Johnstone v. Daly City

• Decision Date: 02 January 1958
• Citation: 156 Cal.App.2d 506,319 P.2d 756
• Court: California Court of Appeals Court of Appeals
• Parties: David H. JOHNSTONE, Plaintiff and Appellant, v. DALY CITY, a municipal corporation, The City Council of the City of Daly City, Howard I. Stites, individually and as City Manager of the City of Daly City, joseph J. Verducci, Edward J. Dennis, Michael R. de Bernardi, Sanford G. Vicker, Del C. Wilson, Individually and as members of the City Council of Daly City, Defendants and Respondents. Civ. 17434.

Page 756

319 P.2d 756

156 Cal.App.2d 506

David H. JOHNSTONE, Plaintiff and Appellant, v. DALY CITY, a municipal corporation, The City Council of the City of Daly City, Howard I. Stites, individually and as City Manager of the City of Daly City, joseph J. Verducci, Edward J. Dennis, Michael R. de Bernardi, Sanford G. Vicker, Del C. Wilson, Individually and as members of the City Council of Daly City, Defendants and Respondents.

Civ. 17434.

District Court of Appeal, First District, Division 2, California.

Jan. 2, 1958.

Hearing Denied Feb. 26, 1958.

John J. Fahey, Jr., Daly City, Herbert Chamberlin, San Francisco, of counsel, for appellant.

Paul M. Hupf, City Atty., Daly City, for respondent.

KAUFMAN, Presiding Justice.

Petitioner, David H. Johnstone, appeals from a judgment of the Superior Court of San Mateo County, denying his petition for a writ of mandamus and his motion for a new trial. By the writ, petitioner seeks to compel the City Manager of Daly City to restore him to the position of police inspector. Respondents are the City of Daly City, City Manager Howard I. Stites, the City Council and its members (Joseph J. Verducci, Mayor; Edward J. Dennis; Michael R. de Bernardi; Sanford G. Vicker; Del. C. Wilson.

The petitioner was discharged by the City Council acting through the City Manager, for reasons stated as follows:

'1. He has not been governed by the ordinary and reasonable rules of good conduct and behavior and has brought reproach and discredit upon the City of Daly City and the Police Department thereof in that (a) he has investigated a personal friend without asking to be relieved from said investigation; (b) he has associated with persons whom he knew were being investigated by law enforcement groups; (c) he was the cause of official action on the part of the District Attorney of San Mateo County, California, refusing to co-operate with the law enforcement group of Daly City, to wit, the police department.

'2. He did not keep his commanding officer informed of all police matters coming to his knowledge relating to the suppression of crime, including the detection and apprehension of criminals and did not use every effort to discover the principals in a contemplated crime in that he knew of purported gambling in the City of Daly City and did not inform his commanding officer thereof and did not conduct and carry through an investigation on his own.'

A public hearing on these charges, before the Daly City Civil Service Board of Review, resulted in a finding that the charges were not true and a recommendation that the petitioner be reinstated with full pay. The City Council, after considering the transcript of the proceedings before the Board of Review, pursuant to its City Ordinance No. 203, elected to confirm the discharge of the petitioner, contrary to the findings of the Board of Review. Under the provision of Code of Civil Procedure, section 1094.5, appellant applied to the superior court for a writ of mandamus to review the validity of the action of the City Council. That court, after considering the transcript of the proceedings before the Board of Review, found that there was substantial evidence to support the order of the City Council and that the City Council had the authority to over-rule the recommendations of the Board of Review. The only issues on appeal are whether the respondents acted arbitrarily and denied appellant a fair trial and whether there is any substantial evidence to support the action of respondents.

There is no merit in appellant's first contention that the respondents acted arbitrarily and that he was denied a fair hearing. The relevant portion of the Civil Service Ordinance is as follows: 'Written conclusions or findings of the board of review shall be rendered within ten days after the matter is submitted, and thereupon be certified to the City Council or official from whose order the appeal was taken. Such findings and conclusions of the board of review may contain such recommendations as said board shall deem warranted. The City Council or the appointing officer may thereupon affirm, revoke, or modify the action taken as in the judgment of such Council or officer shall be deemed warranted. [Emphasis supplied.] The decision and recommendations of the board of review and any action taken by the City Council or appointing officer shall be final and conclusive and shall not be reviewable in any court.' The record discloses that the appellant was represented by counsel at the hearing, was given the opportunity to cross-examine witnesses and to testify on his own behalf. Thus the cases of English v. City of Long Beach, 35 Cal.2d 155, 217 P.2d 22, 18 A.L.R.2d 547; La Prade v. Department of Water and Power, 27 Cal.2d 47, 162 P.2d 13; Universal Consol. Oil Co. v. Byram, 25 Cal.2d 353, 153 P.2d 746; Bandini Estate Co. v. Los Angeles, 2, Cal.App.2d 224, 82 P.2d 185; Saks & Co. v. City of Beverly Hills, 107 Cal.App.2d 260, 237 P.2d 32, cited by the appellant, are distinguishable and have no application here.

There is merit, however, in appellant's second contention which is that there was no substantial evidence to support the action of the City Council.

The record discloses the circumstances of appellant's dismissal to be the following: The appellant had been employed for some time as police inspector on the vice squad of the Daly City Police Force. An article in Mr. Caen's column in the San Francisco 'Examiner' in the spring of 1955 alerted the City Manager to the possibility of the existence of bookmaking in Daly City. The chief of police was called in, establishments in Daly City checked, among them that of Dino Donati at 6207 Mission Street. No arrests were made as each time the premises appeared to be cleared by the time the investigating officers appeared.

On May 11, the Chief of Police received the following letter from the District Attorney:

'This is to confirm our understanding arrived at in your office on Monday, May 9, 1955, to the effect that Inspector Dave Johnstone will no longer be permitted to investigate bookmaking and gambling cases in Daly City. As I explained to you in your office, I am confident that his position with Dino Donati and other known bookmakers and gamblers is such that the unlawful elements with which we are dealing may not be successfully eradicated so long as he is allowed to remain in his present assignment.

'Should you desire to discuss this matter with your City Manager and your Mayor, I should be very happy to attend such a meeting. It may be very well the decision to drop this Inspector from your force. It is my personal belief that this action is certainly warranted, as I expressed to you yesterday. However, the matter of remedying the existing situation is certainly left up to you and your city administration. I merely wish to confirm the statement made yesterday that it would be impossible for me to continue to offer the co-operation of this office so long as Inspector Johnstone remains on his present assignment.

'Sincerely yours,

'Keith C. Sorenson,

'District Attorney.'

On May 12, the Mayor, the City Manager and the Chief of Police had a conference, the substance of which was as follows according to the testimony of the Mayor: 'First of all, we wanted to know from Chief Petrocchi the reason for his willingness to take Dave Johnstone off the vice detail. Chief Petrocchi told us about the investigation or the alleged investigation at the gambling place on Mission Street. He also told us about Johnstone's friendship with Donati. He also volunteered the information at that particular time that Johnstone would be willing to take a suspension and a demotion, but would fight were he to be discharged. Why he volunteered that particular information at that time I don't recall.'

At a discussion between the District Attorney, the Mayor, and the City Manager on May 18, the Mayor testified as follows 'The district attorney * * * said * * * that the raid was spoiled on the 18th of April because of the fact that Johnstone Investigated five or four days or whatever the number of days were after the receipt of the letter from the telephone company. He was quite perturbed by that.

'He was also perturbed about the friendship between Officer Johnstone and Dino Donati. He also told Mr. Stites and myself that he had heard of rumors of gambling in Daly City and felt that Officer Johnstone knew of these rumors and had not investigated or reported them to his superior officers.'

On Thursday May 19, the City Council discussed the matter and the recommendation of dismissal made by the City Manager as follows:

'* * * we felt we had three things we could do.

'The first was mere suspension. We felt that would be a slap on the wrist and wouldn't do the thing that we wanted for the City of Daly City.

'The second was demotion and we felt, in essence, that would be the same thing.

'Lastly, of course, dismissal and we felt that was the only thing we could do. That was the only thing that would do the job for Daly City in ridding the city of that type of activity. We felt that matter was paramount for the city. We didn't like the rumors, be they rumors or be they not rumors, or the allegations made. We felt this was the way to start something that would rid ourselves of this type of thing or anything that was akin to it.

'Q. And as a result of that conversation then, I assume that the disciplinary action chosen was dismissal? A. The disciplinary action unanimously chosen and approved by the Council and carried out by the administrative officer was for dismissal. We are a lay body and the method of dismissal was left to the City Manager's discretion.'

At the time of its action the City Council did not know whether the appellant's superior had knowledge of appellant's friendship with Mr. Donati. On Friday, May 21, 1955, the appellant was called in and asked if he had not checked out the Donati premises on April 18 just prior...