*1 clearly petitioner guilty The record here discloses that although apparently involving turpitude, conduct moral defrauding client, had no intention and no loss was his misconduct. suffered as result of petitioner foregoing suspend I would For the reasons practice period for a oí six months. 18675. In Bank. Mar. F. Nos. 1953.] [S. MURPHY, Respondent, DANIEL C. HANLEY, WILLIAM Appellants. Individually Sheriff, al., etc. et and as In Bank. Mar F. No. 18676. 1953.] [S. AND v. THE CITY REILLY, Respondent, BERNARD al., Appellants. et OF SAN FRANCISCO COUNTY *3 City Attorney (San Francisco), and Bernard Holm, R. Dion Ward, City Attorney, Appellants. for Deputy J. Hanley. Scully Respondent
Charles P. for Reilly. Hennessy Respondent Alfred for J.
SPENCE, J. appeals judgments These are from ordering the issuance of requiring of writs mandate the restoration of petitioners the two to their positions former superintendent jail city under the sheriff county and Francisco, payment and the salary San to them of the positions compensation fixed for those in lieu of the received by following them demotion. The their cases were con- tried currently judge the same trial presented before and are to- gether appeals. on these
The petitioners trial court found that the removal of positions procedural their former did not conform with the requirements regulations of the civil service and was done in findings judg- bad faith. The record sustains these and the based thereon. ments
575 July respective super- Prior county jails operated 1 and No. intendents for No. county. They these since city occupied and of civil following appointment upon the basis ser- In promotional vice examinations. county and, such, as
was elected sheriff of the and supervision jails. responsible for the overall became In the two pursuant to his determination to abolish he failed include them jail, request in the annual as submitted salaries July (which began year on estimate for the fiscal 1947-1948 1, 1947). requires propriety The of this action consideration charter. applicable provisions Francisco San (§5) charge
The sheriff and as one “in is elective officer office,” powers “the an administrative he has (§20). of a further head” last cited section provides: ‘appointing “He under shall act as the officer’ provisions appointing, civil for the disci- this charter plining employees officers, and removal of such assistants and may appointments as . authorized. . . Non-civil service any temporary appointments any department subdivision thereof, the de- all removals therefrom shall be made partment designated appointing head or bureau head as the only approval officer with the of the chief administrative officer may . . charge, or the board or commission in as the case be. . may suggest Each head creation subject charter, reduce the of this jurisdiction forces under his needs of conform provision work of this responsible, which he is added.) notwithstanding.” contrary charter to the (Emphasis . . provides for “a service commission . Section civil charged duty providing qualified” personnel with the ‘1solely upon appro based fitness, merit and established classify priate tests.” The commission has sole em reclassify exempt positions in both civil services and ployment; of a but its “allocation or re-allocation *4 adversely rights occupant of an shall not the civil service affect notice regularly holding position.” (§ 141.) “Immediate such writing given in shall civil service by commission appointing officer ... of the creation or any abolition of any change position, in position or duties if the is included in the civil service, any classified or of . . . dismissal or ’ ’ vacancy therein, creation of with the any change. date of such (§143.) person employed “No under the pro civil
576 in
visions ... defined the commission as ‘permanent’ discharged except shall be removed or cause, for upon opportunity written charges, and after an to be heard defence,” pursuant specified procedure. his own (§154.) provides budget Section 69 that a pre- estimate must be pared year by department each head and filed with the February controller 15th. Not later than March 15th budget the controller must consolidate such estimates and mayor. mayor may public transmit them to the The hold hearings reject any increase, decrease or item contained estimates, except any that he shall not increase amount any or personal add new item for services. providing budget estimates,
Section for the form of 70 specifies accompanied that the shall include or be estimates by “(4) compensations showing a schedule of any requested posi- increase or decreases in the number of requires mayor tions. ...” Section 72 to transmit supervisors May the board of not later than 1st the con- budget proposed budget, solidated estimates and a draft with appropriation ensuing the annual ordinance for the fiscal year prepared by proposed the controller and based on the budget. compensations A detailed schedule of showing any any department or for increases decreases must proposed budget, super- be included in the and the board of any shall not increase amount or add item visors new personal services. statutory interpretation, settled rules of these Under giving together, several sections must be construed effect and parts meaning possible thereof, pur so far as to all with the pose effectuating legislative in harmonizing them (23 expressed. 134, p. 760; 18 tention as therein Cal.Jur. § Cal.Jur., 769; Mills, Cal.App. v. p. Ohlhausen § ; Gallagher Foerst, Cal.App. 466, P. [282 394] P.2d 1065].) [17 charter vests is clear these that the
It effecting reduc in the head broad jurisdiction (§20) and the of the forces under his tion procedure Thus, accords therewith. when the budget-making department head files a estimate which decreases positions in his as shown in the accom number of (4)), (§ 70, such eliminated panying schedule subd. mayor (§ 69) added board not be any new (§ 72), are forbidden “to add supervisors both only manner in which personal services.” item for *5 577 original department head from his omitted qualification per- be is the estimate later added request on mitting the to so act supervisors board of department head. mayor and on recommendation (§72.) place This did not here. take department at same time the
But
head in removing
positions in
employees from
department,
his
must
in
act
con
formity
applicable
with
civil
regulations.
service
(§20.) So
Peterson,
it
said in
v.
Childress
P.2d also Neuwald Cal.2d 675-676 730] 1047].) only body the public It is eases where P.2d [86 pursues authority or, its in strict accordance with law words, pursuance legal right, question of a that the of motive becomes immaterial. The court cor- trial therefore rectly faith on part determined that the issue bad *6 material in the disposition was a issue of these cases. July 1, 1947, shows since 1936 and until record that Hanley Reilly had
petitioners respective posi- and held their superintendent jail performed of of tions and the classified therewith—Hanley county jail duties in connection at No. Reilly county jail and No. 1. Neither been at had ever charged any in duty with misconduct or dereliction of the dis- charge his work. The undersheriff testified at the of that request sheriff, Murphy, he made appellant of the an investi- jails 1946, gation November, two in October or of the operation permit effective recommended that their would not though superintendent, of of a the abolition the duties position Following were of itself eliminated. termination July 1947, the 1, as of duties thereof by the performed partly undersheriff, partly largely secretary, by captains of watch sheriff’s jails. a.t each of two stationed Murphy operation Appellant testified that efficient jails person requires responsible premises a on the two day; charge during filing to the of his the entire that budget March, 1947, omitting the salaries for estimate year, next fiscal he did not advise superintendents two for the either intent the civil service commission of his to eliminate omission; for their he never positions or the reasons that such responded inquiry commission’s of March letters proceeding, in so 1947, and acted on April 10, being any and was not advised own counsel specifically appellant called Both of these letters official. “provisions section 143 of the Murphy’s attention the required give appointing which officers are charter under writing to the Civil immediate notice Service Commission any position changes or of in duties abolition expressly classified positions included in the service” surrounding as “the circumstances requested advice per- positions and also . . . will these two who abolition of Again thereof. on June the commission form the duties” inquiring “proposed Murphy as to the appellant wrote to stating elimination” and that in the event such action was “a bona fide abolition of the position” charges there were no against petitioners filed cause their (§154), removal from office were entitled to return positions they to the former respectively held in the Appellant service. Murphy responded by letter of June “by stating that virtue of the abolition of of Superintendent Jail,” July 1, 1947, effective he was re- turning petitioners “the highest position they next which occupied prior promotion position Super- Jail”—Hanley intendent of position to a captain Reilly watch and to a of writ server. This was ac- cordingly done.
Appellant Murphy questioned also was newspaper about a published article as the result of interview that he had with reporters about the time in March, when his omitting submitted jail. appellant In the Murphy article displeasure had referred to his petitioners’ at success fewa preceding obtaining months salary through increase change of classification with the commission, his belief that others in his work “a *7 lot harder . . . money,” and for a lot less and that there was “a lot discord after ‘superintendents’ got the two big raise.” The appellant article also Murphy’s noted statement “just that he forgetting was to include their in the salaries budget” and his comment on the likelihood that “there’ll be . they’ll go row and . . running to the Civil Service Com- Appellant Murphy mission.” testified that these statements in the substantially article were correct. He further stated that the article’s purported added reference to the claim that superintendents’ the charges before the labor council was suspension the cause for entirely therefrom was not accu- rate, as he had reporters then told the he that did not know whether “either or both” charges anything of such to do particular with that matter. personnel secretary director and of the commission
testified you that could not see “how could abolish Super- job intendent’s if the institution remained in operation,” and that he so informed the undersheriff to the in- latter’s vestigation jails of the two in the fall 1946; that the com- mission was unable to make a ruling propriety appellant Murphy’s action in attempting to abolish the superintendent positions because of the latter’s failure to supply necessary information pur- reclassification respect another classifica- although previously
poses,
with
advice from
appellant Murphy, on
tion in his
procedure, had submitted
appropriate
commission as to the
occurred; and that
and reclassification
the needed information
accordingly never
superintendent was
the classification of
appel-
that
He further testified
abolished
the commission.
July 1,
after
commission that
Murphy had advised the
lant
pre-
duties
perform the
would
1947, he and his undersheriff
jails; that
two
superintendents
viously assigned to the
effected,”
had been
shortly
“reorganizations
after
organization
employee
request from an
received a
commission
the manner
investigation of
asking for an
in the
assignment of
jails “as far as the
operation
of the two
the commission’s
member of
concerned”;
that a
duties was
report
pursuant
investigation
staff undertook the
by the
completed
questionnaires
October, 1947,
made
“inferior
various other
that
employees, the commission found
performing
jails were
employees” at the
according to
superintendent
belonged
that
questionnaires
duties; that the
the scheduled classification
change
without
Murphy
signed by appellant
were reviewed
the commis-
November, 1947,
comment;
that thereafter
latter as
advised
Murphy and
appellant
sion met with
formerly per-
showing
the duties
survey
of the
the result
operation
necessary in the
formed
“in-
by other
being performed
jails
were then
of the
watch—which
captains
employees”—jailers and
ferior
permissible under the classified
procedure was not
civil ser-
Murphy
procedure
said that such
;
appellant
would
vice that
department and he
in his
would so advise the
be discontinued
writing, but no such communication was ever
commission
investigation
no further
him; and that
received from
promised
if
changes
to see
the commission
undertaken
litigation.”
was then in
This wit-
as “the matter
were made
service,
a classified civil
constituted
stated what
ness also
classify
in the ser-
duty
commission to
department heads to submit informa-
requirement of
vice, the
*8
inability
commission, and the
to the
purposes
tion for such
properly in the
to act
classification
the commission
information is so furnished.
unless such
in a
super-
experience as
that from their
testified
Petitioners
of the classified duties
performance
jail
intendents
operation
they believed that efficient
position,
to the
attached
person
responsible
to be
required such a
jails
charge.
Hanley
Petitioner
that the first
stated
advice he had
change
position
from the
as
his
was
from the
p.m.
30,
notice
undersheriff about 4:30
on June
he
1947,
longer
employee
that
no
“would
of the Sheriff’s
that at
office”;
5 o’clock
afternoon
fur-
that
the undersheriff
ther notified him
he
“be
captain
that
was to
reduced to
jail
report
county
1;
watch” and was to
No.
that he never
given
was
a
for
he
reason
his
nor
ever
demotion
was
advised
position
that
commission
his former
upon
abolished;
reporting
was
new assignment,
that
his
he
placed
was
captain
under another
of the watch
who
seniority
less
status, and then
permanently
transferred
to a
jail
night shift
county
1;
at
No.
that while
captain
there as a
captains
he,
watch,
watch
jailers
even
had regularly performed
previously assigned
superintendent.
Reilly stated
Petitioner
that
first notice
change
position
he had from the department as to his
was
telephone
call
p.m.
from
about 4:40
on
1947, ordering
30,
report
morning
June
him to
the next
server;
hall as a
given
writ
that he was never
reason
his demotion nor
did
receive
notice
the com-
mission that his former
had been eliminated.
adequately supports
evidence summarized above
finding
trial court's
removal
did
that the
procedural
not
requirements
conform with the
of the civil ser
regulations
(See
vice
and was done
bad faith.
Childress
Peterson,
v.
supra,
644.)
scribed posi- to their restored are entitled be (Powers v. Board Public rating. civil tions under 156].) Works, Cal. 546 P.2d [15 affirmed. is, them and each of judgments are, The con- Traynor, J., J., Carter, J., and Shenk, Gibson, J.,C. curred.
SCHAUER, J. dissent. The I sheriff of the and county is by Francisco San head express section 20 of the San Francisco charter jurisdiction is to “reduce the forces under authorized the needs of work respon- to conform to for which he is any provision sible, contrary this charter to the not- (italics withstanding” added). Acting under this jail. positions sheriff abolished Han- two Reilly, herein, ley respondents who had held the two discharged they employment; not were were merely highest positions next they returned to the which promotion jail superintendent. occupied to their undisputed appointed no one else evidence is new occupy the two and no to take over created; jail superintendent rather, duties by personnel absorbed of the abolished offices were duties by already employed; partly were assumed such duties by secretary, partly undersheriff, partly the sheriff’s jails. at the two There was stationed captains watch super- pseudo, actual, abolishment two thus no but finding of the trial court that positions, and the intendent necessarily faith must relate to a bad the sheriff acted concept. respect In conduct uurely metaphysical finding simply his officethe is not sustained the duties of the evidence. governmental efforts of heads my is view that
It efficiency and the sav- purposes reorganize offices money taxpayers without curtailment of for the ing of sup- highly and should be commendable performed is unnecessarily, let alone encouraged rather than ported courts. arbitrarily, down stricken judgment facts, law should undisputed Upon reversed.