Gubser v. Department of Employment

• Decision Date: 27 March 1969
• Citation: 271 Cal.App.2d 240,76 Cal.Rptr. 577
• Court: California Court of Appeals Court of Appeals
• Parties: August R. GUBSER, Plaintiff and Respondent, v. DEPARTMENT OF EMPLOYMENT and State Personnel Board, Defendants and Appellants. Civ. 1004.

Page 577

76 Cal.Rptr. 577

271 Cal.App.2d 240

August R. GUBSER, Plaintiff and Respondent, v. DEPARTMENT OF EMPLOYMENT and State Personnel Board, Defendants and Appellants.

Civ. 1004.

Court of Appeal, Fifth District, California.

March 27, 1969.

Thomas C. Lynch, Atty. Gen., and Walter J. Weisner, Deputy Atty. Gen., Sacramento, for appellants.

Evans, Jackson & Kennedy, Anthony M. Kennedy and Timothy F. Kennedy, Sacramento, for respondent.

STONE, Associate Justice.

The Department of Employment of the State of California and the State Personnel Board appeal from a judgment of the Superior Court granting a peremptory writ pursuant to a mandamus proceeding under Code of Civil Procedure section 1094.5. The State Personnel Board found respondent Gubser guilty on two separate charges of 'inexcusable neglect of duty' within the meaning of section 19572, subdivision (d), of the Government Code, and ordered his dismissal for each separate violation. The superior court found that one charge was not supported by the evidence and although the other charge was true dismissal was not warranted, and directed the board to reconsider the question of penalty, other than dismissal.

Respondent, as a Farm Labor Supervisor I, was in charge of the administration of four all-year farm employment offices, six seasonal offices, and the agricultural phase of five nonagricultural offices of the Department of Employment. The farm labor offices had a dual function, to find employment for laborers and to make farm laborers available to growers to meet seasonal labor needs. There were a number of employees attached to each field office who, among other things, were to report to the Department of Employment the number of laborers recruited by the particular labor office and the farms to which they were assigned. Some of these employees grossly and falsely inflated the number of placements. Gubser, as supervisor of the employees making the returns, was charged with inexcusable neglect of duty, it being charged that he knew or should have known that the reports were false. He was dismissed by the department; the State Personnel Board, following a hearing before a hearing officer, sustained the dismissal.

Only two of the findings of the appeals board are pertinent to this appeal. Finding V states that for extended periods of time the placement figures were inflated to equal or exceed budget estimates made from time to time by the manager of each individual office involved, in order to prevent a reduction in staff; that the figures were so far removed from reality that a supervisor functioning at Gubser's level should have spotted the discrepancies, particularly since Gubser visited the various offices and failed to make even the elementary checks necessary to identify obvious and widespread violations which continued over an extended period of time. Based upon this Finding V, the appeals board held that Gubser's neglect of duty 'to exercise reasonable superivision and control over the four offices involved is inexcusable and constitutes cause for punitive action under the provisions of Government Code section 19572(d),' and that the punitive action of dismissal imposed by the department was proper.

In its Finding VII, the board states that approximately 100 job placements were transferred from the Sebastopol and Healdsburg seasonal offices to the Santa Rosa main office; that the transfers were made with respondent's knowledge and consent, and that although the placements themselves were legitimate the effect of transferring them to the Santa Rosa office was to deceive and mislead 'those area and central office officials who might be concerned with the budgetary requirements of the Santa Rosa office.' For this 'inexcusable neglect of duty,' the appeals board again upheld the department's order of dismissal.

The trial court found there was no substantial evidence in the record to support Finding V, and although Finding VII was substantiated by the evidence, the appeals board abused its discretion in sustaining the department's dismissal on this ground. The court directed the board to reconsider the question of penalty. This appeal followed.

Preliminarily, we are confronted with an interpretation of the term 'inexcusable neglect of duty.' Stated abstractly in Government Code section 17572, subdivision (d), as one of the several grounds for dismissal, the term is vague, to say the least. Respondent contends the Supreme Court's definition of 'neglect of duty' found in People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974, is controlling. The Supreme Court said, at page 414, 317 P.2d at page 977:

'The phrase 'neglect of duty' has an accepted legal meaning. It means an intentional or grossly negligent failure to exercise due diligence in the performance of a known official duty.'

The statute modifies the term 'neglect of duty' by the word 'inexcusable,' which Webster's New Collegiate Dictionary defines as 'Not excusable; not admitting excuse or justification.' Even with the benefit of these expository statements the expression remains an abstraction until viewed in the light of the facts surrounding a particular case. One difficulty in relating the terminology of the code section to the facts of this case is presented in respondent's argument that a finding of inexcusable neglect must be grounded on an affirmative showing of his awareness of a duty, and an intent to neglect that duty. Although he does not specifically say so, the substance of respondent's argument is that direct evidence is necessary to support a finding of an intentional omission to perform a duty. Were we to agree, the effect would be to prevent the use of circumstantial evidence to prove intent or inexcusable neglect of duty. Yet as a practical matter, absent admissions of the fact, an intentional or inexcusable omission usually can be proved only by circumstantial evidence. Moreover, in determining whether an inference is supported by the evidence, facts need not be viewed as isolated fragments but should be considered as a whole.

In viewing the facts, it is essential that we keep in mind the purpose for...