Patton v. Board of Harbor Commissioners

• Decision Date: 16 December 1970
• Citation: 13 Cal.App.3d 536,91 Cal.Rptr. 832
• Parties: L. S. PATTON, Plaintiff and Appellant, v. BOARD OF HARBOR COMMISSIONERS OF THE CITY OF LOS ANGELES, Bernard J. Caughlin, in his official capacity as General Manager of the Harbor Department of the City of Los Angeles, City of Los Angeles, Defendants and Respondents. Civ. 35027.
• Court: California Court of Appeals Court of Appeals

Page 832

91 Cal.Rptr. 832

13 Cal.App.3d 536

L. S. PATTON, Plaintiff and Appellant, v. BOARD OF HARBOR COMMISSIONERS OF THE CITY OF LOS ANGELES, Bernard J. Caughlin, in his official capacity as General Manager of the Harbor Department of the City of Los Angeles, City of Los Angeles, Defendants and Respondents.

Civ. 35027.

Court of Appeal, Second District, Division 5, California.

Dec. 16, 1970.

Hearing Denied Feb. 10, 1971.

Phill Silver, Hollywood, for plaintiff and appellant.

Roger Arnebergh, City Atty., Edward C. Farrell, Asst. City Atty., and Maynard W. Asper, Deputy City Atty., for defendants and respondents.

REPPY, Associate Justice.

Plaintiff-appellant L. S. Patton (plaintiff) brought this action for declaratory relief against the Board of Harbor Commissioners of the City of Los Angeles (Board), Bernard F. Caughlin (Caughlin), in his official capacity as General Manager of the Harbor Department of the City of Los Angeles (General Manager and Department), and the City of Los Angeles (City). His first amended complaint for declaratory relief ¹ alleged, among other things, that since February 9, 1962, he has been a port pilot in the employ of the City working under the supervision of the Board and General Manager; that his position is subject to the civil service provisions of the Charter of the City of Los Angeles (Charter); that he was suspended for a period of five days; that the notice of suspension stated that he was guilty of a serious act of insubordination in that he delayed the imposition of important tariff changes without consulting management which resulted in a substantial loss of revenue to the Department; that the statements in the notice were untrue; that the accusation that plaintiff had been guilty of a serious act of insubordination was made arbitrarily and capriciously; and that his suspension adversely affected his opportunity for advancement in the Department.

Plaintiff prayed for a declaration that (1) Caughlin acted capriciously and arbitrarily in charging plaintiff with an act of insubordination; (2) the General Manager of the Board does not have the lawful authority to suspend an employee of the Department without the prior consent of the Board; (3) if section 80(a)(2) of the Charter does grant the General Manager the power to suspend an employee without the Board's prior consent, it constitutes an unconstitutional delegation of power; (4) that section 112(c) of the Charter, which states that the provisions of subsection (a) of section 112 (giving right to a hearing before the Civil Service Board) shall not apply to any suspension of five working days or less in any twelve-month period for personal delinquency, deprives public employees of substantial rights in public employment without providing for a review in violation of procedural due process of law as guaranteed by article I, section 13 of the California Constitution, and by the Fourteenth Amendment of the United States Constitution; and (5) that his suspension was unlawful. He also prayed for a judgment that his suspension be expunged from the records of the City and Harbor Department and that he be awarded the sum of $245.69, his lost salary, with interest.

Defendants Board and Caughlin (but not the City) demurred to the first amended complaint on the ground that it did not state facts sufficient to constitute a cause of action against them. The demurrers were sustained with leave to amend. Plaintiff's counsel represented to the court that he could not amend, and at his request the demurrers were sustained without leave to amend. An order of dismissal then was granted in favor of defendants Caughlin and the Board. This appeal is taken from that order (judgment).

We hold that plaintiff's complaint did not state facts sufficient to constitute a cause of action as against Caughlin and the Board. The most significant issue raised is that of the interpretation and constitutionality of section 112(c) of the Charter. That section reads:

'The provisions of subsection (a) hereof shall not apply to any suspension of five working days or less in any twelve-month period for personal delinquency. ² The reasons stated in writing for any such suspension shall be furnished to the * * * employee and * * * filed with the (Civil Service) board. Any such suspension which results in an employee having a total suspended time * * * in excess of five working days in any twelve-month period shall be subject to all of the provisions of subsection (a) hereof.'

Section 112(a) provides that classified civil servants may be removed, or suspended, only for cause and for an investigation by the Board of Civil Service Commissioners in the event of a removal or suspension. The investigation must entail notice and hearing. (Steen v. Board of Civil Service Commrs., 26 Cal.2d 716, 160 P.2d 816.)

In Steen, supra, at page 723, 160 P.2d at page 820, the Supreme Court said, 'The rule is firmly established that if by statute (a) * * * civil service employee may not be removed * * * except for cause, the clear implication is that there be afforded an opportunity for a full hearing to accomplish his removal; that unless the statute expressly negatives the necessity of a hearing, common fairness and justice compel the inclusion of such a requirement by implication.' Plaintiff argues, not unreasonably, that since section 112(c) covers suspensions for 'personal delinquency' and requires the notification of reasons for the suspension, the suspension must be for 'cause' only, and that therefore a hearing requirement must be implied. However, the Steen rule is simply a rule of statutory interpretation. In the instant situation, the legislative intent to preclude a hearing is very clear. Section 112(a) contains 'for cause' and hearing requirements, and since 112(c) expressly makes 112(a) inapplicable to a suspension of five days or less, we must conclude that 112(c) makes such a suspension for personal delinquency a matter for the unfettered determination of the General Manager and the Board. ³ Keenan v. San Francisco Unified School District, 34 Cal.2d 708, 214 P.2d 382; LaPrade v. Department of Water and Power, 27 Cal.2d 47, 162 P.2d 13, and Carroll v. California Horse Racing Board, 16 Cal.2d 164, 105 P.2d 110, cited by plaintiff, can be distinguished on the same ground.

The question of the constitutionality of such a provision is a difficult one. It has traditionally been held that no one has a vested right in public employment except insofar as conferred by statute or valid regulation (Butterworth v. Boyd, 12 Cal.2d 140, 150, 82 P.2d 434), and that since possession of a public office does not confer a vested property right, removal or suspension will not involve the question of due process. (Ludolph v. Board of Police Commrs., 30 Cal.App.2d 211, 216, 86 P.2d 118.) However, in recent years, the importance attached to the distinction between a 'right' on the one hand and a 'privilege' or 'benefit' on the other, in determining that constitutional protections are afforded, has greatly diminished. For example, although employment is a publicly conferred 'benefit' as opposed to a 'right,' the government cannot now arbitrarily deprive the employee of constitutional rights as a condition of employment. The following cases involve First Amendment rights: ⁴ Pickering v. Board of Education (1968) 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811; Bagley v. Washington Township Hospital District (1966) 65 Cal.2d 499, 55 Cal.Rptr. 401, 421 P.2d 409; Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 38 Cal.Rptr. 625, 392 P.2d 385; Goldberg v. Regents of University of California (1967) 248 Cal.App.2d 867, 57 Cal.Rptr. 463; Belshaw v. City of Berkeley (1966) 246 Cal.App.2d 493, 54 Cal.Rptr. 727; Board of Trustees of Lassen Union High School Dist. v. Owens (1962) 206 Cal.App.2d 147, 23 Cal.Rptr. 710. 'The test is whether conditions annexed to the benefit reasonably tend to further the purposes sought by the conferment of that benefit and whether the utility of imposing the conditions manifestly outweighs any resulting impairment of constitutional rights.' (Goldberg v. Regents of the University of California, Supra, 248 Cal.App.2d at 877, 57 Cal.Rptr. at 471.)

Protection has also been extended to the right of procedural due process owned by those upon whom the government has conferred certain important benefits. Plaintiff cites numerous cases requiring notice and hearing: Dixon v. Alabama State Board of Education (5 Cir., 1961) 294 F.2d 150; R.R. v. Board of Education of Shore Regional High School District (1970) 109 N.J.Super. 337, 263 A.2d 180; Perlman v. Shasta Joint Junior College District Board of Trustees (1970) 9 Cal.App.3d 873, 88 Cal.Rptr. 563 and Goldberg v. Regents of the University of California, Supra, (1967) 248 Cal.App.2d 867, 57 Cal.Rptr. 463. All uphold the right of a student to notice and hearing before he can be expelled or suspended from a public educational institution. See also Wheeler v. Montgomery (1970) 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307; Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 and McCullough v. Terzian (1970) 2 Cal.3d 647, 87 Cal.Rptr. 195, 470 P.2d 4, which involve the rights of welfare recipients to notice and hearing before the termination of welfare benefits.

The above cited cases preclude our basing our holding on an automatic application of the old 'right' vs. 'privilege' distinction. However, they do not hold that the recipient of Any governmentally-bestowed benefit is entitled to notice and hearing before he can be deprived of it. Against the importance of the benefit and the harm resulting from its deprivation must be weighed the government's interest in pursuing the existing procedures. (See Dixon v. Alabama State Board of Education, Supra, 294 F.2d 150, 155--156.)

Applying these principles to the instant case, the proper deportment of the Department's employees is furthered by the power of...