Swan v. Civil Service Commission

Opinion

ELKINGTON, J.

The question presented on this appeal from a judgment and writ of mandate is properly stated as: may a county be required to rehire as a “sanitarian” one whose services were terminated because

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he was neither a “registered sanitarian,” nor otherwise qualified as such under the provisions of Health and Safety Code sections 540-542 (div. 1, pt. 2, ch. 1, art. 5), enacted in 1945.

Health and Safety Code section 540 defines “sanitarian” as “a person trained in the field of sanitary science and technology who is qualified to carry out educational and inspectional duties and enforce the law in the field of sanitation.”

Section 541, as relevant to the issues before us provides that “The governing body ... of a county . . . may employ on a full time basis one or more sanitarians each of whom shall be a registered sanitarian as provided for in this article . . . .”

Section 542, as applicable, provides, (1) that the state may hold examinations “for the purpose of determining persons who are qualified and competent to act as registered sanitarians,” (2) for the issuance of “a certificate as a registered sanitarian to each person who passes such examination,” and (3) that “[t]he State Board of Public Health may by rule establish minimum standards and qualifications for such persons.”

Pursuant to the authority of section 542, the State Board of Public Health by rule (see 17 Adm. Code, § 7941, effective Jan. 1, 1958) established as a qualification for taking an examination for sanitarian, that the examinee hold a bachelor’s degree in any of certain designated fields or, not relevant here, certain alternative qualifications.

The facts of the case are not in dispute. Plaintiff and respondent Robert Swan has never been certified as a registered sanitarian, and he does not possess the educational or other qualifications required by the State Board of Public Health. In 1958 he went to work for Mendocino County as a sanitarian technician. Two years later he was promoted to the position of sanitarian. It is conceded that as such sanitarian his duties were those covered by Health and Safety Code sections 540-542. At the time of Swan’s promotion to the post of sanitarian both he and the appointive power, the county health officer, knew of Health and Safety Code sections 540-542. They also knew at the time that Swan was not a registered sanitarian and did not have the required qualifications therefor. Prior to his appointment he took “the sanitarian’s examination of the National Association of Sanitarians” and received a passing grade of 85 percent. Throughout the period of his employment Swan’s services appear to have been satisfactorily performed.