Civil Service Assn. v. Civil Service Com.

• Decision Date: 26 January 1983
• Docket Number: AFL-CIO,No. 53569,53569
• Citation: 139 Cal.App.3d 449,188 Cal.Rptr. 806
• Court: California Court of Appeals Court of Appeals
• Parties: CIVIL SERVICE ASSOCIATION, LOCAL 400, SEIU,, et al., Plaintiffs and Appellants, v. CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. A013266. 1 Civ.

Page 806

188 Cal.Rptr. 806

139 Cal.App.3d 449

CIVIL SERVICE ASSOCIATION, LOCAL 400, SEIU, AFL-CIO, et al., Plaintiffs and Appellants, v. CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

A013266.

1 Civ. No. 53569.

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

Jan. 26, 1983.

Hearing Denied April 20, 1983.

William A. Sokol, Vincent A. Harrington, Jr., Van Bourg, Allen, Weinberg & Roger, San Francisco, for plaintiffs and appellants.

George Agnost, City Atty., Stephanie M. Chang, Deputy City Atty., San Francisco, for defendants and respondents.

SCOTT, Associate Justice.

Appellants Anita Andrades and Civil Service Association, Local 400 ¹ appeal from the denial of a petition for writ of mandate whereby Andrades sought reinstatement as a clerk-stenographer with the San Francisco Police Department. We must decide whether legislation which prohibits any disciplinary action against peace officers for refusing to submit to a polygraph test offends constitutional equal protection principles because civilian police department employees are not similarly protected.

I

The facts are not in dispute. Appellant Andrades was a permanent employee of the City and County of San Francisco, and worked in the criminalistics division of the crime lab of the city's police department. In May 1979, the department commenced an investigation of narcotics missing from the lab, and Andrades became the focus of that investigation, for several reasons. The nature of the loss and the procedures used in the lab indicated theft by someone who had access to its storage area, but who was not a chemist. Appellant, a clerk-stenographer, had such access. In addition, she had been experiencing numerous problems with her husband, who had a record of drug-related arrests and who had been threatening her. She was Mirandized and questioned by Sergeant James Tedesco, and denied any knowledge of the losses. He then "explained the difference between a criminal and administrative investigation," and told her that as part of an administrative investigation, he could require her to answer any questions truthfully. He ordered her to appear for a polygraph examination. When she failed to appear, she was charged with refusing to obey a lawful order of a superior, in violation of section 2.45 of the Rules and Procedures of the San Francisco Police Department.

After a civil service commission hearing, pursuant to section 8.341 of the Charter of the City and County of San Francisco, appellant was ordered terminated. Seeking reinstatement, she petitioned for a writ of mandate. She argued that (1) she was not a member of the department within the meaning of rule 2.45, and (2) the classification created by Government Code section 3307, which prohibits any disciplinary action against a public safety officer for refusing to submit to a polygraph test, denied her equal protection. Denying her petition, the trial court concluded that: (1) she was a member of the department; (2) section 3307 was inapplicable to charter cities such as San Francisco; (3) she had not established any denial of equal protection; and (4) she had been properly terminated.

II

In relevant part, section 2.45 of the Rules and Procedures of the San Francisco Police Department provides, "[a member] shall strictly obey and promptly execute the lawful orders of his superior officers." First, appellant contends that as a civilian employee, she was not a member of the department for purposes of application of rule 2.45. Therefore, she reasons, she was not subject to termination for violation of that rule. The contention is without merit. Section V of the department's rules and procedures defines "Member[s]" as "[t]he officers and employees of the department." "Police Employee[s]" are "[a]ll persons other than officers appointed to the department in any permanent or temporary Civil Service classification." Appellant urges that despite that plain language, this court should conclude that she was not a member, to avoid reaching the constitutional issue presented. We are not free, however, to ignore the unambiguous language of the rules. (See Morse v. Municipal Court (1974) 13 Cal.3d 149, 156, 118 Cal.Rptr. 14, 529 P.2d 46.)

III

Labor Code section 432.2 prohibits an employer from "demanding or requiring" any applicant for employment or any employee to submit to or take a polygraph, lie detector, or similar test as a condition of employment or continued employment. While the section has been described as suggesting a "basic legislative disapproval of employer-administered polygraph tests" (43 Ops.Cal.Atty.Gen. 25, 27 (1964)), its prohibitions do not apply to any public employer. ² Nevertheless, notwithstanding the limitations of section 432.2, police officers cannot be compelled to take such tests. The Public Safety Officers Procedural Bill of Rights Act (Gov.Code, § 3300 et seq., hereafter the Act) sets forth a list of basic rights and protections which must be afforded all peace officers by the public entities which employ them. (Baggett v. Gates (1982) 32 Cal.3d 128, 135, 185 Cal.Rptr. 232, 649 P.2d 874; White v. County of Sacramento (1982) 31 Cal.3d 676, 679, 183 Cal.Rptr. 520, 646 P.2d 191.) Section 3307 of the Act allows officers to refuse to submit to a polygraph examination, and prohibits any disciplinary action or other recrimination for such a refusal. ³

Appellant contends that terminating her for refusing to submit to a polygraph test is a denial of equal protection, because police officer members of the department cannot be similarly terminated. At trial respondent, the Civil Service Commission of the City and County of San Francisco, argued that the Act was not applicable to charter cities such as San Francisco, and that therefore both officers and civilian employees of the city's police department are subject to such termination. The trial court agreed. Recently, however, the Supreme Court held that the Act may be constitutionally applied to charter cities, as its objective, the maintenance of stable employment relations between police officers and their employers, is a matter of statewide concern. (Baggett v. Gates, supra, 32 Cal.3d at pp. 139-140, 185 Cal.Rptr. 232, 649 P.2d 874.) Accordingly, we must consider appellant's equal protection argument.

Initially, we stress that appellant does not argue that the distinction drawn between public and private employees by Labor Code section 432.2 creates an unconstitutional classification. Accordingly, we will not consider that question, except to note that " '[i]n the course of his work, a public officer or employee must yield some of the privileges which are enjoyed by the citizenry at large.' [Citation.]" (Szmaciarz v. State Personnel Bd. (1978) 79 Cal.App.3d 904, 916, 145 Cal.Rptr. 396.) Unlike a private employee, a public employee is "directly, immediately, and entirely responsible to the city or State which is his [or her] employer.... He [or she] is a trustee of the public interest, bearing the burden of great and total responsibility to his [or her] public employer." (Gardner v. Broderick (1968) 392 U.S. 273, 277-278, 88 S.Ct. 1913, 1915-16, 20 L.Ed.2d 1082.) While a public employee cannot be forced to give an answer which may tend to incriminate him or her in criminal proceedings, he may be required to choose between disclosing information and losing his employment. (Id., at p. 278, 88 S.Ct. at 1916; see Steinmetz v. Cal. State Board of Education (1955) 44 Cal.2d 816, 824-825, 285 P.2d 617.)

First, relying on Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, appellant contends that because her termination involved a "fundamental vested right" to continued employment, our analysis of her equal protection claim must be predicated on the "strict scrutiny" test reserved for legislative classifications which touch upon "fundamental interests." (See, e.g., People v. Olivas (1976) 17 Cal.3d 236, 243, 131 Cal.Rptr. 55, 551 P.2d 375.) A similar argument was rejected as specious by the Supreme Court in Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 177 Cal.Rptr. 566, 634 P.2d 917. The court explained that under Strumsky, the " 'fundamental right' category does not identify areas in which substantive legislative judgments are in any manner constitutionally suspect or justify unusual judicial scrutiny; rather, that category simply encompasses those quasi-judicial administrative decisions that have 'an impact on the individual "sufficiently vital ... to compel a full and independent review" by the court.' [Citation.]" (Id., at p. 83, 177 Cal.Rptr. 566, 634 P.2d 917.) The court added, "... [it is] abundantly clear that the applicability of the independent judgment standard of review does not in any sense suggest that legislative measures pertaining to the individual interest at issue are properly subject to strict scrutiny review." (Ibid.)

A fundamental interest for purposes of equal protection review is a right explicitly or implicitly guaranteed by either the California or the United States Constitution. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18, 112 Cal.Rptr. 786, 520 P.2d 10; see People v. Olivas, supra, 17 Cal.3d at pp. 245-246, 131 Cal.Rptr. 55, 551 P.2d 375; see also Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779; City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436; Serrano v. Priest (1976) 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929.) An individual has no constitutional right, either express or implied, to public employment. (Bagley v. Washington Township Hospital Dist. ⁴ (1966) 65 Cal.2d 499, 503, 55 Cal.Rptr. 401, 421 P.2d 409.) Accordingly, we must presume that the legislation creating the classification is constitutional, and determine only whether the distinctions drawn bear...