City of Phoenix v. Sittenfeld, Civil 3920

• Decision Date: 13 March 1939
• Docket Number: Civil 3920
• Citation: 88 P.2d 83,53 Ariz. 240
• Parties: THE CITY OF PHOENIX, a Municipal Corporation, Appellant, v. CHARLES SITTENFELD, Appellee
• Court: Arizona Supreme Court

88 P.2d 83

53 Ariz. 240

THE CITY OF PHOENIX, a Municipal Corporation, Appellant, v. CHARLES SITTENFELD, Appellee

Civil No. 3920

Supreme Court of Arizona

March 13, 1939

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Mr. I A. Jennings, City Attorney, Mr. Hess Seaman and Mr. Richard F. Harless, his Assistants, for Appellant.

Mr Geo. T. Wilson and Messrs. Minne & Sorenson, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal by the City of Phoenix, a municipal corporation hereinafter called defendant, from a judgment in favor of Charles Sittenfeld, hereinafter called plaintiff. The facts of the case are not in dispute, and may be stated as follows: Plaintiff was for some time prior to August 31, 1934, employed as a policeman by defendant. On that date he was temporarily laid off from his employment because the police department of defendant was operating in excess of its budget. He made application before the civil service board of said city for a hearing upon the order laying him off, but the board, notwithstanding this request, refused to grant it, and on September 7th affirmed the lay off. He immediately filed action in the superior court of Maricopa county, applying for a writ for certiorari to review the order of the board. On December 29th, 1934, the court found that the civil service board did not follow the charter, ordinances and the civil service rules and regulations of defendant in approving the temporary lay off of plaintiff and denying him a hearing; that he was not at the time the lowest ranking member in seniority in the personnel of the police department, and, in substance, that the board had not jurisdiction to lay off plaintiff as it did. The judgment was that the order of the civil service board made September 7, 1934, approving the lay off of August 31, 1934, be set aside, vacated and annulled, and all proceedings and acts of the defendant and of the board held and done thereunder were quashed and held for naught. No appeal was ever taken from this judgment and it eventually became final, but notwithstanding the defendant and board refused to reinstate plaintiff until the 7th of May, 1935, and refused to pay him any salary from September 1, 1934, up to May 7, 1935. The prayer of the complaint herein was for the amount alleged to be due plaintiff as salary during the time he was so laid off, and the court rendered judgment in his favor as prayed for, less one hundred dollars which plaintiff had earned during his suspension as aforesaid, whereupon this appeal was taken.

There are four assignments of error raising certain legal questions, which we shall consider in their order. The first is that in discharging employees of a municipality, the officers thereof act in a governmental capacity, and no liability in damages rests upon the defendant city for their erroneous or wrongful actions; that the civil service board is a quasi-judicial body for whose erroneous or wrongful actions defendant is not liable in damages, and that there is no ordinance, charter or statute requiring the city to pay the salary of an employee removed from his employment in violation of the Civil Service Law during the period between his removal and reinstatement. Summed up in plain language, the contention is that the officers of a municipality operating under a civil service law may illegally remove from his position any employee of the city, and that notwithstanding such illegal removal the employee has practically no recourse against the city for his salary during the time of his removal.

The merit system of selection and retention in their position of public employees, or what is commonly referred to as civil service, was first introduced into the United States by the federal government in 1886, and was gradually extended in its scope to include many states and municipalities. Phoenix was among the first of our cities to adopt such a system, and this court, in the case of Paddock v. Brisbois, 35 Ariz. 214, 224, 276 P. 325, 329, in speaking of it, said:

"That a [civil service] commission, with real power in the matter of appointments, promotions, demotions, and discharges, would be a fine adjunct to the city government, we have no doubt. As is said in the well-considered case of People v. McCullough, 254 Ill. 9, 98 N.E. 156, Ann. Cas. 1913B, 995:

"'... Positions in the public service are not the personal or political perquisites of any officer or party, and ought not be divided, after a political campaign, as so much loot of actual warfare, but... competency, merit, and fitness ought to be the standard for all appointments or promotions in the public service.'"

The original system adopted by Phoenix was weak in many points, and the voters of the city, therefore, in 1933 amended the civil service ordinance which had been previously in effect, and thus placed it beyond the power of any of the city officials to change the law adopted by the voters themselves. Section 1, subdiv. 8, art. 4, pt. 1, Const. of Arizona. This ordinance is No. 715, and its material portions read as follows:

"Section 3. The Civil Service Board shall prescribe, amend and enforce rules for the classified service which shall have the force and effect of law after the same shall have been presented to the City Commission and by it approved....

"The rules shall provide: ...

"(Subdiv.) 12. For discharge or reduction in rank or compensation after appointment or promotion is complete only after the person to be discharged or reduced has been presented with the reason for such discharge or reduction, has been allowed a reasonable time to reply thereto in writing, and has been given a public hearing before the Board if demanded in such written reply. The reason, reply and Board's action shall be filed with the Board as a public record.

"(Subdiv.) 13. For reinstatement with or without accrued pay in the discretion of the Board, of persons in the classified service who have been suspended or discharged without pay, whenever the Board shall disapprove such suspension or discharge."

In pursuance of section 3, supra, the civil service board adopted certain rules and regulations, which were approved by the city commission on July 12, 1933, and which, therefore, were binding upon the board until such regulations were legally changed. Rule 21 reads, so far as material to this case, as follows:

"In the event of a reduction in the number of employees holding positions under the classified service in any department for purposes of economy or at all, then those employees having the highest rank in point of length of service and efficiency in the service shall be retained and those having the lowest in those respects shall be the ones to be released from the service; and any classified employee ordered released because of a reduction in the number of employees shall have the right to be heard before the Civil Service Board as in the case of other discharged employees, whereupon, in the event the Civil Service Board shall find that the reduction in numbers could be effected by the release of another employee of lesser rank considering length of service and efficiency, the Board shall cause the complaining employee to be retained or reinstated and make such further order as shall seem equitable and proper...."

It is evident from the findings of the court in the certiorari proceedings above referred to that the board, in approving the lay off of plaintiff, violated the ordinance in that it gave him no hearing in regard to the lay off, but also in the fact that although he was senior to other employees of the department they were continued on duty when he was laid off, contrary to rule 21, supra.

The board, of course, is bound to act in accordance with the ordinance which created it, and the rules and regulations which it has established under such ordinance, and if it removes an employee contrary to such rules the removal is void and was properly declared void by certiorari in the judgment aforesaid. Welch v. State Board of Social Security and Welfare, ante, p. 167, 87 P.2d 109, decided February 13, 1939. Notwithstanding this fact, and the fact that he reported regularly for duty during the time of his lay off, the defendant refused to reinstate him until May 7, 1935, and refused to pay him salary for the time he was laid off, justifying its conduct on the theory assigned in the first proposition above set forth.

There are many cases where the question of whether a de jure officer is entitled to recover salary for the time during which the office to which he is rightfully entitled is filled by a de facto officer who has actually drawn the salary for the position has arisen, and the authorities are in hopeless conflict. Most, though not all, of these cases have arisen before the adoption of civil service rules for public employment, and in probably the greater number of them it has been held that the salary may not be recovered. The cases so holding are collected and discussed at great length in State v. Kansas City, 319 Mo. 705, 7 S.W.2d 357, 59 A.L.R. 95. While it is true that that particular case involved a position held under civil service rules, most of the cases cited and discussed therein arose under different situations, generally where the municipality or state and their officers had taken no part in creating the situation which caused the conflict and the contest was in reality between the two rival claimants. On the other hand, there is a respectable line of cases, although the minority in number, which hold that notwithstanding the municipality may have paid a salary to the de facto officer, the de jure officer is nevertheless entitled to recover his salary. Sweetnam v....