Wilkerson v. City of Placentia

Opinion

Plaintiff sought a writ of mandate compelling defendant City of Placentia to pay to him lost wages and benefits for the period of his wrongful discharge. The superior court denied the petition, and this appeal followed.

Plaintiff had been hired by the defendant city August 19, 1974, as a fire engineer with the city fire department. He was to be a probationary employee for one year. Before the year was up, he was summarily discharged following his arrest for alleged theft of fire department or city property. These charges were later dismissed by the district attorney after the case had been filed and after pretrial suppression motions had been granted by the court.

Plaintiff’s notice of discharge specified that it was under rule XII of the Personnel Rules of the City of Placentia. These rules were part of a memorandum of understanding (referred to as the MOU) which was adopted by the city and plaintiff’s union in 1973. This MOU provided discharge procedures for probationary employees subject to review under the grievance procedures allowing for an unresolved dispute to be

Pursuant to these provisions, the city and the union agreed to a single arbitrator hearing and making the binding decision in the matter of the termination of Wilkerson. After dragging through some evidentiary hearings, the arbitrator ruled that the discharge was arbitrary and capricious and he awarded reinstatement to the job. He specifically declined to rule on the issue of back pay since that was beyond his jurisdiction. The hearings that resulted in this decision had covered several days during October, November, and December 1975 and were, according to the arbitrator’s decision, full evidentiary hearings with counsel and the parties and witnesses present and participating. The interim decision of the arbitrator to reinstate the job came toward the end of December, just in time to get plaintiff back on the job before the department was transferred as a whole to the California Department of Forestry.

Plaintiff, through his counsel, then demanded his back pay and all his lost benefits. The city denied the request on the basis that the arbitrator had reinstated plaintiff without back pay. Several rounds of demand and rejection transpired before plaintiff came armed with a new basis for his demand, which basis was our decision in Fugitt v. City of Placentia (1977) 70 Cal.App.3d 868 [ 139 Cal.Rptr. 123 ], Fugitt— which involved some of Wilkerson’s coemployees in the same type of dispute—held that once the arbitrator finds that a discharge was arbitrary and capricious under the MOU proceedings then it is incumbent on the city to either try and impose a lesser discipline which would not have been subject to the grievance procedure or reinstate the plaintiffs with back pay for the period during which they were wrongfully deprived of their positions. The city—undaunted—responded that, even if Fugitt was final and binding, the city was still rejecting Wilkerson’s claim because it had and did even now exercise its lawful right to impose a lesser discipline of reinstatement with loss of pay and benefits and that that decision was not one subject to the grievance procedure. Further requests and demands were made, but to no avail, and this petition for writ of mandate followed. In the petition for the writ, Wilkerson asked for reinstatement of pay and benefits and attorney fees and general damages.

In the development of this area of the law, it was first determined that a public entity employer cannot discharge a permanent employee without full substantive and procedural due process. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [ 124 Cal.Rptr. 14 , 539 P.2d 774 ].) This because the employee, by virtue of his employment, holds a recognized property interest which is protected by due process.

It has also been determined that in cases of imposition of discipline, in the nature of suspension for more than a “short term,” permanent employees are likewise entitled to at least minimal due process in the nature of a procedure that would apprise the employee of the proposed action, the reasons therefor, provide them with a copy of the charges including materials on which the action was based, and the right to respond either orally or in writing to the authority imposing the discipline. (Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552 [ 150 Cal.Rptr. 129 , 586 P.2d 162 ].) This, again, is because the employee has the expectancy of earning his salary free from arbitrary administrative action. “Suspension of a right or of a temporary right of enjoyment may amount to a ‘taking’ for ‘due process purposes.’ (Goss v. Lopez (1975) 419 U.S. 565 , 572-576 [ 42 L.Ed.2d 725 , 733-736, 95 S.Ct. 729 ]; Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803 , 811 [ 132 Cal.Rptr. 477 , 553 P.2d 637 ].)” (Civil Service Assn. v. City and County of San Francisco, supra, 22 Cal.3d 552 , 560.)

In 1979, the concept of due process as it relates to probationary employees was considered in Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340 [ 159 Cal.Rptr. 440 ]. In that case probationary police officers were discharged for misconduct after a citizen complaint of unsworn charges had been received by the police department. The matter had been referred to the department’s internal affairs bureau and an investigation started which lasted approximately two and one-half months. Upon a few hours’ notice the probationary officers were summoned to the chiefs office and told that he intended to dismiss them and that the purpose of the meeting was to afford them an opportunity to address the charges against them and give reasons why they should not be discharged. At the end of the meeting, they were terminated effective that day for “misconduct.” The Court of Ap

Although both parties in their briefs appear to go off on arguments of the issue of whether a public entity employer can discipline by indefinite suspension for alleged misconduct without first affording some procedural due process, on careful analysis we do not have to reach that issue.

Defendant city approaches the problem as one that is resolved by our Fugitt opinion, i.e., that the arbitration provisions govern; that they go to the determination of whether or not the discharge was arbitrary or capricious; and, if so, then the city could impose a lesser discipline such as suspension without pay which does not require procedural due process.

Plaintiff approaches the problem from the liberty interest tack, i.e., there was a liberty interest. It was violated by the discharge which was without any due process. Therefore, it comes within the Lubey doctrine. Therefore, no matter what the city tried to do in the way of ex post facto imposition of lesser discipline, plaintiff is entitled to his back pay for the period of time of wrongful discharge.

We find the plaintiff’s position the better taken, and, in accordance with the Lubey decision, hold that plaintiff, as a probationary employee

The trial court erred when it determined the case on the findings of fact and conclusions of law set forth above, and particularly its conclusions that the case is controlled by Fugitt and that no liberty interests are involved.

In view of our analysis and conclusion expressed above, it appears that Fugitt is neither applicable nor controlling. Fugitt did not consider the liberty interest problem, because it was not raised. There, as here, the petitioners were probationary employees and were terminated arbitrarily and capriciously. Petitioners then filed their petition for writ of mandate and the city’s demurrer was sustained. In Fugitt, we only held that it was an abuse of discretion for the trial court to sustain, without leave to amend, a demurrer to the petition filed in that case. Fugitt was concerned only with the MOU proceedings and the rights generated thereunder—not constitutional liberty interest rights. When the arbitrator found the discharge of petitioners was arbitrary and capricious, he exhausted his jurisdiction and it was then incumbent on the city to either try to impose a lesser discipline which would not have been subject to the grievance procedure, or reinstate petitioners with back pay for the period during which they were wrongfully deprived of their positions. Fugitt is still good law, but it did not address the issue with which we are concerned here.

Having concluded as we have, to what extent is plaintiff entitled to relief? California courts have consistently held that a public employee who has been deprived unlawfully of his position is entitled to recover the full amount of the salary which accrued to him from the date of his unlawful discharge to the date of his reinstatement, and mandamus is a proper vehicle to compel payment of back salary. (Fugitt v. City of Placentia, supra, 70 Cal.App.3d 868 ; Wylie v. State Personnel Board (1949) 93 Cal.App.2d 838 [ 209 P.2d 974 ]; Pennycook v. Boyle (1915) 26 Cal.App. 301 [ 146 P. 895 ].) In plaintiff’s case, the period of back pay and benefits is determined to be from the date of his “discharge/suspension” to December 30, 1975, when he was reinstated. The authorities cited above and Currieri v. City of Roseville (1975) 50 Cal.App.3d 499 [ 123 Cal.Rptr. 314 ], further illustrate the requirement that the wrongfully discharged or suspended

Finally, plaintiff argues for his attorney fees under either Government Code section 800 or under Code of Civil Procedure section 1021.5. He is not entitled to such fees under Government Code section 800, for that section is applicable only to civil actions appealing from a finding or award or other determination of an administrative proceeding. But plaintiff is not appealing any finding or award or other determination of the arbitrator—he seeks a writ of mandate compelling back pay from his employer because of disciplinary action taken against him by that employer contrary to his constitutional rights. No appeal from the administrative hearing is involved.

Should plaintiff recover fees under Code of Civil Procedure section 1021.5? This is the so-called “private attorney general doctrine” where fees may be recovered by a successful party. Defendant argues that plaintiff is not the successful party, and, therefore, his request is premature. Only if he became the successful party by a reversal of the trial court and by issuance by the trial court of the writ, could he successfully move for such fees, if he could show his coming within Code of Civil Procedure section 1021.5. But, defendant argues, even then plaintiff should not recover attorney fees because the decision would not affect the general public, or a large class of persons, nor would it involve the vindication of an important right affecting the public interest. Defendant further claims that plaintiff is not arguing for a change in the law

The judgment is reversed and remanded for further proceedings consistent with the views expressed in this opinion.

Kaufman, Acting P. J., and McDaniel, J., concurred.