Lake v. Civil Service Commission

• Court: California Court of Appeals
• Writing for the Court: GEO. A. BROWN; GARGANO
• Citation: Lake v. Civil Service Commission, 120 Cal.Rptr. 452, 47 Cal.App.3d 224 (Cal. App. 1975)
• Decision Date: 01 April 1975
• Parties: Donald LAKE, Plaintiff and Respondent, v. CIVIL SERVICE COMMISSION OF the FIRE DEPARTMENT OF the CITY OF BAKERSFIELD et al., Defendants and Appellants. Civ. 2075.

Page 452

120 Cal.Rptr. 452

47 Cal.App.3d 224

Donald LAKE, Plaintiff and Respondent, v. CIVIL SERVICE COMMISSION OF the FIRE DEPARTMENT OF the CITY OF BAKERSFIELD et al., Defendants and Appellants.

Civ. 2075.

Court of Appeal, Fifth District, California.

April 1, 1975.

[47 Cal.App.3d 226] Kenneth W. Hoagland, City Atty., City of Bakersfield, Bakersfield, for defendants and appellants.

Chain, Younger, Jameson, Lemucchi & Busacca and Timothy J. Lemucchi, Bakersfield, for plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Donald Lake was employed as a fireman with the City of Bakersfield. On January 2, 1972, the city filed charges before the Civil Service Commission of the Fire Department charging Lake with (1) a violation of city charter section (202) 20 and of article 17, section 49 of the rules and regulations of the fire department, that is, engaging in other employment at the time Lake was employed as a fireman; (2) a violation of article 17, sections 7 and 74, that is, acting in a manner prejudicial to the good reputation of the fire department by stealing property belonging to others. On March 17, 1972, after a full hearing before the trial board of the Civil Service Commission, at which Lake was represented by counsel, he was found guilty of both charges by the trial board, and the board ordered that he be discharged from service.

Lake sought a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5 to review the order of the trial board and to compel his reinstatement. On March 19, 1973, the superior court filed a memorandum decision, ¹ following which it entered a 'Judgment Granting Peremptory Writ of Mandamus' commanding the trial board to set aside a decision and to reconsider its action in light of the court's written memorandum decision.

The Board of Civil Service Commissioners of the Fire Department of the City of Bakersfield has appealed.

While the appeal from the adverse judgment was pending, the California Supreme Court held in Strumsky v. San Diego County Employees Retirement Assn. (filed March 25, 1974), 11 Cal.3d 28, 44--45, 112 Cal.Rptr. 805, 816, 520 P.2d 29, 40, that '. . . in all such cases (review of local agency decisions), if the order or decision of the agency substantially affects a fundamental vested right, the court, in determining under section 1094.5 of the Code of Civil Procedure whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence, and find an abuse of discretion if the findings are not supported by the weight of the evidence.'

It is well established that public employment which provides for discharge only for 'cause' shown is a fundamental vested right to which the standard of review specified by Strumsky is applicable. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242; Valenzuela v. Board of Civil Service Comrs. (1974) 40 Cal.App.3d 557, 560--565, 115 Cal.Rptr. 103; Rigsby v. Civil Service Com. (1974) 39 Cal.App.3d 696, 700, 115 Cal.Rptr. 490.)

In a subsequent modification of its opinion in Strumsky, the Supreme Court specified that the announced rule was applicable 'to all pending and future proceedings in trial courts and all pending and future appeals.' (11 Cal.3d at p. 312b, 112 Cal.Rptr. at p. 816, 520 P.2d at p. 40.)

The parties stipulated at the oral argument that the trial court in the cause at bench followed the substantial evidence rule in reviewing the evidence. Since this was a pending appeal, we are compelled to reverse the judgment in order to enable the trial court to reconsider the matter by exercising the standard of review set forth in Strumsky.

For the guidance of the trial court on remand, we deem it appropriate to make a few observations.

The trial is not de novo in the superior court, but review should be made on the record in the administrative hearing. (Hadley v. City of Ontario (1974) 43 Cal.App.3d 121, 127, 117 Cal.Rptr. 513.)

The trial court's function is limited to applying the Strumsky test to the issue of Lake's guilt or innocence of the charges. The discretion of the trial court in fixing the penalty has not been changed by Strumsky. The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. (Rigsby v. Civil Service Com., Supra, 39 Cal.App.3d at p. 702, 115 Cal.Rptr. 490; Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966, 103 Cal.Rptr. 455; Wingfield v. Fielder (1972) 29 Cal.App.3d 209, 221, 105 Cal.Rptr. 619.) In reviewing the penalty imposed by an administrative body, which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court's own evaluation of the circumstances the penalty appears to be too harsh. (Collins v. Board of Medical Examiners (1972) 29 Cal.App.3d 439, 446, 105 Cal.Rptr. 634; Cadilla v. Board of Medical Examiners, Supra, 26 Cal.App.3d at p. 966, 103 Cal.Rptr. 455.) Such interference, in the light of the foregoing authorities, will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency. (Cadilla v. Board of Medical Examiners, Supra.)

One of the tests suggested for determining whether the administrative body acted within the area of its discretion is whether reasonable minds may differ as to the propriety of the penalty imposed. The fact that reasonable minds may differ will fortify the conclusion that there was no abuse of discretion. (Marino v. City of Los Angeles (1973) 34 Cal.App.3d 461, 464, 110 Cal.Rptr. 45; Cadilla v. Board of Medical Examiners, Supra, 26 Cal.App.3d at p. 968, 103 Cal.Rptr. 455; see also ...