Zink v. City of Sausalito

[664]

Opinion

DRAPER, P. J.

Until 1974, there were two standards for review by trial courts of decisions of administrative bodies (Code Civ. Proc., § 1094.5). If the agency was one of legislative origin having statewide jurisdiction, the courts were to exercise independent judgment and determine whether the administrative findings were supported by the weight of the evidence. In contrast, in reviewing decisions of local agencies and state agencies of local jurisdiction, the courts were to determine only whether the administrative decision was supported by substantial evidence (see

Strumsky

v.

San Diego County Employees Retirement Assn.,

11 Cal.3d 28, 31-32 [112 Cal.Rptr. 805, 520 P.2d 29]).

Strumsky

modified that rule, extending the requirement of independent weighing of the evidence to all administrative agencies if the decision substantially affects a fundamental vested right. But the independent judgment rule never supplanted the limitation that review of the penalty administratively imposed in an employee disciplinary proceeding can be disturbed only for a manifest abuse of discretion, and

Strumsky

has not altered that limitation.

Thomas H. Zink, petitioner below and respondent here, was a sergeant in the police force of appellant city. He was dismissed from city employment May 19, 1970 by the city manager. Pursuant to city ordinance, he appealed to the city council. Evidence was introduced before a hearing officer, who concluded that Zink had “used bad judgment, disregarded departmental policy rules and procedure, and been guilty of inexcusable neglect and incompetence in the performance of his duties.” But the hearing officer recommended that the dismissal be set aside, and that Zink be reduced to the rank of patrolman. The city council reviewed transcript of testimony before the hearing officer, and on September 7, 1971 unanimously affirmed the discharge. Zink applied to the superior court for writ of mandate. That court concluded that the council’s findings did not support its decision, and ordered reinstatement of Zink in the police force, but “at a rank not lower than Patrolman, Top Step.” The city appealed. In an unpublished decision (1 Civ. 31545), Division One of this court pointed out that there was substantial evidence to support either the determination of the council or that of the hearing officer and the trial court. The council had adopted the “findings” of the hearing officer, who had but summarized the evidence, without resolving conflicts therein. This absence of adequate findings made it impossible to determine whether the council’s action constituted