Reset A A Font size: Print

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

 Michael BAGBY, Plaintiff and Appellant, v. CIVIL SERVICE BOARD OF the CITY OF OAKLAND et al., Defendants and Respondents.

No. A044456.

Decided: July 13, 1990

 Carroll, Burdick & McDonough, Donald T. Ramsey, Sarah M. Shields, San Francisco, for plaintiff and appellant. Jane W. Williams, City Atty., Joyce Hicks, Asst. City Atty., Curtis S. Kidder, Asst. to the City Atty., Oakland, for defendants and respondents.

In this action we consider whether a public safety officer has the right to an administrative appeal when his employment is  terminated by his employer for medical reasons.   We hold that pursuant to the Public Safety Officers Procedural Bill of Rights (Gov.Code, § 3300 et seq.),1 the officer is entitled to the same procedural rights as officers who are dismissed for disciplinary reasons.


Michael Bagby was employed as a police officer by the City of Oakland from March 31, 1980 until his discharge on August 24, 1984.   Prior to his discharge he had attained permanent civil service status.   On December 28, 1983, Deputy Police Chief Thomas Donohue advised Bagby that he intended to terminate Bagby's employment for his alleged failure to follow proper procedures in making an arrest and for alleged misconduct in a dispute at a restaurant.

Both incidents described in the December 28th letter occurred in November 1983 while Bagby was off-duty on sick leave status.   While on sick leave, Bagby presented himself to Dr. Leonard Schwartzburd for evaluation.   Schwartzburd concluded that Bagby suffered from “severely disturbed emotions and alcoholism” which “totally and temporarily disable him from his work as a police officer.”

On November 22, 1983, Bagby filed a claim against Oakland with the Workers Compensation Appeals Board.   The claim alleged that he suffered an industrial injury to his “emotional system and internal system” and sought adjudication of the issue of liability for, among other things, permanent disability indemnity.

On January 19, 1984, Donohue advised Bagby's counsel that no disciplinary action would be taken with respect to the allegations set forth in the December 28, 1983 letter until the city physician completed Bagby's medical evaluation.

On February 10, 1984, Dr. Schwartzburd prepared a complete psychological report on Bagby for Oakland's Workers Compensation Administrators.   The report concluded that Bagby had become a police officer by error, his personality was not well suited for work in a large police department and he should probably not return to police work.

Bagby was subsequently examined by Dr. Bradford G. Murphey, a psychiatrist.   Murphey opined that it was fortunate that Bagby had stopped  working before he lost control and killed somebody.   In his opinion Bagby was totally unsuited to police work and should never attempt to return to any form of law enforcement.

Dr. Livingston, the city physician, reviewed the psychological reports, and on August 15, 1984, informed Deputy Chief Donohue that Bagby was no longer able to perform the duties of a police officer.   On August 16, 1984, Bagby was notified that the city physician had determined that Bagby's medical condition precluded him from returning to work and, as a result, his employment was terminated.

On September 20, 1984, Bagby filed a formal grievance regarding the termination.   After the grievance was denied at various levels of the grievance procedure on the grounds that Bagby was precluded from working as a result of his medical condition, Bagby formally appealed his termination to the Civil Service Board and requested an evidentiary hearing.   In a June 4, 1985 letter to the Civil Service Board, Oakland took the position that Bagby was terminated for non-disciplinary, medical reasons and therefore the Board lacked jurisdiction to hear the appeal.   On November 17, 1986, the Board denied Bagby's request for a hearing on the ground that the termination did not constitute a disciplinary action.

Concurrent with pursuing his grievance, Bagby filed an application for an industrial disability retirement with the Public Employees Retirement System (PERS) on September 17, 1984.   However, on January 23, 1985, Bagby requested that his application for a disability retirement be cancelled and that he receive a full refund of his contributions to PERS.

On December 16, 1985, Bagby entered into a compromise and release of his workers' compensation claim against Oakland.   He received $20,000 and waived all claims against Oakland resulting from his injury.

Thereafter, Bagby filed a petition for writ of mandate to compel the Civil Service Board of the City of Oakland, the City of Oakland and City Manager Henry Gardner to provide Bagby an evidentiary hearing before the Civil Service Board and to compensate him for denial of his procedural rights by awarding him back pay.

On September 29, 1988, the trial judge issued a statement of decision which concluded in pertinent part:  1) Neither the Personnel Manual of the Civil Service Board of Oakland nor the Memorandum of Understanding between the City of Oakland and the Oakland Police Officers Association required a hearing before the Civil Service Board in cases where termination  was due to medical reasons;  2) The Public Safety Officers Procedural Bill of Rights does not require an administrative appeal of a termination due to medical reasons;  3) Even assuming Bagby was entitled to an administrative appeal, the informal meetings with the chief of police and the employee relations officer satisfied the administrative appeal requirement of Government Code section 3304, subdivision (b);  and 4) Since Bagby was not entitled to a hearing before the Civil Service Board, he was not entitled to back pay.

 Bagby now purports to appeal from the superior court's statement of decision ordering that his petition for writ of mandate be denied.2


 It is well established that two basic requirements are essential for issuance of a writ of mandate:  (1) a clear, present (and usually ministerial) duty on the part of the defendant, and (2) a clear, present and beneficial right in the plaintiff to performance of that duty.  (Code Civ.Proc., § 1085;  Taylor v. Board of Trustees (1984) 36 Cal.3d 500, 507, 204 Cal.Rptr. 711, 683 P.2d 710.)   An administrative appeal following the dismissal of a peace officer is such a ministerial duty.

Right to Administrative Appeal.

Bagby contends he was denied the right to an administrative appeal since 1) his medical discharge was a subterfuge by Oakland to avoid granting him full procedural rights;  2) his alleged inability to perform his duties triggered the right to a Civil Service Board hearing pursuant to Oakland's civil service regulations and the Memorandum of Understanding;  and 3) under the Public Safety Officers Procedural Bill of Rights Act, his termination constitutes a punitive action, thereby triggering the right to an administrative appeal hearing.   We address the arguments in reverse order.

 We begin our analysis with the observation that the California statutory scheme regulating civil service employment confers upon an individual who achieves the status of “permanent employee” a property interest in the continuation of his employment which is protected by due process.   (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206, 124 Cal.Rptr. 14, 539 P.2d 774;  Coleman v. Department of Personnel Administration (1987) 210 Cal.App.3d 986, 991, 242 Cal.Rptr. 839.)   The Public Safety Officers Procedural Bill of Rights Act sets forth basic rights and protections which must be accorded individual public safety officers by the public agencies which employ them.  Section 3304, subdivision (b) provides in part:  “No punitive action, ․ shall be undertaken by any agency without providing the public safety officer with an opportunity for administrative appeal.”   Section 3303 defines “punitive action” as “any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”   The statute makes no distinction between disciplinary and medical dismissals;  nor does it make exception for physical or mental inability to perform the job.

 If the statute is not clear enough on its face, our Supreme Court has reiterated that personnel actions such as dismissal, demotion, suspension, reduction in salary and written reprimand “are by nature penalties, no matter for what reason imposed.” (White v. County of Sacramento (1982) 31 Cal.3d 676, 681–682, 183 Cal.Rptr. 520, 646 P.2d 191.)   Consequently, where, as here, a police officer is dismissed, his or her employment termination constitutes a per se punitive action, which entitles the officer the right to appeal.

 Bagby's right to an evidentiary administrative appeal is also supported by Oakland's Civil Service Board's Personnel Manual (Manual).   Section 2.09 of the Manual provides in part:  “Any person suspended, fined or discharged ․ may ․ appeal therefrom to the Civil Service Board, which shall fully hear and determine the matter.”   Thereafter, section 2.10, dealing with procedures to be used on appeals and hearings, provides in subdivision (B)(3):  “The Board shall determine the evidence upon the charges and specifications as set forth by the appointing authority, the appellant's answer, and shall consider any relevant evidence.”

Oakland's contention that these provisions only apply to disciplinary actions is unpersuasive.   Oakland freely admits that the Manual's provisions are couched in “disciplinary” or “punitive” terms.   As the White court concluded in construing the statutory interpretation of “punitive,” any dismissal must be deemed punitive.

Contrary to Oakland's assertion that the Manual contains separate provisions for nondisciplinary actions, we find nothing in the Manual which applies to medical discharges.   Oakland's suggestion that an employee who is discharged for medical reasons must apply for disability retirement in  order to prove he is physically able to perform his duties constitutes a mindless procedure, the sole purpose of which is to circumvent the clear mandate of section 3304, subdivision (b) and sections 2.09 through 2.10 of the Manual.

Oakland's reliance on Section III, subsection 6 of the Personnel Ordinance is likewise misplaced.   That subsection provides in part:  “An employee having permanent status in the competitive civil service shall have the right to appeal a suspension, fine, demotion, or discharge for incompetency, misconduct, or failure to properly perform his duties or to observe department rules and standards ․”  (Emphasis supplied.)   Since Bagby's termination letter stated he could not perform his duties due to his medical condition, his rights to appeal are equally protected under this subsection.

 Finally, our view is supported by the grievance procedure set forth in the Memorandum of Understanding between the City of Oakland and the Oakland Police Officers' Association.   Article VI, section 1 of the memorandum defines “grievance” as “any dispute which involves the interpretation or application of this Agreement, or disciplinary action taken against an employee, or the application of the Personnel Rules, or the application of departmental rules or orders.”  (Emphasis supplied.)   Insofar as the present controversy involves the application of procedures promulgated in the Manual, it constitutes a grievance.   Article VI, section 3, step 4 of the memorandum states in part:  “If the grievance concerns disciplinary action, the employee ․ may elect to submit such grievance to the Civil Service Board ․”

In conclusion, we find that pursuant to section 3304, subdivision (b), sections 2.09 and 2.10 of the Manual and Article VI, section 3, step 4 of the Memorandum of Understanding, Oakland police officers whose employment is terminated for medical reasons are entitled to an evidentiary hearing before the Oakland Civil Service Board.   Having so concluded, it is irrelevant in this case whether Bagby's dismissal for medical reasons was a subterfuge.

Workers' Compensation Claim and Withdrawal of Retirement Contributions.

 Oakland contends that because Bagby entered into a compromise and release agreement on his workers' compensation claim he waived all claims and causes of action against Oakland.   The contention is without merit.

In the area of public employee's compensation, courts recognize that employees may concurrently seek workers' compensation benefits and  salary benefits.  (See e.g., Boyd v. City of Santa Ana (1971) 6 Cal.3d 393, 99 Cal.Rptr. 38, 491 P.2d 830.)   Thus, in Pichon v. Pacific Gas & Electric Co. (1989) 212 Cal.App.3d 488, 492, 260 Cal.Rptr. 677, the court held that the exclusivity of workers' compensation does not preclude causes of action for noninjury-related claims;  however, the employer does have the right to set off from any damages the amount of compensation paid.

In the instant action, Bagby applied for permanent disability indemnity.   The application contained no assertion that his disability was total.   Thus, the compromise and release agreement which Bagby executed merely discharged Oakland from all further claims arising from his injury.   It did not foreclose his right to an administrative hearing on his dismissal.

 We similarly reject the contention that Bagby was estopped from pursuing an appeal before the Civil Service Board by his withdrawal of his retirement contributions.   Bagby's employment was terminated in August of 1984.   Although he was pursuing his rights, he requested a refund of his contributions to PERS.   His economic needs should not be the basis for the denial of his rights to an administrative appeal.   Since sections 21100 through 21103 contemplate that an employee may be reinstated from retirement, we see no reason why Bagby's right to appeal is precluded by the withdrawal of his retirement contributions.  Vielehr v. State of California (1980) 104 Cal.App.3d 392, 163 Cal.Rptr. 795 does not hold otherwise.   The case merely holds that when a PERS member elects to take his contributions, he leaves PERS as a matter of law.  (Id., at p. 395, 163 Cal.Rptr. 795.) 3

Adequacy of Hearings.

 Citing Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837, 218 Cal.Rptr. 704, the court below stated:  “[E]ven assuming Petitioner's termination constituted a punitive action for purposes of the Public Safety Officers' Procedural Bill of Rights Act, the informal grievance meetings with the Chief of Police and the Employee Relations Officer satisfy the administrative appeal requirement of Government Code Section 3304(b).”   We disagree.

Section 3304 subdivision (b) requires a public agency to make available to public safety officers an administrative appeal procedure.  (Butler v. County of Los Angeles (1981) 116 Cal.App.3d 633, 640, 172 Cal.Rptr. 244.)   Oakland has established such a procedure as articulated in its Civil Service  Board's Personnel Manual.   As previously discussed, sections 2.09 and 2.10 provide that any employee who has been dismissed is entitled to an evidentiary appeal before the Civil Service Board.   No such appeal was accorded to Bagby.

Back Pay.

 Citing section 3309.5, subdivision (c) and Henneberque, supra, Bagby argues he is entitled to an award of back pay from the date he filed his appeal with the Civil Service Board to the date the Board completes its determination of his appeal.   Such an award is not required.

Section 3309.5, subdivision (c) provides in part:  “In any case where the superior court finds that a local public safety department has violated any of the provisions of this chapter, the court shall render appropriate injunction or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, ․”  Henneberque merely holds that an award of back pay may be used as a form of extraordinary relief.   (Henneberque, supra, 172 Cal.App.3d at p. 844, 218 Cal.Rptr. 704.)

While we do not dispute that an award of back pay may be ordered for failure to provide a dismissed employee his due process rights to an administrative appeal, in the present case we do not believe that such an award is warranted at this time.   If, in fact, Bagby could properly have been dismissed in 1984, he should not be entitled to a windfall of back pay.   On the other hand, if the administrative hearing which is mandated by this proceeding reveals that Bagby's dismissal was improper, an award of back pay would certainly be appropriate.

The judgment is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

Costs on appeal are awarded to appellant.


1.   All further statutory references are to the Government Code.

2.   A statement of decision is nonappealable.  (See Code Civ.Proc., § 904.1;  Fosselman's, Inc. v. City of Alhambra (1986) 178 Cal.App.3d 806, 810, fn. 3, 224 Cal.Rptr. 361.)   Nevertheless, where, as here, if the trial judge had not neglected to enter judgment, he would have done so in favor of respondents, we will consider the judgment entered and review the appeal on the merits.  (See Easton v. Strassburger (1984) 152 Cal.App.3d 90, 110, 199 Cal.Rptr. 383.)

3.   We do not here address the issue of Bagby's retirement benefits in the event he is reinstated as a peace officer.

WHITE, Presiding Justice.

MERRILL and STRANKMAN, JJ., concur in the judgment.

Copied to clipboard