DAMIANI v. ALBERT

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

Louis DAMIANI, Appellant, v. Harry ALBERT et al., Respondents.*

Civ. 21558.

Decided: September 12, 1956

Rosalind G. Bates and Roland S. Bates, Los Angeles, for appellant. Harold W. Kennedy, County Counsel, Andrew O. Porter, Deputy County Counsel, Los Angeles, for respondents.

Appellant Damiani, a Deputy Sheriff of Los Angeles County, was discharged for cause on November 18, 1954. A formal hearing, requested by appellant, was held before the County Civil Service Commission on December 22 and 23, 1954, and the order of discharge sustained. The appellant then petitioned the Superior Court for a Writ of Mandate which was denied, and the present appeal followed.

The Sheriff's letter giving notice of the discharge states that the appellant had violated certain rules of the Sheriff's Office which require official communications to be sent through channels or the ‘chain of command’, in that ‘you on or about October 30, 1954, * * * communicated verbally and in writing directly with Captain Charles Mullison, of the Sheriff's Emergency Reserve’, etc.; and that ‘on or about October 25, 1954, you submitted a signed, but undated report to your station Commander, Captain James E. Pascoe, in which you falsely stated that Sergeant Byron A. Mallette was intoxicated while off duty, but working in an approved outside assignment at the Elliott Junior High School, 2184 N. Lake Avenue, Altadena, California, between 8:00 p. m. and 11:30 p. m., as a uniformed officer’. A further ground for discharge specified in the Sheriff's letter is that on May 1, 1952, appellant Damiani had been suspended 30 days for violation of rules and regulations, and on November 2, 1951, had been suspended for 5 days, ‘because you directed vile and profane language against your superior officer’.

The trial court's findings in the mandamus proceeding were to the effect that the appellant had not been denied due process of law; that the findings of fact made by the Civil Service Commission were supported by substantial evidence; that appellant, previous to the discharge involved herein, had been ‘suspended, without pay for disciplinary reasons twice’, for less than 30 days, and ‘that there is no provision for a hearing on a suspension for not longer than thirty days'; that the hearing before the Civil Service Commission was held ‘on due notice, and was full and fair’, and that ‘Petitioner's discharge was justified’.

It is one of the contentions that appellant did not violate the chain of command rule by making charges directly rather than ‘through channels', for the reason that Captain Mullison and Deputy Weberg mentioned in the Sheriff's letter, were ‘private citizens' deputized under the Disaster Relief Authority of Los Angeles County, and acting on the Emergency Reserve, which fact did not make such persons members of the Sheriff's Department; and that there was nothing in the Manual of Policy and Ethics prescribing the channels requirement in reference to such Reserves.

The appellant also argues that ‘There was not substantial evidence in the light of the whole record to support the findings of either the Civil Service Commission or the trial judge’. It is likewise claimed that ‘No law or rules of any commission were presented to the trial court, nor * * * to this court, which allows former suspensions without a hearing to be used as a basis for a discharge’.

That the discharge of a deputy sheriff or other public servant, after a long period of service, is a matter of the utmost importance both to the individual and to the public, cannot be denied. It is likewise fundamental that such a discharge should not come about save in those cases where adequate grounds exist, and where the discharged employee has been accorded a fair and impartial hearing. And in such a case as the present, it is essential that the employee's rights, together with well recognized humanitarian principles, be closely guarded and given every possible consideration.

This fundamental duty devolves upon every official, commission and court before whom the matter is presented, from the lowest to the highest. The modern tendency of creating various boards and commissions with quasi-judicial powers and broad discretionary authority in no manner alters this basic rule. Any other view of the matter would seem to countenance an arbitrary grant of power quite un-American in principle.

In the instant litigation it appears that Louis J. Damiani had been employed as a deputy sheriff in Los Angeles County for six years, and previous to that period had been a police officer in another state. The reasons for Damiani's discharge, according to Sheriff Biscailuz's letter, are threefold, namely, that appellant made certain official communications directly to a superior officer rather than sending the same through a prescribed ‘chain of command’ or official ‘channels'; that appellant had falsely accused Sergeant Mallette with having been intoxicated at a school dance; and finally, that on two previous occasions, several years before, Damiani had been suspended without pay.

From the record it is impossible to say which of these accusations was deemed vital or controlling, or whether it was only the sum total and cumulative effect thereof which was considered important enough to warrant appellant's discharge. The respondents' brief practically eliminates from consideration the last ground for discharge, namely the evidence of appellant's prior suspensions without pay, by stating that ‘While not sufficient standing alone to support any disciplinary action, it was properly considered in connection with the severity of the sentence to be given on the main charge’. The respondent does not go on to state whether the ‘main charge’ so mentioned is the violation of the channels rule, or the alleged false statements concerning Sergeant Mallette's intoxication. So far as the record shows, there is no ‘main charge’, and the matter is thus left in an unsatisfactory and indefinite condition.

Respondents' position in regard to the evidence of former suspensions cannot be upheld. As said in appellant's supplementary brief on rehearing. ‘Since the Court must assume that Petitioner paid the penalty of any such violations, (loss of pay, etc.), their inclusion as one of the three charges against him and their reason for his discharge is basically unfair, and there are no rules of any Commission justifying such procedure’. In this connection it should be remembered that these prior suspensions were effected without any hearing and appellant was thus given no proper or adequate opportunity to defend himself. Such prior suspensions were neither proper grounds for discharge nor properly admitted in evidence, and the procedure in reference thereto must be deemed highly prejudicial to appellant's fundamental rights.

The charge that appellant's accusatory communications were not made through proper channels in the designated chain of command, in itself a technical matter, can be sustained only if it appears that the technical rules involved therein are clearly applicable to the case at hand. Yet, this highly important element has been assumed to exist and was not definitely established. It is not enough that there might be, as Captain Pascoe stated, some ‘general practice’ relating to this matter. The record is barren of any definite showing that these ‘chain of command’ requirements relied upon, actually apply to the Sheriff's Reserves to which Captain Mullison belongs.

Captain Mullison was, according to the testimony, ‘connected with the Sheriff's Department * * * in the Reserve Section’. The ‘duties of that position’ are ‘to supply reserves as needed and as called for by the Captain of the Altadena Station’. The Manual of Policy and Ethics prescribing the ‘channels' method of official communications fails to make any mention of such Reserves. The practical situation, therefore, is that appellant is charged with having breached a technical rule which has been assumed to apply to these reserves. This defect must be deemed prejudicial to the appellant's rights. The discharge of a deputy sheriff based upon something less than full proof of the elements of the charge, cannot be given judicial approval.

The appellant was clearly entitled to precise accusations and definite proof of serious grounds for discharge; nothing should be left to supposition. Yet in this case, as previously mentioned, appellant was presented with a conglomeration of charges, one of which was clearly improper, and another which is left in the realm of indefiniteness and surmise. Whether appellant was discharged for one or the other of the three charges, or on general principles, or for the sum total, cannot be ascertained. The entire proceeding is thus left in an unsatisfactory condition, difficult to understand and even more difficult to defend.

Nor is the record at all satisfactory in respect to the charge that appellant falsely and with knowledge of its falsity accused Sergeant Mallette of being intoxicated at the time in question. Even if it be assumed that appellant was entirely mistaken in believing such to be a fact, it does not follow that the accusation was made with knowledge of its falsity. If appellant had observed certain symptoms which from previous association indicated that Mallette was intoxicated, the conclusion which Damiani arrived at on the occasion in question, was not an unreasonable one.

The record indicates that the appellant was quite frank and open about the matter, even discussing it with Sergeant Mallette who testified that Damiani ‘called to me from the platform out in the yard and he said: ‘What about being drunk at the Elliott School?’. I said, ‘Well, what about it?’ He said, ‘Well, you were drunk’. I said, ‘All right, just put it in writing and be sure to sign your name to it’.' And, with such an apparent stamp of approval on Mallette's part, this is exactly what appellant did. Moreover, Captain Weberg, to whom appellant's report was submitted, seems to have more or less approved of it, and testified, ‘I might have agreed, I don't know’, claiming to be somewhat confused about the matter.

All of this is a long ways removed from proof that appellant knowingly made false statements or was guilty of conduct which would justify a discharge. And this matter assumes much greater importance when it is considered that it cannot be determined whether Damiani's discharge was given on this or some other ground, or on general principles. In addition to the charges already mentioned, the Civil Service Commission seems to have also incorporated a general catch-all phrase in its conclusions to the effect that the appellant had ‘behaved in a manner to bring discredit upon himself and the department’. In this indefinite state of the record it is futile to talk about substantial evidence in support of the findings.

The judgment and order are reversed, with directions what a Writ of Mandate issue, ordering that the appellant Louis Damiani be restored forthwith to his position as Deputy Sheriff as of November 18, 1954.

DORAN, Justice.

WHITE, P. J., and FOURT, J., concur.

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