Opinion
11-20-1952
THOMPSON v. CITY OF LONG BEACH et al. * Civ. 19006.
Kenneth Sperry, Long Beach, for appellant. Irving M. Smith, City Atty., Clifford E. Hayes, Deputy City Atty., and John R. Nimocks, Deputy City Atty., all of Long Beach, for respondents.
THOMPSON
v.
CITY OF LONG BEACH et al.
Nov. 20, 1952.
Hearing Granted Jan. 15, 1953.
Kenneth Sperry, Long Beach, for appellant.
Irving M. Smith, City Atty., Clifford E. Hayes, Deputy City Atty., and John R. Nimocks, Deputy City Atty., all of Long Beach, for respondents.
VALLEE, Justice.
Petitioner brought this proceeding in the superior court for a writ of mandamus to compel respondent City of Long Beach and its administrative officials to revoke an order discharging her from her employment as a stenographer in the classified civil service of the city, and to command them to pay her salary from September 7, 1949. The writ was denied. Plaintiff appeals from the judgment.
Petitioner was appointed a stenographer in the classified civil service of the city in 1923. In 1929, she was transferred to a similar position with the Civil Service Board, called the board, in which position she remained until the latter part of 1947. At that time, she was granted a leave of absence because of an impairment of her vision, which interfered with the performance of her duties. In August, 1948, she was given an indifinite suspension. In March, 1949, she had an operation for the removal of a cataract from her right eye, and thereafter wore corrective glasses.
On September 1, 1949, the board terminated the suspension and directed petitioner to report for duty. On September 6th she was notified to report for a physical examination. On September 8th she was given a physical examination by a board of physicians, as required by a rule of the board following a leave of absence of more than 6 months. The rule provides that failure to pass such examination shall constitute ground for suspension or dismissal. The report of the board of physicians was to the effect that petitioner's general physical condition was normal; that she had practically no vision in her left eye due to an immature cataract; that vision in her right eye was 20/400, which was corrected by the use of glasses to 20/20-3; and that she was 'not employable at present.' On September 15, 1949, the board adopted a resolution approving the report and denying petitioner re-employment.
On May 15, 1950, a notice of discharge was served on petitioner. After objections thereto and on June 7, 1950, the secretary of the board filed with the board, and served on petitioner, another written notice of discharge which stated: 'That the medical examination given you by the Board of Physicians of the City of Long Beach on the 8th day of September, 1949, establishes that you have contracted a physical ailment or defect which incapacitates you for the proper performance of the duties of your position, namely, practically no vision in the right eye but this is corrected through use of lenses and no vision in the left eye due to immature cataract * * *,' and that she could within 5 days file an answer with the board. Petitioner filed an answer denying that she failed to pass a physical examination based on her ability to perform the duties of a stenographer, and denying that she had contracted any physical ailment or defect.
On June 29, 1950, the board held a hearing at which petitioner and her counsel were present. Evidence was received on behalf of the board and of petitioner. At the conclusion of the hearing on June 29, 1950, by agreement with petitioner, the board adopted a resolution that an eye specialist be appointed to examine petitioner, and that interrogatories be submitted to him by the board and by petitioner. On July 13, 1950, the board selected Dr. Dennis Smith, an eye specialist, to examine petitioner. The chairman of the board notified Dr. Smith of his selection by a letter, which stated '[t]here was a dispute in the evidence and the Board is requesting you to examine Miss Thompson and give the Board your independent opinion on Miss Thompson's condition,' and propounded a number of questions which will be referred to, and transmitted a copy of the duties fixed for the position of stenographer.
On September 5, 1950, the board held a further hearing at which neither petitioner nor her attorney was present. The board received in evidence a report from Dr. Smith and a report of Dr. Behrend, assistant health officer of the city, and adopted a resolution removing petitioner from her employment. On January 29, 1951, after the alternative writ of mandamus issued in this proceeding, a special meeting of the board was held, at which the order of dismissal of September 5, 1950, was set aside and the matter restored to the calendar 'because of apparent irregularities in the hearing of September 5, 1950.' After notice to petitioner and her attorney and two continuances, the board, on February 28, 1951, without taking further evidence, approved and sustained the charges dismissing petitioner as a stenographer.
The trial court found that petitioner was not, after September 7, 1949, ready, able and willing to perform the duties of a stenographer in the classified service of the city, and that there was sufficient evidence offered and received to support the finding of the board. Petitioner contends these findings are without substantial support in the evidence. After a review of the record, we are constrained to agree.
At the trial in the superior court, the record before the board was received in evidence; petitioner and other witnesses testified without objection; and the rule of the board to which we have referred was read in evidence.
Petitioner was not entitled to a trial de novo in the superior court. She was entitled to a formal hearing on the complete record of the board, which includes the pleadings, all notices and orders issued by the board, the written evidence, the exhibits admitted or rejected, a transcript of all proceedings, and any other papers in the case. When the question in a proceeding for a writ of mandamus under section 1094.5 of the Code of Civil Procedure is whether the findings of a local administrative body are supported by substantial evidence in the light of the whole record, the petitioner is not entitled to introduce evidence, nor to submit to the court anything which was not before the administrative body. Code Civ.Proc. § 1094.5; Greif v. Dullea, 66 Cal.App.2d 986, 1009, 153 P.2d 581.
The rule of the board which requires an employee to take and pass a physical examination before resuming work after an extended absence, and which provides that failure to pass the examination shall constitute grounds for his suspension or dismissal, is a valid rule. But failure to pass the examination does not automatically disqualify an employee. The rule does not leave the determination of whether or not the employee shall be suspended or dismissed to the uncontrolled discretion of the examining physicians. Their findings and conclusions form merely part of the evidence to be considered by the board in determining whether the employee shall be suspended or dismissed. English v. City of Long Beach, 35 Cal.2d 155, 157-158, 217 P.2d 22, 18 A.L.R.2d 547. Thus, the only question properly before the board was whether the condition of petitioner's eyes was such as to incapacitate her from performing her duties as a stenographer--not whether she had failed to pass the physical examination.
The burden is on the officer seeking to bring about the discharge of a civil service employee--in the present case the civil service board itself--to establish the charge made in the written notice of discharge by substantial evidence; and unless this was done, petitioner is entitled to retain her position. La Prade v. Department of Water & Power, 27 Cal.2d 47, 50-51, 162 P.2d 13.
The following is a resume of the record before the board.
The health officer of the city testified he did not examine petitioner; he examined the report of the physicians who made the examination on September 8, 1949, and he approved the conclusion that petitioner was unable to perform her work as a stenographer by virtue of her defect; there was a marked visual defect in the right eye which was corrected, and there was practically no vision at all in her left eye, according to the report; vision in her right eye had been corrected to 20/20, which is regarded as perfect; the vision of a stenographer should have a fairly flawless acuity; a person with one good eye only could do satisfactory work, but a person with vision in both eyes can perform in a more satisfactory manner; he had never specialized 'in the eyes,' or fitted glasses; Dr. Godwin is an outstanding eye specialist.
Dr. Christie, a physician and surgeon, one of those who made the examination on September 8, 1949, testified that the condition of petitioner's vision was as shown on the report, and that: 'due to her poor vision of the right eye and being blind in the left eye' she was not fit for employment as a stenographer; she would not be fit for employment in the army, therefore she would not be fit for employment in the city; he is not an eye specialist; he has had no experience in hiring stenographic help; he did not consult with an oculist or eye specialist with respect to petitioner's vision.
Dr. McDowell, an osteopathic physician and surgeon, one of those who made the examination of September 8, 1949, testified to the same effect as Dr. Christie, and that: petitioner's vision would preclude her giving adequate service as a stenographer, he felt she would be handicapped; he does general surgery, not eye surgery; he does not make refractions; the examination was conducted by having petitioner stand about 20 feet from the customary eye chart, a card with letters of different sizes on it, no other equipment was used, and nothing further was done than having her read the chart with and without glasses; the examination took about 5 minutes.
Dr. Johns, a physician and surgeon, one of those who made the examination of September 8, 1949, testified to the same effect as Dr. Christie, and that: petitioner's impaired vision disqualified her to perform the duties of a stenographer; he had not examined her since September, 1949; he has no knowledge of her ability to do stenographic work as of May, 1950, or since; it is 12 years since he has done any refraction; the only test made in the examination was for distance; some people are not able to see at a distance but are able to do close work.
Dr. Godwin, called by petitioner, testified that: he is a physician and surgeon; his practice is exclusively the care and treatment of the eyes; he examined petitioner in the week before the hearing; she had been operated on for cataract in March, 1949; with the use of glasses, vision in her right eye is normal as far as visual acuity is concerned; vision in the left eye is that of the perception of light and the ability to count fingers at a distance of 18 inches; there is no reason in the world why petitioner cannot do stenographic work; the fact that a person has only one good eye does not make any appreciable difference in her ability to read; a person with one eye is handicapped where those functions requiring fine judgment of distance are concerned, which is not true of secretarial or stenographic work; a one-eyed person has less strain on long hours of effort than a two-eyed person because he does not have to keep the muscles of the eyes in such adjustment that both eyes are pointed the same way--the other eye pays no attention; the fact that petitioner has poor vision in her left eye would not have any effect upon her filling a stenographic position--it could have no bearing whatsoever; men in the army carry ratings as secretary and as stenographer with one eye gone; Wiley Post flew around the world with just one good eye; there is no difference at all in the ability of a person with one eye and two eyes to read--it has no bearing on efficiency.
A report of Dr. Weeks, an eye specialist, was offered by petitioner, and received in evidence. It stated that: he operated on petitioner's right eye for cataract extraction on March 15, 1949; the operation was entirely successful; final vision on August 22, 1949, was right eye corrected 20/20 with Jaeger 1, near vision at 14 inches with ease; petitioner was equipped with bifocal glasses, and has excellent distance and near vision; so far as stenographic work is concerned, she is equipped for visual acuity at a near point of 14 inches and will be slightly blurred for intermediate distance without a trifocal glass; these findings prevailed on June 29, 1950.
Miss Davis, a teacher in Long Beach City College, called by petitioner, testified that: she has had seven years' experience in hiring and supervising stenographic help; petitioner, since February, 1950, has been taking a course at the college in 'Skill Development,' starting with typewriting; she has been in attendance a total of 112 hours; she has done very fine work as a typist; her speed is above average; I was not conscious of her having poor vision; I did not know about it until quite recently; I did not know she had only one good eye.
Miss Huff, a teacher in Long Beach City College, called by petitioner, testified that: beginning in February, 1950, she supervised petitioner in a class in shorthand; she did not notice that petitioner had any difficulty in doing the work of a stenographer; petitioner did not appear to have any difficulty with her vision; she took difficult dictation at 100 words a minute, and short business letters at 120 words a minute, which is average; petitioner has been able to do stenographic work for the past 4 months.
Petitioner testified that: since September, 1949, she has been able to perform the work she was doing before her leave of absence; she is able to read (she read minutes of the board rapidly and without hesitation); since she has had glasses she has had no difficulty in reading; she reads constantly; she took stenographic work at City College to brush up, to review shorthand and typewriting, so that she would not lose her speed.
The report of Dr. Dennis Smith, the eye specialist appointed by the board, was as follows: 'I have completed the examination of Miss Helen C. Thompson requested by your Board and wish to submit herewith my report:
'On March 15, 1949, Miss Thompson had a cataract removed from her right eye by Dr. Carrol Weeks of Los Angeles. The operation was without complication, was done with the minimum of disfigurement and the result has been very satisfactory and excellent. As always, vision without glasses in the operated eye is much reduced ( 2/200) but since the operation left a round and unimpaired pupil she can see objects about her quite accurately even with no glass. With her correcting glass the vision is 20/25, and she can see some letters on the 20/20 line which is adjudged as the basis of normal vision. For reading or near vision she sees 15/21 which is about 90% normal. The vision of the left eye is limited to light perception only. The peripheral visual field of her right eye is unimpaired. Ocular tension and the external condition were both normal.'
The questions asked Dr. Smith by the board and his answers thereto were as follows: 'Q. Is Miss Thompson physically able to perform the duties of Stenographer if she is required to work five days a week, eight hours a day? A. As far as her eyes are concerned Miss Thompson is physically able to perform the duties of a stenographer working eight hours a day and five days a week. Aside from the general statement that she appears well and strong I have no opinion to offer as to her general medical condition as I made no such examination. 'Q. Could Miss Thompson's employment as a Stenographer aggravate the existing condition of her eyes? If so, to what extent? A. It is my belief that employment as a stenographer would not aggravate the existing condition of her eyes. 'Q. If Miss Thompson's vision should become further impaired, could it logically be contended that the impairment was brought about by reason of the performance of the duties of Stenographer? A. It is my belief that if later her vision, or the eyes, should become further impaired it would be due to factors inherent in the eyes or in her general medical condition or to extraneous conditions and not brought about by reason of the performance of the duties as a stenographer. 'Q. Suppose Miss Thompson's glasses should become broken or knocked from her head, could she observe objects or obstructions which might bring about possible injury? A. Without her glasses her vision is very much reduced but she can observe objects and obstructions, and although she obviously had to move more cautiously and slowly she got about several rooms in my office without any complication. 'Q. Can Miss Thompson detect changes in levels and visualize distances? A. Even without her glasses she could detect changes in levels and vizualize distances to a fair degree. With her glasses this was markedly improved but, since she has the use of only one eye, her estimation of heights and her projection of objects in distance or space is below normal. This is true of any person with but one usable eye and is not because of her cataract operation per se. It is difficult to express this impairment in measureable terms, and varies considerably with individuals. Some persons with two eyes seeing normally may even have greatly impaired depth perception and appreciation of spatial relations. 'In summary, I would state that I find little inherent in the eye condition which would be a serious or positive handicap to her work as a stenographer. 'To my certain knowledge other persons following successful cataract extraction have continued their previous occupation as a teacher, minister, physician and surgeon, farmer, truck driver, carpenter, cook, insurance agent, tailor, realtor, eye physician, pharmacist, barber, wood carver, chemist, and many other trades and professions with visual requirements fully as exacting as that of stenography. 'It is conceivable that certain conditions might arise in a specific type of work which would lessen one's value and proficiency as compared to that of others with normal eyes, but, in general, it is often surprising how well adapted a cataract patient may become.'
The report of Dr. Behrend, the assistant health officer of the city, contained the visual requirements for stenographers in several governmental agencies and one private company.
In a proceeding of this nature when it is claimed the findings of the administrative body are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines the findings are not supported by the weight of the evidence; and in all other cases, abuse of discretion is established if the court determines the findings are not supported 'by substantial evidence in the light of the whole record.' Code Civ.Proc. § 1094.5, subds. (b, c). In the present case, the court was not authorized by law to exercise its independent judgment on the evidence. 2 Cal.Jur.2d, p. 341, § 206, p. 363, § 220. Hence the question before the trial court was, and before this court is, whether the findings of the board are supported by substantial evidence in the light of the whole record.
The statute says an abuse of discretion is established if the court determines that the findings are not supported 'by substantial evidence in the light of the whole record.' Code Civ.Proc. § 1094.5, subd. (c). Italics added. The phrase 'in the light of the whole record' has meaning and must be given effect. Under the general rule in certiorari and on appeal from a judgment of a court, when it is claimed the evidence is insufficient to support the verdict or findings, it is sufficient if the evidence supporting the result is substantial when considered by itself: when the reviewing court can find in the record evidence which viewed in isolation substantiates the result. The meaning of the rule of substantial evidence in the light of the whole record was stated in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 464-466, 95 L.Ed. 456, 467-469, as follows: 'The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes [the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., and the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq.] that courts consider the whole record. * * * Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view. * * * The legislative history of these Acts demonstrates a purpose to impose on courts a responsibility which has not always been recognized. * * * 'We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. * * * The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.'
A reviewing court is not permitted to weigh the evidence, resolve its conflicting inferences, or draw its own conclusions therefrom. When supported by substantial evidence in the light of the whole record, the administrative agency's choice between two conflicting views may not be displaced even though the reviewing court would justifiably have made a different choice had the matter been before it de novo. However, a reviewing court should not consider itself bound by a finding of an administrative agency which has no reasonable basis in the evidence. West v. Industrial Accident Comm., 79 Cal.App.2d 711, 720, 180 P.2d 972.
'A medical expert is not qualified as a witness unless it is shown that he is familiar with the standards required of physicians under similar circumstances. * * * The competency of an expert 'is in every case a relative one, i. e. relative to the topic about which the person is asked to make his statement.'' Huffman v. Lindquist, 37 Cal.2d 465, 476, 234 P.2d 34, 41. Expert testimony is no stronger than the facts upon which it is predicated. Owings v. Industrial Accident Comm., 31 Cal.2d 689, 692, 192 P.2d 1; West v. Industrial Accident Comm., 79 Cal.App.2d 711, 716, 180 P.2d 972; Blankenfeld v. Industrial Accident Comm., 36 Cal.App.2d 690, 698, 98 P.2d 584. The opinions of medical experts 'are to be tested by a consideration of the facts from which those opinions are derived; and if those facts do not justify the conclusions, the opinions are arbitrary, and without substantial value as evidence.' In re Guardianship of Waite, 14 Cal.2d 727, 731, 97 P.2d 238, 240. 'The rule is well settled in this state that, as against positive, uncontradicted factual evidence applicable to the particular case, particularly when given by attending physicians, opinions of experts as to probabilities or possibilities (particularly when partially based on erroneous assumptions) creates no conflict. [Citations.] While it is true that an appellate court has no power to set aside findings of a judicial body vested with fact finding power when such findings are based on conflicting evidence, it is equally well settled that for that rule to apply the conflict must be substantial and real and not fanciful or fictitious.' Brant v. Retirement Board of San Francisco, 57 Cal.App.2d 721, 733-734, 135 P.2d 396, 403. Mere conclusions are not sufficient to meet the definition of substantial evidence as against positive, direct evidence of a fact. Thoreau v. Industrial Accident Comm., 120 Cal.App. 67, 73, 7 P.2d 767.
Applying the rules stated, it is apparent that the implied findings of the board are not supported by substantial evidence in the light of the whole record. The only evidence that the condition of petitioner's eyes was such that she could not perform the duties of a stenographer came from the general practitioners and the health officer. The opinions of the general practitioners were based not on tests such as were given by the eye specialists to determine petitioner's ability to do stenographic work, but on distance tests, made more than 8 months before the hearing. No equipment was used in making the examination except an eye chart which is a card with a number of letters of different sizes on it. All that was done was to have petitioner stand 20 feet from the chart and have her read to see what letters she could read at that distance with and without glasses. The test took five minutes. They made no test of close vision. They made no test to determine whether petitioner's visual acuity was such as to interfere with her ability to do stenographic work. No effort was made to ascertain whether she could read rapidly or readily, other than to read the chart. None of the general practitioners had any knowledge of, or had consulted an eye specialist to determine, the effect of a cataract removal on petitioner's ability to do stenographic work. None of them expressed an opinion as to her ability to perform her duties at the time the charges were filed. Their opinions appear to have been based largely on the false premise that the board had adopted a rule which required that stenographers have 20/20 vision in both eyes.
One of the general practitioners, Dr. McDowell, testified there is a difference between testing close vision and testing distance vision. He said he could not say that a person with only one eye would be handicapped in close reading. Dr. Johns, also one of the general practitioners, testified he had no knowledge as to petitioner's ability to do stenographic work on May 15, 1950, (8 months after the examination), or thereafter; and that no effort was made in the examination by the medical board to test petitioner's close vision or to determine her ability to read other than to read the chart.
The opinion of the health officer as to petitioner's ability, based as it was solely on a reading of the report of the examining general practitioners, is of no value. However, he testified that a person with one good eye could do satisfactory stenographic work.
In its final analysis, all the testimony of the general practitioners and the health officer amounted to was that, according to a standard test for distance vision, petitioner had no vision in her left eye, and that vision in her right eye with corrective glasses was 20/20-3. Having made no tests to determine her ability to read, other than to read the chart, or to perform the duties of a stenographer, their testimony concerning her ability in that respect was purely speculative. Their opinions, based as they were solely on a distance test--on facts which do not justify their conclusions--are in fact and in law no evidence at all on the question whether petitioner was able to perform satisfactory work as a stenographer. They do not create any real conflict in the evidence and do not support the charge on which petitioner was dismissed.
All of the eye specialists, including the specialist appointed by the board, expressed the unqualified opinion that petitioner was able to satisfactorily perform the duties of a stenographer working eight hours a day, five days a week. Their opinions were positive, unequivocal, uncontradicted, and based on tests made of the very purpose of determining petitioner's ability to perform satisfactory work as a stenographer.
The only direct evidence with respect to petitioner's ability to perform her duties was that of the two teachers in Long Beach City College, and the fact that at the hearing petitioner read minutes of the board rapidly and without hesitation. The teachers, persons of experience, the only witnesses who had an opportunity to observe petitioner's work as a stenographer, found that she did her work satisfactorily. Their testimony is undisputed. Neither one of them knew at the time that she had only one eye.
The conclusion of the board appears to have been based on the theory that it was 'in the best interests of the city' to discharge petitioner as recited in its minutes of September 5, 1950. But the rule provides that in order to discharge an employee he must have 'some physical ailment or defect which incapacitates him from the proper performance of the duties of his position.'
The implied findings of the board are contrary to the evidence read as a whole. The evidence before the board is susceptible of but one reasonable conclusion; that petitioner is ready, willing, and able to perform the duties of a stenographer and has no physical ailment or defect which incapacitates her from the proper performance of the duties of her position. There was no substantial evidence to the contrary.
We conclude that the implied findings of the board are not supported by substantial evidence in the light of the whole record. The finding of the trial court to the effect that the findings of the board are supported by substantial evidence is therefore erroneous.
On September 1, 1949, the board terminated petitioner's suspension and directed that she report for duty. She was so notified and reported. The record is not clear as to the date she was notified nor as to the date she reported for duty. However, she reported for the physical examination on September 8, 1949. Petitioner contends she is entitled to payment of her salary from the date she reported to work, which on the record we take to be September 8, 1949, until she is lawfully discharged. Respondents contend she was discharged the date the charges were served on her and that she is not entitled to salary thereafter. Petitioner was in the classified civil service with permanent status. The charges on which the matter was heard were served on her on June 7, 1950. A notice of discharge and charges had been served on her on May 15, 1950; but when she objected to their sufficiency, they were superseded by a new notice and charges served on June 7th. Petitioner filed an answer and notice of appeal.
Section 90 of the charter of Long Beach provides that in the classified service all removals shall be subject to the civil service provisions of the charter. Stat.1923, p. 1628. Section 98 provides that members of the civil service board shall be appointed by the city council. Stat.1933, p. 3011. Section 99 provides that the board may appoint such subordinates as the council may by ordinance prescribe. Stat.1921, pp. 2057, 2091. Section 106, as originally enacted in 1921, read: 'No employee in the classified service shall be discharged or reduced in rank or compensation until he has been presented with reasons for such discharge or reduction in rank or compensation specifically stated in writing, and has been given an opportunity to be heard before the board in his own defense. The reason for such discharge or reduction, and any reply in writing thereto by such employee, shall be filed with the civil service board; PROVIDED, that the provisions of this section are at all times subject and subordinate to the provisions of section 108.' Stat.1921, p. 2093. In 1923, section 106 was amended to read as it now does by adding the following after the semicolon in the second sentence and before the word 'Provided,' 'Verified written charges may be filed by any qualified elector of the city of Long Beach under such rules and regulations as may be prescribed by the civil service board. All charges shall be heard and trials had under such rules as the civil service board may prescribe.' Stat.1923, p. 1628.
Section 107 reads: 'Any employee of any department in the city in the classified service who is suspended, reduced in rank, or dismissed from a department by the head of that department, or the city manager, may appeal from the decision of such officer to the civil service board, and such board shall define the manner, time, and place by which such appeal shall be heard. The judgment of such board shall be final; PROVIDED, that the provisions of this section are at all times subject and subordinate to the provisions of section 108.' Stat.1921, p. 2093. Section 108 provides for summary dismissal of appointive officers and employees by the city manager with the consent of two-thirds of the council. Stat.1923, p. 1629.
We are of the opinion that an employee of the civil service board with civil service status is not discharged by merely presenting the employee with reasons for his discharge in writing. Section 106 specifically says that no employee in the classified service shall be discharged until he 'has been given an opportunity to be heard before the board in his own defense', and that all charges shall be heard and trials had under rules prescribed by the board. Section 107 merely establishes an orderly procedure by which the action in presenting the notice of discharge shall be examined. Cf. Steen v. Board of Civil Service Com'rs, 26 Cal.2d 716, 720, 160 P.2d 816. As said in the Steen case, 26 Cal.2d at page 720, 160 P.2d at page 818: 'The grounds of the discharge must be set forth in its notice of discharge which must be both filed with the board and served upon the employee affected; thus indicating that the department's action is not to be deemed final, but rather as a preliminary step in a series.'
This construction is in accord with the rules of the board which provide: 'Sec. 9. Failure to Appeal or Answer. If the accused employee fails to appeal within the time provided herein, the order of reduction, or suspension, or dismissal shall be final without any action of the Board. If the accused employee files a written notice of appeal and does not file his written answer, as herein provided, then such failure shall be construed as an admission of the truth of the charges made against him, and an order for the removal of such employee shall be entered forthwith and filed by the Board.' It is also consonant with the provisions of the former charter of Long Beach. See Stat.1915, p. 1681, § 23.
Petitioner retains her civil service status until she is legally discharged. Steen v. Board of Civil Service Com'rs, 26 Cal.2d 716, 160 P.2d 816; Ahlstedt v. Board of Education, 79 Cal.App.2d 845, 180 P.2d 949; Borch v. City of Los Angeles, 94 Cal.App.2d 458, 461-462, 210 P.2d 736. A discharge is not effective until the board on substantial evidence has so ordered. Ahlstedt v. Board of Education, 79 Cal.App.2d 845, 180 P.2d 949; Spaletta v. Kelly, 30 Cal.App.2d 656, 662, 86 P.2d 1074; Cf. Curl v. Pacific Home, 108 Cal.App.2d 655, 661, 239 P.2d 481. The right to receive salary is inherent in the status of a civil service employee. Such an employee who has been unlawfully deprived of his position is entitled to recover the amount. of his accrued salary during the period he is prevented from performing his duties, less the amount he has received from private or public employment during said period. Buckman v. Board of Supervisors, 37 Cal.2d 305, 307, 231 P.2d 496; Ahlstedt v. Board of Education, 79 Cal.App.2d 845, 857, 180 P.2d 949; Stockton v. Department of Employment, 25 Cal.2d 264, 153 P.2d 741.
Petitioner, pursuant to order of the board, reported for work at least as early as September 8, 1949. She is therefore entitled to her salary from that date until she is legally discharged or her employment otherwise legally terminated, less the amount she has received from private or public employment during that period.
The Long Beach Civil Service Board acts as a local administrative tribunal, and it has power to make adjudications of fact in connection with matters properly submitted to it. English v. City of Long Beach, 35 Cal.2d 155, 158, 217 P.2d 22, 18 A.L.R.2d 547. Where determinative powers are vested in a local administrative agency and the court finds its decision lacks evidentiary basis, the proper procedure is to remand the matter to the agency for further and proper proceedings. Fascination, Inc., v. Hoover, 39 Cal.2d 260, 268, 246 P.2d 656, and cases there cited.
The judgment is reversed with directions to the superior court to make findings of fact and conclusions of law in accord with the views we have expressed, and to render judgment remanding the matter to the civil service board with directions to set aside its order of February 28, 1951, and for further and proper proceedings; and the superior court is further directed to take evidence as to the remuneration received by petitioner from public or private employment and to render judgment for petitioner for the salary applicable to her position as stenographer from September 8, 1949, less the amount received by her from public or private employment.
SHINN, P. J., and PARKER WOOD, J., concur. --------------- * Subsequent opinion 259 P.2d 649. 1 Section 106 in full now reads: 'No employee in the classified service shall be discharged or reduced in rank or compensation until he has been presented with reasons for such discharge or reduction in rank or compensation specifically stated in writing, and has been given an opportunity to be heard before the board in his own defense. The reason for such discharge or reduction and any reply thereto by such employee, shall be in writing and filed with the civil service board. Verified written charges may be filed by any qualified elector of the city of Long Beach under such rules and regulations as may be prescribed by the civil service board. All charges shall be heard and trials had under such rules as the civil service board may prescribe. Provided, that the provisions of this section are at all times subject and subordinate to the provisions of Section 108.'