PARRISH v. CLVIL SERVICE COMMISSION OF COUNTY OF ALAMEDA

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District Court of Appeal, First District, Division 2, California.

Benny Max PARRISH, Plaintiff and Appellant, v. The CLVIL SERVICE COMMISSION OF the COUNTY OF ALAMEDA, State of California, et al., Defendants and Respondents.

Civ. 22556.

Decided: May 31, 1966

Albert M. Bendich, Coleman A. Blease, Berkeley, for appellant. Robert H. Laws, Jr., B. V. Yturbide, Marshall W. Krause, San Francisco, for American Civil Liberties Union of No.Cal., amicus curiae on behalf of appellant. J. F. Coakley, Dist. Atty., County of Alameda, Richard H. Klippert, Asst. Dist. Atty., Oakland, for respondents.

This appeal from a judgment denying appellant B. M. Parrish's petition for a writ of mandamus for reinstatement as Social Worker II in Alameda County after his discharge for insubordination, raises questions of first impression concerning the propriety and constitutionality of an order directing appellant's participation in an operation to investigate welfare frauds. Respondents include the County of Alameda (hereafter county) and its Civil Service Commission, Board of Supervisors, Department of Welfare (hereafter department) and the director thereof, Harold B. Kehoe (hereafter director).

The basic facts are not in dispute.1 On November 20, 1962, the board of supervisors unanimously adopted a resolution requesting the county welfare director to conduct a series of unscheduled visits to welfare families similar to ‘operation weekend’ in Kern County, where a large number of welfare frauds had been discovered in this manner.

The social workers of the Family Service Division were told on January 3 or 4 by the assistant director that the first set of unscheduled visits would be made between 6:30 and 10:30 a. m. on Sunday, January 13, 1963, and that the main purpose of this visit would be to look for absent parents or unauthorized males in the homes of ANC (Aid to Needy Children) recipients. The workers were instructed to select both ‘suspect’ cases and random cases from their case load and to exclude those cases which had already been referred to the department's fraud investigation unit. A ‘suspect’ case was one where the recipient's eligibility had not been redetermined for a period of about six months, or where the worker had some grounds for concluding that the eligibility needed further investigation. The random cases were included in order to make a better overall statistic relating to the county's total case load of about 6,000 recipient families.

At a subsequent meeting on Thursday, January 10, workers chosen to go that weekend were given precise instructions for the procedure to be followed by the supervisor of the department's fraud unit. This particular mass operation to determine eligibility was to be conducted by pairs of social workers: the worker known to the recipient would present and identify himself at the front door of the home of the recipient, indicate the exact purpose of the call and request admission. If the request for entry was denied, the workers were directed not to enter the home. If the entry was allowed, they were directed to investigate in the same manner as they had on other occasions for the ANC program.

If the worker was admitted into the home, before proceeding into any other part of the house he was to ask permission to do so from the recipient. The second worker was to be stationed at the back door or other exit; if the worker at the front door was admitted, he was then to go through the house and let his partner in by the other exit. As in the past the department had withheld benefits from recipients who refused entry to members of the fraud unit, it was asked whether a refusal of entry on January 13 would automatically be a ground for discontinuance. The workers were instructed that if admission was not granted, benefits would not automatically be discontinued but the reason for denying admission would subsequently be investigated.

The workers were given these special instructions as this kind of operation was not among their ordinary routine duties which included supervising case loads of recipients of public assistance, conducting office and home interviews to determine continuing eligibility, recommending changes in aid, completing yearly renewals, determining eligibility for public assistance, completing applications and collecting and evaluating data and carrying continuing responsibility for their case load of recipients. The particular kind of investigation here in question was usually carried on by the fraud unit whose members were classified Social Worker III ‘Welfare Investigators.’ They worked in cooperation with the district attorney's office and investigated cases of suspected fraud referred by the case workers, who were classified as Social Workers II.

The primary purpose of the mass operation of January 13, 1963, was to identify and find the unauthorized males. The secondary purpose was to make the usual kind of administrative investigation relating to eligibility and to find out how much food there was in the house, the condition of the home and children, how the recipients were faring with their monthly checks, etc. As to the food and money, the workers were instructed to ask the recipient how much was left of the grant. Any unauthorized persons found in the home were to be identified and asked to explain their presence. If given permission to enter and permission to search, the workers were instructed to thoroughly search the premises, including looking in and under the beds.

Appellant, a Social Worker II, submitted a written refusal to participate in the mass visitations on the grounds that they were degrading, presumed the guilt of recipients, violated their rights of privacy, were not required under his job classification and were inconsistent with his training and the rehabilitative goals of the ANC program. His services were terminated by the director for insubordination. The order of dismissal was ratified by the supervisors, upheld, after hearing, by the Civil Service Commission, and affirmed by the trial court on appellant's petition in mandamus for reinstatement.

Preliminarily, we deem it helpful to set forth the pertinent provisions of the Welfare and Institutions Code concerning the ANC program (Welf. & Inst. Code, § 1500 et seq.) which is coordinated with the federal program under which federal funds are made available (Merced County v. Dept. of Social Welfare, 148 Cal.App.2d 540, 541, 307 P.2d 46; Dept. of Mental Hygiene v. McGilvery, 50 Cal.2d 742, 329 P.2d 689). Section 1550.62 of the Welfare and Institutions Code provides: ‘The county is responsible for the eligibility of all recipients of aid under this chapter and shall as often as necessary redetermine eligibility of all recipients to receive aid.’

A needy child is defined as a person under the age of 18 who has been deprived of parental support or care (Welf. & Inst.Code, § 1500; 42 U.S.C.A. § 606, subd. (a)). The federal act requires that the state agency in determining need shall take into consideration any other income and resources of a child claiming aid (42 U.S.C.A. § 602, subd. (a)(7)). The provision most significant here is the portion of section 1508 of the Welfare and Institutions Code providing that if a needy child lives with his mother and stepfather or an adult male person assuming the role of spouse to the mother, although not legally married to her, the amount of the grant made shall be computed after consideration given to the income of such adult male person. Section 1511 sets forth the maximum amount of aid to be provided per family based on the number of children in the family; section 1511.5 that minimum basic standards of adequate care shall be distributed to the counties and shall be binding upon them. Pursuant to section 1550, the application for aid must be verified under oath or shall contain a written declaration made under penalty of perjury.

The county is responsible for the eligibility of all recipients of aid under the Aid to Needy Children program and shall as often as necessary redetermine eligibility of all recipients (§ 1550.6) and shall redetermine eligibility annually and at such time, or such intervals as necessary, require the family to complete a certificate containing the information necessary to establish the continuing eligibility and grant pursuant to section 103.3 of the Welfare and Institutions Code.3 Section 1563 provides that any person signing such certificate who wilfully states therein any material matter which he knows to be false is guilty of a misdemeanor. Section 1575 provides: ‘Any person other than a needy child, as defined in Section 1500, who willfully and knowingly receives or uses any part of an aid grant paid pursuant to this chapter for a purpose other than support of the needy children and the caretaker involved is guilty of a misdemeanor.’ Section 1577 provides: ‘Any person other than a needy child, as defined in Section 1500, who willfully and knowingly, with the intent to deceive, makes a false statement or representation or knowingly fails to disclose a material fact to obtain aid, or who, knowing he is not entitled thereto, attempts to obtain aid or to continue to receive aid to which he is not entitled, or a larger amount than that to which he is legally entitled, is guilty of a misdemeanor.'4 The district attorney of the county is in charge of the enforcement of these provisions of the Welfare and Institutions Code (Welf. & Inst.Code, §§ 1570–1574).

‘Operation weekend’ was undertaken by the county pursuant to the above statutory provisions requiring a responsible and periodic redetermination of eligibility. Appellant does not challenge or question the county's duty to do so, but asserts that the method chosen—a mass operation involving suspect and random cases—is a general exploratory search without valid warrants, in violation of the Fourth and Fourteenth Amendments of the U. S. Constitution and section 19 of article I of the state Constitution, and is a denial of equal protection and due process.

We need not base our conclusion that search warrants were not required in this case on the ground, asserted by respondents, that the operation proposed was a mere administrative procedure to insure eligibility and could not be characterized a criminal investigation (Frank v. State of Maryland, 359 U.S. 360, 372–373, 79 S.Ct. 804, 3 L.Ed.2d 877; Abel v. United States, 362 U.S. 217, 230–234, 80 S.Ct. 683, 4 L.Ed.2d 668). Even if we assume the operation to be a criminal investigation, it is not illegal or unreasonable ‘for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes' (People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852, 854; People v. Martin, 45 Cal.2d 755, 761, 290 P.2d 855). It is well established that where a person freely and voluntarily consents to a search of the premises under his control, his constitutional rights are not violated and any search or taking of evidence is not unreasonable (People v. Burke, 47 Cal.2d 45, 301 P.2d 241; People v. Fahrner, 213 Cal.App.2d 535, 536, 28 Cal.Rptr. 926). Where there is a free and voluntary consent, it is not necessary for the respondents to otherwise justify an investigation or search (People v. McGhee, 196 Cal.App.2d 458, 16 Cal.Rptr. 625; People v. McLean, 56 Cal.2d 660, 664, 16 Cal.Rptr. 347, 365 P.2d 403).

Appellant relies on Johnson v. United States, 333 U.S. 10, 68, S.Ct. 367, 92 L.Ed. 436; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, and other cases involving the question of consent, holding that under the particular facts presented, there was no voluntary relinquishment of a known right but mere acquiescence to an express or implied assertion of authority. Applicable is the following comment with reference to the Johnson case and similar authorities made in People v. Michael, supra, 45 Cal.2d page 753, 290 P.2d 852, and quoted with approval in People v. Burke, supra, 47 Cal.2d page 49, 301 P.2d page 243: “Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.”

Here, appellant and other social workers were repeatedly instructed that they were to carefully explain the purpose of their call and to seek permission or consent to search, with the clear implication that they were not to threaten automatic discontinuance of benefits or to use other coercive tactics. If appellant had failed to follow these instruction, he would likewise have been subject to disciplinary action. Although the facts here presented are unique and present many problems, we must assume for the purpose of this discussion that the instructions would have been followed and consent obtained.5 Under these circumstances, we are not prepared to conclude, in the absence of a specific factual showing to the contrary, as in the Johnson case, that the ANC recipients had no alternative but to submit to a search and that it was not possible for their social workers, who strictly complied with orders, to obtain valid consent.6 Certainly, there is no greater implied assertion of authority here than in criminal cases which have approved consensual searches by identified police officers (Honig v. United States (8 Cir. 1953), 208 F.2d 916; People v. Michael, supra; People v. McGhee, supra). Also, until facts are adduced relating to the invasion of privacy of others in the home or involving consent by unauthorized persons, the principles enunciated in Tompkins v. Superior Court etc., 59 Cal.2d 65, 27 Cal.Rptr. 889, 378 P.2d 113; and People v. Shelton, 60 Cal.2d 740, 36 Cal.Rptr. 433, 388 P.2d 665, cited by amicus curiae, would not come into play.

A case in point is Honig v. United States, supra. There, one federal agent and two police officers went to the suspect's room. After being invited to enter, the officers informed the suspect of the complaint against him and asked for identification. When he answered that he had none, the officers asked if he would mind if they searched the room for identification and he told them to proceed. The court held this to be an effective consent.

We think that the opinion in Ohio ex rel. Eaton v. Price, 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed.2d 1708, which involved an administrative search, is informative on the question of whether consent can be effective where there have been no prior suspicions or complaints concerning particular individuals or premises. In that case, there was an indiscriminate attempt to inspect the home in question even though there was no indication of any building code violations. Appellant was jailed pursuant to an Ohio Ordinance for refusing to let the inspectors enter without a warrant. His conviction was affirmed because the Supreme Court was equally divided, Mr. Justice Stewart having taken no part in the decision. Mr. Justice Brennan, nevertheless, wrote an opinion favoring reversal but conceded that such warrant need not be sought where the householder gives his consent.

Amicus curiae argue that a warrant should have been obtained before the recipient's consent to enter was requested but the cases they cite do not sustain such a contention. Bielicki v. Superior Court etc., 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288, was based on an arrest made after an officer had peeped through a pipe installed in a bathroom in an amusement park. The court found that defendant did not consent merely because he used a public place and held that evidence so obtained resulted from an unreasonable search. In People v. Cruz, 61 Cal.2d 861, 40 Cal.Rptr. 841, 395 P.2d 889, the court held that an arrest having been made in defendant's automobile, the right to search incident to arrest and without a warrant did not extend to his home and consent to search defendant's suitcase could not be given by third parties living in the home. In Castaneda v. Superior Court etc., 59 Cal.2d 439, 30 Cal.Rptr. 1, 380 P.2d 641, the officers took defendant from the place of his arrest to defendant's home and searched without a warrant. The court held the search at a different location was not incident to a lawful arrest. In Badillo v. Superior Court etc., 46 Cal.2d 269, 294 P.2d 23, the officers forced their way into the defendant's home without a search warrant and recovered a package of heroin thrown away by defendant. The court held the burden of proof that the evidence was legally obtained was on the prosecution. Kaufman v. Brown, 93 Cal.App.2d 508, 209 P.2d 156, and similar authorities, simply hold that in a civil action for false arrest, the allegation of arrest places on the defendant the burden of showing probable cause.

As to appellant's argument concerning the Fourth Amendment right of privacy, all of our above comments concerning consent apply equally to a waiver of that right. Thus, we cannot agree, in the absence of specific facts relating to married recipients, that the situation here presents problem involving the penumbral right of privacy and repose upheld in Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.

Appellant's argument that the investigation was invalid because it concerned a field pre-empted by state law is patently without merit as the statutes expressly made the county responsible for determining and redetermining eligibility (Welf. & Inst. Code, §§ 1500–1556).

We need not determine whether appellant is an employee or agent of the federal government as we have concluded that he was not required to participate in any violation of constitutional rights and thus no grounds existed which might subject him to criminal penalties under the Federal Civil Rights Act, 18 U.S.C.A., Title 18, section 2236, page 177.

Finally, we turn briefly to the reasonableness and propriety of the order directing appellant to participate in the mass operation of January 13. As we have indicated above, appellant was not required to participate any unconstitutional activity and the order was made in the exercise of the county's duty to determine the continuing eligibility of recipients. As all workers in the Family Service Department were asked to participate in an operation of this kind on a weekend, the request was not unreasonable as to appellant. The job classification questionnaire submitted by appellant indicates that his duties might include evening and weekend hours.

Appellant complains that this operation was contrary to the rehabilitative goals of the ANC program. There are different schools of thought on this subject. The pertinent sections of the Welfare and Institutions Code, cited above, indicate that the primary purpose of the program is to insure adequate food and clothing to the minor children and to afford them a good moral climate. Certainly, the public funds provided should not be syphoned off by unauthorized adult males residing in the home, regardless of the pleasures this may afford the mothers. We see nothing inherently wrong with making weekend eligibility calls which experience has demonstrated disclose widespread fraudulent misappropriation of public funds and the deprivation of the children for whose benefit the ANC program was instituted.

We can only conclude, in complete agreement with the court below, appellant was guilty of insubordination, defined as the wilful refusal to obey the reasonable orders of an employer (Wilbur v. Office of City Clerk, 143 Cal.App.2d 636, 642, 300 P.2d 84). As stated in Pranger v. Break, 186 Cal.App.2d 551 at 556, 9 Cal.Rptr. 293 at 297: “One employed in public service does not have a constitutional right to such employment and is subject to reasonable supervision and restriction by the authorized governmental body or officer to the end that proper discipline may be maintained, and that activities among the employees may not be allowed disrupt or impair the public service. [Citations.] Because of this dominant public interest, the exercise of such control over the public employee is not only a right but is a duty, and in the discharge thereof a wide discretion [thereof] is allowed, which will not be disturbed until the point of illegality is reached.” No such point was reached here.

The judgment is affirmed.

FOOTNOTES

1.  Respondents argue that no constitutional issues are presented and that our sole function is to determine whether the administrative findings are supported by substantial evidence. However, like the court below, we will determine the matter on the merits. Where constitutional issues are involved, we must make an independent examination of the facts and law (Rescue Army v. Municipal Court etc., 28 Cal.2d 460, 171 P.2d 8; Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, 728).

2.  All of the above statutory references concern the provisions of the Welfare and Institutions Code at the time here relevant before the 1963 amendments (State. 1963, ch. 510). These amendments, however, did not substantially change the law but pursuant to a change made in federal law, existing groups of eligible children were redefined, children of unemployed parents were made eligible and the program was expanded to provide services as well as financial assistance to recipient families (tenBroek, California's Dual System of Family Law, Part II; 16 Stan. L.Rev., pp. 900, 952).

3.  section 103.3 provides that the program be administered with ‘due consideration for the needs of applicants and the safeguarding of public funds.’ Subdivision (a) provides that any recipient for public assistance shall be informed as to the provisions of eligibility and his responsibility for reporting facts material to a correct determination of his eligibility of the grant.

4.  Subdivision (b) of section 103.3 provides, in part, that any recipient for public assistance ‘shall be responsible for reporting accurately and completely within his competence those facts required of him pursuant to subdivision (a) and to report promptly any changes in those facts.’

5.  (See Effective Consent to Search and Seizure, 113 Univ. of Penn.L.Rev., 260; Administrative Inspections and the Fourth Amendment—A Rationale, 65 Colum.L.Rev., 288; Manwaring, California and the Fourth Amendment, 16 Stan.L.Rev., 318; Reich, Midnight, Welfare Searches and the Social Security Act, 72 Yale L.J., 1347; Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 Univ. of Chicago L.Rev., 664, 667–678).

6.  None of the authorities cited by appellant deal with the question of consent which is properly presented in the brief of amicus curiae as pivotal in this case. (United States v. Silverman, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734; Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877; Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933; Dist. of Columbia v. Little, 3 Cir., 178 F.2d 13; Stanford v. State of Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Boyd v. United states, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Marcus v. Search Warrant etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; Entick v. Carrington, 19 How.St.Tr. 1030; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Pearson v. United States, 10 Cir., 150 F.2d 219; Smith v. State, 1945, 182 Tenn. 158, 184 S.W.2d 390).

TAYLOR, Justice.

SHOEMAKER, P. J., and AGEE, J., concur.

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