Cozzolino v. City of Fontana
| Decision Date | 28 October 1955 |
| Citation | 136 Cal.App.2d 608,289 P.2d 248 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Joseph S. COZZOLINO, Petitioner and Appellant, v. CITY OF FONTANA, a City of the Sixth Class, County of San Bernardino, State of California; Henry Younge, Chief of Police, and M. W. Leetzow, R. L. Gazvoda, Mrs. Vera Wyatt, Jack Bulik, Eugene Conlon, duly elected and serving Council for said City, Respondents. Civ. 5086. |
T. L. DeBord, Barstow, for appellant.
Henry F. Rager, Fontana, for respondents.
By a petition for a writ of mandate, filed on July 26, 1954 the petitioner sought reinstatement as a police officer for the city of Fontana. A demurrer was sustained with leave to amend, and an amended petition was filed. A demurrer was again sustained with leave to amend, and the petitioner filed notice of his election to stand on the amended petition. A judgment of dismissal was then entered, and this appeal followed.
So far as material here, the petition alleged that Fontana is a city of the sixth class; that petitioner was employed as a police officer for said city on October 21, 1952, by 'Resolution No. 44'; that said Resolution No. 44 is still in effect and has not been rescinded; that petitioner was summarily discharged by the chief of police of said city on January 22, 1954; that a 'closed hearing' was held on February 2, 1954, for the purpose of determining whether the action of the chief of police in discharging the petitioner was justified; that the action taken at this meeting did not purport to be an original action by the city council, but was for the purpose of satisfying the public demand and to ratify and approve the prior action of the chief of police; that the petitioner's salary was paid up to and including February 2, 1954; that on July 15, 1954, the petitioner made demand upon the chief of police and the city council to reinstate him to his position and to certify and approve his payroll from February 2; and that said demand has been refused.
A copy of Resolution No. 44 was attached to the petition with a certificate that it was adopted by the city council at a regular meeting on October 21, 1952. It is headed It states that it is necessary and convenient that officers be employed for the city police department. It then 'authorizes' for such employment five named persons, including this petitioner. The minutes of 'a regular meeting' of the city council held on February 2, 1954, were also attached to the petition. These minutes recite that one councilman 'moved that the Council concur in the action of the Chief of Police in his dismissal of (this petitioner) on the evidence given', and that the motion was seconded by another councilman. After setting forth some of the discussion which followed, the minutes recite that the motion to approve the action of the chief of police was passed and adopted by a vote of three to two.
Briefly stated, the appellant admits that his continued employment was at the pleasure of the city council, but contends that since he was appointed by a formal resolution his employment could be determinated only by a formal resolution adopted by the city council 'rescinding' his employment under Resolution No. 44; that the power to rescind Resolution No. 44 could not be delegated to the chief of police; that since the chief of police had no authority to rescind a formal resolution of the city council his action, in discharging the petitioner, was ultra vires and void; that the act of the chief of police being void could not be ratified by the city council; that the only way the petitioner could be removed from his position is by an original act of the city council rescinding and cancelling his appointment under Resolution No. 44; that the city council took no such original action; and that the action taken by the city council on February 2 could not be considered an original action for the further reason that it was not a public meeting, as required by section 36808 of the Government Code.
Section 36505 of the Government Code provides that the city council shall appoint the chief of police, and may appoint such other subordinate officers or employees as it deems necessary. Section 36506 provides that the city council shall fix the compensation of all appointive officers or employees by resolution or ordinance. It then provides...
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