no relationship to legitimate
activities of a police officer and required disciplinary action.
Wong was permanently discharged from his position as police officer
on May 11, 1990. The Commission concluded that "Police Officer
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William Wong repeatedly violatedthe Law Enforcement Code of Ethics
by permitting his personal feelings and animosities to influence
his personal and professional decisions toward Pam Wong and other
citizens" and that the proven incidents constituted "Conduct
Unbecoming a Police Officer, Misconduct in Office, and Conduct
bringing Reproach Upon the Police Department." City Administrator
Alan Tandy issued an order affirming Wong's discharge on May 15,
1990.
The District Court reviewed the entire record and the briefs
of the parties and concluded that the evidence before the
Commission was sufficient to support Wong's discharge. The court
then concluded that the notice Wong received was statutorily
sufficient, butthat the Commissions's denial of Wong's request for
a continuance was arbitrary, capricious and an abuse of discretion
which denied Wong procedural due process. As a result, the
District Court reversed the decision of the Commission and the
order of the City of Billings discharging Wong, and remanded the
matter to the Commission for a new hearing. The City of Billings
appeals.
The police commission has the responsibility to hear and
decide all charges against police officers. Section 7-32-4155,
MCA. Charges must be in writing and served upon the police officer
at least fifteen days before the time fixed for the hearing.
Section 7-32-4156, MCA. Following the police commission hearing,
the mayor or city manager may either approve, modify or veto the
decision of the police commission. Sections 7-32-4153, 7-32-4160,
6
7-32-4161, MCA. The district court has jurisdiction to review all
questions of fact and law decided by a police commission. Section
7-32-4164, MCA.
The City of Billings contends that the District Court erred in
holding that the formal complaint should have been served on Wong
prior to March 27, 1989. We note that, while the court expressed
its concern over the lack of service at an earlier date, it
concluded that the service was statutorily sufficient. We agree
that the service was timely under 5 7-32-4156, MCA, which requires
service of the charges at least fifteen days prior to the time
fixed for hearing. Wong was served twenty-two days in advance of
the hearing. The statutory notice and service requirement having
been met, the Commission was empowered to proceed. Gentry v. City
of Helena (1989), 237 Mont. 353, 773 P.2d 309.
The dispositive issue is whether the District Court erred in
reversing the decision of the Police Commission and remanding for
another hearing, based upon the Commission's failure to grant a
continuance.
The City of Billings contends that the Police Commission's
denial of Wong's request for a continuance was within its
discretion and, therefore, that the District Court erred in
concluding that the Commission's denial was "arbitrary, capricious
and an abuse of discretion which resulted in denying petitioner
procedural due process. .. .I' Wong sought the continuance on the
grounds that his preferred legal representative was not available
for the hearing dates, that he did not have sufficient preparation
time, and that the formal charges against him included several new
charges in addition to those contained in Pamela's initial
complaint of August, 1989. In denying the continuance, the
Commission determined that good cause for the postponement was not
shown in that Wong was given more than the statutorily required
notice, he waited more than a week after receiving the complaint to
mail his request, and he had sufficient time to prepare his case.
An administrative agency possesses broad discretion in
deciding whether to grant or deny a motion for continuance.
Bickham v. Selcke (I11.App. 1 Dist. 1991), 576 N.E.2d 975. Thus,
our standard of review for the Police Commission's denial of the
continuance at issue is whether the Commission's decision to deny
the continuance was "arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of discretion.
.. .'I Section 2-4-704(2)(a)(vi), MCA. In addition, because the
District Court also based its conclusion regarding the Commission's
denial upon procedural due process grounds, we will review the
Commission's decision under 5 2-4-704(2)(a)(i), MCA, to determine
whether it violated this constitutional guarantee.
The City of Billings argues that the Police Commission's
denial of the continuance was not an abuse of discretion. Wong
argues that the City of Billings overlooks the hardship that the
denial of the continuance caused him. Seeking a continuance due to
lack of representation does not ensure the grant of a continuance.
Grunewald v. Missouri Pacific Railroad Co. (8th Cir. 1964), 331
F.2d 983; M.D. Rutledge v. Electric Hose and Rubber Co. (9th Cir.
a
1975), 511 F.2d 668. In making its decision on a requested
continuance due to lack of counsel, a court or agency must assess
whether the party petitioning for continuance has acted diligently
in seeking counsel. 17 Am.Jur.2d 5 23. If the party has not acted
diligently in procuring representation, a tribunal does not abuse
its discretion in denying the continuance.
Here, Wong knew that his preferred representative would
represent him only if scheduling permitted. He was served with the
formal complaint on March 27 but did not forward a copy to Stiteler
for a week thereafter. His request for postponement was not mailed
until April 5 nor received by the Commission until April 9; by that
time, more than half of Wong's preparation time had elapsed. The
Commission's April 10 denial of Wong's request was received by
Stiteler on April 12, 1990.
On receipt of the denial of the postponement, Wong sought the
representation of a private attorney. The private attorney told
Wong that he would represent him if Wong paid an advance retainer.
While Wong claims he did not have the money for the retainer and,
therefore, could not retain counsel, the record reflects that two
days before the hearing, Wong sought the representation of the same
private attorney who then refused to represent Wong as insufficient
time remained to prepare Wong's defense. For these reasons, the
City of Billings contends that Wong's own conduct brought about his
lack of legal representation and asserted lack of preparation time.
In Weston v. Denny (Ariz. 1971), 480 P.2d 24, the Arizona
Court of Appeals found that the plaintiff's lack of counsel was due
9
to the plaintiff's own actions and, therefore, the trial court did
not abuse its discretion in denying the continuance. Wong argues
that Weston is not applicable as he did nothing which obstructed
procuring representation. The record, however, does not support
Wong's position. Wong was aware as early as November of 1989 that
the charges filed against him would be heard by the Police
Commission and that he would need the assistance of counsel. He
was aware that Stiteler's possible representation was conditioned
on scheduling considerations. When Wong received the formal
complaint, he delayed in forwarding it to Stiteler. The request
for postponement was not mailed until nearly half of Wong's
preparation time had elapsed. Finally, counsel clearly was
available to Wong even after the denial of his request for a
continuance. We conclude that Wong's own actions, or lack thereof,
prevented him from obtaining counsel. Therefore, the Commission
did not act arbitrarily or capriciously in denying the request for
continuance.
The City of Billings further contends that the charges which
were formally served upon Wong on March 27, 1990, were essentially
the same as those contained in Pamela Wong's August 1989 citizen's
complaint. Wong claims that the formal charges included several
which were not contained in the initial complaint and that the new
charges hampered his ability to prepare for the hearing in the time
provided. The record reflects that following an internal
investigation subsequent to Pamela's original complaint, several
charges were added to those brought against Wong by his ex-wife;
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forthe most part, these additional charges related to unauthorized
use of police department property in his campaign of harassment
against Pamela. We conclude that the formal charges filed against
Wong in March of 1990 were essentially the same as those contained
in Pamela's initial citizen's complaint, that they were minimal
when compared to the totality of the charges and, therefore, that
they did not adversely impact on the sufficiency of the preparation
time available to Wong. The commission did not act arbitrarily or
abuse its discretion in denying the requested postponement in light
of the new charges.
Finally, the City of Billings and Wong agree that when an
employee has a property interest in his or her employment, certain
due process protections are mandated. The United States Supreme
Court has decided that an employee with a property interest in his
employment must be given notice and an opportunity to respond.
Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532,
542, 105 S. Ct. 1487, 1496, 84 L. Ed. 2d 494, 504. The Montana
statutory safeguards for police officers direct that all charges
must be in writing and served upon the police officer at least
fifteen days before the required hearing; in addition, officers
have a right to be present at the hearing in person and by counsel
and to be heard and furnish evidence in their defense. Sections 7 -
32-4155, et seq., MCA.
The City of Billings argues that the Commission met both the
Loudermill standard and the Montana statutory safeguards for police
officers in providing due process to Wong. We agree. Wong was
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provided the notice required by both Loudemill and the Montana
statutes. A hearing was held at which he appeared and presented
witnesses in his own defense. That Wong appeared without counsel
was due to his own actions. Therefore, we hold that the District
Court erred in its evaluation of the Police Commission's denial of
Wong's continuance; the Commission's denial was not arbitrary,
capricious or an abuse of discretion and it did not violate Wong's
due process rights.
We reverse the District Court's order and direct that the
final decision of the Commission and the order of the City of
Billings enforcing that decision be reinstated.
Reversed.
Justices
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Justice Fred J. Weber dissents as follows:
After a review of the entire record, the District Court
concluded that the Commission's denial of Mr. Wong's request to
continue the hearing was arbitrary, capricious and an abuse of
discretion. I agree with that conclusion.
The record discloses that Pam Wong and the City of Billing5
Police Department signed the complaint filed against Mr. Wong on
November 27, 1989. While the complaint was filed with the Billings
Police Commission on February 10, 1990, Mr. Wong was not served
with a copy of the complaint until March 27, 1990, some six weeks
after its filing and just three weeks prior to the hearing.
On April 4, 1990, Mr. Stiteler, as attorney for Mr. Wong,
requested a continuance, stating that Mr. Stiteler had prior
commitments which conflicted with the scheduled hearing dates, and
due to the nature of the charges in the complaint, Mr. Wong needed
additional time to prepare an adequate defense. The Commission
denied Mr. Wong's request for continuance claiming that Mr. Wong
failed to show good cause for the postponement: however, the
Commission does not challenge Mr. Stiteler's unavailability on the
hearing dates. The Commission's order stated:
Police Officer Wong was served with a copy of the Notice
of Hearing and a copy of the Complaint filed against him
on March 27, 1990. On April 2, 1990, the City Attorney's
office provided Officer Wong with copies of statements
and information pertinent to the charges pending against
him. Officer Wong's Attorney David Stiteler, did not
mail his Request for Postponement until April 5, 1990,
more than one week after service of the complaint.
Officer William Wong has been given more than the
statutorily required 15 days notice of hearing. He has
sufficient time to prepare his case...
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In this case, the Commission's denial of a continuance effectively
prohibited Mr. Stiteler from representing Mr. Wong.
Here, the complaint charging Mr. Wong contained 3 9 counts.
The hearing on the complaint was held on April 18, 19, 20, 24, and
25, 1990, and lasted over twenty-three hours. Thirty-four
witnesses appeared on behalf of the parties. Yet, despite the
complexity of this hearing, Mr. Wong represented himself pro se
without the assistance of an attorney.
In considering the complexity of the charges, the number of
witnesses, the unavailability of counsel chosen by Mr. Wong, and
the City's six week delay in serving Mr. Wong with the complaint
after its filing; the Commission's refusal to continue the hearing
adversely effected Mr. Wong's ability to prepare an adequate
defense. The fact that the Commission complied with the statutory
fifteen day notice does not eliminate the potential prejudice. I
therefore agree with the District Court's conclusion that the
decision of the Commission was arbitrary, capricious and an abuse
of discretion. I would affirm the District Court.
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February 21, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Bonnie J. Sutherland
Asst. City Attorney
P.O. Box 1178
Billings, MT 59103
David W. Stiteler
Montana Public Employees Assoc
1426 Cedar
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA