Steen v. Board of Civil Service Commissioners

SHENK, J., Dissenting.

The majority opinion changes a long standing interpretation of the Los Angeled City Charter provisions. In effect it amends the charter in two very substantial respects without a vote of the people. It expressly disapproves decisions in this state which have been followed by the administrative bodies of the city without any change in the charter in the interim.

Section 112% of the charter provides that-a claim for compensation and demand for reinstatement must be filed within ninety days following the date on which it is claimed that the employee was “first illegally, wrongfully or invalidly laid off, suspended or discharged.” Under the charter the suspension or discharge is effective immediately upon notice thereof given by the employing board. The claim of the discharged employee has matured at that time and it is complete whether or not he has applied for an investigation by the commission. -The discharge is not suspended pending action on his request for investigation. The case of Campbell v. City of Los Angeles, 47 Cal.App.2d 310 [117 P.2d 901], applied the language of the charter in conformity with its plain meaning. The contention in that case was that the demand for investigation under section 112a might be a substitute for the requirement of section 112%. The court pointed out the respective objectives of sections 112a and 112%, the former as a procedure by which the board might on its own investigation reinstate the employee or the employee might request an investigation; the latter as the only authority .pursuant to which the employee could prosecute his “demand for reinstatement,” and.that the period of limitation commenced when the charter said it did, namely, from the date when the employee was discharged by the employing board.

The provisions of section 112a of the charter, which have been construed by the majority as requiring a hearing in the nature of a formal judicial trial, are that upon written application of the discharged civil service employee the board “shall proceed to investigate the grounds for such removal, discharge or suspension. If after such investigation said board finds, in writing, that the grounds stated for such removal, discharge or suspension were insufficient or were not sustained, and also finds in writing that the person removed, discharged or suspended is a fit and suitable person to fill the position from which he was removed, discharged or suspended, said board shall order said person so removed, discharged or suspended to be reinstated or restored to duty. The order . . . shall be . . . final and conclusive; ...”

In the case of Krohn v. Board of Water & Power Commrs., 95 Cal.App. 289 [272 P. 757], decided in December, 1928, the court traced the history of the provisions concerning the rights and duties of a discharged employee, culminating in the adoption of the provisions of section 112a of the present charter. In that case a request for an investigation was filed. Without a hearing and after an examination of the investigator’s report the board of Civil Service Commissioners made its order that the discharge was not sustained and that the employee be restored to duty. The employing board, the Board of Water and Power Commissioners of the City of Los Angeles, refused to comply with the order and the employee sought a writ of mandate in the superior court. It was therefore the Board of Water and Power Commissioners, on its appeal from the judgment directing it to reinstate the employee, which contended that pursuant to the provisions of section 112a the Board of Civil Service Commissioners had no jurisdiction to order the employee’s reinstatement without a trial or hearing. The same argument was made in that case as in this, that the word “investigate” is identical in meaning or significance with the words “hearing” or “trial”; but the court, after reviewing the history of the charter provisions arrived at a construction opposed to that declared by the majority in this case. The court pointed out that it was not until 1903 (Stats. 1903, p. 555) that legislation was enacted providing a remedy for alleged wrongful discharge of employees of the city. Section 242 of the charter was then adopted providing that no employee should be discharged “except for cause upon written charges, and after an opportunity to be heard in his own defense” in a public investigation. The commission was given power to administer oaths and secure by subpoena the attendance and testimony of witnesses and the production of books and papers. In 1905 (Stats. 1905, pp. 980, 992) the provision vesting power in the commission to administer oaths and secure attendance of witnesses and production of records by subpoena was deleted. The requirement for a public hearing on written charges remained intact until 1911, when section 241 (Stats. 1911, pp. 2051, 2116) was amended to omit the provision for discharge only “for cause upon written charges, and after opportunity to be heard in his own defense” and for a public investigation. That amendment substituted a provision that no employee may be discharged “except for cause,” and that the commission may on its own motion or on the employee’s request should investigate the grounds for removal. The court noted that all of the words connoting a trial or hearing or investigation of any public nature were eliminated by the amendments, and that a change in the requirements must thereby have been intended. It said: “It is therefore evident that the difference between the procedure and powers skeletonized by the provisions of the 1903 charter, and that of the present charter, is radical and significant,” and that the difference pointed distinctly to an intention on the part of the people of the city and of the Legislature to abandon the former requirement of a trial in the nature of a judicial hearing and to substitute an “investigation” on the application of the discharged employee. The court followed time-honored decisions of other jurisdictions wherein it had been held that similar language did not contemplate a public hearing or trial. The administrative bodies of the city of Los Angeles have followed and its civil service employees have been governed by the law as thus- laid down for almost seventeen years. The case of Cronin v. Civil Service Com., 71 Cal.App. 633 [236 P. 339], distinguished by the majority, was in harmony with the Krohn case in that the court declined to read into the charter something that was not placed there by the framers.

There is no reason why a different construction of the charter provisions should be made when a discharged employee is the one aggrieved by the order of the commission. If it be conceded, in accord with the declarations of the court in Boyd v. Pendegast, 57 Cal.App. 504 [207 P. 713], that the employee is entitled to be heard if he request an investigation, he is entitled to no more than an opportunity to produce his evidence. As pointed out in that case anything more than that is within the discretion of the board. By the allegations of the petition in the present case it appears that the commission afforded to the petitioner that opportunity, and that he produced no evidence nor made any statement in his own behalf. The petitioner does not question that the charges upon which his discharge was grounded were sufficient to constitute cause for discharge.

The statement in the majority opinion that the board “must find in writing whether or not the grounds for the discharge are sufficient,” inserts in the charter a requirement that is not there and that was apparently ex industria excluded. It is only when there is a restoration to duty that findings, are required.

The rights of the civil service employees are such as are provided by the charter of the city. No constitutional rights are infringed by the method there provided for their suspension or discharge. Their primary duty is to serve the municipality faithfully. Proper discipline among the employees of the city is necessarily implied and no proprietary rights are involved. (In re Carter, 141 Cal. 316, 320 [74 P. 997]; French v. Senate of Cal., 146 Cal. 604 [80 P. 1031, 2 Ann.Cas. 756, 69 L.R.A. 556]; Cline v. Superior Court, 184 Cal. 331 [193 P. 929]; Garvin v. Chambers, 195 Cal. 212 [232 P. 696] ; Good v. Common Council, 5 Cal.App. 265 [90 P. 44]; Boyd v. Pendegast, supra; Ludolph v. Board of Police Commissioners, 30 Cal.App.2d 211, 216 [86 P.2d 118].)

If the people of the city of Los Angeles desire a change in the law governing the rights and remedies of its civil service employees, that change should come through legislative processes. The allegations in the petition in my opinion show a compliance with the present charter provisions, and the. judgment of the trial court should be affirmed.

Edmonds, J., and Spence, J., concurred.

Respondent’s petition for a rehearing was denied July 26, 1945. Shenk, J., Edmonds, J., and Spence, J., voted for a rehearing.