Court Cases Court Cases
AL  AK  AZ  AR  CA  CO  CT  DE  FL  GA  HI  ID  IL  IN  IA  KS  KY  LA  ME  MD  MA  MI  MN  MS  MO  MT  NE  NV 
NH  NJ  NM  NY  NC  ND  OH  OK  OR  PA  RI  SC  SD  TN  TX  UT  VT  VA  WA  WV  WI  WY  EO  NR  PR  DC  US 
 
View Case Details
 
STEVEN BAILEY Petitioner
vs.
WILMINGTON DEPARTMENT OF POLICE CITY OF WILMINGTON Respondent.
 
Case:
C.A. No. 96A-05-008-RRC
 
Location:
SUPERIOR COURT OF DELAWARE NEW CASTLE
 
Date:
September 30 1996 Decided
 
Attorneys:
Jeffrey M. Weiner Esquire Wilmington Delaware Counsel for Steven Bailey Petitioner.
William J. Rhodunda Jr. Esquire City of Wilmington Law Department Counsel for the City of Wilmington Respondent.
 
Court:
Richard R. Cooch The Court
 
Author:
The Hon. Justice Richard R. Cooch
 

This 30th day of September 1996 it appears to Court that:

1. Steven Bailey ("Petitioner") has petitioned this Court to issue a Writ of Certiorari to the City of Wilmington Department of Police ("Respondent") to review certain actions of its Complaint Hearing Board and its Appeal Board. For the reasons set forth below Court denies Bailey's Petition for Writ of

Certiorari.

The Parties' Contentions

2. Petitioner argues that (1) the Complaint Hearing Board and the Appeal Board exceeded their jurisdiction in that they failed to comply with the Law-Enforcement Officers' Bill of Rights 11 Del. C. ch. 92 by applying a supposed "lesser" preponderance of the evidence burden of proof standard at the complaint hearing rather than a "substantial evidence" standard as set forth in SEC. 9205(e) and that (2) the burden of proof is a substantive rather than a procedural right incapable of modification by a collective bargaining agreement between the City of Wilmington and the Fraternal Order of Police Lodge No. 1 ("the Agreement") the provisions of SEC. 9303 to the contrary notwithstanding.

3. Respondent argues in response that (1) the Agreement properly established a preponderance of the evidence standard as the burden of proof at the complaint hearing board; (2) if nevertheless the proper standard to be applied by the Complaint Hearing Board was "substantial evidence " that standard is properly defined as "less" than a preponderance of the evidence and was otherwise met by Respondent at the hearing; and (3) Petitioner has waived the burden of proof issue by having failed to raise it at the Complaint Board hearing or before the Appeal Board.

Facts

4. On February 9 1996 the Wilmington Department of Police charged Petitioner with nine administrative charges. After a hearing on March 6 1996 the Complaint Hearing Board concluded that seven of the charges were substantiated and terminated Petitioner's employment with the Wilmington Department of Police. On April 23 1996 an Appeal Board upheld the decision of the Complaint Hearing Board. Petitioner then filed his Petition for Certiorari with this Court.

5. The General Assembly enacted the "Law-Enforcement Officers' Bill of Rights" in 1985. 11 Del. C. ch. 92. Section 9203 sets forth the requirements when a law enforcement officer is subjected to suspension or to other disciplinary action other than a reprimand and provides that such officer

. . . shall be entitled to a hearing which shall be conducted in accordance with this chapter unless a contractual disciplinary grievance procedure executed by and between the agency and the bargaining unit of that officer is in effect in which case the terms of that disciplinary grievance procedure shall take precedence and govern the conduct of the hearing.

11 Del. C. SEC. 9203. Section 9205(e) provides that ". . . no law enforcement officer may be adCourtd guilty of any offense unless the hearing tribunal is satisfied that guilt has been established by substantial evidence." 11 Del. C. SEC. 9205(e).

6. The City of Wilmington and the Fraternal Order of Police Lodge No. 1 entered into a contract parts of which establish a "disciplinary grievance procedure" as countenanced by Sec. 9203. Article 11 of the collective bargaining agreement between the City of Wilmington and the Fraternal Order of Police Lodge No. 1 states in part that

. . . the provisions of Sections 3 through 15 of this Article and the disciplinary procedures set out in the Police Rules and Regulations shall constitute the contractual disciplinary grievance procedure shall govern the conduct of any hearing[ ] and shall take precedence over the terms of Sections 9203 9204 9205 and 9207 of the Law Enforcement Officers' Bill of Rights 11 Del. C. Chapter 92.

7. Part of the Wilmington Department of Police's Rules and Regulations is Directive 8.7 entitled "Complaint Hearing Board." Section H of that Directive states "The accused shall be adCourtd guilty of any charge upon which the Complaint Hearing Board is satisfied that guilt has been established by a preponderance of evidence."

Discussion

8. On a petition for writ of certiorari Court's function is limited to a review of the record of the proceedings below to ascertain the regularity thereof and to determine whether the Board exceeded its jurisdiction. Shoemaker v. State Del.Supr. 375 A.2d 431 437 (1977). This Court may not consider the merits of the case nor substitute its own judgment for that of the inferior tribunal. Citizen Hose Co. No. 1 v. State Fire Prevention Comm'n Del. Super. C.A. No. 84A-FE-2 Ridgely J. (July 9 1985). Review of certiorari differs from review by appeal since under certiorari the reviewing court may not weigh and evaluate the evidence but merely examines the record for facial errors. Castner v. State Del. Supr. 311 A.2d 858 (1973).

9. Although 11 Del. C. SEC. 9205(e) refers to "substantial evidence" as the applicable burden of proof it also contemplates modification of "disciplinary grievance procedure[s]" by agreement. 11 Del. C. SEC. 9203. The Agreement states that the disciplinary procedures set forth in the Police Rules and Regulations take precedence over SEC.(s) 9203 9204 9205 and 9207; these superseding Police Rules and Regulations establish "preponderance of the evidence" *fn1 as the proper burden of proof.

10. This Court has held that in a case where the probationary status of a new Wilmington police officer was at issue that pursuant to 11 Del. C. SEC. 9203 certain terms of the same bargaining agreement took precedence over the Law-Enforcement Officers' Bill of Rights because the agreement provided that the "disciplinary procedures" set out in the Police Rules and Regulations governed. This Court there held that it was "only necessary to determine whether or not Respondent followed procedures set out in the 'Police Rules and Regulations.'" See Gale v. Sapp Del. Super. C.A. No. 91A-08-9 Alford J. (February 11 1993) (Order) at 5. Here the Complaint Hearing Board and the Appeal Board complied with Directive 8.7(H) and acted fully in accordance with the Agreement as permitted by SEC. 9303 in establishing a hearing level "preponderance of the evidence" standard.

12. Court is un persuaded that the burden of proof in police disciplinary hearings is a substantive right and otherwise incapable of modification. The Fraternal Order of Police Lodge No. 1 was the employee organization designated by a majority of the employees to serve as the exclusive collective bargaining representative and it may agree to terms and conditions that are contractually binding on all employees. 19 Del. C. SEC. 1604(a). This includes modification of substantive rights. For example a union in its capacity as exclusive bargaining representative may consent to drug testing on behalf of the employees it represents. Bolden v. Southeastern Pa. Transp. Auth. 953 F.2d 807 827-28 (3rd Cir.1991). Individual employees are bound by such a modification of their right to withhold consent despite the substantive Fourth Amendment search and seizure issues implicated. Id. Even if the burden of proof is a substantive right *fn2 the Court finds it is similarly capable of modification.

13. Petitioner has not made a prima facie showing for the issuance of a writ of certiorari here. See 1 Woolley's Practice in Civil Actions SEC.(s) 894-95; see also 14 C.J.S. Certiorari SEC. 37 (1991). As Court holds that the applicable burden of proof is "preponderance of the evidence " as set forth in the Police Rules and Regulations it does not reach Petitioner's argument that the "substantial evidence" standard as applied by a trier of fact is greater than the "preponderance of the evidence" standard nor does it reach Respondent's argument that Petitioner is precluded from raising the burden of proof issue on appeal because he failed to raise it at the hearing or on administrative appeal.

For the foregoing reasons the Petition for Writ of Certiorari is DENIED.

IT IS SO ORDERED.

 
Notes:

*fn1 "Preponderance of evidence" is evidence which is more credible and convincing than the evidence offered in opposition to it or "the greater weight of evidence." Black's Law Dictionary 1182 (6th e. 1990).

*fn2 In the conflict of laws area "burden of proof is considered a procedural issue . . . ." Monsanto Co. v. Aetna Casualty and Surety Co. et al. Del. Super. 88C-JA-118 Ridgely P.J. (Dec. 9 1993)(Opinion) at 10.