Civil Service Assn. v. City and County of San Francisco

• Decision Date: 26 October 1978
• Citation: 150 Cal.Rptr. 129,22 Cal.3d 552
• Parties: , 586 P.2d 162, 99 L.R.R.M. (BNA) 3284 CIVIL SERVICE ASSOCIATION, LOCAL 400 et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. S. F. 23621.
• Court: California Supreme Court

Page 129

150 Cal.Rptr. 129

22 Cal.3d 552, 586 P.2d 162, 99 L.R.R.M. (BNA) 3284

CIVIL SERVICE ASSOCIATION, LOCAL 400 et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

S. F. 23621.

Supreme Court of California.

Oct. 26, 1978.

As Modified Nov. 6, 1978.

Van Bourg, Allen, Weinberg & Roger and Stewart Weinberg, San Francisco, for plaintiffs and appellants.

Carroll, Burdick & McDonough, Christopher D. Burdick, Silver & Wells, Stephen H. Silver and George W. Schaeffer, Jr., Los Angeles, as amici curiae on behalf of plaintiffs and appellants.

Thomas M. O'Connor, City Atty., Milton H. Mares and Burk E. Delventhal, Deputy City Attys., for defendants and respondents.

MANUEL, Justice.

Appellants are eight individuals who are employed in civil service positions by respondent City and County of San Francisco, and two labor organizations of which the employees, among them, are members. They appeal from a judgment denying their petition for a writ of mandate challenging the legality of short term suspensions imposed upon them for disciplinary reasons. We affirm the judgment as to appellant Jacqueline Robinson and reverse as to the remaining appellants.

Each of the employees is alleged to be a permanent employee in the civil service system. The two labor unions are both labor organizations within the meaning of the Meyers-Milias-Brown Act. Each of the eight employees incurred a short-term suspension of five days or less from employment imposed for disciplinary reasons by his or her respective department. The allegations of the petition filed in the trial court describing the various suspensions are as follows:

"IX. In none of the (eight) suspensions . . . were the individuals permitted full Union representation, and in none of the suspensions were the employees Given a copy of the charges and an opportunity to respond in advance of the discipline imposed.

"X. In all of the suspensions, the employee and the Union demanded hearings and the right of Union representation of the disciplined employee. In each case, these rights were denied.

"XI. The denial of Union representation and The denial of pre-discipline rights is a Denial of due process of law and the statutory protection of the Meyers-Milias-Brown Act." ¹ Appellants filed with their petition a declaration, by their attorney, which authenticated and incorporated several items of correspondence written by counsel of some of the respondents in connection with some of the suspensions alleged. ² In a memorandum of points and authorities filed a few days later, appellants expressly stated that their claim to relief was based upon the decision in Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774.

Following the issuance of the alternative writ of mandate respondents filed an "Answer And Return" to the petition in which they specifically denied several of its allegations, including those made in its paragraphs IX, X and XI (quoted above). They also filed a memorandum of points and authorities in which they opposed the petition, urging (1) that Skelly did not pertain to "minor" employee disciplinary action of the nature alleged; (2) that Skelly did not reach these eight suspensions, in any event, because it was not to be applied retroactively; and (3) that the Meyers-Milias-Brown Act did not support any part of the relief prayed for in the petition.

It would appear that all of the eight appellant employees except Jacqueline Robinson were suspended pursuant to section 8.342 of respondent city and county's charter; Robinson was suspended pursuant to section 8.343 thereof because she, alone among the eight, was employed in and suspended by respondent's police department. Section 8.342 provides: "Disciplinary Suspensions. The appointing officer may, for disciplinary purposes, suspend a subordinate for a period not exceeding thirty days; and suspension shall carry with it the loss of salary for the period of suspension. The suspended employee shall be notified in writing of the reason for such suspension, and if the suspension be for more than five days the employee shall, at his request, be given a hearing by the appointing officer. The decision of the appointing officer in all cases of suspension for disciplinary purposes shall be final."

Section 8.343 provides: "Fine, Suspension and Dismissal in Police and Fire Departments. Members of the fire or the police department guilty of any offense or violation of the rules and regulations of their respective departments, shall be liable to be punished by reprimand, or by fine not exceeding one month's salary for any offense, or by suspension for not to exceed three months, or by dismissal, after trial and hearing by the commissioners of their respective departments; provided, however, that the chief of each respective department for disciplinary purposes may suspend a member for a period not to exceed ten days for violation of the rules and regulations of his department. Any member so suspended shall have the right to appeal such suspension to the fire commission or to the police commission, as the case may be, and have a trial and hearing on such suspension. . . . "

In addition it is claimed that in none of the suspensions were the individual employees permitted full union representation; that while demanded, said representation was denied. It is thus claimed that the denial of union representation is a denial of the statutory protection of the Meyers-Milias-Brown Act (Gov.Code, §§ 3500-3510).

The trial court heard no evidence but considered the arguments of counsel and, as if a motion for judgment on the pleading had been filed by respondent, gave judgment for respondent.

Issues Presented

The issues presented by this appeal are (1) whether due process of law requires governmental employees be given an opportunity in advance of the imposition of discipline, consisting of suspension of Five days or less, to rebut the charges made against them and (2) whether petitioners were denied rights guaranteed them under Government Code sections 3500-3510 (Meyers-Milias-Brown Act).

The first issue relates to the application of Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, and Barber v. State Personnel Bd. (1977) 18 Cal.3d 395, 134 Cal.Rptr. 206, 556 P.2d 306, to these short-term suspensions. The second issue involves the application of Social Workers Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 113 Cal.Rptr. 461, 521 P.2d 453, upon which appellants rely.

Discussion

I.

I. Application of Skelly v. State Personnel Bd.

Appellants base their claim to prediscipline rights upon Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774. In Skelly we held that before the employee therein involved could be terminated from his permanent civil service position with the State of California he was entitled to preremoval safeguards. After analyzing the opinion of the various justices in Arnett v. Kennedy (1973) 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, we concluded: "It is clear that due process does not require the state to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action. However, at least six justices on the high court agree that due process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective. As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefore, a copy of the charges and materials upon which the action is based, and the right to respond either orally or in writing, to the authority initially imposing discipline." (15 Cal.3d at p. 215, 124 Cal.Rptr. at p. 28, 539 P.2d at p. 788.)

Both Skelly and Arnett involved discharges from employment of the employees therein involved. Skelly states at 15 Cal.3d 207-208, at 124 Cal.Rptr. 23, at 539 P.2d 783: " . . . when a person has a legally enforceable right to receive a government benefit provided certain facts exist, this right constitutes a property interest protected by due process. (Goldberg v. Kelly (1970) 397 U.S. 254, 261-262, 90 S.Ct. 1011, 25 L.Ed.2d 287, 295-296; see Geneva Towers Tenants Org. v. Federated Mortgage Inv. (9th Cir. 1974) 504 F.2d 483, 495-496 (Hufstedler, J. dissenting).) Applying these principles, the high court has held that a teacher establishing 'the existence of rules and understandings, promulgated and fostered by state officials, that . . . justify his legitimate claim of entitlement to continued employment absent "sufficient cause," ' has a property interest in such continued employment within the purview of the due process clause. (Perry v. Sindermann (1972) 408 U.S. 593, 602-603, 92 S.Ct. 2694, 33 L.Ed.2d 570, 580; see also Board of Regents v. Roth (1972) 408 U.S. 564 at pp. 576-578, 92 S.Ct. 2701, 33 L.Ed.2d 548 at pp. 560-562.) And, in Arnett v. Kennedy, supra, 416 U.S. 134, 94 S.Ct. 1633, six members of the court, relying upon the principles set forth in Roth, concluded that due process protected the statutory right of a nonprobationary federal civil service employee to continue in his position absent cause justifying his dismissal. . . . (Citation to various opinions in Arnett.)

"The California Act endows state employees who attain permanent status with substantially identical property interest. Such employees may not be dismissed or subjected to other disciplinary measures unless facts exist constituting 'cause' for such discipline . . . . In the absence of sufficient cause, the permanent employee has a statutory right to continued employment free of these punitive measures (§ 19500). This statutory right constitutes 'a legitimate claim of entitlement' to a government benefit within the meaning of Roth. Therefore, the state must comply with procedural due process requirements before it may deprive...