Vielehr v. State Personnel Bd.

• Decision Date: 09 May 1973
• Citation: 107 Cal.Rptr. 852,32 Cal.App.3d 187
• Court: California Court of Appeals Court of Appeals
• Parties: Charles K. VIELEHR, Petitioner and Appellant, v. STATE PERSONNEL BOARD et al., Respondents. Civ. 1707.

Page 852

107 Cal.Rptr. 852

32 Cal.App.3d 187

Charles K. VIELEHR, Petitioner and Appellant, v. STATE PERSONNEL BOARD et al., Respondents.

Civ. 1707.

Court of Appeal, Fifth District, California.

May 9, 1973.

Walter W. Taylor, Wayne N. Stephenson, Allen R. Link, Robert J. Sullivan and Daniel Dodge, Sacramento, for petitioner and appellant.

Evelle J. Younger, Atty. Gen., and Joel Carey, Deputy Atty. Gen., Sacramento, for respondents.

GEO. A. BROWN, Presiding Justice.

This case deals with the question of whether appellant, who was employed by the State of California in the Department of Human Resources Development as a tax representative trainee ¹ can be legally dismissed under the provisions of Government Code section 19572, subdivision (t), ² because of his conviction upon a charge of possession of marijuana while off the job, without more.

On August 7, 1970, appellant was convicted on his plea of guilty of a violation of section 11530 of the Health and Safety Code (possession of marijuana) and was sentenced to two years formal probation with 90 days' jail sentence suspended except for the period from 7 p.m. Friday, September 11, 1970, to 5 a.m. Monday September 14, 1970. He lost no time from the job.

On October 29, 1970, appellant, who had then been employed for over two years as a tax representative trainee, received a written notice of punitive action from the Department of Human Resources Development dismissing him effective 5 p.m. November 2, 1970. The notice recited the marijuana conviction as the basis of the discharge and stated:

'5. Your position as Tax Representative Trainee requires a great amount of public contact with a segment of the community made up primarily of employers. One of your functions in your position is to establish a rapport with these individuals based on a mutual feeling of respect.

You are a representative of the Department and any actions which tend to discredit you personally in the eyes of those you come into contact with cannot help but bring discredit to the entire Department.

The knowing commission of an illegal act without just cause shows a lack of respect for authority, particularly governmental authority. You cannot urge people to comply with Departmental rules and regulations while you yourself have shown a lack of desire to comply with governmental rules.'

In subsequent proceedings before a hearing officer of the State Personnel Board, a transcript of which is before this court, the hearing officer rendered a proposed decision sustaining the dismissal. The findings and decision of the hearing officer were adopted by the State Personnel Board.

Pursuant to Code of Civil Procedure section 1094.5, the appellant filed a petition in administrative mandamus in the superior court. No evidence was taken by the court. The cause was submitted upon the record before the State Personnel Board and arguments of counsel. The petition was denied without opinion on April 29, 1971, and the cause is before this court upon an appeal from the judgment denying the petition.

Our function in reviewing a decision of the State Personnel Board is defined in Blake v. State Personnel Board (1972) 25 Cal.App.3d 541, 551, 102 Cal.Rptr. 50, 56:

'. . . 'Respondent Board is a statewide administrative agency deriving its adjudicating power from section 3 of article XXIV of the Constitution. Consequently, its factual determinations must be upheld by a reviewing court if they are supported by substantial evidence (citation) and all legitimate and reasonable inferences must be drawn in support of such findings (citations). . . .''

(See Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 717, 85 Cal.Rptr. 762.

There was no evidence before the State Personnel Board other than appellant's conviction of possession of marijuana. The hearing officer stated in his proposed decision:

'The acts resulting in appellant's criminal conviction and the conviction itself constitute failure of good behavior within the meaning of Government Code Section 19572(t) and warrant the dismissal action taken by the Department.'

Findings were not requested or made in the superior court (Code Civ.Proc., § 632, subd. 1). Findings having been waived, this court must infer in support of the judgment that the trial court found that the conduct referred to constituted failure of good behavior which was of such a nature that it caused discredit to appellant's agency or department within the meaning of Government Code section 19572, subdivision (t), (see fn. 2) and that there was substantial evidence to support that finding. (Commings v. State Bd. of Education (1972) 23 Cal.App.3d 94, 98, fn. 4, 100 Cal.Rptr. 73; 4 Witkin, Cal.Procedure (2d ed. 1971), Trial, § 310, p. 3118.) The core of the problem, therefore, is whether under precedent and in reason the conviction of possession of marijuana, standing alone, constitutes substantial evidence of a failure of good behavior outside duty hours which is of such a nature that it causes discredit to the agency or to appellant's employment.

One of appellant's contentions has been resolved against him by the Supreme Court in Nightingale v. State Personnel Board (1972) 7 Cal.3d 507, 102 Cal.Rptr. 758, 498 P.2d 1006 since the briefs were filed. Appellant argues that there must be substantial evidence presented to show that the public was aware of his alleged failure of good behavior and that the public awareness caused actual discredit to the agency. In Nightingale, the court expressly held that the misbehavior under subdivision (t) does not have to be publicly known, resulting in actual discredit to the agency. (See pp. 513--514, 102 Cal.Rptr. 758, 498 P.2d 1006.)

Other principles established by Nightingale are germane to the resolution of the principal issue in this case. The Supreme Court said that subdivision (t) can be saved from being unconstitutionally vague by 'a more precise judicial construction and application of the statute in conformity with the legislative objectives.' The court then proceeded to quote with approval the following language from Orlandi v. State Personnel Bd. (1968) 263 Cal.App.2d 32, 37, 69 Cal.Rptr. 177, 180:

'. . . 'The first 19 subdivisions of section 19572, (a) through (s), list specific kinds of conduct which, if committed, constitute causes for discipline. It is obvious that they do not exhaust the kind of conduct which can be detrimental to state service. Subdivision (t) relates to 'other failure of good behavior' and is a catchall to include situations and acts which do not easily fit into the 19 specific causes. The failure of good behavior must be of such a nature that it reflects upon the employee's job and cannot be just any behavior which the agency might consider improper.' (263 Cal.App.2d at p. 37, 69 Cal.Rptr. at p. 180; italics added.)'

(Nightingale v. State Personnel Board, supra, 7 Cal.3d 507, at p. 512, 102 Cal.Rptr. 758, at p. 761, 498 P.2d 1006, at p. 1009.)

This limitation on the application of section 19572 was applied in Johnson v. County of Santa Clara (1973) 31 Cal.App.3d 26, at page 32, 106 Cal.Rptr. 862, at page 865, where it is said:

'In determining whether an employee should be disciplined, whatever the cause the overriding consideration is whether the conduct harms the public service.' (Citation.) 'If the misconduct bears some rational relationship to the employment and is of a character that can reasonably result in the impairment or disruption of public service,' the employee may be disciplined. (Citation.)'

(See also Blake v. State Personnel Board, supra, 25 Cal.App.3d 541, 550--551, 102 Cal.Rptr. 50.)

A like restriction has been applied in cases relating to the disciplining of teachers. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 82 Cal.Rptr. 175, 491 P.2d 375; Comings v. State Bd. of Education, supra, 23 Cal.App.3d 94, 100 Cal.Rptr. 73.) Since the Supreme Court in Nightingale (7 Cal.3d at p. 512, 102 Cal.Rptr. 758, 498 P.2d 1006) said that subdivision (t) has been limited in conformance with the holding in the leading case dealing with the disciplining of teachers (Morrison v. State Board of Education, Supra, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375), we turn briefly to the consideration of that case and the case of Comings v. State Bd. of Education, supra, 23 Cal.App.3d 94, 100 Cal.Rptr. 73.

Under Education Code section 13202, the State Board of Education is authorized to take appropriate disciplinary action for 'immoral or unprofessional conduct . . . or for evident unfitness for service.'

In Morrison v. State Board of Education, supra, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375, the only proof was that the teacher had committed four separate acts of homosexual conduct with a fellow teacher over a period of one week. The court held that the teacher's conduct could not constitute immoral or unprofessional conduct or conduct involving moral turpitude which per se gave grounds to discipline the teacher unless such conduct indicated his unfitness to teach. The court elaborated:

'We therefore conclude that the Board of Education cannot abstractly characterize the conduct in this case as 'immoral,' 'unprofessional,' or 'involving moral turpitude' within the meaning of section 13202 of the Education Code unless that conduct indicates that the petitioner is unfit to teach. In determining whether the teacher's conduct thus indicates unfitness to teach the board may consider such matters as the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary...