Orlandi v. State Personnel Bd.

• Decision Date: 12 June 1968
• Citation: 263 Cal.App.2d 32,69 Cal.Rptr. 177
• Court: California Court of Appeals Court of Appeals
• Parties: Carl D. ORLANDI, Petitioner and Appellant, v. STATE PERSONNEL BOARD of the State of California et al., Respondents. Civ. 11603.

Page 177

69 Cal.Rptr. 177

263 Cal.App.2d 32

Carl D. ORLANDI, Petitioner and Appellant, v. STATE PERSONNEL BOARD of the State of California et al., Respondents.

Civ. 11603.

Court of Appeal, Third District, California.

June 12, 1968.

Horace E. Cecchettini and William S. Gregory, Sacramento, for petitioner-appellant.

Thomas C. Lynch, Atty. Gen., by Richard K. Turner, Deputy Atty. Gen., Sacramento, for respondents.

BRAY, Associate Justice (assigned).

Appellant appeals from the judgment of the Superior Court of Sacramento County denying petition for a writ of mandate to compel the State Personnel Board to set aside its decision dismissing him from his position as a State Traffic Officer.

QUESTIONS PRESENTED

1. To sustain a cause for discipline under section 19572, subdivision (t), Government Code, must there be affirmative evidence that appellant's conduct actually 'causes' discredit to his agency or his employment?'

2. Under subdivision (t), did 'ticket fixing' have to be proscribed by a regulation?

Appellant was served with a notice of punitive action signed by Bradford Crittenden, then Commissioner of the California Highway Patrol, dismissing appellant from his position as a State Traffic Officer, effective March 1, 1965. He appealed to the State Personnel Board. After a hearing held before a Hearing Officer, the latter submitted a proposed decision sustaining the dismissal. The proposed decision and the finding of facts therein were adopted by the State Personnel Board as its decision. Appellant filed a petition for rehearing, which was denied. He then filed in the Sacramento Superior Court a petition for writ of mandate to set aside the State Personnel Board's decision. An alternative writ of mandate was issued. After a hearing the alternative writ was discharged and the petition for writ of mandate denied. Appellant appeals.

STATEMENT OF FACTS

From July 14, 1952 until March 1, 1965, appellant was a State Traffic Officer with the California Highway Patrol. For some time prior to March 1, appellant worked part-time as a real estate salesman in association with Mr. Fred Festersen in Roseville, who provided appellant office space, paid him commissions and made real estate referrals to him. On January 20, 1965, California Highway Patrol Officer Chapman issued a citation to Festersen for traveling 70 miles per hour in a 65-mile zone near Auburn and for driving without a valid driver's license (violations of Vehicle Code, sections 22349 and 12951). Officer Chapman the same day turned in to the Highway Patrol Office at Auburn copies of the citation.

Later that day Festersen contacted appellant, telling him that his speedometer was probably wrong, possibly due to oversized tires, and asked appellant for help in connection with the citation. Appellant took Festersen's copy of the citation and indicated that he would help Festersen with it. The next day appellant obtained the court copy of the citation from a clerk at the Highway Patrol's Auburn office, and asked the clerk to give him the driver's license information when it arrived from the Department of Motor Vehicles. Appellant contacted Officer Chapman, asking if he had any personal feelings regarding Festersen's citation. Chapman indicated that he did not care what was done about the citation as long as it was cleared with the captain. Appellant agreed to do this. Appellant also took from the clerk the pink copy of the citation but returned it to her, knowing that if the pink copy did not appear at Sacramento headquarters an investigation would be conducted to determine its whereabouts. Appellant kept the court copy and at no time returned it to the Patrol office or sent it to the court. Festersen apparently felt that the citation was taken care of and did not appear in court on the date set in the citation.

In the meantime, appellant used his patrol car to pace Festersen as he drove along the highway and found that the latter's speedometer indicated 65 miles per hour at a true 70 miles per hour. Apparently the error was caused by oversized tires. A report was received from the Department of Motor Vehicles that Festersen did not have a valid license.

In the normal course of events, appellant's possession of the court copy of the citation would prevent the court from having knowledge of the citation and therefore no action would be taken against Festersen. By preventing the court copy of the citation from reaching the court, appellant effectively 'fixed' the ticket as far as Festersen was concerned. Appellant concedes that for the purposes of this appeal, he 'fixed' Festersen's citation issued by Officer Chapman.

Initiated by the suspicions of the clerk from whom appellant obtained the copies of Festersen's ticket and those of Officer Chapman, an investigation ensued. When he learned through a girl in Festersen's office that the matter was under investigation, appellant immediately had the violator's copy returned to Festersen through a third person. On two separate occasions when asked by his superiors about the matter, appellant refused to give any explanation. Appellant threw the court copy of the citation into a fireplace in his home, knowing that he was thereby destroying an official record and an important piece of evidence in the investigation. Festersen later oppeared in court, informed the judge of what had occurred and received a considerable fine.

Throughout the proceedings, appellant denied that he was intending to 'fix' Festersen's ticket or to try to get it dismissed. He maintained that he wanted the court's copy of the citation so that he could present it to the court himself and show extenuating circumstances (speedometer error). The matter slipped his mind and he forgot to appear in court on the date set in the citation.

The findings of the Hearing Officer adopted by the Board found that appellant wilfully secreted the court copy of Festersen's citation to prevent the latter from being prosecuted as a traffic violator, and later wilfully destroyed the court copy of the citation in order to obstruct the investigation then being conducted by his superiors.

1. Not necessary to produce evidence that appellant's conduct causes discredit.

The notice of punitive action served upon appellant charged him with violation of subdivisions (f), dishonesty; (o), wilful disobedience; (r), violation of section 19251 which deals with other employment; and (t), hereinafter discussed, of section 19572, Government Code. The findings expressly found that the evidence did not establish violation of the first three above-mentioned subdivisions. It did find violation of subdivision (t). After finding that appellant's conduct amounted to 'fixing' Festersen's citation, it found said conduct '(constitutes) failure of good behavior during and outside of duty hours which is of such a nature that it causes discredit to his agency and to his employment,' within the meaning of Government Code, section 19572, subdivision (t).

Appellant contends that as no allegations of fact asserting that appellant's conduct actually resulted in any damage to the reputation of the California Highway Patrol or to appellant's employment, and no evidence was introduced to that effect, the charge of violating subdivision (t) was not sustained. Moreover, that a state employee's conduct, in order to be a cause for discipline under subdivision (t), must be publicized, known and communicated to such an extent that there is actual damage done to the reputation of the employing agency or to the employment of the employee.

Section 19572 provides 'the following constitutes cause for discipline * * * (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.' (Emphasis added.)

Appellant goes into detail to support his position by illustrations of statutory history and statutory construction. But such an approach is entirely unnecessary, for there is no need to refer to rules governing construction where the statutory language is clear and unambiguous. In other words, there must be a Need for statutory construction. (See, e.g., Caminetti v. Pac. Mutual L. Ins. Co., 22 Cal.2d 344, 353--354, 139 P.2d 908; First Congreg. Church of Glendale v. County of Los Angeles, 9 Cal.2d 591, 594, 71 P.2d 1106.)

The language of subdivision (t) is clear on its face and requires no construction. To adopt appellant's view, one would have to add something to the statute which is not there, i.e., a requirement of notoriety. Where the words of a statute are clear, an appellate court should not add to or alter such words to accomplish a purpose that does not appear on the face of the statute or from its legislative history. (Vallerga v. Dept. Alcoholic Bev. Control, 53 Cal.2d 313, 318, 1 Cal.Rptr. 494, 347 P.2d 909; People v. Knowles, 35 Cal.2d 175, 183, 217 P.2d 1.) There is nothing in the legislative history to indicate that the statute should be construed in the manner contended.

To follow appellant's argument to an end result would be to indulge in an absurdity. Thus, in order to take punitive action against an employee under subdivision (t), the employing agency would in effect have to publicize the fact that it had in its midst an errant employee. Or viewed from another way, an offending employee could not be disciplined under subdivision (t) so long as his misdeeds were kept 'within the family' and no damage was proved to be done to the agency's 'image.' Such was surely not the intent of the Legislature.

Subdivision (t) refers to conduct which would reflect discredit on the employing agency or the position held by the person engaging in such conduct, regardless of whether publicized or not.

The first 19 subdivisions of section 19572, (a) through (s), list specific kinds conduct which, if committed, constitute causes for discipline. It is obvious that they do not exhaust the kind of conduct...