Varela v. Board of Police Com'rs

• Court: California Court of Appeals
• Writing for the Court: SHINN
• Citation: Varela v. Board of Police Com'rs, 238 P.2d 62, 107 Cal.App.2d 816 (Cal. App. 1951)
• Decision Date: 03 December 1951
• Parties: VARELA v. BOARD OF POLICE COM'RS et al. Civ. 18499.

Page 62

238 P.2d 62

107 Cal.App.2d 816

VARELA v. BOARD OF POLICE COM'RS et al.

Civ. 18499.

District Court of Appeal, Second District, Division 3, California.

Dec. 3, 1951.

Hearing Denied Jan. 31, 1952.

Victor O. Geretz, Los Angeles, for appellant.

Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., George William Adams and John F. Feldmeier, Deputy City Atty., all of Los Angeles, for respondents.

SHINN, Presiding Justice.

Raymond E. Varela petitioned the superior court for a writ of mandate to compel defendants to reinstate him as a sergeant in the Los Angeles Police Force. The demurrer of all defendants to the petition was sustained without leave to amend and Varela appeals from the judgment thereafter entered.

It was alleged in the petition that in December, 1948, appellant, then a police sergeant, was accused of accepting a bribe. The accusation was made by officers of the personnel division of the Police Department who interrogated appellant for a period of five hours, during which time he was not allowed counsel. During the interrogation Varela was told that if he did not resign he would have to face prosecution for the offense, but that if he resigned there would be no prosecution with its attendant disgrace, humiliation and adverse publicity; as a result of this pressure appellant resigned, although he was innocent. His resignation was accepted by the Chief of Police and the acceptance approved by the Board of Police Commissioners December 8, 1948. Shortly thereafter he was charged with bribery by criminal complaint, was tried and acquitted of the charge in February, 1949. Soon after his acquittal Varela met with two members of the Board of Police Commissioners who assured him they would reinstate him if he would refrain from filing a claim for reinstatement until after the municipal elections of May 31, 1949. Varela relied on these representations and did not at that time file a demand for reinstatement as required by section 112 1/2 of the City Charter. After the election Varela did not file a demand but corresponded with the Police Commissioners from June 14, 1949, to November 2, 1949, seeking the promised reinstatement. On November 23, 1949, the Board of Police Commissioners adopted a resolution rescinding the action of the board taken December 8, 1949, ordering his immediate restoration to his position as a member of the department, and ordering a citation of appellant before a Board of Rights for a hearing on the charge leading to his resignation.

On November 30, 1949, the Board of Civil Service Commissioners refused to accept the reinstatement. On February 9, 1950, Varela filed a demand for reinstatement with the Civil Service Commission, which was denied. On July 19, 1950, the petition for writ of mandate was filed and on October 11, 1950, the alternative writ issued.

If the resignation of plaintiff was wrongfully obtained he was in the position of one who had been wrongfully discharged. Moreno v. Cairns, 20 Cal.2d 531, 127 P.2d 914. Conceding that such was the status of appellant, if the resignation was involuntary the parties advance the following contentions; appellant says that he has been reinstated by the Board of Police Commissioners and that respondents should be compelled to respect his rights as a member of the department. Respondents say that the facts alleged in the petition were insufficient to show that appellant's resignation was involuntary in a legal sense. They deny that the Board of Police Commissioners had authority to reinstate appellant. They assert that appellant cannot maintain the present action without having first made a demand upon the Board of Civil Service Commissioners for reinstatement, which he failed to do within the time prescribed by section 112 1/2 of the City Charter. They maintain also that appellant's claims must be rejected because of his failure to prosecute the same with diligence. Appellant replies that respondents are estopped to take advantage of his failure to make a timely demand for reinstatement, and that the facts which he has pleaded sufficiently excuse his failure to act more promptly.

In discussing appellant's first contention we must look to the charter provisions which invest certain boards with authority in the matter of lay-off, suspension or removal, and reinstatement of city employees.

Section 112 provides in substance that removal, discharge or suspension of an employee, other than members of the Police Department and Fire Department in the classified civil service, is subject to review by the Board of Civil Service Commissioners which may, after investigation, sustain a removal, discharge or suspension, or vacate the same.

Section 112 1/2 ¹ provides that a person who has been laid off, suspended or discharged, may not maintain an action for reinstatement or for compensation unless within 90 days he files with the Board of Civil Service Commssioners a written demand for reinstatement.

The charter does not invest the Police Commission with the power to reinstate members of the department who have been laid off, suspended or discharged. That power is vested exclusively in Boards of Rights.

Sections 135, applying to firemen, and 202, applying to policemen, provide (except as to resignations or temporary suspensions) that no employee of either department shall be suspended, removed, deprived of his office or otherwise separated from the service except upon a finding of 'guilty' of specific acts charged against him. The sections outline procedure for trial of the accusation before a Board of Rights where the employee has been suspended or relieved from duty. The board has the power to impose penalty by way of suspension or removal upon a finding of 'guilty,' or to vacate the action taken against the employee. The attempted reinstatement of appellant was ineffectual.

We shall consider next the contention of respondents that under the facts pleaded appellant's resignation must be regarded as having been given voluntarily. They rely upon the rule that threats to take action which may be taken lawfully, do not amount to duress, and they say that since it was not unlawful for the members of the Police personnel division to prosecute appellant, there was nothing wrong in their uttering threats of prosecution; therefore, they say, appellant's resignation if induced by such threats was nevertheless a voluntary one. We cannot agree that the rule has application to the case of appellant. When appellant asserted that his resignation was wrongfully obtained, he had the rights of one claiming to have been unlawfully discharged, that is to say, a right to the trial of that question of fact. It was a question in the first instance for an administrative board. The question here is whether the triers of facts could, within their discretionary powers, upon the facts alleged, find that plaintiff's resignation was not given voluntarily. We do not doubt that an administrative board could lawfully repudiate the alleged threat of prosecution and the alleged promise to refrain therefrom if plaintiff would resign, as intolerable, seriously detrimental to the morale and integrity of the police department, and contrary to public policy. It would be presumptious for the courts to so limit the discretionary powers of a city administrative board as to require it to withhold reinstatement of an employee whose resignation had been obtained by such unfair and oppressive means. We...