ALMASSY v. LOS ANGELES COUNTY CIVIL SERVICE COMMISSION

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

ALMASSY v. LOS ANGELES COUNTY CIVIL SERVICE COMMISSION et al.

Civ. 16357.

Decided: December 21, 1948

Harmel L. Pratt, of Los Angeles, for appellant. Harold W. Kennedy, Co. Counsel, and Andrew O. Porter, Deputy Co. Counsel, both of Los Angeles, for respondents.

This is an appeal by Alfred G. Almassy from a judgment denying his petition for a writ of mandate, directed to the Los Angeles County Civil Service Commission, requiring the annulment of two specified civil service examinations and the corresponding eligible lists promulgated upon the results thereof.

In August 1946, petitioner, who was an employee of the Probation Department of Los Angeles County, participated as a candidate in the said two examinations for the positions of Senior Deputy Probation Officer (Adult Division) and Senior Deputy Probation Officer (Juvenile Division). Petitioner failed to pass either examination, and his name did not appear on the eligible lists subsequently promulgated by the Commission. Within the time and in the manner provided by the rules of the Commission, he duly prosecuted an appeal to that body, in which he challenged the validity of the examinations and the manner in which they were conducted. By decision of December 24, 1946, the Commission raised petitioner's grades slightly, although not enough to give him a passing grade on either examination, and denied the appeal in all other respects. The present action was begun on April 24, 1947.

Both in the court below and upon this appeal, petitioner has maintained that the said examinations, and corresponding eligible lists were illegal and void for failure to comply with the controlling provisions of the Los Angeles County Charter and the Rules of the Civil Service Commission established pursuant thereto. The Charter requires the Commission to prescribe rules for the classified service ‘which shall have the force and effect of law,’ and which shall provide for ‘open, competitive examinations to test the relative fitness of applicants for such positions.’ Art. IX, sec. 34(2). It is also required that the said Rules provide for ‘promotion based on competitive examination and records of efficiency, character, conduct and seniority. Lists shall be created and promotion made therefrom in the same manner as prescribed for original appointment.’ Art. IX, sec. 34(11). The Charter further states: ‘All examinations shall be impartial and shall deal with the duties and requirements of the position to be filled. When oral tests are used, a record of the examination, showing basis of rating, shall be made.’ Art. IX, sec. 36. The last-quoted provision has been incorporated verbatim in Rule VII, section 3, of the Rules established by the Commission; while Rule VIII, section 1, repeats the quoted provisions of Charter section 34(11), with the addition of the following: ‘The rules governing promotional examinations shall be the same as those governing original entrance examinations except as herein provided.’ Sections 4 and 5 of Rule VIII go on to provide that in promotional examinations, each employee is to receive, in addition to all other credits, separate credits not to exceed five percent of the maximum possible grade, for efficiency and seniority as calculated from the Commission's records thereof. The Rules also provide for the taking of written appeals to the Commission for a change in rating in any part of an examination, upon which appeal the Commission is to conclusively determine the final rating of the candidate. Rule VII, secs. 14, 15.

The examinations were both conducted in the same manner. As stated in the bulletins announcing them, they consisted of two phases, a written test and ‘an evaluation of the education, experience and personal fitness of each of the applicants, as verified by interview, investigation or references.’ Each part was given a relative weight of 50% of the total grade. It is not contended that the written test was in any way defective or illegal, and petitioner's argument on appeal is directed solely to the evaluation portion of the examination.

The said evaluation phase was conducted in the following manner. Each candidate was required to fill out an application form, calling for a variety of personal data, as well as detailed information concerning the individual's education and experience. He was then interviewed by two well-qualified examiners, each of whom rated the candidate on the basis of information contained in his application form, and educed or observed at the interview, as to his education, experience, and personal fitness. These ratings were effected by making entries upon General Qualifications Appraisal Record forms provided by the Commission. The said forms are subdivided into three sections, the first two of which contain blank spaces for entries adapted for rating the candidate both quantitatively and qualitatively upon ‘Education’ and ‘Experience’ respectively. The third section, to which petitioner's objections are chiefly directed, is entitled ‘Personal Fitness,’ and is in the following form:

The entries made by each examiner upon this form were subsequently translated by the Commission, in accordance with a fixed formula, to a numerical value on the basis of a maximum 100 points possible, and the ratings given by each examiner were then averaged together.

A further stage of the evaluation phase consisted of a confidential written report which was obtained for each candidate from his department head upon a form provided by the Commission for the purpose. The confidential report form contained blank spaces in which checkmarks were to be entered, indicating the department head's evaluation of the candidate as either ‘poor,’ ‘fair,’ ‘average,’ ‘very good,’ or ‘outstanding,’ in respect to various stated qualities, including, among others, ‘Soundness of judgment,’ ‘Emotional maturity,’ ‘Dependability under strees,’ and ‘Adaptability to new situations.’ The department head was also requested to indicate by means of a checkmark his ‘overall evaluation’ as to whether the candidate would probably ‘be inadequate to meet the demands of this position; give a weak performance in this position; meet satisfactorily the requirements of this position; make a contribution which exceeds average requirements; [or] provide an outstanding performance in this position.’ Several blank lines were left for the ‘remarks' of the department head at the end of this ‘overall evaluation.’ The form was prefaced by the following instructions: ‘(Indicate, by checking in the appropriate spaces, your judgment of the candidate with reference to the following factors. If your appraisal of the candidate can be strengthened by consulting others who know him, please consult with such persons. Since, for this type of position, so much reliance is placed on information gained in this manner, your careful evaluation of the candidate's qualifications and your frank comments are urged.)’ The entries made by the department head were likewise translated to a numerical rating on the basis of a maximum 100 points possible.

A total evaluation grade was obtained by combining the rating from the department head's appraisal with the average of the two interviewers' ratings in such a way as to give the former rating a 25% weight, and the latter a 75% weight. The final grade upon the entire examination was them computed by averaging the total evaluation grade with the written test mark, giving a 50% weight to each, and adding to the result the candidate's efficiency and seniority credits as provided in the Rules. In the adult division examination, petitioner received a grade of 45.19% on the written test, 54% on the evaluation phase, and total efficiency and seniority credits of 8.55%, so that his final grade was 58.14%. In the juvenile division examination, he received 50.81% on the written test, 54% on the evaluation phase, and 8.55% for efficiency and seniority, making a final grade of 60.95%. Upon his appeal to the Commission, these final grades were increased to 61.64% and 64.45% respectively, by use of a formula giving greater value to a poor recommendation by a department head than the formula used originally. A final grade of 70% is considered passing.

Upon the basis of the foregoing facts, which were incorporated in its findings, the lower court concluded that an evaluation of education, experience, and person al fitness was a proper part of the examinations, but that it was improper under the Charter and Rules to employ the confidential department head's report in making such an evaluation. It was, however, concluded that, ‘Otherwise, the said examinations, and each of them, were lawfully, fairly and properly conducted and the lists promulgated from said examinations are valid and subsisting, were properly promulgated and should not be cancelled or annulled.’ The court also held that petitioner was not a proper party to attack either the evaluation phase of the examinations, or the use of the confidential reports; that he was estopped; and that he was barred by laches.

Petitioner contends initially that neither the Charter nor the Commission's Rules authorize an evaluation of education, experience, and personal fitness as part of an examination. There is no merit to this contention. It is manifest from the provisions of the Charter and Rules previously quoted that, subject to the limitation that ‘all examinations' must ‘deal with the duties and requirements of the position to be filled’ (Art. IX, sec. 36; Rule VII, sec. 3), the Civil Service Commission has been given given broad discretionary powers in prescribing the subjects of examination and the qualifications which are to be tested. See Keller v. Hewitt, 109 Cal. 146, 147, 41 P. 871; Mitchell v. McKevitt, 128 Cal.App. 458, 465, 17 P.2d 789; Maxwell v. Civil Service Commission, 169 Cal. 336, 338, 339, 146 P. 869. Judicial intervention under such circumstances is unjustified except on a showing of arbitrary, fraudulent, or capricious conduct, or an abuse of discretion. Dierssen v. Civil Service Commission, 43 Cal.App.2d 53, 63, 110 P.2d 513; Pratt v. Rosenthal, 181 Cal. 158, 164, 183 P. 542. No such showing was made in the present case; on the contrary, the qualities of personal fitness, and the various aspects of personal fitness, which were to be rated on the present examinations, appear to have a reasonable relationship to the ‘duties and requirements' of the position of Senior Deputy Probation Officer, and the court below found, in substance, that the Commission had made a determination to this effect. Such determination was clearly within the limits of its permissible discretion.

Petitioner next contends that the examinations were invalid for the reason that the Commission failed to make a proper ‘record of the examination, showing basis of rating,’ as required by Charter and Rule ‘when oral tests are used.’ Art. IX, sec. 36; Rule VII, sec. 3. In this connection, we note that respondent makes no contention that the oral interview did not constitute an ‘oral test’ or ‘examination’ within the meaning of the quoted provisions; and, in view of the fact that there appears to be no authorization in the Charter for an oral interview which is not a ‘test’ and part of the examination, we think it must be treated as such.

The purpose of the requirement, it would seem clear, is to provide a record which can serve as a basis for appeal to the Commission for a revision in rating, or for review by the courts in ascertaining whether the examination as formulated and conducted was in compliance with Charter provisions. See Mosher and Kingsley, Public Personnel Administration (1941), p. 221. Fairly construed in reference to this controlling purpose, the requirement that the basis of rating be shown does not contemplate a mere indication of the conclusions of the examiners as to their evaluation of the candidate upon various factors, as based upon unrecorded oral answers to undisclosed questions, or upon observed data as to the candidate's manner, conduct, or appearance, preserved only in the recollections and interpretations of the interviewers. On the contrary, in order to accord aggrieved candidates an effective right of review, it would seem necessary that a record be kept which clearly reveals the factual and procedural predicate for the ratings given; the evidence developed from the statements made by the candidate and the factual observations (as distinguished from judgments and conclusions) of the examiners; the definitions of standards of acceptability and excellence employed for evaluating each factor graded; and the method for assigning relative weights to the various factors, together with the procedure used in their evaluation. In the absence of a record of this nature, the right of appeal from the oral test would, in effect, be lost, for, no other facts appearing, it would be difficult to conceive upon what rational foundation the Commission could review and redetermine ratings given by the interviewers, or what basis in evidence there would be for a judicial determination whether the examination was competitive and impartial, and whether the Commission acted within the bounds of its discretion. A record of the type described is not only reasonably within the contemplation of the Charter requirement, but is recognized by authorities in the filed as an essential feature of a sound competitive interview process. See ‘Oral Tests in Public Personnel Selection,’ Report by Committee on Oral Tests in Public Personnel Selection to the Civil Service Assembly of the United States and Canada (1943), pp. 68, 69, 151 (heerinafter cited as ‘Report’); Mosher and Kingsley, op. cit., p. 221.

Assuming for present purposes that the oral test was competitive and impartial, we think the record kept by the Commission of that test, as shown by the evidence before us, does not conform to the demands of the Charter. It consists solely of these items: The written application filed by the candidate; the General Qualifications Appraisal Record forms, showing the notations of the interviewers, and the formula and computations used by the Commission in translating the various entries to a numerical value. Although we may assume that the last mentioned documents sufficiently indicate the method employed for weighing the various factors and the procedure used for evaluating them, the record nowhere discloses the definitions of the various ‘personal fitness' factors, nor any standards employed in their evaluation, nor any transcript or other record of the evidence adduced at the interviews upon the basis of which the ratings were presumably made. In reference to the items of education and experience, it is true that the application form contains much relevant information, but it would seem that even these facts would not sufficiently indicate the basis of rating upon those items, for the General Qualifications Appraisal Record appears to be designed to elicit not only a quantitative, but a qualitative evaluation thereon, and the standards applied in making such evaluations are not disclosed in the record. It follows, therefore, that the oral interview phase of the examinations was conducted in an illegal manner in that an inadequate record was kept, and must accordingly be held to be invalid and void.

Petitioner maintains that the examinations were also illegal for the reason that they were not competitive within the meaning of the Charter requirement. In the recent case of Wilson v. Los Angeles County Civil Service Commission, L.A. No. 543,297, the identical question was presented in respect to a promotional examination for the office of County Clerk of Los Angeles County, which examination was substantially in the form of the one here being considered. In a notable written opinion declaring the said examination invalid on the ground that it was not competitive, Honorable Allen W. Ashburn, Judge of the Superior Court, stated (p. 15): ‘A primary purpose of civil service laws being the abolition of appointments on the basis of personal favoritism (Allen v. McKinley, 18 Cal.2d [697] at page 705 [117 P.2d 342, at page 346]), the word ‘competitive’ as used in this connection implies the application of common criteria to all candidates—that all must be subjected to the same measuring rod and that all be required to answer the same examination questions, or substantially the same ones. If substantially variant questions are propounded to different candidates there can be no true competition and the purpose of the examination may be readily subverted to the benefit of a favorite of the examiners. It is equally essential that the common standard be a defined and recognizable one. Otherwise it never can be known whether the examination was really competitive. When such basic considerations are ignored the courts have both a right and a duty to interfere.'

The quoted statements epitomize the views of the leading authorities. The principal case is Fink v. Finegan, 270 N.Y. 356, 1 N.E.2d 462, wherein a civil service examination for the position of Police Surgeon and Medical Officer was held void because it lacked the competitive quality required by the State Constitution due to the absence of objective standards in the oral phase. The analogy between the oral test there given, and the one here involved, and the basis for the court's ruling, are indicated by the following passages from its opinion (pages 463–465 of 1 N.E.2d):

‘Petitioner passed the technical or written test and submitted thereafter to an oral examination consisting of technical questions of a medical nature, which concededly he answered correctly. He was thereafter notified that he had failed to pass the oral examination. The reasons given for his failure were that in the opinion of the examiners, although he was pleasant in manner and bearing and in comprehension fairly quick, he lacked force and executive ability, and was altogether too mild. The examiners were unanimous in remarking, ‘We do not believe he would make an acceptable P. S. and M. O.’

‘An affidavit by the president of the municipal civil service commission contends that the province of an oral examination is not to test the technical fitness of a candidate. That has already been done by the technical written examination. ‘An oral examination is a test only of personality * * * or the very important element of ‘personal equation’ which enters into the determination of the fitness of any candidate to fill high and responsible positions in the public service, such as the positions for which this examination was held.' In making their determination as to the personality of the candidate the expert examiners were required by the Commission to observe and rate the candidate with regard to the five following elements: 1. Manner and bearing. 2. Quickness of comprehension. 3. Force. 4. Executive ability, and 5. General fitness. * * *

‘No one questions that in all the tests given the petitioner, except perhaps the oral one, there was competition. Nor is the oral test questioned in so far as it tested technical ability. The examiners, however, in giving the oral test also attempted to test the personalities of the candidates. They have eliminated the petitioner on the ground that he is lacking in force and executive ability. The test or measure of executive ability nowhere appears. All that the record shows is the conclusion that the candidate lacks these qualities.

‘A test or examination, to be competitive, must employ an objective standard or measure. Where the standard or measure is wholly subjective to the examiners, it differs in effect in no respect from an uncontrolled opinion of the examiners and cannot be termed competitive. Cf. Barthelness v. Cukor, 231 N.Y. 435, 132 N.E. 140, 16 A.L.R. 1404; Barlow v. Berry, 245 N.Y. 500, 157 N.E. 834.

‘This does not mean that competitive examinations must be limited to tests of knowledge and physical ability. Objective tests have been devised and are being developed which measure many qualities and characteristics. For example, tests of intelligence such as the Army Alpha test and the Binet-Simon tests have been generally accepted. Mental alertness tests and special ability and aptitude tests of many kinds are widely recognized. * * * In the case at bar, no standard appears. An examination cannot be classed as competitive unless it conforms to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience.’

The principles enunciated in the Fink case have been repeatedly upheld and reaffirmed by the courts of New York. Sloat v. Board of Examiners, 274 N.Y. 367, 9 N.E.2d 12, 112 A.L.R. 660; Andresen v. Rice, 277 N.Y. 271, 14 N.E.2d 65; Bridgman v. Kern, 257 App.Div. 420, 13 N.Y.S.2d 249, affirmed 282 N.Y. 375, 26 N.E.2d 299; Cowen v. Reavy, 283 N.Y. 232, 28 N.E.2d 390; Blumenthal v. Morton, 273 App.Div. 497, 78 N.Y.S.2d 302. We think they must be observed in order to accomplish the equality of treatment in the ascertainment of merit, which is guaranteed in the Los Angeles Charter requirements of ‘open,’ ‘impartial,’ and ‘competitive’ civil service examinations dealing with ‘the duties and requirements of the position to be filled.’ It is evident, of course, that a requirement of objective standards, applied with substantial uniformity to all candidates, does not, and cannot, entirely eliminate the exercise of judgment; but it does, as pointed out by Judge Ashburn, rule out arbitrariness, favoritism, and the purely unfettered preferences of the examiners. In oral tests no less than in written ones, the rating officials will necessarily be required to exercise judgment and discretion; but their conclusions will be reached by reference to standards formulated and applied for the purpose of evaluating the candidates with as nearly complete objectivity as possible, thereby affording a fixed basis of comparison and competition between them, rather than by reference to variable criteria personal to each examiner and differing as their individual backgrounds, experiences, and personalities may differ.

There is nothing in the record before us which renders it possible to determine whether the oral interviews were conducted with substantial uniformity as between candidates. We mention the point, however, with the observation that competitive conditions in oral tests can be achieved only when the basic topics surveyed, and the introductory questions put to the candidates, are the same, whatever minor variations may subsequently be found necessary because of differences in the candidates' responses and reactions. See Report, supra, pp. 75, 76, 145. In the words of Judge Ashburn (supra, p. 37): ‘It is not the province of the court to insist upon a degree of rigidity which will defeat the purpose of the oral interview or test. * * * [T]he oral part of the examination necessarily must vary from candidate to candidate in its minor phases; but the same subject must be canvassed with all and in the same language and manner, or substantially the same. * * * This recognition of the propriety of variations from stereotyped questions upon oral interview emphasizes the absolute indispensability of a reviewable record.’

Upon analysis of the evidence before us, we think it can only be concluded that the evaluation portion of the present examinations was not competitive. As noted previously, no definitions of the qualities listed under the heading ‘Personal Fitness' on the Commission's form appear to have been established, and no criteria for distinguishing between the various levels of evaluation can be found. For all that appears in the evidence, ‘Appearance’ might refer to physical features, or to neatness of dress, or to posture and bearing, or to all or none of these; ‘Alertness' might mean rapidity of response, or comprehension of ideas, or acuteness of thought. No standards for measuring what is acceptable ‘Poise,’ and what is superior, or what is poor, are set forth. Although it would not seem difficult to formulate objective standards for evaluating many of the listed qualities, such as ‘Voice and Speech,’ ‘Ability to Express Ideas,’ or ‘Orientation in the Field,’ we are not referred to any such standards, nor is it contended that any have been set up. Moreover, some of the items, such as ‘Judgment,’ ‘Social Adaptability,’ and ‘Interest in the job,’ would seem on their face at least, and in the absence of objectively defined standards, to call for largely subjective evaluations by the interviewers; and the ‘Final Evaluation’ factor would appear to do so entirely.

The lower court was undoubtedly correct in concluding that the use of the department head's confidential report as part of the evaluation was improper. The instructions which appeared on the form in parentheses, quoted above, can be reasonably construed as a request for a purely subjective appraisal, ‘strengthened’ if need be, by the equally subjective appraisals of other acquaintances of the candidate. This conclusion is fortified by the complete lack of definitions or standards of any kind for use by the department head in rating such qualities as ‘Emotional maturity,’ ‘Dependability under stress,’ ‘Adaptability to new situations,’ etc.; by the obviously subjective ‘Overall evaluation’ statements; and by the candid invitation to include ‘frank comments.’

The evaluation phase of the examinations thus appears, on the whole, to be adapted primarily to reflect the mere uncontrolled impressions and opinions of the several rating officers, without the application of ‘measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience.’ Fink v. Finegan, supra. At least, it is not calculated to prevent such a result. Accordingly, petitioner's contention that the evaluation portions of the examinations were not competitive must be sustained.

Since, as we have already stated, petitioner makes no contention that the written tests were in any way invalid, the question is presented whether the illegality of the evaluation portions alone warrants setting aside the entire examinations. We conclude that it does. In view of the allegation in respondent's answer, and the corresponding finding by the court, that the Commission had determined that the factors rated upon the General Qualifications Appraisal Record and confidential report forms were ‘necessary and important to the position to be filled,’ it cannot be assumed that the grade achieved on the written test alone would be deemed by the Commission a satisfactory basis for the promulgation of an eligible list. Respondent does not contend that the various phases of the examination are severable; and, indeed, the contention in its brief that the oral test was ‘an integral and valid part’ of the examinations conveys the opposite implication. We think the examinations must be treated as entire: the invalidity of an essential part permeates the whole.

Respondent argues in support of the conclusion of the court below that petitioner was not a proper party since he would not receive a passing grade if either the evaluation portion, or the confidential department head's report, were eliminated from the examinations. In respect to the oral evaluation phase, the conclusion furnishes no answer to the problem, for if this essential portion of the examinations were eliminated entirely, a necessary consequence would be that the ratings attributable to it would be deducted from the final grade, with the result that no one could possibly achieve a passing grade of 70. In addition, we disagree with the trial court's conclusion that the oral examination was legally conducted except for the use of the confidential report. Petitioner was not seeking to merely eliminate the invalid features of the examinations, but to set aside the entire examinations and eligible lists based thereon, and, as we have seen, this is the relief to which, as a successful litigant, he would be entitled. We find no reason to conclude that, had the examinations been conducted in the manner required by law, petitioner might not have received a passing grade. In any event, it has been held that where the object of mandamus is to procure the enforcement of a public duty, the petitioner need not show any legal or special interest in the result, but may proceed solely in the capacity of a citizen or resident. Board of Social Welfare v. Los Angeles County, 27 Cal.2d 98, 100, 162 P.2d 627; Andresen v. Rice, supra, 277 N.Y. 271, 14 N.E.2d 65, 69; see 16 Cal.Jur., sec. 56, p. 854. It follows that petitioner was a proper party to challenge the examinations.

Respondent's further contention of waiver and estoppel is predicated upon a finding of the court that although petitioner had taken previous civil service examinations conducted in the same manner as the present one, and was fully informed by the Commission's bulletins that the usual procedure, including the oral evaluation, would be followed in the present examination, he nevertheless took the examination without objection and did not complain until notified that he had failed. The contention must be overruled for it is in direct conflict with the well-established principle that neither waiver nor estoppel will lie to give validity to conduct which is contrary to public policy or statutory law designed for public, rather than private, benefit. Panzer-Hamilton Co. v. Bray, 96 Cal.App. 460, 464, 274 P. 769; Brown v. Brown, 8 Cal.App.2d 364, 47 P.2d 352; Friedman v. Pacific Outdoor Adv. Co., 74 Cal.App.2d 946, 953, 170 P.2d 67. The cases cited by respondent (Allen v. McKinley, 18 Cal.2d 697, 117 P.2d 342, and Shannon v. McKinley, 62 Cal.App.2d 169, 144 P.2d 433) are not in point. Although they indicate that mandamus may properly be brought against the Civil Service Commission prior to a questioned examination, they are in no way authority for the proposition that such a petition may not be brought subsequent thereto.

We are of the opinion also that respondent's final contention of laches may not be maintained. It is, of course, well-settled that ‘in order to bar a remedy because of laches, there must appear, in addition to mere lapse of time, some circumstances from which the defendant or some other person may be prejudiced, or there must be such lapse of time that it may be reasonably supposed that such prejudice will occur if the remedy is allowed * * *.’ Cahill v. Superior Court, 145 Cal. 42, 47, 78 P. 467, 469. In seeking to satisfy the burden which was upon it of proving laches (see Cook v. Ceas, 147 Cal. 614, 619, 82 P. 370; Katz v. Enos, 68 Cal.App.2d 266, 276, 156 P.2d 461; Mills v. Richmond Company, Inc., 63 Cal.App. 594, 597, 219 P. 465), the only facts shown by respondent were that four months had elapsed from the date when petitioner was notified of the Commission's decision upon his appeal to it, before the present action was begun, and that in the meantime appointments had been made from the challenged eligible lists. The record does not disclose how many appointments were made, nor when they were made. We think this evidence plainly insufficient to support a holding of laches.

No case has been cited to us, nor has research disclosed any, in which, under comparable circumstances, the mere passage of a period of time as short as four months has been held to give rise to a presumption of prejudice. Neither do we discern in what manner any prejudice has, or could have resulted to anyone by reason of petitioner's delay. There is nothing in the evidence to indicate that the appointments would not have been made had the action been brought sooner. The fact that certain appointees may have been holding, as de facto officers, higher positions with presumably greater remuneration than those to which they were entitled de jure, cannot be deemed prejudicial to them. Furthermore, it must be assumed that the work of the Probation Department in the service of the public welfare has been regularly performed, and that all necessary appointments for carrying on its functions would have been made regardless of any delay on the part of petitioner. Respondent's final suggestion, that the sixty-day period for perfecting an appeal, Rules on Appeal, Rule 2(a), should be applied by way of analogy to bar relief, is without support in principle or authority (cf. Security-First National Bank of Los Angeles v. Superior Court, 132 Cal.App. 683, 23 P.2d 1055; Bryant v. Superior Court, 16 Cal.App.2d 556, 561, 61 P.2d 483) and is properly cognizable in a legislative, rather than judicial, forum. We conclude that the action was timely.

The judgment is reversed.

SHINN, Presiding Justice.

WOOD, J., concurs. VALLÉE, J., deeming himself disqualified did not participate.