Cox v. Kern County Civil Serivce Com.

Decision Date01 June 1984
Citation156 Cal.App.3d 867,203 Cal.Rptr. 94
CourtCalifornia Court of Appeals
PartiesRichard C. COX et al., Plaintiffs and Respondents, v. KERN COUNTY CIVIL SERVICE COMMISSION et al., Defendants and Appellants. Civ. 7412/F001518.
OPINION

ANDREEN, Associate Justice.

Upon learning that there was cheating by unspecified persons on one of its examinations, may a civil service commission invalidate the resultant promotional list without proof that a particular examinee cheated? We hold that it may.

Petitioners (hereinafter plaintiffs) are deputy sheriffs in Kern County who gained positions on an eligible list for promotion to senior deputy sheriff by taking a competitive examination. They brought this writ of mandate to compel the respondents (hereinafter defendants) Kern County Civil Service Commission (hereinafter commission), the County of Kern, and E. Dean Holloway, Interim Director of Personnel for Kern County, to reinstate the list.

After a hearing, the lower court granted the petition and ordered the defendants to reinstate the disputed eligible list.

I. FACTS

At the outset of the hearing held on May 7, 1982, the trial court admitted into evidence the verified petition for writ of mandate with supporting documents and related pleadings. Since little additional evidence was adduced during that hearing, our summary is largely based upon information contained in the clerk's transcript on appeal and stipulations made during trial.

On October 6, 1981, the personnel department of Kern County announced a promotional examination for the position of senior deputy sheriff consisting of a written test and an interview. Plaintiffs submitted applications, took the written test (on November 20, 1981) and were interviewed, resulting in their being "certified for promotion," i.e., placed on a list of those eligible for consideration for the advertised position.

At a meeting of the civil service commission held on January 11, 1982, evidence was presented that the written test given on November 20, 1981, had been "compromised." A partial copy of the written test with the correct answers had been reviewed by unidentified examinees prior to the examination. The commission voted to invalidate the eligible list previously established and to administer a new test in order to establish an eligible list untainted by cheating.

This litigation followed, in which the issue presented to the trial court was a narrow one--whether the commission had the implied power to invalidate the list of eligibles absent proof that the plaintiff officers had themselves cheated on the examination. There was no evidence introduced below as to how the cheating was accomplished or how pervasive it was. We set forth in the margin the colloquy between court and counsel as to the known facts of cheating. 1 There was no contention made below, either in the briefs filed or in oral argument, that it was possible to identify those officers who had utilized the crib sheet in their preparation for the exam.

II. DOES THE CIVIL SERVICE COMMISSION HAVE THE IMPLIED POWER TO INVALIDATE AN ELIGIBILITY LIST FOR GOOD CAUSE?

Defendants concede that no express rule of the civil service commission permits the invalidation of an entire eligibility list for cause prior to six months after the list has been in effect. They assert, however, that such a power to invalidate must be implied from the objects and purposes of the legislation creating the commission, especially the mandate that county employment be governed by principles of merit. Plaintiffs contend that the enumerated procedures for removing individuals from eligibility lists for cause sufficiently advance the merit goals of the Civil Service System so that it is not necessary to imply any additional power such as that claimed by the commission.

Decisional law relating to the implied powers of administrative agencies is not entirely coherent--some cases use very expansive language while others carefully circumscribe permissible implications. In Addison v. Department of Motor Vehicles (1977) 69 Cal.App.3d 486, 138 Cal.Rptr. 185, one of the few cases to deny an agency an implied power, the Department of Motor Vehicles (DMV) directed an automobile auctioning company to deliver certain of its business records to the DMV in connection with an investigation conducted by that agency. (Id., at 491, 138 Cal.Rptr. 185.) The auto seller refused, and sought declaratory relief, which was granted by the trial court. (Ibid.) The Court of Appeal affirmed. It noted that section 320 of the Vehicle Code, which provided for inspection of "pertinent records," by its terms referred only to an automobile dealer licensee who maintains more than one type of business from the same establishment. Had the Legislature desired the DMV to have authority to inspect all automobile dealerships, it would have so provided. Vehicle Code section 11714, subdivision (c) provided that the DMV would furnish books and records which remain the property of the department and may be taken up at any time for inspection, but both parties conceded that this gave DMV only limited power. The panel declined to imply a power to inspect the business records of the licensee. In response to DMV's argument that such a power of inspection should be implied from statutes requiring it to discipline auto dealers who knowingly purchased stolen cars, failed to file required forms, or defrauded consumers, the appellate court found that as to each statutory duty imposed on DMV, the Legislature had provided a concomitant enforcement mechanism sufficient to permit DMV to perform it. (Id., at pp. 498-499, 138 Cal.Rptr. 185.) The court stated:

"While the DMV has cited examples where the power to inspect any and all business records of a dealer would serve some useful purpose, it has not shown that such inspection power is indispensable to the enforcement of the Vehicle Code. Accordingly, this court should not find that the DMV has unrestricted powers to inspect business records by way of implication." (Id., at p. 499, 138 Cal.Rptr. 185.)

The present case is unlike Addison in that the authorizing ordinance does not contain well-delineated enforcement mechanisms like those which the appellate court in Addison relied upon as evidence that the asserted implied power was not indispensable. Section I of Kern County Ordinance No. A-126 sets forth the objectives and purposes of creation of the civil service commission: "[T]o establish an equitable and uniform procedure for dealing with personnel ... and ... to place county employment upon a merit basis ...." Section VII of that ordinance commands the commission to "prescribe rules and regulations for the operation of the civil service system ..." which shall govern specified employment matters, including, "(h) [t]he establishment of eligible lists .... Such lists shall remain in force for not less than six (6) months nor more than two (2) years to be determined by the Civil Service Commission." No particular manner of accomplishing the stated goal of placing county employment on a merit basis to the establishment of eligible lists is specified in the ordinance, it being left to the discretion of the commission to enact rules which would provide the necessary procedures.

The commission did enact detailed rules providing a mechanism for removing individuals from eligibility lists for cause (rule V-I), and for refusing to place an individual on an eligible list (rules III-F, III-G and IV-E). Had the commission enacted a rule which permitted it to invalidate an entire eligible list for good cause, the existence of other commission-promulgated rules dealing with removal of individuals from lists would have no bearing upon the validity of the "entire list invalidation" rule--the court would still look to Ordinance No. A-126 to determine whether the power to adopt such a rule was indispensable to effectuation of the objects and purposes of the Civil Service System.

Inherent in the concept of the merit based Civil Service is that accurate and effective measures exist for assessing "merit." Where the standards for promotion include an examination testing the job related knowledge of potential promotees, cheating on the examination would skew the testing process and completely frustrate the goal of selecting the most qualified individuals. Where there is sufficient evidence that someone has cheated on an examination, but insufficient evidence to successfully identify and remove from the resulting eligible list specific cheaters, the commission should not have to rely upon the appointing authority to categorically refuse to accept any eligibles (as the sheriff apparently did here) as the only method to ensure that no cheater is certified and accepted for promotion. The power to invalidate a tainted eligible list can thus be seen as indispensable to the Civil Service System, especially so where the examination at which cheating occurred involved testing those entrusted with the power and responsibility to enforce society's laws.

The cases which have upheld assertions of implied powers support this analysis. In County of San Joaquin v. Stockton Swim Club (1974) 42 Cal.App.3d 968, 117 Cal.Rptr. 300, a recreation commission entered into an agreement with a swim club to permit the latter to use a public swimming pool. (Id., at p. 971, 117 Cal.Rptr. 300.) The commission required that the swim club execute an indemnity agreement protecting the public agencies against any losses or liability arising from use of the pool. (Ibid.) When a child was injured while swimming and sued the public agencies, they sought indemnity against the...

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