BELL v. DUFFY (1980)

Robert L. Bell petitioned for a writ of mandate (Code Civ.Proc., s 1094.5) in the superior court alleging he was a sworn peace officer as defined by Penal Code section 830.1, entitled to an administrative appeal pursuant to Government Code section 3304, subdivision (b), before termination from temporary employment with the County of San Diego Sheriff's Department.

In response John Duffy, Sheriff of the County of San Diego, alleged Bell was employed as a “temporary guard,” not a peace officer embraced in Penal Code section 830.1. Respondent claims Bell is without the protection afforded “peace officers” by the so-called “Public Safety Officers Procedural Bill of Rights Act” (Public Safety Officers Act). (Gov.Code, s 3300 et seq.)¹

The superior court entered judgment on January 5, 1979, dismissing the writ of mandate. The trial court reasoned “the Legislature in enacting 3300 (Gov.Code) and the following sections, did not intend a sweeping elimination of the longstanding right of governmental agencies to summarily terminate temporary . . . employees without a hearing.” Additionally the court determined the Public Safety Officers Act could not constitutionally be applied to regulate a matter of municipal concern in a charter city or county.

Bell appeals asserting (1) the evidence does not support the lower court's finding appellant was not a “regularly employed” peace officer, (2) due process requires an administrative appeal prior to termination of even a temporary employee, (3) the court erred in concluding this was a matter of local concern and section 3300 et seq. could not constitutionally be applied, and (4) the lower court improperly dismissed Bell's order to show cause re contempt which would have compelled respondent Sheriff to answer certain dispositions and produce documents.

FACTS

Bell submitted an employment application (Mar. 20, 1978) to the County of San Diego personnel department for the temporary extra help position of “jail guard” with the San Diego Sheriff's Department. Bell knew of the temporary status of the guard position for which he applied. He was not required, he did not go through the county civil service appointment process for a permanent deputy sheriff position. After an interview in September of 1978, a personal requisition was forwarded to the personnel department. The position was for temporary employment as guard designated from “extra help payroll.”

On October 2, 1978, Bell commenced employment. About the same time, he applied for and was approved for a special deputy sheriff commission for the designated purposes of service of civil process and custody of prisoners. Bell agreed to the specific conditions of this commission, stating in writing “the sheriff has the right to cancel . . . (the) Special Deputy Sheriff commission at any time he deems it necessary”. William W. Knowles, of the sheriff's department, testified a “special deputy” is one commissioned to perform a specific limited function; it may be a clerk or even a non-employee and is not a specific job classification with the county; these employees are paid less than regular deputies, are not required to take civil service exams and wear badges different from deputy sheriffs.

Bell performed some of the duties of a deputy sheriff. He acted as bailiff, opening and closing the courtroom, and maintained prisoners. All of the duties were performed with uniform in deputy sheriff's attire and armed with a loaded firearm. Witness Knowles explained there were certain responsibilities, including investigation of crimes, crime prevention in the community and nonuniform work in criminal law enforcement, which Bell as special deputy could not perform that a deputy sheriff could.

On October 27, 1978, after working approximately four weeks, a termination interview with Bell lead to his dismissal from his position as guard. One declared basis of this decision placed significance in “additional information requested” which came to respondent's attention. Bell sought to uncover the specifics of this information but the court denied his discovery attempts.

DISCUSSION

To enlist the protection of the Public Safety Officers Act's entitlement to an administrative appeal prior to termination, Bell must establish he is a “public safety officer” as contemplated by section 3301. Section 3301 incorporates the definition of “peace officer” contained in section 830.1 and subdivisions (a) and (b) of section 830.2 of the Penal Code, including peace officers who are employees of a charter city or county. Thus, “(a)ny sheriff, undersheriff, or deputy sheriff regularly employed and paid as such ” receives the safeguards of the Public Safety Officers Act. (Pen.Code, s 830.1; italics added.)

For Bell to be entitled to relief under the Public Safety Officers Act he must satisfy the twofold requirement of being a deputy sheriff and being “regularly employed and paid as such.” Overwhelming evidence supports the trial judge's conclusion; Bell was not a regularly employed deputy. Testimony highlighted the temporary and limited nature of Bell's duties as was spelled out in his job application. Bell can claim no frustration of reasonable expectation resulting from his termination. He secured his job without overcoming the usual hurdles an applicant to civil service (s 18500 et seq.) must cross, including numerous examinations (s 18930 et seq.) and tough competition. These lower obstacles are coextensive with the relative insecurity of his position. The temporary nature of the position could not have been made more evident to him.

In Globe v. County of Los Angeles, 163 Cal.App.2d 595, 603, 329 P.2d 971, 976, the court answered a similar claim of a temporary county employee. “(A) temporary has no vested right to county employment and may therefore be discharged summarily.” The result would be different were the dismissal based upon the exercise of an employee's constitutional right. (Bogacki v. Board of Supervisors, 5 Cal.3d 771, 778, 97 Cal.Rptr. 657, 489 P.2d 537.) Instead here Bell would have us equalize the status of a “temporary,” as needed, employee with a probationary or permanent employment. A temporary guard fully cognizant of, agreeable to his status, is a far cry from a probationary police officer regularly employed and paid as a police officer.

While the protection of the Public Safety Officers Act extends to probationary police officers (Barnes v. Personnel Department, 87 Cal.App.3d 502, 504, 151 Cal.Rptr. 94), this act should not be construed to erode the section 19059 provision “(a) temporary appointee, as such, shall not acquire any probationary or permanent status or rights, and time spent under temporary appointment shall not contribute to the probationary period if the appointee is subsequently successful in an examination and is certified and appointed to the position.” (See also ss 19058, 19060; Spaulding v. Philbrick, 42 Cal.App.2d 58, 108 P.2d 59.) Limitation of the reach of the Public Safety Officers Act to probationary and permanent employees accords with accepted rules of statutory construction requiring us to harmonize existing statutes. (Cf., Select Base Materials v. Board of Equalization, 51 Cal.2d 640, 645, 335 P.2d 672.)

Further this construction gives significance to the language “regularly employed” consistent with the spirit of the Public Safety Officers Act to assure stable employee-employer relations and that effective services are provided all the people of the state. (s 3301.) A temporary employment relationship does not mutually contemplate the same stability as regular employment. Moreover application of the Public Safety Officers Act to temporary employees hired as needed would increase costs or require agencies to forego help, thereby undercutting the act's manifest directive to provide services to all the people of the state. (s 3301.)

Additionally, appellant argues by acting as bailiff, his temporary guardship and special commission were transformed into “county peace officer” status as conceived by section 31904. Even assuming this to be true, Bell still must satisfy the conditions of section 3301 before he may reap the benefits of the Public Safety Officers Act. In this connection, appellant has failed.²

Bell misconceives the import of Board of Regents v. Roth, 408 U.S. 564, 573-575, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548. In Roth, the Supreme Court reasoned that termination of an untenured professor did not deny due process because:

“The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For ‘(w)here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ (Citations.) In such a case, due process would accord an opportunity to refute the charge before University officials. (Fn. omitted.) In the present case, however, there is no suggestion whatever that the respondent's interest in his ‘good name, reputation, honor, or integrity’ is at stake.

“Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. For ‘(t)o be deprived not only of present government employment but of future opportunity for it certainly is no small injury . . . .’ (Citations.)” (Ibid.)

Here the facts bear striking resemblance. Bell has not alleged specific charges of misconduct accompanying his dismissal injure his reputation. The record only makes vague reference in the declaration of William W. Knowles to “certain information . . . regarding Petitioner's job performance as well as receipt of . . . background investigation.” Even these references were only made in answering Bell's lawsuit, termination itself indicated only that he was a temporary employee. On this record termination of Bell, a temporary employee, involved no deprivation of due process. (Bogacki v. Board of Supervisors, supra, 5 Cal.3d 771, 778, 97 Cal.Rptr. 657, 489 P.2d 537; Skelly v. State Personnel Bd., 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774; Miller v. State of California, 18 Cal.3d 808, 813, 135 Cal.Rptr. 386, 557 P.2d 970.)

Finally, Bell complains the trial judge erred in dismissing petitioner's order to show cause re contempt, for the Sheriff's allegedly willful refusal to obey the court's order to answer certain questions presented at a deposition and to produce documents and records relating to Bell's employment. The court below correctly determined the dispositive issue in this case; it inquired whether Bell qualified for an administrative hearing pursuant to section 3301 et seq. Bell's petition and amended petition sought only the procedural safeguards of the Public Safety Officers Act. Any materials relating to Bell's personnel and background records were not relevant in determining his temporary employment status and its legal effect. The order was properly dismissed.

Judgment affirmed.

FOOTNOTES

1.  All references are to the Government Code unless otherwise specified.

2.  Our conclusion Bell was not a “regularly” employed peace officer once again obviates the need to decide “whether the recently enacted ‘Bill of Rights' for public safety officers is binding on a chartered city.” (Heyenga v. City of San Diego, 94 Cal.App.3d 756, 758, 156 Cal.Rptr. 496, 497.)

STANIFORTH, Associate Justice.

GERALD BROWN, P. J., and COLOGNE, J., concur.