Kirkpatrick v. Civil Service Commission

Opinion

ASHBY, J. — Appellant Civil Service Commission of the County of Los Angeles appeals from an order of the superior court remanding to the commission the matter of respondent Kenneth E. Kirkpatrick, a county employee, for reconsideration of discipline to be imposed.

On November 19, 1974, the Los Angeles County Board of Supervisors discharged respondent from his position as chief probation officer. Respondent demanded a hearing before the civil service commission, which upheld his discharge, finding 14 ways in which respondent failed [932]to manage his department effectively. The superior court granted a writ of mandate compelling respondent’s reinstatement, based on certain procedural deficiencies. On appeal from that judgment, we held that the procedural deficiencies did not justify reinstatement and we directed the trial court to review the administrative record to determine whether the commission’s findings on the merits were supported by the evidence. (Kirkpatrick v. Civil Service Com. (1978) 77 Cal.App.3d 940 [144 Cal.Rptr. 51].) Thereafter the trial court determined that only two of the commission’s fourteen findings were supported by the evidence.1 The court again ordered that respondent be reinstated, and it awarded damages. On appeal from the judgment, we held the trial court’s findings were supported by substantial evidence. (Kirkpatrick v. Civil Service Commission (Mar. 27, 1980, 2 Civ. 55294.) We stated, however, that “where the trial court concludes that some of the administrative agency’s findings are supported by the evidence while others are not, the matter should be remanded to the administrative agency to give it the opportunity to exercise its discretion to impose a penalty, if any, commensurate with the gravity of the findings supported by the evidence. (Bonham v. McConnell, 45 Cal.2d 304, 306 [288 P.2d 502]; Cooper v. State Bd. of Medical Examiners, 35 Cal.2d 242, 252 [217 P.2d 630, 18 A.L.R.2d 593]; Zink v. City of Sausalito, 70 Cal.App.3d 662, 666 [139 Cal.Rptr. 59]; Wingfield v. Fielder, 29 Cal.App.3d 209, 223 [105 Cal.Rptr. 619].)” (Id., at p. 19.) We ordered: “The judgment is reversed and the cause remanded to the trial court with directions to remand the matter to the civil service commission for reconsideration of the appropriate disposition.” (Id., at p.. 20.)

Thereafter the trial court made the order of remand which is the subject of this appeal. Appellant contends the order improperly restricts the exercise of discretion by appellant. The disputed portion of the order states: “The proper penalty, if any, to be assessed by the CSC will not be inconsistent with petitioner’s return to employment inasmuch as the