Whitaker v. Department of Water and Power

California Court of Appeal Feb 13, 1935 No. Civ. 10071Published

Before: Crail

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Holding. The court held that a civil service employee who voluntarily resigns from a classified position to accept an exempt position is separated from the civil service, thereby forfeiting prior seniority credits under valid civil service rules. Consequently, the petitioner was not entitled to a writ of mandate to compel his restoration to his former position.

Issues

Whether Section 9 of Rule XVIII of the Civil Service Commission, which denies seniority credit to employees who resign and are later re-employed, is valid.
Whether the petitioner's voluntary resignation to accept an exempt position constituted a 'separation' from civil service rather than a mere 'absence.'

Disposition. Writ of mandate denied.

Quotations verified verbatim against the opinion

“In the light of what we have said it is apparent that section 9 of rule XVIII of the Civil Service Commission is not in conflict with section 125 of the city charter and is not invalid.”

“Having resigned his position under the civil service system and having voluntarily separated from and surrendered his previous seniority credits, petitioner’s appointment in 1930 became an “original appointment”.”

CRAIL, J.

This is a proceeding in

mandamus

to compel the respondent Board of Water and Power Commissioners of the City of Los Angeles to restore petitioner to duty in the position of chief clerk in the Department of Water and Power and to compel respondents to pay the petitioner the salary allegedly due him from September 6, 1933, until he is restored to duty. The petitioner had been a civil service

[532]

employee of the respondents for many years when on October 21, 1928, he was appointed and accepted the position of special commercial agent, a position not under civil service. In this position he continued until December 10, 1930, when he was again appointed to a position under the civil service, and he continued in that position until the position was abolished. The petitioner contends that he is entitled to credit on his seniority for the period during his separation and in any event for his years of service prior to the time he separated himself from the civil service. It is the contention of the respondents, however, that petitioner’s separation from the civil service by reason of his resignation in 1928 has deprived him of the seniority which he claims and it refuses to remove the incumbent whom petitioner seeks to displace.

Section 9 of rule XVIII of the rules of the civil service commissioners of Los Angeles provides that if an employee has been separated from the service by resignation and is again employed he shall not receive any seniority credit for his service rendered prior to his separation from the service. Petitioner frankly admits “should this honorable court decide that section 9 of rule XVIII of the Civil Service Commission is valid and that when petitioner vacated the position of chief meter reader on December 1st, 1928, to accept the position of special commercial agent, he was thereby separated from the service by resignation, then no further question involved in this proceeding need be considered for the reason that in that event the petitioner would have only such seniority as he has accumulated subsequent to December 10, 1930”.

In determining whether or not said rule is valid we should keep in mind that the civil service system has a terminology of its own and that throughout its literature it makes a sharp distinction between

Whitaker v. Department of Water and Power

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CRAIL, J.

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