FLOYD v. COUNTY OF SACRAMENTO

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Court of Appeal, Third District, California.

William Terry FLOYD, Plaintiff and Appellant, v. COUNTY OF SACRAMENTO, et al., Defendants and Respondents.

Civ. 22562.

Decided: September 28, 1983

Richard J. Chiurazzi and David P. Mastagni, Sacramento, for plaintiff and appellant. L.B. Elam, County Counsel, Sacramento, and Anthony L. Wright, Deputy County Counsel, Auburn, for defendants and respondents.

Plaintiff, William Floyd, appeals the denial of his petition for writ of mandate which sought to set aside an order dismissing him as a probationary Deputy Sheriff in Sacramento County.   During his probationary status, Floyd committed a variety of acts allegedly constituting “insubordination, discourteous treatment of the public and other employees, willful disobedience and failure of good behavior outside ․ duty hours of such a nature that it caused discredit to [the sheriff's office].”  Inasmuch as Floyd did not deny the conduct charges, we need not restate the evidence but may directly confront the issues presented.   The essence of the appeal is whether the plaintiff received an adequate formal administrative appeal prior or subsequent to his termination, pursuant to the provisions of Government Code section 3304, subdivision (b), which provides “No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency without providing the public safety officer with an opportunity for administrative appeal.”

The parties agree that Floyd was a probationary employee on March 3, 1980, when the events resulting in his discharge occurred.   On March 21, he was advised of the intent to terminate his employment, and on March 31, 1980, Floyd and his attorney were afforded a “Skelly-type hearing” 1 before Chief Deputy Sheriff Henrikson.   On April 10, 1980, Floyd was advised of his termination as a probationary deputy sheriff, and on May 12, 1980, the Sacramento County Civil Service Commission denied Floyd's request for a hearing before that body.

 Sacramento County Charter, article XVI, section 71–G, provides that a probationary employee “․ may be rejected during the probationary period” without a right to hearing or appeal.   The charter also authorizes the adoption of civil service rules to implement the charter personnel provisions.   Among the civil services rules adopted, section 8.2 provides, “The probationary period shall be regarded as part of the testing process and shall be utilized for observing closely the employee's work, for securing the most effective adjustment of a new employee to his position, and for releasing any probationer whose performance does not meet the required standards of work.”

Section 8.3, which deals with release of a probationary employee, states, “During the probationary period, an employee may be released at any time.   Written notice of release stating the reason for release shall be furnished to the probationer by the department head or agency administrator, with a copy to the Civil Service Commission.  [¶] Persons released during the probationary period may appeal such release only upon grounds of discrimination based on race, color, religion, sex, national origin, or political belief.”  (Emphasis added.)

The grounds required for an appeal before the civil service commission by a probationary employee are not present in this instance and have not been intimated or asserted, and Government Code section 3304, subdivision (b), cannot create new grounds requiring such an appeal hearing.

 Parenthetically, we note that absent proof to the contrary, our review of an administrative determination requires us to presume that the judgment is supported by substantial evidence.  (Smith v. Regents of University of California (1976) 58 Cal.App.3d 397, 405, 130 Cal.Rptr. 118.)   A review of the record, and Floyd's concession admitting the accuracy of the charges made against him, indicates that under either the substantial evidence or the independent review standards, the judgment is amply supported.

However, such a review in this instance is superfluous inasmuch as Floyd's status as a probationary employee permitted his employment termination at the will of his employer.

 Floyd's challenge to the hearing before Chief Henrikson because of bias by the hearing officer is patently meritless.   At the hearing, Floyd appeared in person and was represented by counsel and failed to object either to the hearing or the person conducting the hearing.   He cannot now for the first time on appeal be permitted such a challenge.   In any event, the hearing conducted satisfied the requirement of an administrative appeal by Government Code section 3304, subdivision (b).   The act does not define “administrative appeal.”   In such circumstances, the appeal required must only comport with due process.

The due process to be accorded a probationary employee is satisfied by a Skelly-type hearing.   The hearing before Henrikson satisfied the due process requirements under the circumstances.  (See Skelly, supra, 15 Cal.3d at p. 215, 124 Cal.Rptr. 14, 539 P.2d 774;  Wilkerson v. City of Placentia (1981) 118 Cal.App.3d 435, 442, 173 Cal.Rptr. 294.)

The judgment is affirmed.

FOOTNOTES

1.   Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774.

EVANS, Associate Justice.

PUGLIA, P.J., and REGAN, J., concur.