Hosford v. State Personnel Bd.

• Decision Date: 13 October 1977
• Citation: 141 Cal.Rptr. 354,74 Cal.App.3d 302
• Court: California Court of Appeals Court of Appeals
• Parties: Horace HOSFORD, Plaintiff, Respondent and Cross-Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant, Appellant and Cross-Respondent. Civ. 15954.

Page 354

141 Cal.Rptr. 354

74 Cal.App.3d 302

Horace HOSFORD, Plaintiff, Respondent and Cross-Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant, Appellant and Cross-Respondent.

Civ. 15954.

Court of Appeal, Third District, California.

Oct. 13, 1977.

Johnson & Vinson, Sacramento, for plaintiff, respondent and cross-appellant.

Evelle J. Younger, Atty. Gen. by Jeffrey L. Gunther, Deputy Atty. Gen., Sacramento, for defendant, appellant and cross-respondent.

PUGLIA, Associate Justice.

Plaintiff Horace G. Hosford cross-appeals from an order of the superior court denying his petition for writ of mandamus to overturn a State Personnel Board decision which upheld his dismissal from the California Highway Patrol. ¹ On appeal he contends the evidence does not support the Board's findings, dismissal was excessive punishment as a matter of law, and First Amendment free speech guarantees preclude his being penalized for certain of the instances of verbal misconduct alleged against him in the proceedings below.

FACTS

On August 16, 1974, plaintiff, a nine-year member of the California Highway Patrol, was served with a statement of charges and notice of dismissal from that agency. The charged acts spanned a two-year period immediately preceding the service of the notice, and consisted of alleged violations of several subsections of Government Code section 19572. To the extent applicable to these proceedings, section 19572 provides: "Each of the following constitutes cause for discipline of an employee, or person whose name appears on any employment list: . . . (c) Inefficiency. (d) Inexcusable neglect of duty. (e) Insubordination. (f) Dishonesty. . . . (j) Inexcusable absence without leave. . . . (o) Willful disobedience. . . . (q) Violation of this part or board rule. . . . (t) Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to his agency or his employment."

Hosford requested and was given a hearing before the State Personnel Board, which found against him on thirteen of the fourteen allegations. The Board concluded his conduct constituted inefficiency, inexcusable neglect of duty, insubordination, and willful disobedience within the meaning of Government Code section 19572; it sustained the action dismissing him. His petition for rehearing was denied by the Board and his petition for writ of mandamus was denied by the superior court (see fn. 1, ante, p. 1). This appeal ensued.

First Amendment Claim

We dispose at the outset of Hosford's claim that his dismissal constitutes constitutionally-prohibited punishment for the exercise of his First Amendment free speech rights. He bases this allegation on the fact that seven of the findings upon which the Board sustained his dismissal concerned Hosford's expressions of disdain and disrespect for his commanding officers and for the Highway Patrol. The remarks, spoken in the presence of both inferior and superior officers, were all made in the context of the work relationship.

It is well settled that First Amendment freedoms are not absolute. Their exercise may be regulated by "general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise," when a proper governmental interest is served thereby. (Konigsberg v. State Bar of California (1961) 366 U.S. 36, 49-51, 81 S.Ct. 997, 1007, 6 L.Ed.2d 105.) To the extent that it permits a public employee to be disciplined for insubordinate utterances to his superiors, Government Code section 19572, subdivision (e) arguably limits the unfettered exercise of free speech. However, we think the Highway Patrol's interest in developing discipline, esprit de corps, and good morale among its members far outweighs any legitimate interest which Hosford could assert in undermining those efforts with unsolicited, disparaging remarks to or about his commanding officers in the course of duty. (See Kannisto v. City and County of San Francisco (9th Cir. 1976) 541 F.2d 841, cert. den., 430 U.S. 931, 97 S.Ct. 1552, 51 L.Ed.2d 775.) The First Amendment claim must fail.

Scope of Review

The decision under review of this court (and in the trial court below) was rendered after a full evidentiary hearing by the State Personnel Board, a statewide agency created by, and deriving its adjudicatory powers from the state Constitution. (Cal.Const., art. XXIV, §§ 2, 3.) Accordingly, this court's inquiry on review is confined to an examination of the record to determine whether there is substantial evidence to support the Board's findings. (Barber v. State Personnel Bd., supra, 18 Cal.3d at p. 404, 134 Cal.Rptr. 206, 556 P.2d 306; Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 869, 130 Cal.Rptr. 292; Marshall v. State Personnel Bd. (1973) 31 Cal.App.3d 904, 908, 107 Cal.Rptr. 738; see Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34-36, 112 Cal.Rptr. 805, 520 P.2d 29.) In this examination we must view the evidence in the light most favorable to the Board's findings and indulge all reasonable inferences in support thereof. (Neely v. California State Personnel Bd. (1965) 237 Cal.App.2d 487, 489, 47 Cal.Rptr. 64.) Substantial evidence has been defined as "relevant evidence that a reasonable mind might accept as adequate to support a conclusion, . . ." (Gubser v. Department of Employment (1969) 271 Cal.App.2d 240, 245, 76 Cal.Rptr. 577, 581.)

With these principles in mind, we consider the issues.

Findings of the Board ²

The first of the findings challenged on appeal concerns a verbal altercation which had taken place between the plaintiff and the assistant district attorney of Calaveras County some two years before the former was served with notice of his dismissal. The assistant district attorney testified that Hosford lost his temper when the prosecutor, after calling ahead to say he would be delayed, arrived between one and two hours late to a meeting scheduled with Officers Hosford and Lynn, one of Hosford's subordinates, and pointed out some deficiencies in the investigation the two officers had performed. The meeting deteriorated into a shouting match which could be heard by members of the public in other parts of the building. Hosford accused the district attorney of ineptitude and bias against the Highway Patrol and called him names. The district attorney opined the incident "couldn't (have helped) but damage both offices," since a close working relationship was essential in their small community. Officer Lynn testified the situation was extremely embarrassing and uncomfortable for him. Although plaintiff claimed that he had raised his voice in order to defend Officer Lynn's work against unjust criticism, Lynn testified he did not get that impression. Both Lynn and Lieutenant Garrison, Hosford's immediate commanding officer, testified the incident could have had an adverse effect on the working relationship between the two offices, as well as on morale within their own department. Hosford's commanding officer censured him for the incident.

The Board found that while the assistant district attorney should share the blame for the incident, the plaintiff's "bad judgment and improper conduct" were not excused by that fact.

Plaintiff challenges a finding concerning disparaging comments made by him in a room full of his subordinate officers about the new Zone Deputy Commander whom most of the officers were to meet for the first time later that day. Four officers testified that after the commander's imminent arrival was announced, Hosford made remarks to the effect the man was a "hatchet man looking for someone to shaft," and "if he had a brain, he'd take it out and play with it." The effect on departmental morale, according to the witnesses, was to create a feeling of mistrust toward the incoming commander; one witness testified that for the first several months of the new Zone Deputy Commander's tenure, the men kept expecting "some terrible calamity to befall" them. Hosford did not recall making the remarks, but stated he and the other officers did engage in occasional "squad-room talk," making "mild complaints." The other sergeant in the office testified on cross-examination that the remarks about the new commander could perhaps be so characterized. Hosford's commanding officer reprimanded him for expressing negative feelings about higher-ups in front of his subordinate officers. The Board found Hosford's actions "were disrespectful, and tended to undermine authority within the Highway Patrol."

Plaintiff complains of a finding that he had developed a generally negative attitude about his work, and that since mid-July 1973, he had frequently been absent therefrom and made numerous schedule changes for personal reasons. Testimony indicated that in January 1973, Hosford's immediate commanding officer had written him a memorandum concerning his excessive use of sick leave, and its deleterious effect on Hosford's effectiveness as a supervisor of the traffic officers. ³ His frequent absences continued, coupled with frequent schedule changes. ⁴ The results according to witnesses called by the Highway Patrol included a general slump in department morale; a feeling among subordinate officers that Hosford was abusing his sergeant's privileges; increased use of sick leave by the other officers who came to regard their monthly day of sick leave as an extra day off a month; and the general disruption of departmental operations, since Hosford could not be counted on to show up for work when he was scheduled to be there. Several officers testified they were uncomfortable working with Hosford because of his constant grumblings about and criticism of their mutual superiors, and of the Highway Patrol in general. Plaintiff's testimony about his absenteeism was to the effect that some of his frequent absences had been due to a work-related injury, ⁵ and all the rest had either been approved by...