Belshaw v. City of Berkeley

• Decision Date: 17 November 1966
• Citation: 246 Cal.App.2d 493,54 Cal.Rptr. 727
• Court: California Court of Appeals Court of Appeals
• Parties: Claude T. BELSHAW, Plaintiff and Respondent, v. The CITY OF BERKELEY, the Personnel Board of the City of Berkeley et al., Defendants and Appellants. Civ. 22829.

Page 727

54 Cal.Rptr. 727

246 Cal.App.2d 493

Claude T. BELSHAW, Plaintiff and Respondent, v. The CITY OF BERKELEY, the Personnel Board of the City of Berkeley et al., Defendants and Appellants.

Civ. 22829.

Court of Appeal, First District, Division 3, California.

Nov. 17, 1966.

Robert T. Anderson, City Atty., Robert P. Berkman, Asst. City Atty., Berkeley, for appellants.

Marshall W. Krause, Staff Counsel, American Civil Liberties Union of Northern California, San Francisco, Albert M. Bendich, Berkeley, for respondent.

SALSMAN, Justice.

Respondent, Claude T. Belshaw, petitioned the superior court for a writ of mandate directing appellants, the City of Berkeley, the Personnel Board of Berkeley, and each member individually, and the City Manager of Berkeley, to vacate and expunge from the city's records respondent's thirty-day suspension from the Berkeley Fire Department and to pay respondent the salary which would have been due him had he not been suspended. An answer to the petition was filed and after a hearing, the case was submitted. The trial court concluded that rules allegedly violated by respondent were unenforceable in that they infringed upon his constitutional rights, and were so vague and overbroad in their application as to deprive him of due process of law. The court granted a peremptory writ of mandate requiring appellants to vacate and expunge from its records the suspension of respondent and entered judgment in his favor for the salary he would have received had he not been suspended.

The record shows that respondent wrote a letter on the subject of a salary distinction between beginning policemen and firemen, and submitted the letter to the Berkeley Daily Gazette. It was published in the 'Open Forum' section of that newspaper a few days later. ¹ After respondent's letter appeared in the newspaper he received a letter from the city manager notifying him of his suspension on the ground that his conduct in writing the letter and submitting it to a newspaper for publication violated sections of the Personnel Rules and Regulations of the Berkeley Fire Department. ²

The rules appellants assert were violated by respondent were first, Rule 20, Section 2 of the Personnel Rules and Regulations, which reads: 'Employees are required at all times to conduct themselves in such a manner as to reflect no discredit upon the City of Berkeley', and second, Rule 31 of Chapter 20 of the Berkeley Fire Department Rules and Regulations, which states: 'Public Criticism of Department or Superiors--They shall refrain from adverse criticism concerning the actions of any superiors and they shall not publicly express disapproval of the policies and practices of the Department.'

Respondent demanded a hearing on the charges against him. A hearing was held and the personnel board sustained the action of the city manager.

The superior court found that respondent's letter was not 'offensive per se'; that it was not defamatory or obscene, did not urge or suggest violent or unlawful action on the part of anyone, and finally that there was no evidence before the court from which it could be found that respondent's letter or conduct 'constituted any disruption or impairment of discipline within the Fire Department of the City of Berkeley * * * or a violation of any valid * * * rule * * * of the City. * * *'

On appeal appellants contend that respondent's conduct in writing the letter and submitting it to a newspaper for publication violated rules of the City of Berkeley in that it reflected discredit upon the city (Section 2, Rule 20, personnel rules) and amounted to adverse criticism concerning the actions of his superiors (Chapter 20, Rule 31, fire department rules). Respondent, on the other hand, contends that the rules are unconstitutional in that they deny him the right of free speech. (U.S.Const., First Amendment; Calif.Const., Art. 1, section 9.) We have concluded that it would be an unconstitutional deprivation of freedom of speech to apply the cited rules to respondent on the facts in the record before us.

It is clear that a municipal corporation, such as appellant city, may make and enforce reasonable rules concerning the conduct of its employees. (Board of Education of City of Los Angeles v. Swan, 41 Cal.2d 546, 556, 261 P.2d 261; Hayman v. City of Los Angeles, 17 Cal.App.2d 674, 679, 62 P.2d 1047; Annotation 'Governmental control of actions or speech of public officers or employees, etc.', 163 A.L.R. 1358; see also United Public Workers of America (C I O) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754.) Generally speaking, the purpose of such rules and regulations is to maintain order and discipline among the employees, and to advance and improve the public service. While it has been held that one employed in the public service does not have a constitutional right to such employment (McAuliffe v. Mayor, etc., of City of New Bedford, 155 Mass. 216, 29 N.E. 517, 518; Board of Education of City of Los Angeles v. Swan, supra, 41 Cal.2d 546, 261 P.2d 261) it is also settled that one cannot properly be barred or removed from public employment arbitrarily or in disregard of his constitutional rights. (Fort v. Civil Service Commission, 61 Cal.2d 331, 334, 38 Cal.Rptr. 625, 392 P.2d 385, and cases cited.) The right to free speech and the privilege of public employment are not incompatible, nor are they mutually exclusive. The acceptance of public employment does not demand abandonment of constitutionally protected rights. With respect to the constitutional right of free speech, the rule is, and should be, that a public employee may speak freely, as long as he does not impair the administration of the public service in which he is engaged. (City of St. Petersburg et al. v. Pfeiffer, Fla., 52 So.2d 796.) Recent cases support this conclusion. (Board of Trustees of Lessen Union High School Dist. v. Owens, 206 Cal.App.2d 147, 157, 23 Cal.Rptr. 710.) In Fort v. Civil Service Commission, supra, 61 Cal.2d 331, 38 Cal.Rptr. 625, 392 P.2d 385, our Supreme Court struck down broad provisions of the Alameda County charter which prohibited political activity on the part of county officers and employees. The court said (pp. 337--338, 38 Cal.Rptr. p. 629, 392 P.2d 389): 'The principles set forth in the recent decisions do not...