CIVIL SERVICE ASSOCIATION LOCAL 400 v. CITY AND COUNTY OF SAN FRANCISCO (1977)

The appellants herein are eight individuals who are employed in the civil service of respondent City and County and two labor organizations of which the employees, among them, are members. They petitioned the superior court, pursuant to section 1085 of the Code of Civil Procedure, for a writ of mandate requiring respondents to set aside short-term suspensions from employment which had been imposed upon the appellant employees for disciplinary reasons. They appeal from a judgment which denied their petition after the summary proceedings described below.

The eight appellant employees' right to the relief sought was claimed upon the authority of Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 (hereinafter cited as ‘Skelly’ only), in which the Supreme Court invalidated the disciplinary dismissal of a permanent employee of the State of California upon the ground that the procedures attending it, which had been prescribed in the Civil Service Act (Gov.Code, §§ 19570–19588) had not accorded the employee the ‘minimum’ requirements of procedural due process as defined by the Skelly court.¹

Skelly was decided on September 16, 1975. (15 Cal.3d at p. 194, 124 Cal.Rptr. 14, 539 P.2d 774.) Appellants commenced the present proceeding by filing their petition on October 8, 1975, three weeks later. The five respondents on the appeal (the City and County of San Francisco and four departments of its government) were named in the petition as the ‘respondents' below. Its immediately pertinent allegations may be summarized, and quoted in part, as follows:

Each of the eight individual appellants is employed by respondent City and County, and each is ‘a permanent employee in a civil service system.’ Each is actually employed in one of the respondent departments, which is respectively named as to each employee. Each of the eight employees belongs to one of the appellant labor organizations, which is also respectively named in each instance. The two organizations are both ‘labor organizations within the meaning of the Meyers-Milias-Brown Act in that employees of the City and County . . . belong to those Unions and participate in those Unions for the purpose of being represented in relations with their employer.'²

Each of the eight individual appellants had previously incurred a short-term suspension from employment which had been imposed, for disciplinary reasons, by his or her respective employing department.³ The allegations of the petition which described the various suspension proceedings in omnibus terms, and the particulars of the relief sought in its prayer, were partially—but unmistakably—couched in Skelly terms.⁴

Appellants filed with their petition a declaration, by their attorney, which authenticated and incorporated several items of correspondence written by some of the respondents in connection with some of the suspensions alleged.⁵ In a memorandum of points and authorities filed by the declarant a few days later, appellants expressly stated that the eight employees' claim to relief was based upon the Skelly decision. The trial court meanwhile made an ‘Order For The Issuance Of An Alternative Writ Of Mandate’ directing respondents to grant the relief prayed in the petition or to appear on a specified date and show cause for not having complied.

Respondents filed an ‘Answer And Return’ to the petition in which they specifically denied several of its allegations, including those made in its paragraphs IX, X and XI (quoted in fn. 4, ante). They also filed a memorandum of points and authorities in which they opposed the petition upon the grounds (1) that Skelly did not pertain to ‘minor’ employee disciplinary action of the nature alleged; (2) that Skelly did not reach these eight suspensions, in any event, because it was not to be applied retroactively (see fn. 3, ante); and (3) that the Meyers-Milias-Brown Act did not support any part of the relief prayed in the petition.

The record is somewhat unclear as to the proceedings which followed, but it fairly appears that the show-cause order eventually came on for hearing and that the case was thereupon argued and submitted on the pleadings alone. The trial court subsequently made an ‘Order’ in which it stated that the pleadings ‘indicated that there were no material issues of fact which required a determination before judgment could be entered,’ that ‘findings of fact are not required in this particular case,’ and that ‘the petition for writ of mandate is denied on the basis that the petitioners [appellants] were not entitled to same as a matter of law.’ The court thereupon entered a judgment denying the petition. This appeal followed.

Although the record does not show the fact, the parties agree that the trial court reached the just-quoted conclusions upon the peremptory basis of its concurrence with respondents' contention that Skelly was not to be applied retroactively in any event.⁶ Subsequently, and during the pendency of this appeal, the Supreme Court held that Skelly had retroactive application in cases ‘not yet final.’ (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 134 Cal.Rptr. 206, 556 P.2d 306 [hereinafter cited as ‘Barber’ only], 402.) We have concluded that reversal of the judgment is required by Barber alone; that we may resolve as a matter of law the single question, raised by respondents below and on the appeal, whether Skelly applies to so-called ‘minor’ disciplinary suspensions from employment; and that resolution of the remaining questions must await the trial of various issues of fact which the lower court did not reach and which we may define in this decision.

The Question Of Law

Apart from the issue of its retroactivity, respondents contend that Skelly should not apply to ‘minor disciplinary suspensions' as distinguished from a ‘substantial suspension’ or an outright ‘dismissal’ from employment. The argument (which we quote in part from respondents' brief) rests upon this passage in Skelly: ‘Except in cases this passage in Skelly: ‘Except in cases involving minor disciplinary matters [footnote signal 16], the employee has a right to an evidentiary hearing to challenge the action taken against him.’ (Skelly, 15 Cal.3d 194 at p. 203, 124 Cal.Rptr. 14 at p. 20, 539 P.2d 774 at p. 780 [emphasis added; fn. 17 omitted].) In footnote 16, the court elaborated: ‘Such minor disciplinary matters generally include those cases in which the discipline imposed is suspension without pay for 10 days or less. Section 19576 describes the procedural rights of an employee subjected to this form of discipline.'⁷ (Ibid. [emphasis added].)

We do not perceive in this language the distinction, between ‘minor’ and ‘substantial’ suspensions, for which respondents contend. The distinction does not appear to have been drawn by the Skelly court in the context of the quoted passage, which is a summary description of the employee-discipline procedures prescribed in the Civil Service Act at large. (See Skelly, 15 Cal.3d 194 at pp. 202–205, 124 Cal.Rptr. 14, 539 P.2d 774.) The essential Skelly holding extends to all cases which involve ‘the taking of punitive action against a permanent civil service employee.’ (Id., at p. 215, 124 Cal.Rptr. at p. 29, 539 P.2d at p. 789 [emphasis added]. See fn. 1, ante.) The term ‘punitive action’ was not a descriptive term used by the Skelly court out of hand; it was specifically employed and defined in the provisions of the Civil Service Act which the court construed, and its definition included a ‘suspension’ of any duration. (Gov.Code, § 19570;⁸ Skelly, at p. 202 [fn. 11], 124 Cal.Rptr. 14, 539 P.2d 774.)

Skelly accords pre-discipline procedural rights to ‘a permanent civil service employee’ (see fn. 1, ante) upon the express ground that his ‘permanent’ status invests him with ‘a property interest in the continuation of his employment which is protected by due process.’ (Skelly, 15 Cal.3d 194 at p. 206, 124 Cal.Rptr. 14 at p. 23, 539 P.2d 774 at p. 783 [emphasis added].) Because a suspension of any duration interrupts ‘the continuation of his employment’ in which he has the ‘property interest,’ it follows that he must be ‘protected by due process' in the pre-discipline procedures which are mandated by Skelly. Whether disciplinary action against him may be ‘minor,’ to a de minimis level where Skelly protection might not be warranted, need not be decided here; he is entitled to that protection if the action amounts to a suspension from his employment, irrespective of its duration.

The Remaining Issues Of Fact

The pleadings, which among them constitute the entire record on appeal, are imprecisely drafted. The parties have undertaken to describe some of the various suspension proceedings in their briefs, but the descriptions are unsupported by the record and some of them are in conflict. Without here reciting the details of the documentation filed with appellants' petition (see the text at fn. 5, ante), we may note that it garbles, or actually contradicts, the allegations of the petition with respect to some of the suspension proceedings alleged. For all these reasons, we may go no further than to define certain issues of fact which must yet be resolved.

In their answer, respondents did not deny the allegation in the petition that each of the appellant individuals was ‘a permanent employee in a civil service system.’ We have seen that the ‘permanent’ status of a civil service employee is the foundation of the pre-discipline procedural rights which Skelly affords him. (Skelly, 15 Cal.3d 194 at p. 206, 124 Cal.Rptr. 14, 539 P.2d 774.) The employee who was held entitled to these rights Skelly had achieved ‘permanent status' by reason of certain facts, all of which (the ‘status' and the facts alike) were defined in the Civil Service Act (Skelly, at p. 197, fn. 3, 124 Cal.Rptr. 14, 539 P.2d 774 [citing Gov.Code, §§ 18528 and 19170]. See also Skelly at p. 202, 124 Cal.Rptr. 14, 539 P.2d 774 [quoting § 19500].)

Presumably, there are equivalent provisions in respondent City and County's charter (or its ordinances, regulations or similar sources), which define a ‘permanent’ employee who may be entitled to Skelly protection in advance of the imposition of discipline. If there are, and if his ‘permanent status' is similarly dependent upon the occurrence of specified facts, the present petition's bare allegation that each of the individual appellants is ‘a permanent employee in a civil service system’ is a conclusion of law which suffices for pleading purposes in the absence of a special demurrer (3 Witkin, California Procedure (2d ed. 1971) Pleading, § 271, p. 1944), but which respondents have not admitted by their failure to deny it. (Id., §§ 875 [p. 2474], 878 [p. 2475].) To show their entitlement to the Skelly protection they claim, appellants must therefore prove the precedent facts which make each of the eight individuals a ‘permanent’ civil service employee within the meaning of Skelly.

This threshold proof will open the further question whether Skelly relief is barred, as to any of the eight disciplinary actions involved, because the action became ‘final’ at some point in time which placed it beyond the retroactive reach of Skelly as established in Barber. (See Barber, 18 Cal.3d 395 at p. 402, 134 Cal.Rptr. 206, 556 P.2d 306.) Because they preceded Barber, the pleadings do not squarely join issue on this subject. There are nevertheless indications, in the documentation filed by appellants with their petition (see the text at fn. 5, ante), that some of the eight suspensions were in fact attended by proceedings which could have made them ‘final,’ for Barber purposes, by operation of the enabling law pursuant to which they were imposed.⁹ Whether this occurred in any case is to be determined by the trial court, upon actual evidence and guided by the pertinent language of Barber. (See 18 Cal.3d 395 at pp. 400–402, 134 Cal.Rptr. 206, 556 P.2d 306 and 403.)

As to any of the eight disciplinary actions to which Skelly might be found to have retroactive effect, within the limits established by Barber in point of time, the trial court must also determine whether the affected employee was denied his or her Skelly rights in fact. The court will have in mind that they included the employee's right to have received ‘notice’ of the respective suspension, a statement of the ‘reasons' for it, ‘a copy of the charges and materials' upon which it was founded, and the ‘right to respond, either orally or in writing,’ before the suspension became effective (Skelly, 15 Cal.3d 194 at p. 215, 124 Cal.Rptr. 14 at pp. 28–29, 539 P.2d 774 at pp. 788–789 [quoted in fn. 1, ante]; Barber, 18 Cal.3d 395 at p. 403, 134 Cal.Rptr. 206, 556 P.2d 306), but not the right to a ‘hearing’ at that time. (Skelly, ibid.)

Paragraph IX of appellants' petition thus alleges that the eight appellant employees were denied Skelly rights in some respects; paragraph X, referring to the denial of ‘hearings,’ does not. (See fn. 4, ante.) Respondents' answer nevertheless joined issue upon the facts alleged in both paragraphs. All of the issues joined, as they eventually prove pertinent, will also be decided upon actual evidence.

The Meyers-Milias-Brown Act Question

This question is presented by the issues joined upon appellants' allegations that each of the eight employees was denied ‘full Union representation,’ and ‘the right of Union representation,’ in connection with his or her suspension. (See the paragraphs of appellants' petition as quoted in fn. 4, ante.) Appellants claim the ‘right’ under the Meyers-Milias-Brown Act (see fn. 2, ante), and not in consequence of Skelly. They are correct in the latter respect; Skelly decided no issues involving the ‘right’ of organizational ‘representation’ in employee disciplinary actions, pursuant to the Meyers-Milias-Brown Act or otherwise. (See Skelly, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, passim.)

According to the allegation in paragraph X of their petition, appellants ‘demanded . . . the right of Union representation’ to be exercised at ‘hearings' which were also demanded and denied. (See fn. 4, ante.) As we have seen from Skelly, the eight appellant employees were not entitled to such ‘hearings' in advance of their respective suspensions. (Skelly, 15 Cal.3d 194 at p. 215, 124 Cal.Rptr. 14, 539 P.2d 774; see fn. 1, ante.) It thus may appear that, if any of the appellants has ‘the right of Union representation’ which all of them claim under the Meyers-Milias-Brown Act, the right has not yet been denied.

The record also indicates, once again in the declaration and documentation filed with appellants' petition (see the text at fn. 5, ante), that some or all of the eight disciplined employees may have had ‘full Union representation’ in the extensive correspondence shown to have been exchanged among the appellant labor organizations and some of the respondents. (The declarant expressly alleges that ‘the Unions have been given the right to write letters,’ but complains of the fact that the letters did not produce the desired results.)

What actually happened in these respects—as distinguished from what has been incoherently alleged by appellants—must also be determined by the trial court upon the basis of clear evidence. Absent such evidence at this time, a detailed analysis of appellants' Meyers-Milias-Brown point would be hypothetical, or premature, or both. In addition, the parties' briefing of the point is totally inadequate. For these reasons, we decline to examine it further upon the appeal.

The judgment is reversed. The cause is remanded to the trial court with directions to conduct further proceedings consistent with the views herein expressed.

FOOTNOTES

1.  The court developed its view of the minimum requirements from a painstaking analysis of pertinent decisions by the United States Supreme Court and of opinions written by various members of that court in some of them. (Skelly, 15 Cal.3d 194 at pp. 205–214, 124 Cal.Rptr. 14, 539 P.2d 774.) The Skelly court then summarized its analysis, and defined the ‘minimum’ requirements, in this language:‘Applying the general principles we are able to distill from these various opinions, we are convinced that the provisions of the California [Civil Service] Act concerning the taking of punitive action against a permanent civil service employee do not fulfill minimum constitutional demands. It is clear that due process does not require the state to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action. However, at least six justices on the . . . [United States Supreme Court] . . . agree that due process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective. As a minimum, these preremoval safeguards must include 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, either orally or in writing, to the authority initially imposing discipline.’ (Skelly, 15 Cal.3d 194, at p. 215, 124 Cal.Rptr. 14 at p. 28, 539 P.2d 774 at p. 788 [emphasis added].)

2.  The Meyers-Milias-Brown Act appears as chapter 10 (‘Local Public Employee Organizations') of division 4 of title 1 of the Government Code, commencing with section 3500. (For its official short title, see § 3510.) According to the fair import of the language here quoted from the petition, each of the appellant organizations is an ‘employee organization’ as defined in the act: i. e., an ‘organization which includes employees of a public agency and which has as one of its primary purposes representing such employees in their relations with that public agency.’ (Gov.Code, § 3501, subd. (a). See also id., subd. (c), defining a ‘public agency’ in terms which include respondent City and County.) In other allegations of the petition, hereinafter quoted, appellants collectively refer to the two organizations as ‘Union.’

3.  The petition alleged that three of the suspensions were ‘for a period of five days,’ and that one was ‘for three working days.’ The durations of the others were not alleged, and the dates upon which any of them were effectively imposed were not clearly stated. It was nevertheless made to appear that all eight preceded the Skelly decision, the earliest one by more than a year and the latest by about five months.

4.  In the closing paragraphs of the petition, appellants alleged as follows (emphasis added):‘IX. In none of the [eight] suspensions . . . were the individuals permitted full Union representation, and in none of the suspensions were the employees given a copy of the charges and an opportunity to respond in advance of the discipline imposed.‘X. In all of the suspensions, the empoloyee and the Union demanded hearings and the right of Union representation of the disciplined employee. In each case, these rights were denied.‘XI. The denial of Union representation and the denial of pre-discipline rights is a denial of due process of law and the statutory protection of the Meyers-Milias-Brown Act.’ (See fn. 2, ante.)In the petition's prayer, appellants requested a writ of mandate compelling respondent City and County, and each of the respondent departments as appropriate, to ‘set aside the suspension’ of each respectively named employee; to ‘give’ him or her ‘a statement of charges,’ ‘all materials and an opportunity to respond prior to the imposition of a suspension’; and to ‘permit’ him or her ‘to be represented by the Union’ (or by the ‘employee organization’) of his or her ‘choice.’ (Emphasis added.)

5.  The declaration and documentation were apparently intended to support the issuance of an alternative writ of mandate.

6.  The record also does not show, but the parties agree upon, these further facts which may be cited for their pertinence later: All of the eight appellant employees except Jacqueline Robinson were suspended pursuant to section 8.342 of respondent City and County's charter. She (Robinson) was suspended pursuant to section 8.343 thereof because she, alone among the eight, was employed in—and suspended by—respondent Police Department. The two sections respectively provide and the relevant distinctions between them appear, as follows:‘8.342. Disciplinary Suspensions. The appointing officer may, for disciplinary purposes, suspend a subordinate for a period not exceeding thirty days; and suspension shall carry with it the loss of salary for the period of suspension. The suspended employee shall be notified in writing of the reason for such suspension, and if the suspension be for more than five days the employee shall, at his request, be given a hearing by the appointing officer. The decision of the appointing officer in all cases of suspension for disciplinary purposes shall be final.’ (Emphasis added.)(The ‘appointing officer’ is apparently a department head, or the equivalent, as defined elsewhere in the charter.)‘8.343. Fine, Suspension and Dismissal in Police and Fire Departments. Members of the fire or the police department guilty of any offense or violation of the rules and regulations of their respective departments, shall be liable to be punished by reprimand, or by fine not exceeding one month's salary for any offense, or by suspension for not to exceed three months, or by dismissal, after trial and hearing by the commissioners of their respective departments; provided, however, that the chief of each respective department for disciplinary purposes may suspend a member for a period not to exceed ten days for violation of the rules and regulations of his department. Any member so suspended shall have the right to appeal such suspension to the fire commission or to the police commission, as the case may be, and have a trial and hearing on such suspension. . . .’ (Emphasis added.)

7.  The statutory reference was to Government Code section 19576 which, as pertinent to the Skelly decision, (1) applied ‘[w]henever an answer is filed,’ within 20 days of notice of disciplinary action as permitted by section 19575 (quoted in Skelly at p. 203, fn. 18, 124 Cal.Rptr. at p. 20, 539 P.2d at p. 780), ‘by an employee who has been suspended without pay for 10 days or less'; and (2) required the State Personnel Board to ‘make an investigation’ in such cases, but (3) permitted the board to do so ‘with or without a hearing as it deems necessary.’

8.  ‘19570. As used . . . [in the pertinent provisions] . . ., ‘punitive action’ means dismissal, demotion, suspension, or other disciplinary action.' (Emphasis added.)

9.  The documentation presents the prospects, at least, that the suspensions imposed under section 8.342 of respondent City and County's charter became ‘final’ by the express terms of that section; and that the suspension of appellant Jacqueline Robinson became final upon the conclusion—or waiver—of the ‘trial and hearing’ proceedings to which she was entitled under section 8.343 of the charter. (See fn. 6, ante.)

RATTIGAN, Associate Justice.

CALDECOTT, P. J., and CHRISTIAN, J., concur.