Pranger v. Break

• Citation: 186 Cal.App.2d 551,9 Cal.Rptr. 293
• Court: California Court of Appeals
• Decision Date: 21 November 1960
• Parties: Edward PRANGER, Appellant, v. S. Wesley BREAK et al., Respondents. Civ. 6307.

Page 293

9 Cal.Rptr. 293

186 Cal.App.2d 551

Edward PRANGER, Appellant, v. S. Wesley BREAK et al., Respondents.

Civ. 6307.

District Court of Appeal, Fourth District, California.

Nov. 21, 1960.

Hearing Denied Jan. 18, 1961.

Lewis Garrett and Lionel Richman, Los Angeles, for appellant.

Stanford D. Herlick, County Counsel of San Bernardino County, and Margaret J. Morris, Deputy County Counsel, San Bernardino, for respondents.

GRIFFIN, Presiding Justice.

Petitioner and appellant Edward Pranger, a civil service employee, sought a writ of mandate in the Superior Court against respondents S. Wesley Break and members of the Board of Supervisors acting as ex officio members of the Air Pollution Control Board of San Bernardino County (hereinafter referred to as APCB) and members of the Civil Service Commission, seeking a judicial review of the administrative adjudication by the Civil Service Commission under Government Code section 11523, which Commission sustained the dismissal of appellant upon grounds of 'conduct unbecoming an employee' upon certain specified grounds. The trial court upheld the action of the Civil Service Commission and denied the writ. The appeal is from this judgment.

There is no material dispute as to the facts. The case was tried in the superior court predicated on the joint pretrial conference statement, and order and exhibits listed therein. Accordingly, the parties agreed, and the pretrial order indicates, that the petitioner, an employee of the APC B in the capacity of Clerk IV, was discharged from such position as of August 29, 1958. The dismissal was accomplished by means of a letter dated August 20, 1958, addressed to petitioner over the signature of the Air Pollution Control Officer, and it is conceded that the power of appointment and discharge was exclusively within the jurisdiction of such officer. This communication stated that the dismissal of petitioner was 'upon direction' and order of the board of the Air Pollution Control District and such action was taken 'pursuant to section 11 of Civil Service Ordinance 805.' The letter further states that the dismissal was 'based upon conduct unbecoming an employee as exemplified by your actions at a Rialto City Council meeting and your editorial comments * * *' Petitioner is specifically charged by the terms of this written notice of editorially espousing a philosophy 'inimical to public service' and with the use of 'abusive language with respect to' a newspaper publisher and reporter at a meeting of the Rialto City Council.

Under date of August 19, 1958 (the day preceding the date of the letter of dismissal), the chairman of the Board of Supervisors of San Bernardino County, acting on behalf of the board, had addressed a letter to petitioner which purported to dismiss him from his position. The reasons assigned in this letter were substantially the same as those set forth in the letter of August 20. It is conceded that this letter was ineffectual, since the board of supervisors, acting either in that capacity or as ex officio APCB, lacked any jurisdiction or power to appoint or discharge subordinate employees of the Air Pollution Control District. Apparently appellant appealed to the Civil Service Commission from the order of dismissal. A lengthy hearing was had and it filed written findings on December 30, 1958 and determined (a) that the dismissal of petitioner was legally effected, and (b) that the conduct of petitioner 'as exemplified by his editorial comments * * * demonstrated a lack of the essential loyalty, mature judgment, and the proper spirit of cooperation so vital to good government in this County,' and constituted 'cause for dismissal pursuant to the rules of the Civil Service Commission of the County of San Bernardino.' It should be noted that the Commission made no specific findings with respect to charges contained in the letter of dismissal concerning petitioner's alleged conduct in appearing before the Rialto City Council, but elected to base its order on the conduct exemplified by editorial comments as authorized by petitioner and published in the County Union Employees' News Letter.

Appellant, as associate editor of that paper, which is published monthly and circulated among the County employees, wrote an editorial, in the absence of and without the consent of the chief editor, the membership or executive committee, referring to the claimed failure of the board of supervisors to increase wages of County employees to meet the claimed cost of living rise. He wrote in part:

'When the monthly accounting time inevitably rolls around, we know that we are orphans in a spiralling economic tornado. Are we in the San Bernardino County employ some sort of weird exception to recognized standards of decent living in our locale? * * * We are fish swimming in the same economic sea as dwells the entire Southern California populace. With one exception. The majority of us have been relegated, through the Board's indifference, to play the role of bottom fish.

'For the first budgetary time in recent years, our Board of Supervisors has lent a deaf ear to the economic facts of life when it comes to the needs of the employees who administer the government they supposedly supervise. Our Union has appealed to them with supplication, mild agitation, and arbitration in an effort to nudge them from their 'ostrichized' head-in-the-sand attitude of 'hold the line' * * * to no avail.

'Is there an immediate, or even long range remedy to this situation? Perhaps, but the medicine is bitter. It calls for varied applications of lawsuit, slowdown, sitdown, walkout * * * or that final, bitter dose * * * the strike. Whatever antidote is prescribed, it can only be attained through the media of strong Unionism.'

After the article appeared, the president of Local 122 accepted appellant's resignation as associate editor. The executive board, by resolution, disclaimed and disapproved the remarks concerning 'slowdown, sitdown, walkout or strike * * * which remarks were not authorized by the local and do not express its policies.'

As to the Rialto City Council meeting, the transcript of evidence before the Civil Service Commission which involved the municipal policy in relation to the continuation in office of the city manager, appellant, a property owner, attended. There was a large audience present and many people, including appellant, actively and vociferously participated in the discussions. Public remarks attributable to appellant were there made, such as 'Let's throw him out of office' and 'Get back on your horse and buggy and get on your route.' In referring to the publishing plant of a local newspaper, he was said to have publicly remarked that it, or the reporter, was a 'journalistic prostitute' or 'literary prostitute'. The local paper, the following day, carried the headlines and story that appellant Pranger, 'County Assistant Air Pollution Control Director' or 'assistant Air Pollution officer in the county', who apparently was known to many of the audience as such, publicly accused the reporter of the local newspaper of 'prostituting the newspaper profession.'

As to the publicity in reference to the claimed threatened strike and sitdown, appellant argues that his remarks were merely expressions of opinion in his capacity as Associate Editor of the News Letter; that the Constitutional right of free speech protects his privilege in publicly expressing such opinions, subject only to the restrictions imposed upon public employees to refrain from statements which would induce or incite other employees to engage in illegal or improper activities to the detriment of the public agency; that the effect of his editorial statements must be measured by the 'clear and present danger' rule; and that the record is wholly devoid of evidence to sustain findings of conduct unbecoming a public employee. (Citing such authority as Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Bridges v. California, 314 U.S. 252, 261, 62 S.Ct. 190, 86 L.Ed. 192; Baumgartner v. United States, 322 U.S. 665, 65 S.Ct. 1240, 88 L.Ed. 1525; Cal. Const. art. 1 sec. 9; Board of Education v. Swan, 41 Cal.2d 546, 261 P.2d 261.

The issue is not the right of freedom of speech, whether petitioner had the right to make such editorial statements, or whether such statements were of the nature which presented a clear and present danger, but the real issue is whether the publication of the statement, under the circumstances and in view of petitioner's position as a public employee in a sensitive governmental office, was, ipso facto, conduct unbecoming a public employee. This question is fairly well treated in Hayman v. City of Los Angeles, 17 Cal.App.2d 674, 679, 62 P.2d 1047, 1049 (hearing denied by the Supreme Court) where it is said:

'The right which is involved here is not that which petitioner thinks has been denied him, but is the right of respondents to exercise a reasonable supervision over city employees, to the end that proper discipline may be maintained and that activities among employees be not allowed to disrupt or impair the public service. Such is not only the right but the duty of the city and its several departments. In the exercise of this duty, they must be allowed a wide discretion and their acts are not subject to review by the courts until they have reached the point of illegality * * * If petitioner's activities had a tendency to create dissension and unrest among the city employees and to interfere with the enforcement of reasonable rules of conduct prescribed by the Board of Public Works, it is not for the courts to declare that a dismissal based upon these facts would be without cause and therefore without authority under the charter of the...