PRICE v. SACRAMENTO COUNTY CIVIL SERVICE COMMISSION

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Court of Appeal, Third District, California.

John M. PRICE, as District Attorney for the County of Sacramento, Plaintiff and Respondent, v. The SACRAMENTO COUNTY CIVIL SERVICE COMMISSION and the County Board of Supervisors, Defendants and Appellants.

Civ. No. 16302.

Decided: January 30, 1978

John B. Heinrich, County Counsel, and Thomas A. Darling, Deputy County Counsel, Sacramento, for defendants and appellants. John M. Price, Dist. Atty., and Roger M. Miller, Deputy Dist. Atty., for plaintiff and respondent.

The Civil Service Commission of Sacramento County promulgated Rule 7.10, establishing a minority quota hiring system whenever necessary to remedy an imbalance in county agencies.1 After hearings, the commission issued an order finding that minorities were under-represented among the attorney personnel of the Sacramento District Attorney's office; that the under-representation resulted from unintentionally discriminatory practices, including “unvalidated” oral examinations and insufficient recruitment efforts. The order directed that appointments in the Attorney I (the entry level) classification in the District Attorney's office be made “on the basis of an alternating ratio of 2:1 so that at least one minority person is appointed for every two non-minority persons” until the percentage of minorities in the Attorney I and Attorney II classes reached 8 percent.

The district attorney filed a mandate petition in the superior court, naming as defendants the Civil Service Commission and the Board of Supervisors. His petition sought abrogation of the commission's rule and order. The trial court granted a peremptory writ, concluding that the Civil Service Commission's rule and order on their face unconstitutionally discriminated against non-minority persons. The defendants appeal.

We sustain the trial court's ruling but without passing upon the denial-of-equal-protection theory adopted by the trial judge. Courts do not engage in constitutional inquires when other grounds of decision are available. (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65-66, 195 P.2d 1.) We have concluded that the minority preference order of the Civil Service Commission violates the Sacramento County Charter and exceeds the authority granted by Title VII of the Federal Civil Rights Act of 1964.

I

The district attorney has standing to maintain this lawsuit. Public officials possess the powers expressly granted by law and such additional powers as may fairly be implied from those expressly granted. (In re Cathey (1961) 55 Cal.2d 679, 689, 12 Cal.Rptr. 762, 361 P.2d 426.) The district attorney is authorized to appoint deputies “for the prompt and faithful discharge of the duties of his office.” (Gov.Code, s 24101.) Subject to valid restrictions imposed by the civil service system, the district attorney has implied power to select and promote deputies in such manner as he believes will best promote the efficiency and effectiveness of his office. When, in his opinion, a civil service restriction upon his power of appointment is illegal, the maintenance of a lawsuit to test its validity is within his implied authority.2

II

Sacramento is a chartered county. Article XVI of the charter deals with personnel administration. Section 71-B(a) of Article XVI empowers the Civil Service Commission to establish rules for the selection and classification of civil service employees. Section 71-C(b) directs the county executive to classify civil service positions and to administer examinations, subject to approval of the commission. Section 71-F declares that all appointments in the civil service “shall be based on relative fitness as ascertained by competitive examinations;” that eligible lists shall be established containing names of successful candidates in the order of their standing in examination; that an appointment shall be made from among the eligibles whose scores at the time of certification represent the three highest ranks on the list. Section 71-F(f) prohibits any favor or discrimination among applicants or employees because of race, color, creed, sex, national origin or political affiliation.

The rules of the Civil Service Commission contain a section 5 dealing with examinations. Section 5 commences with the following recital: “It is the policy of the County to seek the best-qualified persons available for each job in County service, and to encourage persons to compete for the best jobs for which they are qualified without regard to race, color, religion, sex, national origin or political belief.”

Rule 5.4 permits oral examinations; these are to be administered by a panel consisting of a representative of the department of personnel management, one or more persons not in the county service, one or more persons in the county service familiar with the particular job requirements and one or more members of an ethnic minority group.

Section 6 of the rules directs preparation of an eligible list containing names in the order of the final examination ratings. Central to this controversy is Rule 7.10, entitled “Minority Preference Appointment.” Subdivision (a) of the rule recites its purpose “to provide a procedure for adjustment of disproportionate representation of minority personnel . . . which is a result of discriminatory employment practices.” Subdivision (c) provides for an order directing minority appointment preference if, after a public hearing and reception of evidence, the commission finds that (1) the number of minority personnel in a classification is disproportionately low in relation to the county population mix, (2) the disproportion was caused by discriminatory employment practices, and (3) it is feasible to adjust the disproportionate representation by requiring preferential appointment of minority persons on an eligible list.

After a series of hearings the commission, in September 1975, adopted findings and an order relative to civil service attorney classes in three county legal agencies. According to the findings, minorities were under-represented in the County Counsel's office but because of a low turnover rate a minority preference order was not feasible; the number of minority attorneys in the Public Defender's office had increased recently until the proportion was close to the minority population mix of that county. The commission found that the District Attorney's office contained approximately 65 attorney positions, only one of which was filled by a minority person; that the percentage of minorities (other than female) in the general population mix of the Sacramento area was approximately 19.5 percent. According to the findings, there was no evidence that this disproportion had resulted from intentionally discriminatory practices; rather, the under-representation had been caused by unintentionally discriminatory practices of both the county and the district attorney, including (a) the discriminatory effect of the county's civil service system; (b) the administration of unvalidated “oral only” examinations; (c) the district attorney's lack of special minority recruitment efforts; and (d) the district attorney's failure to offer civil service appointments to minority persons in legal trainee positions.3 The commission's action of September 1975 concluded with the numerical hiring order under attack.

“ The provisions of a charter are the law of the State and have the force and effect of legislative enactments.” (Cal.Const., art. XI, s 3(a).) The Sacramento County charter authorizes the Civil Service Commission to adopt rules for the selection of civil service employees and to carry out its powers and duties. (Charter, art. XVI, 71-B(a) and (g).) An administrative agency may not adopt a rule which amends the law it administers or which enlarges or restricts its scope; such a rule is void. (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 419-420, 128 Cal.Rptr. 183, 546 P.2d 687; Ralph's Grocery Co. v. Reimel (1968) 69 Cal.2d 172-175, 70 Cal.Rptr. 407, 444 P.2d 79.)

In article XVI, section 71-F(f) the county charter prohibits appointment, favoritism or discrimination on grounds of race, color, creed, sex, national origin or political affiliation.4 Section 71-F(c) assures appointments based upon ranking as established by competitive examination scores. It declares: “For the filling of one vacancy, the appointment shall be made from among the eligibles whose scores, at the time of certification, represent the three highest ranks on the list.”

Defendants have not directed us to any charter provision permitting alteration or disregard of these requirements. In Rule 7.10(g), the commission has assumed authority to order certification of minority eligibles ahead of non-minority candidates when necessary to implement a minority preference order. In effect, the commission's order directs the district attorney to hire candidates on an alternating ratio of two-to-one without regard to minority candidates' positions on the eligibility list.

The order injects racial, ethnic and gender qualifications into a hiring system whose charter commands disregard of race, ethnicity and gender. In directing hiring preference for minority persons, the commission's directives violate the charter prohibition against racial, ethnic and gender favoritism. In calling for the appointment of any person below the third place on an eligibility list, they violate the charter's mandate for appointment of competitively ranked candidates at the head of the eligibility list.

III

In the elimination or prevention of employment discrimination, state law is not the sole measure of government personnel agencies' authority. The 1972 amendment of section 701, Title VII of the Federal Civil Rights Act of 1964 extended that Act's anti-discrimination provisions to state and local governments. (42 U.S.C. s 2000e-2(a) and (b); Monell v. Dept. of Soc. Serv. of City of New York (2d Cir. 1976) 532 F.2d 259, 261; Lindsay v. City of Seattle (1976) 86 Wash.2d 698, 548 P.2d 320, 321.)

Section 703(a) of Title VII (42 U.S.C. s 2000e-2(a)) prohibits an employer from rejecting applicants for employment and from segregating or classifying employees or applicants in any way tending to deprive an individual of employment opportunity because of his race, color, religion, sex, or national origin. “Congress enacted Title VII of the Civil Rights Act of 1964 . . . to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin.” (Alexander v. Gardner-Denver Company (1974) 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147.)

The district attorney seeks to eliminate Title VII as the legal underpinning of the Civil Service Commission's directive, contending that the statute confers enforcement jurisdiction upon the federal courts but grants no authority to the commission to “suspend the civil service rules.” As this point he errs. In view of the supremacy clause (art. VI, cl. 2) of the Federal Constitution, directions and delegations of authority emanating from Title VII prevail over inhibitions in state law and county charter. (See Nash v. Florida Industrial Com. (1967) 389 U.S. 235, 239, 88 S.Ct. 362, 19 L.Ed.2d 438; Lindsay v. City of Seattle, supra, 548 P.2d at p. 327.) Title VII seeks cooperation and voluntary compliance as the preferred means of attaining its goal. (Alexander v. Gardner-Denver Company, supra, 415 U.S. at p. 44, 94 S.Ct. 1011.) Restrictions of local law cannot insulate the county's employment policies from national policy. Authority for voluntary action flows directly from Title VII to the county Civil Service Commission, as the charter-designated administrator of the county personnel system.

Only in a limited juridical sense is this lawsuit an adversary challenge by one county agency against another. In a more comprehensive sense, the commission's order to the district attorney represents a voluntary action by the county to achieve the objective of Title VII by correcting Caucasian male over-representation in one segment of the county government. “The objective of Congress in the enactment of Title VII . . . was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” (Griggs v. Duke Power Co. (1971) 401 U.S. 424, 429-430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158; see also, McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 800, 93 S.Ct. 1817, 36 L.Ed.2d 668.)

Indeed, the Civil Service Commission makes no effort to escape a mea culpa. Its order of September 25, 1975, distinctly declares that the under-representation of minorities in the District Attorney's office is caused in part by the discriminatory effect of the county's “traditional” civil service system. It declares that the oral examinations for the Attorney I class have never been “validated” in accordance with accepted standards.5 Under the charter the commission itself, not the district attorney, bears responsibility for these unvalidated examinations.

The district attorney does not challenge the commission's finding of only one minority person among the 65 lawyers on his staff. When hiring practices result in a substantial disproportion of minority employees, discriminatory purpose need not be proved; neutrality of intent is no defense. (Washington v. Davis, supra, 426 U.S. at pp. 246-247, 96 S.Ct. 2040; Griggs v. Duke Power Co., supra, 401 U.S. at p. 430, 91 S.Ct. 849.) The disproportion elicited the commission's directives. These directives represent Sacramento County's voluntary effort to attain the objective of Title VII. The central question is whether the commission's choice of a minority quota system of hiring is a permissible means of reaching that objective.

IV

The central question transports the appeal into the vexing and significant arena of affirmative action, “benign” quotas and minority preference plans. The inquiry is not constitutional; hence, it is unnecessary to verbalize constitutional policies or to consult the constitutional-social-moral predilections of the judges. We act as the faithful exponent of congressional policy. The only question is whether Congress intended to permit minority preference hiring as a means of integrating an employer's work force.

Section 703(a)(2) of Title VII (42 U.S.C. s 2000e-2(a)(2)) prohibits the classification of employees or applicants for employment in any way which would deprive any individual of an employment opportunity because of his race, color, religion, sex, or national origin. Section 703(j) declares that nothing in Title VII “shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of . . . race, color, religion, sex, or national origin . . . on account of any imbalance which may exist with respect to the . . . percentage of persons of any race, color, religion, sex, or national origin employed by any employer . . . in comparison with the . . . percentage of persons of such race, color, religion, sex, or national origin in any community . . . or in the available work force . . . .”

On their face, these statutes appear to prohibit the numerical hiring scheme embodied in the order of the Civil Service Commission. The scheme makes minority status a qualification for each third opening in the Attorney I class in the District Attorney's office. Contrary to the seeming letter of section 703(a)(2), it classifies individuals in a way depriving Caucasian males of eligibility for that third job. According to a fair reading of section 703(j), the prohibition in section 703(a)(2) is not to be sidestepped by reason of an existing imbalance. Section 703(j) draws no apparent distinction between imbalances caused by one circumstance or another. If section 703(a)(2) prohibits minority hiring preferences to remedy an imbalance caused by past discrimination, section 703(j) seems to express congressional intent to preserve that prohibition, intact and undiminished.

This view of the statute is strongly supported by a generalization voiced by the federal Supreme Court. In McDonald v. Santa Fe Trail Transp. Co. (1976) 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493, the court held that white employees were entitled to relief when the employer dismissed them for misbehavior but retained a similarly situated Black employee. Speaking for a unanimous court, Mr. Justice Marshall declared that Title VII is not limited to discrimination against members of any race; that it prohibits discriminatory preference for any racial group, minority or majority; that the EEOC, whose interpretation is entitled to great deference, has consistently interpreted Title VII to proscribe racial discrimination against whites on the same terms as racial discrimination against non-whites. (Id., at pp. 278-280, 96 S.Ct. 2574.) In the same case the court expressly withheld judgment on the permissibility of affirmative action programs which include racial preferences in employment “whether judicially required or otherwise prompted.” (Id. at p. 280, fn. 8, 96 S.Ct. at p. 2578.)

In an earlier decision, the high tribunal had described Title VII in language which hardly concealed its disapproval of that variety of affirmative action which calls for minority preference hiring. “In short (Title VII) does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.” (Griggs v. Duke Power Co., supra, 401 U.S. at pp. 430-431, 91 S.Ct. at p. 853.)

The court's vigorous declaration in McDonald sharply undercuts earlier decisions of federal courts of appeal. These decisions had limited section 703(j), holding that it prohibits minority quota hiring designed to attain racial balance but permits it when designed to correct imbalances caused by past discrimination. (E.g., Patterson v. American Tobacco Co. (4th Cir. 1976) 535 F.2d 257, 273-274; United States v. Wood, Wire & Metal Lath. Int. U., Loc. No. 46 (2d Cir. 1973) 471 F.2d 408; Rios v. Enterprise Ass'n Steamfitters Loc. 638 of U.A. (2d Cir. 1974) 501 F.2d 622, 630; Boston Chapter N.A.A.C.P., Inc. v. Beecher (1st Cir. 1974) 504 F.2d 1017, 1028; Contractors Ass'n of Eastern Pa. v. Secretary of Labor (3d Cir. 1971) 442 F.2d 159, 173; United States v. International Bro. of Elec. Wkrs., L. No. 38 (6th Cir. 1970) 428 F.2d 144, 149; see comment, 8 Pac.L.J. 49, 56-64 (1977).) Thus, these decisions approved quota hiring schemes, although with declared reluctance, permitting them only as “temporary” expedients to be employed in “extreme” cases. (See e.g., Western Addition Community Organization v. Alioto (9th Cir. 1975) 514 F.2d 542, 544.) Consistently with these federal decisions the Washington Supreme Court sustained a municipal affirmative action program, holding that Title VII permits a voluntary quota hiring system to eradicate the effects of past discrimination in a city department. (Lindsay v. City of Seattle, supra, 548 P.2d at p. 324.)

A few federal judges have criticized these decisions, charging them with disregard of congressional intent. (Patterson v. American Tobacco Co., supra, 535 F.2d at pp. 276-277 (conc. and dis. opn. of Widener, J.). Rios v. Enterprise Ass'n v. Steamfitters Loc. 638 of U.A., supra, 501 F.2d pp. 634-637 (dis. opn. of Hays, J.); Cramer v. Virginia Commonwealth University (D.C., E.D.Va.1976) 415 F.Supp. 673, 679-680.) Several state courts have nullified minority preference programs of state or municipal agencies, holding that these programs discriminate against whites, contrary to the mandate of Title VII. (Lige v. Town of Montclair (1976) 72 N.J. 5, 367 A.2d 833; Chmill v. City of Pittsburgh (Pa.Cmwlth.1977) 375 A.2d 841.)

The decisions sustaining racial hiring quotas are inconsistent with the federal Supreme Court's later declaration in McDonald and its earlier statement in Griggs. They rest upon a misreading of Title VII, violate congressional intent and should not be followed.6 By tolerating minority status as a qualification for employment, they clash with Title VII's objective of eliminating all racial, ethnic and gender qualifications.

At one point Title VII draws a distinction between deliberate and nondeliberate imbalance and between corrections available through EEOC enforcement suits and those available through other means. As we have observed, section 703(j) declares that Title VII does not command minority preference “on account of any imbalance.” A provision of comparable importance is section 706 (42 U.S.C. s 2000e-5) and particularly subdivision (g) of that section. Section 706 deals with employment discrimination charges before the EEOC and with lawsuits brought in the federal courts after EEOC hearings. According to subdivision (g) of section 706, a judicial finding of deliberate discrimination may result in an order to the employer to take such affirmative action as may be appropriate.7 At this point two observations are in order: First, the decisions upholding quota hiring pay inadequate heed to the fact that section 706(g) is confined to federal-court-controlled actions against intentionally discriminating employers. Second, the Sacramento County Civil Service Commission has found only unintentional discrimination; its order is aimed at conduct outside the restricted ambit of section 706(g). That provision supplies no foundation for the present quota hiring order.8

The Title VII decisions sustaining minority preference plans rest on the assumption that section 703(j) “was intended to bar preferential quota hiring as a means of changing a racial imbalance attributable to causes other than unlawful discriminatory conduct (and) does not prohibit the use of goals ‘to eradicate the effects of past discriminatory practices.’ ” (Rios v. Enterprise Ass'n Steamfitters Loc. 638 of U.A., supra, 501 F.2d at p. 630.) The assumption collides resoundingly with the legislative history of Title VII.

The bill which became the Civil Rights Act of 1964 originated in the House of Representatives as H.R. No. 7152. As reported to the House, it did not contain section 703(j) (see H.R. No. 914, 1964 U.S. Code Congress. Serv. & Admin. News, pp. 2391, 2401-2409.) The bill received heated opposition, its opponents expressing the fear that it would impose on unions and employers a federally administered racial quota system. (See generally, EEOC, Legislative History of Titles VII and XI, Civil Rights Act of 1964.) When the bill reached the Senate, Senators Clark and Case, its floor managers, filed a report declaring: “There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. (P) (The employer) would not be obliged or indeed, permitted to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier. . . .” (Interpretive Memorandum on Title VII of H.R. No. 7152, submitted jointly by Senators Clark and Case, floor managers, 110 Cong.Rec. 7213, April 8, 1964; EEOC Legislative History, supra, p. 3043.)

In response to the objections of opponents, Senator Clark filed a series of responses to these objections, among them the following:

“Objection: The bill would require employers to establish quotas for nonwhites in proportion to the percentage of nonwhites in the labor market area.

“Answer: Quotas are themselves discriminatory.” (EEOC, Legislative History, supra, p. 3015.)

A series of amendments, the so-called Dirksen-Mansfield substitute, was then framed by supporters of the bill. In order to allay fears of racial preference hiring, the present text of section 703(j) was added to the bill. One of its draftsmen, Senator Humphrey, explained its purpose: “A new subsection 703(j) is added to deal with the problem of racial balance among employees. The proponents of this bill have carefully stated on numerous occasions that title VII does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group. Since doubts have persisted, subsection (j) is added to state this point expressly.” (Remarks of Senator Humphrey, 110 Cong.Rec. 12723, June 4, 1964; EEOC Legislative History, supra, p. 3005.)

The Dirksen-Mansfield substitute was adopted by both Senate and House.

As we have observed, a straightforward reading of section 703(a) reveals a prohibition against racial, ethnic and gender qualifications in employment; a similar reading of section 703(j) conveys awareness that this prohibition is not to be shunted aside for the sake of an existing imbalance, however caused. The legislative history reveals complete harmony between congressional language and congressional intent. The assumption that Congress intended to permit employers to pursue minority preference hiring to correct an imbalance rests upon a misreading of the statute and a disregard of congressional intent.

V

What is required by Title VII is “the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” (Griggs v. Duke Power Co., supra, 401 U.S. at p. 431, 91 S.Ct. at p. 853.) The action of the Sacramento County Civil Service Commission oversteps that objective and establishes a barrier to the employment of majority applicants which violates that objective. It violates the competitive qualification and anti-discrimination provisions of the county charter as well. The order for a peremptory writ directing its abrogation was correct.

Judgment affirmed.

FOOTNOTES

1.  Rule 7.10 defines “minority personnel” to include Blacks, Indians, Mexican-Americans, Spanish-Americans, Orientals, other non-Whites and women.

2.  Safer v. Superior Court (1975) 15 Cal.3d 230, 240, 124 Cal.Rptr. 174, 540 P.2d 14, is not apropos. There the court barred a district attorney from intervening in a contempt proceeding stemming from private civil litigation, holding that neither “specific” statute nor inherent power permitted it. In demanding “specific” statutory authority, the court rejected the concept of a vague penumbra of powers to participate in a civil proceeding. A power may be “specific” though implied. Unlike the present case, Safer did not deal with an express grant of authority from which an implied, specific power might be drawn.

3.  The commission's findings recite also that some “appointable” candidates had declined offers of employment in the District Attorney's office, preferring to accept employment with the public defender.

4.  The prohibition is tempered by permission for “special programs for the employment of economically, socially, physically or mentally deprived persons.”

5.  In the parlance of equal opportunity legislation, a validated qualification test is one which demonstrably tends to test ability to perform the job. (See Washington v. Davis (1976) 426 U.S. 229, 247, fn. 13, 96 S.Ct. 2040, 48 L.Ed.2d 597.) Guidelines of the Equal Employment Opportunity Commission (EEOC) approved by the federal Supreme Court equate a validated test with one “predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” (Albermarle Paper Co. v. Moody (1975) 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280.)

6.  State courts are bound by the federal Supreme Court's interpretation of federal statutes, but decisions of lower federal courts are merely persuasive and will not bind the state courts where their reasoning appears erroneous. (Central Bank v. Superior Court (1973) 30 Cal.App.3d 962, 967, 106 Cal.Rptr. 912.)

7.  We quote section 706(g) at somewhat greater length: “If the (federal) court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate.”

8.  The distinction in section 706(g) between unintentional and intentional discrimination is not merely technical. Even on the assumption that section 706 authorizes minority preference hiring as one sort of affirmative action, it confines this sort of affirmative action to federal court decrees against deliberately discriminating, recalcitrant employers after fruitless EEOC proceedings.

FRIEDMAN, Associate Justice.

PUGLIA, P. J., and JANES, J., concur.