Healdsburg Police Officers Ass'n v. City of Healdsburg

Opinion

Defendants appeal from a peremptory writ of mandate and orders of contempt issued thereon.

The present action was brought by respondents, the Healdsburg Police Officers Association and its nine individual members, against appellants, the City of Healdsburg, five city councilmen and the city manager. The facts reveal that three city police officers were summarily discharged by

It is, of course, a recognized general proposition that a public officer or employee who serves at the pleasure of the appointing authorities may be terminated without cause and without notice and hearing (Bogacki v. Board of Supervisors, supra at p. 782; Ball v. City Council, supra at p. 141; Humbert v. Castro Valley County Fire Protection Dist. (1963) 214 Cal.App.2d 1 , 13 [ 29 Cal.Rptr. 158 ]; Cozzolino v. City of Fontana (1955) 136 Cal.App.2d 608 , 611 [ 289 P.2d 248 ]; Hackler v. Ward (1951) 105 Cal.App.2d 615 , 616-617 [ 234 P.2d 170 ]). To this general rule, however, there are several exceptions. Thus, it is firmly established that even if a public employee serves at the pleasure of the appointing authorities, he may not be dismissed from his employment for the exercise of his First and Fourteenth Amendment rights absent a showing that the restraints which the employing body would impose on the aforementioned constitutional, rights are justified by a compelling public interest (Bogacki v. Board of Supervisors, supra at p. 778; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499 , 503-505 [ 55 Cal.Rptr. 401 , 421 P.2d 409 ]; Rosenfield v. Malcolm (1967) 65 Cal.2d 559 , 562-563 [ 55 Cal.Rptr. 505 , 421 P.2d 697 ]), and in such instances the employee is entitled to a pretermination hearing (Board of Regents v. Roth (1972) 408 U.S. 564 , 569-573 [ 33 L.Ed.2d 548 , 556-559, 92 S.Ct. 2701 ]; Perry v. Sindermann (1972) 408 U.S. 593 , 599 [ 33 L.Ed.2d 570 , 578-579, 92 S.Ct. 2694 ]). The right to a hearing must likewise be afforded when a public officer employed at will claims that he was dismissed because he exercised a statutory right to join and participate in the activities of an employee organization (Ball v. City Council, supra at pp. 142-144; see also: Fibreboard Corp. v. Labor Board (1964) 379 U.S. 203 , 217 [ 13 L.Ed.2d 233 , 242, 85 S.Ct. 398 , 6 A.L.R.3d 1130 ]). Finally, the right to a pretermination .hearing may be founded on the existence of rules, regulations, understandings or practices, promulgated, fostered and carried out by agency officials (Perry v. Sindermann, supra at p. 602 [33 L.Ed.2d at p. 580]; Perea v. Fales (1974) 39 Cal.App.3d 939 [ 114 Cal.Rptr. 808 ]).

In discussing the causes in a reverse order we conclude that under the circumstances here present respondents were entitled to a pretermination hearing on each of the aforestated grounds. First, the Manual,

Thirdly, as an alternative cause for issuance of the peremptory writ of mandate, it' was also claimed that appellants’ failure to provide notice and hearing violated respondents’ constitutional right to due process guaranteed by the Fourteenth Amendment to the Constitution. It is now well settled that the requirements of procedural due process apply to the deprivation of liberty and property protected by the Fourteenth Amendment. When protected property interests are implicated, the right to some kind of prior hearing is a constitutional requisite. As emphasized in cases, the property interests which are subject to procedural safeguards are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source, i.e., statute or regulation (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 , 207 [ 124 Cal.Rptr. 14 , 539 P.2d 774 ]; Board of Regents v. Roth, supra at pp. 569-570, 577 [33 L.Ed.2d at pp. 556-557, 560-561]; Perry v. Sindermann, supra at p. 601 [33 L.Ed.2d at pp. 579-580]). It follows that the cited provisions of the Manual, a de

Two, appellants’ contention must be rejected upon the further grounds that respondents’ right to a hearing has accrued on the independent basis of the violation of the employees’ organizational statute and also as a matter of constitutional law. As discussed before, property interests subject to procedural due process protection are not limited by a few rigid, technical forms. Property within the meaning of the Fourteenth Amendment denotes a broad range of interests that are or can be secured by rules or mutually explicit understandings—such as those presented in the instant case.

Appellants’ alternative argument that the Manual in controversy was not properly considered by the trial court because a new manual promulgated in 1974 was in effect which by silence repealed the hearing

We are satisfied that the authorities cited by appellants are distinguishable from the case at bench. Thus, Bogacki v. Board of Supervisors, supra, upon which appellants primarily rely, is at variance with the case at hand in various respects. In Bogacki, there were no specific rules and regulations expressly granting the employee the right to a hearing before his dismissal; the discharged employee was nevertheless afforded a hearing before the county board of review; and the case was determined on the basis that the petitioner did not sustain the burden of proof that he had been discharged for the exercise of his First Amendment rights as he claimed. The other case, Hackler v. Ward, supra, also presents a different factual situation. In Hackler, the court merely held that a contract of employment for a fixed term was invalid as against the state law which granted the general law city the power to terminate the employment at pleasure. By contrast, in the instant case the validity of the Manual is not predicated on a contractual theory but, rather, on the basis of equitable estoppel which, as spelled out before, runs counter to and abrogates the ultra vires doctrine. Besides, in the light of the recent development and enlargement of constitutional principles relating to procedural due process (Arnett v. Kennedy (1974) 416 U.S. 134 [ 40 L.Ed.2d 15 , 94 S.Ct. 1633 ]; Board of Regents v. Roth; Perry v. Sindermann; Skelly v. State Personnel Bd, all supra), the continued validity of Hackler is highly questionable.

Appellants’ second major attack on the trial court’s rulings is founded on a series of alleged procedural errors. Of these only two contentions require consideration: one, that the peremptory writ of mandate and the contempt orders issued in its enforcement cannot stand because the writ was not preceded or followed by a judgment; two, that even if the peremptory mandate may be considered as a judgment, it should be

As far as appellants’ first argument is concerned, we note that by statutory definition “A judgment in a special proceeding is the final determination of the rights of the parties therein” (Code Civ. Proc., § 1064). In the case at bench the writ of mandate contained the final determination of the rights of the litigants; therefore, it constituted a judgment within the meaning of the statute. In accordance therewith Judge Keane, who conducted the contempt proceedings, explicitly found that the writ itself was the judgment. But, in addition, in opposing ■respondents’ motion to dismiss the appeal, appellants themselves took the position that the writ should be regarded as the judgment rendered in the case. Under these circumstances appellants’ inconsistent claim raised on appeal cannot be heard.

In reply to appellants’ second contention, we observe that as a general rule findings of fact are required in a mandamus proceeding if one of the parties requests such findings (Healy v. Stationers Corp. (1964) 228 Cal.App.2d 601 , 603 [ 39 Cal.Rptr. 679 ]). However, it is equally well settled that where the only question submitted to the court is a question of law, findings are unnecessary (Applegate Drayage Co. v. Municipal Court (1972) 23 Cal.App.3d 628 , 635 [ 100 Cal.Rptr. 400 ]; Johnston v. Security Ins. Co. (1970) 6 Cal.App.3d 839 , 844 [ 86 Cal.Rptr. 133 ]). The material issues in the case at bench are undisputed. Appellants concede that respondents were discharged in a summary fashion without notice and hearing. The contents of the Manual according a right to hearing is likewise beyond controversy. The issues here presented, therefore, were legal questions which could be resolved without specific findings of fact and conclusions of law.

The remaining contentions of the parties require just a short discussion. Appellants’ assertion that ordering reinstatement with back pay without the requisite offset compensation was erroneous is not borne out by the law or by the record. It is axiomatic that the burden of proof is on the party whose breach caused damage, to establish matters relied on to mitigate damage (Steelduct Co. v. Henger-Seltzer Co. (1945) 26 Cal.2d 634 , 654 [ 160 P.2d 804 ]). Appellants here failed to carry the burden of proof by showing that during their absence respondents did make or could have made earnings which could have been considered in mitigation of damages. Respondents’ claim to attorneys’ fees is also

We do agree with appellants, however, that the trial court erred in ordering any pretermination hearings to be conducted before a hearing officer on the staff of the Office of Administrative Procedure of the State of California and in accordance with the procedures outlined in chapter 5 of division 3 of title 2 of the Government Code.

The nature and form of the hearing is an issue which was not litigated below. The single issue was simply whether respondents were entitled to a pretermination hearing.

The judgment (writ of mandate) is modified by striking the first two sentences of paragraph 2) of page 2 thereof. As so modified, the judgment and the orders of contempt issued thereon are, and each is, affirmed.

Taylor, P. J., and Rouse, J., concurred.