Forstner v. City and County of San Francisco

• Decision Date: 26 July 1966
• Citation: 243 Cal.App.2d 625,52 Cal.Rptr. 621
• Court: California Court of Appeals Court of Appeals
• Parties: James A. FORSTNER, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, et al., Defendants and Appellants. Civ. 22359.

Page 621

52 Cal.Rptr. 621

243 Cal.App.2d 625

James A. FORSTNER, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, et al., Defendants and Appellants.

Civ. 22359.

District Court of Appeal, First District,

Division 3, California.

July 26, 1966.

Thomas M. O'Connor, City Atty., of City and County of San Francisco, Paul J. DiNoia, Deputy City Atty., San Francisco, for appellants.

Marshall W. Krause, Staff Counsel, American Civil Liberties Union, San Francisco, for respondent, Robert Seligson, San Francisco, of counsel.

DEVINE, Justice.

The principal question is whether there was reasonable cause for the dismissal of respondent from his position as a permanent civil service employee, a probation officer of the Juvenile Court. The cause for dismissal was his refusal to shave his beard on order of the chief probation officer. The chief probation officer, acting as hearing officer, decided that the charge of insubordination was sustained by the evidence. On appeal to the Civil Service Commission, the decision was upheld. The Superior Court granted writ of mandate restoring respondent's position and directing payment of back salary.

The charge against respondent was stated in a letter to him from the chief probation officer as 'insubordination in that you refuse to comply with my order to shave your beard, which you grew while on vacation at the end of your probationary period * * * your wearing a beard is inimical to your effectiveness as a Probation Officer in that it tends to identify you with 'beatnikism', which stands for attitudes incompatible with your assignment as a Probation Officer.'

There was no written rule relating to personal appearance of probation officers, but the chief probation officer, when called as an adverse witness, testified that the 'unwritten standards for probation officers are that they will appear in dress no different than that which would be expected of the average middle-class white collar business and professional men in San Francisco,' and that a 'beard is not yet an accepted middle-class white collar business, industrial or professional employee's accepted item of appearance' but that a 'mustache is an accepted appendage.'

The Evidence

1. The beard

Respondent, who was 38 at the time of the hearings, had worn a beard at various times, commencing with a period when he was in the Air Force. In September, 1961, while he was group counselor at Juvenile Court, respondent grew a beard on vacation, which he continued to wear. Although respondent's superiors were aware of the beard, respondent was never ordered to shave. In December, 1961, while bearded, respondent took and passed a written examination for civil service promotion to probation officer.

Sometime prior to taking the oral examination, respondent shaved off his beard. He testified that he shaved at this time because he thought the oral examining board might possibly be prejudiced against him because he wore a beard. He testified that he had worn a beard in an oral examination for a similar position in another county and had not been successful in that examination, that the persons who were to sit on the oral examining board in February, 1962, would not be from the San Francisco Juvenile Hall and would not be acquainted with him as an individual, that superficial appearance can count highly in such examinations, that several friends had advised him to shave before taking the examination, and that although he personally felt that his wearing a beard had nothing to do with his qualifications as a probation officer, he did not want to jeopardize his chance for advancement by opening the way to prejudicial bias against him because of his beard.

Respondent was successful in the oral examination. He continued in his position as group counselor until November, 1962, when he was appointed temporary probation officer. During this period he did not have a beard. In March, 1963, he received a permanent appointment to the position of probation officer, subject to a six-month probationary period. During the probationary period, from March to September, 1963 respondent did not wear a beard. Thus, between the time just prior to the oral examination in February, 1962, and the end of his probationary period in September, 1963, respondent did not have a beard. He testified that between those dates he had no more than a few days at a time to go out in the woods hunting, that he usually grows a beard while out in the woods, that a beard does not look very handsome while it is in the growing process, and that he had no chance between those dates to get away for the several weeks necessary to grow a beard to the point where it is conducive to good public appearance.

At the end of his six-month probationary period in September, 1963, respondent took a two-week vacation, during which he grew a beard. When he returned to work, he continued to wear the beard. Upon his return he continued to work as a probation officer, but in a different division under a different supervisor, Warren Cain, who had never worked with respondent before. Mr. Cain informed respondent when he reported for duty that his beard would detract from his effectiveness as a probation officer and would identify him as a beatnik. Cain requested respondent to shave. Respondent refused, and the matter was carried to Thomas Strycula, the chief probation officer. Subsequently, Mr. Strycula himself ordered respondent to shave, and the respondent's refusal initiated the proceedings described above.

The evidence is that the beard was at no time unkempt, but was always kept neat and trim.

2. Performance of duties

The evidence is without contradiction (much of it having been given by witnesses who found fault with the wearing of the beard) that respondent's performance of his work was excellent. He had never disobeyed an order, except the one to remove his beard. His ratings during his probationary period were uniformly high. During his employment as counselor, when he wore a beard, his work was described as excellent by the senior counselor. Sometimes boys would make remarks about the beard behind respondent's back. A supervising counselor conceded that they would take enjoyment from ridiculing of counselors to the extent that they could get away with it, but testified that 'the more you give them to mimic, the worse it is.' A counselor has to do mainly with the physical care of children who are in custody; a probation officer calls at homes, agencies, schools, appears in court, and gives counsel.

3. Opinions of witnesses

The testimony of one of the witnesses, Mr. Russ, the night superintendent at the Juvenile Hall, consisted in large part of the fact that he had advised respondent not to wear the beard. His testimony also includes the bare statement that he does not feel that beards are acceptable as a standard for probation officers. His conclusion is unsupported by any reasons. As to the advice he gave respondent, he admitted that this was for the sole reason that he thought respondent would have a better chance of passing the oral examination without a beard. In fact, the advice was to remove the mustache, too. (Other probation officers do wear mustaches and no one has raised objection to this.)

Mr. Cain testified that in his opinion a beard detracts from the ability to 'sell good living.' He conceded that he had no personal experience which would indicate that beards are detrimental to probation work and that his opinion was a 'qualified guess.' He was of the opinion that other professional people working closely with disturbed persons, such as social workers or psychiatrists, could wear beards. He thought that a certain segment of the children think that a person wearing a beard is a beatnik, and that he doesn't believe in rules. His opinion, however, as taken in the context, seems to be related to first impressions of children, parents and other persons coming into contact with the probation officer. Whether children who had actually been counseled or directed by respondent had ever regarded him as lacking in judgment or authority or industry does not appear by the slightest bit of evidence.

Tully McCrea, Western Director of the National Council on Crime and Delinquency, an author of guides for Juvenile Court judges, and a participant in various institutes for such judges and their staffs, testified that generally a youngster grows to like his probation officer and to identify with him, and that he should be provided with one who is not out of the ordinary. He believed that a probation officer would be less effective if he wore a beard. He, too, could offer no evidence resulting from experience. Far from concluding that a beard means a beatnik, he testified that a few children might be drastically harmed by the appearance of a beard in that it would present to these children a 'Jehovah idea' of a brutal father even though a child's father may not have had a beard at all. Here, again, the testimony was not backed by a factual presentation. There was a brief reference to Freud, which was, however, virtually withdrawn.

Miss Cassedy, a probation officer, testified that because a probation officer is 'charged with the responsibility for correcting the attitudes and the behavior of deviant members of society' it is necessary for him 'to be himself a very conservative individual who doesn't do anything in dress or behavior that is extreme in any respect.'

Mr. Chay, Director of Log Cabin Ranch, a place of rehabilitation for delinquent minors, wore a full-blown beard. He testified, however, that this was acceptable to boys in the country, but that if he were a probation officer he would not wear a beard.

Mr. Strycula testified that a probation officer cannot be 'off-beat'; that the most important effect of the beard is the division in the department about it; that beards are controversial and that a probation officer should not be...