City & County of San Francisco v. Superior Court

CARTER, J.

I concur in the result but not the reasoning in the majority opinion. As I understand the opinion, it holds that the court cannot properly compel the civil service commission to include, as a part of its public records, the names of the private employers and the information each gave on his wage scale, in spite of the charter provision (§ 151) requiring the commission to “set forth in (its) official records of its proceedings all of the data thus obtained,” that is, by its investigation. That result is reached by reasoning that inasmuch as the commission gave a pledge of secrecy, it *165 would be against, public policy to compel it. to divulge the information. I agree with that result. The opinion goes on to state, however, that it does not decide whether the charter requires the commission to include the information in its official records. It reserves that question for determination in the mandamus proceeding where it might be held that the charter provision compels those matters to be a part of the record, and inasmuch as the commission has not done so, it has not complied with the law (charter) in fixing the rates of pay. Thus on that ground alone the ordinance fixing the wage scale could be set aside. In that manner the commission would be required to keep faith with its pledge of secrecy by the court’s refusal to compel it to break its pledge, but still the commission or the city would suffer, for the reason that all its procedure and ordinance fixing wages are a nullity. In other words, the city bears the brunt of the failure of its commission to follow the charter.

This is an indirect approach for which I see no reason. The charter is clear and specifies that all the data obtained by the commission shall be set forth in its official records, and it should be so held at this time. If it is believed that data obtained by a promise of secrecy should not be used in this case even though the commission had no authority to give such a pledge, the more pertinent basis for such holding is estoppel. That is to say, the one giving the information, having done so on the assurance that it was confidential, may now claim that the city cannot reverse its position and betray that confidence. If it thus will not be permitted to comply with the law, it follows that the wage scale cannot stand, for it is not based upon the public record of the data obtained. The result is that the scale fixed is invalid on that ground alone and the trial court should be so advised to guide its decision in the mandamus action.

It may be said that City & County of San Francisco v. Boyd, 22 Cal.2d 685 [ 140 P.2d 666 ], holds that the commission need not set forth the name of each private employer and his wage scale, but if it does it is incorrect, for it fails to consider the effect of such a ruling. It would mean that there could be no effective review of the commission’s action. It is not clear from the face of the opinion, however, that that precise data was omitted from the public records of the commission in the Boyd case.

My view is that the city is estopped from disclosing the data obtained in confidence, but the ordinance fixing the *166 wage scale, which is based upon, said data, is invalid, and we should so hold. However, because of the pledge of secrecy the commission should not be required to divulge the information and therefore its order to the contrary should be made ineffective by prohibition, as is done by the majority opinion.

Respondents’ petition for a rehearing was denied January 15, 1952. Edmonds, J., and Carter, J., were of the opinion that the petition should be granted.