Keithley v. Civil Service Bd.

• Decision Date: 22 September 1970
• Citation: 11 Cal.App.3d 443,89 Cal.Rptr. 809
• Court: California Court of Appeals Court of Appeals
• Parties: Jerome KEITHLEY, Plaintiff and Respondent, v. CIVIL SERVICE BOARD OF the CITY OF OAKLAND, Defendant and Respondent, Robert K. LIQUORI, Real Party in Interest and Appellant. Civ. 26827.

Page 809

89 Cal.Rptr. 809

11 Cal.App.3d 443

Jerome KEITHLEY, Plaintiff and Respondent, v. CIVIL SERVICE BOARD OF the CITY OF OAKLAND, Defendant and Respondent, Robert K. LIQUORI, Real Party in Interest and Appellant.

Civ. 26827.

Court of Appeal, First District, Division 1, California.

Sept. 22, 1970.

Hearing Denied Oct. 21, 1970.

Hearing Denied Nov. 18, 1970.

Law Offices of William J. Murphy, Alfred G. Chiantelli, San Francisco, for real party in interest and appellant.

Edward A. Goggin, City Atty., William C. Sharp, Deputy City Atty., Oakland, for respondent.

MOLINARI, Presiding Justice.

In this proceeding where the superior court granted a peremptory writ of mandate to plaintiff City Manager of the City of Oakland, compelling defendant Civil Service Board of the City of Oakland (hereinafter referred to as the 'Board') to set aside its decision that Robert Liquori, the real party in interest, had been coerced into resigning his position as a police officer for the City of Oakland, Liquori appeals from the judgment granting said writ.

The superior court reached its judgment upon the evidence adduced before the Board. The Board, following a hearing upon Liquori's appeal, determined that his resignation had been coerced and that, therefore, he had been unlawfully discharged. The City Manager thereupon filed the instant petition seeking to set aside the Board's decision. The court found that there was no coercion of or duress on Liquori and that he had resigned voluntarily.

The evidence adduced at the hearing by the Board was as follows: On June 9, 1968, ¹ Liquori returned home from his work as a police officer at about 3:30 p.m. At approximately 6:00 p.m. he received a telephone call to report to the police department's patrol division desk. Upon arriving he was asked to wait. At about 11:00 p.m. he was told to report to the homicide division where he was informed that he had been charged with a serious crime. After being advised of his rights he was interrogated and during the interrogation was informed that he had been charged with the rape of a woman who was staying with him and his wife. Liquori admitted having sexual relations with the woman but stated that these relations were with her consent. When the interrogation was concluded he was told to return the next day. Liquori then returned to his home at about 2:00 a.m.

At about 8:00 a.m. Liquori returned to the police department where he remained, except for going out to lunch, until 5:45 p.m. While there he received a telephone call that his wife was in a state of hysteria because she had been apprised of the charges against him. Liquori went home and stayed up the entire night with his wife.

The next morning (June 11) Liquori again returned to the police department. He arrived at about 9:30 a.m. and waited until 2:00 p.m. when he was directed to report to the office of Deputy Chief Brown. The interview was commenced by Brown who read Liquori's statement and the statements of several persons regarding the rape charge. Brown then advised Liquori that the district attorney had not issued a complaint and that the rape charge had been dropped. Brown then stated that these charges were only known by people in the police department and that they should not be made public. The deputy chief asked Liquori what he intended to do about the matter. Brown then read to Liquori the code of conduct from the police manual ² and asked him if his conduct had been in keeping with such code. Liquori asked Brown what he should do, but Brown declined to advise him. Liquori asked for a few hours to think it over but Brown rejected this request. Brown again asked Liquori what he intended to do about the situation and, after Brown again declined to advise him, Liquori stated he had decided to resign because he was concerned about losing his wife if the affair came out in the open. Brown then told Liquori that in his resignation Liquori could cite 'for personal reasons.' Liquori then typed an 'Inter-Office Letter' dated June 11, 1968, addressed to the Chief of Police and signed by Liquori which read as follows: 'It is requested that I be allowed to resign my position with the Oakland Police Department effective 11 June 1968, for personal reasons.'

Brown testified that he had been advised at about 10 a.m. on June 11 that the district attorney had declined to issue a complaint. He stated that although the charges against Liquori had been dismissed, he read the statements concerning the charges to Liquori in order to 'lay out the entire case' before Liquori. Brown also testified that he neither requested nor suggested Liquori's resignation, and that he had not been particularly interested in obtaining the resignation.

Adverting to the trial court's determination, it is clear from the recitals of the judgment that it proceeded on the basis that it was reviewing the evidence adduced before the Board to determine whether there was substantial evidence to support the Board's findings in the light of the whole record. Such was the proper scope of review of the findings of the Board, a quasi-judicial local agency or board. (Le Strange v. City of Berkeley, 210 Cal.App.2d 313, 321, 26 Cal.Rptr. 550; Upton v. Gray, 269 Cal.App.2d 352, 359, 74 Cal.Rptr. 783; In re Redevelopment Plan for Bunker Hill, 61 Cal.2d 21, 39, 37 Cal.Rptr. 74, 389 P.2d 538; Code Civ.Proc. § 1094.5, subd. (c).) Our power, in such case, is likewise governed by the 'substantial evidence' rule. (Le Strange v. City of Berkeley, supra, 210 Cal.App.2d at p. 321, 26 Cal.Rptr. 550; Endo v. State Board of Equalization, 143 Cal.App.2d 395, 399, 300 P.2d 366.) Both parties argue the applicability of the substantial evidence rule. Plaintiff, in addition, argues that the Board had no jurisdiction in a case of this nature. If this argument has merit we need not consider the applicability of the substantial evidence rule.

The question of jurisdiction has been raised by plaintiff for the first time on this appeal. In the court below plaintiff did not contend that the Board did not have jurisdiction, nor did he assert that the appeal to the Board was not timely. In fact, he acknowledged the Board's jurisdiction but asserted essentially that its decision was not based on substantial evidence. Subject matter jurisdiction may not, however, be conferred by consent, waiver or estoppel. (Summers v. Superior Court, 53 Cal.2d 295, 298, 1 Cal.Rptr. 324, 347 P.2d 668; Johnson v. Banducci, 212 Cal.App.2d 254, 259, 27 Cal.Rptr. 764.) Accordingly, an objection to subject matter jurisdiction may be raised for the first time on appeal since it is never deemed waived. (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union, 69 Cal.2d 713, 721, 73 Cal.Rptr. 213, 447 P.2d 325; Emery v. Pacific Employers Ins. Co., 8 Cal.2d 663, 665--666, 67 P.2d 1046.)

The basis of plaintiff's contention that the Board is without jurisdiction to consider Liquori's attempt to rescind his resignation is based on the assertion that section 82 of the Oakland City Charter has no provision for unlawful discharges. Before considering the provisions of section 82 we observe that section 81 of the Oakland City Charter provides, in pertinent part, that 'All persons holding positions in the Classified Civil Service shall be subject to suspension, fine and also to removal from office or employment, by the City Manager, * * *' ³ Section 82 provides that 'Any person suspended, fined or discharged * * * may within five days from the making by the City Manager * * *, of the order suspending him, * * * appeal therefrom to the Civil Service Board which shall fully hear and determine the matter. * * *'

In the present case, although plaintiff, as City Manager, did not actually discharge Liquori in the usual meaning of the word 'discharge,' we observe that a coerced resignation is tantamount to a discharge. (See Moreno v. Cairns, 20 Cal.2d 531, 534--535, 127 P.2d 914; City of Los Angeles v. Superior Court, 246 Cal.App.2d 73, 79, 54 Cal.Rptr. 442; Varela v. Board of Police Commissioners, 107 Cal.App.2d 816, 818, 238 P.2d 62; Temple v. Horrall, 92 Cal.App.2d 177, 179, 206 P.2d 909.) We also note that under the Oakland City Charter the power to hire and fire police employees reposes entirely in the City Manager. Accordingly, the authority to accept the resignation of such an employee also reposes in the City Manager. In this case it appears that Liquori's resignation was in fact accepted by plaintiff. ⁴ Under the circumstances, therefore, if Liquori's resignation was in fact coerced, the acceptance of such a resignation by plaintiff amounted to a discharge of Liquori. Under section 82, such a discharge was appealed to the Board and the Board had jurisdiction to determine whether or not the resignation was coerced.

Adverting to the 'substantial evidence' rule we first observe that in determining whether the evidence sustains the findings of the Board we too are limited to the record made before such Board. (Le Strange v. City of Berkeley, supra, 210 Cal.App.2d 313, 321, 26 Cal.Rptr. 550; Endo v. State Board of Equalization, supra, 143 Cal.App.2d 395, 399, 300 P.2d 366.) In making this determination our inquiry is whether upon viewing the evidence adduced before the Board in the light most favorable to Liquori and indulging in all reasonable inferences to support the Board's findings, there exists any evidence, contradicted or otherwise, which supports the Board's conclusion 'that there was an unlawful discharge due to a coerced resignation induced by improper conduct on the part of superior officers in the Police Department.' (See Clark v. Gibbons, 66 Cal.2d 399, 402, 58 Cal.Rptr. 125, 426 P.2d 525; Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784, 59 Cal.Rptr. 141, 427 P.2d 805.)

In Moreno, supra, it is stated that 'Whenever a person is severed from his employment by coercion the severance is effected not by his own will...