Blake v. State Personnel Board

• Decision Date: 27 April 1972
• Citation: 102 Cal.Rptr. 50,25 Cal.App.3d 541
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph J. BLAKE, Petitioner and Appellant, v. STATE PERSONNEL BOARD, etc., et al., Respondents. Civ. 11620.

Page 50

102 Cal.Rptr. 50

25 Cal.App.3d 541

Joseph J. BLAKE, Petitioner and Appellant, v. STATE PERSONNEL BOARD, etc., et al., Respondents.

Civ. 11620.

Court of Appeal, Fourth District, Division 2, California.

April 27, 1972.

[25 Cal.App.3d 544] Rich & Ezer and Mitchel J. Ezer, Los Angeles, for petitioner and appellant.

Evelle J. Younger, Atty. Gen., and Lynn Henry Johnson, Asst. Atty. Gen., for respondents.

OPINION

TAMURA, Associate Justice.

Petitioner appeals from a judgment denying a peremptory writ of mandate to compel respondents to reinstate him to his former position as supervising deputy labor commissioner of the Division of Labor Law Enforcement (Division) of the State Department of Industrial Relations (Department) and to restore to him all of the rights and benefits, including lost compensation, which would have accrued to him had he not been dismissed from his employment.

Petitioner has been a civil service employee of the state continuously from November 1949. Prior to his dismissal he had advanced to and occupied the position of supervising deputy labor commissioner. In November 1968 he was served with a notice of dismissal charging that the alleged acts of misconduct hereafter described constituted grounds for dismissal under the following subsections of Government Code, section 19572: ¹ Discourteous treatment of other employees (m), failure of good behavior outside of duty hours of such a nature that it caused discredit to his agency (t), and inefficiency (c). Petitioner demanded and was accorded an administrative hearing before a referee of the State Personnel Board (Board).

The referee made the following findings concerning the alleged acts of misconduct with which petitioner was charged:

'III

'On October 10, 1968 appellant had an investigator under his supervision travel from Long Beach to San Diego for no real reason connected with state business. It is true that the investigator did spend about two hours on state business out of the two days involved in the trip but this small task would not begin to justify or even explain this trip.

'Facts found in this Finding III at best constitute inefficiency within the meaning of Government Code Section 19572(c).

'IV

'In May 1966 appellant was Vice President of the California State Employees' Association and attended a meeting in San Diego of the officers of the Association. On two occasions during this meeting appellant displayed a .38 caliber revolver in a holster. ² On the first occasion appellant took the gun from his attache case in a manner calculated to draw the attention of the President of the Association to the weapon and then returned it to the case. On the second occasion a few minutes later appellant again took the revolver from his attache case, held it up so the Junior Past President of the Association could see it, looked at the man and said, 'This is for you Bob.' Appellant did not on either occasion point the revolver at anyone or remove it from its holster.

'Appellant contends that the gun happened to be in his attache case and was inadvertently displayed in the process of removing documents. This contention is found to be not true.

'Appellant's conduct as found in this Finding IV constitutes failure of good behavior outside of duty hours within the meaning of Government Code Section 19572(t).

'V

'In October 1968 all eight attorneys employed by the Division of Labor Law Enforcement attended the annual convention of the State Bar of California in San Diego. Following a late dinner on October 8, 1968 five of the attorneys, including two women attorneys, had two rounds of drinks at a bar at their motel. Appellant joined this group in the bar. When two of the men attorneys and the two women attorneys left in a car to return to their respective rooms on the sprawling motel grounds they discovered that appellant was following them in his car even through several wrong turns caused by the confusing arrangement of the numerous structures on the property. After the women were dropped off at their room, the men drove to the area of their own rooms and parked the car. On of them noticed that appellant had stopped his car a short distance away.

'The two men walked over to appellant's car to find out what was going on. After they got to the car appellant, seated inside, pointed a revolver at one of the attorneys and told him in obscene terms to 'stay away from (Miss X),' or words to that effect, referring to one of the women attorneys. While continuing to point the gun at him appellant went on to tell the attorney that he (appellant) knew what was going on, that 'his boys' had told him a couple of 'punks' had been in the company of (Miss X) and that he did not want the attorney fooling around with (her). As the attorneys were leaving appellant put the gun in the glove compartment of his car.

'Appellant contends that he was afraid the two men might attack him and that he felt it was necessary to use the gun to protect himself. This contention is found to be not true.

'Appellant also contends that the gun was a plastic toy he had found in his car. Even if true, this contention would in no way excuse appellant's conduct. Whatever his means or weapon, appellant intended to and did cause the two attorneys to fear for their very lives while he was making his downright irrational charges.

'Facts found in this Finding V constitute cause for punitive action under the provisions of Government Code Section 19572(m).'

Based upon the foregoing findings, the referee concluded that the gun-display incident at the CSEA meeting described in Finding IV constituted cause for discipline but was too stale to warrant the drastic punitive action of dismissal and that the 'inefficiency' found in Finding III merited some disciplinary action but not of the severity of dismissal. However, the referee concluded that the gun-pointing incident described in Finding V was cause for discipline under subsection (m) ³ and 'in and of itself' warranted dismissal. ⁴ Accordingly, the referee recommended that the action taken by the appointing power be sustained without modification. The Board adopted the referee's findings and decision and upheld petitioner's dismissal from service. Petitioner's application for rehearing was denied and the present mandamus proceeding ensued.

In his petition for writ of mandate petitioner attacked the decision of the Board on the following gounds: The decision was not supported by substantial evidence; the punitive action of dismissal was excessive as a matter of law; and the referee who presided over the administrative hearing was biased and prejudiced. The matter was heard on the merits on the administrative record which was received in evidence. Following submission the court made an interlocutory order remanding the matter to the Board for clarification of its findings in the following respects:

'(i) Whether or not at the time the 'gun-pointing incident' of October 18, 1968 occurred, Petitioner had come into contact with attorneys Gianini and Phillips by reason of his employment as a Supervising Deputy Labor Commissioner with the Division of Labor Law Enforcement of the Department of Industrial Relations of the State of California; and

'(ii) Whether or not Petitioner's said conduct at said time toward Attorneys Gianini and Phillips resulted in harm to the public service.'

On remand the Board referred the matter to the referee, who, after further hearings but without taking additional evidence, recommended the following additional findings:

'1. It is found that at the time of the gun-pointing incident of October 18, 1968 appellant had come into contact with Attorneys Gianini and Phillips by reason of his employment as a Supervising Deputy Labor Commissioner. It was because of this employment that appellant was able to join the group of Labor Law Enforcement attorneys in the motel bar. The record discloses no connection or acquaintance between appellant and the two attorneys other than as state employees.

'2. It is found that appellant's conduct toward Attorneys Gianini and Phillips did result in harm to the public service. Appellant's conduct would cause Gianini and Phillips to fear their lives could be in jeopardy should appellant misinterpret any future contacts they might have in the course of their work with their fellow Labor Law Enforcement Attorney, (Miss X). Such a situation is intolerable in public or private employment.'

The recommended findings were adopted by the Board and certified to the superior court.

Following certification of the additional findings, the court reopened the matter, heard further arguments, and rendered its decision. It found that the Board's findings, including the additional findings on remand, were supported by substantial evidence; that petitioner's conduct described in the Board's Finding V, as supplemented by the amended findings, constituted 'discourteous treatment of . . . employees,' within the meaning of subsection (m); that the imposition of the punitive act of dismissal did not constitute an abuse of discretion; that the hearing officer presiding at the administrative hearing was not biased or prejudiced against petitioner and that petitioner was accorded a full and fair administrative hearing. Judgment was entered denying a peremptory writ of mandate. Petitioner appeals from the judgment.

Respondents virtually concede, as they must, that petitioner's dismissal must stand or fall on the sufficiency of the gun-pointing incident to constitute cause for discipline under subsection (m). Petitioner admits there was substantial evidence to support the administrative findings that the incident occurred at the time and under the circumstances therein described but contends: (1) The misconduct was not a valid cause for disciplinary action under subsection (m) because it occurred during off-duty hours and pertained to a personal matter unrelated to the employment; (2) the use...