Pearson v. Los Angeles County

• Decision Date: 31 December 1957
• Citation: 49 Cal.2d 523,319 P.2d 624
• Court: California Supreme Court
• Parties: Carl H. PEARSON, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, a public corporation; H. L. Byram, Water G. Gastil, M. J. Brock, Jr., Gladys Johnson, E. C. Spruill, A. L. Thomas, C. H. Thurber, Members of the Board of Retirement of the Los Angeles County Employees' Retirement Association; Harry Albert, Hayden F. Jones, Winston W. Crouch, Members of the Board of Civil Service Commissioners of the County of Los Angeles; and E. W. Biscailuz, Sheriff of Los Angeles County, Defendants and Respondents. L. A. 24637.

Page 624

319 P.2d 624

49 Cal.2d 523

Carl H. PEARSON, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, a public corporation; H. L. Byram, Water G. Gastil, M. J. Brock, Jr., Gladys Johnson, E. C. Spruill, A. L. Thomas, C. H. Thurber, Members of the Board of Retirement of the Los Angeles County Employees' Retirement Association; Harry Albert, Hayden F. Jones, Winston W. Crouch, Members of the Board of Civil Service Commissioners of the County of Los Angeles; and E. W. Biscailuz, Sheriff of Los Angeles County, Defendants and Respondents.

L. A. 24637.

Supreme Court of California, In Bank.

Dec. 31, 1957.

Rehearing Denied Jan. 28, 1958.

S. V. O. Prichard, Hollywood, for appellant.

Harold W. Kennedy, County Counsel, Edward H. Gaylord and Andrew O. Porter, Deputy County Counsel, Los Angeles, for respondents.

SCHAUER, Justice.

Plaintiff appeals from a judgment denying and dismissing his petition for mandate to compel defendants to receive from him a sum of money sufficient to make plaintiff 'fully paid up in his retirement right' in the Peace Officers Retirement System, and thereupon to retire him with a pension, and to either conduct a hearing with respect to certain charges filed with the Los Angeles County Civil Service Commission or dismiss those charges and restore him to his position as a deputy sheriff in order that he may retire as provided by law. We have concluded that the judgment should be reversed and the superior court directed to issue its writ of mandate requiring the Civil Service Commission to conduct a hearing on and dispose of the pending charges, and take such other action, if any, as may be appropriate to resolve the issues before it, and requiring the Board of Retirement of the Los Angeles County Employees' Retirement Association to vacate its order denying plaintiff's application for retirement, and to reconsider and pass on such application in the light of this opinion and the evidence which may then be adduced.

The case was presented in the superior court upon a stipulation of facts, which is a part of the record. Therefrom it appears that plaintiff was actively employed as a deputy sheriff of Los Angeles County from December 24, 1924, until December 13, 1950, when he was suspended for 30 days for failure to make a certain report. ¹ During this period plaintiff was a member of the Peace Officers Retirement System and until his suspension he made all required contributions. A member of that system becomes eligible to retire with a pension upon reaching the age of 55 (Gov.Code, § 32050). Plaintiff became 55 on July 23, 1951.

On December 19, 1950, the sheriff of Los Angeles County notified plaintiff by letter that he had been discharged as of December 16 upon the asserted basis that plaintiff had made certain false statements to police officers with reference to circumstances surrounding the death of attorney Samuel Rummel, a matter which was then under police investigation. The letter further informed plaintiff that he had a right to file a written reply to the charges against him and to request a hearing before the Civil Service Commission. A copy of the letter was sent to that commission. Within the time allowed plaintiff filed a reply to the charges and requested a hearing.

Shortly thereafter, plaintiff was indicted on a charge of violating section 6200 of the Government Code, a felony which relates generally to alteration or removal of public records by their custodian. ² Specifically, plaintiff was accused of taking certain confidential police department records to the office of attorney Rummel for the purpose of discussing a subject not in line of or connected with plaintiff's official duties.

Plaintiff requested the Civil Service Commission to postpone its hearing on his discharge until after determination of the criminal charges against him. On February 8, 1951, the commission notified plaintiff by letter that it had ordered the hearing off calendar 'until notified by you of the disposition of the criminal case now pending in the Superior Court.'

Plaintiff was convicted of the felony charge on July 16, 1951. On September 4, 1951, proceedings in the superior court were suspended and plaintiff was placed on probation. No judgment of conviction appears to have been pronounced but plaintiff appealed from an order denying his motion for a new trial. He contended that no crime had been committed in that the documents taken to Mr. Rummel's office were mere memoranda made by plaintiff and were his own property. In affirming the order the District Court of Appeal held that (People v. Pearson (1952), 111 Cal.App.2d 9, 16, 244 P.2d 35) 'The question of his intent is not involved. The mere doing of an act forbidden by the statute is the sum total of the judgment against him * * * (111 Cal.App.2d at page 29, 244 P.2d at page 50) The question * * * whether the public had access to the papers and documents removed * * * was not relevant * * * (111 Cal.App.2d at page 31, 244 P.2d at page 51). A public record embraces any document or record which may properly be kept by an officer in connection with the discharge of official duties * * * (even though it may be memoranda made by the officer and claimed as his own). (T)he statute is violated if the paper or document removed had been placed in the hands of a public official for any purpose * * *.' The remittitur was filed in the superior court on July 9, 1952. On April 16, 1953, plaintiff having complied with the probationary terms, the cause was dismissed by the superior court and the criminal charges were expunged from the record. (Pen.Code, § 1203.4.)

On September 11, 1951, plaintiff had written to the Los Angeles County Counsel, stating that the hearing before the Civil Service Commission had been postponed pending determination of the criminal charges, that he had been informed that unless a hearing was conducted by the commission within a year his right to reinstatement would be lost, and that it appeared that the criminal matter would not be completed within the year. Plaintiff asked for advice in the premises.

The county counsel, by letter dated September 19, 1951, replied that 'there was no rule requiring hearings on discharge to be had within a year of the discharge. Such hearing can be held at any time.' The letter further advised plaintiff that the 'Commission would not set the date of the hearing until the matter was brought to their attention either by you or by the Sheriff,' and that he should 'write the Commission, notifying it when you will return and ask that the hearing be set some time after that date.'

On December 18, 1951, plaintiff advised the commission by letter that he had appealed his superior court conviction and that as soon as the District Court of Appeal rendered its decision 'I will notify you and request that my case be put back on your calendar for a hearing.'

On May 19, 1953, about a year after plaintiff's conviction was affirmed, and about one month after the criminal charges against him had been finally dismissed and the record expunged upon the showing of his compliance with the probationary terms, plaintiff again wrote to the commission, referring to their letter to him of February 8, 1951, and stating: 'The matters that were at that time before the Superior Court have now been disposed of. May I respectfully request that my hearing be placed on calendar for as early a date as possible?'

On the following day, May 20, 1953, the commission wrote plaintiff that it had 'ordered that your request be denied because of the unreasonable lapse of time since the original request for hearing was made.' Plaintiff's application for a rehearing of his request for a hearing was also denied, and on July 2, 1953, the commission wrote plaintiff that 'The County Counsel has advised us that inasmuch as your request for a hearing was not made within a reasonable time, your rights to any further proceedings before this Commission are lost and the discharge is now final.' (It may be noted that the statement that 'the discharge is now final' does not purport to declare when it became final.)

On June 22, 1953, plaintiff had also filed with the county Board of Retirement an application for retirement to be effective as of July 24, 1951. The application is endorsed 'Approved: Subject to determination of eligibility by Retirement Board. E. W. Biscailuz Head of Department.' It was denied on July 13, 1953.

On March 16, 1954, plaintiff filed a petition for mandate in the superior court, naming as respondents all of those named herein with the exception of the three members of the Board of Civil Service Commissioners, and E. W. Biscailuz, sheriff. The exact prayer of the March 16, 1954, petition is not shown by the record, but it 'alleged each and all of the facts' alleged in the pending petition. The 1954 petition was denied on June 28, 1955, on the ground that the application to the court was premature in that the charges against plaintiff were still pending before the commission. The written and signed order expressly declares that the denial is without prejudice to further proceedings by plaintiff. ³ Thereafter plaintiff requested both the sheriff and the commission to proceed on the charges against him, but both refused. A request that the sheriff restore plaintiff to his position as deputy sheriff in order that he might retire immediately was also refused.

On April 26, 1956, plaintiff filed his present petition for mandate to compel his retirement with a pension, and to order the commission to either proceed on the charges against him or dismiss them. Plaintiff's position is that he has never been effectively discharged and, therefore, that he is entitled to retire with normal pension rights. Defendants contend that plaintiff was automatically discharged upon his conviction of a felony, that in any event he has waived his right to a hearing before the commission, that the present proceeding is barred by the...