Mazzola v. City and County of San Francisco

• Decision Date: 17 November 1980
• Citation: 112 Cal.App.3d 141,169 Cal.Rptr. 127
• Court: California Court of Appeals Court of Appeals
• Parties: , 105 L.R.R.M. (BNA) 3360 Joseph P. MAZZOLA, Plaintiff and Appellant, v. The CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. Civ. 45054.

Page 127

169 Cal.Rptr. 127

112 Cal.App.3d 141, 105 L.R.R.M. (BNA) 3360

Joseph P. MAZZOLA, Plaintiff and Appellant, v. The CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

Civ. 45054.

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

Nov. 17, 1980.

Rehearing Denied December 17, 1980.

Hearing Denied Jan. 21, 1981.

Lewis, Rouda & Lewis, Marvin E. Lewis, Lawrence James Less, San Francisco, for plaintiff and appellant.

George Agnost, City Atty., John A. Etchevers, Deputy City Atty., San Francisco, for defendants and respondents.

MILLER, Associate Justice.

By resolution of the Board of Supervisors for the City and County of San Francisco, plaintiff and appellant Joseph P. Mazzola (hereinafter "Mazzola"), was removed from the office of airports commissioner of the City and County of San Francisco on September 22, 1976. Thereafter, the superior court denied Mazzola's petition for a peremptory writ of administrative mandamus to set aside the board's decision and restore to him all the rights of an airports commissioner. Mazzola appeals from the superior court judgment.

At the board of supervisors hearing, which was described as neither a proceeding under Civil Procedure nor the California Administrative Code but under the general common law rules applying to the operation of administrative agencies, evidence revealed that Mazzola was appointed to the office of airports commissioner on September 1, 1970 and served continuously in that position until September 1, 1976. Concurrently with his term of service as commissioner, Mazzola occupied the position of Business Manager and Financial Secretary-Treasurer of Local 38 of the Plumbers' Union in San Francisco. He had been a business official of Local 38 for approximately 23 years at the time of the hearing before the board of supervisors.

On or about March 31, 1976, seventeen craftwork unions, whose members included employees of the City and County of San Francisco, engaged in a strike against the city and county. ¹ The strike continued until May 8, 1976. Local 38 was among the striking unions.

It is undisputed that Mazzola, as business manager of Local 38, recommended that members of his union go on strike. Thereafter, members of the union unanimously voted to adopt the recommendation. The Plumbers' Union joined with other unions in the general strike and worked in conjunction with a strategy strike committee. Mazzola, as head of his union, was a representative on the strategy strike committee.

Prior to the formation of an emergency committee, William Dwyer, San Francisco Airport Director, met with Mazzola, Jack Crowley (the Executive Director of the San Francisco Labor Council), and representatives from the firemen's union to discuss fire protection at the airport. Thereafter, Mazzola recommended to the strike strategy committee that fire services be maintained at the airport.

Subsequently, the strike emergency committee was established. This committee was set up in order to give dispensations so that union members could cross picket lines and perform necessary duties in life-threatening situations. A minimum of three committee members was required to authorize emergency work during the strike. Authorization for emergency work by a single union official was considered a strike-breaking activity.

During the strike, certain public services were interrupted. Public employees were picketing city facilities, the municipal railway was not operating, sewer repair and paving ceased being performed by city employees, trash accumulated throughout the city, water pressure was decreased, and damage was caused by breaks in the water mains. At the airport, the heating system was inoperative due to the lack of hot water and toilets were clogged. During a meeting of the Airports Commission, which Mazzola did not attend, a resolution was passed to request a special $200,000 appropriation to cover the extra cost of having police work overtime at the airport. However, the airport actually made money during the strike. Due to the savings in the payroll, there was a budget surplus.

There was testimony that the Airports Commission deals only with policy matters; negotiations in the setting of wage standards is handled by the director of the airport and his staff. At no point did the airport's director come to the commission with any problems concerning the strike, nor did any matter on the Airports Commission agenda have anything to do with the strike. Several commissioners stated that there was never any official business that came before the commission on which Mazzola had to vote that could in any way benefit Mazzola or his union. Moreover, during the strike, Mazzola never attended an Airports Commission meeting, nor directly or indirectly concerned himself with the transaction of airport business in his official role of airports commissioner.

On three different occasions during the course of the strike, Mayor George Moscone called Mazzola concerning a broken water main which was causing loss of water pressure to residents and businesses as well as to hospitals. The mayor requested that Mazzola have someone repair the water main. Mazzola refused to do so. The mayor never called the strike emergency committee for assistance in this matter.

On September 1, 1976, George Moscone suspended Mazzola and filed charges against him on the ground of official misconduct pursuant to section 8.107 of the Charter of the City and County of San Francisco. The charges were based on the fact that 1) Mazzola held the positions of both airports commissioner and business manager of Local 38 of the Plumbers' Union; 2) from March 31, 1976 until May 8, 1976, Local 38, in concert with other unions, perpetrated a strike against the city and county; 3) as a result of this strike, services were disrupted and impaired, the city and county lost revenues it would otherwise have received, and citizens were deprived of needed public service; and 4) Mazzola encouraged, aided, and helped to further the initiation, perpetration, and continuance of said strike against the city and county contrary to its interests and the interests of the people of San Francisco. Although the mayor's charges were based solely on section 8.107 of the city charter, during final argument to the board of supervisors, the city attorney argued that violation of section 1126 of the Government Code constituted the official misconduct of Mazzola. Additionally, he asserted that Mazzola breached his duty as a trustee for the people of San Francisco.

The board of supervisors found Mazzola had committed acts constituting official misconduct and resolved to remove him from office.

On appeal, we first note that although Mazzola's appointed term to the Airports Commission expired on August 31, 1977, the instant case is not moot. By virtue of being found guilty of official misconduct, Mazzola can never run for office nor be appointed as an official of the City and County of San Francisco during his lifetime. This is a severe consequence that will forever stigmatize Mazzola and his family. Thus, if the judgment against Mazzola was erroneous, he is entitled to clear his name even though his appointment expired. "(A)ppellant should not be foreclosed of his right to remove this blot upon his record, if in fact he was wrongfully convicted, " (In re Lincoln (1929) 102 Cal.App. 733, 739, 283 P. 965.) Therefore, this appeal is proper even though its purpose may merely offer appellant a chance to clear his name. (People v. Chamness (1930) 109 Cal.App. Supp. 778, 781, 288 P. 20; see also, In re Katherine R. (1970) 6 Cal.App.3d 354, 357, 86 Cal.Rptr. 281.)

Secondly, we perceive the real issue in the instant appeal to be whether a city official who is also a leader of a public employees' union is guilty of official misconduct under the terms of the present San Francisco Charter when he recommends action and supports his union in a strike against the city.

Mazzola first contends the term "official misconduct" found in section 8.107 ² of the city charter is unconstitutionally vague so that he was effectively deprived of due process under the Fifth and Fourteenth Amendments. We disagree.

It is well settled that "(c)ivil as well as criminal statutes must be sufficiently clear as to give a fair warning of the conduct prohibited, and they must provide a standard or guide against which conduct can be uniformly judged by courts and administrative agencies. (Citations.)" (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 231, 82 Cal.Rptr. 175, 461 P.2d 375.) The applicable test is "(1) whether the regulation is sufficiently specific to provide fair warning of which conduct is prohibited and which permitted; and (2) whether there exists a relationship or nexus between the prohibited conduct and the employee's fitness to perform the duties required by the position." (California School Employees Assn. v. Foothill Community College Dist. (1975) 52 Cal.App.3d 150, 154, 124 Cal.Rptr. 830.)

The words "official misconduct," under attack here, are virtually the same words as "misconduct in office," the language relied on in article IV, section 18, subdivision (b) of the California Constitution which provides the basis for impeachment of state officers and judges of the state courts.

Black's Law Dictionary defines "official misconduct" as "(a)ny unlawful behavior by a public officer in relation to the duties of his office, willful in its character, including any willful or corrupt failure, refusal, or neglect of an officer to perform any duty enjoined on him by law." (Black's Law Dict. (Rev. 4th ed. 1968) p. 1236, col. 2.) The phrase includes any willful malfeasance, misfeasance, or nonfeasance in office. (Coffey v. Superior Court (1905) 147 Cal. 525, 529, 82 P. 75.)

"To warrant the removal of an officer, the misconduct, misfeasance, or malfeasance must have direct relation to and be connected with the performance of...