Gilmore v. Personnel Bd.
| Decision Date | 19 June 1958 |
| Citation | 326 P.2d 874,161 Cal.App.2d 439 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Benjamin M. GILMORE, Petitioner and Appellant, v. The PERSONNEL BOARD of the State of California, Wilmer W. Morse, Ford A. Chatters, Robert D. Gray, Glenn, R. Baker and Emery E. Olson, Defendants and Respondents. Civ. 22425. |
Vaino Hassan Spencer, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., and Edward M. Belasco, Deputy Atty. Gen., for respondents.
Petitioner was dismissed by the State Personnel Board from his civil service position as a drivers' license examiner in the Department of Motor Vehicles. He sought a writ of mandate, in the superior court, compelling the Personnel Board to reinstate him in the position. His petition was denied. He appeals from the judgment.
Appellant contends that the Personnel Board proceeded in excess of its jurisdiction and abused its discretion in dismissing him.
On November 17, 1930, the Department of Motor Vehicles employed petitioner as a drivers' license examiner. He attained permanent civil service status in that position. When petitioner was first employed, and for a number of years thereafter, the department did not require examiners to wear a uniform. On August 29, 1938, the director of the department issued an order which provided that all examiners were to 'provide themselves' with a uniform of the military type, as specified in the order, by November 1, 1938. Petitioner purchased a uniform of the specifications stated in the order, and from November 1, 1938, until October 28, 1943, he wore a uniform which complied with the specifications. On October 28, 1943, the director issued a bulletin which was to the effect that thereafter the examiners would not be required to wear a uniform. The bulletin stated that the reason for discontinuance of the requirement was that it was impossible (as a result of the shortage of material caused by the war) for examiners to secure replacements or to maintain uniforms in a satisfactory condition. The bulletin also stated that examiners must wear a badge when on duty; and that when 'uniforms are resumed, a distinctly different type may be required.'
On June 17, 1947, the director issued a memorandum which was to the effect that examiners would be required to wear a uniform, and that notice would be given before such an order was made. In that memorandum, the examiners were requested to supply themselves with, and to wear, uniform clothing as specified in the memorandum. On October 19, 1954, the director issued an order which provided that, effective July 1, 1955, all examiners 'will wear' the regulation dress while they were on duty. The regulation dress, as specified in the order, included a two-piece business suit of twelve-ounce slate gray gabardine, white shirt, blue tie, blue or black socks, and black shoes. The order provided that it was optional as to where the clothing was to be purchased; that a certain store in Los Angeles had arranged to have the suits available by March 1, 1955; and that the approximate price for the two- piece suit was $60. The order provided further that it was permissive for any male employee of the department (other than examiners) to wear the regulation dress, and that it was permissive for any female employee to wear a skirt of slate gray gabardine and a white blouse. On July 1, 1955, five examiners, including petitioner, reported for work at the Los Angeles office of the department wearing clothing other than the regulation dress specified in the order. The manager of the office issued a memorandum which was to the effect that any examiner who was not wearing regulation dress should advise the manager the reason therefor. Four of those five examiners advised the manager that the stores from which they had ordered uniforms could not deliver the uniforms on that date. Petitioner advised the manager, by a memorandum, that his reasons for not wearing the regulation dress were multiple, and that one of the reasons was personal economy. Also, in that memorandum he asked whether the department would pay for the regulation dress.
On August 11, 1955, the director issued an order in which he stated that September 1, 1955, would be the effective date on and after which regulation dress would be required.
Petitioner was on vacation the first five days of September. On September 6, 1955, he reported for duty, and at that time he was wearing a blue gabardine suit. He told the manager that he had not ordered a uniform. The manager told petitioner that he was 'on suspension.' On September 9, 1955, a notice of punitive action was served on petitioner. The notice stated that petitioner was suspended 'without pay,' from service in his position, for a period of three days, commencing September 6, 1955, and terminating September 9, 1955, and that the causes for his suspension were insubordination, wilful disobedience, and other failure of good behavior or acts during duty hours which were incompatible or inimical to the public service, as set forth in subdivisions (f), (p), and (s) of section 19572 of the Government Code, 1 in that when he reported for duty on September 6, 1955, he failed and neglected to wear the regulation gray gabardine suit. (On September 16, 1955, a copy of the notice was filed with the Personnel Board.)
On September 12, 1955, petitioner reported for duty, and at that time he was wearing a blue gabardine suit. He told the manager that he had not obtained a uniform. The manager told petitioner that he was 'under suspension,' and that the period of suspension was five days.
On September 19, 1955, petitioner reported for duty, and at that time he was wearing a blue gabardine suit. The manager told petitioner that he was 'being suspended' for ten days.
On September 19, 1955, a notice of punitive action (regarding the suspension of September 12) was served on petitioner. The notice was similar to the previous notice, except that the date stated therein, as the date on which petitioner had failed to wear the regulation gray gabardine suit, was September 12, 1955, and the period of suspension was five days, commencing September 12, 1955, and terminating September 16, 1955; and except that the notice referred to the previous suspension and the reasons for such suspension. (On September 23, 1955, a copy of the notice was filed with the Personnel Board.)
On September 21, 1955, petitioner filed answers to the notices which were served on him on September 9 and September 19. In his answers petitioner alleged, among other things, that he had 'at all times, made known to his superior his willingness to wear such uniform, provided the cost of furnishing same was not passed on to' him; and that he had inquired as to whether the department would furnish the regulation dress, or whether he would be reimbursed for the cost of furnishing the regulation dress, and he had not received an answer to his inquiries. In his answer to the notice which was served on him on September 19, petitioner requested an early hearing of the matter.
On October 3, 1955, petitioner telephoned the manager of the department and said that he (petitioner) was ill and he could not return to work on that date. On October 3, 1955, a notice of punitive action (regarding the suspension of September 19) was served on petitioner. The notice was similar to the previous notices, except that the date stated therein, as the date on which petitioner had failed to wear the regulation gray gabardine suit, was September 19, 1955, and the period of suspension was ten days, commencing September 19, 1955, and terminating September 30, 1955; and except that the notice referred to the two previous suspensions and the reasons for such suspensions. (On October 4, 1955, a copy of the notice was filed with the Personnel Board.)
On October 11, 1955, petitioner filed an answer to the notice of October 3. The allegations in that answer were in substance the same as the allegations in his previous answers.
On October 18, 1955, petitioner reported for duty, and at that time he was wearing a blue gabardine suit. The manager inquired whether petitioner intended to buy a uniform, and petitioner replied, 'Not unless I am compelled to.' The manager told petitioner to 'go home.'
On October 31, 1955, a notice of punitive action was served on petitioner. The notice provided that petitioner was discharged from duty and that the causes for his discharge were insubordination, wilful disobedience, and other failure of good behavior or acts during duty hours which were incompatible with or inimical to the public service, as set forth in subdivisions (f), (p), and (s) of section 19572 of the Government Code, which causes were more particularly set forth in the notice. The notice referred to the suspensions of September 6, 12, and 19, and the causes therefor, and the notice stated that when petitioner reported for duty on October 18, 1955, he failed and neglected to wear the regulation gray gabardine suit. The effective date of petitioner's discharge, as stated in the notice, was October 18, 1955. (On November 2, 1955, a copy of the notice was filed with the Personnel Board.)
On November 14, 1955, petitioner filed an answer to the notice of October 31. The allegations of that answer were in substance the same as the allegations in his answer regarding the first suspension. Also, in the answer to the notice of October 31, he stated, in effect, that an investigation regarding the three notices of suspension had been set for hearing on November 22, 1955; and he requested that the Personnel Board consolidate the hearing regarding the notice of dismissal with the hearing regarding the three notices of suspension. Apparently the request was granted.
On November 22, 1955, a hearing on the four notices was held before a hearing officer of the ...
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