GAYDOWSKI v. COUNTY OF LOS ANGELES

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Court of Appeal, Second District, Division 5, California.

Richard GAYDOWSKI, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

Civ. B002085.

Decided: July 19, 1984

Cohon & Gardner and Steven H. Gardner, Los Angeles, for plaintiff and appellant. DeWitt W. Clinton, County Counsel and Halvor S. Melom, Deputy County Counsel, Los Angeles, for defendants and respondents.

Plaintiff Richard Gaydowski appeals from the trial court's judgment denying his petition for a writ of mandate (Code Civ.Proc., § 1085) against respondents County of Los Angeles and its Department of Beaches and Harbors.

Appellant was employed by respondents as a parking lot supervisor under rules of the county civil service commission relating to “recurrent” (seasonal or as needed) employees.   Following several meetings between appellant and his supervisors in November 1981, respondents terminated appellant's employment, notifying him by letter of November 20, 1981, that his name was removed from the parking lot supervisor I, as needed, availability list.   It was assumed that appellant served at the pleasure of his employers and thus had no constitutionally protected “property” interest in his job.  (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 782, 97 Cal.Rptr. 657, 489 P.2d 537.) 1

 However, since the grounds for discharge included alleged falsification of mileage claims and falsification of employee time records, appellant was provided a post termination hearing before the civil service commission in order to clear his name of such charges.   This is because even a public employee who has no “property” interest in his job, serving only at the pleasure of the employer, does have a “liberty” right to seek other employment.   This “liberty” interest arises when, in connection with the termination of employment, the governmental employer makes a charge which is disclosed to the public and which seriously impairs the employee's reputation for honesty or morality.   If the accuracy of the charge is contested, due process requires that the employee be given a hearing to clear his name and thus protect his “liberty” to seek other employment.  (Codd v. Velger (1977) 429 U.S. 624, 626–627, 97 S.Ct. 882, 883–884, 51 L.Ed.2d 92;  Bishop v. Wood (1976) 426 U.S. 341, 347–349, 96 S.Ct. 2074, 2078–2080, 48 L.Ed.2d 684;  Board of Regents v. Roth (1972) 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548;  Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 346, 159 Cal.Rptr. 440;  Jones v. Los Angeles Community College Dist. (9th Cir.1983) 702 F.2d 203, 206.)

At the hearing before a hearing officer of the civil service commission the parties recognized that the purpose of the proceeding was to clear appellant's name because of his “liberty” interest.   After taking evidence, the hearing officer found in appellant's favor that appellant did not file false mileage claims or employee time records and did not neglect his duty.   Upon receiving the report of the hearing officer, the civil service commission likewise found in appellant's favor on June 8, 1982, concluding:  “department not sustained.”   Upon receipt of the commission's final decision, the personnel officer of the Department of Beaches “reviewed Mr. Gaydowski's official personnel file and removed all references to the charges leading to his release.”

However, on July 28, 1982, appellant wrote to respondents requesting reinstatement to his recurrent position and back pay.   This request was denied.   Appellant thereafter filed the instant petition for writ of mandate, contending that because the civil service commission proceedings were resolved in his favor, respondents had a mandatory duty to reinstate him in his position and award him back pay.

 Appellant's theory is wholly without merit and the trial court properly granted judgment against him on the writ of mandate.   It is well established that where no “property” interest is involved, a “liberty” hearing “does not provide an employee with review of the issue of whether he may be removed from a nontenured position.   It affords him only ‘an opportunity to clear his name.’ ”  (Shimoyama v. Board of Education (1981) 120 Cal.App.3d 517, 528, 174 Cal.Rptr. 748;  Zumwalt v. Trustees of Cal. State Colleges (1973) 33 Cal.App.3d 665, 680, 109 Cal.Rptr. 344.   See Bishop v. Wood, supra, 426 U.S. at pp. 348–350, 96 S.Ct. at pp. 2079–2080;  Dennis v. S & S Consolidated Rural H.S. Dist. (5th Cir.1978) 577 F.2d 338, 342–343.)   Appellant was afforded the relief to which he was entitled.

 To avoid this reasoning, appellant appears to argue, based on Williams v. County of Los Angeles, supra, 22 Cal.3d 731, 150 Cal.Rptr. 475, 586 P.2d 956, that even under the new regulations relating to recurrent employees appellant had a limited “property” interest entitling him to reinstatement.   This argument is not properly presented in the procedural context of this case.   In denying the petition for writ of mandate, the trial court had before it the civil service hearing officer's findings and recommendations, a partial transcript of the proceedings before the hearing officer, a declaration from appellant, and a declaration of the department's personnel director submitted by respondents.   These sources show that it was understood by all concerned at the time of the proceedings before the hearing officer that the purpose of the proceedings was to clear appellant's name.   It does not appear that appellant requested reinstatement 2 until after the civil service commission rendered its final determination, which had resulted in removal of all unfavorable references in appellant's file.   The object of the game and the stakes cannot be changed after the game is over.   We are not properly presented with the question whether appellant also had a “property” interest entitling him to reinstatement.

Finally, appellant contends that even if he is not entitled to reinstatement, he is entitled to an award of back pay for violation of his Skelly rights.   (See Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215, 124 Cal.Rptr. 14, 539 P.2d 774;  Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 402–403, 134 Cal.Rptr. 206, 556 P.2d 306.) 3  This contention likewise lacks merit.  Skelly held, with respect to a permanent civil servant, that due process requires the employee be given, prior to termination, notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond to the authority initially imposing discipline.  Barber held that where such preremoval safeguards were not satisfied, such employee is entitled to back pay for the period from the initial wrongful removal to the decision upon the full post termination hearing.

 Skelly and Barber are inapposite to this case, because here no “property” interest is involved.   Back pay was provided in Barber as a measure of damages for the wrongful initial deprivation of property rights.   Conceivably a governmental employer could violate an employee's “liberty” interests by disclosing damaging charges to the public in connection with, but prior to, the actual termination, without having given the employee a prior opportunity to respond.  (See Jones v. Los Angeles Community College Dist., supra, 702 F.2d at p. 207;  Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d at p. 346, 159 Cal.Rptr. 440.)   That is not, however, a Skelly problem.   The damage from the initial public disclosure of false charges is not measured by back pay, as in Skelly, but by actual proof of mental distress or injury to reputation.  (See Carey v. Piphus (1978) 435 U.S. 247, 263, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252;  Vanelli v. Reynolds School Dist. No. 7 (9th Cir.1982) 667 F.2d 773, 778 fn. 8.)

 In any event, such arguments are not even presented by appellant's case.   In order for the “liberty” interest to arise, there must be public disclosure of the damaging charges.  (Bishop v. Wood, supra, 426 U.S. at p. 349, 96 S.Ct. at p. 2079;  Jones v. Los Angeles Community College Dist., supra, 702 F.2d at p. 207;  Dennis v. S & S Consolidated H.S. Dist., supra, 577 F.2d at p. 342 fn. 2;  Heath v. Redbud Hospital Dist. (9th Cir.1980) 620 F.2d 207, 211.)   Prior to appellant's termination the charges were discussed privately with appellant by his departmental superiors.   There is no evidence that respondents publicly disclosed the charges against appellant either prior to or after termination, and the relief granted by appellant's successful civil service proceeding prevents any such disclosure in the future.   Absent any initial public disclosure, there was no violation of due process, hence no occasion for awarding Skelly compensation even under appellant's theory.  (Jones v. Los Angeles Community College Dist., supra.)

The judgment is affirmed.

FOOTNOTES

1.   Appellant was employed under rules which had been amended in 1981 in apparent response to Williams v. County of Los Angeles (1978) 22 Cal.3d 731, 736, 150 Cal.Rptr. 475, 586 P.2d 956, which had held that under the 1975 rules a recurrent employee could be discharged only for cause.

2.   Back pay is discussed post.

3.   The hearing officer found that appellant's Skelly rights had been violated because the letter of November 20, 1981, was not one of the county's Skelly form letters and because respondents did not investigate the explanations appellant gave his superiors.   The hearing officer recommended that in addition to removing unfavorable references in appellant's file, respondents be required to give appellant “all benefits” to which appellant was entitled due to the Skelly violation.   The hearing officer did not determine what such benefits would be.

ASHBY, Associate Justice.

FEINERMAN, P.J., and HASTINGS, J., concur.