Ball v. City Council of City of Coachella

• Court: California Court of Appeals
• Citation: 60 Cal.Rptr. 139,252 Cal.App.2d 136
• Decision Date: 28 June 1967
• Parties: , 66 L.R.R.M. (BNA) 2215, 56 Lab.Cas. P 51,730 John Richard BALL, Petitioner and Respondent, v. The CITY COUNCIL OF the CITY OF COACHELLA, State of California, Appellant. Civ. 8290.

Page 139

60 Cal.Rptr. 139 252 Cal.App.2d 136, 66 L.R.R.M. (BNA) 2215, 56 Lab.Cas. P 51,730 John Richard BALL, Petitioner and Respondent,
v.
The CITY COUNCIL OF the CITY OF COACHELLA, State of California, Appellant. Civ. 8290. Court of Appeal, Fourth District, Division 2, California. June 28, 1967.

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[252 Cal.App.2d 138] Harry B. Cannon, Palm Desert, for appellant.

Leon W. Rosenberg, Palm Springs, for petitioner and respondent.

OPINION

TAMURA, Associate Justice.

The City Council of the City of Coachella appeals from a judgment directing the issuance of a peremptory writ of mandate commanding the city to reinstate the respondent as its chief of police and awarding him judgment for accrued salary.

[252 Cal.App.2d 139] Coachella being a general law city, the chief of police is appointed and holds office 'during the pleasure of the city council.' (§§ 36505--36506, Gov.Code. ¹ ) Respondent, who had been the duly appointed chief of police, was dismissed by the city council on April 30, 1965. He sought reinstatement by filing a petition for writ of mandate alleging in substance that the council's action was arbitrary and discriminatory in that the only reason he was dismissed was because he exercised his statutory rights under chapter 10, division 4, title I of the Government Code (§ 3500 et seq.) to join and participate in activities of an employee organization. As a return to the alternative writ and order to show cause, appellant filed a general and special demurrer. The demurrers were overruled and the matter was thereafter tried on the petition and answer.

Although the evidence is conflicting in many respects, viewed in the light most favorable to respondent, it may be summarized as follows:

Respondent was first employed by the city in 1959. He was appointed acting chief in May 1962, and chief in June 1962. During his term he had on several occasions discussed with the police commissioner, who was also a member of the city council, grievances among the officers in his department concerning working conditions and hours. His efforts were apparently fruitless. In February 1965 he personally appeared before the city council and presented a request by his officers that they be given certain paid holidays, but the request was summarily rejected. Shortly thereafter the officers, and later the respondent, joined the American Federation of State, County and Municipal Employees, Local No. 1239. Following respondent's union membership changes were made in the administration of the police department. The police commissioner, over respondent's objections, ordered the elimination of the motorcycle traffic patrol. In addition, respondent was instructed to do no more hiring or firing without the concurrence of the commissioner although that responsibility had theretofore been solely

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the chief's. Also, at an open public [252 Cal.App.2d 140] meeting, the council ordered that an inquiry be directed to the Sheriff of Riverside County concerning the cost of obtaining police services through his department. When respondent learned of the council's action, he contacted the police commissioner who informed him that the information was sought to compare costs and that it might be cheaper to do away with the police department.

On April 27, 1965, the city council met for an adjourned regular meeting, four of the five councilmen, including the mayor, being present. Following the transaction of certain items of business, the council adjourned to an executive session to consider personnel matters. Respondent, who was in attendance at the council meeting as was his usual custom, was requested to join the councilmen. At the outset he was informed that the executive session was called to discuss a request for his resignation. The mayor stated that the fact that the police officers had joined the union together with the pendency of a recall movement against the councilmen had made the situation in the city intolerable, and that respondent was going to be, in effect, the 'scapegoat.' In response to an inquiry as to why his men joined the union, respondent stated that they did so for job protection and representation. Comments were made by the councilmen that the fact that the officers had joined the union, under apparent sanction of the chief, had created a chaotic situation in the city. Respondent denied instigating the union movement among his men and refused to resign. Following further discussion the council voted to dismiss respondent. Although during the meeting respondent made several requests for a 'statement of charges,' the only response he received was that the charges would be set forth in a formal resolution to be later adopted by the council. The resolution as adopted, however, merely stated that the council had determined 'it was not within the public interest' that respondent continue as chief of police.

The court found that respondent was terminated because of his membership and participation in union activities and concluded that the action of the city council was arbitrary and illegal in that it deprived respondent of his rights under Government Code, section 3500 et seq. A judgment was entered ordering the issuance of a peremptory writ of mandate directing the council to reinstate respondent and awarding him $1,950.00 for accrued salary.

Although stated in varying language and urged as several separate grounds for reversal, appellant's underlying [252 Cal.App.2d 141] thesis is that since respondent could be dismissed without cause and without notice or hearing, the reason or motive which prompted dismissal is not a proper subject of judicial inquiry. On this premise appellant contends that the petition for writ of mandate failed to state a cause of action and that objections should have been sustained to the introduction of evidence relating to the reasons for respondent's dismissal.

A public officer or employee serving at the pleasure of the appointing authority may not have a 'vested' right to retain his employment, but it does not follow that the power to terminate his services is an unbridled one free of all legal restraints. Although it has been held, as appellant urges, that a public employee serving at the pleasure of the appointing authority may be terminated without cause and without notice or hearing (Humbert v. Castro Valley County Fire Protection Dist., 214 Cal.App.2d 1, 13, 29 Cal.Rptr. 158; Cozzolino v. City of Fontana, 136 Cal.App.2d 608, 611, 289 P.2d 248; Hackler v. Ward, 105 Cal.App.2d 615, 616--617, 234 P.2d 170; Chambers v. City of Sunnyvale, 56 Cal.App.2d 438, 441, 132 P.2d 849.), a caveat must be added that the power may not be exercised arbitrarily in disregard of the employee's constitutional rights. (Bagley v. Washington Township Hospital Dist., 65 Cal.2d 499, 55 Cal.Rptr. 401, 421 P.2d

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409; Rosenfield v. Malcolm, 65 Cal.2d 559, 55 Cal.Rptr. 505, 421 P.2d 697) or statutory rights. (International Assn. of Fire Fighters, etc. v. County of Merced, 204 Cal.App.2d 387, 395, 22 Cal.Rptr. 270.) Recent decisions have discredited the notion that the power to dismiss a public employee without cause includes the power to dismiss for any cause. Thus, continuance in employment, even of one serving at the pleasure of the appointing power, may not be conditioned upon the employee's abstinence from exercising a constitutional right to engage in political activity not incompatible with the performance of his duties. (Bagley v. Washington Township Hospital Dist., supra; Rosenfield v. Malcolm, supra.) Courts are empowered to review the dismissal of a public employee, although he may not have protected tenure, in cases which indicate that the dismissal resulted from the exercise by the employee of a constitutional right. (Rosenfield v. Malcolm, supra; See Stanton v. Dumke, 64 Cal.2d 199, 205--207, 49 Cal.Rptr. 380, 411 P.2d 108.)

Although the instant case does not involve a...