GERACE v. COUNTY OF LOS ANGELES (1972)

This is an appeal from a judgment of the Superior Court of Los Angeles County denying a peremptory writ of mandate in each of two consolidated actions. The petitioned for writs would have ordered the Los Angeles County Civil Service Commission to set aside its decisions sustaining the discharge of two sheriff's deputies.

Allen J. Gerace and Betty L. Gerace, husband and wife, were employed as deputies in the Los Angeles County Sheriff's Department. Allen held the rank of Sergeant. Both were discharged on August 5, 1969, when an investigation conducted by the department revealed that they had jointly solicited and paid for an abortion which was performed upon Betty in the Gerace home during January 1969.

Following the hearing, the Civil Service Commission made findings of fact based on a stipulation of facts entered into by the parties. These findings were:

(1) As to Betty Gerace

(a) that she contacted persons to secure information as to who could perform an abortion on her person;

(b) that she had the abortion;

(c) that she paid for it; and

(d) that when questioned by representatives of the department she lied about the location of the performance of the abortion.

(2) As to Allen Gerace

(a) that he knew of, and allowed, an abortion to be performed upon his wife;

(b) that he paid for the abortion;

(c) that he contacted various individuals in an attempt to find someone who would perform the abortion; and

(d) that when questioned by representatives of the department he lied about the location of the abortion.

From these findings the Commission concluded:

(1) the actions of Betty and Allen Gerace in relation to the abortion were actions proscribed as felonies pursuant to sections 1821 and 2752 of the Penal Code;

(2) each had failed to perform his duty as a police officer in not arresting the abortionist and the other member of the marital duo;

(3) the actions of each were directly related to the performance of his duties;

(4) the commission of acts proscribed as felonies automatically rendered each unfit for service as a peace officer; and

(5) the untrue statement made as to the location of the abortion rendered each unfit for service as a peace officer.

At issue in the hearing before the Civil Service Commission and in Superior Court on the petition for mandate, was the investigative procedures employed by the sheriff's department. These procedures led to a confession by both Allen and Betty as to the essential facts which were ultimately stipulated to and adopted by the Commission.

In attacking the investigation which led to their discharge the Geraces contend that (1) they were coerced into making involuntary statements, and (2) they were questioned about private matters unrelated to their official duties.

Their assault on the discharge itself rests on three major premises: (1) it is the product of an improper investigation as discussed in the preceding paragraph, (2) even admitting the truth of the ultimate facts there was no evidence that the performance of their official duties was thereby affected, and (3) there is a constitutional right to secure an abortion.

Our analysis of these various contentions must begin with an examination of certain relevant policy regulations in force within the Sheriff's Department of Los Angeles County, together with certain statutory law of this state.

The Department Manual of Policy and Ethics which governed the conduct of the Geraces as well as all members of the sheriff's department provided inter alia.

“3120.01 General Behavior. A member shall not act or behave privately or officially in such a manner as to bring discredit upon himself or the Department.”

“3120.03 Obedience to Laws, Regulations, and Orders.

a) Members shall not wilfully violate any Federal statute, State Law, or local ordinance. According to the nature of the offense, and in conformance with the Rules of the County Department of Personnel, disciplinary action may consist of a reprimand, suspension without pay, reduction in rank, or dismissal from the Department.”

“3120.70 False Statements. Members shall not make false statements when questioned or interviewed or in reports submitted.”

“3120.71 Statements During Departmental Investigations. If requested to make a statement in the course of an official Departmental investigation, members shall make full, complete, and truthful statements.”

Government Code section 26601 provides:

“Arrests. The sheriff shall arrest and take before the nearest magistrate for examination all persons who attempt to commit or who have committed a public offense.”

The duty of the Sheriff to arrest criminal violators is also imposed upon his deputies.

Government Code section 1029 provides that a peace officer is to be disqualified from office for conviction of a felony. While the Geraces have not been convicted of a felony, the underlying principle is applicable.

We next turn to a recital of the significant events that occurred during the department's investigation of the Geraces. In so doing we quote verbatim from their opening brief.

“On May 26, 1969, appellant, Betty Gerace, was interviewed by members of the Sheriff's Department. Mrs. Gerace was told that she must make a full, complete and truthful statement and that she should not make any false statements. The Department representatives then advised Betty Gerace that she was being questioned as to her participation in an alleged abortion and extortion.

Betty Gerace advised the Department representatives that she did not want to make a statement until she had talked to someone. The Department representatives then advised Betty Gerace that this investigation was an administrative rather than a criminal investigation, and told her that: (a) She did not have the right to have anyone else present; (b) She did not have the right to confer with anyone; (c) Compliance with the Manual of Policy and Ethics was a condition of her job and that refusal to answer was grounds for discharge under the Manual, since it would be tantamount to non-cooperation in an official department investigation pursuant to Section 3120.71 of the Manual; and (d) Although she could refuse to answer because of her constitutional rights, she would be subject to discharge.

On that same day, May 26, 1969, appellant, Allen Gerace, went to Captain Elroy Villines, and told the Captain that he wanted to discuss a personal matter in private. Captain Villines told Allen Gerace that he was under investigation and that he would have to give the Department a statement. Allen Gerace told Captain Villines that he did not wish to make a statement, but the Captain advised him he had better make one.

Department representatives then advised Sgt. Allen Gerace that he was being investigated with respect to an alleged extortion. These representatives then advised Sgt. Gerace that he must make a full, complete and truthful statement and should not make any false statements. Sgt. Gerace was not advised that he had a right to remain silent.

Also on May 26, 1969, appellant, Betty Gerace, admitted that she had contacted various persons in an effort to secure information as to whom she could contact to obtain an abortion, that she had allowed an abortion to be performed upon her person, at her residence, and that she and her husband had jointly paid $700.00 for the abortion.

On May 26, 1969, appellant, Allen Gerace, admitted that he knew of and approved of an abortion performed on his wife (the appellant, Betty Gerace), and that he had paid jointly with his wife $700.00 for the operation. Sgt. Gerace admitted that with the knowledge of his wife, he had contacted various persons in order to secure information as to who could perform such an operation.

On May 29, 1969, Sgt. Gerace admitted that he had lied about the location of the abortion in his interview on May 26, 1969.

On May 26, 1969, appellant, Betty Gerace, told the Department representatives that the abortion was performed at her residence. The interviewers stated that they had pictures and implied that Sgt. Gerace had already told them that it was performed in Mexico. Then Betty Gerace said it was performed in Mexico. On May 28, 1969, Betty Gerace admitted that she lied when she stated that the abortion took place in Mexico.”

Before discussing the dilemma in which the Geraces found themselves at the time they were questioned it is necessary to consider whether their conduct itself, however discovered and proved, constituted grounds for discharge.

It is undisputed that the abortion which was performed on Betty was in violation of the existing law and that her conduct, and that of the abortionist, constituted felony crimes.³ Similarly, Allen as a co-conspirator in these crimes was also chargeable with their violation.

Appellants' contention that Betty Gerace had a constitutional right to secure the performance of an abortion in her own home is to deny the validity of a statute duly promulgated and as of this writing, legally valid and enforceable.

Regardless of how the courts may ultimately decide the highly controversial issue of the constitutionality of our abortion statute, it is simply inconsistent with his or her duty of office for a person who is sworn to enforce the law to wilfully refuse to enforce or to personally violate any currently subsisting Penal statute, especially one which the Legislature has denominated to be in the felony class.

Nor is it of any aid to the Geraces that their particular assigned duties⁴ did not involve them in the active investigation of the crime of abortion, nor that the questioned activity occurred during off-duty hours.

To follow their argument to its logical extreme would mean that only members of the vice squad would be prohibited from patronizing bookmakers or prostitutes, or only members of the narcotics squad would be prohibited from patronizing illicit peddlers of drugs and narcotics and thus immune from questioning about such matters by the Department.

It would be an intolerable situation and destructive of the efficient administration of a police agency if such agency could not require some of its members to give truthful information concerning the violation of laws which other members of that same agency were actively engaged in enforcing.

In sum, a law enforcement officer's official duties embrace those of the faithful enforcement of the penal statutes of the jurisdiction and are not circumscribed or limited to a particular specialty which might happen to be the major focus of his current departmental assignment. Nor can his violation of a penal statute be characterized as a private matter simply because it was committed during off-duty hours.

To those who might argue that this is a harsh and unrealistic attitude, we answer that the high quality of law enforcement which exists in this area is directly attributable to the demand of top-level police administration that their personnel adhere strictly to policies designed to prevent the erosion of the competency and integrity of the law enforcement service.

Our attention is directed to Morrison v. State Board of Education, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375, which stands for the proposition that the discharge of a teacher on the revocation of his teaching credentials must be premised on a showing of unfitness to teach.

Here it is claimed that the Department introduced no factual evidence relative to the quality of the Geraces' service in their assigned duties. On the other hand they point to their performance evaluations as proof that they performed their duties competently. They also point out that the jurisdiction of the Civil Service Commission is limited to a determination of whether appellants are fit to perform their duties and it may not label an activity as criminal or felonious.

But Morrison offers little comfort to those who posit an untrammeled right to public employment. It clearly and explicitly recognized the “public interest in the elimination of unfit school teachers.” The court in Morrison insisted “‘The right to practice one's profession is sufficiently precious to surround it with a panoply of legal protection’ (Yakov v. Board of Medical Examiners, supra, 68 Cal.2d 67, 75, 64 Cal.Rptr. 785, 791, 435 P.2d 553, 559), and terms such as ‘immoral,’ ‘unprofessional,’ and ‘moral turpitude’ constitute only lingual abstractions until applied to a specific occupation and given content by reference to fitness for the performance of that vocation.” (At p. 239, 82 Cal.Rptr. at p. 194, 461 P.2d at p. 394.)

The equation of commission of felonies by a peace officer, and the attempted concealment of such misconduct to unfitness for office is considerably more than “lingual abstractions.”

Nothing could be more relevant to a law officer's fitness to uphold the law than his own demonstrated attitude towards the law he is commissioned to uphold.

Addressing ourselves now to the investigative procedures employed it is readily apparent that Allen and Betty Gerace's tenure with the sheriff's department was doomed when investigators from that department sought to question them.

They were at that time required by the Departmental Manual to answer the questions and answer them truthfully. Either a refusal to answer or an untruthful answer was grounds for discharge and under the circumstances here a truthful answer would have the same result.

Thus it is argued that under the coercion that thus existed their truthful answers which were tantamount to a confession should not be used against them as a basis for discharge.

Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, cited by appellants as supporting the thesis that the confessions were involuntary and thus excludable, in reality stands for quite a different proposition when read in context of the facts of the case in hand. Garrity involved the reversal of a conviction for crime based on statements given by a defendant policeman only after he had been advised that refusal to testify would bring about his removal from office. The heart of Garrity was the coerced statement which was later used against him in a criminal prosecution. The evil condemned was the threat of loss of status as a weapon against the use of the privilege against self-incrimination. In the present case, however, no possible later self-incrimination at a subsequent trial was available since the department had given up for all times the right to use the appellants' words against them in any criminal prosecution. Garrity, supra, on the other hand, not only demanded testimony under penalty of discharge but at the same time removed the shield of the Fifth Amendment of the United States Constitution when the same testimony was used at trial. It was because of Garrity that the Geraces could not be tried but could be compelled to speak.

Gardner v. Broderick, 392 U.S. 273, at p. 278, 88 S.Ct. 1913, at p. 1916, 20 L.Ed.2d 1082, which also dealt with discharge for invocation of a constitutional right is most pertinent here.

“If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal.”

Gardner, supra, at p. 276, 88 S.Ct. at p. 1915, after reciting with approval the breadth of the privilege against self-incrimination also notes that “The privilege may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying. Counselman v. Hitchcock, supra, 142 U.S. 547, at 585-586, 12 S.Ct. 195, at 206-207, 35 L.Ed. 1110; Murphy v. Waterfront Commission, supra, 378 U.S. 52, at 79, 84 S.Ct. 1594, at 1609, 12 L.Ed.2d 678.”

In brief, neither one of the appellants were required to give up immunity. In fact, they were specifically granted one by the form of the investigation and indirectly but nonetheless effectively by the compulsion of testimony. Such immunity removed any constitutional objection to compelling their answers.

When the department chose to invoke administrative procedures to inquire into their fitness as police officers and most particularly when they chose to compel answers by invoking the Manual of Policy and Ethics, the appellants became secure from prosecution as surely as if a grant of immunity had been given to them.

In line with our conclusion it necessarily follows that any failure to comply with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, is not fatal to the use, in a discharge hearing, of statements obtained in an administrative investigation of the type conducted here. (See In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376.)

It is further urged that the Department's investigative procedures were overbroad and thus violative of their constitutional rights. It is maintained the investigation and questioning was not specifically, directly and narrowly related to the performance of their official duties as mandated by Gardner v. Broderick, supra, and Sanitation Men v. Sanitation Commissioner, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089. Appellants claim the information sought was of a private and personal nature and not related to their official duties and therefore the Department could not lawfully advise them that a refusal to answer all questions was a proper ground for discharge.

This contention we have already disposed of by our holding that their conduct was not a private matter and that it did relate to their official duties. Thus any question concerning such conduct was permissible.

Fitness to serve as a policeman and criminal behavior are antithetical and antagonistic and cannot coexist. Illegal acts are inconsistent with a dedication to their elimination. As with fire and water, these elements are simply not miscible. To advance the proposition that the behavior here was so personal as to prevent a reasonable inquiry into criminal behavior and its bearing on fitness for law enforcement duty would be to exalt privacy to a hitherto unknown height.

The case of McAuliffe v. Mayor, etc. Of City Of New Bedford, 155 Mass. 216, 29 N.E. 517, is still in harmony with the law of California. The pertinent quotation by Justice Holmes is as follows:

“The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech [or here, his or her right of privacy] as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonable condition upon holding offices within its control.” (For accord see Christal v. Police Commission, 33 Cal.App.2d 564, 92 P.2d 416; Steinmetz v. Cal. State Board of Education, 44 Cal.2d. 816, 285 P.2d 617; Fichera v. State Personnel Board, 217 Cal.App.2d 613, 32 Cal.Rptr. 159; McCain v. Sheridan, 160 Cal.App.2d 174, 324 P.2d 923.)

The judgment is affirmed.

The discharge of a public employee who has wrapped the cloak of a popular cause around his transgressions often produces the hard case that makes the law look bad.

Here, the discharge of two public employees for acts having some connection with the procurement of an abortion, at first blush appears at odds with current constitutional expansionism in the sphere of personal rights and current demographic policy designed to counter the population explosion. Appellants argue the inquisition which led to their discharge did not specifically, directly, and narrowly relate to the performance of their official duties (Gardner v. Broderick (1968), 392 U.S. 273, 278, 88 S.Ct. 1913, 20 L.Ed.2d 1082) but rather centered upon their personal lives and therefore invaded their privacy and infringed their constitutional rights.

Yet the catalyst which precipitated the investigation was not suspected abortion but suspected extortion. The sheriff initiated his investigation on citizen's complaint that members of the Los Angeles Sheriff's Department extorted money from the complainant by threats against his physical safety. Axiomatically, a law enforcement agency with any pretensions to the name must give highest priority to the investigation of criminal complaints against its own employees. Nothing less than the most rigorous inquiry into complaints of extortion by a peace officer will satisfy the public interest, and this is so whether the claimed extortion is connected with the peace officer's official duties or with his extracurricular and moonlighting activities.

A thorough investigation of the extortion complaint was thus required. Once launched, the investigation ran its course, and that course included the inquisition in which appellants committed the transgressions summarized in the trial court's decision. At least two of those transgressions warranted appellants' discharge as peace officers, wholly apart from the question of their procurement of the abortion itself.

(1) False statements given to investigate officers in the course of an official investigation. The authority of the sheriff to command truth from his peace officers during an official investigation should be unquestioned; otherwise the age-old question Who Watches the Watchmen will receive an unsatisfactory answer.

(2) Refusal to disclose the identity of the abortionist. The sheriff is entitled to require his deputies to reveal the identities of felons he is charged with apprehending. Regardless of the present attitude of the law toward the procurement of abortions, no court has yet suggested that activities of unlicensed mercenary abortionists have been or should be legitimated. Since the sheriff is charged with the apprehension of such persons he may require his deputies to assist him in the performance of that duty to the fullest extent possible.

Thus, viewed in true perspective, the cause arose from a complaint of extortion by deputy sheriffs, in the investigation of which the sheriff became entitled to demand truthful answers from his deputies, and the deputies became obliged to give truthful answers to the sheriff. When appellants failed to do this, their discharge as peace officers became warranted. Indeed, it is difficult to see how the sheriff could have acted otherwise and still preserved the integrity of his office.

FOOTNOTES

1.  Penal Code section 182 states in pertinent part:“If two or more persons conspire: 1. To commit any crime․ They are punishable as follows: … When they conspire to commit any other felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of the said felony.”

FN2. Penal Code section 275 states:“Every woman who solicits of any person any medicine, drug, or substance whatever, and takes the same, or who submits to any operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, except as provided in the Therapeutic Abortion Act, Chapter 11 (commencing with Section 25950) of Division 20 of the Health and Safety Code, is punishable by imprisonment in the state prison not less than one nor more than five years.”.  FN2. Penal Code section 275 states:“Every woman who solicits of any person any medicine, drug, or substance whatever, and takes the same, or who submits to any operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, except as provided in the Therapeutic Abortion Act, Chapter 11 (commencing with Section 25950) of Division 20 of the Health and Safety Code, is punishable by imprisonment in the state prison not less than one nor more than five years.”

3.  See Penal Code section 275, supra.Penal Code section 274 provides:“Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, except as provided in the Therapeutic Abortion Act, Chapter 11 (commencing with Section 25950) of Division 20 of the Health and Safety Code, is punishable by imprisonment in the state prison not less than two nor more than five years.”

4.  At the hearing before the Civil Service Commission, appellant, Betty Gerace, testified as to her assigned duties as follows: (1) From December of 1968 through February of 1969, she was assigned to the Technical Services Division of the Transportation Detail with the specific duty of transporting female prisoners from one area to another. She also occasionally stayed overnight with juries and worked on the desk; (2) During the months of March, April and May of 1969, her duties were the same as they were from December, 1968 through February, 1969; (3) After May 26, 1969, the date of the first interrogation by the Sheriff's Department, her duties changed so that she was assigned to the misdemeanor warrant desk assigning said warrants to the various substations or police departments. The new duties also entailed handling telephone calls from the public and official agencies requesting information on warrants.At the hearing before the Civil Service Commission, appellant, Allen Gerace, testified as to his assigned duties as follows: (1) From December of 1968 through February of 1969, he was assigned to the Reserve Forces Bureau, Administrative Division. His duties consisted of doing background investigation on those in the reserve force; (2) From February 1969 to May 26, 1969, his duties were the same, except that he had been assigned one additional duty, that of assisting the Civil Service Commission in interviewing applicants for the positions of Deputy Sheriff or Corrections Officer; (3) From May 26, 1969 to August 5, 1969, his duties remained the same, except that he was one of six sergeants assigned to duty one weekend out of six to handle emergency matters involving reserve personnel.

COMPTON, Associate Justice.

ROTH, P. J., concurs. FLEMING, Associate Justice (concurring).