Opinion
Rehearing Denied March 15, 1929
Hearing Granted by Supreme Court April 11, 1929
Appeal from Superior Court, City and County of San Francisco; J.J. Trabucco, Judge.
Action for writ of mandate requiring reinstatement to civil service position by James F. Rodgers against the Board of Public Works of the City and County of San Francisco and others. From a judgment granting the writ, defendants appeal. Reversed.
COUNSEL
John J. O’Toole, City Atty., and Thomas P. Slevin, Asst. City Atty., both of San Francisco, for appellants.
Joseph T. Curley and Marvin C. Hix, both of San Francisco, for respondent.
OPINION
PER CURIAM.
An appeal from a judgment granting a peremptory writ of mandate requiring the board of public works of the city and county of San Francisco to transmit to the civil service commission of the municipality a warrant representing an amount claimed by petitioner as wages, directing the commission to approve the same for payment, to reinstate petitioner’s name on the official records of the commission as occupying the permanent position of granite cutter, and directing the board of public works, by virtue of and following such reinstatement, to admit him to the performance of the duties of the position.
The charter of the city and county makes provision for a system of civil service, and creates a civil service commission. The commission is required to classify in accordance with the duties attached thereto all places of employment in or under the offices and departments of the city and county not exempted, and to conduct examinations of applicants for places in the classified services. Petitioner on February 18, 1923, participated in an examination conducted by the commission for the purpose of establishing a list or register of those eligible for the position of granite cutter, as a result of which he was placed twelfth on the register prepared by the commission. The rules of the commission provided that after the lapse of four years the register so prepared should expire, and following another examination a new register of those eligible for the position should be prepared. Petitioner’s first appointment was made in response to a requisition from the board of public works dated July 13, 1925, following which he was certified by the commission from the above list for appointment to the position of granite cutter. Thereafter, between July 29, 1925, and May 15, 1926, he worked 216 and a fraction days, being laid off on account of a lack of funds for the employment of granite cutters. Following this action, his name was returned to the register of those eligible for employment in that capacity. A like appointment following a similar requisition and certification was made on March 1, 1927, and petitioner was again employed between that date and September 30, 1927. During that period he worked 19 and a fraction days, his employment again ceasing by reason of a lack of funds. This register, under the rules of the commission, expired on March 14, 1927, and during that year another examination was held in which petitioner participated, and following which a new register was adopted on November 14, 1927. When requisitions for granite cutters were subsequently made, the commission certified the names of persons who, as the result of the last examination, ranked higher on the register of eligibles than petitioner, and for that reason he has not since been employed by the municipality.
The trial court found that from January 25, 1928, to March 6, 1928, the position of granite cutter was filled by a person not entitled thereto, who worked 30½ days; that, had the petitioner been employed, he would have been entitled to receive from the municipality the sum of $289.75.
Petitioner contends that, in view of the facts, his position under the provisions of the charter was permanent, and that his name should be carried on the records of the commission as a permanent civil service employee, having preference in re-employment whenever the services of a granite cutter are required.
The charter provisions and rules of the commission here material are as follows:
Charter, art. XIII, § 2: "The Commissioners shall classify, in accordance with duties attached thereto, all places of employment in or under the offices and departments of the City and County. *** The Commissioners may grade, and from time to time regrade, the positions covered by any class, in accordance with salaries and duties, to the end that like salaries shall be paid for like duties. The Commissioners may from time to time provide by rule for the manner in which such positions shall be filled. *** Any classification or grading may be amended or abolished by the Commission, and classes calling for similar qualifications may be consolidated, but persons who have been appointed from any such class shall retain any position lawfully held thereunder so long as such position is maintained unless removed in accordance with the provisions of Section 12. ***"
Section 3: "The Commissioners shall make rules to carry out the purposes of this Article, and for examinations, appointments, promotions and removals. ***"
Section 7: "*** The Commissioners shall prepare a register for each grade or class of positions in the classified service of the City and County of the persons whose general average standing upon examination for such grade or class is not less than the minimum fixed by the rules of the Commissioners, and who are otherwise eligible. Such persons shall take rank upon the register as candidates in the order of their relative excellence, as determined by examination, without reference to priority of time of examination."
Section 9: "Whenever a position classified under this Article is to be filled, the head of the department or office controlling such position shall notify the Commission of that fact, and the Commission shall then certify to the appointing officer the name and address of one or more candidates in the discretion of the Commission, but not exceeding three, standing highest upon the register for the class or grade to which the position belongs. ***"
Section 10: "*** Such appointment shall be on probation for a period to be fixed by the rules of the Commissioners; but such rules shall not fix such period at exceeding six months. The Commissioners may strike off names of candidates from the register after they have remained thereon more than two years. At or before the expiration of the period of probation, the head of the department or office in which a candidate is employed may, by and with the consent of the Commissioners, discharge him upon assigning in writing his reason therefor to the Commissioners. If he is not then discharged his appointment shall be deemed complete. To prevent the stoppage of public business, or to meet extraordinary exigencies, the head of any department or office may, with the approval of the Commissioners, make temporary appointments, to remain in force not exceeding sixty days, and only until regular appointments, under the provisions of this Article, can be made."
Section 12: "No person employed in the classified civil service shall be removed or discharged except for cause. ***"
Rules of the Commission:
Rule 19: "Probationary Period. Section 1. Applies to Permanent Position Only.— The probationary period provided for by Section 10, Article XIII, of the Charter may be served only in a position defined by Rule 33 as a permanent position. Persons appointed to a permanent position shall serve a period of six months consecutively, after which the appointment shall be deemed complete. An appointee who has served the probationary period as herein defined is entitled to hold the position as long as it exists and no change of title or salary shall be deemed to change his right to such position so long as the duties remain substantially the same as when such appointment was made. ***"
Rule 33: "Permanent and Temporary Positions. All positions which are expected by the appointing power to exist for a period of six months or over shall be considered for the purposes of the rules of this Commission, as permanent positions. All other positions shall be considered as temporary positions, and appointments to temporary positions shall automatically expire at the end of four months. The probable period of employment must be specified by the appointing power in its requisition. This rule shall govern only appointments made after July 15, 1912."
Rule 22: "Reduction in Force. Section 1. Temporary Positions.— Persons appointed to temporary positions shall be ‘laid off’ or relieved from duty in the inverse order of their rank on the eligible list. Upon being laid off they shall resume their respective places upon the register of eligibles. Section 2. Permanent Positions.— Whenever it becomes necessary to reduce the number of employees in permanent positions in any department, the employee last appointed in such position in that department shall be laid off first; and he shall be returned to his place on the eligible register. Section 4. Hold-Overs.— Whenever, because of lack of work or lack of funds, or for purposes of retrenchment, a person who has served for one year, continuously under appointment in an original entrance position that is considered within the meaning of the rules of this Commission as a permanent position, is laid off or separated from such position, he shall, while so separated from such position, be termed a ‘hold-over’ and shall be preferred for reappointment in the first vacancy thereafter occurring in the class from which he was so separated; provided that if there be more than one such ‘hold-over’ in a class, the one having the longest service under permanent appointment for the period of two years next preceding the date of receipt of requisition shall be given the preference, and when ties exist in the service during such two-year period the person who was in line first for original appointment shall be preferred. When such ‘hold-overs’ have not been re-appointed to a permanent position within a period of two years from the date of their last lay-off, their eligibility for reappointment may be cancelled by the Commission. Persons appointed to positions considered as permanent under the rule who are laid off because of lack of work or lack of funds before having served one year continuously under such permanent appointment shall be returned to the existing list of eligibles according to the general average percentage they received in examination and shall be treated as new eligibles."
The question involved relates to the tenure and employment of civil service employees, and the further question of whether, when the employment of an appointee has ceased by reason of the discontinuance of the position or the completion of the work for which he was employed, he is entitled to a preference in re-employment when the need again arises for services of the character rendered by him. This question is primarily controlled by sections 2 and 10 of article XIII of the charter, and, secondly, by rules made by the commission under the power conferred by the civil service provisions of the charter. Under these sections, appointments are required to be on probation; the probationary period may not be longer than six months, and, if the appointee is not at that time or prior thereto discharged, he is entitled to retain such position so long as it is maintained (section 2), unless removed in accordance with section 12. These appointments are termed by the charter (section 10) "regular" appointments, as distinguished from "emergency" appointments of not exceeding sixty days’ duration, authorized by the same section. This does not mean, however, that at the expiration of the probationary period the appointment becomes permanent in any sense other than that the appointee cannot be discharged except for cause and after trial, so long as there is work for him in his position, his only right under the provisions of the charter upon being relieved of his position through its abolition or the completion of the work for which he was employed being the right to be returned to the eligible list, and upon such return he is given no preference by reason of his previous employment, except in so far as the rules of the commission may accord it.
Under the power to make rules given to the commission by the charter for the purpose of carrying into effect the civil service provisions thereof, the commission has divided the positions classed by the charter as regular positions into permanent and temporary; the former being those positions which are expected by the appointing power to exist for a period of six months or over, the latter consisting of those which by the appointing power are expected to be of short duration (rule 33). The probationary period prescribed by the charter is applied by the commission (rule 19) only to the first-mentioned of these classes. By rule 22, § § 1 and 2, it is provided that, whenever it becomes necessary to reduce the number of employees, the employees laid off shall be returned to their places on the eligible list, but by section 4 of said rule 22 it is further provided that, whenever such a person has served continuously for one year in a position that is considered within the meaning of the rules of the commission as a permanent position, he shall be termed a hold-over, and shall be preferred for appointment to the first vacancy occurring in the class from which he was relieved. The persons appointed to such positions who are laid off before having served one year continuously shall be returned to the existing list of eligibles according to the general average percentage they received in examination, and shall be treated as new eligibles.
By this rule 22 it will be perceived that there is a preference in the matter of re-employment accorded to former employees who theretofore have served continuously for one year. The petitioner in the present case had not served continuously for one year in his previous employment, and was therefore not entitled to this preference. His contention is that he had served continuously for more than six months, and, as the longest period of probation provided by the charter is six months, he held a permanent position, and is therefore entitled to the preference accorded by rule 22. The answer to this contention is that, while he held under a "regular" appointment which assured him undisturbed tenure so long as his position was maintained, yet upon his position ceasing to exist or, in the words of the charter, being no longer maintained, his only right was to be returned to the list of eligibles. Not having served continuously for twelve months in his position, he was not entitled to the benefit of rule 22 giving the preference in re-employment to those who had so served. In accordance with rule 22 he was then laid off, returned to his place on the list of eligibles, and, if he thereby found himself in competition with others on the list of higher rating, this is the exact position in which the charter placed him, and indeed the position in which he ought to be placed, if the spirit of the civil service provisions of the charter is to be given effect, which requires that vacant positions be filled by those highest on the eligible list.
For the foregoing reasons, the judgment is reversed.