CONROY v. WOLFF STEFFEN

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

CONROY v. WOLFF et al. (STEFFEN et al., Interveners).

Civ. 14082.

Decided: August 16, 1949

Charles P. Scully, San Francisco, Thomas Mulvihill, San Francisco, for petitioner and appellant. Dion R. Holm, City Atty., San Francisco, Walter A. Dold, Deputy City Atty., San Francisco, for respondent. James C. Purcell, San Francisco, William E. Ferriter, San Francisco, for intervenors.

In a promotional examination for captaincy in the Police Department of the City and County of San Francisco, held under civil service rules, the Civil Service Commission refused to credit petitioner with a meritorious award received after the ‘beginning date’ of the examination. He applied to the superior court for a writ of mandate to compel the commission to give him such credit. From the denial of such writ, petitioner appeals.

Facts.

On July 7, 1946, the Civil Service Commission published an ‘Official Announcement—Promotional Examination’ for captain in the police department, stating that applications of those entitled to participate in the examination must be received by October 15th, and that the ‘Beginning Date of Examination’ was November 8, 1946. However, ‘Applicant should not appear personally for any part of this examination until notified to do so by mail.’ The announcement (hereinafter referred to as the ‘scope circular’) stated that, in addition to points given for the written examination, certain points would be allowed for ‘Seniority of Service’ and certain points for ‘Ascertained Merit and Meritorious Public Service,’ credits under both headings to be allocated in accordance with the provisions of section 146 of the charter.

Petitioner, a member of the police department for 22 years, and with the rank of lieutenant for two and a half years, filed an application in due form. His application was accepted. No written examination was held on November 8th. Petitioner was notified to appear on December 12th at which time the examination was held. On November 16th (after the ‘Beginning Date of Examination’ but prior to the actual holding of the written examination) petitioner rendered a service in making an arrest for which, on December 5th, the Meritorious Award Board awarded him a meritorious award, first grade. On December 5th petitioner requested the commission to allow him credit in the examination for such award. On December 18th the commission wrote the chief of police for data concerning awards to the listed participants in the examination, of whom petitioner was one. One December 30th the chief of police sent the commission the requested data, including reference to petitioner's meritorious award above mentioned. The commission refused to give petitioner the requested credit on the ground that the award was made after the ‘beginning date’ of the examination. Petitioner is now 15th in rank on the list of eligibles for captain. If the requested credit were allowed him, he would be about 8th in rank.

Question Involved.

Respondents concede that under the charter, credits for meritorious service in these promotional examinations are compulsory. However, they contend that the charter does not provide a ‘cutting off date’ after which the commission is not required to consider such credits; that the commission has the right to establish such date, and that it has designated the ‘beginning date’ as such ‘cutting off date,’ and that such designation is reasonable. Petitioner contends (1) that the charter provides that the actual date of the written examination rather than the ‘beginning date’ is the ‘cutting off date’; (2) that the commission itself had established the actual date as the ‘cutting off date’; and (3) that the designation of any date prior to the actual day of the examination as the ‘cutting off date’ is unreasonable.

1. The Charter Does Not Establish a ‘Cutting Off Date.’

Section 146 of the Charter of the City and County of San Francisco provides in part as follows: ‘Whenever it deems it to be practicable, the civil service commission shall provide for promotion in the service on the basis of such examinations and tests as the commission may deem appropriate, and shall, in addition, give consideration to ascertained merit and records of the city and county service of applicants. The commission shall announce in the examination scope circular the next lower rank or ranks from which the promotion will be made. Except as specifically provided in other sections of this charter, all promotions in the uniform forces of the police and fire departments, respectively, shall be made from the next lower civil service rank attained by examinations, as herein set forth, giving consideration also to meritorious public service and seniority of service. * * *

‘Fifteen per cent of the total credits obtainable under any promotive examination for eligibles for the police or fire department shall be allowed for seniority of service, which said credits shall be distributed as follows:

‘Examinations for Eligibles for the Police Department.

‘(a) For Promotion to the Rank of Sergeant of Police:

‘One per cent of the total credits allowed for the entire examination shall be allowed for eacy year of service in the department. * * *

‘(b) For Promotion to the Rank of Lieutenant of Police:

‘Six-tenths of one per cent of the total credits allowed for the entire examination shall be allowed for each year of service in the department. * * *

‘(c) For Promotion to the Rank of Captain of Police:

‘Forty-five hundredths of one per cent of the total credits allowed for the entire examination shall be allowed for each year of service in the department until a total of nine per cent of said total credits for said examination is reached, and in addition thereto six-tenths of one per cent of the total credits allowed for the entire examination shall be allowed for each year of service in the rank of lieutenant until a total of six per cent of the credits of the entire examination is reached.

‘(d) In addition to the foregoing credits for seniority, ten per cent of the total credits allowed for said examination shall be allowed for ascertained merit and meritorious public service; sixty per cent of said ten per cent to be allowed to each applicant for a clean record in the department, and forty per cent of said ten per cent shall be the maximum which may be allowed for acts of meritorious public service according to the judgment of the commission.’ (Emphasis added.)

Obviously, an examination of the above section of the charter shows that it does not purport to state a ‘cutting off date.’ It provides that credit for meritorious public service must be given in totalling the credits for the examination. Petitioner argues that this necessarily means that the time for allowing this credit must be up to the actual taking of the written examination, for there is no promotional examination until that is taken. However, this is reading more into the charter provision than is actually there. The charter deals with broad principles. The time within which the awards must be received to be applicable to a particular examination is not dealt with and is properly one within the scope of administrative decision.

2. Had the Commission Heretofore Established a ‘Cutting Off Date?’

Petitioner argues that the commission had regularly given credit for awards received up to the time of actually writing the examination. In 1941 the Civil Service Commission adopted the following rule: ‘Scope circulars for promotional examinations provide that employees who hold their position and have served their probation in said position on the beginning date of the examination, may participate. It seems to us that as the beginning date is used to determine the probationary period, it should also be used to determine seniority of service.

‘It is therefore recommended that the closing date for the receipt of applications be used in figuring experience and that the official beginning date as stated on scope be used to rate seniority of service.

‘Upon motion duty made and seconded, it was unanimously ordered that the report of the examining division be adopted, provided, however, that seniority in promotional examinations shall be computed to the date set in the scope-circular as the official beginning date, without regard to the date on which the examination might actually have been held due to postponements, continuances, or other circumstances.’

This rule deals with seniority. A witness for the commission gave testimony which rather weakly indicates that it followed the same rule with reference to meritorious service and demerits. Petitioner bases his contention that the commission accepted meritorious service up to the actual writing of the examination principally upon the case of Uhte v. Rosenthal, 37 Cal.App. 519, 174 P. 83, in which the notice of examination stated that applicants claiming credit for meritorious acts must present such claims prior to ‘January 8, 1916, the date of the beginning of this examination.’ However, in that case the ‘beginning date’ and the actual writing date were the same. The case is not of much help, as the question was not discussed. Petitioner relies upon the recital in the notice rather than on anything said by the court. However, the language of the notice supports the respondents' position more than it does that of petitioner. It indicates that even in 1916 the commission regarded that ‘beginning date’ as the ‘cutting off date.’ The commission contends that the policy became settled in 1941 by the adoption of the seniority rule.

Petitioner contends that the letter to the chief of police sent after the actual writing date of the examination, and which letter did not limit the requested information to awards made prior to the ‘beginning date,’ indicates that it did not use that date as the ‘cutting off date.’ This fact is very little, if any, evidence of the commission's policy in this respect. It very well could be the practice of the commission to get from the chief of police a complete list of awards, whenever granted, and then apply its own time limitations. The evidence of a definite practice of the commission as to a ‘cutting off date’ for meritorious service, as distinguished from seniority, is not too strong. It is doubtful if it actually proves an established practice. However, it favors the position of the commission more than that of petitioner.

3. Is the Adoption of the ‘Beginning Date’ as the ‘Cutting Off Date’ Unreasonable?

Obviously, there must be some date beyond which the commission will not consider meritorious service in grading the examinations. Petitioner concedes that were the ‘beginning date’ and the date of writing the examination the same, it would not be an unreasonable requirement that such date be the ‘cutting off date.’ But, he contends that where, as here, considerable time may elapse between the ‘beginning’ and the ‘writing’ dates, it is unreasonable not to allow credit for merit earned in the meantime. Here the actual difference in time was approximately 35 days. There is no limit provided by the charter as to the time which may elapse between the ‘beginning date’ and the ‘writing date.’ It could be six months or more. However, can we say, as matter of law, that the commission was unreasonable in this case in refusing to consider meritorious service after the ‘beginning date’? No cases are cited, either holding that it is beyond the commission's power to fix the ‘cutting off date,’ or holding that this one is an unreasonable one. Petitioner cites Klevesahl v. Byington, 1 Cal.App.2d 671, 37 P.2d 179, 180. It is not in point. There the Civil Service Commission had adopted a list of persons eligible to appointment as policemen, including the petitioner's name. Later, the Board of Police Commissioners held a hearing at which they considered acts of the petitioner subsequent to his certification by the Civil Service Commission reflecting on his honesty and sobriety. It then refused to appoint him and requested the Civil Service Commission to remove him from the eligible list. The commission held hearings and then removed him from the list. In a mandamus proceeding brought to compel the commission to restore him to the eligible list, the court, in upholding the action of the commission, pointed out that the commission, when it adopted the eligible list, inserted in it the proviso that it was ‘subject to moral character investigation to be made by chief of police.’ Moreover, section 9 of the charter provided that the commission should cancel the certification of a person upon subsequently finding him to be otherwise than of good character. The court was not considering the matter of a ‘cutting off date,’ and the decision is not inconsistent with the commission's requirement here that merits and demerits may be considered only up to the scheduled ‘beginning date,’ subject, of course, so far as demerits are concerned, to the application of section 9.

A situation somewhat analogous to the establishment of the ‘beginning date’ as the ‘cutting off date’ existed in connection with the San Francisco Charter rules as to residence requirements of employees as shown in the case of Dierssen v. Civil Service Commission, 43 Cal.App.2d 53, 110 P.2d 513. It was there held that the commission's ruling that the charter requirement of a year's residence meant a year prior to the closing date for filing applications to take the examination, and not prior to appointment, was a proper interpretation of the charter. The court in discussing other phases of the case, used language applicable to the situation here. It said, 43 Cal.App.2d at page 63, 110 P.2d at page 518: ‘A reading of the various sections of the Charter above referred to demonstrates that San Francisco, exercising its plenary power with regard to the method and manner of appointments, has set up a complete scheme for the making of such appointments. It is further apparent that the complete administration of this plan has been conferred upon the commission. The obvious intent of the sections as a whole is that power has been conferred on the Commission to pass on the qualifications of examinees, including not only such qualifications as are disclosed by the examination, but also such other qualifications such as age, residence, experience, etc. It is also quite clear that it is the intent of the charter that the administration of this plan should not be interfered with by the courts unless it be shown that the Commission acted fraudulently, capriciously or arbitrarily, or in violation of the provisions of the charter.’ So here, in order to hold that the ruling of the commission that it would not consider meritorious service subsequent to the ‘beginning date’ is invalid, we must, as matter of law, find that the ruling was capricious or arbitrary. This we cannot do. Moreover, it must be borne in mind that, while the commission's rules require that petitioner take a written examination only, the promotional examination referred to in the scope circular includes more than just the written examination. It includes the examination by the commission, as said in the Dierssen case, supra, 43 Cal.App.2d at page 62, 110 P.id at page 519, not only of ‘such qualifications as are disclosed by the [written] examination, but also such other qualifications such as age, residence, experience, etc.’ and, as set forth in the scope circular, claims for preference as war veterans. The circular further provides that only those who are lieutenants on the ‘beginning date’ are eligible. That date is the one on which the commission commences its examination of the applicant. It is reasonable that it be made the ‘cutting off date’ for data concerning him. It explains, too, why the circular, after fixing the ‘beginning date,’ instructs the applicant not to appear personally until notified.

No Abuse of Discretion in Denying Motion for New Trial.

Petitioner contends that his motion for a new trial should have been granted because (1) the original opinion of the court was based (a) upon evidence which had been properly excluded; (b) upon the alleged assumption that seniority in service and meritorious service are synonymous under the charter; and (2) of newly discovered evidence.

(1) (a) In his opinion the trial judge stated that the secretary of the commission had testified that acts of merit and demerit are part of seniority of service. He then referred to the fact that certain testimony of the secretary had been stricken out, and said, ‘the Court is of the opinion that it was the proper interpretation for the Commission to place or policy to adopt. * * * Following the stricken testimony the secretary testified somewhat vaguely to the effect that the same policy was followed with demerits as with merits; namely, that acts occurring after the ‘beginning date’ would not have been considered. This question is not of great importance for the reason that either there was no established practice, in which event the commission would not be bound to any particular date and could choose any reasonable one, or, if there was an established practice, petitioner produced no evidence that it was of the type claimed by him, and there was evidence to the contrary.

(1) (b) The judge's opinion states that seniority of service includes meritorious service. This error is not of sufficient moment to require the granting of a new trial. The court's order was correct, and as said in Rapp v. Southern Service Co., 116 Cal.App. 699, 706, 4 P.2d 195, 197, quoting from Davey v. Southern Pac. Co., 116 Cal. 325, 329, 48 P. 117: “No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” See also 2 Cal.Jur. 809.

(2) Newly Discovered Evidence.

Petitioner filed an affidavit in which he set forth that subsequent to the trial, the Civil Service Commission, in a promotional examination for the office of police sergeant, gave an applicant credit for meritorious service occurring after the ‘beginning date’ set for that particular examination. An affidavit by one of the respondent members of the Civil Service Commission was filed contradicting this affidavit. In view of this fact, we cannot say that the court abused its discretion in denying a new trial.

The judgment and order are affirmed.

BRAY, Justice.

PETERS, P. J., and WARD, J., concur.

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