NEUWALD v. BROCK

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

NEUWALD v. BROCK, Director of Department of Agriculture et al.†

Civ. 10192.

Decided: May 19, 1938

U. S. Webb, Atty. Gen., and Frank English, Deputy Atty. Gen., for appellants. Eustace Cullinan, Eustace Cullinan, Jr., and Herbert E. Wenig, all of San Francisco, for respondents.

The petitioner, who had for several years held a temporary position in the state department of agriculture and, by virtue of an amendment to the state Constitution, approved and adopted by the electors at the election held on November 6, 1934, was given the status of a probationary employee, was during the term of probation dismissed from his position by A. A. Brock, as director of said department, by whom or by whose predecessor some years before he had been appointed to said temporary position. He brought this action against said director, joining the members of the state personnel board (successor to the civil service commission), William Brownrigg, the executive officer thereof, and Ray L. Riley as state controller, seeking a peremptory writ of mandate, commanding the several named respondents (except Ray L. Riley as controller) to restore him to his position, and commanding the last named to pay him the amount of salary he would have earned but for his removal up to the time of reinstatement, if such should be decreed. In addition he sought general damages for his removal.

Included in the petition were allegations to the effect that at no time prior to his dismissal did A. A. Brock, the director of the department, nor any other of his superiors express or indicate to petitioner any dissatisfaction with or criticism of his conduct or capacity as such employee; that on January 24, 1935, Brock dismissed him by a written communication, in which he stated as his reason therefor that petitioner's conduct or capacity as such probationary employee had not been satisfactory to him; that on January 18, 1935, Brock, by letters couched in similar terms, dismissed two other probationary employees of the department, and on January 26th four others, and that, as in his own case, no dissatisfaction with their services had been expressed by Brock to them or either of them. No actions have been brought in the other cases. It was further alleged that the reason so stated by Brock for the dismissal of petitioner was not a valid reason for the dismissal of a civil service employee and it was not one of the causes, grounds or reasons specified in section 14 of the Civil Service Act, Stats. 1913, p. 1035, as amended Stats. 1929, pp. 251, 252, as the only causes for which a person holding a position under the provisions of the act might be dismissed; and that the reason so stated was untrue and was a pretext adopted by said Brock in order to frustrate and defeat the intent of article 24 of the state Constitution and to prevent petitioner from acquiring a permanent civil service status in said department; also that Brock, in dismissing petitioner, was actuated by personal motives and political considerations and by malice. In connection with his demand for payment of salary it was alleged in the petition that at all times the director of the department of agriculture had under his control, and there was in the state treasury, a sum of money available for that purpose sufficient to pay said salary.

The defendants filed an answer, unverified, in which they denied that the reason given by Brock for the dismissal of petitioner was untrue, or that it was a pretext resorted to in order to defeat the intent of said article 24 of the Constitution or to prevent petitioner from acquiring a civil service status, or that he was actuated by personal motives, political considerations or malice. The allegations as to the availability of funds under the control of the director of the department of agriculture for the payment of petitioner's demand were also denied; and it was affirmatively alleged that the dismissal was made under and pursuant to the terms of rule 9, sections 1 and 2, of the civil service commission (board of personnel).

The court made and filed findings of fact and conclusions of law. These were in favor of the petitioner with the exception of the charge that the dismissal was malicious, upon which the court found in favor of the defendants. It ordered a peremptory writ of mandate to issue reinstating the petitioner and that he be paid the amount of salary he would have earned but for his dismissal.

The defendants have taken this appeal, and in support thereof attack as not supported by the evidence certain of the court's findings, namely, findings XIV and XXI, and also the refusal of the court to find that the principal reason for the rule contained in section 9 of the Civil Service Act, St.1913, p. 1041, requiring the reasons for dismissing a probationary employee to be stated in writing and filed with the commission, to be in accordance with their contention, and its refusal to find that in dismissing petitioner, Brock was not actuated by personal motives or political considerations.

The following is the material part of finding XIV: “The reason so stated by A. A. Brock, as director of the Department of Agriculture, for the dismissal of Edward B. Neuwald * * * is not a valid or sufficient reason for the dismissal of a civil service employee * * * holding a position under the State Civil Service Act, and is not one of the causes, grounds or reasons specified in section 14 of the State Civil Service Act as the only causes for which a person holding a position under the provisions of the State Civil Service Act may be dismissed, and is not a reason or cause for such dismissal sufficient to satisfy the requirements of section 14 of the State Civil Service Act or of rule 9 of the State Civil Service Commission. The reason so stated by A. A. Brock, as director of the Department of Agriculture * * * and his statement of his reason, was and is untrue, and was and is a pretext adopted by respondent A. A. Brock, acting as director of the Department of Agriculture, in order to frustrate and defeat the intent and purpose of article 24 of the Constitution of California and to prevent Edward B. Neuwald from acquiring a permanent civil service status. * * * In so dismissing Edward B. Neuwald the respondent A. A. Brock acted in violation of law but he was not actuated by personal malice.”

It is conceded on behalf of the petitioner that being in a probationary period of service (created under the provisions of article 24 of the Constitution and granted to temporary employees who had undergone no competitive examination, and consequently had never had any status on an eligible list) he could be dismissed by the appointing officer; but it is contended, first, that he could be dismissed only for one or more of the reasons enumerated in section 14 of the Civil Service Act, as the trial court found; and second, if he could be dismissed for any other reason, that specified by Brock was nevertheless insufficient.

Section 14 of said act, so far as here material, reads as follows: “The tenure of every person holding a position under the provisions of this act shall be during good behavior, but any such person may be removed, demoted, suspended without pay or with reduced pay, transferred to another position in the same class, reprimanded, or restored to his position with such pay as may be equitable under a procedure in conformity with the provisions of this section which shall be set up by the commission in its rules and regulations, for any of the following causes: incompetency, inefficiency, insubordination, dishonesty, intemperance, immorality, profanity, discourteous treatment of the public or other employees, improper political activity, wilful disobedience, violation of the provisions of this act or of the rules and regulations of the commission. * * *

“The appointing power * * * may file charges against any person employed by the state under and subject to the provisions of this act, for dismissal or other corrective action for any or all of the causes hereinbefore provided and suspend such employee from service until such time as the charges against him shall have been heard or investigated by the commission and a decision rendered. Such charges must be made in writing and clearly state the specific act or acts of the employee constituting such cause * * *.” The section goes on to provide for service of the charges upon the employee, and a procedure for their hearing and determination by the commission or a commissioner or the chief examiner or any agent of the commission, and that the decision of the commission shall be final.

It is quite obvious that in respect to the general language found in the section, namely, “the tenure of every person holding a position under the provisions of this act,” it applies not only to the employees who have passed from their probationary period to permanent tenure, but is also applicable to probationary employees. When the statute prescribes the grounds upon which civil service employees may be removed, they are removable for one of those specified grounds. Here the language of the section points out for what offenses an employee may be removed, and the mere fact that petitioner was unsatisfactory to Brock is not a sufficient reason under the act for his removal. The trial court took evidence as to the conduct of petitioner during the long period of his employment and found him at all times prior to his dismissal to be without fault. We are of the opinion that the evidence fully supports the judgment.

It is further claimed that there is no evidence supporting finding XXI, that there were funds in the treasury to meet the demand. Petitioner pleaded the existence in the state treasury of a sum of money sufficient for that purpose. While an unverified answer was filed to the verified petition, the trial court found that there was a sufficient sum in the state treasury available for the purpose, which the judgment orders to be used for that purpose. Under these circumstances the burden was upon the state officers to prove there was no fund as they had special knowledge of the facts.

The judgment is affirmed.

TYLER, Presiding Justice.

I concur: KNIGHT, J.