West v. City of Berkeley

Opinion

GREGG, J.* Appellant Richard C. West, while employed by respondent city as a police officer, received a notice of termination from respondent Taylor, the City Manager of the City of Berkeley, notifying him he was terminated as a police officer effective December 2, 1975. This notice set forth specifically the charges, consisting of refusals to obey lawful orders of superior officers (a violation of Police Reg. 256) and a failure to submit over 600 investigative reports from June 1974 through August 1975 (a violation of Police Reg. 276).

West filed a timely notice of appeal with the city’s personnel board which thereafter held hearings. At the conclusion of the hearings four members of the personnel board recommended reinstatement and two members disagreed. Both the majority and minority recommendations were forwarded to the city manager.

After considering both the majority and minority reports the city manager found that West was properly terminated but that he should be rehired, not as a matter of right, upon the second available vacancy on the police force and be on probation thereafter for one year on certain conditions.

West, joined by the Peace Officers Research Association of California, instituted the within administrative mandamus proceeding within the [146]provisions of section 1094.5 of the Code of Civil Procedure. They contend: 1) the city manager had no power to substitute his own findings for those of the personnel board; 2) the trial court did not exercise its independent judgment; 3) the trial court erred in not making findings of fact and conclusions of law; and 4) appellant is entitled to back pay from the date of termination to the date of the personnel board hearing.

I. Did the city manager have the right to substitute his findings for those of the personnel board?

There are two reasons why the answer must be yes. First, the City of Berkeley is a charter city and its charter, subject to conflicting constitutional provisions and preemptive state law, is the supreme law of the city. (San Francisco Fire Fighters v. City and County of San Francisco, 68 Cal.App.3d 896 [137 Cal.Rptr. 607]). The city charter provides in section 28, the city manager has the power and duty “to appoint, discipline or remove all officers and employees of the City, subject to the Civil Service provisions of this Charter.” (Subd. (b).) The city has adopted a personnel ordinance (No. 2342-N.S.) which provides in section 3: “Duties Of The Personnel Board. ...(c) To act in an advisory capacity to the City Manager on problems concerning personnel administration,” and in section 4, “Powers Of The City Manager. . . . [T]he City Manager . . . shall retain power to . . . suspend or dismiss employees . . . .” It is thus clear that the personnel board is advisory and the power of disposition is in the city manager.