Nightingale v. State Personnel Board

• Decision Date: 12 July 1972
• Citation: 7 Cal.3d 507,498 P.2d 1006,102 Cal.Rptr. 758
• Court: California Supreme Court
• Parties: , 498 P.2d 1006 Pauline NIGHTINGALE, Plaintiff and Appellant, v. STATE PERSONNEL BOARD et al., Defendants and Respondents. L.A. 29961. In Bank

Page 758

102 Cal.Rptr. 758

7 Cal.3d 507, 498 P.2d 1006

Pauline NIGHTINGALE, Plaintiff and Appellant, v. STATE PERSONNEL BOARD et al., Defendants and Respondents.

L.A. 29961.

Supreme Court of California,

In Bank.

July 12, 1972.

Hochman, Salkin & DeRoy and George DeRoy, Los Angeles, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., and Lynn Henry Johnson, Asst. Atty. Gen., for defendants and respondents.

BURKE, Justice.

In the instant case, we are called upon to review the suspension of a state civil service employee pursuant to the provisions of Government Code section 19572. We have concluded that the applicable provisions of that section are constitutional, that the evidence supports the findings of the trial court and State Personnel Board that appellant's conduct was adequate cause for the discipline imposed, and that the judgment of the trial court denying mandate should be affirmed.

Appellant Nightingale is a referee with the Division of Industrial Accidents. She was first employed by the state in 1937, and became a referee in 1963. On January 27, 1969, appellant received a notice from the Division (see Gov.Code, § 19574) suspending her for 20 working days. The principal ground for suspension was failure of good behavior during duty hours of such a nature that it caused discredit to the Workmen's Compensation Appeals Board or the Division of Industrial Accidents (Gov.Code, § 19572, subd. (t)). Other charges in connection with the same matter were not sustained in subsequent proceedings.

Appellant sought and received a hearing before the State Personnel Board on May 1 and 21, 1969. The circumstances supporting the allegations against appellant, as related in the hearing officer's findings of fact and proposed decision, are as follows: A close friend of appellant, Mrs. Eve Shub, suffered an injury to her right arm while employed by the State Department of Employment. At appellant's suggestion, Mrs. Shub hired a lawyer and filed a claim with the Workmen's Compensation Appeals Board in Los Angeles. Because Mrs. Shub's left arm had been amputated some 20 years earlier, her claim involved the Subsequent Injuries Fund as well as her most recent employer.

On or about September 20, 1968, during duty hours, appellant privately contacted Robert Licker, assistant referee in charge of the section to which the Shub case had been assigned, and asked that the matter, then set for November 22, 1968, be advanced to October 23, 1968. Resolving evidentiary conflicts in appellant's favor, the hearing officer found that in contacting Licker appellant intended only to expedite her friend's case. The hearing officer specifically found that she did not intend to influence the selection of a particular referee to hear the matter.

Appellant also contacted Edward M. Belasco, Deputy Attorney General in charge of the attorneys representing the Subsequent Injuries Fund in Los Angeles. Appellant informed Belasco of the Shub case essentially giving Mrs. Shub's side of certain problems in the case. Appellant asked Belasco, who was a personal friend of more than 20 years and a former coworker, to handle the case himself and not assign it to one of his subordinates because he understood what had happened, had 'heart,' and would perhaps be more gentle on cross-examination of Mrs. Shub than one of the younger attorneys.

The hearing officer concluded that appellant had attempted to obtain special treatment both within the Workmen's Compensation Appeals Board and in the Attorney General's office. Although appellant did not attempt to obtain any award for Mrs. Shub to which she would not otherwise be entitled, and although her efforts apparently did not affect the fairness of the proceedings, nevertheless the hearing officer concluded that appellant's 'inside' activities could have a 'destructive' effect on the appearance of impartiality. Consequently, after resolving evidentiary conflicts in appellant's favor, the hearing officer found that although the evidence did not support the charges of inexcusable neglect or immorality, there was sufficient evidence of a failure of good behavior under subdivision (t) of section 19572. Considering appellant's fine record of over 30 years of state service and the absence of improper motive in seeking to obtain special treatment for Mrs. Shub, the hearing officer recommended a penalty of suspension for 20 days as appropriate for appellant's use of her inside position to attempt to expedite the hearing of a matter involving a personal friend.

The hearing officer's findings of fact and proposed decision were adopted by the State Personnel Board on June 5, 1969. The board denied a petition for rehearing on August 7, 1969.

On October 23, 1969, appellant filed a petition for writ of mandate in Los Angeles Superior Court. The court found, as a matter of fact and law, that all of the findings of the State Personnel Board were supported by substantial evidence. The court further concluded, as a matter of law, that (1) section 19572, subdivision (t), is not unconstitutionally vague; (2) the penalty of 20 days suspension was not an abuse of the board's discretion, and was supported by the board's findings; (3) appellant was afforded due process and a fair hearing at the administrative proceedings; and (4) appellant failed to show good cause for the issuance of an order compelling the Division to answer certain interrogatories; in any event the prior order regarding these interrogatories became final and is not subject to collateral review. Appellant now appeals from the adverse judgment.

1. The constitutionality of section 19572, subdivision (t).

Section 19572 provides in pertinent part that 'each of the following constitutes cause for discipline of an employee, or person whose name appears on any employment list: . . . (t) Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to his agency or his employment.'

Appellant contends that the language of subdivision (t) is unconstitutionally vague, relying upon the decisions of this court in Shepherd v. State Personnel Board, 48 Cal.2d 41, 307 P.2d 4, and Morrison v. State Board of Education, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375. Neither case, however, supports her position. In Shepherd, we were interpreting the predecessor to subdivision (t), then contained in subdivision (s), which provided that an employee could be disciplined for 'any other failure of good behavior or acts either during or outside of duty hours which are incompatible with or inimical to the public service.' We determined that subdivision (s) had to be construed in the light of a 1949 amendment to Government Code section 19251, which was aimed at providing 'for the designation of incompatible activities in a specified manner, namely, that each appointing power should prescribe the prohibited activities, subject to approval of the State Personnel Board.' (48 Cal.2d at p. 49, 307 P.2d at p. 9.) In Shepherd, we held that the purposes of section 19251 'would be defeated if, in the absence of compliance with that section by the appointing power, an employee could be punished under subdivision (s) of section 19572 for acts incompatible with and inimical to the public service.' (48 Cal.2d at p. 49, 307 P.2d at p. 9.) Consequently, the employee in Shepherd could not be dismissed for receiving payments from present or prospective meat plant owners, whose plants he was required to inspect, for drawing construction and remodeling plans which he prepared outside of duty hours, after adoption of the amendement in 1949.

Appellant's reliance on Shepherd to show the unconstitutionality of subdivision (t) is entirely misplaced, for Shepherd did no more than construe one statute in light of another. Appellant contends that the application of subdivision (t) to her violates section 19251, in that the Division failed to specify in advance that her conduct would constitute a 'failure of good behavior.' This contention must also fail. As the Court of Appeal held in Orlandi v. State Personnel Board, 263 Cal.App.2d 32, 40, 69 Cal.Rptr. 177, 182, 'it is apparent from a study of section 19251 that it applies only to activities which involve employment or work incompatible with state service and the acceptance of moneys therefor.' Nothing in the record indicates, nor does appellant contend, that she engaged in such activities.

Appellant's argument under Morrison stems from a statement therein that 'Civil 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.' (1 Cal.3d at p. 231, 82 Cal.Rptr. at p. 187, 461 P.2d at p. 387.) As we recognized in Morrison, however, vagueness can be cured by a more precise judicial construction and application of the statute in conformity with the legislative objectives. In Morrison itself, we upheld the prohibition against 'immoral and unprofessional conduct and conduct involving moral turpitude' (Ed.Code, § 13202) by limiting that phrase to such conduct as indicates an unfitness to teach.

Moreover, the same constitutional attack on subdivision (t) was presented and rejected in Gee v. California State Personnel Bd., 5 Cal.App.3d 713, 720--721, 85 Cal.Rptr. 762 (hg. Den.). There, the court cited Orlandi for the proposition that subdivision (t) has been judicially limited in conformance with Morrison: 'The first 19 subdivisions of section 19572, (a) through (s), list specific kinds of conduct which, if committed, constitute causes for discipline. It is obvious that they do not exhaust the kind of conduct which can be detrimental to state service. Subdivision (t) relates to 'other failure of good behavior' and is a catchall to include situations and acts which do not easily fit into the 19 specific causes....