Boutwell v. State Board of Equalization

DOOLING, J.

On June 16, 1947, the State Personnel Board certified respondent Boutwell to the State Board of Equalization for probationary appointment to the position of liquor control officer and Boutwell received such appointment. On November 18, 1947 (admittedly within the probationary period), Boutwell was given written notice by appellant of his rejection from his position “because you have failed to demonstrate efficiency in your work” and a notice in writing of this action and the reason therefor was filed with the Personnel Board.

Boutwell appealed from the action of the Board of Equalization to the Personnel Board and after a hearing the Personnel Board found that in the rejection of Boutwell “Section 19173 of the Government Code has not been complied with” and ordered Boutwell restored to his position. The Board of Equalization refused to obey this order, Boutwell filed this action for writ of mandate to compel his restoration and the court after a trial entered judgment that the peremptory writ should issue as prayed. From that judgment this appeal is taken.

The case turns upon the proper construction of sections 19173 and 19175, Government Code. Those sections at that time read:

“ § 19173. Any probationer may be rejected by the appointing power during the probationary period for reasons relating to the probationer’s qualifications, the good of the service, or failure to demonstrate merit, efficiency, fitness, and moral responsibility.

“Notice of rejection accompanied by a statement of the specific reasons therefor, truthful within the knowledge of the appointing power or other officer or person in charge of the employee, shall be filed by the appointing power with the

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Board and a copy served upon the probationer to give effect to the rejection.”

“Sec. 19175. After investigation of the reasons for rejection of a probationer, the board may:

“ (a) Restore him to the eligible list for certification to any position within the class other than the position from which he was rejected; or

“ (b) If it is determined that Section 19173 has not been complied with, restore him to the position from which he was rejected.”