Sojka v. City of Pasadena

• Decision Date: 11 March 1971
• Court: California Court of Appeals Court of Appeals
• Parties: Robert J. SOJKA, Petitioner-Plaintiff and Appellant, v. The CITY OF PASADENA, a municipal corporation, et al., Defendants and Respondents. Civ. 37154.

Page 548

93 Cal.Rptr. 548

15 Cal.App.3d 965

Robert J. SOJKA, Petitioner-Plaintiff and Appellant, v. The CITY OF PASADENA, a municipal corporation, et al., Defendants and Respondents.

Civ. 37154.

Court of Appeal, Second District, Division 1, California.

March 11, 1971.

Hearing Denied May 13, 1971.

Hollopeter, Terry & Schneider and Harvey A. Schneider, Pasadena for petitioner-plaintiff and appellant.

Wendell R. Thompson, City Atty., and Suzanne B. Gifford, Deputy City Atty., for defendants-respondents.

LILLIE, Associate Justice.

In July of 1969, respondent City promulgated a document announcing 'a promotional examination for Helicopter Pilot Assignments.' It also therein stated that one such position was to be filled by a police agent then employed by respondent, and that the three highest scoring applicants would be certified for final selection. Petitioner-plaintiff, as a police agent, thereafter took all of the examinations required of him for the position announced. Although he was ranked first on the eligible list as a result of the examinations, he was later advised that neither he nor the police agents finishing second and third would be given the position of helicopter pilot, and respondent Morris Nelson, finishing fifth on said examinations, would be given the position and had already begun the training program relating thereto. After exhausting his administrative remedies petitioner sought a peremptory writ of mandate, as well as a declaratory judgment, which would compel the annulment of Nelson's appointment and require that the position be filled by persons finishing first, second or third (under the so-called 'rule of three').

The court received evidence, oral and documentary, deeming the matter distinguishable from administrative mandamus and, also, in view of the allegations asking for declaratory relief. Some 20 findings of fact were made from which certain conclusions of law were drawn. In material part the court found that the document announcing the examination was ambiguous; that the position of 'Helicopter Pilot' therein referred to is an 'assignment' and not a 'promotion' since it involved no change in rank; and that the announced examination to select applicants for such position was, accordingly, not a promotional examination and, therefore, not governed by the 'rule of three.' The foregoing was based on other express findings, evidentiary in nature, declaring in part that the determination that helicopter duty was an 'assignment' was made at the administrative level by designated officials of respondent City; that potential applicants for the announced position had been advised by respondent's police department that candidates would be appointed through administrative selection; and that officers assigned as helicopter pilots can be removed from such duty at will and without cause (as in the case of officers assigned to motorcycle duty) whereas an officer holding a certain rank can be demoted or removed only for cause. The court made this additional finding: 'At the time of the examination and at all times up to trial on the issues, no additional pilot pay had been determined. Recommendations of the Director of Personnel and City Manager were for a flat monthly payment of $150 in addition to regular salary.'

A very substantial portion of the foregoing resulted from the case put on by respondents. Thus, at the opening session appellant endeavored to show that the police agents finishing second and third, respectively, adhered to the same view alleged by him in his pleadings, to wit, that the rule of three would control; it was argued that this extrinsic evidence was admissible in light of the ambiguity inherent in the document announcing the examination. An offer of proof having been made, the trial court sustained objections to the introduction of such testimony upon the ground that any questions put to these prospective witnesses would call for their opinions and conclusions and, further, that they were not parties to the contract. The balance of appellant's proof, accordingly, consisted of the examination of respondent City's director of personnel (Mr. Morris) under section 770, Evidence Code and such favorable inferences that might be deduced therefrom. Respondent City, in turn, called its chief of police and another member of its police department who worked with the personnel department in its selection of the post; both testified that the examination, in effect, was not intended to be a promotional one.

Appellant first contends that promotional rules applied to the selection of the position regardless of whether it be classified as an assignment or a promotion. In this connection the premise is a sound one that local charter provisions for the making of appointments in civil service are mandatory and controlling (10 Cal.Jur.2d, Civil Service, § 15); and there is the further valid premise that 'the ascertainment of fitness and merit for office is the primary objective of the civil service system, and a competent procedure for promotion is an essential part thereof.' (Almassy v. L.A. County Civil Service Comm., 34 Cal.2d 387, 404, 210 P.2d 503, 513.) To that end, judicial notice being taken thereof (Evid.Code, § 451, subd. (a)), section 802 of the respondent City's charter provides that all appointments and promotions of its officers and employees shall be made on the basis of merit, their fitness to be demonstrated by appropriate examination or other evidence of competence. Accordingly, 'when an administrative agency acts in excess of, or in violation, of the powers conferred upon it, its action thus taken is void.' (Ferdig v. State Personnel Bd., 71 Cal.2d 96, 104, 77 Cal.Rptr. 224, 229, 453 P.2d 728, 733.) To the same general effect are decisions of the United States Supreme Court, including Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 which states 'that regulations validly prescribed by a government administrator are binding upon him as well as the citizen, and that this principle holds even when the administrative action under review is discretionary in nature.' (354 U.S. 363 at p. 372, 77 S.Ct. 1152 at p. 1157, 1 L.Ed.2d 1403 at p. 1410.)

To the foregoing line of argument respondents in their brief say nothing, limiting their reply to their assertion that the trial court properly found that the document or bulletin announced an examination from which an 'assignment' to the post of helicopter pilot would be made. Emphasized by them is their own construction of the document, together with the principle they claim applies, that in choosing between various constructions of an administrative regulation, the ultimate criterion is the interpretation thereof by the promulgating authority, citing Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616. However, that case, as do other decisions therein mentioned, holds only that the administrative interpretation of a statute or regulation is entitled to great weight at the trial level. Thus, "To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.' (Citations.)' (Supra, 380 U.S. at p. 16, 85 S.Ct. at p. 801, 13 L.Ed.2d at p. 625.) By contrast in the present proceeding, except for Mr. Morris' examination under section 770, Supra, the trial court permitted only one construction of the document to be received--that given by respondents. Proffered proof inconsistent therewith was cut off because it assertedly called for opinion testimony by persons not parties to the so-called 'contract.'

The quotes around the term 'contract' are given by respondents who apparently do not question the fact that appellant's employment by respondent City for an alleged period in excess of seven years is contractual in nature. Accordingly, when asked to adjudicate pension claims, the courts have repeatedly declared that 'The charter provisions relative to pensions are a part of the contract of employment between the City and the employees of the fire and police departments. (Citations.)' (City of Long Beach v. Allen, 143 Cal.App.2d 24, 27--28, 300 P.2d 349, 351.) We further assume, if only because of the nature of the objection to the proffered proof, that the bulletin or document in question constituted but another offer, contractual in nature, of further employment at a higher rate of pay. In this connection, it is most significant that respondents concede that the document here involved is one of 'adhesion.' In Frates v. Burnett, 9 Cal.App.3d 63, 87 Cal.Rptr. 731, such type of contract is described as 'an agreement not resulting from the freedom of bargaining but one which permits the...