January 9, 1945
By JOHN B. HUDSON
The Civil Service
Commission of the City of El Paso decided Monday night that it was
without legal authority to conduct an investigation into complaints “of
misconduct and of inefficiency” of the police department unless
specific charges made under oath are first filed by a reputable citizen.
This
decision, by unanimous vote, was taken after receipt of a formal
opinion filed with the commission by James F. Hulse who had been
employed by the commission to investigate complaints of brutality made
by the El Paso Herald-Post.
Mayor J.E. Anderson said Monday night
that the commission’s decision will be placed before the city council
members at a meeting to be held Tuesday. There were strong indications
Monday night, however, that the question of a police department
investigation was a dead issue in the current movement.
Chairman
Joseph L. Dunigan of the civil service commission announced that the
proposed commission meeting called for next Wednesday night was being
cancelled.
“We have no formal, sworn charges of misconduct or inefficiency before us for investigation,” said Chairman Dunigan.
Agitation
for the investigation came to a head several weeks ago when the wife of
a Marine sergeant was taken into custody by veteran Policewoman Callie
Fairley in a downtown beer tavern when in company with her husband. The
young wife was released soon after being carried to the police station.
The
civil service commission also had originally intended inquiring into
police activities at the South El Paso riot several months ago when a
fatality occurred.
“We have no legal authority for holding the
investigation,” said Chairman Dunigan. He was joined by Secretary
Malcolm Johnson and Commissioners Sam Cohen, F.A. McCollom and W.T.
Ponsford. Commissioner George McCann could not be reached for the
hurried commission meeting held in the law offices of chairman Dunigan.
“Any
citizen may file a sworn statement of any charge he wants
investigated,” said Chairman Dunigan. “When and if any such charges are
filed the commission is ready to hear them. But in view of the opinion
by our attorney, acting as our counsel, in which he states that we do
not have any such authority, we do not feel we have a legal basis upon
which to hold an investigation.
“Therefore, unless such sworn charges are filed with us, there will be no investigation,” said Chairman Dunigan.
The
commission had been formally requested by Mayor Anderson and the city
council to conduct the inquiry. The commission at first agreed to begin
hearings, and sought counsel to have charge of the investigation.
Joseph Bennis was first approached for the task, but declined the
appointment. Then, the commission retained Mr. Hulse.
Mr. Hulse
in his opinion pointed out that the civil commission’s functions was to
hear complaints against civil service employes, and to mete out
disciplinary action, and also to hear appeals made from any
disciplinary action taken.
Should the commission discover
wrongdoings and recommend disciplinary action, Mr. Hulse wrote, then
the employe charged with the wrongdoing has the legal right to appeal
to the commission.
“Thus, on the appeal, the commission would be
inquiring into whether its own findings in the investigation were
true,” wrote Mr. Hulse.
Mr. Hulse declared in his opinion that he
had reached the conclusion “that the purposed investigation and hearing
would violate the constitutional requirement that a hearing which may
result in disciplinary action against some one must be held in
accordance with due process of law.”
The purpose of the
investigation, he said, “is to inquire into charges of misconduct and
of inefficiency in the police department.” The commission’s findings,
based upon evidence adduced, would be incorporated in a report to the
mayor and city council, in which report the commission would find
either that the charges were true or false.
“If the charges
should be found to be true, disciplinary action against those
responsible or guilty is to be taken by the mayor or by the chief of
police,” reads the opinion of Mr. Hulse. The person disciplined has the
right of appeal to the commission.
“The hearing on appeal could
not be a fair and impartial hearing,” decided Mr. Hulse, “as it would
be merely a reconsideration of questions of fact therefore decided by
the commission in connection with this investigation.”
Mr. Hulse
said the inquiry would have been made pursuant to the provisions of
Article 1, section 6 (f) of the Civil Service Amendment. “The language
of this section refers only to the function of the various operations
of civil service provided for in the civil service amendment,” wrote
Mr. Hulse.
Should this section be interpreted as authorizing the
investigation, Mr. Hulse said, and a report made finding the accused
person guilty, it “would be void, as contrary to the right to due
process of law.”
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