Bogacki v. Board of Supervisors

• Decision Date: 08 October 1971
• Citation: 97 Cal.Rptr. 657,489 P.2d 537,5 Cal.3d 771
• Court: California Supreme Court
• Parties: , 489 P.2d 537 Leonard J. BOGACKI, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF RIVERSIDE COUNTY et al., Defendants and Respondents. L.A. 29791. In Bank

Page 657

97 Cal.Rptr. 657

5 Cal.3d 771, 489 P.2d 537

Leonard J. BOGACKI, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF RIVERSIDE COUNTY et al., Defendants and Respondents.

L.A. 29791.

Supreme Court of California,

In Bank.

Oct. 8, 1971.

Tony Geram, Fontana, for plaintiff and appellant.

Ray T. Sullivan, Jr., County Counsel, and Tilden L. Brooks, Deputy County Counsel, for defendants and respondents.

SULLIVAN, Justice.

Plaintiff Leonard J. Bogacki (hereinafter referred to as petitioner) appeals from a judgment denying a writ of mandate sought to compel respondents Board of Supervisors and Director of the Department of Building and Safety of the County of Riverside to set aside his allegedly wrongful dismissal from county employment, to reinstate him to his former position, and to restore him to all rights of county employment and reimburse him for lost compensation.

Prior to his dismissal petitioner, a permanent employee of the County of Riverside, held the position of building inspector in the county department of building and safety. On June 23, 1967, the department director (Director) sent to him a letter of termination which stated the following grounds for dismissal: 'Insubordination to your superiors and misconduct of a nature that would reflect adversely upon the Department.' Petitioner appealed to the county board of review, which concluded after hearing that the grounds stated in the letter of termination 'are not sustained and on that basis there was not reasonable cause for dismissal.' However, the board of review, for reasons which shall appear below, did not recommend petitioner's reinstatement to his former position; rather it recommenced only that he 'be restored to eligibility for future employment' with the county. Petitioner then requested the county board of supervisors to reinstate him to his former position and reimburse him for lost compensation, but that request was denied. This action for a writ of mandate followed.

Throughout the period of petitioner's employment Riverside County had not adopted a civil service system. (See Gov.Code, § 31100 et seq.) Under the terms of ordinances and resolutions governing county employment its employees served at the pleasure of their department heads, subject to certain limited appeal rights. Thus, Ordinance No. 440 provided in relevant part: 'Every officer shall appoint all necessary employees allowed or provided for his department by this ordinance and may demote or remove any employee of the department Without notice and for cause satisfactory to himself, subject only to the provisions of this ordinance and requirements of law.' ¹ (Italics added.)

Resolution No. 440--805, which was passed pursuant to a section of Ordinance No. 440 authorizing the promulgation of dismissal review procedures by the board of supervisors, set up separate procedures for probationary and permanent employees. ² The provisions dealing with permanent employees provided in general that when dismissing a permanent employee the department head must direct a letter to the employee stating the cause for dismissal; that the 'employee dismissed' might within 14 days file with the personnel director a written answer to the letter of dismissal; that within 20 days after filing of the answer the review board should hold a hearing wherein both the employee and the department head should 'have the privilege to be heard and present evidentiary facts'; that within seven days after the hearing the review board 'shall * * * make a written finding as to whether or not the employee was dismissed for reasonable cause and shall also make a recommendation as to the eligibility of the employee for future employment' with the county; that a copy of the finding should be transmitted to the employee, the department head, and the personnel director; that the personnel director 'shall restore the employee's eligibility for employment in appropriate classifications of the county service where qualified if the Review Board so recommends'; and that the decision of the review board should not be subject to judicial review. (Italics added throughout.) Resolution No. 440--805 gives the review board no power to reinstate or recommend reinstatement of a dismissed employee.

In his first amended petition for a writ of mandate petitioner alleged that he had performed his work competently and diligently at all times during his employment. He also alleged facts relating to his membership and activities in an organization known as the Construction Inspectors Association of Southern California (Association), an organization allegedly devoted to improving the skill and professional competency of building inspectors, and--alleging that the Director of the department of building and safety was inimical to this organization and resented petitioner's activities therein--detailed several occasions on which this hostility had been made manifest by complaints and outright threats to petitioner's job.

The petition then went on to allege generally as follows a series of incidents which led to petitioner's dismissal: (1) At a meeting with petitioner in May of 1967 the Director reluctantly granted petitioner a step increase in pay, having initially refused to do so. At this meeting the Director charged that petitioner was incompetent and unprofessional in his work, but he also 'revealed his continuing hostility to petitioner because of petitioner's continued activity in the (Association)'; the Director then 'warned petitioner that (he) would be on probation for six months, implying that (petitioner) would have to refrain from his activities and membership in the (Association) if petitioner were to avoid dismissal from his work.' (2) In June of 1967 a number of contractors who had learned of petitioner's difficulties with the Director prepared, signed, and sent to several members of the board of supervisors 'a written statement indicating that their personal experience with petitioner had shown him to be a highly competent building inspector who conscientiously performed formed his duties as such * * *.' (3) '(A)fter learning of said statement by contractors on behalf of petitioner, (the Director), utilizing said statement as a pretext, and motivated by his long standing hostility to petitioner for his membership and active participation in the (Association),' dismissed petitioner from his employment by means of the letter of termination which, as we have indicated, stated as grounds for dismissal 'Insubordination to your superiors and misconduct of a nature that would reflect adversely upon the Department.'

After recounting petitioner's appeal to the review board and the finding and recommendation of that body, the petition went on to allege that petitioner was not qualified for positions in county departments other than the department of building and safety; that the effect of the review board's recommendation placing him on the eligibility list for future employment rather than reinstating him afforded him no relief; and that he has been neither employed nor offered employment by the county since the decision of the review board.

Finally, the petition alleged that petitioner's dismissal was (1) in violation of his right to free speech and assembly as guaranteed by the state and federal Constitutions 'in that he was discharged by (the Director) because of petitioner's membership and activity, including verbal solicitation in a lawful manner on his own time of membership in the (Association) * * *' and (2) 'arbitrary and capricious and without just cause, and therefore in violation of the Fourteenth Amendment to the U.S. Constitution, in that it deprived petitioner of property without due process of law, namely his loss of his position as building inspector and the stigma it has created as to his professional competency in this field of endeavor in which he has been qualified and skilled for many years.'

An alternative writ issued, respondents filed a return, and there was a full trial on the merits. ³ The decision of the trial court is reflected as follows in the clerk's minutes: ⁴ 'In this matter heretofore heard and submitted, the Court finds that (plaintiff) has not carried the burden of proving that his discharge was due to his activities in the Construction Inspector's Assoc. of Southern California. (Para.) Accordingly, the alternative writ of mandate is discharged, the application for a peremptory writ is denied and the petition is dismissed. (Para.) The Court withholds any opinion concerning whether mandate would otherwise be available in the event of arbitrary discharge from county employment, such issue not having been raised by the petition. * * *' ⁵ Petitioner appeals from the judgment.

It is now well-settled that even a probationary public employee or one serving at the pleasure of the appointing authority may not be dismissed from his employment for the exercise of constitutional rights absent a showing that the restraints which the employing body would impose on those rights are justified by a compelling public interest. (Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 503--505, 55 Cal.Rptr. 401, 421 P.2d 409; Rosenfield v. Malcolm (1967) 65 Cal.2d 559, 562--563, 55 Cal.Rptr. 505, 421 P.2d 697; Ball v. City Council of Coachella (1967) 252 Cal.App.2d 136, 141, 60 Cal.Rptr. 139; see also, Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 38 Cal.Rptr. 625, 392 P.2d 385; cf. Hollon v. Pierce (1967) 257 Cal.App.2d 468, 478, fn. 4, 64 Cal.Rptr. 808 and accompanying text.) It is equally clear, however, that such an employee bears the burden of showing that he was in fact dismissed because he exercised constitutional rights in defiance of restraints sought to be placed by the employing agency. (Stanton v. Dumke (1966) 64 Cal.2d 199, 205--207, 49 Cal.Rptr. 380, 411 P.2d 108.) In the absence of such a showing the courts will not intervene. (See Rosenfield v....