Shepherd v. State Personnel Bd.

• Decision Date: 19 February 1957
• Court: California Supreme Court
• Parties: Harry SHEPHERD, Plaintiff and Appellant, v. STATE PERSONNEL BOARD of the State OF CALIFORNIA et al., Defendants and Appellants. Sac. 6746.

Page 4

307 P.2d 4

48 Cal.2d 41

Harry SHEPHERD, Plaintiff and Appellant, v. STATE PERSONNEL BOARD of the State OF CALIFORNIA et al., Defendants and Appellants.

Sac. 6746.

Supreme Court of California, In Bank.

Feb. 19, 1957.

James H. Phillips, Sacramento, for plaintiff and appellant.

Edmund G. Brown, Atty. Gen., Paul M. Joseph and Willard A. Shank, Deputy Attys. Gen., for defendants and appellants.

GIBSON, Chief Justice.

Dr. H. E. Shepherd, a civil service employee holding the position of a supervising veterinary meat inspector with the California Department of Agriculture, was dismissed in January of 1952 by the director of the department, and, after a hearing, the State Personnel Board approved the dismissal. In this mandamus proceeding, the superior court, after determining that some of the findings and conclusions of the board were warranted but that others were not, entered judgment ordering the board to set aside its decision and to reconsider the penalty imposed. Both Shepherd and the board have appealed.

For the most part, Shepherd's official duties consisted of reviewing, correcting and passing upon plans for the remodeling or construction of meat slaughtering and processing plants to assure that they satisfied California sanitary and building requirements. In that connection, he assisted architects and contractors in preparing such plans and visited construction projects to see that they met state standards. His duties also included supervising the work of state veterinary meat inspectors, surveying meat plants to determine whether their operating methods met state requirements, recommending changes in such establishments, compiling records, and reporting to the central office.

It was shown at the administrative hearing that on four occasions Shepherd received compensation from private parties for preparing plans to be used in the construction or remodeling of meat plants. The first of these transactions occurred in 1946 and involved the People's Meat Market in Calistoga, a slaughtering plant which was operated under California inspection service. Shepherd inspected the market, found that it did not comply with state sanitary standards, and reported this fact to his superiors. He advised the owners that construction of a new establishment at another location would be necessary because the existing plant could not be remodeled to meet the requirements. The owners hired a building contractor to investigate the possibilities of constructing a new plant, and Shepherd prepared plans outside of duty hours, furnished them to the contractor, knowing whom he represented, and received $500 from him. The proposed plant was not built, and the old one continued to operate under unsanitary conditions for a considerable time.

Another of the transactions concerned the Grass Valley Meat Company, which was subject to California meat inspection service. In 1947, at the request of the company, Shepherd prepared remodeling plans outside of duty hours which, if adopted, would have qualified the plant for federal meat inspection service but would also have been suitable for state purposes. He was paid a total of $850 for this work. After the plans had been furnished, the company decided not to change from state to federal meat inspection service and asked Shepherd to prepare simpler plans which would meet California requirements. He drew a second set of plans in 1949 which were used in remodeling the plant, and, in the course of his duties, he inspected the work being done. During 1949 and 1950, 104 barrels of tallow belonging to Shepherd were stored by the company without charge. He removed the tallow after another inspector determined that it was creating an unsanitary condition at the plant.

With respect to the third transaction, it was shown that the Union Packing Company in Vernon, which was subject to federal meat inspection service but was contemplating applying for state service, made a request to one of Shepherd's superiors that Shepherd visit the plant to conduct an inspection and to discuss remodeling the premises. In September of 1949, Shepherd came to the plant, conferred with the manager, at least in part during duty hours, and took measurements the following weekend. The manager requested him to prepare remodeling plans, and he did so outside of duty hours. He supplied them to the company and received $500 in payment. The company did not use the plans and did not change from federal to state inspection.

The fourth transaction involved Shepherd's dealings in August and September of 1950 with the owner of a trailer manufacturing business in San Jose. The owner agreed with a meat company that he would convert his premises into a meat processing plant which would then be leased to the company. After plans for converting the premises were obtained from a third party, Shepherd's assistance was sought with respect to structural changes which were necessary because the smokehouse and cooler of the proposed plant would encroach on an easement. He revised the plans outside of duty hours and was paid $250 for his services. As Shepherd knew, it was intended that the plant, when finished, would be subject to California meat insepction service. While the remodeling plans were not submitted to Shepherd for approval in his official capacity, he inspected the construction work as a part of his duties. When completed, the processing plant operated under state inspection service.

In 1945, before any of the four transactions occurred, Shepherd submitted a letter to his superior in which he requested permission to work 'on a fee basis' outside of duty hours as a consultant for architects, engineers and contractors with respect to the designing of meat plants. The permission which he sought was refused, and he was told that he was not to accept money from anyone for doing work in connection with his official duties and that receiving such a payment was incompatible with his job. In a bulletin which was issued by the Bureau of Meat Inspection on August 29, 1949, and which Shepherd read, veterinary meat inspectors were instructed that they were not to perform unofficial work for the operator of an establishment to which they were assigned. On two occasions in 1949, Shepherd was questioned by his superior as to whether he was receiving money from architects or contractors for drawing plans or doing other work, and he denied doing so.

The board, after making detialed findings substantially in accord with the facts set forth above, found that the following causes for discipline existed within the meaning of section 19572 of the Government Code: ¹ insubordination, wilful disobedience, dishonesty acts during duty hours which were incompatible with the public service, acts during duty hours which were inimical to the public service, acts outside of duty hours which were incompatible with the public service, acts outside of duty hours which were inimical to the public service, inexcusable neglect of duty, failure of good behavior, and 'violation of Title 2, Division 5, Part 2, of the Government Code.'

The superior court determiend that there was substantial evidence to support the board's findings of failure of good behavior, 'violation of Title 2, Division 5, Part 2, of the Government Code,' and acts during and outside of duty hours which were incompatible with and inimical to the public service. It concluded, however, that none of Shepherd's acts constituted the other causes for discipline found by the board, that, because of an amendment to section 19251 of the Government Code which became effective on October 1, 1949, the findings of incompatible acts were improper insofar as they related to the period between that date and October 16, 1950, and that punitive action could not be based on the transaction involving the Union Packing Company.

A preliminary question is presented as to whether the court erred in failing to reweigh the evidence and exercise its independent judgment thereon. It is, of course, settled that the factual determinations of a state-wide administrative agency which derives adjudicating power from the Constitution are not subject to re-examination in a trial de novo but are to be upheld by a reviewing court if they are supported by substantial evidence. Southern Pac. Co. v. Public Utilities Comm., 41 Cal.2d 354, 367, 260 P.2d 70; Coborn v. Industrial Acc. Comm., 31 Cal.2d 713, 716-717, 192 P.2d 959; Covert v. State Board of Equalization, 29 Cal.2d 125, 131, 173 P.2d 545; Pacific Greyhound Lines v. Railroad Comm., 11 Cal.2d 427, 429, 80 P.2d 971; Griswold v. Department of Alcoholic Bev. Control, 141 Cal.App.2d 807, 810, 297 P.2d 762. In Boren v. State Personnel Board, 37 Cal.2d 634, 234 P.2d 981, we held that certiorari would lie to review an order of the State Personnel Board, stating, 37 Cal.2d at page 638, 234 P.2d at page 983, that the jurisdiction of the board, 'including its adjudicating power,' is derived directly from the Constitution. It has also been squarely held that the findings of the board are not to be disturbed if supported by substantial evidence. Black v. State Personnel Board, 136 Cal.App.2d 904, 909, 289 P.2d 863; Genser v. State Personnel Board, 112 Cal.App.2d 77, 80, 245 P.2d 1090; Nelson v. Department of Corrections, 110 Cal.App.2d 331, 336, 242 P.2d 906.

The board was established in 1934 by section 2(a) of article XXIV of the Constitution, and section 3(a) of that article, which was adopted in the same year, provides, 'Said board shall administer and enforce, and is vested with all of the powers, duties, purposes, functions, and jurisdiction which are now or hereafter may be vested in any other state officer or agency under, Chapter 590 of the California Statutes of 1913 as amended or any and all other laws relating to the state civil service as said laws may now exist or may hereafter be enacted, amended or repealed by the Legislature.' In 1934, chapter 590 of the...