Fonseca v. Goodwin

NOURSE, P. J.

The plaintiff filed a petition in

certiorari

against Goodwin, as city manager of the city of San Jose, and against Lynch, as city clerk. A demurrer to the petition was sustained without leave to amend and judgment followed for the defendants.

The petition alleged that the petitioner was a duly appointed employee of the street department under the classified civil service; that, on October 7, 1932, a complaint was filed “with respondent” charging that petitioner “has wilfully failed, for a long period of time, to pay his just debts, and has filed a petition in bankruptcy in order to avoid the payment of such debts”; that “the matter proceeded to a hearing on said complaint”; and that after said hearing “respondent” made his order discharging petitioner permanently from the service; .that said order “was in excess of and without jurisdiction, and was committed without any substantial or legal cause”. The prayer is that the city manager certify the record leading up to the order of discharge.

The pertinent provisions of the charter under which the respondents justify the discharge of petitioner are found in section 57 which authorizes the city manager to remove any employee within the civil service—“provided that he must file with the council and the civil service commission a statement of the grounds of the removal and give to the person sought to be removed an opportunity to be heard in

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his own defense at a public hearing”. (Stats. 1915, p. 1890.) This section was included in the new- charter adopted in 1915 which contained a complete scheme for the so-called “city manager plan” of local government. The old charter, which it supplanted, contained a course of procedure for the filing and trial of charges “in any case of 'removal for cause’ ”. (Stats. 1897, p. 629.)

It should be noted that the charter does not provide for the filing of charges,, nor that the employee can be removed only “for cause” or after a finding sustaining any charges made and heard. A reading of the civil service provisions of the charter would indicate that the public hearing is for the sole purpose of permitting the employee to publicly present his side of the controversy and thus deter arbitrary or capricious removals by the manager. In this respect the charter is similar to that of the county of Los Angeles which was interpreted in