LA PRADE v. DEPARTMENT OF WATER AND POWER OF CITY OF LOS ANGELES ET AL

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

LA PRADE v. DEPARTMENT OF WATER AND POWER OF CITY OF LOS ANGELES ET AL.

Civ. 14095.

Decided: March 04, 1944

Ray L. Chesebro, City Atty., S. B. Robinson, Chief Asst. City Atty., and G. Ellsworth Meyer, Deputy City Atty., all of Los Angeles, for appellants. David Sokol, of Los Angeles, for respondent.

Petitioner, who was discharged from his civil service position in the Department of Water and Power of the City of Los Angeles, sought a writ of mandate directing his reinstatement to the position from which he had been discharged, and directing the payment of accrued salary from the date of his discharge. Judgment was for the petitioner. The respondents named in the petition appeal from the judgment. Said respondents are: the Department of Water and Power, and the individual members of the Board of Commissioners of said department; the Board of Civil Service Commissioners of the City of Los Angeles, and the individual members of said board; Dan O. Hoye, city controller of Los Angeles; and the City of Los Angeles.

Petitioner had been an employee of the department of water and power 21 years and 7 months continuously when he was discharged on August 28, 1942. During a period of approximately 20 years, preceding his discharge, he had occupied the position of junior electrical engineer, grade B, in the classified civil service of the City of Los Angeles.

On August 28, 1942, the board of commissioners of said department of water and power filed with the board of civil service commissioners of said city, and duly served upon petitioner, a written notice stating that said commissioners of the department of water and power had on that day discharged petitioner, and stating further the alleged cause for the discharge as follows:

“Published and distributed or caused to be published and distributed over his own name and title in the ‘Official Organ of the Municipal Civil Service Association’ entitled ‘The Civil Service Sentry’, dated August 15, 1942, distorted and misleading statements concerning the Board of Water and Power Commissioners and the General Managers of the Department of Water and Power.

“Such published statements cause or tend to cause dissatisfaction and dissension among employees of the Department of Water and Power concerning their wages and working conditions, create or tend to create distrust of the Board of Water and Power Commissioners and the General Managers of the Department of Water and Power, and incite or tend to incite employees of the Department to action against the Department of Water and Power.

“As president of such Association he has permitted, participated in, approved, and encouraged the publication and distribution of the issue of ‘The Civil Service Sentry’ above referred to, which issue contains:

“1. A statement which by innuendo refers to the Board and the General Managers as follows: ‘Figures can't lie but liars can figure.’

“2. Statements which further cause or tend to cause dissatisfaction and dissension among employees of the Department of Water and Power concerning their wages and working conditions, create or tend to create distrust of the Board of Water and Power Commissioners and the General Managers of the Department of Water and Power, and incite or tend to incite employees of the department to action against the Department of Water and Power.”

Upon the filing of such notice the discharge took effect. Charter of the City of Los Angeles, Art. IX, Sec. 112(a).

The department of water and power will be referred to hereinafter as the department; the board of commissioners of the department of water and power will be referred to as the board; and the board of civil service commissioners will be referred to as the commission.

In considering such a notice of discharge, if the commission finds, in writing, that the grounds stated for such discharge are sustained, the proceedings before the commission concerning the discharge are ended. If the commission finds, in writing, that the grounds stated for such discharge are not sustained, it is required to find, before it can reinstate the employee to his position, that he is a fit and suitable person to fill the position from which he was removed. Charter of the City of Los Angeles, Art. IX, Sec. 112(a). Said section of said charter provides in part as shown in the footnote.1 The commission is not required to hold a formal hearing or trial; and a statement in the minutes is a sufficient form of the finding required to be in writing as to whether the charges are sustained. Krohn v. Board of Water & Power Com'rs, 1928, 95 Cal.App. 289, 292, 295, 272 P. 757.

On August 28, 1942, petitioner delivered to said commission a letter from himself stating that petitioner denied “all the causes enumerated in the notice of removal, discharge or suspension dated August 28, 1942, as a basis for proper discharge,” and requesting that he “be permitted to make a personal appearance, in order that each member of your Board may have personal knowledge of my deportment and attitude, at the hearing following your investigation of the grounds for my discharge.”

On September 1, 1942, petitioner caused to be delivered to said commission another letter from himself stating, in part, “I desire to supplement my communication filed with your Board * * * by specifically requesting herewith that a Civil Service investigation be made of my discharge from the classified civil service * * *.”

On September 10, 1942, the commission sent a letter to petitioner stating that “your appeal from discharge as Junior Electrical Engineer ‘B,’ Department of Water and Power, with report and recommendation for action from the General Manager of this department, will be submitted to the Board of Civil Service Commissioners at its regular meeting scheduled for 2:00 p. m. Tuesday, the 15th.” On September 11, 1942, a notice was sent to petitioner stating that the meeting at which his appeal would be considered had been changed to “2:00 p. m. Wednesday the 16th.”

At the meeting on September 16th, petitioner was present. The minutes of that meeting state, “Notice was presented of the discharge August 28, 1942, of Z. H. LaPrade as Junior Electrical Engineer B, Department of Water and Power, for the following cause * * * [It was stipulated that the cause stated in the minutes was the same as the charge set forth in the notice of discharge of August 28, 1942, from the Department of Water and Power.] together with communication from Mr. LaPrade of August 28, 1942, categorically denying the charges as a basis for proper discharge, and requesting permission to make a personal appearance at a hearing following investigation by the Board of Civil Service Commissioners, communication dated September 2 from David Sokol, attorney at law, filing a request for the Municipal Civil Service Association that Mr. LaPrade be reinstated, and second communication from Mr. LaPrade dated September 1, 1942, supplementing his first communication of August 28, 1942, by specifically requesting that a Civil Service investigation be made of his discharge. There was present as interested in the case, besides Mr. LaPrade * * *. After the reading by the secretary of the charges, Mr. LaPrade was asked if he had anything to present to the Board and stated that, on advice of counsel, he had nothing to say other than to categorically deny the charges, explaining further that by his second communication, he wished to request only the regular Civil Service investigation under charter provisions without a formal hearing. Commissioner Lazard moved and it was seconded that the Commission take the matter under advisement. The motion was adopted by the following vote * * *.”

On September 18, 1942, petitioner sent a letter to the commission stating: “In compliance with Section 112 1/2 of the City Charter of Los Angeles I hereby demand that your Honorable Board reinstate me to my position * * * from which I was illegally discharged on August 28, 1942.”

The minutes of a meeting of the commission held on September 22nd state: “The Commission proceeded to the consideration of the discharge August 28, 1942, of Zerah H. LaPrade, junior electrical engineer ‘B’ Department of Water & Power for cause, as set forth in detail in notice of said discharge and made a part of the Minutes of the regular meeting of September 16, 1942, and by reference thereto made a part hereof as though fully set forth herein, together with staff report of September 1, 1942, covering investigation made at the request of Mr. LaPrade. After discussion, Commissioner Woellner moved that the discharge of Mr. LaPrade be sustained. The motion was seconded and adopted by the following vote * * * [names of 5 commissioners]. Noes, none.” (A further statement was added to these minutes at a subsequent meeting held on September 25.)

The minutes of the meeting of the commission held on September 25th state: “President Wadsworth: Before taking up the regular addenda at this meeting, Commissioner Gillette would submit a statement and clarification of the record in connection with the discharge of Zerah H. LaPrade. Commissioner Gillette prepared a form of written statement explanatory of the action taken sustaining the discharge of Mr. LaPrade. He moved, and it was seconded, that the secretary be directed to insert the following statement in the minutes of the meeting of the Board on September 22 in connection with the action of the Board at that meeting sustaining the discharge of Mr. LaPrade: ‘In considering the case of Z. H. LaPrade, the Civil Service Commission, as a result of its investigation is of the belief that the employee by reason of participation in the preparation of an article which appeared in the Civil Service Sentry, August 15, 1942, and as President of the organization, must be held constructively responsible for the issue of the publication in question; that the language employed in said publication was abusive, unbecoming a civil servant, and detrimental to Civil Service, and on this basis the Commission sustains the discharge.’ The motion was adopted by the following vote: * * * [names of 4 commissioners]. Noes, none.”

An additional statement was inserted at the end of the minutes of September 22nd as follows: “At the meeting of the Commission held on September 25, 1942, the secretary was instructed by a motion duly made and adopted to insert in these minutes the following statement * * * [said statement being the one directed by the minutes of September 25th (shown above) to be inserted in the minutes of September 22nd].”

The senior technician of the civil service commission, whose duty was to investigate such charges, made an investigation of said charges at the request of the commission and filed a written report with the commission. That report, which recommended against dismissal, was referred to in the minutes of September 22nd as the “staff report of September 1.” The minutes of September 22nd stated, as above shown, that the commission “proceeded to the consideration” of the notice of discharge “together with staff report of September 1.” That report was as follows:

“September 1, 1942

“To: General Manager

“From: Classification Division

“For consideration of the Board

“Statement of the case: The Department of Water and Power has discharged Zerah H. LaPrade, from which he has appealed, on the grounds that articles and statements which he ‘published and distributed and caused to be printed’ created dissension among employees, and distrust of the Board of Water and Power Commissioners.

“The publication to which they refer in their charges is attached to this file, with red underlining of those portions to which the charges specifically refer.

“Attention is called to the fact that the specific reference ‘Figures can't lie, but liars can figure’, did not appear over Mr. LaPrade's name as alleged.

“Recommendation: That the charges filed by the Board of Water and Power Commissioners do not constitute a proper and sufficient cause for dismissal, and that the Board of Civil Service Commissioners order the restoration of Mr. LaPrade.”

On September 28, 1942, the commission sent a letter to petitioner stating that “on the 22nd the Board of Civil Service Commissioners took under consideration the matter of your discharge August 28, 1942 * * * and staff report of September 1st covering investigation made at your request. I am instructed to inform you that * * * [Here the supplemental minutes of September 25th were stated].”

Petitioner was not present at, and had no notice of, any meeting of the commission after September 16th.

Petitioner was president of the Municipal Civil Service Association, a corporation, the members of which were civil service employees of the City of Los Angeles. The purposes of the association were to promote the merits of civil service and improve the working conditions and salaries for civil service employees. A newspaper, “The Civil Service Sentry,” was the official publication of that association. The association employed and paid an editor who supervised and published the paper. The editor was also the executive secretary of the association. As editor it was his duty to attend the executive committee meetings and “to carry on the things that were discussed in the executive committee meeting and publish them,” and “that was left to him.” The president had nothing to do with the publication of the paper. The published statements referred to in the notice of discharge were two articles which appeared in that newspaper on August 15, 1942.

In a telephone conversation with the editor, the petitioner authorized the publication of one of those articles, which was as follows:

“Notice

“August 15, 1942

“Fellow Workers:

“This issue of The Sentry is dedicated to the wage and salary problems of employees of the Department of Water and Power.

“These problems in this Department are different from those in other City Departments because salaries in most government employment are fixed by elected representatives of the people whose power to negotiate, mediate, and arbitrate salary matters are strictly limited.

“The Department of Water and Power is not hamstrung by such limitations. It is a revenue producing agency. It is rolling in profit from the war industries. If it does not choose to deal with employees in an open, realistic and fair manner on the wage question, there Are remedies.

“For months the Board of Water and Power Commissioners has politely referred all wage adjustments to the General Managers, and then maintained the Board had no proposal before it on which it could act!

“Employees do not have to continue to put up with this kind of treatment. Employees can exercise their rights.

“The mass meeting Thursday night has been called at the request of our members who are tired of the dilatory way in which their requests for a blanket wage increase have been treated.

“Fraternally yours,

“Z. H. La Prade, President”

Petitioner did not authorize the publication of the other article, and had no knowledge of its publication and had not seen it, until he received the newspaper by mail at his home. The headline of the other article was, “Figures Can't Lie But Liars Can Figure,” and the article contained about 2500 words. The headline apparently was the basis for the main objection to that article. It is not necessary to set forth the article herein.

It appears from the above–mentioned record evidence of the proceedings before the commission, that there was compliance with the provisions of section 112(a) of the Charter of the City of Los Angeles. It appears, as one interpretation, from the face of the minutes that on September 22nd the commission sustained, in writing, the discharge on the grounds stated in the notice of discharge. If the discharge was so sustained the only question that remained for the trial court was whether the cause of discharge was sufficient legally. The legal sufficiency of the cause of discharge will be discussed hereinafter.

A question arises, by reason of the manner of recording the minutes, whether that which appears from the face of the minutes of September 22nd as the action of the commission, i.e., that the grounds of discharge as stated in the notice were sustained, was in fact the action taken.

Petitioner contended at the trial that the minutes did not show accurately the action of the commission on September 22nd; and contended further that the vote of the commissioners was not, as shown by the minutes, to sustain the discharge on the grounds stated by the board of water and power commissioners.

The minutes are only prima facie evidence of the facts stated therein. Code Civ.Proc. secs. 1920, 1926. The minutes are sufficient proof of a fact until and unless contradicted and overcome by other evidence. In re Estate of Woodson, 1939, 36 Cal.App.2d 77, 80, 96 P.2d 1016.

The secretary of the commission, whose duty was to write the minutes, testified: that she did not make the minutes of the meetings, or take any notes of the proceedings of the commission during the meetings; that, “I don't take minutes on the date”; and that, “I write the minutes of the actions from my memory of the action that was taken”; and, “If it is necessary for me to check on the action, I do refer to the stenographer's notes.” She testified further concerning the making of the minutes of September 22nd that: “Why, I did not take any notes. I discussed with Miss Lampton [the stenographer]––discussed it with Miss Lampton and I may have referred to her notes as to what the action really was. I don't attempt to remember or get all of the discussion. My obligation is to record the action,” and, “I think I could truly say that I did” rely on the stenographer's notes.

The minutes of September 22nd, prior to the addition of the minutes of September 25th, stated, as above shown, that: “The commission proceeded to the consideration of the discharge * * * for cause, as set forth in detail in notice of said discharge * * * together with staff report of September 1, 1942, covering investigation made at the request of Mr. LaPrade. After discussion, Commissioner Woellner moved that the discharge of Mr. LaPrade be sustained. The motion was seconded and adopted * * *.”

The stenographer for the commission testified that she had “some notes” of the meetings of the commission in the LaPrade matter, and that, “I am not required to take verbatim notes, but only sufficient notes so that the secretary might check back on actions and motions and resolutions in order to record the proceedings of the meetings.” As a witness the stenographer read her shorthand notes of the meeting of September 22nd, as follows: “President Wadsworth: Before taking the items from the addenda, I want to make a statement of our position on behalf of the Commission in the LaPrade case, and after which I will entertain a motion in regard to it. The Commission, through its investigation, does not find the charges against Mr. LaPrade fully sustained, although the Commission disapproves of the type of article, the language used, and the abuses intended in his publication. It does not believe it becoming Civil Service or civil servants. We have a certain responsibility under the Charter, however. In matters of this kind, in addition to the determining of whether or not the charges are sustained or not sustained, the question arises as to certification of the individual as a fit and proper person to return to duty, and the Commission is unable to make a finding in that regard that would justify overruling the discharge. The employee involved makes no categorical denial of the charges as such; he merely denies that the charges are a proper cause for discharge––a very different thing.

“Second, he requested a hearing before the Commission so that the Commission could judge something of him through his attitude and deportment, and he appeared before the Commission and didn't tell us anything. On that basis, on the issue of certification that he is a fit and proper person to return to duty, we do not have sufficient evidence to return him to his job. With that preface, I will entertain a motion on that basis.

“Commissioner Woellner: I move, especially since he has shown in his manner of presenting his case––at least it is not the way of the courts––that he refuses to cooperate with the Civil Service Commission.

“Commissioner Lindauer: On the basis of the statement made by the President of the Commission, I second that.

“Commissioner Gillette: Mr. Chairman, before I vote I would like to make a statement: I am voting to sustain the Commission that the discharge be upheld. I think the management in this case, and I'm not saying it exactly ‘with my tongue in my cheek,’ but I do recognize, I believe, some of the most inconsistent features of management in that department that I have ever had the misfortune to know. While I am perfectly willing to admit that there is a difference in status of public service and private service, there is a method of presenting things in proper form and being consistent in the manner of handling things. I can't approve of the Commission coming over here with the discharge of a person in the lower ranks and not upholding the same principle or having the same desire to improve the condition in the upper ranks. That is what I find we have. While part of the bracket left their jobs, we find a lower part of the bracket, because they felt they had a grievance, did a lot of ‘jockeying around’ to try to meet an issue, and they discharged persons for it. From my side of the picture the person discharged is being held for a position he was not responsible for, but he did make a bad mistake in the article he wrote, and so forth, but I wish my vote to be registered in approving of the discharge brought over here and disapproving of the inconsistent manner of looking for reasons and the way of presenting them here, and only on that basis I would register my vote to uphold the Commission.

“President Wadsworth: I would add to that, it is the consensus of the Commission that as a contest between the individuals who left their posts of duty and exposed the community to any hazards that might be entailed in that action, and the individual who says something, we see a vast difference, but the consensus of the Civil Service Commission is that we could deal only with the facts before us, and with the cases that come here, and there is nothing we could say in connection with this case on the part of the Civil Service Commission of the manner in which the strike was handled or the policy of differentiating between talking and actually leaving the job, in terms of discipline. Unless there is something to be added, I will entertain the motion on the discharge.

“Motion was unanimously carried.”

It appears therefore that the stenographer's notes upon which the minutes were based do not furnish a basis for the statements in the minutes that “Commissioner Woellner moved that the discharge of Mr. LaPrade be sustained,” and, “The motion was seconded and adopted.” Those notes show that the president said, in stating “our position on behalf of the Commission in the LaPrade case,” that “The Commission, through its investigation, does not find the charges against Mr. LaPrade fully sustained,” and that, “In matters of this kind, in addition to the determining of whether or not the charges are sustained or not sustained, the question arises as to certification of the individual as a fit and proper person to return to duty, and the Commission is unable to make a finding in that regard that would justify overruling the discharge.” (Italics added.) He said further, “On that basis, on the issue of certification that he is a fit and proper person to return to duty, we do not have sufficient evidence to return him to his job. With that preface, I will entertain a motion on that basis.” (Italics added.) The matter that was then before the commission was whether a motion should be made on “that basis” which had just been stated by the presiding officer. That basis was that the charges were not fully sustained and that the employee was not a fit and proper person to be returned to duty. As above stated herein, and as shown by the president's statement, if the charges were not sustained it was necessary before the employee could be reinstated that the commission find that he was a fit and suitable person to perform the duties of the position from which he had been removed. A motion therefore which would be on the basis stated by the president, and which would be in accordance with the provisions of the charter under the findings of fact as announced by the president, would be a motion that the commission find that the charges were not sustained and that the evidence was not sufficient to justify a finding that the employee was a fit and suitable person to fill the position from which he had been removed.

Immediately after the president said he would entertain a motion on “that basis,” Commissioner Woellner said, “I move,” but he did not state expressly what action he was proposing by such motion. He did state expressly, however, the especial reason why he made the motion, viz: that the employee had “shown in his manner of presenting his case * * * that he refuses to cooperate with the Civil Service Commission.”

Although the motion in itself was indefinite, it could be made definite by reference to the statement of the president immediately preceding it which invited a motion upon the basis stated by the president. The motion by Commissioner Woellner did not include any modification of the basis upon which a motion was invited, with the exception of a statement to the effect that he considered the conduct of the employee before the commission was sufficient evidence of unfitness. Commissioner Lindauer expressly noted in seconding the motion that he seconded it on the basis stated by the president. The reason given by Commissioner Woellner for making the motion related to the question of fitness of the employee to be reinstated. The conduct of the employee before the commission, referred to in giving the reason, being subsequent to the notice of discharge, did not relate to the sufficiency of the grounds of discharge, and, of course, was not referred to as evidence upon which the grounds for the discharge should be sustained. It seems that the commissioner was assigning an affirmative act of the employee as sufficient evidence of unfitness, while the president said, “[W]e do not have sufficient evidence as to his fitness.”

It is certain that the commission was determining the question of fitness of the employee to be reinstated. The question of fitness to be reinstated would not arise if the grounds of discharge were sustained. It is only when the charges are not sustained that the question of fitness arises. The act of the commission in proceeding to determine the question of fitness corroborates the statement of the president that the position of the commission was that it “does not find the charges against Mr. La Prade fully sustained.” It is clear that the motion was made upon the basis stated by the president which was that the charges were not fully sustained and the evidence was not sufficient to justify a finding that the employee was a fit and proper person to fill the position from which he was removed.

The motion having been adopted, the action of the Commission constituted a determination that the cause or grounds for discharge stated in the notice of discharge were not sustained, and that the evidence was insufficient to justify a finding that the employee was a fit and suitable person to fill the position from which he was removed. The minutes show that a motion “that the discharge be sustained” was adopted. It is to be noted that entry was not specific as to whether “the grounds stated for such removal, discharge or suspension were insufficient or were not sustained,” as contemplated by section 112(a) of the charter when the question of fitness is to be determined. (Italics added.) The entry as made is susceptible of the interpretation that the grounds for the discharge were sustained. As made, it is also susceptible of the interpretation that the discharge, which took effect when the notice was filed, was sustained, not because the charges were sustained, but for the reason the employee was not fit to be reinstated. Apparently the secretary considered the form of the minutes sufficient inasmuch as the ultimate result was the same whether the grounds were sustained or the employee was not reinstated by reason of unfitness. The employee was entitled, under the circumstances of this case, to a specific finding as to the reason he was not permitted to continue in the position. The minutes of September 22nd do not show accurately the action of the commission on September 22nd. It was proper to receive the testimony as to the shorthand notes made at the time of the meeting on September 22nd for the reasons that the secretary relied upon the notes in making the minutes, and that the minute entry as to the action of the commission was ambiguous.

At a meeting of the commission on September 25th, as above shown by the minutes of that date, the president of the commission said that a commissioner “would submit a statement and clarification of the record in connection with the discharge of Zerah H. LaPrade.” The secretary was instructed at that meeting to insert in the minutes of September 22nd a statement in part as follows: “* * * the Civil Service Commission * * * is of the belief that the employee by reason of participation in the preparation of an article which appeared in the * * * Sentry * * * and as President of the organization must be held constructively responsible for the issue * * * that the language * * * was abusive, unbecoming a civil servant, and detrimental to Civil Service, and on this basis the Commission sustains the discharge.” (Italics added.) This supplement of September 25th to the minutes of September 22nd stated, as it was stated in the minutes of September 22nd, that “the discharge is sustained,” but it does not state that the grounds for the discharge are sustained or that the employee is not fit to be reinstated. The commission did not find in that supplement to the minutes or at all that the employee published the article, as averred in the notice of discharge, but it did find that he was constructively responsible for the publication in question. Even if the defendant were constructively responsible for the publication the commission did not find in that supplement or at all, as averred in the notice of discharge, that the published statements were distorted or misleading statements concerning the water and power commissioners or the general managers of that department; or that said statements caused or tended to cause dissension among the employees, or distrust of the water and power commissioners, or to incite the employees to action against that department; or that the paper contained a statement which by innuendo referred to the “Board” and general managers as “Figures can't lie but liars can figure.” It did find that the language of the publication was abusive, unbecoming a civil servant and detrimental to civil service. In other words, the special findings of the commission as shown by the supplement to the minutes of September 22nd were different materially from the averments of grounds for discharge in the notice of discharge. The special findings in the supplemental minutes being at such variance with the averments of grounds for discharge in the notice, it cannot properly be concluded that the statement, “the discharge is sustained,” meant that the grounds for discharge as stated in the notice were true or sustained. Furthermore, the supplemental minutes show that the commission itself expressly designated its special findings therein as the basis for sustaining the discharge when it said, in referring to those special findings, that, “on this basis the commission sustains the discharge.” Apparently the secretary considered that, if the employee was not reinstated after his discharge, the form of these minutes, in order to show the action of the commission in not reinstating him, should also be that “the discharge is sustained,” irrespective of whether the failure to reinstate him was by reason of finding that the charges were sustained, or was by reason of finding that the charges were not sustained and that he was not fit. If the statement, “the discharge is sustained,” was used in the sense that the discharge, which took effect when the notice was filed, continued in effect because the employee was unfit to be reinstated, then the findings were deficient in that there was not a finding of unfitness. If said statement was used in the sense that the charges were sustained, then the specific findings, being so materially different from the charges alleged in the notice, would not support such a general finding, but on the contrary would establish that the charges were not sustained.

The undisputed evidence was that the employee had previous knowledge only of the publication of the article entitled “Notice” which appeared over his name. As to that article he was actually responsible therefor. The theory of constructive responsibility related only to the other article which the evidence shows was published without his actual knowledge. That theory was based upon the fact that the employee was president of the corporation which authorized the publication of the newspaper referred to herein. It has been held in contempt cases, to which this case is similar in legal principle, and in libel cases, that the president or other officer of a corporation engaged in publishing a paper is not responsible for articles published therein unless he personally caused or permitted the publication. Otis v. Superior Court, 1905, 148 Cal. 129, 82 P. 853; Sakuma v. Zellerbach Paper Co., 1938, 25 Cal.App.2d 309, 321, 77 P.2d 313. That rule eliminates the theory of constructive responsibility in this case. Therefore, insofar as the special findings in the supplemental minutes related to the article of which the employee had no previous knowledge, those findings should not have been considered by the commission in determining whether the charges were sustained or whether the employee was fit to be reinstated. As to the published article of which the employee had no actual previous knowledge, the commission did not find that said article (or the other one) had or tended to have the effect averred in the notice of discharge. It therefore appears that said supplement was not a finding that the grounds for discharge in the notice of discharge or any of them were true or sustained. The supplement shows that the commission sustained the discharge on the basis that the employee was constructively responsible for the publication and that the language of the articles was abusive, unbecoming a civil servant, and detrimental to civil service, while the employer, the department of water and power, discharged him on entirely different grounds as shown in the notice of discharge. The supplemental minutes did not accomplish the intended purpose of clarifying the action of September 22nd.

If such a commission does not find the grounds for a discharge to be true, the only remaining basis for not reinstating an employee would be that he is not a fit and suitable person to be reinstated. It may be that the special findings of the commission that the language was abusive, unbecoming and detrimental, as stated in the supplemental minutes, were intended as a basis for the refusal to reinstate the employee on the ground that he was not fit. The commission did not find, however, that he was unfit. It might be argued that such special findings state facts which show unfitness and under such circumstances it was not necessary to find unfitness in express terms. Section 112(a) of the charter contemplates an express finding on the question of fitness to be reinstated.

The special findings as to the character of the language used were based apparently upon the language of both articles, since the theory of constructive responsibility was the basis for holding the employee responsible for the second article. The theory of constructive responsibility having been eliminated, the remaining basis for the special findings as to character of language used is the language of the first article. The language of that one article, and the one publication of it, were not such that it constituted a basis for a finding that petitioner had thereby demonstrated his unfitness or unsuitability for restoration to his position. If the grounds alleged in a notice of discharge are not found to be sufficient or true as a basis for a discharge, those grounds in themselves should not be considered as sufficient or true as a basis for a finding of unfitness. Other than the one publication of the one article in question, there was no evidence that the petitioner, whose fitness and suitability in his position had been recognized by the board of water and power commissioners for 20 years, had in anywise become unfit or unsuitable for the position. It does appear further, however, in view of the reason given by Commissioner Woellner for his motion and in view of the president's comments, that the commission might have considered petitioner's “manner of presenting his case” by refusing “to tell us [them] anything,” at the meeting of September 16th, as evidence of unfitness. That such conduct before the commission might have been regarded as evidence of unfitness is also indicated in appellants' brief by the citation of and comments on the case of Christal v. Police Commission, 1939, 33 Cal.App.2d 564, 92 P.2d 416, which involved the discharge of a police officer for refusal to testify before the grand jury upon the ground that he might incriminate himself. The legal principle announced in that case is not applicable herein. This petitioner did not predicate his refusal to make a statement before the commission upon the possibility of self–incrimination. The petitioner testified at the trial herein that he did say before the commission: that on advice of counsel he had nothing further to say; that he would make a statement in the event of an investigation and he welcomed an investigation; and that he presumed he would hear at that meeting “the verdict of some investigation that had been made,” and since he “was apparently being put on trial” he “declined to talk until he knew what they had done.” His testimony that he told the commission he would make a statement after an investigation is corroborated by a statement in the minutes of September 16th which purported to recite the substance of his letter of September 28th, which statement was: “* * * Communication from Mr. LaPrade * * * requesting permission to make a personal appearance at a hearing following investigation by the Board of Civil Service Commissioners.” (Italics added.) At the time petitioner made the statement declining to talk until an investigation had been made, the commission had before it the written report of investigation (above quoted) made by the commission's senior civil service technician, recommending that the charges did not constitute sufficient cause for dismissal and that the commission order restoration. The commission did not advise petitioner that the contingency, upon which he said the making of his statement depended, had occurred, viz: that said investigation of September 1st or any investigation had been made. Although he was not entitled to a hearing before the commission, he had been notified of the meeting on September 16th and he was present. He would have been justified in assuming, after he had said he was awaiting an investigation, that an investigation had not been made at the time of the meeting and that when an investigation had been made he would be notified again of a meeting at which he could appear. The “manner of presenting his case” was not, under those circumstances, assignable as evidence of unfitness, particularly under the circumstance that the commission knew the existing investigation report was wholly favorable to him. Up to the time of petitioner's discharge there had not been any complaint as to his competency. He received increases in pay at various times. His last assignment before the discharge was that of technical adviser and administrative assistant to the director of the Los Angeles Civilian Defense Corps. He was the “dimout” expert assigned by the department of water and power in the “defense setup,” and appointed as such by the Mayor. The evidence before the commission was sufficient to support and require a finding that petitioner was fit and suitable.

It is true as asserted by appellants that the issue of fitness is not confined to occupational ability or limited by the specifications of the notice of discharge. Meyer v. Board of Public Works, 1942, 51 Cal.App.2d 456, 125 P.2d 50. In the Meyer case, cited by appellants, the commission made a finding that the employee was unfit and also made findings of fact showing the unfitness. In the present case there was no finding of unfitness and no finding as to facts within the specifications of the notice, or at all, showing unfitness.

Appellants also assert that the trial court did not have before it all of the evidence upon which the commission acted; and that the end of judicial review of an order of the commission is when it is determined there has been substantial compliance with the prescribed procedure. Even though it be conceded that a right to public employment is not a vested property right, nevertheless municipal employees holding employment under civil service rules are entitled as a matter of right to have the rules relative to their discharge from employment fairly invoked and applied. Garvin v. Chambers, 1924, 195 Cal. 212, 225, 232 P. 696. The trial court was authorized to determine whether the commission acted arbitrarily or abused its discretion, and whether the employee was given substantially the benefits to which he was entitled under civil service statutes. In order to determine those issues the inquiry in the trial court properly included whether there was substantial evidence before the commission in support of its order. If the court did not have before it the evidence upon which the commission acted, the commission had the opportunity to present evidence sufficient to show there was substantial evidence that the employee was unfit, if it had such evidence.

The article entitled “Notice” (for which petitioner was actually responsible), and the one publication of that article, did not constitute a legal cause for discharge of petitioner. The second article, referred to herein, the title of which related to “Figures,” was shown by undisputed evidence to have been published under such circumstances, without the knowledge of petitioner, that the publication of it did not constitute a legal cause for discharge of petitioner. The grounds stated in the notice of discharge were not sustained by legally sufficient or substantial evidence. These conclusions are in harmony with the decision of the commission's senior technician, and with the motion adopted by the commission that the charges were not fully sustained. The action of the commission in sustaining the discharge was arbitrary and an abuse of discretion.

The case of Hayman v. City of Los Angeles, 1936, 17 Cal.App.2d 674, 62 P.2d 1047, upon which appellants rely, is factually different from the present proceeding. The grounds stated in the notice of discharge in that case were (17 Cal.App.2d at page 678, 62 P.2d at page 1049): “Continuing to attempt to cause dissension among employees of the Refuse Collection Division by circulating a handbill protesting against the book of rules adopted by the Board of Public Works for the conduct of employees of said division.” (Italics added.) The court said therein on page 678 of 17 Cal.App.2d, on page 1049 of 62 P.2d: “In the notice of discharge the acts of petitioner were characterized as a continuance of attempts to create dissension among the employees.” (Italics added.) In that case the commission found the charges to be true. The judgment therein was upon the pleadings and the pleadings show (transcript p. 28) that the commission “sustained the charge upon which petitioner's discharge was based, and sustained the discharge.” The minutes of the commission in that case show (transcript p. 22) that the adopted motion was: “* * * inasmuch as the findings of investigation showed the charges against these men to be true and sufficient, the action * * * in discharging * * * be sustained.” (Italics added.) In the present case the charge was not a continuance of acts protesting the adopted rules of conduct for employees, but a single act of publishing a statement in a paper concerning an increase in wages. Furthermore, the investigation report herein showed that the charges were not proper and sufficient cause for dismissal. Also in the present case the commission did not find the charges to be true, and did not find the employee unfit.

The judgment is affirmed.

FOOTNOTES

1.  Article IX of the City Charter, Sec. 112(a). “Any board or officer having the power of appointment of officers, members and employees in any department of the government of the city, shall have the power to remove, discharge or suspend any officer, member or employee of such department; but no person in the classified civil service of the city, other than an unskilled laborer employed by the day, shall be removed, discharged or suspended except for cause, which shall be stated in writing by the board or officer having the power to make such removal, discharge or suspension, and filed with the Board of Civil Service Commissioners, with certification that a copy of such statement has been served upon the person so removed, discharged or suspended * * *. Upon such filing such removal, discharge or suspension shall take effect. Within fifteen days after such statement shall have been filed, the said board, upon its own motion, may, or upon written application of the person so removed, discharged or suspended, filed with said board within five days after service upon him of such statement, shall proceed to investigate the grounds for such removal, discharge or suspension. If after such investigation said board finds, in writing, that the grounds stated for such removal, discharge or suspension were insufficient or were not sustained, and also finds in writing that the person removed, discharged, or suspended is a fit and suitable person to fill the position from which he was removed, discharged, or suspended, said board shall order said person so removed, discharged or suspended, to be reinstated or restored to duty. The order of said board with respect to such removal, discharge or suspension, shall be forthwith certified to the appointing board or officer, and shall be final and conclusive * * *. If the Board of Civil Service Commissioners shall order that any person removed, discharged or suspended under the provisions of this section be reinstated or restored as above provided, the person so removed, discharged or suspended shall be entitled to receive compensation from the city the same as if he had not been removed, discharged or suspended by the appointing board or officer.”

PARKER WOOD, Justice.

DESMOND, P. J., and SHINN, J., concur.