Whoriskey v. City and County of San Francisco

• Citation: 213 Cal.App.2d 400,28 Cal.Rptr. 833
• Parties: William E. WHORISKEY, Petitioner and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Ellis D. Sox, M.D., Director of Public Health of the City and County of San Francisco, Civil Service Commissioner of the City and County of San Francisco, Richard C. Ham, William Kilpatrick and Hubert J. Soher, as Civil Service Commissioners of the City and County of San Francisco, a municipal corporation, Respondents. Civ. 20198.
• Decision Date: 27 February 1963
• Court: California Court of Appeals

Page 833

28 Cal.Rptr. 833

213 Cal.App.2d 400

William E. WHORISKEY, Petitioner and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Ellis D. Sox, M.D., Director of Public Health of the City and County of San Francisco, Civil Service Commissioner of the City and County of San Francisco, Richard C. Ham, William Kilpatrick and Hubert J. Soher, as Civil Service Commissioners of the City and County of San Francisco, a municipal corporation, Respondents.

Civ. 20198.

District Court of Appeal, First District, Division 2, California.

Feb. 27, 1963.

Rehearing Denied March 18, 1963.

Hearing Denied April 24, 1963.

W. M. Pinney, Jr., San Francisco, for appellant.

Thomas M. O'Connor, City Atty., of City and County of San Francisco, Paul J. Di Noia, Deputy City Atty., San Francisco, for respondent City and County of San Francisco.

AGEE, Justice.

Petitioner appeals from the order and judgment of the superior court denying a writ of mandate to restore him to his previous civil service position as ambulance driver for the San Francisco Department of Public Health.

By letter dated July 10, 1959, the Director of Public Health summoned petitioner to appear before him, at a public hearing, on July 17, 1959, at 10 o'clock a. m., to show cause why he should not be dismissed from the service of the department. The charge was stated therein as follows: 'Inattention to duties, namely failing to report for duty on July 2, 1959. To date this year you have been off duty 7 times without a satisfactory explanation.'

The hearing was held on July 17, 1959, but petitioner was not present. So a rehearing was held on November 12, 1959, at which time petitioner and his counsel were present. The record of this second hearing is the only one considered herein.

At the conclusion of this hearing the Public Health Officer dismissed the petitioner from the service for inattention to duty. Petitioner argues that he was charged on two grounds, one, that he failed to report for duty on July 2, 1959, and, two, tht he had been off duty seven times without a satisfactory explanation. He states that there 'was no evidence produced to substantiate' the second charge. In view of our conclusion that there is substantial evidence to support the charge as to July 2, 1959, it is unnecessary for us to decide whether the sentence relating to the seven prior absences is or is not a separate charge or whether it is merely an explanation of why the failure to report for work on July 2, 1959, was the 'straw that broke the camel's back.'

If the charge as to July 2, 1959, is sufficiently supported by the evidence, then we need not determine whether the seven prior absences were 'without a satisfactory explanation.' (Vestal v. State Personnel Board (1960), 178 Cal.App.2d 920, 922, 3 Cal.Rptr. 618.)

Section 154 of the Charter of the City and County of San Francisco provides in part as follows: 'The appointing officer [i. e., the Public Health Officer] shall publicly hear and determine the charges, and may exonerate, suspend or dismiss the accused.' The petitioner appealed his dismissal to the civil service commission, which upheld the action of the appointing officer. The petition to the superior court for a writ of mandate followed. The matter was submitted on the record and the petition was denied. This appeal from the judgment entered upon such denial was thereupon taken.

The first sentence of section 154 provides that a civil service employee shall not be removed or discharged 'except for cause * * *.' A definition of cause is not given. However, in Bannerman v. Boyle, 160 Cal. 197, 206-208, 116 P. 732, 735, the Supreme Court interpreted the meaning of 'cause,' as used in the Charter of the City and County of San Francisco, as follows: 'The words 'for cause,' without more, imply good cause; the existence of some fact which would constitute a reasonable cause for removal. * * * So understood, there is nothing in its terms which implies an intent to give the clause conferring power to remove 'for cause,' any other than its well-established meaning; that is, a sufficient cause proven upon a hearing after reasonable notice.'

Thus, any reasonable, sufficient cause may be grounds for dismissal by the appointing officer. The appointing officer has a wide discretion in determining the fitness of an employee to continue performing the duties required by his employment. (Hayman v. City of Los Angeles, 17 Cal.App.2d 674, 679, 62 P.2d 1047.)

Although not applicable here, the charter provides that the civil service commission may also hear charges in the first instance if filed by a citizen (not the appointing officer) or by the authorized agents of the commission when the appointing officer neglects or refuses to act. In such instance the causes for removal or discharge are limited to eight specified grounds, one of which is 'inattention to duties.'

The general power of the appointing officer to discharge is not so limited. (Cronin v. Civil Service Comm., 71 Cal.App. 633, 636, 640, 236 P. 339; Fee v. Fitts, 108 Cal.App. 551, 556, 291 P. 889.) However, the charging letter does use the phrase 'inattention to duties' and thus gives rise to one of petitioner's contentions.

In his opening brief, petitioner cites a number of negligence cases which define 'inattention' (to duties). He apparently contends that one cannot be inattentive to duty until he is actually on the job and that an excusable absence is something different than 'inattention to duties.' We do not agree. We construe an inexcusable absence as constituting an inattention to duties.

Indeed, petitioner says so in his closing brief. He points out that an employee who is prevented from reporting for work through no fault of his own should not be considered to be guilty of inattention to duty. With this we agree. Then he says: 'It ligically follows, then, that only an unjustified absence be considered grounds for the charge of inattention to duty.' (Emphasis ours.) With this we do agree.

The sole question on this appeal is whether there is substantial evidence to support the charge that petitioner's failure to report for duty on July 2, 1959, was, under the circumstances, an 'inattention to duties.'

No contention is made that dismissal is too severe and is not warranted even though this charge is upheld. The petitioner's past employment record is such that the Director of Public Health would be derelict in his duties if he did not so act. (See Fernelius v. Pierce, 22 Cal.2d 226, 234, 138 P.2d 12.)

With regard to evidence of past misconduct, petitioner's counsel stated his position at the hearing as follows: 'Only for a limited purpose would I make the objection [to such evidence], and that is that the evidence certainly would be admissible to determine the degree of any punishment that might be inflicted on Mr. Whoriskey, but should not be admitted to prove the charges.'

It is undisputed that petitioner failed to report for duty at midnight, July 2, 1959, and that he also failed to notify the department that he was unable to report. His explanation was that he had taken a sleeping pill, had fallen asleep on the sofa in his home about 5 o'clock in the afternoon, had not heard the telephone ringing at about 11 o'clock, and was still sleeping soundly until aroused by his wife shortly after midnight.

The appointing officer (Director of Public Health) was not required to believe this explanation. Earl Blake, the Administrative Superintendent of the Emergency Hospital Services, testified as follows: 'Over a period of many years Whoriskey has had a history of alcoholism, which he knows.' Blake was not cross-examined by petitioner's counsel on this point. Petitioner denied drinking hard liquor but admitted drinking beer. In response to the question, 'How much beer a day do you drink?' he testified: 'Sometimes four or five cans, sometimes six cans.'

Lee Fredericks, the booking steward at Central Emergency Hospital, testified that he had known and worked with petitioner for many years. He was familiar with the speech of petitioner when he was under the influence of liquor as contrasted to his speech when he was not under such influence. He testified that he made the following report to Joseph Clary, Assistant Administrative Superintendent: 'On Wednesday evening 1 July 59 at 11 PM I reported for duty at Central Emergency Hospital as Booking Steward. At approximately 11:10 PM Driver Kenneth Hopkins remarked that his relief, Mr. William Whoriskey, had not yet come in. I telephoned Mr. Whoriskey's home, allowing the phone to ring an unusually long time in case Mr. Whoriskey had overslept. There was no answer. Having in mind the possibility of an error on my part, I rechecked the phone number and called again with the same results. Mr. Hopkins and I discussed the fact that Mr. Whoriskey would not be officially late until 12 midnight and agreed to postpone any action until that time. At that time Mr. Whoriskey was again called. A woman's voice, which I immediately recognized as that of Mrs. Whoriskey, answered and I asked her if she knew where Mr. Whoriskey was or if he had intended to come into work. Mrs. Whoriskey explained that she had returned home about ten or fifteen minutes ago and had gone straight to bed and only when she had answered the phone did she realize that Mr. Whoriskey was asleep on the sofa. When I asked if he intended to come into work she said that I had better talk to him. When Mr. Whoriskey talked to me on the phone his voice was thick and blurred and his conversation was confused and incoherent and consisted of such questions as 'Do you think I should come in?' and 'Do you want me to come in?'. After several minutes of this Mrs. Whoriskey came back on the phone and I suggested that it would be best if we obtained a relief driver for Mr. Whoriskey and she agreed.'

Petitioner's wife testified that she got home about 11:30 p. m. and that she answered the telephone...