Johnson v. County of Santa Clara

Opinion

Appeal by plaintiff and appellant from judgment of the Santa Clara County Superior Court.

Question Presented

Appellant’s action is not protected by the First Amendment.

Record

Appellant was a deputy probation officer in the Juvenile Probation Department of Santa Clara County. Michael Kuzirian, supervisor of probation services, received a request by one McDonald, a deputy probation officer, to be put back into field work. Determining that McDonald would be best placed in the unit where appellant was working, Kuzirian decided to transfer appellant to the dependency investigation unit because he had only had experience with delinquency cases, and to appoint McDonald to appellant’s position. Kuzirian felt the transfer would be good for appellant’s professional growth and that he would be valuable to the new unit since he is bilingual.

A hearing was had before the county personnel board. The testimony was uncontradicted that appellant was an excellent probation officer. His immediate supervisor testified that after notification of his transfer he got his case load ready for the new probation officer and did an excellent job in making the transition as smooth as possible. Even after appellant was dismissed, his replacement came to appellant’s home and received help with the problems of the cases.

Appellant testified that in the first stanza of the poem he was talking about the positive potential of individuals to contribute to society. In the second stanza he was speaking of people working together and the negative result that occurs when people are treated like objects rather than persons. In the last stanza, appellant was trying to express how things can “fall apart” when mutual cooperation disintegrates.

There was no work stoppage or interruption of the delivery of the department’s professional services, including appellant’s, either quantitatively or qualitatively, as a result of the posting of appellant’s poem. Work continued normally and the poem was allowed to remain posted for seven days after the department head knew of it.

The Personnel Board of the County of Santa Clara found that the county had not sustained the charge that appellant was incompetent in the performance of duties nor that, appellant conducted himself in a manner unbecoming a county officer or employee. The board recommended that appellant be reinstated. Under section 810 of the county charter, such findings and recommendations are advisory to the county executive, whose decision is final and conclusive.

The county executive felt that there was sufficient evidence presented to the personnel board to sustain the second charge. The executive ordered appellant suspended without pay for one month and transferred from the juvenile probation department to the adult probation department. The Santa Clara Superior Court denied appellant’s application for writ of mandate for an order directing respondent to set aside its decision. The judge of the superior court upheld the action of the county executive by finding that in this administrative review under Code of Civil Procedure section 1094.5, the record showed that there was substantial evidence to sustain the county executive’s findings and action.

Respondent contends that appellant has the burden of showing that he was dismissed from his employment for the exercise of constitutional rights. Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771 , 779 [ 97 Cal.Rptr. 657 , 489 P.2d 537 ] (cert. den. 405 U.S. 1030 [ 31 L.Ed.2d 488 , 92 S.Ct. 1301 ]) supports this contention. However, there is no question that appellant was disciplined because he wrote the poem quoted in the statement of facts and was responsible for its publication in the probation department. The crux of this appeal is to determine, as a matter of law, whether this poem and its use are exercises of appellant’s First Amendment rights and, if it is so determined, whether appellant may be disciplined for exercising those rights.

A governmental agency seeking to impose restrictions on the exercise of an employee’s constitutional rights must demonstrate that: (1) the governmental restraint rationally relates to the enhancement of the public service; (2) the benefits that the public gains by this restraint outweigh the resulting impairment of the constitutional right; and (3) no alternatives less subversive to the constitutional right are available. (Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499 , 501-502 [ 55 Cal. Rptr. 401 , 421 P.2d 409 ].) Pickering v. Board of Education (1968) 391 U.S. 563 [ 20 L.Ed.2d 811 , 88 S.Ct. 1731 ], is not in point. In Pickering, the appellant, a teacher in Illinois, was dismissed from his position by the board of education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. The appellant was dismissed after the board determined that the publication of the letter was detrimental to the efficient operation and administration of the schools of the district. The Supreme Court in reversing the dismissal of the appellant said that the problem presented by the case was to arrive at a “balance between the interests of the teacher, as a citizen, in commenting upon

It has been established in California for some time that a person cannot be barred from public employment in disregard of his constitutional rights. (Fort v. Civil Service Commission (1964) 61 Cal.2d 331 , 334 [ 38 Cal.Rptr. 625 , 392 P.2d 385 ].) The state may curtail First Amendment rights only when it can show a compelling state interest in so doing. (Id. at p. 337.) In order for the state to demonstrate a significant interest in the impairment of First Amendment rights it must meet the criteria as set out in Bagley. The state bears the heavy burden of demonstrating the practical necessity for limitation. (Vogel v. County of Los Angeles (1967) 68 Cal.2d 18 , 21 [ 64 Cal.Rptr. 409 , 434 P.2d 961 ].) “It must appear that restrictions ... are not broader than are required to preserve the efficiency and integrity of its public service,” (Fort v. Civil Service Commission, supra, at p. 338.)

Government Code section 19572 provides, in pertinent part, that “. . . failure of good behavior either during or outside of duty hours which is of such nature that it causes discredit to his agency or his employment” constitutes cause for removal of a public employee. It was under this section that appellant was charged with, and proved guilty of, conduct unbecoming a county officer or employee which tends to discredit the county or county service.

In weighing the effect of appellant’s actions, it is well to bear in mind the law as applicable to his situation. When the impairment of First Amendment rights appears and when the facts constituting such impairment are not contradicted, the question of whether such impairment is permissible is one of law and not of fact. (L. A. Teachers Union v. L. A. City Bd. of Ed., supra, 71 Cal.2d 551 , 556.)

“In determining whether an employee should be disciplined, whatever the cause, the overriding consideration is whether the conduct harms the public service.” (Blake v. State Personnel Board (1972) 25 Cal.App.3d 541 , 550-551 [ 102 Cal.Rptr. 50 ].) “If the misconduct bears some rational relationship to the employment and is of a character that can reasonably result in the impairment or disruption of public service,” the employee may be disciplined. (Id. at p. 550.)

An examination of the poem indicates that appellant was insubordinate, defiant and of an attitude that indicated that he would only conform to rulings of his superior with which he agreed. In the first paragraph appellant indicated that he will only work with a will when left to do what he feels is right (“when you leave me free to do what is right”). By saying don’t “try to push me all around your big chessboard,” he is saying, in effect, that the department head is abusing his authority and that if a difference of opinion arises between him and the writer, the latter will go his own way (“I know how to make my own music”). Stating to his superior, in private, “you help me hate you,” may be permissible but to announce it to the public is hardly conducive to good relations within the department. This statement also indicates that the hate will develop further if, as previously expressed, the writer is not given his own way. Then there is the reference to the “bomb.” No doubt it was merely intended as a metaphor, although it is equivocal enough for a juvenile court judge and the trial judge to take it literally as a threat. But it indicates that appellant intends to take some rather strong action against his superior.

There is nothing in the poem to indicate that appellant was trying, on behalf of the other members of the department, to call attention to any actions affecting them and suggesting reform thereof. The entire matter is personal to him. He was making a cause célebre of his objection to being transferred to another unit within the department, an act which was authorized for his development as well as in the interests of the department.

It is significant that two juvenile court judges, the juvenile justice commission, and the director of personnel all believed that, whether or not the