NELLIE BAGLEY, Plaintiff and Appellant, v. WASHINGTON TOWNSHIP HOSPITAL DISTRICT et al., Defendants and Respondents.
S. F. No. 21831
In Bank
Dec. 20, 1966
Petitioner‘s application for a rehearing was denied February 1, 1967.
65 Cal.2d 499
McComb, J., Peters, J., Tobriner, J., Mosk, J., Burke, J., and Peek, J.,* concurred.
*Marshall W. Krause, Albert M. Bendich and Arthur Wells, Jr., as Amici Curiae on behalf of Plaintiff and Appellant.
Sabraw & Avera and Fred E. Avera for Defendants and Respondents.
TOBRINER, J.—In the present case we consider once again the constitutionality of restraints imposed upon the political activities of a public employee. We once again review the factors which circumscribe the power of the government to exact as a condition of public employment a waiver of constitutional rights.
We have recently held that only a “compelling” public interest can justify the imposition of restraints upon the political activities of public employees and that, “It must appear that the restrictions . . . are not broader than are required to preserve the efficiency and integrity of the public service.” (Fort v. Civil Service Com. (1964) 61 Cal.2d 331, 337-338 [38 Cal.Rptr. 625, 392 P.2d 385].) Similarly, in the present case, we hold that a governmental agency which would require a waiver of constitutional rights as a condition of public employment must demonstrate: (1) that the political restraints rationally relate to the enhancement of the public service, (2) that the benefits which the public gains by the restraints out-
According to defendants, the particular restraints involved here may be sustained because they do no more than prohibit the public employee from campaigning against his own superior, an inhibition which has been upheld in Fort. We shall explain, however, that these restraints cover a far wider field of political participation than the campaign against one‘s superior. To the extent that the restraints operate beyond the sphere of the proffered justification they advance no compelling public interest and exact the waiver of constitutional rights without compensating public benefit. Such restraints cannot stand; a dismissal predicated upon them must be reversed.
In April 1960 the defendant hospital district hired plaintiff as a nurse‘s aide. In this capacity plaintiff performed such tasks as bathing patients, changing beds, and taking temperatures. The record shows that plaintiff consistently performed her assigned duties to the complete satisfaction of her superiors.
Late in 1963 a number of citizens became dissatisfied with the policies of the defendant district and commenced a campaign to recall from office certain of its directors. Plaintiff participated in the activities of this group by attending some of its meetings, circulating recall petitions and distributing literature. The record indicates that plaintiff confined her activities on behalf of the recall campaign to her off-duty hours and that in seeking to influence interested citizens to vote for the recall she did not advise them of her employment by the district.
On February 7, 1964, the hospital administrator issued to all hospital personnel a memorandum entitled “Political Activities of Public Employees.” The memorandum stated: “Notice is hereby given that the Board of Directors of the Washington Township Hospital District [has] instructed the Administrator to place all employees on notice that employee participation in any political activity for or against any candidate or ballot measure pertaining to the . . . District is, unlawful and will not be acceptable conduct for an employee of this hospital and shall constitute grounds for disciplinary action and/or dismissal.” The memorandum proceeded to state that the employees were “further advised” of certain sections of the
Plaintiff thereupon sought to enjoin the district from representing to its employees that participation in the recall campaign was unlawful and from threatening or instituting reprisals against any employee for participating in that campaign.
While plaintiff‘s suit for an injunction was pending, the assistant hospital administrator called plaintiff into his office and demanded her assurance that she had withdrawn from participation in the recall movement and that she intended “to obey the letter and spirit of the directive of the Board of Directors.” He also stated that plaintiff‘s failure to give such assurance would result in her prompt dismissal “on the ground that active participation in recall activities by any employee while remaining an employee of the hospital district causes a disruption of employee relations by creating dissension and unrest among employees, which in turn disrupts and impairs the service to the patient and the public.” Plaintiff indicated that she intended to continue her participation in the recall movement. Her employment was thereupon terminated. Plaintiff has since amended her complaint to seek reinstatement, back wages and punitive damages.
In urging us to affirm the action of the trial court in sustaining a demurrer to plaintiff‘s complaint, defendant district notes that it maintains no civil service or merit system for its employees and that
Despite the antiquity of this argument, its reasoning today stands utterly discredited. Although an individual can claim no constitutional right to obtain public employment or to receive any other publicly conferred benefit, the government
The faulty logic inherent in defendant‘s proffered syllogism was rejected by this court in Danskin v. San Diego Unified School Dist. (1946) 28 Cal.2d 536 [171 P.2d 885]. That case involved a school district which had undertaken to confine the use of its buildings to organizations whose members gave a satisfactory account of their views. In the course of that opinion we declared: “The state is under no duty to make school buildings available for public meetings [citations]. If it elects to do so, however, it cannot arbitrarily prevent any members of the public from holding such meetings. [Citations.] Nor can it make the privilege of holding them dependent on conditions that would deprive any members of the pub-
Similarly, in Syrek v. California Unemployment Ins. Appeals Board (1960) 54 Cal.2d 519, 532 [7 Cal.Rptr. 97, 354 P.2d 625], this court stated that, “[A]lthough the state need not legally have provided unemployment benefits for anyone, once it has done so it cannot withhold them from one who has good cause for declining a proffered employment.”
On the other hand, we cannot accept the apparent suggestion of some few cases that government may never condition the receipt of benefits or privileges upon the non-assertion of constitutional rights. (See, e.g., Frost v. Railroad Com. (1926) 271 U.S. 583, 593-594 [70 L.Ed. 1101, 46 S.Ct. 605, 47 A.L.R. 457]; Terral v. Burke Constr. Co. (1922) 257 U.S. 529, 532-533 [66 L.Ed. 352, 42 S.Ct. 188, 21 A.L.R. 186].) The government employee should no more enjoy the right to wrap himself in the flag of constitutional protection against every condition of employment imposed by the government than the government should enjoy an absolute right to strip him of every constitutional protection. Just as we have rejected the fallacious argument that the power of government to impose such conditions knows no limits, so must we acknowledge that government may, when circumstances inexorably so require, impose conditions upon the enjoyment of publicly conferred benefits despite a resulting qualification of constitutional rights.3
In doing so, however, government bears a heavy burden of demonstrating the practical necessity for the limitation. At the very least it must establish that the imposed conditions relate to the purposes of the legislation which confers the benefit or
Not only must the conditions annexed to the enjoyment of a publicly conferred benefit reasonably tend to further the purposes sought by conferment of that benefit but also the utility of imposing the conditions must manifestly outweigh any resulting impairment of constitutional rights.7 Fur-
The public employee surely enjoys the status of a person protected by constitutional right. Public employment does not deprive him of constitutional protection. In the absence of an imperative necessity to protect the public from irresponsible activity of so serious a nature that it would disrupt the public welfare, such protections are not subject to destruction by a public employer‘s insistence that they be waived by contract.
We recognized and applied these principles in our recent decision in Fort v. Civil Service Com., supra, 61 Cal.2d 331, holding that only “compelling” public interests can justify a governmental entity in demanding a waiver of constitutional rights as a condition of public employment. “Although . . . one employed in public service does not have a constitutional right to such employment [citation] it is settled that a person cannot properly be barred or removed from public employment arbitrarily or in disregard of his constitutional rights.” (61 Cal.2d 331, 334.)9 We further noted in Fort, “The principles
The restrictions imposed upon plaintiff‘s political activities by
The single ground upon which the defendant would sustain these restrictions is that it may constitutionally prohibit a public employee from running or campaigning against his own superior officer. Defendant rests upon the declaration in Fort that “A strong case, we think, can . . . be made for the view that permitting a public employee to run or campaign against his own superior has so disruptive an effect on the public service as to warrant restriction. It is of course possible to draw a restrictive provision narrowly in order to deal specifically with such abuses.” (61 Cal.2d 331, 338.) Since the instant limitations were not narrowly drawn to deal with this specific abuse, however, they cannot rest upon this circumscribed ground.
We have recognized that administrative disruption may ensue from the participation of a public employee in a campaign for or against his own superior and that the state may meet such danger by specific restriction. Here, however, we do not reach that question; we need not determine whether the working relationship between plaintiff and the board was so immediate that the board might be considered her “own superior.” We shall point out that the present restrictions attempt too wide a prohibition. “Where the statute is attacked on First Amendment grounds the court is not limited in its examination to the application of the statute involved in the par-
Both
The directive proscribes participation in “any political activity for or against any candidate or ballot measure pertaining to the district.” By extending its ban to “any ballot measure pertaining to the district” the directive embraces matters other than campaigns against an employee‘s “own superior.” Indeed, in its present form, the directive, like the restriction struck down in Fort, would include “even . . . measures which would directly and personally affect the employee such as one relating to his own salary or working conditions.” (61 Cal.2d 331, 335.)
The overbreadth of the statute lies in the wide swath of its prohibition of employee participation in a number and variety of elections. Subject to an exception for persons “exempt” from civil service, the statute provides that no employee of a “local agency” may participate in “any campaign for or against any candidate, except himself, for an office of such local agency.” Since
If there were no other guide to the meaning of this phrase, we might well conclude that the statutory ban applies only to persons who enjoy the protection of a civil service or merit system and that the Legislature intended to preserve intact the political freedom of all other public employees as a surrogate for the job security which they lack. We note, however, that
The purpose of the Legislature in confining the ban of
In summary we note that the expansion of government enterprise with its ever-increasing number of employees marks this area of the law a crucial one. As the number of persons employed by government and governmentally assisted institutions continues to grow, the necessity of preserving for them the maximum practicable right to participate in the political life of the republic grows with it. Restrictions on public employees which, in some or all of their applications, advance no compelling public interest commensurate with the waiver of
This court has recognized the right of governmental agencies to preserve their harmonious operation by restricting such political activities as directly threaten administrative disruption or a loss of integrity. When, however, the sweep of the restrictions imposed extends beyond the area of permissible limitation, we are obliged to strike down such strictures and any official act predicated upon them.
We reverse the judgment of dismissal entered by the trial court pursuant to its order sustaining defendants’ demurrer and remand the cause for further proceedings consistent with this opinion.
Traynor, C. J., Peters, J., Mosk, J., and Peek, J.,* concurred.
BURKE, J.—I dissent. When this court declared invalid on the grounds of overbreadth and vagueness the Alameda County charter provision (§ 41) which was involved in Fort (Fort v. Civil Service Com. (1964) 61 Cal.2d 331 [38 Cal.Rptr. 625, 392 P.2d 385]), we tacitly approved the Government Code provisions (including
A mere reading of the 1963 legislation demonstrates the correctness of the statement just quoted.
Not only are the restrictions of these Government Code sections much narrower than those involved in Fort, but the conclusion appears inescapable that they “are not broader than are required to preserve the efficiency and integrity of” the public service—the standard which Fort approves. (P. 338 of 61 Cal.2d.) Moreover, I think it is well within the scope of legislative authority to conclude, as we must presume was done, that violation of the proscriptions of those sections would reasonably be calculated to impair the agency‘s public service. And with respect to the case at hand, active participation by a local agency officer or employee for or against a ballot measure to recall another elected agency official is at least as likely as not to demoralize, impair and disrupt the efficiency and integrity of service. Plaintiff‘s own complaint (first amended) rather cogently demonstrates this fact. She alleges that numerous employees of defendant district were members of the recall committee and that she was bringing action for their benefit as well as her own.2 It thus appears that the recall movement involved at least in part a struggle
To attempt to draw lines of authority in an effort to determine whether an employee is campaigning for or against “his own superior” would only further embarrass and disrupt the service which the public expects and demands from local agencies, but with no corresponding benefit to the employee in the protection of any overriding constitutional rights.
Also, it seems to me that this court should not now, after tacitly approving the 1963 legislation in Fort, undertake a piecemeal invalidation thereof with no evaluation or discussion of what effect such emasculation will have upon the remaining sections of the law, or upon the public service, or the morale, discipline or efficiency of the thousands of employees engaged by the public agencies at all levels of government in this state. That legislation, as Fort notes, applies uniformly to all officers and employees of local agencies, and was obviously enacted in a conscientious effort to reasonably proscribe improper political activities bearing upon or connected with the agency itself and its public service. The regulations prescribed in the law appear reasonable and restrained, and I believe should be upheld.
I agree that
Although the reference in defendant district‘s 1964 directive to its employees to a “ballot measure pertaining to the . . . District” was apparently included in an effort to conform to the 1963 legislation on the political activities of local agency employees, we do not have before us a violation of that portion of the directive and so need not now determine its validity. Also, as noted hereinabove (fn. 1, ante), in 1965 the Legislature relaxed the political activity prohibitions with respect to certain ballot measures, and it must be presumed that the district will modify its approach accordingly.
I would affirm the judgment of dismissal.
McComb, J., concurred.