Burrell v. City of Los Angeles

• Decision Date: 10 April 1989
• Docket Number: No. B027696,B027696
• Citation: 257 Cal.Rptr. 427,209 Cal.App.3d 568
• Court: California Court of Appeals Court of Appeals
• Parties: Roger BURRELL, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Appellants. LOS ANGELES CITY EMPLOYEES UNION et al., Plaintiffs and Respondents, v. BOARD OF CIVIL SERVICE COMMISSIONERS, Defendants and Appellants. Civ.

Page 427

257 Cal.Rptr. 427

209 Cal.App.3d 568

Roger BURRELL, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

LOS ANGELES CITY EMPLOYEES UNION et al., Plaintiffs and Respondents, v. BOARD OF CIVIL SERVICE COMMISSIONERS, Defendants and Appellants.

Civ. No. B027696.

Court of Appeal, Second District, Division 5, California.

April 10, 1989.

As Modified April 25, 1989.

Review Denied July 20, 1989.

James K. Hahn, City Atty., Frederick N. Merkin, Sr. Asst. City Atty., and Robert Cramer, Asst. City Atty., for defendants and appellants.

Marr & Marchant, Cecil Marr and Diane Marchant, Los Angeles, for plaintiffs, respondents and appellant.

BOREN, Associate Justice.

In this consolidated appeal, we consider the constitutionality of a portion of section 112 of the city charter of Los Angeles. Section 112 gives a city employee the right to have the disciplinary measures ordered by an official in his or her department reviewed by the Board of Civil Service Commissioners (the "Board"). However, this charter provision limits the ability of the Board to reduce the disciplinary penalty by requiring that any reduction in the penalty recommended by the Board be consented to by the same official who originally imposed the discipline. In both of the cases before us, the trial courts declared unconstitutional the consent requirement of section 112, finding that it amounts to a denial of the due process rights of city employees to a fair and impartial hearing.

FACTS

This appeal consolidates two separate trial court actions: Los Angeles City Employees Union v. Board of Civil Service Commissioners (Super.Ct. L.A.County, No. C603176) ("the Godino case") and Burrell v. City of Los Angeles (Super.Ct.L.A.County, No. C633835) ("the Burrell case").

a. The Godino Case

The City of Los Angeles employed Richard Godino as the Aquatic Director of the Department of Recreation and Parks' Pacific Region. In 1985, Godino was accused of failing to follow proper departmental procedures for the handling of money, resulting in the loss of some $2,017 in parking revenues. James Hadaway, the department's general manager, ordered a 10-working day disciplinary suspension of Godino. Godino appealed Hadaway's decision to the Board pursuant to section 112 of the city charter.

Godino appeared before a civil service hearing examiner on November 20, 1985, for a hearing in which written evidence was offered and testimony was taken. Based on the evidence, the hearing examiner stated in her report to the Board that the charge of improper money handling was insufficient to warrant a two-week suspension, and recommended that the penalty be reduced to a "Notice to Correct." The Department of Recreation and Parks objected to the hearing examiner's recommendation of a lesser penalty and requested that the Board sustain the charges, as well as the suspension. In its objection, the Department introduced new evidence of instances of improper money handling by other employees, and the penalties imposed for those infractions. The hearing examiner had not considered this evidence. The Board then met on February 7, 1986, to decide the Godino appeal. All the commissioners present agreed that the 10-day punishment was too harsh, and unanimously requested that the Department consider a shorter suspension period. At a second meeting of the Board held the following month, general manager Hadaway refused to diminish the punishment he had ordered; and the Board--feeling constrained by the dictates of section 112--reluctantly sustained the penalty which Hadaway wanted.

Godino next sought declaratory judgment and a writ of mandate from the superior court. He requested that the court find section 112 unconstitutional on its face, that it set aside the 10-day suspension and enter a new decision based upon the Board's determination of an appropriate penalty, and that it restore to him all back pay and other benefits to which he might be entitled following the Board's redetermination of his penalty. The court (Warren Deering, presiding) granted the writ on October 14, 1986, but subsequently refused to issue it until a judgment was entered on all causes of action. A summary judgment motion was then pursued, and the court (Kurt Lewin, presiding) declared section 112 unconstitutional, reasoning that the power of the top departmental official to override the Board on employee discipline matters amounted to a denial of due process as to all city employees. The court also ordered that the writ of mandate be issued. Defendants appealed from this judgment. Finally, the matter was returned to Judge Deering, who signed plaintiff's mandamus order on July 2, 1987.

b. The Burrell Case

Burrell had been employed by the city for five years as a rehabilitation construction specialist when, in 1986, he was charged with violating his employment contract by engaging in activities which constituted a conflict of interest. The official having the power of appointment in Burrell's department, Douglas Ford, ordered that Burrell's employment with the city be terminated. Burrell appealed this decision to the Board. Unlike Godino, Burrell did not have a hearing before a Board examiner nor did the Board make a determination in the matter. Instead, Burrell immediately sought a writ of mandate in the superior court, alleging that the Board had suspended review of pending disciplinary appeals because its hearing procedure was constitutionally defective in light of the decision in the Godino matter. Burrell asked the court to reinstate his employment until the city adopted adjudicatory procedures which would afford him a full due process hearing on the issue of the charges against him and the penalty ordered by the departmental official. Burrell based his petition on Judge Deering's statement of decision in the Godino case.

In opposition, the city argued that Burrell had not exhausted his administrative remedies because the Board had not yet acted upon his appeal from Ford's decision to discharge him. The city also argued in favor of the constitutionality of section 112. The trial court (Jerry Fields, presiding) disagreed. After taking judicial notice of Judge Deering's decision in the Godino case, the court arrived at substantially the same conclusion. Namely, it concluded that section 112, as drafted, violated state and federal due process rights. The court also found that the charter provision's requirement that the Board obtain the consent of the departmental authority in order to reduce a disciplinary penalty was severable from the rest of section 112. Accordingly, it ordered the Board to conduct a hearing in the Burrell matter pursuant to section 112 without giving effect to that section's consent language. The court also ordered that the city give Burrell back pay and benefits retroactive to the date of his discharge. ¹

The city appealed the judgments in favor of respondents in both cases. Burrell cross-appealed, seeking back pay.

DISCUSSION

1. Due Process

The Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15 of the California Constitution guarantee that no one may be deprived of his property without due process of law. When the government has conferred upon a person a legally enforceable right or entitlement to a government benefit, such as an interest in continued employment by the government absent sufficient cause for termination, this right constitutes a property interest protected by due process principles. (Perry v. Sindermann (1972) 408 U.S. 593, 602-603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570; Board of Regents v. Roth (1972) 408 U.S. 564, 576-578, 92 S.Ct. 2701, 2708-2710, 33 L.Ed.2d 548; Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206-207, 124 Cal.Rptr. 14, 539 P.2d 774.)

Appellants readily concede that Godino and Burrell possessed property rights in their continued employment by the city because section 112 of the city charter expressly states that permanent employees may not be suspended or discharged except for written cause. ² Accepting the concession that the due process clause applies to these employees, the question remains whether the particular procedures mandated by section 112 satisfy the constitutional guarantee of a full and fair disciplinary hearing. Respondents contend that section 112, as presently drafted, unfairly deprives them of their property inasmuch as it fails to afford them all the process which they believe is constitutionally "due."

a. Analysis of Federal Law

The Supreme Court has stated that due process is the opportunity to be heard at a meaningful time and in a meaningful manner. (Parratt v. Taylor (1981) 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420, overruled on other grounds Daniels v. Williams (1986) 474 U.S. 327, 330-331, 106 S.Ct. 662, 664-665, 88 L.Ed.2d 662.) ³ It is a flexible concept requiring accommodation of the competing interests involved, and its procedural requisites necessarily vary depending on the importance of the interests involved and the nature of the controversy. (Cleveland Board of Education v. Loudermill, supra, 470 U.S. 532, 542-543, 105 S.Ct. 1487, 1493-1494; Mathews v. Eldridge (1976) 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18; Board of Regents v. Roth, supra, 408 U.S. at p. 570, fn. 8, 92 S.Ct. at p. 2705-2706, fn. 8.) Although the state (or one of its subdivisions) has the prerogative to create a property interest in an entitlement in the first instance, it does not have the prerogative to diminish the minimum procedural guarantees of the constitution once the property interests it created have attached. In other words, state and local governments cannot mandate which procedures they unilaterally deem adequate to protect an individual's due process rights; the minimum requisite procedures are federally mandated. (Cleveland Board of Education v. Loudermill, supra, 470 U.S. at p. 541, 105 S.Ct. at p. 1492.)

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