Mennig v. City Council

• Decision Date: 16 November 1978
• Citation: 150 Cal.Rptr. 207,86 Cal.App.3d 341
• Court: California Court of Appeals Court of Appeals
• Parties: Jan C. MENNIG, Plaintiff and Appellant, v. CITY COUNCIL OF the CITY OF CULVER CITY and Civil Service Commission of the City of Culver City, Defendants and Appellants. Civ. 50077.

Page 207

150 Cal.Rptr. 207

86 Cal.App.3d 341

Jan C. MENNIG, Plaintiff and Appellant, v. CITY COUNCIL OF the CITY OF CULVER CITY and Civil Service Commission of the City of Culver City, Defendants and Appellants.

Civ. 50077.

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

Nov. 16, 1978.

Weissburg & Aronson, Inc., Robert A. Klein, and Andrew Lichtman, Los Angeles, for plaintiff and appellant.

Robert D. Ogle, City Atty., Burke, Williams & Sorensen, and Mark C. Allen, Jr., Los Angeles, for defendants and appellants.

THOMPSON, Associate Justice.

Pursuant to Code of Civil Procedure section 1094.5, Jan C. Mennig sought judicial review of action of the City Council of Culver City which discharged him from his tenured civil service position as chief of police of that city. The trial court issued its writ of mandate directing that the action of the city council be set aside but affirming preceding action of the civil service commission which had ordered that Mennig be suspended for 60 days without pay and demoted to the position of assistant chief of police. The court determined, also, that Mennig was entitled to be compensated as chief of police for the period from September 16, 1974, when he was dismissed from that position by the council, until October 23, 1975, when the civil service commission acting in response to charges filed by the city issued its decision, findings, and recommendations. The trial court denied Mennig's prayer for attorneys' fees in connection with the proceedings.

Both Mennig and the city have appealed from the trial court's judgment. The city contends: (1) the trial court erred in concluding that the council could not validly impose the penalty of dismissal from the civil service; (2) the action of the trial court violates separation of powers by creating a new civil service position of assistant chief of police; and (3) Mennig is not entitled to be compensated as chief of police for the period from September 16, 1974 until October 23, 1975. Mennig contends: (1) the trial court erred in holding that his demotion was justified because the disciplinary procedure employed violated civil service rules and his conduct did not justify discipline; and (2) the court erred, also, in not awarding him attorneys' fees.

We conclude: (1) by reason of the applicable civil service rules and the peculiar factual involvement of the members of the city council in the situation, due process requires that the determination of penalty by the civil service commission be accepted and that of the council held void; (2) the record supports the conclusion that Mennig has been demoted to an existing position and that a new civil service position has not been created by the trial court's action; (3) because he was not afforded an opportunity to respond to charges before he was dismissed, Mennig was properly granted his right to compensation from September 16, 1974 until October 23, 1975; (4) the record supports the finding that the disciplinary proceedings followed civil service rules; (5) the record also supports the finding that Mennig was guilty of conduct justifying the discipline imposed; and (6) the record does not compel the conclusion that Mennig is entitled to attorneys' fees. Accordingly, we affirm the judgment of the trial court.

Facts

In Culver City, the office of chief of police is a civil service position from which an incumbent can be removed only for "cause." Civil service employees of the city may be disciplined, reduced in rank, or terminated only as provided in the municipality's civil service rules. Those rules define "appointing authority" as: "the City Council, the Chief Administrative Officer, the department head, and/or any other body of officials or individual official having, under the law, the power to make the appointment to the position to be filled." Section 2 of rule XIV states: "The appointing authority . . . has the authority to take disciplinary action, subject to approval by the Chief Administrative Officer or his delegate." The city council is the "appointing authority" for the office of police chief and other department heads, as well as for the offices of chief administrative officer and city attorney. Discipline may consist of dismissal, demotion, suspension, or other lesser penalties.

Written notice of discipline must be given to the employee. Section 7 of rule XIV provides that any employee subject to disciplinary action shall have the right to appeal to the Culver City Civil Service Commission. Section 13 of that rule provides that after a hearing "(w)ritten findings and recommendations of the Commission shall be rendered . . . . (P) The recommendations of the Commission shall be binding, except in the case where the appointing authority is the City Council, in which case the recommendations may be modified or overruled by the unanimous vote of the City Council. . . ."

A long-time police officer, Mennig was appointed assistant chief of police of Culver City in 1965. He was appointed chief of police on January 1, 1970. A running dispute between Mennig and the city council developed over the administration of the Culver City Police Department. A series of incidents led Mennig to believe that the city council was improperly and unfairly interfering with the administration of the police department and that certain of the councilmen were conducting a vendetta against him. One of the councilmen, a deputy district attorney, believed that Mennig had sought to have the councilman transferred in his regular job. Another city councilman, before election to the council, had been a subordinate of Mennig who had engaged in a continuing disagreement with him and who was an unsuccessful candidate for the job of chief of police when Mennig was appointed to it. Most of the councilmen believed that Mennig attempted to exert political pressure upon them by packing the spectators at council meetings and by statements to the press.

In 1974, the intensity of the conflict between Mennig and the city council escalated. Without informing Mennig, the councilman, unsuccessful candidate for Mennig's job, conducted a personal field investigation of Mennig's teaching and military reserve activities in an apparent effort to develop a record that would establish that Mennig was neglecting his duty. The council forbade Mennig to use intra-departmental polygraph examinations without its consent. It prepared a detailed "questionnaire" to be answered by Mennig which was in essence an interrogation into his administration.

On August 22, 1974, purporting to act pursuant to the civil service rules, Mennig filed a "grievance" with the city council and chief administrative officer. The "grievance" states:

"As your Police Chief, I am appalled and disappointed at information coming into my possession relating to the actions of individual Councilmembers. It is unknown whether they were acting at Council direction or not. Further, I am in possession of information relating to the behavior of our Councilmembers which could, when made public, bring great discredit upon them and the Council. As your Chief, I am responsible for the investigation of alleged offenses reported to me, and, accordingly, must be permitted freedom to conduct investigations without attempts at cover-up or to cloud real issues.

"Therefore, pursuant to the appropriate Civil Service Rules, I am hereby filing a grievance relating to:

1. Violation of my privacy and pursuit of personal freedoms established by law;

2. Interference with my official performance of duty;

3. Attempts to damage the reputation of the Police Department and the Office of the Chief of Police;

4. Failure of the Council to identify information in its possession relating to covert efforts on the part of individual Councilmen to damage my reputation, the reputation of my office, and the reputation of the Police Department.

"It is with great regret that I am forced to take this drastic action, as some Councilmembers are not involved in this terrible activity, but must ultimately be informed and involved to clear the air and restore public faith and confidence."

Four days later, the city council attempted to suspend Mennig but did not apprise him of the basis for the suspension. The council's action was subsequently overturned in a separate mandate action pursued by Mennig.

On September 16, 1974, the city council dismissed Mennig as chief of police. The "Notice of Discharge" delivered to Mennig by the chief administrative officer in connection with Mennig's dismissal contains 12 basic charges subdivided into 35 separate specifications.

Charges One and Eight relate to the "grievance" filed by Mennig on August 22. Specifications supporting the charges assert the filing of the grievance document, that the grievance was not filed in good faith, that Mennig caused its contents to be made public, and that Menning, although requested to do so, refused to state specifically the basis of the allegations in the grievance or to attend a meeting called by the city council to consider the document.

Charges Two, Three, Four, Five and Six all allege a failure to Mennig to abide by the abortive suspension imposed by the council on August 26.

Charge Seven asserts that from December 28, 1970 on, Mennig engaged in outside teaching activity during duty hours in violation of a city council request and directive that he not do so.

Charge Nine alleges unauthorized use by Mennig of city owned vehicles and of telephone and secretarial services.

Charge Ten asserts that from January 28, 1972 onward, Mennig took excessive leave to engage in military reserve activity in violation of city council directions.

Charge Eleven claims that in the period after his suspension Mennig engaged in improper conduct in an effort to summon political, financial, and internal support in his dispute with the council.

Charge Twelve is a laundry list of asserted deficiencies of Mennig in the...