Sojka v. City of Pasadena

Opinion

In July of 1969, respondent city promulgated a document announcing “a promotional examination for Helicopter Pilot Assignments.” It also therein stated that one such position was to be filled by a police agent

The court received evidence, oral and documentary, deeming the matter distinguishable from administrative mandamus and, also, in view of the allegations asking for declaratory relief. Some 20 findings of fact were made from which certain conclusions of law were drawn. In material part the court found that the document announcing the examination was ambiguous; that the position of “Helicopter Pilot” therein referred to is an “assignment” and not a “promotion” since it involved no change in rank; and that the announced examination to select applicants for such position was, accordingly, not a promotional examination and, therefore, not governed by the “rule of three.” The foregoing was based on other express findings, evidentiary in nature, declaring in part that the determination that helicopter duty was an “assignment” was made at the administrative level by designated officials of respondent city; that potential applicants for the announced position had been advised by respondent’s police department that candidates would be appointed through administrative selection; and that officers assigned as helicopter pilots can be removed from such duty at will and without cause (as in the case of officers assigned to motorcycle duty) whereas an officer holding a certain rank can be demoted or removed only for cause. The court made this additional finding: “At the time of the examination and at all times up to trial on the issues, no additional pilot pay had been determined. Recommendations of the Director of Personnel and City Manager were for a flat monthly payment of $150 in addition to regular salary.”

A very substantial portion of the foregoing resulted from the case put on by respondents. Thus, at the opening session appellant endeavored to show that the police agents finishing second and third, respectively, adhered to the same view alleged by him in his pleadings, to wit, that the rule of three would control; it was argued that this extrinsic evidence was admissible in light of the ambiguity inherent in the document announcing the

Appellant first contends that promotional rules applied to the selection of the position regardless of whether it be classified as an assignment or a promotion. In this connection the premise is a sound one that local charter provisions for the making of appointments in civil service are mandatory and controlling (10 Cal.Jur.2d, Civil Service, § 15); and there is the further valid premise that “the ascertainment of fitness and merit for office is the primary objective of the civil service system, and a competent procedure for promotion is an essential part thereof.” (Almassy v. L. A. County Civil Service Com., 34 Cal.2d 387 , 404 [ 210 P.2d 503 ].) To that end, judicial notice being taken thereof (Evid. Code, § 451, subd. (a)), section 802 of the respondent city’s charter provides that all appointments and promotions of its officers and employees shall be made on the basis of merit, their fitness to be demonstrated by appropriate examination or other evidence of competence. Accordingly, “when an administrative agency acts in excess of, or in violation, of the powers conferred upon it, its action thus taken is void.” (Ferdig v. State Personnel Bd., 71 Cal.2d 96 , 104 [ 77 Cal.Rptr. 224 , 453 P.2d 728 ].) To the same general effect are decisions of the United States Supreme Court, including Service v. Dulles, 354 U.S. 363 [ 1 L.Ed.2d 1403 , 77 S.Ct. 1152 ] which states “that regulations validly prescribed by a government administrator are binding upon him as well as the citizen, and that this principle holds even when the administrative action under review is discretionary in nature.” (354 U.S. at p. 372 [1 L.Ed.2d at p. 1410].)

To the foregoing line of argument respondents in their brief say nothing, limiting their reply to their assertion that the trial court properly found that the document or bulletin announced an examination from which an “assignment” to the post of helicopter pilot would be made. Emphasized by them is their own construction of the document, together with the principle they claim applies, that in choosing between various constructions of an administrative regulation, the ultimate criterion is the interpretation thereof by the promulgating authority, citing Udall v. Tallman, 380 U.S. 1 [ 13 L.Ed.2d 616 , 85 S.Ct. 792 ], However, that case, as do other decisions therein

The quotes around the term “contract” are given by respondents who apparently do not question the fact that appellant’s employment by respondent city for an alleged period in excess of seven years is contractual in nature. Accordingly, when asked to adjudicate pension claims, the courts have repeatedly declared that “The charter provisions relative to pensions are a part of the contract of employment between the city and the employees of the fire and police departments. [Citations.]” (City of Long Beach v. Allen, 143 Cal.App.2d 24 , 27-28 [ 300 P.2d 349 ].) We further assume, if only because of the nature of the objection to the proffered proof, that the bulletin or document in question constituted but another offer, contractual in nature, of further employment at a higher rate of pay. In this connection, it is most significant that respondents concede that the document here involved is one of “adhesion.” In Frates v. Burnett, 9 Cal.App.3d 63 [ 87 Cal.Rptr. 731 ], such type of contract is described as “an agreement not resulting from the freedom of bargaining but one which permits the employee only to adhere to or reject it. [Citation.] ‘[A] party hired under such a contract lacks the economic strength to secure a change in the language of the document by negotiation, and, therefore, any ambiguity in the instrument should be resolved against the draftsman, and any ambiguous provision should be construed in favor of the party adhering to the instrument.’ [Citation.]” (Pp. 69-70.)

It is not contended that extrinsic evidence was inadmissible in light of the document’s ambiguity, which latter fact the court expressly found; rather, respondents argue that the proffered proof was not forthcoming from parties to the “contract.” This, we believe, is not quite correct. Although not parties to the instant proceeding, the persons finishing number two and three on the examinations were parties to the “contract” in suit, having accepted the city’s offer to compete for the same position offered by taking the same examinations and while holding the same rank (police agent) as that of appellant. The offer of proof recited that the wit

If, however, they were not parties to the instant litigation involving a contract to which they were also parties, it is useless for appellant to argue that their testimony was admissible on his case in chief because they were members of the same class. Crestview Cemetery Assn. v. Dieden, 54 Cal.2d 744 , 754 [ 8 Cal.Rptr. 427 , 356 P.2d 171 ], cited for his position, by no means goes that far; to the contrary, it follows the rule established by earlier cases which allows proof of the construction placed upon ambiguous instruments by the parties thereto before ány controversy has arisen. Here, of course, no litigable controversy existed between appellant’s fellow agents at the time of trial. But since the court permitted respondent city’s officers and employees to testify as to their interpretation of the bulletin or announcement resulting in the foregoing determinations, the question arises whether the rejection of appellant’s proffered testimony, at least on rebuttal, constituted an abuse of discretion. In fairness to the trial court, it appears that no such rebuttal testimony was offered although it might have been considered in proof of the allegations found in paragraph XIII of the petition that respondents proceeded without and in excess of their jurisdiction by not adhering to the rules or data contained in the examination announcement. On hearing of the motion for new trial, the court apparently had certain misgivings as to this phase of the case: “The Court: As a matter of law, having announced in this announcement that the rule of three would prevail and would be the rule of selection, maybe [respondents] are bound by it. Mr. Schneider: Our position, of course, your Honor, is that although they may have pled it, they simply didn’t prove it.”

If, as must be concluded, there was a failure of proof as to the critical matters above alleged, any accusing finger should be pointed unerringly to appellant himself who, though presumably available, declined to take the witness stand. Clearly, as a party to both the instant proceeding and the document (contract), he was competent to testify as to his interpretation of its ambiguous contents; instead, he attempted to elicit such testimony from fellow agents who also competed in the examination. A possible reason for this tactical (and unfortunate) decision may be gleaned from appellant’s first point on this appeal. Such assignment improperly asserts that as a matter of law respondents were bound by the rule of three since reference thereto was made in the announcement of the examination. (There is, in our view, a palpable inconsistency between this assertion and