Appellants, three Detroit police officers, were disciplined, after hearings before separate departmental trial boards, for various violations of the rules and regulations of the Detroit Police Department. Each officer sought review of the disciplinary action taken against him by filing in the Wayne County Circuit Court a complaint for an order of superintending control directed against appellees. In each case the circuit court refused to issue the order, thus affirming the trial boards. This Court granted each appellant’s application for leave to appeal and, on its own motion, ordered the cases consolidated.
The facts will be detailed as pertinent to our discussion of the several claims of error advanced by appellants.
I THE CHARGES AGAINST APPELLANTS
Sergeant Gerald R. Sponick was found guilty of all four charges of misconduct levied against him. Specification I: knowingly submitting a false daily log for his activities while on duty on November 17, 1970, in violation of Detroit Police Manual, ch 3, § 34(21). Specification II: conduct unbecoming an officer in that he did "knowingly and intentionally *173 have contact on November 17, 1970, November 20, 1970, and December 4, 1970, with a convicted criminal”, in violation of Detroit Police Manual, ch 3, § 34(8). Specification III: "knowingly and intentionally associating] with a convicted criminal” on March 12, 1971, and April 30, 1971, in violation of Detroit Police Manual, ch 3, § 34(41). Specification IV: neglect of duty in that he failed to timely report "knowingly and intentionally having had] contact on March 12, 1971, and April 30, 1971, with a convicted criminal”, in violation of Detroit Police Manual, ch 4, § 73, and ch 3, § 34(10). The involved provisions of the Detroit Police Manual are reproduced in the margin.* 1
*174 Two charges of misconduct were levied against Sergeant Cyril Rickard. Specification I: knowingly submitting false daily logs for his activities while on duty on February 5, 1971, March 4, 1971, and April 2, 1971, in violation of Detroit Police Manual, ch 3, § 34(21). Specification II: failing to timely report "knowingly and intentionally hav[ing had] contact on February 5, 1971, March 4, 1971, and April 2, 1971”, with a convicted criminal, in violation of Detroit Police Manual, ch 4, § 73, and ch 3, § 34(10). Sergeant Rickard was found guilty of Specification I, but not guilty of Specification II.
Two charges of misconduct were also filed against Sergeant Roy A. Daugherty. Specification I: neglect of duty in that he failed to timely report "knowingly and intentionally hav[ing had] contact on February 17, 1971, with a convicted criminal”, in violation of the Detroit Police Manual, ch 4, § 73, and ch 3, § 34(10). Specification II: conduct unbecoming an officer in that he "did, while on duty on May 20, 1970, knowingly and intentionally have contact with a convicted criminal”, in violation of the Detroit Police Manual, ch 3, § 34(8). Sergeant Daugherty was found guilty of both specifications.
Sergeant Sponick claims that the charges against him are premised on unconstitutional rules and regulations.
A. Conduct Unbecoming An Officer
It is our opinion that the regulation proscribing "conduct unbecoming an officer” is too vague to be valid. We base our holding on the cases of
Avrech v Secretary of the Navy,
155 US App DC 352; 477 F2d 1237 (1973); and
Hamtramck Civil Service Commission v Pitlock,
*175 In Avrech v Secretary of the Navy, supra, at 355, 356; 477 F2d at 1241, the Circuit Court of Appeals for the District of Columbia, in an opinion authored by Mr. Justice Clark, struck down Article 134 of the Uniform Code of Military Justice, 10 USCA 934, which article imposes criminal sanctions on "all disorders and neglects [not specifically mentioned in this chapter] to the prejudice of good order and discipline in the armed forces” and "all conduct of a nature to bring discredit upon the armed forces”. Article 134 was struck down because it "gives no fair warning of the conduct it proscribes and fails to provide any ascertainable standard of guilt to circumscribe the discretion of the enforcing authorities”. The analysis applied to Article 134 is equally applicable to that regulation of the Detroit Police Department which proscribes all conduct "not specifically mentioned in the rules and regulations which tends to bring the department into disrepute or reflects discredit upon the individual as an officer”. See also Levy v Parker, 478 F2d 772 (CA 3, 1973).
In
Hamtramck Civil Service Commission v Pitlock, supra,
413-414;
Accordingly, we hold that Specification II against Sergeant Sponick and Specification II against Sergeant Daugherty must be, and are hereby, dismissed.
A contrary holding is not required by those decisions of our Supreme Court affirming the discharge of a police officer because of conduct unbecoming an officer. See
Purdie v Detroit Police Department Trial Board,
B. Associating With Criminals
1.
It is further claimed by Sergeant Sponick that the regulation which prohibits associating with convicted or suspected criminals is also unconstitutionally vague. He cites
DeGrazio v Chicago Civil Service Commission,
31 Ill 2d 482;
Detroit Police Manual, ch 3, § 34(41), does not have the defects of uncertainty found in Rule 309 of the Chicago Police Department. The Detroit
*177
rule proscribes knowing and intentional association, except in the line of duty, with persons convicted, charged, or suspected of any crime other than traffic offenses and municipal ordinance violations. Thus, it can be readily ascertained from the face of the regulation that arrest and conviction records are included within the meaning of the regulation, that all felonies and many misdemeanors are also included, and that a single arrest or conviction constitutes a "criminal record”. Since only knowing and intentional associations are proscribed, it is readily apparent that the individual officer must know that the individual has been convicted of, is charged with, or is suspected of, some crime. Because the regulation is so all-inclusive, we think it fairly within the apparent meaning of the regulation that no time limit be placed on prior criminal activity. Finally, the word "associate” is not an obscure term. It means more than "incidental contacts” between police officers and known criminals.
Cf. Arciniega v Freeman,
Therefore, it is our opinion that Detroit Police Manual, ch 3, § 34(41) gives police officers "fair warning” of that conduct which it proscribes. See Section I-A of this opinion.
2.
However, statutes and administrative regulations which are precise and which do accomplish
*178
some legitimate governmental end are, nonetheless, unconstitutional if they "broadly stifle fundamental personal liberties when the end can be more narrowly achieved”.
Shelton v Tucker,
No one questions the authority of the Detroit Police Department to regulate the conduct, both on and off duty, of its officers in an effort to preserve the integrity of the department and of its individual officers and the public’s confidence in the department. Nor does any one question the propriety of restraining police officers’ associations with known or reputed criminals. Some such associations may expose an officer to irresistible temptations to yield in his obligation to impartially enforce the law, and some such associations may give the appearance that the community’s police officers are not themselves honest and impartial enforcers of the law. Respect for law cannot long exist when the governed believe that the government is not obeying its own laws.
Olmstead v United States,
*179
Freedom of association is closely allied to freedom of speech and, as such, lies at the foundation of a free society and is protected by the First and Fourteenth Amendments to the Constitution of the United States.
NAACP v Alabama,
It is our conclusion that some of the associations proscribed by Detroit Police Manual, ch 3, § 34(41) have no possible bearing on the integrity of a police officer and that of his department and no possible bearing on the public’s confidence in the police. The regulation does not proscribe only association with individuals recently convicted or currently suspected of some crime. The regulation prohibits a police officer from associating with a neighbor, fellow church members, etc., arrested once decades ago. The regulation also prohibits a police officer from befriending a recently convicted individual and helping him become a productive citizen. Such associations cannot possibly impugn a police officer’s integrity. Since the regulation thus unnecessarily restricts police officers’ fundamental right to associate freely, that regulation is constitutionally infirm.
*180
Undoubtedly, the Detroit Police Department has no intention of enforcing the letter of the regulation to the instances mentioned above. However, that observation only highlights the defective nature of the regulation. Both of the associations mentioned above, and numerous other obviously innocent associations, are clear violations of the regulation. Therefore, if the regulation is upheld by this Court, any police officer may be disciplined at the whim of a superior for conduct generally ignored and sometimes encouraged by the department. Such unrestricted discretion in a government agent is to be feared and is prohibited by our Constitution.
Coates v Cincinnati,
"Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute [or regulation] may constitutionally be applied will not be heard to challenge that statute [or regulation] on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”
Broadrick v Oklahoma,
C. Failure To Report Contacts
1.
Finally, Sergeant Sponick alleges that Detroit Police Manual, ch 4, § 73, is unconstitutionally vague. We disagree.
*183 Chapter 4, § 73, requires every police officer to file a written report within 24 hours of all deliberate "contacts” with persons he knows to be convicted, charged, or suspected of any crime other than minor misdemeanors, and all deliberate visits to places frequented or suspected of being frequented by such persons.
A deliberate contact is any deliberate encounter for whatever purpose, e.g., an investigatory interview, an effort to obtain an individual’s assistance as an informant, paying one’s dues to the treasurer of a fraternal organization, or accompanying one’s children to a Christmas party. "Contacts” do not involve the personal relationship inherent in "associations”.
Except for the distinction between deliberate contact and deliberate association, Chapter 4, § 73, parallels Chapter 3, § 34(41). Therefore, for the reasons expressed in Section I-B(l) of this opinion it is our holding that Chapter 4, § 73, fairly informs all Detroit police officers what they must report to their superiors and when.
2.
However, a regulation that requires a police officer, under threat of departmental discipline, to report in writing to his superiors certain personal associations is no less obvious a restraint on that officer’s personal freedom of association than is a regulation completely prohibiting those same associations. A police officer might choose to curtail his innocent involvements with others rather than publicize those involvements or rather than take the time to record all such involvements. Cf. Shelton v Tucker, supra. Therefore, since Detroit Po *184 lice Manual, ch 4, § 73, is a restraint on police officers’ freedom of association, it is constitutional only if reasonably and narrowly related to the accomplishment of some legitimate governmental objective.
The Detroit Police Commissioner defends the challenged regulation as a mechanism for gathering criminal intelligence. We do not question the legitimacy of the Commissioner’s objective, nor his authority to accomplish that objective by requiring Detroit police officers to record some of their personal encounters, social as well as professional. However, because the reach of Detroit Police Manual, ch 4, § 73, is even greater than the reach of ch 3, § 34(41), i.e., the former deals with encounters less than "associations”, we declare that Detroit Police Manual, ch 3, § 73, is unconstitutional as presently written. See Section I-B(2) of this opinion. We are aware that a recording requirement is somewhat less of a restraint on the freedom of association than is an outright prohibition. Nonetheless, we decide as we do because Detroit Police Manual, ch 4, § 73, is considerably broader than ch 3, § 34(41), and, therefore, on balance, the constitutional infirmity of the former is comparable to that of the latter.
Since the overbreadth discussed in Section I-B(2) of this opinion is real and substantial, the over-breadth at issue in this section is even more real and substantial. Accordingly, appellants may challenge the constitutionality of Detroit Police Man ual, ch 4, § 73, although as to them the regulation is constitutional. 4 Broadrick v Oklahoma, supra.
*185 II APPELLANTS’ 5 TRIAL BOARDS
A.
The Detroit Charter provides that police department trial boards "shall” consist of the Police Commissioner or a deputy commissioner, the chief of detectives or an assistant appointed by him, and the chief inspector of the department. Detroit Charter, Title 4, ch 21, § 16. Because, at the time of the proceedings against appellants, there was no chief inspector in the Detroit Police Department, there obviously was no chief inspector on any of appellants’ trial boards. In the cases of Sergeants Sponick and Daugherty the Police Commissioner appointed a district inspector to sit in place of the chief inspector. In Sergeant Rickard’s case the commissioner appointed the Director of Administrative Services to sit in place of the chief inspector. Sergeant Sponick claims that the absence of the chief inspector deprived the respective trial boards of authority to adjudicate appellants’ guilt and to discipline them. Once again, we disagree.
That same Title of the Detroit City Charter which prescribes the membership of departmental trial boards authorizes the Police Commissioner to "change the titles of police officers and employees under him, except deputies”, to designate such new titles as he sees fit, and to create "whatever offices and positions” he deems "necessary for the proper organization and conduct of the department”. Detroit Charter, Title 4, ch 21, § 5(d). The commissioner also has "such other powers as * * * may be necessary * * * for the proper discharge of his duties”. Detroit Charter, Title 4, ch 21, § 5(m). One of his duties is the maintenance of discipline. *186 Detroit Charter, Title 4, ch 21, § 5(a). We read these subsections of the Charter to authorize the commissioner to either abolish the office of chief inspector lor to reasonably compensate for a vacancy in that office.
B.
It is further claimed that a trial board composed exclusively of police officers cannot impartially judge charges of misconduct prosecuted against a fellow officer by the department.
The United States Supreme Court has held that administrative hearings need not be conducted by a judicial officer or even by the traditional "neutral magistrate”. Due process is satisfied if the hearing is conducted by someone who did not participate in the decisión under review.
Morrissey v Brewer,
Sergeant Sponick claims that allowing a police officer to sit in judgment of a fellow officer is a violation of the common-law principle that "no man shall be judge in his own cause”. See
Peninsular R Co v Howard,
C.
Failing in his first two claims of error as to the composition of his trial board, Sergeant Sponick contends that the general atmosphere within the Detroit Police Department was so charged against those implicated in the "Anchor Bar Case” that it was impossible to impanel an impartial trial board to judge him. He also claims that his trial board was, in fact, biased against him.
Due process has been denied when it can be objectively concluded that an impartial jury was an impossibility because of extensive news media exposure or strong community feeling of prejudgment. The burden of proving such conditions is on the challenger.
Sheppard v Maxwell,
The Sergeant bases his claim of actual bias on a half dozen sentences extracted from over 400 pages of testimony. We have carefully read the entire transcript and find no indication whatsoever that the trial board was biased against Sergeant Sponick. What he claims are examples of bias appear to us to be slips of the tongue and mild expressions of skepticism at explanations offered by him. That the trial board chose not to believe Sergeant Sponick does not mean that it was biased.
Although Sergeant Rickard does not claim that his trial board was biased, we have read the entire transcript of his case and conclude that no bias whatsoever was demonstrated.
Ill PREFACE TO ADMINISTRATIVE LA W
A
departmental trial board hearing is not a trial and, therefore, need not comply with all the rules of evidence and procedure applicable to a trial. However, because a trial board hearing affects an "important interest”,
i.e.,
the officer’s employment future, the hearing must comply with "rudimentary due process”.
Cf. Slochower v New York City Board of Higher Education,
"Rudimentary due process” demands: (i) timely written notice detailing the reasons for proposed administrative action; (ii) an effective opportunity to defend by confronting any adverse witnesses and by being allowed to present in person witnesses, evidence, and arguments; (iii) a hearing examiner other than the individual who made the decision or determination under review; and (iv) a written, although relatively informal, statement of findings.
Goldberg v Kelly, supra; Wheeler v Montgomery,
The remainder of this opinion will be concerned with the application of "rudimentary due process” to the proceedings under review herein.
IV EVIDENCE ADMITTED
A.
Over the objection of corporation counsel, who acted as prosecutor in these cases, the trial boards received into evidence reports of the results of polygraph examinations to which each appellant submitted. The examinations were conducted by technicians selected by appellants. Each report concluded that appellants’ denials of any wrongdoing were truthful. Because no reports were submit *190 ted to contradict the reports submitted by appellants and because the examiners’ credentials and techniques were not challenged, it is claimed that the trial boards acted arbitrarily and capriciously when they obviously disregarded those reports by finding appellants guilty.
In this jurisdiction at present the results of polygraph examinations are not admissible at trial, either civil or criminal.
People v Frechette,
The results of a polygraph examination are, in reality, the examiner’s expert opinion as to the veracity of the individual examined by him.
United States v Ridling,
B.
The cases against appellants resulted from extensive surveillance (152 days) of two bars in the City of Detroit, the Anchor Bar and Leiter’s Lounge. The surveillance, which was directed against suspected gambling activities, was conducted both in the bars and from various vantage points outside the bars by officers of the Detroit Police Department and agents of the Federal Bureau of Investigation. The surveillance was not directed against appellants. However, when the officers and agents on surveillance duty compared their notes, they became aware that several Detroit police officers, including appellants, were frequent visitors to both bars and appeared to be friendly with the primary object of the surveillance, one Charles Sherman, a man convicted of several felonies and suspected of extensive gambling activities. This information was relayed to appellants’ superiors and, after additional internal investigations, resulted in the filing of charges of misconduct.
While on surveillance duty the officers made fragmentary notes of their observations. Subsequently, detailed reports were prepared using the fragmentary notes, and then the notes were destroyed. At appellants’ trial board hearings the police officers and FBI agents who conducted the surveillance testified against appellants, admittedly basing their testimony on the reports prepared by them from their fragmentary notes. Some of these witnesses candidly admitted having no independent recollection of either the incidents
*192
or the dates detailed in their reports. Others claimed to have independent recollections of the incidents, but not of the dates, detailed in their reports. None of the witnesses had independent recollections of both incidents and dates. It is obvious from the specifications against appellants that the establishment of particular dates is essential to the cases against them. See Section I of this opinion. Appellants’ counsel objected to all testimony based on written reports when the witness had no independent recollection of the subject of his testimony, and could not produce his fragmentary notes, citing
People v Rosborough,
It is our opinion that the Rosborough decision is applicable to administrative proceedings in general, but is not applicable to the particular proceedings under review herein.
In
People v Rosborough, supra,
194-195;
Nonetheless, we are constrained to hold that the Rosborough decision is not applicable to the instant cases because the surveillance involved was concluded before the effective date of that decision. It is our opinion that Rosborough applies only to fragmentary notes and reports based on surveillance occurring after March 9, 1972. All surveillance at issues herein was concluded in 1971.
The evidentiary rule announced in
People v Rosborough, supra,
195;
*194 Although the Whisenant decision expressly distinguished "trials commenced” from "cases commenced” or "prosecutions commenced”, that decision neither expressly distinguished "prosecutions commenced^ from "cases commenced”, nor did it equate the two terms. However, it is our conclusion that the Court used "future cases” in its Rosborough decision to mean other than "future prosecutions”. Had the Court intended to limit Rosborough to "future prosecutions”, we think it would have said so. Furthermore, the application of Rosborough only to "future prosecutions” would risk creating the very "anomalous situations” the Court sought to avoid in Whisenant.
In Michigan a criminal prosecution is commenced when a warrant is issued in good faith and delivered for execution.
People v Clark,
Thus, we conclude that
People v Rosborough, supra,
is applicable only to cases in which relevant surveillance occurred after March 9, 1972. In
People v Charlie Lee Woods,
C.
Each appellant was interrogated by the Internal Affairs Section of the Detroit Police Department. Prior to any questioning, a "Certificate of Notification of Constitutional Rights — Departmental Investigation” was handed to each appellant and thereafter read to them. That certificate advised appellants of their constitutional right to remain silent, but warned that refusal to answer appropriate questions regarding conduct as a police officer would be grounds for immediate dismissal. The certificate also advised appellants that any statements made by them and any evidence derived from such statements could not be used in subsequent criminal prosecutions against them. Each appellant acknowledged in writing that he understood his rights and was willing to answer questions put to him. Each appellant was then interrogated and their answers were transcribed. The transcripts of appellants’ responses were received into evidence by the trial boards. Sergeant Rickard objected to the receipt into evidence of the transcript of his responses. He renews that objection here.
Sergeant Rickard concedes that a police trial board may receive into evidence a statement made by a police officer under threat of dismissal, provided that the statement and any evidence derived therefrom are not used against the officer in criminal proceedings.
Garrity v New Jersey,
D.
In addition to visual surveillance of the Anchor Bar and Leiter’s Lounge, the FBI apparently engaged in extensive electronic surveillance. With one exception, we do not know the nature of that electronic surveillance. In September, 1972, after the proceedings reviewed herein, a Federal District Judge ruled that all the electronic surveillance had been conducted without proper authorization as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 USCA 2516, 2518). Accordingly, he ordered suppressed all conversations intercepted and all evidence derived therefrom. United States v Wierzbicki, Criminal Docket #45884 (ED Mich, 1972). Wierzbicki was a Detroit police officer arrested on federal gambling charges as a result of the same investigation which resulted in charges of misconduct against appellants.___
*197 Appellants claim that the evidence submitted against them at their trial board hearings was "tainted” by the illegal wiretaps condemned in the Wierzbicki decision. They ask us to vacate the discipline to which they have been subjected and to order suppressed all evidence tainted by the illegal wiretaps. We accept the decision in Wierzbicki as dispositive of the legality of the electronic surveillance at issue herein. We also agree with appellants that evidence obtained by means of illegal electronic surveillance may not be used, in any government proceeding, state or Federal, including police trial board hearings. 18 USCA 2515, 2518(10)(a); 1968 US Code Cong & Admin News, p 2185. However, appellants have not alleged that they are "aggrieved persons” within the meaning of 18 USCA 2510(11), 2518(10), and therefore entitled to complain about the illegality of the electronic surveillance. 7 Nor have appellants indicated to us in any manner whatsoever just what evidence submitted against them was derived from illegal electronic surveillance. No contents of conversations or other oral communications were submitted into evidence before the trial boards. We cannot imagine what evidence used against appellants at the trial board hearings could have been derived from overheard conversations. The evidence against appellants consisted of visual observations of them entering and leaving two bars, visual observations of them conversing with certain individuals inside those bars (no evidence was submitted as to the contents of those conversa *198 tions), and the failure of appellants to report such visits to the Anchor Bar and meetings therein.
In addition to having its agents inside the Anchor Bar posing as patrons, the FBI had a video tape machine located in an adjacent building. This machine photographed, apparently through a hole in the common wall, what transpired inside the bar and recorded at least some of the conversations which occurred in the bar. Sergeant Rickard appeared in one of the tapes. The trial board admitted into evidence the video portion of that tape. Because of the motion to suppress pending in Federal District Court in the Wierzbicki case, the trial board excluded the audio portion of the tape. Sergeant Rickard’s counsel objected to receipt of even the video portion of the tape.
Because Title III of the Omnibus Crime Control and Safe Streets Act of 1968 applies only to "wire communications” and "oral communications”, 18 USCA 2510(1) and (2), and 2515, the act does not apply to photographic surveillance. Therefore, the video portion of the tape showing Sergeant Rickard is inadmissible only if obtained in violation of the Sergeant’s constitutional rights. We find no violation of constitutional limitations.
The Anchor Bar is a public tavern. Therefore, people in the bar must expect to be observed by those members of the public who patronize the bar. A video tape machine, insofar as it photographs only, is merely making a permanent record of what any member of the general public would see if he entered the tavern as a patron. Accordingly, to photograph Sergeant Rickard’s presence in the bar did not violate his "reasónable expectations of privacy”. The Fourth Amendment protects only "reasonable expectations of privacy”.
Katz v United States,
V RULES OF PROCEDURE
A.
At the conclusion of the prosecution’s case Sergeant Sponick’s counsel moved for a directed verdict of acquittal. The trial board took the motion under advisement. At the conclusion of all proofs the motion was denied. Sergeant Sponick claims that it was "arbitrary and unfair” for the trial board to defer passing on his motion until the close of the proofs, for such postponement forced him to "risk * * * supplying missing evidentiary elements”.
In this jurisdiction trial judges in criminal prosecutions have long been allowed to take under advisement motions for directed verdict of acquittal and then deny those motions when the defendant’s proof supplies necessary evidence.
People v Barlow,
Furthermore, a motion for directed verdict made at the close of the prosecution’s case must be denied if the prosecution has presented "any evidence” in support of its case.
People v Wesley Brown,
B.
Sergeant Sponick’s trial board found him "guilty of all four * * * specifications * * * as formally charged before this Panel”. Sergeant Daugherty was found "guilty of both * * * specifications * * * as formally charged before the Board”. Sergeant Rickard was found "not guilty of the offenses described in specification 2”, but "guilty of those offenses enumerated in specification 1”. Sergeant Rickard’s trial board explained why they found him guilty of specification I. No explanations were offered by Sergeant Sponick’s trial board or by Sergeant Daughterty’s trial board. Sergeant Sponick complains that a finding of "guilty as charged” is not an adequate finding of fact. We disagree. A finding of "guilty as charged” is not an exemplary finding, but it is adequate. We base our decision on the case of
Viculin v Department of Civil Service,
Donald Viculin was an examiner with the Vocational Rehabilitation Division of the Michigan Department of Education. Because of two consecutive "unsatisfactory” service ratings, Viculin was dismissed by his immediate superiors. He appealed the dismissal to the Civil Service Hearing Board. Formal charges were filed against Viculin before the hearing board, a hearing was held, findings were made, and the dismissal was affirmed. The board’s findings of fact recited verbatim the
*201
charges filed before the board. The charges filed and the findings made are reproduced in the margin.
8
Viculin then appealed to the Civil Service Commission. Another hearing was held. Viculin was informed by letter by the commission that it "affirmed the Hearing Board’s decision”. On appeal to the Supreme Court Viculin complained that the findings of the Civil Service Hearing Board and those of the Civil Service Commission were inadequate. The Supreme Court affirmed, holding that the "findings” were "sufficient”, although the board and the commission "could have been more articulate in presenting their findings and the basis for their decisions”.
Viculin v Department of Civil Service, supra,
405-406;
Findings of fact which recite verbatim the *202 charges levied against an individual are, in effect, findings of "guilty as charged”. Therefore, on the basis of the Vieulin decision, we hold that the findings of fact made by Sergeant Sponick’s trial board "could have been more articulate”, but were "sufficient”.
VI SUFFICIENCY OF THE EVIDENCE
A.
Sergeant Rickard was found not guilty of failing to timely report "knowingly and intentionally having had] contact on February 5, 1971, March 4, 1971, and April 2, 1971”, with a convicted criminal (Specification II). However, he was found guilty of having deliberately submitted false daily activity logs (Specification I) in that his daily logs for February 5, 1971, March 4, 1971, and April 2, 1971, indicated that he was elsewhere than the Anchor Bar on those dates at times when the trial board determined that he was, in fact, in the Anchor Bar. Sergeant Rickard claims that implicit in his acquittal on Specification II are findings of fact which necessitate acquittal on Specification I. We disagree.
Specification II charged Sergeant Rickard with having been in the Anchor Bar on certain dates, and having had contact while there with a named individual, and with having failed to report said contacts. The Sergeant was acquitted of the specification because the trial board "entertain[ed] a doubt” that Rickard deliberately had contact with the named individual. The board did not find that he was never in the bar. Specification I merely charged the Sergeant with having been in the Anchor Bar on the same dates specified in Specification II and with having submitted daily logs *203 indicating he was elsewhere. Contact with anyone is not an element of Specification I. Therefore, acquittal on Specification II did not preclude conviction on Specification I.
B.
Each appellant claims that the trial boards’ findings of misconduct are not supported by the evidence.
We must sustain challenged determinations of fact by administrative agencies if those determinations are supported by "competent, material and substantial evidence on the whole record”. Const 1963, art 6, § 28;
Viculin v Department of Civil Service, supra,
403;
1. Case #15396
Speciñcation I. Detroit police officers and FBI agents on surveillance duty outside the Anchor Bar on November 17, 1970, observed Sergeant Sponick enter the bar at 10:09 a.m. and remain therein until 11:14 a.m. Sergeant Sponick’s activity log for November 17, 1970, makes no mention of the one hour spent in the Anchor Bar. Rather, the log shows Sergeant Sponick leaving the pre *204 cinct at about 10 a.m., going to the garage at headquarters for gasoline, and then engaging in general police work. The trial board was justified in concluding that Sergeant Sponick spent one hour in the Anchor Bar on November 17, 1970, and that he falsified his activity log for that day to obscure that fact.
2. Case #15397
Specification I. Testimony by police officers on surveillance'duty outside the Anchor Bar placed Sergeant Rickard inside the Bar on February 5, 1971, from 9:23 a.m. until 11:13 a.m.; on March 4, 1971, from 9:01 a.m. until 10:31 a.m.; and on April 2, 1971, from 9:07 a.m. until 9:40 a.m. Sergeant Rickard did not contest this evidence.
Daily logs purporting to be those of Sergeant Rickard for the dates at issue were then submitted into evidence. Sergeant Rickard identified as his own the signatures appearing on the logs for February 5th and April 2nd. He denied that the signature on the log dated March 4th was his. A cursory comparison of the logs for February 5th and April 2nd with the log for March 4th indicates that the signatures thereon are very different. Because Sergeant Rickard refused to admit that the signature on the log for March 4th was his or that he had authorized anyone to sign the log of March 4th for him, and because the prosecution offered no evidence that the signature on the March 4th log was the signature of Rickard or that Rickard had authorized anyone to sign his name for him, we must conclude that the prosecution failed to prove its case as to March 4th. However, adequate proof was submitted as to February 5th and April 2nd.
The trial board was entitled to infer that the *205 logs for February 5th and April 2nd were false. Sergeant Rickard’s log for February 5, 1971, shows him arriving in the office at 8 a.m. and doing miscellaneous office work until 10:15 a.m., at which time he left the office and visited one George Wright about some charitable solicitation, had lunch, visited some recruiting office, and then observed labor pickets beginning at approximately 2:45 p.m. According to his log Sergeant Rickard did not spend any time on February 5, 1971, in the Anchor Bar. The evidence suggested the contrary. The Sergeant’s log for April 2, 1971, shows the Sergeant arriving on duty at 7:45 a.m. and doing miscellaneous office work until 10 a.m., at which time he left for the City Clerk’s office. At approximately 10:30 a.m. Rickard attended a union meeting. At 12:30 p.m. Rickard and his partner checked into their offices and then went to lunch. According to a fair reading of this log Rickard spent no time in the Anchor Bar. The trial board was entitled to infer from the evidence that such was false.
C.
At his trial board hearing Sergeant Sponick presented some evidence to the effect that scores of Detroit police officers were lax in the preparation of daily logs and other required reports, but were not prosecuted. He claimed then, and claims now, that pressing charges against him and a handful of other officers was unfair in light of such widespread unpunished laxity.
The United States Constitution forbids the discriminatory enforcement of nondiscriminatory laws and regulations. However, the conscious exercise of some selectivity in the enforcement of a law or departmental regulation is not, in itself, a
*206
violation of the Federal Constitution. In order to be a violation of the Constitution, the selectivity must be based upon race, religion, or some other arbitrary classification. Intentional or purposeful discrimination will not be presumed; it must be shown affirmatively.
Oyler v Boles,
VII. DISCIPLINE
The trial board which found Sergeant Sponick guilty as charged demoted him to the rank of patrolman, and ordered that he not be considered for promotion from the then current eligible register or from the next register. In effect, Sergeant Sponick was denied promotion for four years. Sergeant Rickard’s trial board ordered him to forfeit five leave days and further ordered that he not be considered for promotion from the then current eligible register.
Sergeant Sponick claims that the Police Commissioner has no authority to deny promotion to any police officer who has taken and passed the qualifying examinations. He also claims that denying promotion is so disproportionate to the misconduct of which he was convicted as to be cruel and unusual punishment. The circuit judge who reviewed these cases thought that the discipline ordered against appellants was harsh. He re *207 manded the cases with the suggestion that the severity be mitigated. However, he felt himself without authority to order such mitigation. Apparently, the commissioner rejected the circuit judge’s suggestion.
Because, upon remand, Sergeant Sponick is to be disciplined for substantially less misconduct than that for which he was originally disciplined, the new discipline may be different than that complained of. Were Sergeant Sponick’s case the only one before us, w:e would decline to consider his challenge to the discipline imposed on him as a potentially unnecessary resolution of a constitutional issue. However, Sergeant Rickard, who was also denied promotion, is to be disciplined anew for essentially the same misconduct for which he was originally disciplined. The likelihood of promotion again being denied to Sergeant Rickard is substantial. Therefore, as guidance to Sergeant Rickard’s trial board and in hopes of precluding another appeal, we will consider the challenges made against denial of promotion as a form of discipline.
The Police Commissioner is charged with making "all proper rules for the government and discipline” of the department, Detroit Charter, Title 4, ch 21, §5(a), and is given all powers "necessary * * * for the proper discharge of his duties”. Detroit Charter, Title 4, ch 21, § 5(m). To withhold from the commissioner authority to deny promotion as discipline for misconduct is to deny him an effective tool for discharging his duty to properly discipline the department.
Finally, all departmental trial boards are authorized to discharge any officer convicted of misconduct or to impose such "other penalty as the board may prescribe”. Detroit Charter, Title 4, ch 21, § 16. If a trial board may discharge an errant *208 officer from the force, it certainly can impose a lesser penalty, including forfeiture of leave or pay, denial of promotions, etc.
By filing false activity logs a police officer compromises the integrity of the Detroit Police Department. The public is entitled to infer that, when a police officer deliberately conceals from his superiors his activities while on duty, those activities are improper. Unless the public is convinced that its police officers scrupulously obey the rules and regulations of the department, the public cannot be certain that its police officers will obey the constitutions and laws they are charged with enforcing. Accordingly, denial of promotion is not out of proportion to such misconduct and does not violate either the Federal Constitution or the Constitution of this state.
People v Lorentzen,
VIII. CONCLUSION
Specifications II, III, and IV against Sergeant Sponick are dismissed. The trial board’s finding of fact as to Specification I is affirmed. The case is remanded to the original trial board for reconsideration of discipline. If the original trial board cannot be convened, the commissioner shall appoint another board to reconsider discipline. If a new board must be convened, it shall include as many of the members of the original board as are still with the Detroit Police Department.
The trial board’s findings of fact as to Specification I against Sergeant Rickard are affirmed, ex-, cept as to the charge of filing a false activity log for March 4, 1971. That one charge is dismissed. The case is remanded for reconsideration of disci *209 pline. If possible, the original trial hoard shall reconsider the discipline to be imposed on Sergeant Rickard. If the original board cannot be convened, the commissioner shall act as ordered above.
Specifications I and II against Sergeant Daugherty are dismissed. Sergeant Daugherty is to be fully reinstated and promoted to the rank of lieutenant, effective the date he would have been so promoted were it not for these proceedings.
Case # 15396: Affirmed in part; reversed in part. Remanded.
Case #15397: Affirmed in part; reversed in part. Remanded.
Case #15398: Reversed.
Since Sections 1-A and I-C(2) of this opinion require the dismissal of both specifications against Sergeant Daugherty, for purposes of the remainder of this opinion "appellants” are Sergeants Sponick and Rickard.
Notes
Detroit Police Manual, ch 3, § 34(8) provides:
"Conduct unbecoming an officer, which shall include any act or conduct not specifically mentioned in the rules and regulations which tends to bring the department into disrepute or reflects discredit upon the individual as an officer.”
Detroit Police Manual, ch 3, § 34(41) provides:
"Knowingly and intentionally associating with (unless in the course of their official duties): convicted criminals or persons charged with crimes excluding traffic and municipal ordinance violations; or persons known or suspected of criminal offenses of any type, including subversive activities which tend to jeopardize the security of the government.”
Detroit Police Manual, ch 4, § 73 provides:
"Each time any member knowingly and intentionally has contact with or goes to a location frequented or suspected of being frequented by:
1. Convicted criminals or persons charged with crimes excluding traffic and municipal ordinance violations: or
2. Persons known or suspected of criminal offenses of any type, including subversive activities which tend to jeopardize the security of the government;
an information report shall be prepared in duplicate on a PCR within 24 hours, unless such contact or visit is properly recorded on a routine report such as activity log, interrogation sheet, routine PCR or other official department record.
"When an information report is prepared, both copies shall be forwarded to the commanding officer of the Inspectional Services Bureau. If the member preparing the report wishes to keep the information confidential, he may personally convey the report to the commanding officer of the Inspectional Services Bureau. Failure to follow the above procedures shall be considered neglect of duty.”
Since 1960, Sherman has been convicted of failing to purchase a gambling tax stamp (1960), willfully failing to file a Federal income tax return (1961), income tax evasion (1963), conspiracy to violate Michigan liquor laws (1966), and attempted bribery of a police officer *181 (1966). Because Sergeant Sponick had been assigned for some time to the vice bureau and because he had been assigned to investigate a magazine article alleging connections between Sherman and the police department, it would he reasonable to conclude that Sponick was fully aware of Sherman’s criminal record and the suspicions as to his criminal activities.
We estimate that approximately 250,000 cases covered by the challenged regulation were commenced in this state in 1972. This figure includes criminal cases commenced in all the county circuit courts (19,027) and all felonies commenced in Detroit Recorder’s Court (12,213); all misdemeanors other than traffic offenses and violations of Detroit ordinances commenced in Recorder’s Court (14,- *182 968); all cases other than traffic offenses commenced in the state’s district courts, minus cases bound over to circuit courts (173,230); and all cases other than traffic offenses commenced in municipal courts, minus cases bound over to circuit courts (27,143). Admittedly, some actions against one defendant for several violations have been recorded as several "cases”. On the other hand, however, some actions with several codefendants have probably been recorded as a single case. We have no way of separating municipal ordinance violations out of the cases commenced in the district courts and municipal courts. However, since a defendant is not likely to know whether he was tried for an ordinance violation or a state misdemeanor (the same crime may be tried as either depending on the location of the alleged offense), to be safe a policeman is likely to assume all cases other than traffic offenses are covered by the regulation. Hence, the figure of 250,000 indicates the order of magnitude of the situation before us. Allowing for a recidivism rate of 50% within each year and 50% from year to year, approximately 0.6% of the population of this state (nine million) is involved each year for the first time with the criminal law other than traffic offenses to the point of having charges filed and not dismissed before getting to court. That means that some multiples of 0.6% of all people currently living in this state fall within the proscribed class of associates. Our statistics are from Sup Ct of Mich, 1972 Annual Report, pp 24, 26, 36, 135, 144-145. Within racial minority neighborhoods and poverty neighborhoods, the percentage of associations within the proscribed class will be substantially higher. President’s Commission on Law Enforcement & Admin of Justice, The Challenge of Crime in a Free Society (E. P. Dutton & Co, Inc, 1968), pp 130-133, 149-150. To obey Detroit Police Manual, ch 3, § 34(41), a minority police officer or a police officer who comes from a poverty area would have to abandon his neighborhood and his past.
As to Sergeant Sponick’s awareness of Sherman’s recent criminal record and currently suspected criminal activities see fn 2, supra. Sergeant Daugherty admitted full knowledge of Sherman’s record.
"If I do answer, and immunity, federal, state, or other has not been given, neither my statements nor any information or evidence which is gained by reason of such statements can be used against me in any subsequent criminal proceeding.”
Had appellants been the persons at whom the electronic surveillance was directed or had appellants been parties to intercepted conversations, the Federal judge who authorized the surveillance would have notified appellants thereof. 18 USCA 2518(8)(d). Had appellants been notified that they were, in effect, "aggrieved” persons (18 USCA 2510[11]), we are confident appellants would have so notified us.
The following charges were lodged against Donald Viculin (See
Viculin v Department of Civil Service,
"1) Unnecessary long delays of cases * * *
"2) Lack of response to supervisor’s help * * * .
"3) Gross errors in case action * * * .
"4) Carelessness in routine work » * * .
"5) Poor case management at desk * * * .
"6) Inability to acknowledge mistakes * * * .
"7) Poor handling of invoices * * * .”
The asterisks above represent references to memoranda stating the particulars of each specification against Viculin.
The Civil Service Hearing Board made the following "findings”
(Viculin v Department of Civil Service, supra,
382;
" '1. Unnecessary long delays of cases.
" '2. Lack of response to supervisor’s help.
" '3. Gross errors in case action.
" '4. Carelessness in routine work.
" '5. Poor case management at desk.
" '6. Inability to acknowledge mistakes.
" '7. Poor handling of invoices.’ ”
The Civil Service Commission adopted as its own the findings of the Civil Service Hearing Board.