Lucchesi v. City of San Jose

• Citation: 163 Cal.Rptr. 700,104 Cal.App.3d 323
• Parties: John LUCCHESI, Steven Maciel, and all persons similarly situated, Plaintiffs and Appellants, v. The CITY OF SAN JOSE et al., Defendants and Appellants. Civ. 44096.
• Decision Date: 09 April 1980
• Court: California Court of Appeals

Page 700

163 Cal.Rptr. 700

104 Cal.App.3d 323

John LUCCHESI, Steven Maciel, and all persons similarly situated, Plaintiffs and Appellants, v. The CITY OF SAN JOSE et al., Defendants and Appellants.

Civ. 44096.

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

April 9, 1980.

Jacqueline W. Steward, Wylie, Blunt & McBride, San Jose, for plaintiffs and appellants.

Robert J. Logan, City Atty., Willie Lott, Jr., Deputy City Atty., City of San Jose, San Jose, for defendants and appellants.

TAYLOR, Presiding Justice.

The City of San Jose (City) appeals ¹ from a judgment granting a writ of prohibition and preliminary injunction against the implementation of San Jose Municipal Code (Code) section 2005.5(d), as amended by Ordinance 18272 (Ordinance). Lucchesi, Maciel, et al. (collectively Lucchesi), cross-appeal from the portion of the judgment denying them attorney fees. The City contends that Code section 2005.5(d) does not conflict with section 1100 of the San Jose City Charter (Charter) and that the court erred in concluding that the Ordinance was arbitrary and capricious. ² The only question on the cross-appeal is whether attorney fees should have been awarded and if so, on what theory. For the reasons set forth below, we have concluded that the judgment must be affirmed, except as to the attorney fees.

The court found the pertinent facts as follows: Lucchesi were current applicants for the position of City firefighter. The City is a chartered municipal corporation existing under the laws of the State of California. Charter section 1100 provides: "All appointments and promotions to positions in the Classified Services shall be made on the basis of merit and fitness, demonstrated by examination and other evidence of competence, in accordance with Civil Service Rules adopted in the manner provided in this Charter." (Emphasis added.) Effective October 19, 1976, the City Council adopted the Ordinance, which read as follows: "Qualified permanent employees may take an open competitive examination on a promotional basis but must attain a final examination grade of at least 80% before Veterans' preference to qualify for promotional eligible list. If the employee scores less than 80% but is at least 70%, his name will be placed on the open eligible list." (Emphasis added.)

In November 1976, the City announced an open competition examination for openings for entry level firefighter with approximately 44 positions to be filled in the next two years. All applicants were required to file an application, meet the minimum qualifications for the position, pass a written and physical agility test and then take an oral board examination. Thereafter, the applicants are ranked on the eligibility lists. Lucchesi, who were not City employees, applied for the firefighter positions in November 1976, met the minimum qualifications for the position, successfully completed the written and physical agility tests, and were awaiting the oral board examination. Also among the applicants for the same firefighter positions were a number of City employees. The City intended to apply the Ordinance to establish the eligibility lists for the firefighter positions as follows: City employees are allowed to take the open competitive firefighter examination on a promotional basis. All City employees who achieved a score of 80 percent, or higher, on the examination would be placed on the "promotional eligible" list. All non-City employees who had scores higher than 70 percent and City employees who had scores between 70-80 percent, would be placed on the "open competitive eligible" list. As positions became available, they were to be filled by first exhausting the "promotional list" and then utilizing the "open competitive" list.

The court concluded that the Ordinance was in conflict with the merit provision of the City Charter and entered its judgment.

The City first argues that the Ordinance does not conflict with section 1100 of the Charter as it merely attempted to define "other evidence of competence." The City's Charter contains "home rule" provisions (Cal.Const., art. XI, § 5; Bishop v. City of San Jose, 1 Cal.3d 56, 60, 81 Cal.Rptr. 465, 460 P.2d 137). Thus, the City has complete power over "municipal affairs" subject only to clear and explicit limitations and restrictions contained in its own Charter.

Employment, promotion and management of City employees is a municipal affair to be controlled by the provisions of a city charter and by the administrative discretion of city officials (Cal.Const., art. XI, § 5, subd. (b); Livingstone v. MacGillivray, 1 Cal.2d 546, 36 P.2d 622; O'Sullivan v. City & County of S.F., 145 Cal.App.2d 415, 302 P.2d 688). Article XI, section 5 of the state Constitution vests in a chartered city the plenary power to provide in its charter for the method of appointment and qualifications of its employees.

The Ordinance here in issue suffers from two legal impediments. Ordinances passed pursuant to the plenary authority of article XI, section 5 of the state Constitution are invalid if they conflict with a city's charter (South Pasadena v. Terminal Ry. Co., 109 Cal. 315, 41 P. 1093; Simons v. City of Los Angeles, 72 Cal.App.3d 924, 935, 140 Cal.Rptr. 484; Brown v. City of Berkeley, 57 Cal.App.3d 223, 230, 129 Cal.Rptr. 1; McDonald's Systems of California, Inc. v. Board of Permit Appeals, 44 Cal.App.3d 525, 536, 119 Cal.Rptr. 26; Acton v. Henderson, 150 Cal.App.2d 1, 13, 309 P.2d 481; Marculescu v. City Planning Com., 7 Cal.App.2d 371, 373, 46 P.2d 308). An ordinance can no more change or limit the effect of a charter than a statute can modify or supersede a provision of the state Constitution (Simons, Brown, McDonald's Systems, Marculescu, all supra).

Pursuant to constitutional authority, article XI of the City Charter entitled "Civil Service System" provides a comprehensive general plan for the organization and administration of the City's personnel system. As indicated above, section 1100 of that article provides, in relevant part, that all appointments to positions in the "classified service" must be made on the basis of "merit and fitness, demonstrated by examination and other evidence of competence, in accordance with Civil Service rules adopted in the manner provided in this Charter" (emphasis added). The City contends that the reference to "other evidence of competence" allows the implementation of the Ordinance without contravening the merit principle of civil service employment. We cannot agree.

For its construction of "other evidence of competence" the City relies on Sojka v. City of Pasadena, 15 Cal.App.3d 965, 93 Cal.Rptr. 548, and Government Code section 18951. ³ In Sojka, the court affirmed the city's appointment of the fifth place applicant in violation of a rule requiring that the position was to be filled by the persons who were first, second or third on the list. However, the court carefully restricted its holding and the ensuing "harsh result" to the particular facts, i. e., a finding that the position was an assignment or transfer and not a promotion and the failure of the plaintiffs to prove that the rule of three applied to the particular position. The second paragraph of Government Code section 18951 has never been litigated. In any event, by its terms, the provision applies only to open non-promotional examinations and is not apposite here.

In accordance with article XI of its Charter, the City and its officials are required to adopt rules for employee selection that assure appointments and promotions are made on the basis of merit and fitness. Although merit and fitness need not be demonstrated exclusively by examination, any other method used must bear some rational relation to these qualities. As the court below noted in its well-reasoned interim order, the Ordinance takes into account only the status of employment rather than performance. No consideration is given to a City employee's performance record, attendance record, quality of work, or other substantive factors, in order to be placed on the preferred "promotional eligible" list. Thus, a City employee with an extensive disciplinary record, poor work record, but a written test score of 80 percent or better, would be placed on the promotion eligible list and offered an available firefighter position before a non-City employee who scores 100 percent and who is on the "open competitive" list."

Further, in order to be on the preferred "promotional" list, the City employee's prior employment history with the City does not have to include experience related to the position sought. City employment, in and of itself, is not evidence of competence. No evidence to the contrary was introduced by the City. For example, a City employee with no experience in a field related to the position sought, is not more competent than a non-City employee with 25 years of experience in a related field. Experience as a secretary, gardener or custodian within the City for even a considerable period of time is not more indicative of competence as a firefighter with the City than actual experience as a firefighter in another jurisdiction.

The City next argues that the Ordinance was enacted to provide permanent City employees with greater opportunities for promotion and career development. No doubt, this is a laudable objective. However, it must be achieved by reasonable means.

If a rule providing credits for efficiency and seniority is reasonable and does not discriminate unreasonably between qualified applicants, the discretion to implement that rule will not be interfered with unless a clear abuse of discretion is shown or there has been arbitrary, fraudulent or capricious conduct (Terry v. Civil Service Commission, 108 Cal.App.2d 861, 240 P.2d 691; Almassy v. L. A. County Civil Service Com., 34 Cal.2d 387, 210 P.2d 503; California Assn. of Professional Employees v. County of Los Angeles, 74 Cal.App.3d 38, 141 Cal.Rptr. 290).

Here, by...