CRESAP v. COUNTY OF SAN DIEGO

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

John F. CRESAP, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, et al., Defendants and Respondents.

Civ. 22636, Civ. 24125.

Decided: July 14, 1981

Clark, Burkhardt & Skiljan and Philip Burkhardt, Ranch Santa Fe, for plaintiff and appellant. Donald M. Clark, County Counsel, Lloyd M. Harmon, Jr., Chief Deputy County Counsel, and Arlene Prater, Deputy County Counsel, for defendants and respondents.

We are presented two cases consolidated on appeal dealing primarily with the same issue, namely, whether John Cresap's employment status is temporary or permanent. In superior court number 421289 (Cresap I), Cresap sought a judicial declaration that he had acquired civil service status for the position of permanent sheriff's bailiff and was entitled to pay and benefits as such. In superior court number 456209 (Cresap II), he sought a writ of mandate to compel the Civil Service Commission of San Diego County to set aside a termination order and reinstate him to his position allegedly as a permanent sheriff's bailiff. The first action went to judgment and the court denied him the declaratory relief requested. The second action was dismissed after the court sustained a general demurrer without leave to amend. Cresap appeals the judgment in the consolidated actions. By order of this court, Cresap has been retained as a bailiff performing court services pending determination of these appeals (see 4 Civ.No. 24045).

Cresap was hired on February 1, 1974, as a guard (employee classification No. 5748) and assigned duties as a nonpermanent guard until November 1974, when he was assigned to the bailiff division of the San Diego County Sheriff's department. Before 1969, this position had been terminally reclassified and it was county policy as the permanent employees left the sheriff's department, their positions were not filled. The job of court bailiff was being filled by a “deputy sheriff.”1 No examinations were given nor employment lists prepared for the position of “sheriff's bailiff” after the terminal reclassification. On May 21, 1976, Cresap was assigned duties as a sheriff's bailiff (employee classification No. 5770). Cresap was classified as a nonpermanent classified civil service employee, and he was told he was appointed and maintained as a nonpermanent employee. Cresap never took any civil service examination for sheriff's bailiff, nor did he otherwise qualify for permanent employment as a sheriff's bailiff from having taken a competitive examination, being placed and ranked on an eligible list, and receiving certification from the Civil Service Commission.

Cresap was never told his job was permanent. He was paid 7 1/212 percent more than the base pay given permanent employees because of the temporary nature of the employment and he received automatic step raises which provisional employees do not receive. He was always advised the job was temporary and the source of funds and method of payment by the county confirms it always treated him as such. As a nonpermanent employee, Cresap points out he is denied retirement benefits, vacation pay, sick leave pay, paid health insurance or cash pay for overtime hours. Additionally, he is not eligible for the certificate as a peace officer by the California Commission on Peace Officer Standards and Training.

Cresap's status was reviewed from time to time, at least every six months, and his temporary employment renewed.

In December 1976, Cresap took the written examination for the position of “deputy sheriff.” From having passed four of the nine components of the selection process for deputy sheriff (written exam, writing skills exam, physical agility and oral interview), Cresap and a large number of other candidates were certified as being eligible for appointment to that position. Two hundred forty persons had the same score as Cresap, thus making determinative the remaining components of the selection process described by the sheriff's personnel administrative assistant as background, policy, medical, oral interview and best qualified in the judgment of the assistant and and a personnel officer assigned to the Personnel Division of the Sheriff's Department. Cresap was not given that job presumably because others were better qualified for the approximately 50 job openings. The list of qualified personnel compiled from that list of applicants passing the examination has since expired and he has not taken any competitive test since then.2 By February 24, 1978, a list was prepared of persons eligible for hire as Limited Duty Deputy Sheriff, but Cresap had not taken the test and was not eligible for such a position.

In Cresap I, the trial court relying on Ticknor v. City of Sacramento, 80 Cal.App.2d 284, 181 P.2d 893, held Cresap was not a permanent employee and on February 5, 1980, denied the declaratory relief sought by Cresap. In that connection, detailed findings of fact and conclusions of law were prepared. On June 28, 1980, Cresap was informed his nonpermanent position would expire on July 30, 1980. It was made clear he was being terminated not for disciplinary reasons but because there were no longer personnel vacancies within the court services division of the sheriff's department to necessitate the use of temporary extra help and, therefore, his assignment was expiring. The Civil Service Commission reviewed his request for an investigation and ruled, without a hearing, the nonpermanent appointment was properly terminated. Several facts, including the graduation of two large classes at the deputy sheriff's academy have provided the department ample permanent deputy sheriffs to fill all the needs of the sheriff and the county.

On July 30, 1980, Cresap petitioned for the writ of mandate (Cresap II) and the trial court, after hearing the evidence, ruled the decision in Cresap I established Cresap's status as a temporary employee and sustained a general demurrer, thus allowing the termination of employment without further procedures taking place.

In sustaining the demurrer to the petition in Cresap II, the trial judge stated the court was taking judicial notice of the adverse determination in Cresap I, which was binding on the court and determinative of Cresap's rights. Since notice of appeal in Cresap I had been filed, the judgment was not final and does not have the effect of res judicata on any of the issues (see 4 Witkin, Cal.Procedure, Judgment, § 163, p. 3307, and cases cited).

Cresap's procedural protections prior to a discharge, the focus of his petition in Cresap II, were not litigated in Cresap I. Only his status was litigated in Cresap I, and the fact it was determined he was a temporary employee did not necessarily determine his procedural rights under the county Civil Service Commission rules and charter as applicable to the facts of his case.

As we shall see, in the ordinary case of a person hired by the county as a temporary employee including one such as Cresap whose appointment is renewed on successive six month intervals, the employment may be terminated without cause or the interposition of notice and hearing. Due to the presence of special facts in Cresap's case, however, he may not be removed without cause, notice and an opportunity for a hearing before the county Civil Service Commission.

Generally, the Charter of the County of San Diego (§§ 900, 907(c), 908, 908.1, 908.2, 909, 911 and 913)3 and the Rules of the County of San Diego Civil Service Commission (rule 4) provide that permanent classified civil service status shall be acquired only by appointment to a permanent position pursuant to a procedure which shall include a competitive examination, placement and ranking on an eligible list, and certification of top ranking candidates for appointment by the Civil Service Commission. The dominant theme of these provisions is employment based on merit,4 and there is repeated reference to examination5 and its consequence of formation of an eligible list with attendant filling of positions in the classified service from that list.6

While the provisions of the charter impliedly authorize employment of temporary help where no person on the eligible list is immediately available or where there is no eligible list (§ 907(d)),7 there is no authority to bypass the explicit requirements of employing permanent help only from the examination and certification list for permanent employment. County employment based on a competitive qualifying examination procedure is the obvious fundamental purpose of these charter provisions, and the charter must be construed from the standpoint of this purpose.

Under the directive of charter section 907(d), the County Civil Service Commission adopted rule 4.7(d) relating to temporary employment and providing:

“(d) Temporary Appointment: A temporary appointment from the appropriate eligible list may be made to a position which is temporary or seasonal in character. It may also be made to permanent positions which should be filled on only a temporary basis if there are reasons considered satisfactory by the Director of Personnel or the Civil Service Commission. Such appointment may be renewed, with the consent of the Director of Personnel, but in no event shall such temporary appointment be construed as permanent unless and until the Board of Supervisors shall designate the position filled by such appointment as permanent in the annual salary ordinance. The acceptance or refusal to accept temporary appointment shall not be a bar to a permanent appointment.”

County practice under rule 4.7(d), at least in Cresap's case, was to review the temporary employee's status once every six months at a minimum before renewing the temporary employment. It is noteworthy rule 4.7(d) provides only for temporary appointment “from the appropriate eligible list” and Cresap was appointed from no eligible list of any type. For authority to act in no eligible list cases, the county may have relied on the charter section 907(d) provision requiring rules for the classified service to provide for temporary appointments where there is no eligible list from which a position can be filled. Any such reliance, of course, is misplaced because that charter provision is not self-executing, but rather, requires the Civil Service Commission to make rules for temporary appointments when no eligible lists exist for filling a position. The Civil Service Commission rules do not cover the “no eligible list” temporary appointment situation. It is thus apparent the record does not disclose what authority, except perhaps that which is implied in charter section 907(d), the county had to hire Cresap who never took the examination for sheriff's bailiff as none was given after 1969. The only test he ever took was for deputy sheriff, a position he was never given and, in fact, does not now seek. There is substantial evidence the county always considered this a temporary position to provide extra help for a limited time. In addition, the evidence amply supports the conclusion Cresap himself understood the job was temporary. All we can say with certainty is the job position Cresap held was within the general definition of “Classified Service” in the charter (§ 906.2),8 but in light of the understanding he and the county shared as to the temporary nature of his appointment, we can conclude his service originally and as renewed was indeed a temporary appointment.

Cresap contends that since he was employed for more than six months, the probationary term, his employment became permanent. In McGillicuddy v. Civil Service Commission, 133 Cal.App. 782, 24 P.2d 942, the court reached such a result with respect to employees hired as temporary but engaged for longer than the probationary period in positions which were not temporary, either in fact or by the law of their creation. That case involved a fact situation which is different in one marked respect from Cresap's—the employee was hired from the approved list of individuals who had passed the civil service examination and he was otherwise qualified for permanent status. Looking at the language of the county charter there under consideration, the court held the Civil Service Commission was without power to designate as temporary employees those workers appointed from the eligible list to positions which were neither temporary in fact or by the law of their creation.

The case of Ticknor v. City of Sacramento, 80 Cal.App.2d 284, 181 P.2d 893, on the other hand, is more clearly in point and underlines the distinction. In Ticknor, as in the instant case, the employee was not selected from the list of persons qualifying for regular employment after taking the civil service examination. The court quoted at length from Campbell v. Board of Civil Service Comrs., 76 Cal.App.2d 399, 173 P.2d 58, including the following passage (80 Cal.App.2d, at page 289, 181 P.2d 893):

“‘The methods prescribed by charter for the making of appointments in the civil service are mandatory and controlling. [Citations.] No power reposed in the city council, the board of civil service commissioners or the police department to adopt methods of appointment different from those prescribed by the charter, nor could the essentials of the charter requirements have been dispensed with by ordinance. But there was no attempt to dispense with them. It was the inability to fill positions through the regular civil service channels which brought about the scheme of war emergency appointments. Plaintiff accepted such an appointment well understanding that it was temporary, only, and that his continued service would not result in his appointment becoming permanent․ [W]hile the charter provides for the making of temporary appointments to positions within the classified civil service, such appointments are in reality only temporary expedients preliminary to the positions being filled through the established procedure. The appointments do not make the appointees qualified civil service employees or members of the civil service system, which can be entered only through successful competitive examination, certification and appointment.”’

We are satisfied Cresap cannot acquire permanent status merely by the length of service (see also Spaulding v. Philbrick, 42 Cal.App.2d 58, 108 P.2d 59; Shubert v. Dept. of Motor Vehicles, 16 Cal.App.2d 353, 60 P.2d 538). Since he did not successfully participate in the competitive examination, certification and appointment process, Cresap cannot be considered a permanent employee and must be viewed as holding a temporary appointment.

In view of the foregoing, we conclude the judgment in Cresap I declaring his appointment temporary is correct and must be affirmed.

On the question of procedure attending termination of classified employees, we must consider both the rules of procedure generally applicable and the influence of the facts in Cresap's case upon the application of those rules. Generally, a permanent employee who has completed the required probationary service, and who is removed, suspended, or reduced in rank or compensation, may, within five calendar days after notice, appeal to the Civil Service Commission and the employee is entitled to a hearing (Civil Service Commission, rule VII, § 7.4). No such protections are provided the temporary employee in the ordinary case. The courts have consistently held the temporary employee has no vested right to county employment and, therefore, may be discharged summarily (Globe v. County of Los Angeles, 163 Cal.App.2d 595, 603, 329 P.2d 971; Bell v. Duffy, 111 Cal.App.3d 643, 650, 168 Cal.Rptr. 753). In Bell v. Duffy, supra, Justice Staniforth writing for this court and referring to the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.), points out “the Act does not expressly or by implication eliminate the long standing distinctions between temporary and permanent employees' rights on termination.” The termination of a temporary employee does not suggest any misconduct or impose on him a stigma or other disability that forecloses his freedom to take advantage of other employment opportunities and, therefore, involves no denial of due process in not furnishing a hearing. The temporary employee, or one serving at the pleasure of the appointing authority, is subject to removal without judicially cognizable good cause and the courts will not interfere when, as here, there is no allegation or showing the employment was unjustifiably conditioned on the waiver of a constitutional right (Bogacki v. Board of Supervisors, 5 Cal.3d 771, 783, 97 Cal.Rptr. 657, 489 P.2d 537).

Those are the rules in the ordinary case of temporary employment. Cresap's six years of experience with the county cannot be said to be ordinary. Without apparent reason, the Civil Service Commission accorded him a hearing, as a temporary employee, in 1978 on the demotion matter, yet denied him a hearing in 1980 on this termination matter because he was a temporary employee. The basis for such inconsistent treatment remains a mystery from the standpoint of the record.9

Further inconsistency by the Civil Service Commission in affording procedural protection is revealed in other cases factually indistinguishable from Cresap's situation. In a 1976 termination matter, the Civil Service Commission denied a hearing to a temporary employee, May, who had been on the job 14 1/212 months, i.e., for a period longer than the probationary period. The superior court held May, a temporary employee, had a right to the procedures described in the charter relative to notice and hearing in the event of dismissal, though not the rights given solely to permanent employees, and its order was without prejudice to the appointing authority instituting proceedings in accord with the charter to terminate the employee for cause upon proper notice and hearing if requested (see fn. 2, ante). As a result of the superior court decision in the May case, the Civil Service Commission directed its staff to determine what rule and procedural changes were required to have other temporary employees be in compliance with the decision.10

Then in 1980, before Cresap's termination, the sheriff's department attempted to terminate William B. Whiteley, a temporary employee, whose case in terms of duration and job status is virtually identical to Cresap's case. On March 19, 1980, the Civil Service Commission afforded Whiteley the opportunity to receive written charges and a public hearing if requested regarding Whiteley's termination, ordering:

“1. That the Sheriff's Department be and it is hereby extended the opportunity to file written charges supporting the termination of Mr. Whiteley and file them with this Commission on or before March 30, 1980. Such charges and any further proceedings in this matter shall comply with Rule VII of the Rules of the Civil Service Commission.

2. Absent such charges being filed by the Sheriff's Department, that Mr. Whiteley be reinstated to his position as Guard with appropriate back pay from date of termination through date of reinstatement.”

Within three months of its order in the Whiteley case, the Civil Service Commission denied Cresap a hearing on his termination. The law cannot countenance such inconsistency in administration of county employment. In Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, it is said at page 178, 164 Cal.Rptr. 839, 610 P.2d 1330:

“[R]ecent decisions demonstrate a continuing judicial recognition of the fact, enunciated by this court more than 35 years ago, that ‘[t]he days when a servant was practically the slave of his master have long since passed.’ [[[[Citation.] In the last half century the rights of employees have not only been proclaimed by a mass of legislation touching upon almost every aspect of the employer-employee relationship, but the courts have likewise evolved certain additional protections at common law. The courts have been sensitive to the need to protect the individual employee from discriminatory exclusion from the opportunity of employment whether it be by the all-powerful union or employer. [[Citations.] This development at common law shows that the employer is not so absolute a sovereign of the job that there are not limits to his prerogative․”

The rule of the Tameny decision, granting a cause of action for wrongful discharge, was applied to an employee of a private firm whose job, like Cresap's, was terminable at the will of his employer. A similar result in a private at-will employment case was reached in Cleary v. American Airlines, Inc., 111 Cal.App.3d 443, 168 Cal.Rptr. 722, which held: “[T]he longevity of the employee's service [there, 18 years of apparently satisfactory performance], together with the expressed policy of the employer [to use specific procedures for adjudicating employer disputes], operate as a form of estoppel, precluding any discharge of such an employee by the employer without good cause.” (Id., at p. 456, 168 Cal.Rptr. 722; see also p. 455, 168 Cal.Rptr. 722.)11

One of the common law developments in the areas of job expulsion and job exclusion has been the requirement a “fair procedure” consisting of charges, notice and opportunity for a hearing must be applied to the expulsion or exclusion (see, e. g, Pinsker v. Pacific Coast Society of Orthodontists, 12 Cal.3d 541, 552-556, 116 Cal.Rptr. 245, 526 P.2d 253; see also Ascherman v. Saint Francis Memorial Hosp., 45 Cal.App.3d 507, 511-512, 119 Cal.Rptr. 507). Although the Pinsker and Ascherman cases dealt with membership decisions of hospital staff associations and the right of a professional to fully practice his profession, considerations of equal protection lead us to conclude the important fairness principle applies to all but short term cases of temporary public employment. Certainly Cresap's six-plus years of such employment entitles him to receipt of a fair procedure consisting of charges, notice and an opportunity to be heard, the same as the county afforded to Whiteley.12 Cresap II thus must be reversed.

In line with rule 4.7(d), the Board of Supervisors must at least annually review temporary appointments as a part of the adoption of the annual salary ordinance. A fair construction of the charter and the purposes it seeks to achieve, essential to the integrity of the county's merit system, calls for action by the Board on such temporary appointments. To avoid the erosive effect on the system of long-term temporary appointments such as Cresap's, the Board is required to consider and approve or disapprove each temporary appointment lasting or to last more than one year. It should either make the position permanent, to be filled in accordance with the merit system procedures, or take steps to terminate the temporary service at the earliest appropriate date. Failure to take action in this manner will result in the application of procedural protections for temporary employees who have completed one year of service. The protection must be afforded in fairness to the employee who is given reason to believe his employment will be ongoing. The practice also encourages adherence to the objectives of the merit system calling for employment of long-term personnel in the prescribed manner from approved lists.

Each county department, including the Civil Service Commission, is duty bound to provide the Board of Supervisors the information required to make a review of such temporary employment in order to fulfill the meritorious purposes of the merit system as contemplated by the charter. We might suggest failure of the persons responsible to implement such a review program on an ongoing basis could result in imposition of appropriate sanctions for unauthorized employment of temporary appointees (see charter, §§ 907.1, 1002).13

Finally, contrary to Cresap's contention, the record does not support the conclusion the county has acted arbitrarily or capriciously so as to permit an award of attorney fees (see Gov. Code, § 800). Mere inconsistency which is shown by the record does not amount to arbitrariness or capriciousness, particularly in circumstances such as this where there were superior court decisions (May v. Civil Service Commission and Cresap I) and a charter change (effective Aug. 21, 1978) which well may have influenced the county's approach. We indulge in the generally applicable presumption that official duty was regularly performed (Evid. Code, § 664), concluding the showing of inconsistency does not overcome the presumption. Nor does the record show this litigation will benefit a large class so as to form another basis for attorney fees (see Code Civ. Proc., § 1021.5). The request for attorney fees is denied.

The judgment in Cresap I is affirmed. The judgment in Cresap II is reversed with directions to order the Civil Service Commission to furnish Cresap fair procedure on any termination of his employment, including a showing of cause for termination upon proper notice, and after hearing if requested. Cresap shall recover any unpaid salary to which he may be entitled from the date of termination to his reinstatement (see Fugitt v. City of Placentia, 70 Cal.App.3d 868, 876, 139 Cal.Rptr. 123; Ahlstedt v. Board of Education, 79 Cal.App.2d 845, 857, 180 P.2d 949).

CERTIFIED FOR PUBLICATION.

FOOTNOTES

1.  Had Cresap been hired at that time as a deputy sheriff, it would have been a permanent appointment subject to a probationary period. He was not eligible, however, for such an opening as he had not taken the civil service examination nor had he met the other conditions for such a position.

2.  In July 1977, Cresap was offered a permanent position of Limited Duty Deputy Sheriff, but he declined. As a result, he was demoted to the position of guard in February 1978. The demotion was set aside by the Civil Service Commission relying on May v. Civil Service Commission, a San Diego Superior Court case (No. 376993) and he was reinstated as temporary sheriff's bailiff.

3.  We refer to the section numbers of the so-called “plain-talk” charter adopted effective August 21, 1978, except where it is pertinent to discuss charter provisions as they read before that date.

4.  “The County shall hire … individuals on the basis of job-related qualification, merit ․” (§ 900.)“The Civil Service Commission shall provide for a merit system in all departments for all persons in the Classified Service.” (§ 908.)

5.  See sections 907(c), 909, 909.1, 909.2, 911 and 912 re preparation and use of competitive, qualifying examinations.

6.  “Section 911: Eligibility. Candidates for Classified Service positions are ranked on eligible lists in order of their eligible list grades: that is, according to their combined examination scores, rated on a maximum scale of one hundred, and preferential credits to which Sections 912, 912.1 and 912.2 may entitle them.”“Section 911.1: Eligible lists remain in force for one year, but they may be extended by the Civil Service Commission for up to two additional years.”“Section 913: Hiring Process for the Classified Service. When a position in the Classified Service is to be filled, the head of the department under which it falls notifies the Civil Service Commission. The Commission certifies the names and addresses of the top three candidates on the eligible list for the class or grade to which the position belongs. It also certifies the names of those whose eligible list grades are within two percentage points of the third highest candidate's although it may, at its discretion, specify a lesser percentage in a particular case. The appointing authority may select one of the candidates certified for the position.”(See also Civil Service Commission rule IV re appointments from “the eligible list” and connected procedure.)

7.  Charter section 907(d) read:“Section 907: Classified Service Rules. Rules for the Classified Service shall provide for:“…“(d) temporary and emergency appointments when persons on the eligible list are not immediately available or when there is no eligible list from which a position can be filled.”Former charter section 79(c), in effect when Cresap was hired and until August 21, 1978, was essentially identical.

8.  The charter declares the civil service is divided into the unclassified and the classified service (§ 906). It then specifically lists officer and employee positions which are in the unclassified service (§ 906.1). All other officers and employees not so listed are declared to be in the classified service (§ 906.2).Since Cresap's position is not among those listed as within the unclassified service, it is within the broad definitional category of classified service under section 906.2.

9.  A possible explanation not brought out in the record could be Civil Service Commission interpretation of differing language in former charter section 86 which, in 1978, accorded to “[a]ny person removed, suspended or reduced in rank or compensation” (emphasis added) a right to appeal to the Civil Service Commission. By comparison, the parallel language in the new charter, “[t]he person may appeal” (§ 916.1; emphasis added), clearly has as its referent “a Classified person,” the subject of the immediately preceding sentence. It is arguable whether Cresap is a classified person within the meaning of this charter provision.

10.  Cresap's demotion hearing and resultant reinstatement to the sheriff's bailiff position occurred after the superior court decision.

11.  By citing Cleary and Tameny, we by no means imply the wrongful discharge cause of action is applicable to Cresap. That issue is not before us. We cite these cases solely to demonstrate factors and policies considered by the courts in connection with at-will employment termination cases.

12.  We construe “good cause” in the context of terminating a temporary employee to be different from that described in the charter relating to disciplinary action. Rather, it is a fair and honest cause or reason, regulated by good faith on the part of the exercising power (see Pugh v. See's Candies, Inc., 116 Cal.App.3d 311, 330, 171 Cal.Rptr. 917).

13.  “Section 907.1: Rules for the Classified Service have the effect and force of law.”“Section 1002: Violation of Charter. Unless otherwise specified in this Charter, a violation of a provision of this Charter constitutes misconduct in office.”

COLOGNE, Acting Presiding Justice.

WORK and LANGFORD,* JJ., concur.