ENGLISH v. CITY OF LONG BEACH

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

ENGLISH v. CITY OF LONG BEACH et al.

Civ. 16798.

Decided: September 07, 1949

Irving M. Smith, City Attorney, Clifford E. Hayes, Deputy City Attorney, Dewey L. Strickler, Deputy City Attorney, Long Beach, for appellants. Kenneth Sperry, Long Beach, for respondent.

This is an appeal from a judgment ordering the issuance of a writ of mandate by which the Civil Service Board of Long Beach was directed to ‘set aside its purported order and decision sustaining petitioner's dismissal’ from service and to ‘reinstate petitioner to his position as a patrolman in the Long Beach Police Department as of August 3, 1945.’

In a previous action between the same parties a judgment denying a writ of mandate without prejudice to the filing of another petitioner subsequent to a hearing before the Civil Service Board was upheld on appeal to this court. English v. City of Long Beach, 77 Cal.App.2d 894, 176 P.2d 940. This court in its opinion declared applicable to members of the police department and valid as there construed a rule of the Civil Service Board requiring any employee who had been absent from duty for any reason for a period of six months or more to pass a physical examination before he should be entitled to return to duty.

Respondent was appointed to the position of patrolman on July 16, 1942. On December 24, 1944, he was absent from duty on authorized sick leave which continued until January 9, 1945, at which time he was permitted to take a vacation until January 23, 1945. On the latter date he was granted six months' leave of absence. Prior to the expiration of this leave, on July 16, 1945, he reported for duty and filed with the city health officer a certificate of his attending physician that he was sufficiently restored to health to be able to perform efficiently the duties of his position. By reason of the rule above referred to, respondent was not permitted to resume his duties. On August 3, 1945, he filed in the superior court a petition for writ of mandate, which, as above stated, was denied without prejudice. On the same date, August 3, 1945, the city manager filed with the civil service board and thereafter served on respondent a notice of dismissal based upon charges that respondent had failed to pass the required physical examinations given respondent by the board of physicians of the city on the 16th and 19th days of July, 1945, indicated that he had contracted a physical ailment or defect which incapacitated him for the proper performance of the duties of his position.

Respondent's absence from duty had been occasioned by a toxic thyroid condition, for which he underwent an operation, and his asserted physical defect was a valvular heart condition resulting from the toxic thyroid. The only proper issue of fact for determination was whether his heart's valvular leakage condition had been sufficiently ‘compensated’ so as to enable respondent to perform satisfactorily the duties of patrolman.

Pursuant to the civil service rules and regulations, respondent filed a notice of appeal to the civil service board and his objections to the sufficiency of the charges on which his dismissal was based. The objections were overruled and respondent filed an answer to the charges. A hearing was held before the Civil Service Board on September 12, 1945. The matter was then continued to September 25, 1945, to permit respondent to file certain documentary evidence. On September 25, 1945, the board rendered its decision which, as set forth in a communication received by respondent from the secretary of the board, was as follows:

‘The Board, by a majority of its members, at the regular meeting of September 25, 1945, approved and sustained the charges filed and found that on the 19th day of July, 1945, the date on which you submitted to a physical examination, you were unable to perform the duties of the position of patrolman and that, on the 3d day of August, 1945, you had contracted a physical ailment or defect which incapacitated you from the performance of the duties of said position.

‘However, the Board continued final decision on the matter for a period of 90 days from and after the 25th day of September, 1945, during which time you shall be suspended from the service of the City. At the end of said 90 day period, you shall be restored to the position of patrolman, provided you pass a physical examination to be given by a Board of Physicians as provided in Sec. 12, of Rule V, of the Civil Service Rules & Regulations. If you fail to submit to the physical examination after notice to do so, or if the Board of Physicians finds that you are unable to perform the duties of the position of patrolman, then the suspension shall be set aside and your dismissal from the service of the City as of the 3d day of August, 1945, shall be approved and sustained.’

It appears, however, from the record that the order actually made by the civil service board, as shown by its minutes, on September 25, 1945, was as follows:

‘Final decision in the matter of the dismissal of Henry W. English continued for a period of ninety days: Directed, received and filed a letter of September 25, 1945, from attorney Kenneth Sperry with which he transmitted a communication of September 24, 1945, from A. C. McKinney, M.D., Professional Building, Long Beach, citing his medical findings in an examination of Henry W. English, dismissed patrolman, whose trial was held September 12, 1945. Commissioner Brown then moved, seconded by Commissioner Sullivan, that Mr. English be restored to duty as patrolman. A substitute motion was made by Commissioner Spencer, seconded by Commissioner Williams, which was carried by a majority of the board, that the final decision in the matter of the dismissal of Henry W. English be continued for a period of ninety days from and after the 25th day of September, 1945, during which time Mr. English shall be suspended from the service of the City. At the end of the ninety-day period Mr. English may be restored to the position of patrolman provided he pass a physical examination to be given by a Board of physicians as provided in Section 12 of Rule 5 of the Civil Service Rules and Regulations. If he fails to submit to the physical examination after notice to do so, or if the Board of Physicians finds that he is unable to perform the duties of patrolman, then the suspension shall be set aside and his dismissal from the service of the City as of the 3rd day of August, 1945, shall be approved and sustained.’ (Emphasis added.)

Following this decision respondent submitted to several physical examinations by members of the ‘Board of Physicians' and medical reports were made to the board. On January 23, 1946, the board adopted a motion ‘approving the medical reports furnished to the Board’, and found that (respondent) was ‘physically unable to perform the strenuous duties of patrolman,’ and ‘set aside the suspension’ and ‘approved and sustained’ respondent's dismissal from service as of August 3, 1945.

In his petition for writ of mandate respondent alleged that in rendering the foregoing orders and decisions the board acted without and in excess of its jurisdiction, in that:

1. Under the provisions of Rule XIV, sections 12 and 13, of the rules and regulations of the board, it is provided that upon sustaining the charges against the employee the board shall either (a) remove him from service, or (b) order him suspended or reduced in rank; and in the event of the latter order, upon the expiration of the period of suspension or reduction the employee shall be restored to his former position and rank unless the head of the department with the approval of the appointing power, files with the board written objections to such restoration.

2. That by its order of September 25, 1945, the board sought to delegate its authority to a board of physicians and make respondent's dismissal wholly dependent upon the result of a physical examination by such board, whereas under section 106 of the City Charter and the rules and regulations of the board, such dismissal could be accomplished only by the decision of the board itself based solely upon the evidence introduced at a public hearing at which the employee has the right to appear with his attorney and defend himself.

It was further alleged that the board abused its discretion in that they failed to proceed in the manner required by law, and that the decisions of the board and the purported findings upon which they are based are not supported by any substantial evidence. Respondent further charged that he was deprived of a fair trial, in that the board received and considered evidence, both oral and documentary, at various times and places other than at the time and place set for hearing; that such evidence was received without the knowledge or consent of respondent or his attorney, and no opportunity for cross-examination or of rebutting such evidence was offered. It was further charged that the city health officer and two other members of the board of physicians abused their discretion in that ‘the sole purpose of the physical examination provided by Rule V, sections 12 and 13, is to determine the present ability of the employee at the time of such examination to perform the duties of his position, whereas said respondents in conducting and reporting their respective examinations of petitioner construed and interpreted said rules to mean that he should be free from all organic defects.’

It was further alleged in the petition that ‘insofar as Rule V, section 13 of said Rules purports to provide that an employee in the classified service of the City ‘shall be required to submit to and pass the physical examination as provided in Section 12 of this Rule before he shall be eligible or entitled to return to active duty’, and/or that ‘failure to pass such an examination shall constitute grounds upon which such employee may be either temporarily suspended or permanently dismissed from the classified service of the City’, said Rule is null and void as being contrary to and in conflict with the provisions of Section 106 of the City Charter.' Further, it was alleged, the rule is void for failure to provide a reasonably certain standard for determination whether an applicant for employment should ‘pass' the physical examination; that ‘according to its literal terminology, this determination is left to the uncontrolled discretion of the Board of Physicians.’

The trial court found all of the allegations of the petition for writ of mandate to be true, but further found, pursuant to stipulation, that at all times subsequent to December 24, 1945, the petitioner had been gainfully employed at a salary equal to or in excess of the salary he would have received from the City of Long Beach ‘except for the fact that such outside employment did not offer pension benefits as provided by section 187 of the Long Beach City Charter.’ The judgment provided that a writ issue directing the board to set aside its purported order sustaining petitioner's dismissal, and that the repondents to the petition ‘be ordered thereby to reinstate Petitioner to his position as patrolman * * * as of August 3, 1945; and further, * * * pay * * * the salary attached to said position from August 3, 1945, to December 24, 1945.’

It is at once apparent that if any of the trial court's findings on the material allegations of the petition for writ of mandate, as above set forth, are supported by the record—for instance, if in fact the petitioner was ‘deprived of a fair trial’ before the Civil Service Board, Code Civ. Proc., sec. 1094.5, or if the trial court was correct in holding that there was no substantial evidence to support the finding that petitioner was unable to perform the duties of patrolman or had contracted a physical ailment or defect which incapacitated him from performing the duties of patrolman—then the judgment should be affirmed.

The evidence before the trial court, while presenting some conflict, was ample to support the conclusion that the board received and considered evidence at times and places other than the time and place set for the hearing; that evidence was received without the knowledge of the employee; that he was denied the opportunity of cross-examination or of rebutting such evidence; and that such evidence not only was considered by the board in rendering its decision, but was virtually the evidence which determined its decision.

There is no dispute here but that petitioner was accorded a hearing, but the question is whether he was accorded a fair hearing. Code Civ. Proc., sec. 1094.5. It is true that a hearing was held on September 12, at which petitioner was present and represented by counsel and evidence was received. Thereafter, the matter was continued until September 25 to enable petitioner to file documentary evidence, consisting of a report from a Dr. McKinney. But, as appears from its own minutes, the board did not then conclude the hearing and render its decision upon the evidence then before it, but continued final decision for 90 days, without making any finding that the charges were sustained. During this period of 90 days it received evidence (reports of members of the Board of Physicians) which petitioner was not permitted to test, explain or rebut, and, as is admitted, considered such evidence in rendering its final decision.

Appellants contend that the construction to be given the minute order of September 25 is that the charges were sustained, but that the board as an act of grace granted petitioner 90 days in which to improve his physical condition. This was the purport of the letter to petitioner prepared by the secretary of the board in collaboration with one of counsel for appellants. Assuming but not deciding that such a procedure would be proper, that is not what was done.

As heretofore noted, the board through its secretary advised the employee that on September 25, 1945, it had ‘sustained’ the charges that petitioner was unable to perform the duties of patrolman and had contracted a physical ailment which incapacitated him, but that it had ‘continued final decision’ for 90 days pending the result of an examination by the Board of Physicians. However, the minutes of the board of September 25, hereinbefore quoted, fail to show that any charges were ‘sustained’. The board merely continued the hearing ‘for final decision.’

It was alleged in the petition for writ of mandate that on or about September 25, 1945, one of the members of the board telephoned Dr. McKinney and asked him questions concerning petitioner, and gave the information he received to other members of the board, and that other members of the board also asked similar questions of their own attending physicians, and that the information so received was used by the board in arriving at its decision. This the trial court found to be true. The testimony of the various members of the board as to their recollection of when the phone call to Dr. McKinney was made was vague and somewhat conflicting, as would be expected at a hearing held some three years after the event took place. There can be no doubt, however, that the phone call was made on or after September 25, and before January 23. Moreover, the answer to the petition for writ of mandate contained the following admission: ‘The respondents admit that on a date subsequent to September 25, 1945, that members of the Board did call Dr. A. C. McKinney, and did discuss with Dr. McKinney the effect of strenuous exertion upon the petitioner, and that one member of the Board did discuss with other physicians the effect of a valvular heart disease upon the ability to perform the extra-ordinary physical exertion of a police officer as he might be called upon to perform from time to time. The respondents admit that said conversations were held subsequent to September 25, 1945, and prior to January 23, 1946, and that the information so obtained was considered by the members of said Board in determining the issues before them at the meeting on January 23, 1946.’ (Emphasis added.)

It was further charged in the petition that between September 25, 1945, and January 23, 1946, petitioner was examined by various physicians at the request of the board; that the reports of the physicians were received and considered by the board; but that petitioner was not furnished with copies of any of such reports and neither he nor his attorney was permitted to see the same. This charge was admitted, but it was denied that petitioner was not allowed to see the reports. On this point the secretary of the board testified:

‘Q. (By Mr. Sperry) Recall Mr. English and myself coming over there and asking to see these medical reports in December, 1945? A. I believe you did. I'm not sure of the date.

‘Q. You refused us permission to see them at that time? A. As I recall I refused unless I had authority from the Board.

‘Q. You didn't get authority, did you. I say you didn't get authority, did you? A. I don't recall at the time.’

As was said in La Prade v. Department of Water and Power, 27 Cal.2d 47, 51, 52, 162 P.2d 13, 16: ‘Administrative tribunals exercising quasi judicial powers which are required to make a determination after a hearing cannot act on their own information. Nothing may be treated as evidence which has not been introduced as such, inasmuch as a hearing requires that the party be apprised of the evidence against him in order that he may refute, test and explain it.’ In the cited case, the board based its action upon the report of an investigator which was considered at a meeting at which the petitioner was not present and of which he had no notice. It was held that ‘the action of such a tribunal based upon the report of an investigator, assuming it is competent evidence, see Walker v. City of San Gabriel, [20 Cal.2d 879, 129 P.2d 349, 142 A.L.R. 1383], supra, when forming the basis for the tribunal's determination, is a denial of a hearing, unless it is introduced into evidence and the accused is given an opportunity to cross-examine the maker thereof and refute it.’

Further in the same decision the court said: ‘Therefore, it must be concluded that in the instant case petitioner was denied a hearing. The board's determination was based upon the report of their investigation which although on file with the board was not introduced in evidence at the September 16th meeting. If it was introduced at the September 22d meeting the result is the same inasmuch as petitioner was not present and had no notice of the meeting. Olive Proration Program Committee v. Agricultural Prorate Comm., 17 Cal.2d 204, 109 P.2d 918. It has squarely been held that papers in the files of the administrative tribunal, but not introduced into evidence may not be considered. United States v. Abilene & So. Ry. Co., supra [265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016].’

It is a fair conclusion from the record that on September 25 the board members came to no definite decision, although several of them had serious doubts as to respondent's fitness. There can be no question but that it was their desire to give the employee every opportunity to fit himself for duty and that they acted in the utmost good faith at all times. It must be held, nevertheless, that by their subsequent proceedings they deprived the employee of his right to a fair hearing upon the issue of his fitness—an issue which remained open until their decision of January 23, 1946.

The conclusions arrived at render it unnecessary to consider the contention of respondent that the medical evidence received at the hearing of September 12 was insufficient, or the contention that the Civil Service Board ‘sought to delegate its authority to a Board of Physicians', other than to say, with reference to the last mentioned contention, that while the administrative board may refer the matter of respondent's condition of health to a Board of Physicians, it may not make respondent's dismissal or retention dependent solely upon the findings of such a medical board. To do so would amount to an unwarranted delegation of the power of the administrative tribunal to the Board of Physicians. The administrative board may consider the reports of such medical board together with other evidence, if any, and respondent is entitled to an opportunity to examine such reports and to rebut the same, if possible. However, the ultimate decision as to respondent's dismissal or retention must be made by the administrative board itself upon all the evidence submitted to it at a fair hearing or hearings. City Charter, sec. 106.

We are not in accord with respondent's contention that Civil Service Rule V (Sections 12 and 13) is void as being in conflict with section 106 of the City Charter. Section 106 provides that an employee may not be discharged until he has been presented with reasons therefor stated in writing and has been given an opportunity to be heard before the Civil Service Board in his own defense. As was held in English v. City of Long Beach, supra, 77 Cal.App.2d at page 899, 176 P.2d at page 943: ‘Nor does the rule requiring a physical examination ‘automatically’ disqualify the appellant from resuming employment; on the contrary the right of appeal to the Civil Service Board fully protects the appellant's rights.' This court then held in the cited case that since patrolman English reported for duty on July 16, and no written charges were served upon him until August 3, he was entitled to compensation for the period from July 16 to August 3. A fair construction of section 13 of the rule, therefore, is that a returning employee may properly be required to take the examination and that the results thereof may form the basis for a dismissal on the ground of unfitness, but that such dismissal shall be accomplished only in the manner provided by the Charter, that is, upon written charges, with the right in the employee to appeal to the Civil Service Board. So construed, the rule is not in conflict with the Charter. The same considerations apply to section 12 of the rule, which respondent contends fails to provide a reasonably certain standard whereby the Board of Physicians can determine whether an applicant has ‘passed’ the examination. Regardless of the outcome of the examination, as heretofore pointed out, the final determination of the fitness of the employee must be made by the Civil Service Board.

It is suggested by appellants that the trial court should have remanded the cause to the Civil Service Board to conduct a proper hearing instead of ordering reinstatement. Code Civ. Proc., sec. 1094.5, subds. (d) and (e); La Prade v. Department of Water and Power, supra, 27 Cal.2d at page 53, 162 P.2d 13. Such a course appears wholly impracticable, not only at this time but as of the time when the writ of mandate was granted. The trial of the mandate action did not take place until March, 1948. It was sound discretion by the trial court to conclude that after such a lapse of time a hearing fair to either side could not be had. Further, the appellant city chose to comply with the directions of the mandate. As stated in the closing brief, ‘The order was not resisted, as it was believed best to permit the respondent to return to the service of the City and to perform certain limited duties rather than to take chances on having to pay respondent a salary and not receive any benefit in return.’ Under the construction we have placed upon the Civil Service Rules and the City Charter, the sole question property before the board was whether the employee had an ailment which incapacitated him from performing his duties—not whether he had failed to ‘pass' a physical examination. Since he has been employed by the city since the issuance of the writ, the question of his former fitness is, for all practical purposes, moot. With the question of his present fitness this case has nothing to do, and such fitness may be determined in a proper proceeding instituted under the provisions of the City Charter and the Civil Service Rules and Regulations and after a trial or hearing legally conducted.

The judgment is affirmed.

I dissent. I am not in accord with the judgment of the trial court as affirmed by the prevailing opinion. If, as contended by respondent, a fair trial was not had for the reasons stated, then in my judgment, the trial court should have remanded the cause for further consideration. Nor am I in accord with the contention that a consideration of medical evidence amounts to a ‘delegation of the power of the board.’ The phraseology adopted by the board may be a little vague and confusing, but there is no indication of a ‘delegation of power.’ What the board did was simply to decide the issue on the evidence of medical experts.

In my judgment, the matter should be retried by the board and respondent given every opportunity to be present and examine all witnesses.

WHITE, Presiding Justice.

DRAPEAU, J., concurs.