# Civil Service Assn. v. City & County of San Francisco

> California Supreme Court · October 26, 1978 · 22 Cal. 3d 552

URL: https://www.frixlaw.com/law-library/cases/9629742

## Case

- **Full name:** CIVIL SERVICE ASSOCIATION, LOCAL 400 Et Al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO Et Al., Defendants and Respondents
- **Court:** California Supreme Court
- **Decided:** October 26, 1978
- **Citations:** 22 Cal. 3d 552; 150 Cal. Rptr. 129; 586 P.2d 162; 99 L.R.R.M. (BNA) 3284; 1978 Cal. LEXIS 303
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tobriner
- **Judges:** Manuel, Tobriner
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

TOBRINER, J., Concurring and Dissenting.
I concur in the majority’s conclusion that under the Meyers-Milias-Brown Act the employees are entitled to union representation during the entire course of the employer-initiated disciplinary proceedings. In addition, I agree with the majority *569 that a permanent employee’s “right to continuous employment” constitutes a “legitimate claim of entitlement” under the relevant constitutional authorities so that such an employee must be accorded procedural due process whenever the government seeks to suspend him from employment without pay. (Ante, pp. 559-560.)
I cannot agree with the majority, however, that in this context the demands of due process are fully satisfied so long as the employer, within a reasonable time after the effective date of the employees’ suspension without pay, gives the employee an opportunity to answer the charges against him. In my view, the governing authorities establish that, in the absence of an emergency, a public employee must be afforded notice of any charges and an opportunity informally to answer such charges before incurring a suspension without pay.
As the majority recognizes, in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [ 724 Cal.Rptr. 14 , 539 P.2d 774 ], this court addressed the question of the procedures required by the Constitution in the case of the dismissal of a permanent public employee. Skelly held that “due process . . . mandate[s] that the employee be accorded certain procedural rights before the discipline becomes effective. As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Italics added.) ( 15 Cal.3d 194, 215 .)
Procedural protection prior to the imposition of discipline is important, the Skelly court pointed out, because even if postdiscipline proceedings ultimately vindicate the employee and provide a back-pay remedy, the employee is removed from the payroll pending such proceedings. Unless the employee has accumulated significant savings, he may be unable to support himself and his family during the interim. The suspension of an employee’s regular earnings for as long as a week can impose a serious deprivation upon the worker and his family.
Pretermination procedures also serve the important, if more subtle, purpose of according the accused individual a measure of respect and dignity, assuring him that he is not so insignificant that the government may curtail his livelihood—even for relatively short periods of time—without giving him some opportunity to explain or rebut the *570 charges against him. (Cf. Davis & Gilhool, The Economics of Constitutionalized Repossession: A Critique of Professor Johnson, and a Partial Reply (1975) 47 So.Cal.L.Rev. 116, 147-149; Tribe, Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality (1973) 46 So.Cal.L.Rev. 617, 631.)
The majority would distinguish Skelly on two grounds: “the shortness of the suspensions here involved” and “the city’s competing interest in prompt action for the maintenance of discipline.” (Ante, p. 563.) In my view, neither of these considerations supports the majority’s conclusion that absolutely no procedural safeguards need be afforded an employee prior to suspending him from his job without pay.
The city’s interest in imposing prompt discipline does not distinguish Skelly. In fact, that interest is more compelling in termination cases such as Skelly because the alleged transgression is generally more serious than in suspension cases. Yet Skelly established the principle that, absent an emergency, notice and an opportunity to respond must precede termination; the same principle should apply in suspension cases.
Thus the majority’s conclusion can only be based on its first ground: that the employee suffers a smaller deprivation when suspended rather than terminated. Certainly the severity of the deprivation is one element to be considered in determining how much process is due. But Goss v. Lopez (1975) 419 U.S. 565 [ 42 L.Ed.2d 725 , 95 S.Ct. 729 ] and subsequent cases refute the majority’s contention that an employee has no right to respond to the charges against him before he is suspended without pay for as much as a week.
In Goss the Supreme Court ruled that, absent an emergency, public school authorities could not suspend pupils for 10 days without first affording the students a chance to respond to the charges against them. “The concern would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never unfair. Unfortunately, this is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.” (Id., at pp. 579-580 [ 42 L.Ed.2d at p. 738 ].)
*571 Although Goss dealt with suspensions from school, the courts have applied its holding to public employment. In Muscare v. Quinn (7th Cir. 1975) 520 F.2d 1212, 1215 , certiorari dismissed (1976) 425 U.S. 560 [ 48 L.Ed.2d 165 , 96 S.Ct. 1752 ], the court, citing Goss , ruled that “[pjublic employees facing temporary suspension for less than 30 days have interests qualifying for protection under the Due Process Clause, and due process requires at the minimum that they be granted a hearing prior to suspension where they may be fully informed of the reasons for the proposed suspension and where they may challenge their sufficiency.” (See also, Waite v. Civil Service Commission (1978) — W.Va. — [ 241 S.E.2d 164, 170 ]; Bagby v. Beal (M.D. Pa. 1977) 439 F.Supp. 1257, 1261 [two-week suspension]; Eley v. Morris (N.D. Ga. 1975) 390 F.Supp. 913, 923 .)
The majority claims that Goss is inapposite here, but fails to point to any relevant distinction. The suspensions here not only deprive the employees of “protected interests,” but also of the funds they need to support themselves and their families. I cannot understand how the majority can conclude that a suspension from a job without pay creates a lesser hardship than a suspension from school.
Naturally, presuspension safeguards need not be as extensive as those preceding termination. The due process clause does not mandate that the employer permit workers to retain counsel, call witnesses or confront and cross-examine their accusers prior to suspension. But employers should be required to inform employees of the charges against them and give them a chance to respond informally, either orally or in writing, to the accusations. (Goss v. Lopez, supra, 419 U.S. at pp. 582-583 [42 L.Ed.2d at pp. 739-740].) “ ‘Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,’ the minimal requirements of the Clause must be satisfied.” (Id., at p. 574 [ 42 L.Ed.2d at p. 735 ], quoting Wisconsin v. Constantineau (1971) 400 U.S. 433, 437 [ 27 L.Ed.2d 515, 519 , 91 S.Ct. 507 ].)
I would grant a writ of mandate requiring the employer to afford plaintiffs an opportunity to respond to the charges against them before ordering suspensions.
Bird, C. J., and Newman, J., concurred.
On November 6, 1978, the judgment was modified to read as printed above.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629742. Public record. Not legal advice.