247 P. 614 | Cal. Ct. App. | 1926
The petitioner was a police officer of the city of Fresno. On or about the seventh day of November, 1925, the petitioner, together with eleven other police officers of the city of Fresno, was indicted by the federal grand jury, charged with the crime of conspiracy to violate the National Prohibition Act. On November 9, 1925, the respondent A.E. Sunderland, Commissioner of Public Welfare and head of the police department, delivered to the petitioner a writing in words and figures as follows, to wit:
"Civil Service Board, City of Fresno, California. "Dismissal. "Date November 9, 1925, 11:00 a.m.
"Mr. E.A. Nichols, "Detective Sergeant, "2659 White Ave., "Fresno, Calif.
"For the reasons stated below, you are hereby dismissed from the position of Detective Sergeant in the Department of Police, effective immediately. Reasons for dismissal: Having been indicted by the Federal Grand Jury, charging *629 you with a felony, to-wit: Conspiracy to Violate the National Prohibition Enforcement Act, therefore, for the good of the service, and, in harmony with the Civil Service Rules, you are hereby dismissed as an employee of the Fresno Police Department, effective immediately.
"You will please deliver to the officer in charge at Police Headquarters, of the City of Fresno, all property of the said City now in your possession, and oblige.
"A.E. SUNDERLAND, "Head of Department.
"Note: Any person dismissed from the service may file a written answer and demand a hearing before the Civil Service Board, providing such answer or demand is filed with the Board within five (5) days after the serving of the notice of such dismissal. See Rule XI, Ord. 972."
Since that date the petitioner has not been recognized by said respondent nor assigned to any duty whatsoever. Thereafter, on the twelfth day of November, 1925, the petitioner served on said respondent a written answer demanding a hearing and thereupon both writings were delivered to the Civil Service Commission of Fresno. The matter was set for hearing and before the day appointed for the hearing the petitioner requested in writing that the matter be continued indefinitely by the Civil Service Board. The request was granted. After petitioner's trial in the federal court was concluded about February 1, 1926, said respondent filed and served on the petitioner a writing in words and figures as follows:
"Civil Service Board, City of Fresno, California. "Amended Notice of Dismissal. "Date February 1, 1926.
"Mr. E.A. Nichols, "Detective Sergeant. "2659 White Ave. "Fresno, Calif.
"You are hereby notified that the notice of your dismissal as a member of the Police Department of the City of Fresno, effective November 9th, 1925, a copy of which has been heretofore furnished you, is hereby amended to read as follows:
"Having been indicted by the Federal Grand Jury, charging you with a felony, to-wit: Conspiracy to violate *630 the National Prohibition Act, and in addition thereto, during the last two years, you as a Police Officer of the City of Fresno, have performed your duties in an incompetent and inefficient manner, and in addition thereto, you have accepted bribes and money from persons known to you at the time to be engaged in the business of selling intoxicating liquors unlawfully, all of which was and is a violation of your oath of office as such Police Officer of the City of Fresno.
"In harmony with the Civil Service rules, and to promote efficiency of the public service, you were dismissed as a member of the Police Department and as an employee of the City of Fresno.
"A.E. SUNDERLAND, "Head of Department.
"Note: Any person dismissed from the service may file a written answer and demand a hearing before the Civil Service Board, providing such answer or demand is filed with the Board within five (5) days after the serving of the notice of such dismissal. See Rule XI, Ord. 972."
Within five days thereafter the petitioner filed an answer thereto. The matter was set for hearing, but was continued for the reason that an action had been filed in the superior court of the county of Fresno by one Oliver P. Durr, who sought to permanently enjoin the Civil Service Commission from taking any further step or proceeding in the matter of hearing said charges, which charges were identical with those in the above-entitled action now under consideration, and pending the hearing of that action in the superior court the Civil Service Board was temporarily restrained from proceeding in the matter. Immediately after the termination of that action in the superior court the petitioner applied to this court for a writ of mandate directed to the respondent A.E. Sunderland as head of the police department of the city of Fresno and directed to William Glass as Commissioner of Finance of said city, requiring and directing respondents to cause to be paid to the petitioner his salary accruing subsequent to the ninth day of November, 1925. Both commissioners have appeared by filing demurrers and answers. As the respondent Glass is merely a formal party, in the interest of clarity we will *631 hereinafter use the word "respondent" as designating and referring to the Commissioner of Public Welfare.
[1] The petitioner contends that the paper dated November 9, 1925, on its face purports to be an absolute dismissal; that the respondent, A.E. Sunderland, as Commissioner of Public Safety and Welfare, has no power under the charter of Fresno and the ordinances of said city to dismiss a police officer, and that said paper is a void act. The respondent replies that the paper was not a void act and he cites section 22 of article III of the charter of Fresno, Statutes of 1921, page 1821. That section, among other things, provides: "No officer or employee of the city may be removed except for reasons that will promote the efficiency of the public service; and after the lapse of the probationary period, except as in this charter otherwise provided, no officer or employee may be removed except for reasons given in writing by the appointing officer, and the person whose removal is sought shall be furnished with a copy of the reasons for his removal and of any charges preferred against him and be allowed a reasonable time for personally answering the same in writing, and in such answer may demand a hearing upon the charges. If such demand is made the appointing officer shall furnish the Civil Service Board with the complaint or charges and answer, and the Civil Service Board shall then fix a time and place for, and, according to such rules and regulations as it may adopt, shall conduct a hearing upon the charges and answer, and the party whose removal is sought shall attend such hearing and may be heard in person or by attorney and produce witnesses. The Civil Service Board . . . shall not be bound by the technical rules of evidence and pleading, and upon said hearing the Civil Service Board may order the charges to be dismissed, in which case the officer or employee shall be restored to duty without prejudice, but if the charges are sustained, the officer or employee shall by virtue of said findings be removed unless the finding in either case is set aside by the city commission. There shall be no appeal from the judgment of the Civil Service Board as a matter of right on the part of . . . the officer or employee whose removal is sought but the city commission shall have power in its discretion to hear and determine appeals from the decisions of the Civil Service Board. . . . Pending the hearing *632 of any charges, . . . the officer seeking to make the removal may suspend the officer or employee whose removal is sought, such suspension to be without pay, unless the charges are dismissed." Respondent also cites section 19 of article III, which provides: "In addition to the foregoing matters, the Civil Service rules shall provide: . . . Subd. 6. For the regulation of removals from office subject to the provisions of this charter." Respondent also cites parts of rule XI of the Civil Service Board as enacted by Ordinance No. 972, as follows:
"Section 1. Removals or Reductions. (a) Removals . . . of a person in the classified service shall be made only after such person has been presented with the reasons for such removal or reduction, specifically stated in writing, by the appointing officer, but such person has the right to answer and demand a hearing, as provided by these rules. A removal or reduction has the same effect as to compensation as in case of suspension. A statement of the reasons and the reply must be forthwith filed, as a public record, with the Board.
"(b) Nothing herein contained shall limit the power of any superior officer to suspend a subordinate for a reasonable period, not exceeding thirty days, pending hearing and decision. Every such suspension shall be without pay; provided, however, that the Board shall have authority to investigate every such suspension, and in case of its disapproval, it shall have power to restore pay to the employee so suspended.
"(c) Nothing herein contained shall limit the power of any appointing officer to suspend or dismiss a subordinate for any cause which will promote the efficiency of the service, and within five days thereafter file with the Board written reasons for such action, containing the charges preferred and order of removal, if any, and forthwith serve the person whose removal is sought with a copy thereof, . . . Such appointing officer shall certify to the said service and immediately file the same with the Board. The person so served may personally in writing answer the charges preferred against him and file such answer with the Board, also affidavits in support thereof, if he so desires, and may demand a hearing on the charges, and a failure to so file an answer or demand a hearing on the charges within *633 said time shall be considered as a resignation of such person, in which case no trial shall be required, except at the request of the officer making or seeking the removal, and then only at the discretion of the Board. The Board may reinstate any officer or employee so removed after proper hearing. . . .
"Sec. 3. Suspensions. Pending action for removal or for disciplinary reasons, an employee may be suspended for a period not to exceed thirty days, without pay, but the reasons for suspension shall forthwith be furnished in writing to the Civil Service Board. No employee in the classified service shall be suspended except for reasons which will promote the good of the service.
"Sec. 4. Procedure. Each hearing upon charges and answer shall be had as soon as practical after answer is filed. . . . and upon said hearing the Board may order the charges dismissed, in which case the officer or employee shall be restored to duty without prejudice, but if the charges are sustained, the officer or employee shall by virtue of such findings be dismissed unless such findings be set aside by the City Commission."
Thereupon respondent contends that the writing dated November 9, 1925, although it uses the word "dismissal," does not use that word as a finality, but as a temporary deprivation of the petitioner from his office. There is force in the contention, otherwise the note appended at the end of the writing is given no force or effect, although that note advised the petitioner that he would be given a hearing as provided under rule XI if he filed an answer and demanded a hearing. Moreover, the petitioner so understood the paper. He promptly put in his answer and demanded a hearing. This act on his part finds no support in the charter and ordinance when a suspension or removal has become permanent — has ripened into an absolute dismissal. (Stadler v. Detroit,
[2] It is further contended that the writing dated November 9, 1925, is insufficient because it does not specifically designate acts of malfeasance or nonfeasance, but it *635
will be noted from the charter provisions above quoted that the writing is sufficient if it states "the reasons" for the act of the superior officer. If we view the writing as made to "promote the efficiency of the service," it need not state acts of malfeasance or nonfeasance. It may state matters which tend to show a set of facts which may subsequently transpire as being without foundation, but until met and explained, or avoided, would tend greatly to hamper "the efficiency of the service," and to greatly embarrass the subordinate official in the discharge of his duties. Certainly such a situation is of such importance that the Civil Service Board should take jurisdiction, and if a demand is made therefor, conduct a hearing and make and enter such a determination within the powers conferred on it as may be sustained by the facts, and which determination will result in wholly removing the embarrassment or perhaps in a permanent removal. Furthermore, a supposititious case can readily be conceived where the superior officer would not be justified in going any further than stating the rumor or information without alleging the facts therein to be true. However, the writing dated February 1st does designate specifically certain charges. Assuming that the attack on the writing dated November 9, 1925, is sufficient, no attack has been made on the sufficiency of the later writing. We know of none. A similar question was before the supreme court of Minnesota in the case entitled In re Mason,
A similar contention was made in People v. Common Council, [85 Hun, 603], 33 N.Y. Supp. 165. At page 168 the court said: "The relator attacks the jurisdiction of the common council, in this: that he had not received the notice required by Statute, of 14 days, of the charges against him. This contention is not well founded, as the proof shows that he had the 14-days notice of the substance of the charges upon which he was ultimately convicted. The amendments of one or two of the charges, which occurred during the progress of the investigation, were but an amplification of the original charges, and made in his presence, and an adjournment of several days was taken by the common council to give him an opportunity *637 to meet the amended charges, and the relator had every reasonable opportunity to do so."
[3] It thus appears that the decisions dealing with the subject of the removal of officers concede the power to allow amendments. Such power is further evidenced by the charter provision that "The Civil Service Board . . . shall not be bound by the technical rules of evidence and pleading." When the amendment amplifies but does not change the cause of action the amended pleading relates back to the date when the original pleading was filed. (31 Cyc. 464; Barber v. Reynolds,
We are unable to hold that the papers purporting to state the reasons for removal, or charges, are void. It follows that the Civil Service Board has not exceeded its jurisdiction. Having jurisdiction of the controversy all questions of fact are for the determination of that board. The state of Wisconsin has a statute that is very similar to the provisions quoted from the charter of the city of Fresno. That statute was before the supreme court of Wisconsin in the cases entitled State ex rel. Wagner v. Dahl,
[5] Finally, the petitioner asserts that he has been suspended more than thirty (30) days and that a suspension for more than thirty (30) days is prohibited by the provisions of Ordinance No. 972. This contention rests on a confusion or intermingling of two separate provisions of the ordinance. It is provided that a subordinate may be disciplined by suspension. It is also provided that the superior may initiate removal proceedings and pending the hearing thereof before the Civil Service Board that the subordinate officer may be suspended. As a disciplinary measure the ordinance provides that a suspension may not be for a period exceeding thirty (30) days. As an ancillary measure in removal proceedings no limit is placed on the period of suspension. Whether the suspension is of the first class or the second class, the ordinance provides that the subordinate may, on demand, be given a speedy hearing and that the period of thirty (30) days will not necessarily be consumed in either case. Moreover, the facts above recited show that any delays which have occurred in the instant case were the delays caused or requested by the petitioner and not by his superior officers. Under very similar provisions contained in the New York charter the supreme court of that state made the same ruling. (Halpin v. City ofNew York, 54 Misc. Rep. 128 [105 N.Y. Supp. 520].)
For the reasons which we have recited we therefore hold that the writing signed by the respondent A.E. Sunderland November 9, 1925, was, under the attack as made in this case, sufficient to initiate proceedings looking toward *641 a removal and that all other questions are to be addressed, in the first instance, to the Civil Service Board. In view of what we have said it is unnecessary to pass on the demurrers. The respondents are entitled to judgment on the merits. It is so ordered.
Langdon, P.J., and Nourse, J., concurred.
A petition by petitioner to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 28, 1926.
