Stisser v. Roan

Staley, Jr., J. This is an appeal irom an oruer denying peritioner’s application for a judgment directing a hearing of certain charges against two police officers of the City of Schenectady. On April 30, 1964, the petitioner forwarded a letter to the respondent charging that on January 14, 1964, he was assaulted by a police officer of the City of Schenectady, arrested and booked at Police Headquarters, held for about three-quarters of an hour in jail and deprived of spiritual counsel and assistance. On June 17, 1964, the respondent replied stating he had investigated the charges, had been advised by the petitioner’s attorney that petitioner wished to have the matter entirely dropped, and that petitioner had filed a release and waiver of all charges. The respondent denied the request for a hearing. It is conceded that the City Manager of the City of Schenectady performs the duties of the office of Commissioner of Public Safety. The sole issue involved on this appeal is the construction of section 137 of the Second Class Cities Law which provides in part as follows: “If a charge may be made by any person against any officer or member of the police or fire departments that he has been negligent or derelict in the performance of his official duties, or is incompetent or without capacity to perform the same or is guilty of some delinquency seriously affecting his general character or fitness for the office, the charge must be in writing, in the form prescribed by the rules and regulations of the commissioner of public safety, and a copy thereof must be served upon the accused officer or member. The commissioner shall then proceed to hear, try and determine the charge. ’ ’ Appellant contends that the sentence in section 137 that states “ The commissioner shall then proceed to hear, try and determine the charge ”, imposes a mandate upon the Commissioner to hold a hearing in every instance where a charge is filed against any officer or member of the Police Department, [201] In the interpretation of the intent of section 137, that section must be construed in conjunction with sections 131 and 133 of the Second Class Cities Law. Section 131 provides that the Commissioner of Public Safety shall have jurisdiction, supervision and control of the discipline of the Police Department. Section 133 provides that the Commissioner shall make, adopt and enforce reasonable rules, orders and regulations for the discipline of the Police Department and for the hearing, investigation, trial and determination of charges made against any officer or member of the Police Department and may, in his discretion, punish any such officer or member found guilty thereof. At the time the charges herein were filed with the City Manager, the rules governing the procedure to be followed in making a complaint either by a private citizen or an officer relative to the conduct of an officer or member of the Police Department were as follows: “ Section 47. If the charges and specifications are recommended for trial by the City Manager, a date shall be set for trial. “ Section 4b. When a complaint is made by a civilian * * * the City Manager shall indicate whether or not charges and specifications are to be prepared against the member of the department complained against.” It is evident that when the above sections of the Second Class Cities Law and the rules promulgated pursuant thereto are considered together, the legislative intent in adopting section 137 was to permit a hearing only if the City Manager, in his discretion, recommends the filing of charges and specifications for trial against the member of the department complained against. Pursuant to section 137, any citizen has a right to make a complaint against an officer or member of the Police Department if the officer has been negligent or derelict in the performance of his official duties. The petitioner exercised this right by filing his complaints and that is the only right given to him under section 137 and there are no further rights or privileges afforded to him. In addition, there is no evidence to show that the decision on the part of the City Manager in the denial of the request for a hearing was arbitrary or capricious. The order should be affirmed.