Opinion
7-3-1956
Harry SHEPHERD, Petitioner, Appellant and Cross-Respondent,* v. STATE PERSONNEL BOARD of the State of California, Emery Olson, President and member thereof, Ford Chatters, Robert Gray, Benjamin Mallary and Wilmer Morse, members thereof, Department of Agriculture of the State of California, A. A. Brock, Director of the Department of Agriculture, Robert C. Kirkwood and Charles G. Johnson, Respondents and Cross-Appellants. Civ. 8772.
James H. Phillips, Sacramento, for appellant.
Harry SHEPHERD, Petitioner, Appellant and Cross-Respondent,*
v.
STATE PERSONNEL BOARD of the State of California, Emery Olson, President and member thereof, Ford Chatters, Robert Gray, Benjamin Mallary and Wilmer Morse, members thereof, Department of Agriculture of the State of California, A. A. Brock, Director of the Department of Agriculture, Robert C. Kirkwood and Charles G. Johnson, Respondents and Cross-Appellants.
July 3, 1956.
Hearing Granted Aug. 30, 1956.
James H. Phillips, Sacramento, for appellant.
Edmund G. Brown, Atty. Gen., by Paul M. Joseph and Willard A. Shank, Deputy Attys. Gen. for respondents and cross-appellants.
VAN DYKE, Presiding Justice.
Dr. Harry Shepherd, hereinafter called appellant, appeals from a judgment directing issuance of a peremptory writ of mandate commanding the State Personnel Board, hereinafter called the Board, to reconsider, in part, its order dismissing the appellant from his state civil service position of Supervising Veterinary Meat Inspector.
Appellant was dismissed by the Director of the Department of Agriculture. A notice of punitive action was filed, containing a statement of causes, as required by Section 19572 of the Government Code, and a statement of facts supporting the causes listed. Hearings were held before a hearing officer, and the Board, after consideration of the transcript, entered findings of fact and decision sustaining the dismissal of the appellant.
Appellant then brought mandate proceedings in the Superior Court. The issues were submitted to that court upon the record before the Board. The court found only part of the causes supported by substantial evidence and remanded the matter to the Board for reconsideration of the penalty imposed. Both parties have appealed.
The duties of appellant were officially defined as follows: 'Under general direction, to have charge of the administration of the meat inspection provisions of the Agricultural Code in an assigned district and, in connection therewith, to direct the work of a group of Veterinary Meat Inspectors and assistants, and on occasion to perform meat inspection work; and to do other work as required.' In actual practice, however, appellant had achieved an unusual status in that he became a recognized authority on the planning, construction, alteration and remodeling of meat slaughtering and processing plants throughout the state. Articles written by him concerning this specialized work of design had been published nationally, and engineers and architects sought and received his advice in plant design. In the performance of his somewhat specialized duties, he reviewed, corrected and passed upon plans for meat processing plants and consulted, advised and assisted establishment operators, owners and their architects and contractors in preparing such plans. He visited plants to ascertain that the facilities complied with all sanitary requirements of California law and with the rules and regulations of the Department of Agriculture; he advised and assisted plant owners and managers in meeting those requirements. He was the only employee of the department engaged wholly in the particular phase in which he had specialized.
Pursuant to procedural requirements of the Government Code, Sections 19570 to 19588, the Director of Agriculture served and filed upon appellant a notice of punitive action which later on and during the proceedings was amended on several occasions. In its final form it specified 11 causes for punitive action. They were: 1. Inexcusable neglect of duty; 2. Insubordination; 3. Dishonesty; 4. Inexcusable absence without leave; 5. Wilful disobedience; 6. Violation of the Civil Service Act, Title 2, Division 5, Part 2, Government Code; 7. Failure of good behavior; 8. Acts during duty hours which are incompatible with the public service; 9. Acts during duty hours which are inimical to the public service; 10. Acts outside of duty hours which are incompatible with the public service; 11. Acts outside of duty hours which are inimical to the public service. Complying with the further provisions of Section 19574 that the notice contain 'a statement in ordinary and concise language of the acts ar omissions upon which the causes are based', the notice of action set forth allegations which may be summarized as follows: That as a part of appellant's duties he was required to and did supervise the planning, construction, alteration and remodeling of meat slaughtering and processing plants throughout the state subject to or applying for state meat inspection; that he was further required to review, correct and pass upon such plans and assist establishment operators, owners, architects and contractors in preparing plans for meat establishments; that he was further required to survey buildings in which construction, alteration, or remodeling was contemplated for use as meat establishments and to visit meat establishments in the course of construction or remodeling to see that such work was satisfactory and that sanitary requirements were met; that he was further required to make surveys of establishments which had made application for state inspection to determine whether they met the state sanitary and other requirements, to recommend changes in establishments in order that state requirements be met, and to specify and advise operators of the state requirements for plant sanitation and the necessary facilities for inspection. It was further asserted that during the year 1945 and on various occasions thereafter appellant's superior, the Chief of the Bureau of Meat Inspection, advised and instructed him that during his assigned hours of duty he was not to perform or carry out personal activities; that he was not to use state property or equipment in the performance of personal work or in the carrying on of personal activities; that neither during hours of duty nor hours outside of duty was he to perform services for owners or operators of establishments subject to state meat inspection or for contractors or architects working on or in connection with establishments subject to state meat inspection or on behalf of anyone else interested in or connected with establishments under state meat inspection if for such work or activities he demanded or received any compensation or remuneration in addition to the regular salary paid him for the services performed in his said position. After these general allegations concerning his duty and his instructions, the notice of punitive action proceeded to assign four instances in which it was claimed the appellant had failed in his duty, disobeyed his instructions and had received compensation from prohibited persons for work done by him for them.
The first allegation of wrongful acts was the following: With regard to the Union Packing Company of Vernon, a meat slaughtering and processing establishment, subject, however, to federal inspection as opposed to state inspection, it was charged that in September of 1949 the company contemplated converting to state meat inspection and discussed the matter with appellant; that at least some of these conferences were during appellant's duty hours during which he made plant measurements and suggested plans for remodeling for state inspection; that he used a state automobile in connection with that activity and claimed and received reimbursement for travel expenses in connection therewith; that the knowledge he gained while working on the premises of the Union Packing Company during the period from September 13 to September 17, 1949 was necessary for, material to and was used by him in doing prohibited work for said company; that during October and November, 1949, outside of his duty hours, appellant worked for the Union Packing Company and in November presented to the company plans for the remodeling of their establishment, for which in March of 1950 he was paid by the company the sum of $500 which was payment for the work done for the company by appellant during both on duty and off duty hours.
As another incident of wrongful activity on the part of appellant the following allegations were made: That during August and September or 1950 one Minardi owned certain premises occupied by United Meat and Provision Company as lessee; that the lessee was operating thereon a meat slaughtering and processing establishment subject to and actually receiving state inspection; that Minardi proposed to remodel the premises and sought the advice and counsel of appellant with reference thereto; that with knowledge that United Meat and Provision Company was subject to state inspection and that said meat company would be subject to appellant's supervision in the future and with knowledge that any plans for remodeling said establishment would likewise be subject to his approval in connection with his position with the state, appellant did in August and September of 1950 prepare plans for Minardi; that he delivered the plans so prepared to Minardi in September of 1950 and by Minardi was paid the sum of $250 for the services so rendered; that thereafter the meat establishment continued to be subject to state inspection and plans for the remodeling of the establishment were submitted to appellant for approval.
As a further incident of improper action by appellant the following was alleged: That in November of 1946 appellant performed services for Jerome and George Siemsen who were operating a meat establishment subject to and receiving state inspection service, all of which appellant knew; that he advised the Siemsens in connection with his official duties that the establishment's plant did not comply with state requirements and that they did not have required facilities for state inspection service; that appellant performed services for the Siemsens consisting in the creating and furnishing of sketches and plans for the remodeling of their plant so as to meet state requirements; that he transferred said plans to the Siemsens and by them was paid on November 22, 1946 the sum of $500 therefor; that the Siemsens continued to operate under state inspection until December 31, 1950.
As a further incident of improper activity on the part of appellant, it was alleged as follows: That during the year 1947 and continuously up to the time the notice of punitive action was filed and served, the Grass Valley Meat Company of Grass Valley was a meat packing establishment under state inspection; that during a period of several months prior to April, 1950, and during that month appellant supplied plans to said meat company for the reconstruction of their meat packing establishment and supervised the construction of a killing unit and other buildings in connection with such reconstruction; that said services were so rendered by appellant during both on duty and off duty hours; that the reconstruction was finished about April 20, 1950 and the meat company paid appellant $850 for such services. It was also charged in connection with said Grass Valley Meat Company that it stored certain barrels of tallow for appellant which belonged to appellant, which services it rendered to him without charge.
The Board made findings of fact as to the allegations contained in the notice of punitive action. Speaking generally, they found the allegations as to the employment of appellant and as to his specialized services within his employment to be true. This finding is not disputed. With regard to the Union Packing Company incident, the Board found that the company was conducting a meat slaughtering establishment subject to federal meat inspection service and still continued to operate under that service and had never applied for state meat inspection. But the Board found further that previous to the month of September, 1949, the company contemplated the enlarging and altering of their said plant and were considering the advisability of converting to state inspection; that the company requested the Department of Agriculture to have appellant confer with them with regard to such contemplated remodeling and that appellant has been instructed to so confer; that from September 13, 1949 to about September 17, 1949, and during his duty hours appellant had conferred with officials of the company, had examined the existing meat establishement and obtained from the company the measurements of their existing plant for the purpose of supplying the company with plans for remodeling their establishment; that appellant had used a state automobile and had been reimbursed by the state for expenses during that period; that the services he had rendered to the company were performed by appellant as a part of and in connection with his civil service position; that the information he received furing that tour of duty was used by him in preparing plans for the company during off duty hours; that during such off duty hours appellant did further work for the company, and as a result of his inspection of the plant and obtaining of information during on duty hours and of his off duty work, he prepared and presented to the company plans for the remodeling of their meat establishment; that for all said things done he received from the company the sum of $500 in payment, which payment included payment for his on duty work as well as his off duty work.
Concerning the Minardi incident the Board, again speaking generally, found the allegations of the notice of punitive action to be true; that that plant was, during all its relations with appellant, receiving state inspection service; that appellant was called in particularly by Minardi to revise plans theretofore designed by an architect, to overcome a situation that had developed when it had been discovered that construction according to those plans as designed by the architect would result in overlapping the boundaries of Minardi's property. This necessitated readjusting the plans. It was found that Minardi's lessee intended to have the remodeling job passed by the state inspection service, and this involved appellant's supervision and approval of plans in aprt designed by himself; that for his work on the plans appellant had received from Minardi $250; that Minardi's plant had been remodeled and state inspection service thereafter has been accorded his lessee. While it was found that the plans appellant prepared and transferred to Minardi were prepared on appellant's own time, yet it was further found that in that preparation he had used information obtained by him during duty hours.
Concerning the Siemsen brothers incident occurring about November of 1946, the allegations of the notice of punitive action were substantially found to be true. It was found that beginning with late 1946 and continuing until December 31, 1950, when the plant went out of operation, the plant had been in an unsanitary condition and did not comply with the sanitary standards required by the Bureau of Meat Inspection; that these facts were throughout that period known by appellant; that prior to November of 1946 appellant has in the discharge of his duties inspected the establishment to ascertain whether or not it was up to standard, and thereafter and in November has advised Siemsen and one Howard Butler, an employee of the Siemsens, that the plant was in an unsanitary condition, did not comply with state meat inspection requirements, could not be remodeled to so comply and that another plant at a new location must be constructed if they were to continue to operate under state inspection; that this advice was true; that thereupon the Siemsens retained a building contractor to investigate the building of a new plant at a new location; and that the contractor, along with the Siemsens, requested appellant to create and furnish floor layout plans for a new establishment, which appellant did, drafting the plans outside of his duty hours. It is further found that he transferred the plans to the contractor, received from the contractor $500 therefor, which sum within a few days the Siemsens paid back to the contractor. It was found that the Siemsens continued to operate the slaughtering establishment at this old location until late in December of 1947, when they sold to two men, one of whom was the employee who had previously negotiated with appellant concerning the furnishing of said plans; that these assignees continued to operate the business in the old plant untilil December 31, 1948, when they closed that plant; that neither the Siemsens nor their assignee ha ever constructed the proposed new plant; that throughout the critical period the operators had insisted that the old plant did comply with state requirements, which contention, as the Board found, was untrue; that the plant could not be remodeled because of the nature of the terrain; and that appellant had known this during the whole period that the slaughtering business was being operated in an unsanitary plant.
Concerning the Grass Valley incident originating in 1946, the Board again substantially found the allegations of the notice of punitive action to be true. There were findings as follows: That from time to time beginning in 1946 and continuing until April 20, 1950, the operators had done work in remodeling and reconstructing their meat packing establishment, which at all times was under state inspection; that from time to time appellant inspected the work so being done; that in 1947 the operators requested him to and the appellant did, but on his own time and outside of duty hours, create a set of sketches and plans suitable for remodeling the plant for federal meat inspection, which plans and sketches were also suitable for and met the standards of state inspection; that for these plans it was agreed that appellant would receive somewhere between $800 and $1,000 when the same were completed; that on August 2, 1947, he was paid $500 and on April 20, 1950, received an additional $350; that after the agreement for plans and for payment therefor has been made and the plans had been furnished by appellant, the operators advised him they did not wish to proceed with further remodeling on such an extensive scale; that they did not wish to change from state inspection to federal inspection, and it was then agreed that appellant would create plans and sketches of a simpler nature suitable for operation under state inspection; that appellant did so create and furnish such new sketches and plans; and that no agreement was ever made for compensating him for the second set; that the operators reconstructed the plant, substantially following the second set of plans; and that in the performance of his duties and while construction was going on, appellant in his position did inspect the construction work from time to time. The allegations concerning the free storage of tallow were substantially found to be true.
It appeared during the hearing and the Board found that appellant had been an unusually efficient employee. He received an outstanding rating on the following factors: Relationship with people, initiative, analytical ability, and administrative ability. He received a standard rating on all other factors of performance. His last rating memo contained the following statement: 'You have been rated outstanding in performance items 4, 5, 7, and 9. You have demonstrated over a period of years that you get along well with people and are effective in achieving the deserved results from such relationships. Your work is well-performed, with a minimum of supervisions from this office. Much credit must be given to you for the constant improvement of the meat plants in the state during the past years.' However, the Board also found that at the time said performance report was rated and approved that neither the rater nor the approver knew that appellant had received compensation in addition to his state salary as found to have been the case. The Board further found that the improper acts and conduct of appellant has been done by him, knowing that they were in violation of the instructions given to him by his superiors and with the knowledge that they were in violation of the policies of the Department of Agriculture; that the acts recited were committed without good cause or excuse and had not been disclosed by appellant to his superiors.
The Board found that the conduct of appellant constituted inexcusable neglect of duty, insubordination, dishonesty, wilful disobedience, violation of Title 2, Division 5, Part 2 of the Government Code, failure of good behavior, acts during duty hours which were incompatible with the public service, acts during duty hours which were inimical to the public service, acts outside of duty hours which were incompatible with the public service, and acts outside of duty hours which were inimical to the public service within the meaning of Section 19572 of the Government Code. The Board found that appellant had not been guilty of the charge of having been absent without leave.
In conclusion, the Board decided to and did uphold the punitive action of the Director of Agriculture without modification. They decided further that each of the four incidents of misbehavior severally and separately and without reference to the others justified the discharge of appellant.
The record upon which the Board based its decision presents some sharp conflicts. For instance, it appeared that before any of the wrongful conduct as found occurred, the appellant had submitted to his superiors a communication in which he pointed out that he had, through application to duty, study and experience, gained special knowledge concerning the most economical and efficient way in which to design meat processing plants to meet both federal and state inspection requirements; that there was a dearth of such specialized professional knowledge; that there was a real demand for the services of one who could render such specialized service and furnish such expert advice; that the need was felt by architects, engineers and contractors engaged in designing, planning and constructing meat processing establishments; that he could, outside of duty hours, supply designs and floor layouts for such plants and obtain compensation for such work from those whom he could thus serve; that he considered there was nothing incompatible with his state position if, during off duty hours, he should enhance his income by such means. There was no dispute but that such a communication had been made by appellant to his superiors. The conflict appeared in their reaction to it. Appellant testified that he was orally told that there was no objection to his rendering such specialized off duty services and obtaining compensation therefor. His superiors, however, testified that no such advice was given, and that, on the contrary, one of them told him that such work would be incompatible in that he would be furnishing plans, making designs and accepting employment from operators building plants in accordance with his designs; that as the plans were constructed hw would again have to pass upon and either approve or disapprove the product of his own compensated work; that he would destroy his impartiality, both actually and in view of those who had employed him. The Board found that he had been specifically told he was not to engage in the proposed activities for compensation. On this appeal we must, of course, accept the evidence supporting the punitive action. It also was substantially shown that he did not inform his superiors of the incidents covered by the findings wherein he was paid for the preparation of plans and designs. There was no dispute but that he had done the work or that he had received money therefor. While the findings were that some of the work had been done while he was on duty, we think it only fair to say that from the record it appears that if that were so, it was a matter of incidentally gaining, during the regular performance of his duties, information which later and during off duty hours he used in creating his plans. Both he and the operators who employed him testified that the work was done before the amount of pay was agreed upon, the that, after it had been completed and the plans delivered, he was asked in each instance how much he wanted for the work done; that he replied in each instance that whatever was satisfactory to the operators would be satisfactory to him and that, generally speaking, he was paid far less than the going price for such work.
In the light of the whole record we hold that the findings of fact made by the Board are sustained by substantial evidence; that the facts so found, in turn, support the Board's decision that they constitute the specified caused for punitive action. We hold also that the Board's decision upholding the punitive action taken by the Director constitutes action well within the bounds of the Board's discretion and that the same must be upheld on this appeal. This we say, notwithstanding the punitive action of discharging appellant from state service is severe. There appears to have been a considerable investigation of the appellant's conduct, going back at least six or seven years, and the result was the accumulation of charges which we have heretofore recited. It is noted that these incidents of misconduct are scattered over a period of around five years, and in view of the excellent rating enjoyed by appellant the punishment inflicted, that is, the separation of appellant from state service after nearly twenty-five years of sustained employment, may well seem unnecessarily severe. But, within broad limits, it is for the appointing power in the first instance, and the personnel board in the last instance, to measure out punishment for dereliction.
Appellant attacks the decision of the Board from many directions, but the overall quality of the decision stands impregnable. The fundamental issue presented was tersely stated by the trial court in the following language: 'Essentially the issue in this cause can be summed up in a single question--May a supervising meat inspector, whose duty requires him to supervise the planning, construction ans remodeling of meat processing plants, and to review, correct and pass upon the plans for those plants, accept money from plant operators or contractors for drawing plans himself? The question answers itself. The moment the inspector accepts money from the concern whose plans it is his duty to review, correct and pass upon, he disqualifies himself from approaching his assigned task and duty with a detached and impartial mind. It is immaterial that he draws plans on his own time and after duty hours. It is immaterial that the plans conform to the highest standard. It is immaterial whether the state or the public is injured or benefited. The inspector has ceased to be impartial. He is not entitled to sit in judgment upon his own work. This policy is clearly set forth in Section 19250 Government Code which reads in part as follows:--'In his official activites the State employee shall pursue the common good, and, not only be impartial, but so act as neither to endanger his impartiality nor to give occasion for distruct of his impartiality.''
The trial court found that the record did not substantially support the causes of 'inexcusable neglect of duty', 'insubordination', 'dishonesty', and 'wilful disobedience'. The trial court further found that acts during and outside duty hours incompatible with the public service which occurred after October 1, 1949 and before October 2, 1950 did not constitute acts incompatible with the public service. What we have already said sufficiently disposes of these findings, save only the finding concerning acts of incompatibility occurring after October 1, 1949 and before October 2, 1950. Obviously, the designations of causes overlap. Wilful disobedience may well include insubordination, and neither measures up to the required honest action of a public servant. Inexcusable neglect of duty is shown by acts of insubordination, wilful disobedience and dishonesty. A public servant who performs his duties cannot be guilty of either of the three.
The finding of the court that acts during and outside duty hours were not incompatible with the public service was grounded solely upon the court's construction of the effect of the amendment in 1949 to Section 19251 of the code. Before the 1949 amendment the code section read as follows: 'A State officer or employee shall not engage in any other activity or enterprise inconsistent, incompatible, or in conflict with his duties as a State officer or employee.'
The section followed Section 19250, which has not been amended and which enjoins upon every state employee a high standard of personal conduct in fulfilling the duties and responsibilities of his office. In 1949 Section 19251 was amended to read as follows: 'A state officer or employee shall not engage in any employment, activity, or enterprise which has been determined to be inconsistent, incompatible, or in conflict with his duties as a state officer or employee or with the duties, functions or responsibilities of his appointing power or the agency by which he is employed. 'Each appointing power shall determine and prescribe, subject to approval of the board, those activities which, for employees under his jurisdiction, will be considered inconsistent, incompatible or in conflict with their duties as state officers or employees. In making this determination the appointing power shall give consideration to employment, activity or enterprise which: (a) involves the use for private gain or advantage of state time, facilities, equipment and supplies; or the badge, uniform, prestige or influence of one's state office or employment or, (b) involves receipt or acceptance by the officer or employee of any money or other consideration from anyone other than the State for the performance of an act which the officer or employee, if not performing such act, would be required or expected to render in the regular course or hours of his state employment or as a part of his duties as a state officer or employee or, (c) involves the performance of an act in other than his capacity as a state officer or employee which act may later be subject directly or indirectly to the control, inspection, review, audit or enforcement by such officer or employee or the agency by which he is employed. 'Each state officer and employee shall during his hours of duty as a state officer or employee and subject to such other laws, rules or regulations as pertain thereto, devote his full time, attention and efforts to his state office or employment.'
The 1945 codification of the Civil Service Law in Section 19572 sets forth as one of the grounds or causes for discipline of state civil service employees, 'Any other failure of good behavior or acts which are incompatible with or inimical to the public service.' In 1949, also effective October 1st of that year, this provision was amended to add the following underlined portions: 'Any other failure of good behavior or acts either during or outside of duty hours which are incompatible with or inimical to the public service.' The substance of the ruling of the superior court is to the effect that after the effective date of the amendment of Section 19251, Government Code, namely, October 1, 1949, and until appellant received, on October 16, 1951, a copy of the Department of Agriculture's 'Incompatibility Statement' incompatible acts were not a ground for discipline; and that, during the interval, all former rules, regulations and instructions, formal or informal, of the Department of Agriculture with respect to incompatible acts were repealed and voided by the adoption and effectiveness of the amended section. Furthermore, by reason of the same amendment, subdivision (s) of Section 19572 quoted above, referring to incompatible acts, was made dependent upon the promulgation of an 'incompatibility statement'. The result of this concept would be that no employee could be disciplined under Section 19572 for an act otherwise incompatible with state employment unless it was an act specifically enumerated within an 'incompatibility statement' issued after October 1, 1949. We hold this concept of the effect of the statutory requirement that incompatibility statements be issued to beerroneous. Of course, it is desirable for the guidance of state employees that an incompatibility list specially applicable to their particular work be issued by the appontive power. But whether the list be issued or not and however long the period between the effective date of the amendment requiring the list and the issuance of such list may be, the obligation of a public servant to refrain from acts incompatible to the public service continues. There is no hiatus.
The decision of the Board is affirmed. The order of remand is annulled.
SCHOTTKY, J., and McMURRAY, J. pro tem., concur. --------------- * Opinion vacated 307 P.2d 4.