Henneberque v. City of Culver City

• Decision Date: 08 September 1983
• Citation: 147 Cal.App.3d 250,194 Cal.Rptr. 869
• Parties: Eduard HENNEBERQUE, Petitioner and Appellant, v. The CITY OF CULVER CITY, a Municipal Corporation; Ted Cooke, Chief of the Police for The City of Culver City; Gordon Johnson, Personnel Director for The City of Culver City; Dale Jones, City Manager for The City of Culver City, Respondents. Civ. 67653.
• Court: California Court of Appeals Court of Appeals

Page 869

194 Cal.Rptr. 869

147 Cal.App.3d 250

Eduard HENNEBERQUE, Petitioner and Appellant, v. The CITY OF CULVER CITY, a Municipal Corporation; Ted Cooke, Chief of the Police for The City of Culver City; Gordon Johnson, Personnel Director for The City of Culver City; Dale Jones, City Manager for The City of Culver City, Respondents.

Civ. 67653.

Court of Appeal, Second District, Division 7, California.

Sept. 8, 1983.

Ogulnik & Levine, Charles G. Ogulnik, Richard A. Levine, Los Angeles, for petitioner and appellant.

Bert Glennon, Jr., City Atty., Joseph W. Pannone, Deputy City Atty., City of Culver City, for respondents.

THOMPSON, Associate Justice.

Eduard Henneberque appeals from the superior court judgment denying his petition for a writ of mandate compelling respondents, City of Culver City, et al., (1) to provide him an administrative appeal pursuant to Government Code section 3304, subdivision (b) (Public Safety Officers Procedural Bill of Rights Act), and (2) to reinstate him as a probationary police sergeant.

On September 6, 1980, appellant, a permanent employee of the Culver City Police Department, was appointed to the probationary position of police sergeant.

On September 18, 1980, appellant was elected president of the Culver City Police Officers Association, the recognized employee organization, pursuant to the Meyers-Milias-Brown Act. (Govt.Code §§ 3500 et seq.)

Appellant received average performance evaluations. In addition, in the September progress report it was noted that appellant "is adjusting well and should develop into a good sergeant." In the October progress report, filed on November 1, 1980, it was noted that "Ed is progressing well."

On or about November 3, 1980, appellant was demoted to the position of police officer. Respondents assert that said demotion resulted from petitioner's failure to exercise his supervisorial judgment on or about October 26, 1980, in a manner consistent with the ordinary standards of conduct applicable to a sergeant. Thus, a determination was made that appellant failed to satisfactorily perform his probationary duties as sergeant.

On or about November 7, 1980, appellant requested that respondents provide him an appeal on his involuntary demotion. On November 18, 1980, respondents denied appellant's request for an administrative appeal.

On March 26, 1981, appellant filed, pursuant to Code of Civil Procedure section 1085, a petition for peremptory writ of mandate, seeking (1) an administrative appeal in accordance with Government Code section 3304, subdivision (b), and (2) reinstatement to the rank of police sergeant on the basis that appellant was unlawfully intimidated and discriminated against by reason of his position as president of the recognized employee organization.

On June 12, 1981, the lower court entered judgment denying appellant's petition for writ of mandate, and on June 22, 1981, appellant filed an appeal from said decision.

DISCUSSION

Appellant contends that the trial court abused its discretion in refusing to issue a peremptory writ of mandate because respondents failed to afford him an opportunity for administrative appeal pursuant to Government Code section 3304, subdivision (b). We agree. ¹

Respondents claim that appellant waived his right to an administrative appeal by not raising the issue below and presenting no evidence to support the issuance of a writ of mandate (Code Civ.Proc., § 1085). Our review of the record, however, discloses that appellant properly raised the issue of an administrative appeal in his pleadings before the trial court and presented evidence to support issuance of a writ of mandate.

The requirements for mandamus are (1) a clear, present duty on the part of the respondent, and (2) a clear, present and beneficial right in the petitioner to the performance of that duty. (Code Civ.Proc., §§ 1085, 1086; ² see 5 Witkin, Cal.Proc. (2d ed. 1971) Extraordinary Writs, § 61, p. 3838; Baldwin-Lima-Hamilton Corp. v. Superior Court (1962) 208 Cal.App.2d 803, 813-814, 25 Cal.Rptr. 798.) Appellant argued before the trial court and now argues that pursuant to California Government Code section 3304, subdivision (b), entitled the Public Safety Officers Procedural Bill of Rights Act, he has a clear, present, substantial right in the performance of the respondent City to provide an opportunity for administrative appeal and respondents have a clear, present, ministerial duty to provide an opportunity for such an appeal.

Section 3304, subdivision (b) in pertinent part provides: "No punitive action, ... shall be undertaken by any public agency without providing the public safety officer with an opportunity for administrative appeal." "Punitive action" within the meaning of the Bill of Rights Act, is further defined in section 3303, California Government Code, in relevant portion, "as any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for the purposes of punishment."

In White v. County of Sacramento (1982) 31 Cal.3d 676, 678-679, 183 Cal.Rptr. 520, 646 P.2d 191, plaintiff was reassigned on the basis of alleged deficient performance to a lower paying position. Plaintiff asserted that the resulting loss in pay from the administrative decision was punitive in nature and petitioned the trial court for a writ of mandate to compel the County Civil Service Commission to grant him an administrative appeal pursuant to Government Code section 3304, subdivision (b). The court held that "a decision to reassign a peace officer to a lower paying position is per se disciplinary, or punitive in nature, and that the officer therefore must be accorded the 'opportunity for [an] administrative appeal.' " (Id., at pp. 683-684, 183 Cal.Rptr. 520, 646 P.2d 191; emphasis added.)

In the case before this court, appellant was promoted to the rank of police sergeant with a corresponding increase in salary and benefits. He received no unfavorable evaluations while serving in this capacity. However, he was summarily demoted and received a reduction in salary and benefits. Thus, punitive action was undertaken by respondents without providing the required opportunity for appeal in violation of Government Code section 3304, subdivision (b).

Additionally, appellant also is entitled to an administrative appeal because of alleged discrimination against him for exercise of his right to participate in the recognized employee organization.

It has been held that a writ of mandate was proper to correct discrimination against employees who exercise their rights under the Meyers-Milias-Brown Act. (San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 558, 127 Cal.Rptr. 856.)

Pursuant to Code of Civil Procedure, section 1085, appellant has a clear, present,...