Neely v. California State Personnel Bd.

Citation47 Cal.Rptr. 64,237 Cal.App.2d 487
PartiesEdward C. NEELY, Plaintiff and Respondent, v. CALIFORNIA STATE PERSONNEL BOARD et al., Defendants and Appellants. Civ. 22565
Decision Date18 October 1965
CourtCalifornia Court of Appeals

Thomas C. Lynch, Atty. Gen., Leonard M. Sperry, Jr., Deputy Atty. Gen., San Francisco, for appellants.

Charles P. Scully, Lowell A. Airola, San Francisco, for respondent.

AGEE, Justice.

The State Personnel Board appeals from the superior court judgment setting aside the punitive action taken by the Board against respondent Edward C. Neely, a civil service employee, for certain conduct discussed below. The main issue is whether the findings and decision of the Board are supported by substantial evidence.

The Board is created and established by article XXIV of the California Constitution and derives its jurisdiction and adjudicating power therefrom. (Boren v. State Personnel Board, 37 Cal.2d 634, 638, 234 P.2d 981.) Its factual determinations 'are not subject to re-examination in a trial de novo but are to be upheld by a reviewing court if they are supported by substantial evidence.' (Shepherd v. State Personnel Board, 48 Cal.2d 41, 46, 307 P.2d 4, 7.)

The rule which applies to agencies created solely be statute, such as the Board of Medical Examiners (see Moran v. State Board of Medical Examiners, 32 Cal.2d 301, 196 P.2d 20), the Real Estate Commissioner (see Sipper v. Urban, 22 Cal.2d 138, 137 P.2d 425), and the Insurance Commissioner (see Hohreiter v. Garrison, 81 Cal.App.2d 384, 184 P.2d 323), is not applicable to so-called 'constitutional agencies' such as the appellant herein and the Board of Equalization. (See Shepherd, supra, and Covert v. State Board of Equalization, 29 Cal.2d 125, 131, 173 P.2d 545.)

In the instant case the function of the superior court is that of a reviewing court, not a trial court. We also must regard the evidence in the light most favorable to the findings of fact made by the Board, not those made by the superior court, and all legitimate and reasonable inferences must be drawn in their support. (Lorimore v. State Personnel Board, 232 A.C.A. 247, 250, 42 Cal.Rptr. 640; Marcucci v. Board of Equalization, 138 Cal.App.2d 605, 608, 292 P.2d 264.)

Contrary to the above authorities, respondent urges that we test whether the findings of the Board are supported by substantial evidence in the light of the record as a whole, citing Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The court in that case stated: 'The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.' (Italics added.)

This is not the California rule. The same contention and the same cited case (Universal Camera) were discussed and rejected in Martin v. Alcoholic Bev., etc., Appeals Bd., 52 Cal.2d 238, 246-247, 340 P.2d 1, and Whoriskey v. City, etc., of San Francisco, 213 Cal.App.2d 400, 408-409, 28 Cal.Rptr. 833.

Facts. Neely is a referee of the Industrial Accident Commission (I.A.C.) and J. William Beard is its chairman and Meely's appointing power. Prior to April 17, 1963, Neely was acting as presiding referee. This position was not a separate civil service classification and did not carry any additional pay. Its duties included the assigning of case hearings to other referees.

On April 17, 1963 Beard reassigned Neely to normal referee duties and appointed another referee as presiding referee, effective the following day. On July 2, 1963 Beard served written notice of dismissal upon Neely. Following Neely's answer and request, the matter was heard on August 19 and 20, 1963 before a hearing officer of the State Personnel Board.

On September 13, 1963 the Board found the following causes for disciplinary action to exist: (1) discourteous treatment of attorney Garoni on June 17, 1963; (2) inefficiency on April 16, 1963 in reassigning case hearings as per instructions of Beard; and (3) insubordination and discourteous treatment of Beard on April 17, 1963.

The Board modified the punitive action of dismissal to suspension, from July 2 to September 23, 1963, and a one-step salary reduction, i. e., from $1,351 to $1,286 per month, effective September 23, 1963.

In the ensuing mandamus action filed by Neely, the superior court reversed as to causes (1) and (2) and that portion of (3) relating to insubordination. The matter was ordered remanded to the Board for further hearing and reconsideration of penalty with respect to discourteous treatment of Beard on Appril 17, 1963.

Garoni incident. On June 17, 1963 Neely presided at a hearing in which Garoni appeared as the attorney for the applicant. The Board found that during the course of the hearing Garoni 'became angry, argumentative and disrespectful' toward Neely. The latter thereupon adjourned the hearing. The Board found that he then approached Garoni, who was at the counsel table, with clenched fists held in fighting position and said, "I ought to punch you in the nose." However, Neely did not strike or attempt to strike Garoni.

The Board held that Neely's 'said conduct in threatening Garoni constitutes discourteous treatment of the public within the meaning of subdivision (m) of Government Code Section 19572.' This provides that one of the causes for discipline of an employee is 'Discourteous treatment of the public or other employees.'

A number of witnesses testified to the above described conduct and there is no question that the Board's finding is supported by substantial evidence.

However, Neely's real contention is that an attorney for an applicant is not a member of the 'public' within the meaning of the statute. We think it clear that, as used therein, the word 'public' includes everyone with whom a civil service employee comes in contact by reason of his employment. Certainly those persons who have an interest in and are rightfully president in a hearing room at a hearing presided over by a state referee would be included. We hold that Garoni was.

The Board has so interpreted the statute and we think correctly. 'The administrative interpretation of the statute will be accorded respect by the courts and will be followed if not clearly erroneous.' (Askew v. Parker, 151 Cal.App.2d 759, 763, 312 P.2d 342, 345; Barrett v. Cal. Unemp. Ins.Appeals Bd., 190 Cal.App.2d 854, 860, 12 Cal.Rptr. 356; Cohon v. Dept. of Alcoholic Bev. Control, 218 Cal.App.2d 332, 339, 32 Cal.Rptr. 723.)

Inefficiency. On April 16, 1963 Beard orally instructed Neely to reassign all of the cases which had been scheduled for hearing before referee Sheehan so that Sheehan might be permitted to work with Panel One of the I.A.C., starting two days later. Neely demurred, observing that hearings were set for the referees approximately six weeks ahead and stating 'it is impossible to do it.' Beard asked Neely what he would do if Sheehan suddenly became ill and Neely replied that he would have to reassign his cases. Whereupon, Beard instructed Neely to follow the same procedure he would follow in the event such illness occurred.

About one hour later Neely sent Beard a memorandum reiterating the objections which he had made orally and concluding, 'Will you please advise me what disposition is to be made of cases already assigned to Referee Sheehan, particularly those which have been continued for further proceedings?'

Neely testified that before he wrote the memorandum, he had 'already advised the calendar clerk that he [Sheehan] wouldn't be available and I had to make other arrangements as far as his assignments was concerned.' He further testified that he did in fact proceed to make the necessary assignments.

The Board found that Neely's memorandum to Beard 'demonstrates inefficiency on the part of appellant [Neely] within the meaning of subdivision (c) of Government Code Section 19572. Appellant with almost ten years' experience as a Referee, with three of those years as Presiding Referee, implies in his memorandum that he is unable, without help from the Chairman [Beard], to perform the relatively simple task of reassigning or continuing Sheehan's cases. * * * Appellant's unnecessary request for help from the Chairman clearly constitutes inefficiency.'

In our opinion, this finding is supported by substantial evidence.

Insubordination and discourtesy. On April 17, 1963, the day after...

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