Ballf v. Public Welfare Dept. of City and County of SanFrancisco

• Decision Date: 19 June 1957
• Docket Number: No. 17310,17310
• Citation: 151 Cal.App.2d 784,312 P.2d 360
• Court: California Court of Appeals Court of Appeals
• Parties: Harold P. BALLF, Petitioner and Appellant, v. The PUBLIC WELFARE DEPARTMENT OF the CITY AND COUNTY OF SAN FRANCISCO, State of California, and Ronald H. Born, director thereof, and The Civil Service Commission of the City and County of San Francisco, State of California, and individual members thereof, Francis P. Walsh, William A. Lahanier, and Charles T. McDonough, and The Retirement Board of the City and County of San Francisco Employees' Retirement System, and Ira G. Thompson, Secretary thereof, Respondents.

Page 360

312 P.2d 360

151 Cal.App.2d 784

Harold P. BALLF, Petitioner and Appellant, v. The PUBLIC WELFARE DEPARTMENT OF the CITY AND COUNTY OF SAN FRANCISCO, State of California, and Ronald H. Born, director thereof, and The Civil Service Commission of the City and County of San Francisco, State of California, and individual members thereof, Francis P. Walsh, William A. Lahanier, and Charles T. McDonough, and The Retirement Board of the City and County of San Francisco Employees' Retirement System, and Ira G. Thompson, Secretary thereof, Respondents.

No. 17310.

District Court of Appeal, First District, Division 1, California.

June 19, 1957.

Rehearing Denied July 19, 1957.

Hearing Denied Aug. 13, 1957.

Harold P. Ballf, Walnut Creek, appellant, in pro. per.

Dion R. Holm, City Atty. of City and County of San Francisco, Bernard J. Ward, Deputy City Atty. of City and County of San Francisco, for respondents.

BRAY, Justice.

Petitioner appeals from the portion of the judgment of the superior court denying a writ of mandate to compel respondents to restore him to his prior civil service employment in the City and County of San Francisco. ¹

Question Presented.

Did petitioner cease to be a resident of San Francisco and thereby provide cause for his dismissal under the charter?

Facts.

Petitioner was employed in 1933 as a civil service employee of San Francisco, working until 1937 as an employee of the Public Utilities Commission. From 1937 to 1940 he worked for the Public Welfare Department, classified as General Clerk-Typist B-512. It is his later dismissal from this position which is the basis of this appeal. From 1940 to 1949 he was on military leave, being on active duty with the army. While still on such leave he applied for and received educational leave under rule 31.3 of the Civil Service Commission, for the period August 1, 1949, to July 31, 1953. November 9, 1949, the Civil Service Commission filled his vacancy by an appointment 'vice Mr. Ballf.' While on this leave petitioner attended the University of California at Berkeley where he received a general secondary credential for teaching and a M.A. in education. July 9, 1953, he requested an extension of his educational leave for 36 months commencing August 1, 1953, to pursue his studies to obtain a Ph.D. The Civil Service Commission did not act on the request. Instead, it directed the Director of Public Welfare to initiate dismissal proceedings under section 7 of the charter (residence requirement) if petitioner did not resign.

Pursuant to section 154 of the charter a public hearing was held before the appointing officer of the department in which petitioner was employed (the Director of Public Welfare). The charges against petitioner were:

1. Insubordinate inattention to duties because of failure to return from educational .3, Civil Service Commission.

2. Loss of residence as required under section 7 of the charter of the City and County of San Francisco.

3. Violation of the terms of the educational leave.

(a) Failure to maintain a full curriculum in the University of California.

(b) Failure to present proof of attendance at the end of the various school terms in accordance with the provisions of rule 31.3, Civil Service Commission.

(c) Mr. Ballf had not used his educational leave entirely for educational purposes, but during the summer vacation had been on military duty and other things which are not for the purpose for which the educational leave was granted.

The director found all charges against petitioner true and dismissed him from service. On appeal, the Civil Service Commission sustained the director. Petitioner applied to the superior court for a writ of certiorari and an administrative writ of mandamus. After a hearing and a review of the transcript of the administrative proceedings the court denied the writs but held that petitioner had sufficient service to exercise his option to remain a member of the city and county's retirement system.

Residence.

The most serious question concerns the charge of loss of residence in San Francisco. Section 7 of the charter provides: '* * * All employees * * * shall continue to be a resident of the city and county during incumbency of office or employment, and upon ceasing to be such resident, shall be removed from office or employment; * * *. A 'resident' within the intent and purpose of this section, means one who actually lives within the city and county and maintains an abode therein, where such resident with his family, if any, customarily spends the night, provided, however, that residence outside the confines of the city and county for a period not to exceed three months in any calendar year, or absence of a resident from the city and county upon any bona fide journey, whether for business or pleasure and for whatever length of time, or absence of a resident while in the performance of any duties as an elected or appointed official or employee of the State of California or the government of the United States, shall not be within the contemplation of this section. * * *'

While attending the university petitioner moved from San Francisco to Walnut Creek, Contra Costa County. There he became part owner of the property on which he lived. In April, 1950, he requested cancellation of his San Francisco voting registration and registered to vote in Contra Costa County. Petitioner testified that although he still considered San Francisco his residence he had no domicile nor mailing address in San Francisco. The director found that petitioner was an 'incumbent during incumbency of employment.' Obviously 'incumbency of office' pertains to an office or benefice. See Leymel v. Johnson, 1930, 105 Cal.App. 694, 288 P. 858, and Curtin v. State of California, 61 Cal.App. 377, 214 P. 1030. The latter case quotes from a statement by Chief Justice Marshall: 'Although an office is an employment, it does not follow that every employment is an office.' 61 Cal.App. at page 386, 214 P. at page 1033. Petitioner's position as general clerk-typist was not an 'office' but an 'employment.' Actually it makes no difference whether petitioner was in the incumbency of employment or as a more logical construction requires, was in 'employment.' Either way he was required to remain a resident of San Francisco. The fact that a person is on leave from his 'employment' makes him no less an employee. As a matter of fact, petitioner claims to be an employee. He has to be in order to assert the rights claimed by him. Petitioner's right to educational leave is dependent upon his being an employee. Rule 31.3 of the Civil Service Commission provides that educational leave may be granted to a veteran 'who holds permanent civil service status as an officer or employee * * *.' (Emphasis added.) That petitioner was holding his 'employment' is well illustrated by the fact that any time he desired to terminate his leave he could have returned to his position as a matter of right and the person holding it 'vice Mr. Ballf' would have had to give it up. For all purposes he was an employee of the department except that his leave temporarily excused him from performing his actual duties. See Thompson v. Young, D.C., 63 F.Supp. 890, 891 (D.C.1945). We can see no construction of the section other than the one given it by the director, the Civil Service Commission, and the superior court, namely, that even though on leave, the residential requirement must be complied with.

Truly, as petitioner says, residence is primarily a matter of intent. He claims he never intended to cease to be a resident of San Francisco. In determining residence, however, the courts look to a person's actions as well as to his statement of intent. One of the important acts to be considered is where he has registered to vote. While not conclusive of the question, his registration is of considerable importance. See Gallagher v. United States, D.C., 66 F.Supp. 743, 744, holding that 'vot...