Skelly v. State Personnel Bd.

• Decision Date: 16 September 1975
• Docket Number: S.F. 23241
• Citation: 539 P.2d 774,124 Cal.Rptr. 14,15 Cal. 3d 194
• Court: California Supreme Court
• Parties: , 539 P.2d 774 John F. SKELLY, Plaintiff and Appellant, v. STATE PERSONNEL BOARD et al., Defendants and Respondents.

Page 14

124 Cal.Rptr. 14

15 Cal.3d 194, 539 P.2d 774

John F. SKELLY, Plaintiff and Appellant, v.STATE PERSONNEL BOARD et al., Defendants and Respondents.

S.F. 23241.

Supreme Court of California In Bank.

Sept. 16, 1975.

Rehearing Denied Oct. 15, 1975.

Loren E. McMaster and Allen R. Link, Sacramento, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., and Joel S. Primes, Deputy Atty. Gen., for defendants and respondents.

SULLIVAN, Justice.

PlaintiffJohn F. Skelly, M.D.(hereafter petitioner) appeals from a judgment denying his petition for writ of mandate to compel defendantsState Personnel Board(Board) and its members to set aside his allegedly wrongful dismissal from employment by the State Department of Health Care Services(Department).¹In challenging his removal, petitioner asserts, among other things, that California's statutory scheme regulating the taking of punitive action against permanent civil service employees violates the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitutionandarticle I, sections 7and15, of the California Constitution.

In July 1972petitioner was employed by the Department as a medical consultant.²He held that position for about seven years and was a permanent civil service employee of the state.(SeeGov.Code, § 18528.)³About that time the Department, through its personnel officer Wade Williams, gave petitioner written notice that he was terminated from his position as medical consultant, effective 5 p.m., July 11, 1972.The notice specified three causes for the dismissal: (1) Intemperance, (2) inexcusable absence without leave, and (3) other failure of good behavior during duty hours which caused discredit to the Department.⁴It further described petitioner's alleged acts and omissions which formed the basis of these charges, and notified him that to secure a hearing in the matter, he would be required to file a written answer with the Board within 20 days, and that in the event of his failure to do so, the punitive action would be final.On July 12, 1972, petitioner filed an answer, and on September 15, 1972, a hearing was held before an authorized representative of the Board.

At the hearing, the Department introduced the testimony of Philip L. Philippe, Gerald R. Green and Bernard V. Moore, three successive district administrators of the Department's Sacramento office to which petitioner had been assigned.Their testimony was corroborated in part by written documents from the Department files, and disclosed the following facts: Philippe met with petitioner on November 17, 1970, to discuss the latter's unexcused absences, apparent drinking on the job and failure to comply with Department work hour requirements.This meeting was held at the insistence of several staff members who had complained to Philippe about petitioner's conduct.The doctor was admonished to comply with pertinent Department rules and regulations.

Nevertheless, despite further warnings given petitioner and efforts made to accommodate him by extending his lunch break from the usual 45 minutes to one hour, he persisted in his unexplained absences and failure to observe work hours and as a result on February 28, 1972, received a letter of reprimand and a one-day suspension.

This punitive action had little effect on petitioner who continued to take excessive lunch periods.On March 3, 1972, Gerald Green, then district administrator, and Doris Soderberg, regional administrator, met with petitioner and discussed his refusal to obey work rules, but apparently to no avail.He took lengthy lunch breaks on March 13, 14, 15 and 16.Green again met with petitioner on March 16 in an effort to resolve the problem.When asked why he had taken 35 extra minutes for lunch that day, petitioner claimed to be sick.Green responded that on the day in question he had observed the doctor drinking and talking at a restaurant and bar.Green then suggested that petitioner, for his own convenience, change from full-time to part-time status at an adjusted compensation.Petitioner declined to do so and Green admonished him that further violations of work rules would result in disciplinary action and even dismissal.

In the early afternoon of June 26, Bernard Moore, who succeeded Green as district administrator, attempted but without success to see petitioner in the latter's office.Moore found him at a local bar laughing and talking, with a drink in front of him, his hair somewhat disheveled, and his arm around a companion.Petitioner later left the bar but did not return to his office that day.Nor did he notify Moore of his proposed absence as required by Department rules.Subsequently petitioner attempted to have Moore record his absence as 'sick leave.'

In his defense, petitioner testified that he had in fact been sick on the afternoon of June 26, and that after an unsuccessful attempt to telephone his wife, he had informed a co-worker that he was going home.⁵He then went to a local bar and, after requesting a friend to call his wife, remained at the bar until she picked him up.Petitioner's version of the events was corroborated by his wife, a cocktail waitress, and the friend who had placed the call.Petitioner admitted, however, that despite his illness, he had had two martinis at lunch.

Petitioner further testified that his longer lunch periods involved no more than 5 to 15 extra minutes.In justification of this, he stated that he had more than made up for the time missed by skipping his morning and afternoon coffee breaks, by working more than his allotted time over holidays and by occasionally taking work home with him.He denied having a drinking problem and stated that his alcoholic intake during working hours was limited to an occasional drink or two at lunch.

Three co-workers, including Dr. F. Audley Hale, the senior medical consultant and petitioner's immediate supervisor for 13 months, confirmed petitioner's testimony that he rarely took coffee breaks.They described him as efficient, productive and extremely helpful and cooperative, and stated that his work had never appeared to be affected by alcoholic consumption.Dr. Hale rated petitioner's work as good to superior ⁶ and assessed him as 'our right hand man as far as information concerning ear, nose and throat problems not only for the District Office but for the Region as well.'He stated that the Department definitely needed someone with the doctor's skills.

The Department introduced no evidence to show, and indeed did not claim, that the quality or quantity of petitioner's work was in any way inadequate; his failure to comply with the prescribed time schedule did not impede the effective performance of his own duties or those of his fellow workers.Although petitioner was handicapped by relatively serious sight and speech impediments, the Department did not rely upon these physical deficiencies as grounds for dismissal; nor did it appear that these difficulties affected his work performance.

On September 19, 1972, the hearing officer submitted to the Board a proposed decision recommending that the punitive action against petitioner be sustained without modification.He made findings of fact in substance as follows: (1) That on February 28, 1972, petitioner suffered a one-day suspension for a four-hour unexcused absence on January 10, 1972, for excessive lunch periods on January 11 and 19, 1972, and for a lengthy afternoon break spent at a bar on February 25, 1972; (2) that despite efforts to accommodate petitioner by extending his lunch break to one hour, he continued to exceed the prescribed period by five to ten minutes for the four days following his suspension and again on March 13, 14 and 15, 1972; (3) that on March 16, 1972, petitioner took 1 hour and 35 minutes for lunch and claimed that this was due to illness when in fact he had been drinking; (4) that on the afternoon of June i6, 1972, the district administrator found petitioner at a bar during work hours, with his hair disheveled, his arm around another patron and a drink in front of him; and (5) that the petitioner's unexcused absence on June 26, 1972, was not due to illness.

The hearing officer found that these facts constituted grounds for punitive action under section 19572, subdivision (j)(inexcusable absence without leave).In considering whether dismissal was the appropriate discipline, the officer noted that '(a)ppellant is 64 years old, has had a long and honorable medical career and is now handicapped by serious sight and speech difficulties.Also, the Senior Medical Consultant has no complaints about appellant's work.'On the other hand, he pointed out that the Department's problems with petitioner dated back to 1970, that he had been warned, formally as well as informally, that compliance with Department rules was required, and that he had nevertheless persisted in his pattern of misconduct.On this basis, the hearing officer concluded that there was no reason to anticipate improvement if petitioner were restored to his position and recommended that the Department's punitive action be affirmed.The Board approved and adopted the hearing officer's proposed decision in its entirety and denied a petition for rehearing.⁷These proceedings followed.

Petitioner urges both procedural and substantive grounds for annulling the Board's decision.As to the procedural ground, he contends that the provisions of the State Civil Service Act (Act) governing the taking of punitive action against permanent civil service employees, without requiring a prior hearing, violate due process of law as guaranteed by both the United States Constitution and the California Constitution.As to the substantive grounds, he attacks the Board's decision on two bases: First, he argues that the Board's findings are not supported by substantial evidence; second, he asserts that the Board abused its discretion in approving petitione...