Gilmore v. Personnel Board
Gilmore v. Personnel Board
Opinion of the Court
Petitioner was dismissed by the State Personnel Board from his civil service position as a drivers’
Appellant contends that the Personnel Board proceeded in excess of its jurisdiction and abused its discretion in dismissing him.
On November 17, 1930, the Department of Motor Vehicles employed petitioner as a drivers’ license examiner. He attained permanent civil service status in that position. When petitioner was first employed, and for a number of years thereafter, the department did not require examiners to wear a uniform. On August 29, 1938, the director of the department issued an order which provided that all examiners were to “provide themselves” with a uniform of the military type, as specified in the order, by November 1, 1938. Petitioner purchased a uniform of the specifications stated in the order, and from November 1, 1938, until October 28, 1943, he wore a uniform which complied with the specifications. On October 28, 1943, the director issued a bulletin which was to the effect that thereafter the examiners would not be required to wear a uniform. The bulletin stated that the reason for discontinuance of the requirement was that it was impossible (as a result of the shortage of material caused by the war) for examiners to secure replacements or to maintain uniforms in a satisfactory condition. The bulletin also stated that examiners must wear a badge when on duty; and that when “uniforms are resumed, a distinctly different type may be required.”
On June 17, 1947, the director issued a memorandum which was to the effect that examiners would be required to wear a uniform, and that notice would be given before such an order was made. In that memorandum, the examiners were requested to supply themselves with, and to wear, uniform clothing as specified in the memorandum. On October 19, 1954, the director issued an order which provided that, effective July 1, 1955, all examiners “will wear” the regulation dress while they were on duty. The regulation dress, as specified in the order, included a two-piece business suit of 12-ounce slate gray gabardine, white shirt, blue tie, blue or black socks, and black shoes. The order provided that it was optional as to where the clothing was to be purchased; that a certain store in Los Angeles had arranged to have the suits available by March 1, 1955; and that the approximate price for the two-
On August 11, 1955, the director issued an order in which he stated that September 1, 1955, would be the effective date on and after which regulation dress would be required.
Petitioner was on vacation the first five days of September. On September 6, 1955, he reported for duty, and at that time he was wearing a blue gabardine suit. He told the manager that he had not ordered a uniform. The manager told petitioner that he was “on suspension.” On September 9, 1955, a notice of punitive action was served on petitioner. The notice stated that petitioner was suspended “without pay,” from service in his position, for a period of three days, commencing September 6, 1955, and terminating September 9, 1955, and that the causes for his suspension were insubordination, wilful disobedience, and other failure of good behavior or acts during duty hours which were incompatible or inimical to the public service, as set forth in subdivisions (f), (p), and (s) of section 19572 of the Government Code,
On September 19, 1955, petitioner reported for duty, and at that time he was wearing a blue gabardine suit. The manager told petitioner that he was “being suspended” for 10 days.
On September 19, 1955, a notice of punitive action (regarding the suspension of September 12) was served on petitioner. The notice was similar to the previous notice, except that the date stated therein, as the date on which petitioner had failed to wear the regulation gray gabardine suit, was September 12, 1955, and the period of suspension was five days, commencing September 12, 1955, and terminating September 16, 1955; and except that the notice referred to the previous suspension and the reasons for such suspension. (On September 23, 1955, a copy of the notice was filed with the Personnel Board.)
On September 21, 1955, petitioner filed answers to the notices which were served on him on September 9 and September 19. In his answers petitioner alleged, among other things, that he had “at all times, made known to his superior his willingness to wear such uniform, provided the cost of furnishing same was not passed on to” him; and that he had inquired as to whether the department would furnish the regulation dress, or whether he would be reimbursed for the cost of furnishing the regulation dress, and he had not received an answer to his inquiries. In his answer to the notice which was served on him on September 19, petitioner requested an early hearing of the matter.
On October 3, 1955, petitioner telephoned the manager of the department and said that he (petitioner) was ill and he could not return to work on that date. On October 3, 1955, a notice of punitive action (regarding the suspension of September 19) was served on petitioner. The notice was similar to the previous notices, except that the date stated therein, as the date on which petitioner had failed to wear the regulation gray gabardine suit, was September 19, 1955, and the period of suspension was 10 days, commencing September 19, 1955, and terminating September 30, 1955; and except that the notice referred to the two previous suspensions and the reasons for such suspensions. (On October 4, 1955, a copy of the notice was filed with the Personnel Board.)
On October 18, 1955, petitioner reported for duty, and at that time he was wearing a blue gabardine suit. The manager inquired whether petitioner intended to buy a uniform, and petitioner replied, “Not unless I am compelled to.” The manager told petitioner to “go home.”
On October 31, 1955, a notice of punitive action was served on petitioner. The notice provided that petitioner was discharged from duty and that the causes for his discharge were insubordination, wilful disobedience, and other failure of good behavior or acts during duty hours which were incompatible with or inimical to the public service, as set forth in subdivisions (f), (p), and (s) of section 19572 of the Government Code, which causes were more particularly set forth in the notice. The notice referred to the suspensions of September 6, 12, and 19, and the causes therefor, and the notice stated that when petitioner reported for duty on October 18, 1955, he failed and neglected to wear the regulation gray gabardine suit. The effective date of petitioner’s discharge, as stated in the notice, was October 18, 1955. (On November 2, 1955, a copy of the notice was filed with the Personnel Board.)
On November 14, 1955, petitioner filed an answer to the notice of October 31. The allegations of that answer were in substance the same as the allegations in his answer regarding the first suspension. Also, in the answer to the notice of October 31, he stated, in effect, that an investigation regarding the three notices of suspension had been set for hearing on November 22, 1955; and he requested that the Personnel Board consolidate the hearing regarding the notice of dismissal with the hearing regarding the three notices of suspension. Apparently the request was granted.
On November 22, 1955, a hearing on the four notices was held before a hearing officer of the Personnel Board. Petitioner and his counsel attended the hearing, and evidence was received, and the matter was submitted for decision.
On December 16, 1955, the hearing officer filed a proposed decision which was to the effect that the punitive actions against petitioner be revoked and that petitioner be returned to his position.
On January 7, 1956, the Personnel Board rejected the proposed decision of the hearing officer and ordered that the
On May 18, 1956, the board made detailed findings of fact which were in substance the same as the facts hereinabove set forth regarding the employment, the orders, the conduct of petitioner, the suspensions, the discharge, and the hearings. The board also found, among other things, that the requirement that the examiners wear the regulation dress is reasonably related to the powers and duties of the department; and that the actions and conduct of petitioner, as set forth in the decision, constitute “insubordination, wilful disobedience, and other failure of good behavior and acts during duty hours which are incompatible with and inimical to the public service within the meaning of subdivisions (f), (p) and (s) of Section 19572 of the Government Code”; and that “the causes, and each of them, for which the punitive actions were imposed . . . are, separately and severally, sufficient to support the punitive actions taken.” The decision of the board was that the punitive actions against petitioner were sustained; that petitioner was suspended “without pay” from his position for a period of three days, effective September 6, 1955, and for a period of five days, effective September 12, 1955, and for a period of ten days, effective September 19, 1955; and that petitioner was dismissed from his position, effective October 18, 1955.
On August 15, 1956, petitioner demanded reinstatement in his position and payment of back salary from September 6, 1955, to date of reinstatement.
On August 17, 1956, petitioner sought a writ of mandate, in the superior court, compelling the board to reinstate him in the position of examiner. The petition alleged that the punitive actions suspending and discharging petitioner were discriminatory and invalid in that : (1) the department did not have authority to compel him to purchase uniforms at his own expense as a condition of continued employment; (2) there is no reasonable relation between the prescribed dress and the efficient discharge of the duties of the department; (3) the evidence was insufficient to sustain a finding that petitioner was wilfully disobedient, insubordinate, and had committed acts incompatible with and inimical to the public service; (4) the findings are “so contrary to the evidence as to constitute an abuse of discretion”; and (5) petitioner was subjected to four different penalties for the commission of a single act. An alternative writ was issued.
Section 1094.5 of the Code of Civil Procedure pertains to a review of an administrative order or decision in a mandamus proceeding. Subdivision (b) of that section provides: “The inquiry in such a case [mandamus proceeding] shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.”
Appellant contends that the Personnel Board proceeded in excess of its jurisdiction in dismissing him. He argues that the Director of Motor Vehicles had no statutory or implied power to require appellant to wear the regulation clothing, and therefore the order of the director was invalid and the board proceeded in excess of its jurisdiction in dismissing him for his failure to comply with the order of the director.
Section 105 of the Vehicle Code provides, in part: “The department [of motor vehicles] shall be under the control of . . . the Director of Motor Vehicles . . . .” Section 106 of that code provides, in part:-“The director [of motor vehicles] may appoint . . . (b) Such . . . employees as may be necessary for the proper discharge of the duties of the department.” Section 267 of that code provides, in part: “Upon application for an original [operator’s or chauffeur’s] license the department shall require an examination of the applicant and shall make provision therefor before an officer or employee or authorized representative of the department . . . .” Section 268 of that code provides, in part: “The examination shall include a test of the applicant’s knowledge and understanding of the provisions of this code governing the opera
In Dickey v. Raisin Proration Zone No. 1, 24 Cal.2d 796 [151 P.2d 505, 157 A.L.R. 324], it was said, at page 810: “It is well settled in this state that governmental officials may exercise such additional powers as are necessary for the due and efficient administration of powers expressly granted by statute, or as may fairly be implied from the statute granting the powers.”
In the present case there was evidence that on several occasions, prior to the order requiring uniforms, an applicant for a driver’s license entered the car of another applicant and the two applicants went several blocks before either of them became aware that the other one was not an examiner; that it is less objectionable to husbands and fathers if their wives and daughters take driving tests with a uniformed examiner than it is if their wives and daughters take driving tests with a nonuniformed examiner; and that a uniform makes it easier to identify the examiners. The board and the court found, as above stated, that the requirement that the examiners wear the regulation dress is reasonably related to the powers and duties of the department. There was substantial evidence to support that finding.
Appellant argues further to the effect that the order of the Director of Motor Vehicles that appellant wear the regulation clothing reduced appellant’s salary by the amount of the cost of the clothing; that the order was contrary to his vested contractual right to receive his “full salary,” and therefore the order was invalid. “ The terms and conditions of civil service employment are fixed by statute and not by contract.” (Boren v. State Personnel Board, 37 Cal.2d 634, 641 [234 P.2d 981].) “It is well settled that public employees have no vested right in any particular measure of
Appellant argues further that, under the provisions of section 18850
Appellant contends that the Personnel Board denied him procedural due process of law. He argues that the director and the members of the board knew that appellant’s objections were directed to the matter of purchasing the articles of clothing at his expense; that it was apparent that appellant believed that he had the right to have the question, regarding the clothing, adjudicated by the board; that the action of the board in dismissing him, without affording him a prior opinion as to the validity of the order regarding clothing, constituted a denial of due process of law and was an abuse of discretion.
Section 19574 of the Government Code provides, in part: “The appointing power, or any person authorized by him, may take punitive action against an employee ... by notifying the employee of the action, pending the service upon him
The evidence shows that the notices of punitive action were served on appellant, and that copies of the notices were filed with the board, within the time provided by section 19574; and that appellant filed his answers within the time provided by section 19575. Under the provisions of subdivision (d) of section 19574, appellant’s answers were, in effect, appeals from the punitive action (of the appointing power) as recited in the notices. Sections 19570 to 19588 of the Government Code, which pertain to disciplinary proceedings against civil service employees of the state, do not provide, however, that an answer to a notice of disciplinary action stays further action against the employee, upon subsequent violations of the order involved, until the validity of the order is determined on the appeal. The board was not required to grant a hearing with respect to appellant’s answers to the notices of suspension. Section 19576 of the Government Code provides, as above shown, that when “an answer is filed by an employee who has been suspended without pay for ten days or less the board shall make an investigation with or without a hearing as it deems necessary . . . .” None of the suspensions, involved herein, was for a time in excess of 10 days. It appears, however, that prior to the time appellant answered the notice of
Appellant contends that the decision of the board is based on findings which are not supported by substantial evidence. The findings, so referred to, are Finding IV and part of Finding VII. Finding IV is as follows: ‘ ‘ That it has been the experience of said department, in the processing and examining of applicants for drivers’ licenses, that the effective and efficient discharge of the duties described in Paragraph III of this decision by said drivers’ license examiners is materially aided when said drivers’ license examiners are readily distinguishable by applicants for said licenses; that there have been many instances where said drivers’ license examiners have been mistaken for applicants and members of the general public by persons seeking information or waiting to be examined for said licenses; that the work of said drivers’ license examiners has been hampered by their not being readily and easily identifiable; that the efficient discharge of the duties imposed upon the department by law have been hampered by the examiners not being readily identifiable as such by applicants for licenses and by other members of the public.” Said part of Finding VII is as follows: “ [Tjhat the uniform so specified tends to make the drivers’ license examiners readily and easily identifiable and to distinguish them from the general public.” Appellant argues that the evidence showed that there were few eases of mistaken identity, that the validity of those eases was doubtful, and that the designated clothing was not sufficiently distinctive to identify examiners. The credibility of the witnesses and the weight of the evidence were matters to be determined by the board. The questions as to the experience of the department in matters regarding the identification of examiners, and the question as to the distinctive character of the designated clothing, were questions of fact for the determination of the board. The findings were supported by substantial evidence. In Shepherd v. State Personnel Board, 48 Cal.2d 41 [307 P.2d 4], it was said, at page 46: . “ [T]he factual determinations of a statewide administrative agency which derives adjudicating power from the Constitution are not subject to re-examination in a trial
Appellant contends that the evidence does not support the finding that the actions and conduct of appellant, as specified in the decision, constitute insubordination, wilful disobedience, and other failure of good behavior and acts during duty hours which are incompatible with and inimical to the public service. The questions as to insubordination, disobedience, and other behavior were questions of fact for the determination of the administrative board. The finding was supported by substantial evidence.
Appellant also contends that the board inflicted four penalties for a single offense, and that such action establishes that the board was unfair. The evidence shows that on four different occasions, when appellant reported for duty, he refused to comply with the regulation. His conduct constituted four violations and indicated persistent defiance of authority.
The judgment is affirmed.
Vallée, J., concurred.
Section 19572 of the Government Code provides, in part: “Each of the following constitutes cause for discipline of an employee, . . . (f) Insubordination. . . . (p) Wilful disobedience. . . . (s) Any other failure of good behavior or acts either during or outside of duty hours which are incompatible with or inimical to the public service. ’ ’
Seetion 18850 of the Government Code provides, in part: ‘ ‘ The board [Personnel Board] shall establish and adjust salary ranges for each class of position in the state civil service.”
Seetion 18851 of the Government Code provides: "Seasonable opportunity to be heard shall be provided by the board [Personnel Board] to any employee affected by a change in the salary range for the class of his position.”
Concurring Opinion
I concur.Petitioner’s conduct was captious and constituted insubordination. He suffered no loss of compensation and no detriment. While he was wearing his uniform he was not wearing out his blue suit.
A petition for a rehearing was denied July 14, 1958, and appellant’s petition for a hearing by the Supreme Court was denied August 13, 1958.
Reference
- Full Case Name
- BENJAMIN M. GILMORE, Appellant, v. THE PERSONNEL BOARD OF THE STATE OF CALIFORNIA Et Al., Respondents
- Cited By
- 14 cases
- Status
- Published