BARBER v. STATE PERSONNEL BOARD

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Court of Appeal, Third District, California.

Willie BARBER, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent.

Civ. 14212.

Decided: March 04, 1976

Loren E. McMaster, Calif. State Employees Assn., Sacramento, for plaintiff-appellant. Evelle J. Younger, Atty. Gen., by Talmadge R. Jones, Deputy Atty. Gen., Sacramento, for defendant-respondent.

The Department of the Youth Authority dismissed plaintiff from his position as a permanent state civil service employee. After an administrative hearing, the State Personnel Board (‘Board’) upheld the dismissal. Plaintiff then filed in the superior court a petition for a writ of mandate to compel his reinstatement with back pay. He appeals from the judgment denying the writ.

On April 24, 1972, following an interview on that date which will be hereinafter mentioned, plaintiff was served with a notice pending investigation and placed on leave of absence pursuant to Government Code section 19574.5.1 On or about May 19, 1972, plaintiff was served with a notice of punitive action of dismissal pursuant to section 19574, the dismissal being retroactive to April 24, 1972. The causes specified in the latter notice were ‘Insubordination,’ ‘Dishonesty,’ ‘Willful disobedience,’ and ‘Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the employee's agency or his employment.’ (§ 19572, subds. (e), (f), (o), (t).)

Plaintiff filed an administrative appeal from his dismissal. (§ 19575.) After the administrative hearing, the Board adopted the hearing officer's decision that cause for punitive action against plaintiff existed under section 19572, subdivisions (f) (dishonesty) and (o) (willful disobedience). No findings were made concerning the other two charges.

I

Plaintiff contends that the evidence was insufficient to support the Board's decision. The contention is without merit.

Even where the administrative decision affects fundamental vested rights, the factual determinations of the Board must be upheld by a reviewing court if they are supported by substantial evidence in the light of the whole record. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217 fn. 31, 124 Cal.Rptr. 14, 539 P.2d 774; Keely v. State Personnel Board (1975) 53 Cal.App.3d 88, 92, 125 Cal.Rptr. 398; Martin v. State Personnel Bd. (1972) 26 Cal.App.3d 573, 577, 103 Cal.Rptr. 306.) In following the substantial evidence rule we must consider the evidence in the light most favorable to the Board, giving to the Board the benefit of every reasonable inference and resolving all conflicts in its favor. (Martin v. State Personnel Bd., supra.) Thus viewed, the evidence shows:

In late March 1972, a wristwatch belonging to a ward was stolen from a locker at the O. H. Close School for Boys in Stockton. Plaintiff was employed as a youth counselor at that Youth Authority institution.

On April 13, 1972, plaintiff approached one of his supervisors, James Figge, and asked what kind of action would be taken against those responsible for stealing the watch if it were turned in. Figge was noncommittal. Plaintiff then indicated he could get the watch back if Figge kept the names of the guilty parties in confidence. Figge did not agree to this.2 When Figge demanded that plaintiff reveal what he knew about the watch, plaintiff produced the watch from his pocket and explained that he had obtained it that morning from a recently paroled ward (whom plaintiff named) at the ward's home in Berkeley.

At a taped interview on April 24, 1972, plaintiff was ordered by the school superintendent, Harold Richard, to disclose how the watch came into plaintiff's possession. Plaintiff, however, repeatedly refused on the ground that he was ‘being’ incriminated and condemned for helping out, and on the further ground that Figge (according to plaintiff) had agreed that the names of the guilty parties would not leave Figge's office.

At another taped interview on May 1, 1972,3 plaintiff told the superintendent that he had obtained the watch from the recently paroled ward on the street outside the ward's home in Berkeley about 8:00 a. m. on April 13. Plaintiff further told the superintendent that the watch had been discussed a couple of days before April 13 when the ward phoned plaintiff about a phonograph record and plaintiff telephoned the ward from plaintiff's home.

The paroled ward testified at the administrative hearing and flatly contradicted plaintiff's explanation. The ward conceded that he had phoned plaintiff on April 10 about a record album, but claimed that the watch had not been discussed. The ward denied giving plaintiff the watch; he further testified that he was asleep at home at 8:00 a. m. on April 13, did not get up till 9:00 a. m., and did not see plaintiff there either on that date or any time that week.

The ward's testimony was corroborated by that of an adult visitor at the ward's Berkeley home. The visitor testified that on April 13, so far as the visitor could tell, the ward did not leave his bedroom either between 7:00 a. m. and 8:00 a.m. (when the visitor was awake) or between 8:00 a. m. and 9:00 a. m. (when the visitor was asleep on a couch near the front door). The visitor also testified that he did not see plaintiff anywhere around the home that morning.

A written record of plaintiff's toll charges was introduced at the administrative hearing and showed that plaintiff did not phone Berkeley from plaintiff's home any time from April 3 to April 14.

The hearing officer made detailed written findings in substantially the same form as our foregoing summary of the evidence. The hearing officer also found that plaintiff gave a false explanation to Figge on April 13, 1972, and to the superintendent on May 1, 1972, as to how plaintiff had obtained the watch, and that those false statements were cause for punitive action under section 19572, subdivision (f) (dishonesty). The hearing officer further found that there was cause for punitive action under section 19572, subdivision (o) (willful disobedience), on the basis of plaintiff's repeated refusals of the superintendent's disclosure order on April 24, 1972. All those findings were adopted by the Board.

Contrary to plaintiff's contention, the findings were amply supported by the evidence summarized. (See, Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 718–719, 85 Cal.Rptr. 762 (dishonesty); Cvrcek v. State Personnel Bd. (1967) 247 Cal.App.2d 827, 56 Cal.Rptr. 84 (same); Hingsbergen v. State Personnel Bd. (1966) 240 Cal.App.2d 914, 50 Cal.Rptr. 59 (willful disobedience); Coomes v. State Personnel Board (1963) 215 Cal.App.2d 770, 775, 30 Cal.Rptr. 639 (same).) Plaintiff's attack on the credibility of the paroled ward goes to a matter within the exclusive province of the board. (Lorimore v. State Personnel Board (1965) 232 Cal.App.2d 183, 186, 189, 42 Cal.Rptr. 640.) The same may be said for plaintiff's claim that his refusals of the superintendent's order on April 24 stemmed from plaintiff's being upset and confused (of which there was evidence) by what plaintiff describes as ‘the coercive and unfair procedures' employed at his interview on that date (a description which is refuted by the tape of that meeting). (Cvrcek v. State Personnel Bd., supra, 247 Cal.App.2d at p. 832, 56 Cal.Rptr. 84.)

Plaintiff also asserts that the findings are not sufficiently detailed. The claim is without merit. The findings go beyond those of ultimate fact and are evidentiary in nature. They are more than sufficient. (§ 19582, subd. (e); Shepherd v. State Personnel Board (1957) 48 Cal.2d 41, 50, 307 P.2d 4; McNeil's Inc. v. Contractors' State License Board (1968) 262 Cal.App.2d 322, 326–327, 68 Cal.Rptr. 640; Savelli v. Board of Medical Examiners (1964) 229 Cal.App.2d 124, 134–135, 40 Cal.Rptr. 171; Tabory v. State Personnel Board (1962) 208 Cal.App.2d 543, 546–547, 25 Cal.Rptr. 333.)

II

Plaintiff contends that the penalty of dismissal was so severe as to constitute a clear abuse of discretion.

The contention is unavailing. Those in charge of a custodial institution must of necessity demand unfailing obedience and integrity on the part of staff members. ‘The people of California adopted the Civil Service Constitutional amendment (Article 24) in order to secure a high standard of public service and a high standard of conduct in public service. The State Civil Service Act was enacted to implement and carry out the high purpose of the constitutional amendment and the act. The act states that every state employee ‘shall prove himself in his behavior inside and outside the service worthy of the esteem which his office or position requires.’' (Batson v. State Personnel Board (1961) 188 Cal.App.2d 320, 324–325, 10 Cal.Rptr. 452, 454.) Even if plaintiff's theretofore unblemished record might cause reasonable minds to differ as to the propriety of dismissal, a reviewing court would not be free to substitute its own discretion in the matter. (Nightingale v. State Personnel Board (1972) 7 Cal.3d 507, 515, 102 Cal.Rptr. 758, 498 P.2d 1006; Vielehr v. State Personnel Bd. (1973) 32 Cal.App.3d 187, 196, 107 Cal.Rptr. 852; Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966–967, 103 Cal.Rptr.455.)

III

Plaintiff contends that the punitive action provisions of the State Civil Service Act, in particular Government Code section 19574, violate the due process clauses of the state and federal constitutions because those statutory provisions fail to accord a permanent civil service employee a hearing prior to dismissal. The contention is meritorious. Skelly v. State Personnel Bd., supra, 15 Cal.3d at pages 215–216, 124 Cal.Rptr. 14, 539 P.2d 774, holds that section 19574 is unconstitutional on its face for the reason urged by plaintiff. (See also, Keely v. State Personnel Board, supra, 53 Cal.App.3d at pp. 97–98, 125 Cal.Rptr. 398.)

On the authority of Skelly, the punitive action taken against plaintiff on or about May 19, 1972 (by notice dismissing him effective April 24, 1972) was invalid. However, since plaintiff was subsequently accorded a full evidentiary hearing on his administrative appeal, and since the record justifies the disciplinary action taken, we hold that plaintiff's dismissal was constitutionally valid as of the date of the Board's decision. (See, Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 220, fn. 34, 124 Cal.Rptr. 14, 539 P.2d 774; Keely v. State Personnel Board, supra, 53 Cal.App.3d 230, 240–241, 123 Cal.Rptr. 512.) It is thus apparent that we disagree both with Kristal, supra, and with Keely, supra (a decision by another panel of this court), as to the date to which back pay must be awarded. Plaintiff is entitled to his salary as a youth counselor from April 24, 1972 until the date the Board's decision was filed.

The judgment is reversed and the cause is remanded to the trial court for further proceedings in conformity with this opinion.

FOOTNOTES

1.  Unless otherwise indicated, all section references herein are to the Government Code.

2.  Plaintiff testified that there was such an agreement; Figge's testimony denied it.

3.  The tapes of the April 24 and May 1 interviews were in evidence at the administrative hearing and in the superior court and have been considered by this court.

JANES, Associate Justice.

FRIEDMAN, Acting P. J., concurs.

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