TIETGEN v. CITY OF POMONA

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Court of Appeal, Second District, Division 4, California.

Larry TIETGEN, Petitioner and Respondent, v. CITY OF POMONA, et al., Respondents and Appellants.

B015761.

Decided: January 16, 1986

Patrick J. Sampson, City Atty., and William E. Dennis, Deputy City Atty., for respondents and appellants. Lemaire & Faunce and Mark Ellis Singer, Los Angeles, for petitioner and respondent.

The City of Pomona, Ora E. Lampman, the City Administrator, and John M. Fowlkes, the Fire Chief (appellants) appeal a judgment rendered pursuant to the petition of Larry Tietgen (respondent) for a writ of mandate, commanding appellants to set aside their dismissal of respondent and to reinstate him to the position of Firefighter Trainee with back pay.

Appellants contend that:  (1) the trial court erred in interpreting Penal Code section 1203.4 so as to conclude that respondent was not a public officer within the meaning of the statute;  (2) respondent secured his employment by fraud;  (3) respondent was terminated for lying at a departmental investigation as a separate ground for discipline, and (4) as a probationary employee, respondent could be terminated without a hearing or grounds.

Finding no error, we affirm.

On November 26, 1984, respondent, then age 20, was hired by the City of Pomona as a Firefighter Trainee.   His employment was terminated on January 8, 1985, after he had exhausted his rights to a “Skelly” hearing 1 before the City Administrator.   The stated grounds for his termination were:  (1) misconduct in refusing to cooperate with an internal investigation;  (2) fraud in securing employment by failing to disclose on his job application that he had pled nolo contendere to petty theft in violation of section 484 of the Penal Code, and (3) conduct prejudicial to the good reputation, order or discipline of the Fire Department.

Respondent was charged with petty theft (Pen.Code, § 484) in 1982 when he was 18 years old.   He was convicted of that misdemeanor offense on July 27, 1982, and on August 22, 1983, the complaint against him was dismissed pursuant to section 1203.4 of the Penal Code.   On September 25, 1984, when he applied for the position of Firefighter Trainee, he answered “N/A” to question number 35 of his “Personal History Statement” which asked:

“If you have ever been arrested or convicted for any crime (excluding traffic citations), please give the following information:  (The fact that your record may have been affected by a sealing, an expungement, a release, or a pardon has specific legal implications as to how you should answer this question.   Please see the INSTRUCTION page for a detailed guide.)”

The “Instructions to Applicant” stated, in part:

“However you must list the arrest and/or conviction if you have received a release (per Section 1203.4 ․ of the Penal Code․)”

Respondent was informed by his mother that his attorney advised her that he did not have to disclose the information regarding the earlier criminal matter.   However, his attorney stated:  “I advised [Mrs. Tietgen] that he was not obligated to disclose said conviction on the application for employment.   So long as the application did not require disclosure under 1203.4.”   At the time appellant was filling out the application, he spoke to a City employee who looked at the Instruction page and told him that if the record had been expunged, he did not have to put down information concerning his record.   When he answered question number 35, it was his understanding that his record had been expunged.   He later made an unsuccessful attempt to show a copy of the expungement order to a Fire Marshal.

On December 3, 1984, respondent was interviewed twice by a Fire Department investigator.   In the first interview, he stated that he was with two friends at Bullocks in Los Angeles when he was arrested for shoplifting because of “guilt by Assoc.”   In the second interview held less than two hours later, he admitted when confronted with a City of Los Angeles police report of the incident, that he had taken two IZOD shirts.   He indicated he was at first reluctant to admit how it happened “because I want this job more than anything․”

On April 1, 1985, respondent filed a Petition for Writ of Mandate against appellants for reinstatement to his position of Firefighter Trainee.   Appellants answered the Petition and the matter was set for trial on the Clerk's Transcript in the Los Angeles Superior Court on May 30, 1985.   On that date, the Petition was granted and a writ issued commanding appellants to reinstate respondent with back pay.   Accordingly, judgment was entered on July 30, 1985, and appellants filed their notice of appeal on July 31, 1985.

I

 Appellants contend that the trial court misconstrued Penal Code section 1203.4 in concluding that the position of Firefighter Trainee does not come within the definition of “public office” as that term is used in the statute.   We disagree with such a contention.

Penal Code section 1203.4, subdivision (a), provides, in part, that a change of plea and the dismissal of charges against a defendant after the termination of probation releases him from all penalties and disabilities resulting from the offense of which he was convicted, but it “does not relieve [the probationer] of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office․”

The trial court interpreted the term “public office” to apply to positions held by policy making officers, exercising discretion and having a fixed term of office.   The court's decision that this does not include a Firefighter Trainee was based on well-established rules of statutory construction.

In People v. Smith (1955) 44 Cal.2d 77, 79, 279 P.2d 33, the Supreme Court held:

“ ‘When language which is reasonably susceptible of two constructions is used in a penal law, ordinarily that construction which is more favorable to the offender will be adopted.’  [Citations.]  The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.  [Citations.]”

Appellants argue that these rules of construction have no application to the instant case because Penal Code section 1203.4 is not a penal statute.   As authority for that position they cite Levy v. Superior Court (1895) 105 Cal. 600, 607, 38 P. 541.   This case stands for the proposition that:

“A penal statute is one that imposes a penalty or creates a forfeiture as the punishment for the neglect of some duty or the commission of some wrong that concerns the good of the public, and is commanded or prohibited by law.”

We reject appellants' argument.   The statute in question is a section of the Penal Code dealing with the rights of defendants who have been convicted of violating a penal law and who have fulfilled the conditions of their probation, to be released from all penalties and disabilities resulting from the conviction.

We also reject appellants' attempt to distinguish between penal statutes imposing a penalty or creating a forfeiture and Penal Code remedial statutes allowing a convicted defendant some relief from the consequences of his conviction.

In construing Penal Code section 1203.4, the trial court relied to a limited extent on the policy declaration contained in Labor Code section 432.7, which provides that no employer whether a public agency or private individual or corporation shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention which did not result in conviction.   This section exempts certain classes of employees, including persons seeking employment as peace officers, but provides no such exemption for firefighters or firefighter trainees.

It might be argued, as respondent asserts, that since the law has deemed that any guilty plea by respondent has been withdrawn and any conviction resulting from such plea has been dismissed, respondent comes within the terms of this Labor Code provision.   However, its central value to our analysis of this case is that it buttresses the trial court's conclusion that the term “public office” should be construed more narrowly than if it had applied to the entire spectrum of public employment, as urged by appellants.

Conceivably, the term “public office” could include all public employment, but in Coulter v. Pool (1921) 187 Cal. 181, 186–187, 201 P. 120, the Supreme Court adopted a much narrower definition.   The court remarked that:

“A public office is ordinarily and generally defined to be the right, authority, and duty, created and conferred by law, the tenure of which is not transient, occasional, or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public.  [Citation.]․  The most general characteristic of a public officer, which distinguishes him from a mere employee, is that a public duty is delegated and entrusted to him, as agent, the performance of which is an exercise of a part of the governmental functions of the particular unit for which he, as agent, is acting.”

The definition of “public office” is further refined by the court in City Council v. McKinley (1978) 80 Cal.App.3d 204, 210, 145 Cal.Rptr. 461, which states:

“It is apparent now there are two requirements for a public office;  first, a tenure of office which is not transient, occasional, or incidental but of such nature that the office itself is an entity in which incumbents succeed one another and which does not cease to exist with the termination of incumbency and, second, the delegation to the officer of some portion of the sovereign functions of government either legislative, executive, or judicial [citation].”

Although a deputy city clerk was held to be a “de facto” public officer in an embezzlement case (People v. Lester (1937) 21 Cal.App.2d 450, 453, 69 P.2d 467), cited by appellants as a reasonable interpretation, we agree with respondent that the position of firefighter trainee meets neither of the requirements specified in McKinley, supra, for public office.   It is neither an entity in which incumbents succeed each other, nor does it have delegated to it any portion of the sovereign function of government.

We do not accept appellants' claim that the term “public office” should be read “in its common acceptation ․ to include all persons in any public station or employment conferred by government.”  (Vaughn v. English (1857) 8 Cal. 39, 41.)   To do so would be to obliterate the recognized distinction between an “officer” and an “employee.”   Indeed, appellants' own City Charter and Code are replete with such distinctions.2  Yet none of the provisions in any of these documents designates the position of firefighter or firefighter trainee as an officer.

In accordance with such distinctions, it was held in Neigel v. Superior Court (1977) 72 Cal.App.3d 373, 378, 140 Cal.Rptr. 113, that a policeman was not a “person holding a salaried office” of the city within the meaning of a certain charter provision.   The court reasoned that:

“Policemen ․ are employed pursuant to open competitive civil service examinations and are referred to in the charter as classified employees.   They do not serve either for a definite ‘term’ or at the pleasure of the appointing authority;  their duties are not prescribed by the charter;  nor are they clothed with policy-making authority.”

Similarly, in Mason v. City of Los Angeles (1933) 130 Cal.App. 224, 227–228, 20 P.2d 84, the court reviewed Los Angeles City Charter provisions specifying the “officers” of the city and delineating between officers and employees, and as in the present case it found no ordinance making a fireman an officer of the city.   The court commented that:

“[I]n the face of a charter provision expressly designating the officers of that city we can only draw the conclusion that all not so designated are not officers of the city and therefore are not public officers.”

The fact that Penal Code section 830.31, subdivision (a), designates members of the fire department as peace officers if their primary duty when acting as such is “the enforcement of laws relating to fire prevention and fire suppression,” does not in and of itself confer on such a class of employees, as appellants suggest it should, the privileged status of public officers, where the charter and local agency ordinances have failed to so provide.

Appellants cite Humbert v. Castro Valley County Fire Protection Dist. (1963) 214 Cal.App.2d 1, 29 Cal.Rptr. 158;  Drake v. Quinn (1941) 48 Cal.App.2d 259, 119 P.2d 796;  and Jackson v. Wilde (1921) 52 Cal.App. 259, 198 P. 822, for the proposition that firefighters are public officers.   Each of those cases, however, is factually distinguishable from the case at bench and was decided in a different context.3  The weight of authority supports the conclusion that the term “public office” as used in Penal Code section 1203.4 does not include respondent's postion of Firefighter Trainee.   Therefore, that provision must not be interpreted so as to require respondent to disclose his earlier misdemeanor conviction to appellants.

II

Appellants contend that respondent secured his employment by fraud, in that he knowingly answered untruthfully the application inquiry regarding his conviction.   We also reject this contention.

Since we have already determined that respondent had no legal duty to disclose the conviction because his position did not bring him within the class of persons required to make such a disclosure pursuant to Penal Code section 1203.4, his answer that the application inquiry was not applicable to him, however motivated, could not possibly constitute a misrepresentation of the facts.

 Even if we assumed, as we do not, that Penal Code section 1203.4 did not relieve respondent of the obligation to disclose the conviction, his failure to do so would still not amount to fraud or misrepresentation.

Fraud is variously defined as the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;  or the assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;  or the suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact;  or a promise, made without any intention of performing it.  (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 445, p. 2710.)

Here, respondent believed that he did not have a duty to reveal his record because he understood that it had been expunged.   The advice he received from his attorney through his mother that he was not obligated to disclose the conviction on his employment application, gave him reason to believe that he need not do so.   Under these circumstances, he did not have the requisite knowledge or intention to be charged with fraud.

III

Appellants contend that as a separate ground for discipline, respondent was rightfully terminated for lying at the internal investigation.   We disagree.

If respondent was not required to disclose the conviction, as discussed above, then appellants' investigation of the incident was improper and the cases cited by appellants in support of this contention are inapposite.

IV

 Appellants contend that respondent, as a probationary employee, could be terminated without a hearing or grounds.   We do not accept this unqualified proposition.

It is well settled that due process requires that even a probationary employee be given notice and a hearing before his termination becomes effective where his dismissal would deprive him of a “liberty interest,” based on charges of misconduct such as fraud or dishonesty which might stigmatize his reputation or seriously impair his opportunity to earn a living.  (Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 346, 159 Cal.Rptr. 440;  Board of Regents v. Roth (1972) 408 U.S. 564, 570, fn. 7, 92 S.Ct. 2701, 2705, fn. 7, 33 L.Ed.2d 548.)

Appellants' sole reliance on Johnston v. Trustees of Cal. State University & Colleges (1984) 151 Cal.App.3d 1003, 199 Cal.Rptr. 175, and Grant v. Adams (1977) 69 Cal.App.3d 127, 137 Cal.Rptr. 834, is therefore misplaced.   In Johnston, the court asserted that even if a probationary employee's rejection were arbitrary, he may be dismissed “without judicially cognizable good cause without offending the constitution.”  (Johnston v. Trustees of Cal. State University & Colleges, supra, 151 Cal.App.3d at p. 1010, 199 Cal.Rptr. 175.)  Grant had previously recognized an exception to that rule “when the reason is one that impinges upon constitutional rights.”   (Grant v. Adams, supra, 69 Cal.App.3d at p. 137, 137 Cal.Rptr. 834.)

As pointed out in Ball v. City Council (1967) 252 Cal.App.2d 136, 141, 60 Cal.Rptr. 139, however, another caveat must be added that “the power may not be exercised arbitrarily in disregard of the employee's ․ statutory rights.   [Citation.]”

Respondent correctly urges the applicability of Ball to the instant case.   Respondent had a statutory right not to reveal his prior record pursuant to Penal Code section 1203.4.   Respondent's dismissal by appellants for failing to make such a disclosure violated that right.   Clearly, courts are empowered to review the dismissal where such a transgression has occurred.   (Id., at p. 141, 60 Cal.Rptr. 139.)

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   See Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215, 124 Cal.Rptr. 14, 539 P.2d 774.

2.   For example, Pomona City Charter section 104 distinguishes between those who hold an office and employees;  and Article II, section 2–25 of the Pomona City Code acknowledges the distinction between “officers, positions and employments” in the city service.

3.   Humbert, supra, dealt with specific regulations distinguishing between a fire captain and “ordinary firemen”;  in Drake, supra, the distinction between “officers” and “employees” was not at issue;  and Jackson, supra, decided whether a fireman claiming sickness and disability benefits under a certain city ordinance was an “officer” or an “employee.”

LUKE, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

McCLOSKY, Acting P.J., and ARGUELLES, J., concur.

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