NO. 94-271

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

IN THE MATTER OF THE TERMINATION

OF WAYNE ABBEY,

Petitioner and Appellant,

CITY OF BILLINGS POLICE COMMISSION,

CITY OF BILLINGS, MONTANA, and BRUCE

McCANDLESS, Acting City Administrator,

Respondents and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Carter N. Picotte, Helena, Montana

For Respondents:

James L. Tillotson, Billings City Attorney,

Billings, Montana

Filed:

Submitted on Briefs: October 5, 1994

Decided: December 15, 1994
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from a review by the Thirteenth Judicial

District Court, Yellowstone County, of a decision by the Billings

City Police Commission and subsequent modification of that decision

by the City Administrator. We affirm.

We consider the following issues on appeal:

I . Did the District Court err in affirming the Billings City

Police Commission's denial of Abbey's Prehearing Motion to Dismiss?

II. Did the District Court err in holding that the expert

testimony of Officer John Carpani and Captain Douglas Dreezen

regarding the accident was proper and that any opinion testimony

from Larry Deschene and Cliff Fillner was harmless error?

III. Did the District Court err in upholding the Billings Police

Commission's denial of Abbey's motion for a ruling of "Not Proven"

following the City's case-in-chief?

IV. Did the District Court err in upholding the Billings Police

Commission's finding that there was substantial evidence to show

that Abbey was guilty of the alleged misconduct?

V. Did the District Court err in affirming the Acting City

Administrator's decision to modify Abbey's punishment?

Wayne Abbey (Abbey) was a Billings City Policeman. Abbey was

assigned Car #1421 for his regular shift beginning in the evening

of March 24, 1992. Something happened to severely damage the car

either before or during Abbey's shift. Abbey claimed the damage

was done to the car before he began his shift and while the car was

parked in the city parking complex. Abbey did not report the

damage immediately upon beginning his shift. He claims that he

believed that the car had been damaged by someone prior to his

shift and that that person had already reported the damage.

Abbey claims that he continued his shift, putting a piece of

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side molding trim that had been knocked loose from the car in the

back seat and later throwing it out in a dumpster on Minnesota

Avenue. Much evidence was presented at Abbey's hearing that showed

that the accident actually happened at a railroad switch close to

this dumpster during Abbey's work shift.

The Police Department charged Abbey with four counts of

violating various Billings Police Department directives such as:

neglect of duty, misconduct in his office, conduct unbecoming a

police officer, guilt of a crime and/or conduct such as to bring

reproach upon the police force. Abbey moved to dismiss the charges

against him during a prehearing conference. The motion was denied.

Pursuant to 5 7-32-4151, et seq., MCA, a hearing was held before

the Police Commission on September 2 and 3, 1992.

The Commission found that substantial evidence existed to

support all four counts charged against Officer Abbey and suspended

Abbey for three weeks. The Acting Billings City Administrator,

Bruce McCandless, agreed with the Commission's findings and

conclusions and pursuant to 5 7-32-4160(2) and (3), MCA (1991),

modified Abbey's punishment from suspension to termination.

Abbey appealed the Commission's decision and the modification

of his punishment to the Thirteenth Judicial District Court,

Yellowstone County. Abbey appeals the District Court order dated

April 21, 1994, affirming the Commission.

Did the District Court err in affirming the Billings

City Police Commission's denial of Abbey's Prehearing

Motion to Dismiss?

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Abbey maintains that he was prejudiced before the hearing

began. The prejudice was caused by the inclusion with the

complaint of various documents including a City of Billings

investigative police report and the results of a polygraph test

conducted on a fellow officer who shared Abbey's police car, #1421.

Abbey argues that he was prejudiced by the Police Commission having

seen the erroneously admitted polygraph test. Abbey argues that

the Commission did not follow the rules of evidence and that such

a departure caused him a lack of due process.

The City of Billings argues that the investigative report to

which Abbey objects was a Billings Police Department Internal

Affairs Summary dated May 19, 1992. The report contained a summary

of the evidence against Abbey, including reference to the polygraph

test. Captain Douglas Dreezen (Captain Dreezen) who had recovered

the side trim from car #1421 wrote the report. Captain Dreezen

also testified to the actual site of the accident. According to

the City of Billings, this report was neither admitted into

evidence nor was it considered by the Police Commission.

The District Court must review the findings of a police

commission as to whether the commission findings are supported by

substantial evidence. Gentry v. City of Helena (1989), 237 Mont.

353, 773 P.2d 309. When the decision on review by a district court

of proceedings before a police commission is conducted under § ?-

32-4164, MCA, and the district court decision is appealed to us, we

adopt the standard of review set forth in the Montana

Administrative Procedure Act, § Z-4-704(2) (a), MCA. Termination of

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Wong (1992), 252 Mont. 111, 827 P.2d 90.

Here, Abbey has claimed that he was prejudiced because his due

process rights were violated by the Commission's refusal to grant

a dismissal due to having seen improper evidence. Therefore, we

will review the Commission's decision as to whether the Commission

was in "violation of constitutional or statutory provisions" and

whether the Commission's refusal to dismiss was "arbitrary or

capricious or characterized by abuse of discretion." Section 2-4-

704(Z) (a) (i) and (vi), MCA.

The District Court found that Abbey was not prejudiced by the

Commission's having seen the objectionable documents. The court

stated that many times a court acting as a finder of fact has to

determine whether evidence can be admitted. Here, the Commission

determined that it would not consider the results of the polygraph

test nor permit the officer involved to testify. The Commission

determined that such prohibition would prevent prejudice to Abbey.

In evaluating Abbey's due process rights, we note that

firefighters have a property interest in their position because of

the civil service nature of their employment. Welsh v. City of

Great Falls, (1984), 212 Mont. 403, 690 P.2d 406. We alluded to

the same property interest held by police officers. Termination of

Wong (1992), 252 Mont. at 118-19, 827 P.2d at 95. In Cleveland

Board of Education v. Loudermill (1985), 470 U.S. 532, 542, 105

S.Ct. 1487, 1496, 84 L.Ed.2d 494, 504, the United States Supreme

Court held that notice and an opportunity to respond to the charges

constitutes the process due an employee with a property interest in

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his employment.

The Police Commission provided Abbey his due process rights.

The Commission provided notice and a hearing at which Abbey was

adequately represented by counsel. Abbey's contention that strict

adherence to the rules of evidence is the minimum process due him

has no foundation in the law. Nor is there any indication here

that the rules of evidence have been ignored or applied

incorrectly.

Further, Abbey has not demonstrated prejudice from the

Commission's refusal to dismiss his action following the

Commission's perusal of objectionable papers. The Commission

correctly cited Montana's law concerning polygraph results, and

refused to consider such results or permit testimony of the officer

in question. The Commission did not act arbitrarily in its refusal

to dismiss because the Commission considered the appropriate law

and specifically refused to accept into evidence the results of the

polygraph test and the summary of evidence against Abbey. Abbey

was provided proper hearing and no action by the Commission

prejudiced Abbey's ability to be heard.

We conclude the Commission did not abuse its discretion by

acting arbitrarily when it refused to dismiss the action because of

the questionable documents.

We hold the District Court did not err in affirming the

Billings City Police Commission's denial of Abbey's Prehearing

Motion to Dismiss.

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II.

Did the District Court err in holding that the

expert testimony of Officer John Carpani and Captain

Douglas Dreezen regarding the accident was proper and

that any opinion testimony from Larry Deschene and Cliff

Fillner was harmless error?

At the Commission hearing Officer Carpani, Captain Dreezen,

and Motor Pool Manager Larry Deschene (Deschene) and City of

Billings Purchasing Agent Cliff Fillner (Fillner) testified

concerning technical information and certain opinions as to the

possible place of damage to car #1421.

On review of the Commission proceedings, the District Court

determined that Deschene and Fillner were not expert witnesses in

accident reconstruction and, therefore, they should not have

testified concerning their opinions as to what actually happened to

police car #1421. However, the court determined that this was

harmless error. The court also determined that Officer Carpani and

Captain Dreezen had been sufficiently qualified to testify as

expert witnesses.

Abbey argues that it was not harmless error to allow Fillner

and Deschene to testify concerning their opinions of the accident.

Abbey further contends that Officer Carpani and Captain Dreezen are

not experts in accident reconstruction. The City of Billings

argues that both Officer Carpani and Captain Dreezen investigated

many vehicular accidents. According to the City of Billings,

Officer Carpani had special training in accident reconstruction.

The City of Billings also contends that the opinion testimony of

Deschene and Fillner should not have been ,permitted by the
Commission but that its inclusion did not prejudice Abbey.

A. Expert Testimony

An expert witness is one who is able to provide understanding

that is beyond the jury's experience. Mason v. Ditzel (1992), 255

Mont. 364, 842 P.2d 707. The District Court had to determine

whether the Commission made an "error of law" in permitting the

opinions of Captain Dreezen, Officer Carpani as well as Deschene

and his assistant Fillner. Section 2-4-704(2) (a) (iv), MCA. We

will use the same standard when reviewing the District Court.

Officer Carpani testified that he had investigated many

vehicular accidents in his years on the police force. In addition,

Officer Carpani testified that he had attended a two week school at

Northwest University for the purpose of studying accident

reconstruction. Officer Carpani also testified that part of his

job with the police force involved investigating serious accidents.

There is no question that Officer Carpani was qualified as an

expert in accident reconstruction. He has special knowledge in

accident reconstruction gained at a reputable University and has

used that knowledge in his employment with the City of Billings.

He was qualified as an expert and his opinions as to the site and

cause of the accident were appropriate. The District Court did not

err in finding Officer Carpani qualified as an expert.

Captain Dreezen is the Captain of Operations Division; his job

responsibilities include internal affairs investigations of his

officers. He testified that part of his job duties involved

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investigations into police vehicle damages. The present action is

an outgrowth of his internal investigation concerning the damage to

Abbey's car. Captain Dreezen testified that he had investigated

many vehicular accidents in his years on the force. In a prior

case we determined that a policeman with 14 years experience was

properly permitted to testify to the cause of an accident. HartAnderson v. Hauck (1989), 239 Mont. 444, 781 P.2d 1116. Although

the record does not tell us the number of years Captain Dreezen has

spent on the police force, his testimony clearly evinced years of

investigation into vehicle damage and his familiarity with

investigation of vehicular accidents in general:

A. . . .Two vehicles strike each other, it knocks debris,

dirt, mud, whatever from underneath the fender wells, and

ends up on the street or the pavement or whatever.

Q. In your experience, does that happen when a car is

merely parked in a spot with no collision?

A. With no collision?

Q. No impact.

A. No.

Captain Dreezen went on to testify that the parking spot in

which Abbey claimed to have found the damaged car, had none of

those things. The parking spot was clean when Captain Dreezen

inspected it. Captain Dreezen subsequently investigated the

dumpster where Abbey said that he had thrown the piece of strip

molding trim that had been loose on the car.

Captain Dreezen testified that he also investigated the area

around the dumpster because he did not feel that the damage had

occurred as reported by Abbey. Captain Dreezen testified at length

9
about where he felt the real site of the damage occurred. The City

introduced pictures of the railroad switch which allegedly did the

damage and also pictures of the switch in relation to the damage on

the car. Captain Dreezen testified to the white paint on the

switch and the white paint chips found at the base of the switch.

Car #1421 is white. Further Captain Dreezen testified that the

black substance found on car #1421 was the same substance that

existed on the switch itself.

Captain Dreezen supported every detail of his testimony by

logical analyses from his experience and reasons for his

assumptions concerning the damage and the site of the damage. The

only piece of unsupported speculation in Captain Dreezen's

testimony was objected to by Abbey's counsel and sustained by the

Commission.

We conclude that the District Court did not err in determining

that Captain Dreezen and Officer Carpani were sufficiently

qualified as expert witnesses and could, therefore, give their

opinions concerning the possible sources of damage to car #1421.

B . Lay Opinions

Abbey objects to the following opinions in the testimony of

Deschene and Fillner:

Deschene: And to me it didn't look like -- it looked

highly unlikely that the damage could have happened in

that spot.

Deschene: There was damage underneath the fender part on

the bottom part of the vehicle that appeared that the car

was hit on the bottom, or ran over something.

Fillner: The direction of the scrape appeared to me that

the car had been moving backwards.

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The Commission allowed this testimony over Abbey's counsel ' s

objection. Both parties in this case recognize that the above

testimony is improper lay witness testimony. The District Court

concluded that the testimony should not have been permitted. The

court determined that the inclusion of these opinions from lay

witnesses was harmless error.

Abbey argues that the cumulative effect of the lay testimony

prejudiced him. The City of Billings argues that the lay witnesses

merely testified to facts already in evidence.

Harmless error is an error committed during the trial

proceedings which does not affect the substantial rights of the

party. Barrett v. Asarco Inc. (19901, 245 Mont. 196, 799 P.2d

1078. Thus, in order for the District Court to reverse the

Commission, Abbey had to show that Deschene's and Fillner's

testimony violated his substantial rights. We conclude that he has

not shown that.

The majority of Deschene's and Fillner's testimony constituted

their observations of the parking space occupied by car #1421 as

well as their observations of the car itself. Personal

observations by lay witnesses are admissible in evidence. The

objectionable opinions, although not properly permitted by the

Commission, are no more than repetitions of the much more detailed

testimony of the police experts, Captain Dreezen and Officer

Carpani. Because the opinions of Deschene and Fillner added

nothing new and controversial to the hearing, and Abbey has not

shown that the testimony affected his substantial rights, we

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conclude that the opinions offered by Deschene and Fillner were

harmless error.

Therefore, we hold that the District Court did not err in

determining that the opinions erroneously admitted during the

Commission proceedings from Deschene and Fillner were merely

harmless error.

III.

Did the District Court err in upholding the Billings

Police Commission's denial of Abbey's motion for a ruling

of "Not Proven" following the City's case-in-chief?

At the end of the City of Billing's case-in-chief, Abbey's

attorney petitioned the court to make a finding of "not-proven"

concerning all four counts of the charges against Abbey. This

motion is the same as a directed verdict. A directed verdict is

properly granted when it appears as a matter of law that the

nonmoving party could not recover upon any view of the evidence.

Nautilus Ins., Inc. v. First National Ins., Inc. (1992), 254 Mont.

296, 837 P.2d 409.

The Commission determined that enough evidence had been

presented to it to require continuation of the hearing. When

reviewing denial of motion for directed verdict, only substantial

evidence in the record supporting the jury's [trier of fact's]

finding is required. Nelson v. Flathead Valley Transit (1992), 251

Mont. 269, 824 P.2d 263. Also in reviewing a denial of a motion

for directed verdict, we must take the plaintiff's evidence as

presented to be true. Krueger v. General Motors Corp. (1989), 240

Mont. 266, 783 P.2d 1340. Here, when accepting the City's evidence

12
as true, the District Court was correct in determining that

substantial evidence existed to continue the hearing.

Two experts testified that the accident could not have

happened where Abbey found the car at the beginning of his shift.

Further, the City introduced evidence in the form of photographs

that showed a direct match between the damage to the car and the

railway switch that Captain Dreezen determined had been the cause

of damage to car #1421. Both the Motor Pool Manager and Purchasing

Agent testified that they observed no evidence of an accident at

the spot that Abbey claimed he found the car already damaged. This

evidence constitutes enough evidence to warrant a continuation of

the hearing.

We conclude that the District Court did not err in upholding

the Billings Police Commission's denial of Abbey's motion for a

ruling of "Not Proven" following the City's case-in-chief.

IV.

Did the District Court err in upholding the Billings

Police Commission's finding that there was substantial

evidence to show that Abbey was guilty of the alleged

misconduct?

Abbey argues that the City had no evidence for their case

except for inadmissible hearsay and conjecture. Abbey claims that

the only appropriate evidence at the hearing came from his own two

eye-witnesses who testified that the damage had been done to the

car before the time Abbey testified he became responsible for the

car. The City of Billings argues that the record presents

overwhelming evidence that Abbey was not telling the truth about

the damage to car #1421.

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The Commission was required to use the substantial evidence

standard of proof. Gentrv, 237 Mont. at 358, 773 P.2d at 312-13.

"Substantial evidence is that evidence that a reasonable mind might

accept as adequate to support a conclusion; it consists of more

than a mere scintilla of evidence but may be somewhat less than a

preponderance." Barrett, 245 Mont. at 200, 799 P.2d at 1080.

The Commission issued the following findings:

1 . Police Car #1421 was damaged by being backed into a

railroad switching device located on Montana Rail Link

right-of-way near Minnesota Avenue and South 27th Street.

2 . The damage occurred sometime between 9:00 p.m. on

March 24, 1992, and 3:00 a.m. on March 25, 1992. The

vehicle strip molding located in a dumpster near

Minnesota Avenue and South 23rd Street came from police

car #1421.

3 . Officer Abbey placed the strip molding from police

car #1421 in the dumpster.

4 . Officer Wayne Abbey was driving car #1421 at the

time it was damaged. He did not disclose essential

information concerning that damage, including his

knowledge of where the accident occurred. Officer Abbey

did not report the accident when the accident occurred,

nor did he remain at the scene of the accident.

5 . Officer Abbey's written supplement concerning the

damage to police car #1421 was inaccurate and misleading.

The District Court in reviewing these findings used the

substantial evidence test. Gentrv, 237 Mont. at 358, 773 P.2d at

312-13. The court found substantial evidence to support the

Commission's findings. In reviewing the record, we conclude that

substantial evidence exists to uphold the court's findings.

The record shows overwhelming physical evidence that the

damage could not have happened in the parking spot where Abbey

first took responsibility for car #1421. Both testimony and

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physical evidence showed that it occurred at the railroad switch

near the dumpster where Abbey deposited the car trim. Further,

there is no question that Abbey did not report the accident when it

happened but waited until approximately five hours into his shift

to inform the police department of the damage. Even if one assumes

the truthfulness of Abbey's claims that the damage was waiting for

him at the beginning of his shift, the fact remains that he did

nothing to report the damage as required by police regulations.

A number of witnesses testified that the parking spot in which

the car was located showed no signs of any accident having occurred

there. The only person to have noticed anything about the parking

spot was Abbey as reported in his accident report. He claims that

he found physical evidence of the damage having been done there,

but this evidence was never presented at trial nor corroborated by

any of the other witnesses. The only physical evidence presented

showed that the accident occurred in a railroad yard.

Abbey argues that he had two eye-witnesses that testified that

the damage happened before he took responsibility for his car on

the evening of March 24, 1992. The record shows that the testimony

of three officers was presented concerning the damaged car. None

of these witnesses were "eye-witnesses." Their testimony was

contradictory and equivocal.

We conclude that the record contains substantial evidence that

the City's charges against Abbey were correct and that the court

was not in error in upholding the Commission's decision.

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V .

Did the District Court err in affirming the Acting

City Administrator's decision to modify Abbey's

punishment?

In an order dated October 2, 1992, the Acting City

Administrator, Bruce McCandless (McCandless) confirmed the Police

Commission ruling and modified the three-week suspension that the

Commission had levied. McCandless stated that Abbey had violated

the trust of the citizens of Billings by submitting an untruthful

report. He, therefore, terminated Abbey from the police force.

Abbey argues that the City Administrator acted beyond his

authority. The City of Billings argues that the City Administrator

has the jurisdiction to modify the decision of the Police

Commission.

In reviewing the actions of the City Administrator, the

District Court concluded that the City Administrator had not

exceeded his authority pursuant to 5 7-32-4160, MCA, when he

modified the ruling of the Police Commission.

The law in effect at the time of the hearing before the

Commission was the 1991 version of our codes. Section 7-32-4160,

MCA (1991), reads:

Decision by police commission -- veto power of mayor.

(1) The police commission must, after the conclusion of

the hearing or trial, decide whether the charge was

proven or not proven and shall have the power, by a

decision of a majority of the commission, to discipline,

suspend, remove, or discharge any officer who shall have

been found guilty of the charge filed against him.

(2) Such action of the police commission shall, however,

be subject to modification or veto by the mayor, made in

writing and giving reasons therefor, which shall become

a permanent record of the police commission; provided,

however, that where and when the police commission

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decides the charge not proven, the decision is final and

conclusive and is not subject to modification or veto by

the mayor or to any review.

(3) Where the oolice commission decides the charqe

proven, the mayor, within 5 days from the date of the

filing of such findings and decision with the city clerk,

may modify or veto such findinqs and decision. (Emphasis

added.)

Section 7-32-4153, MCA (19911, describes a mayor as a:

. . . "city manager", "city commissioner", or any other

name or designation used to identify or designate the

chief executive of any city or municipality.

It is clear from the wording of this statute that McCandless

did not exceed his authority by modifying Abbey's punishment. The

record shows that McCandless filed his modification within the time

limit permitted by the statute.

This Court upheld the plain meaning of this statute. In

Gentry, 237 Mont. at 362-63, 773 P.2d at 315, the Police Commission

recommended that three officers receive only temporary suspensions.

The City Manager modified the ruling terminating all officers and

we upheld that action.

However, we note that the 1993 Legislature has deleted

subsection (2) and (3) of 5 7-32-4160. 1993 Mont. Laws 1661. That

statute now reads:

Decision by police commission. The police commission

shall, after the conclusion of the hearing, decide the

appeal and must have the power, by a decision of a

majority of the commission, to sustain, modify, or

overrule the disciplinary order of the mayor, city

manager, or chief executive.

This is a drastic departure from the 1991 version.

We conclude that pursuant to the 1991 version of § 7-32-4160,

MCA, the City Administrator had the authority to modify the

17
decision of the Police Commission. We hold the District Court did

not err in affirming the Acting City Administrator's decision to

modify Abbey's punishment.

Affirmed.

We Concur:

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