LEONARD J. BOGACKI, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF RIVERSIDE COUNTY et al., Defendants and Respondents, 5 Cal. 3d 771

Opinion SULLIVAN, J. Plaintiff Leonard J. Bogacki (hereinafter referred to as petitioner) appeals from a judgment denying a writ of mandate sought to compel respondents Board of Supervisors and Director of the Department of Building and Safety of the County of Riverside to set aside his allegedly wrongful dismissal from county employment, to reinstate him to his former position, and to restore him to all rights of county employment and reimburse him for lost compensation.

Prior to his dismissal petitioner, a permanent employee of the County of Riverside, held the position of building inspector in the county department of building and safety.

On June 23, 1967, the department director (Director) sent to him a letter of termination which stated the following grounds for dismissal: “Insubordination to your superiors and misconduct of a nature that would reflect adversely upon the Department.” Petitioner appealed to the county board of review, which concluded after hearing that the grounds stated in the letter of termination “are not sustained and on that basis there was not reasonable cause for dismissal.” However, the board of review, for reasons which shall appear below, did not recommend petitioner’s reinstatement to his former position; rather it recommended only that he “be restored to eligibility for future employment” with the county.

Petitioner then requested the county board of supervisors to reinstate him to his former position and reimburse him for lost compensation, but that request was denied. This action for a writ of mandate followed. Throughout the period of petitioner’s employment Riverside County had not adopted a civil service system. (See Gov. Code, § 31100 et seq.) Under the terms of ordinances and resolutions governing county employment its employees served at the pleasure of their department heads, subject to certain limited appeal rights.

Thus, Ordinance No. 440 provided in relevant part: “Every officer shall appoint all necessary employees allowed or provided for his department by this ordinance and may demote or remove any employee of the department without notice and for cause satisfactory to himself, subject only to the provisions of this ordinance and requirements of law.” (Italics added.) Resolution No. 440-805, which was passed pursuant to a

section of Ordinance No. 440 authorizing the promulgation of dismissal review procedures by the board of supervisors, set up separate procedures for probationary and permanent employees.

The provisions dealing, with permanent employees provided in general that when dismissing a permanent employee the department head must direct a letter to the employee stating the cause for dismissal; that the “employee dismissed” might within 14 days file with the personnel director a written answer to the letter of dismissal; that within 20 days after filing of the answer the review board should hold a hearing wherein both the employee and the department head should “have the privilege to be heard and present evidentiary facts”; that within seven days after the hearing the review board “shall . . . make a written finding as to whether or not the employee was dismissed for reasonable cause and shall also make a recommendation as to the eligibility of the employee for future iemployment” with the county; that a copy of the finding should be transmitted to the employee, the department head, and the personnel director; that the personnel director “shall restore the employee’s eligibility for employment in appropriate classifications of the county service where qualified if the Review Board so recommends”; and that the decision of the review board should not be subject to judicial review. (Italics added throughout.) Resolution No. 440-805 gives the review board no power to reinstate or recommend reinstatement of a dismissed employee.

In his first amended petition for a writ of mandate petitioner alleged that he had performed his work competently and diligently at all times during his employment.

He also alleged facts relating to his membership and activities in an organization known as the Construction Inspectors Association of Southern California (Association), an organization allegedly devoted to improving the skill and professional competency of building inspectors, and —alleging that the Director of the department of building and safety was inimical to this organization and resented petitioner’s activities therein— detailed several occasions on which this hostility had been made manifest by complaints and outright threats to petitioner’s job.

The petition then went on to allege generally as follows a series of incidents which led to petitioner’s dismissal:

(1) At a meeting with petitioner in May of 1967 the Director reluctantly granted petitioner a step increase in pay, having initially refused to do so. At this meeting the Director charged that petitioner was incompetent and unprofessional in his work, but he also “revealed his continuing hostility to petitioner because of petitioner’s continued activity in the [Association]”; the Director then “warned petitioner that [he] would be on probation for six months, implying that [petitioner] would have to refrain from his activities and membership in the [Association] if petitioner were to avoid dismissal from' his work.”

(2) In June of 1967 a number of contractors who had learned of petitioner’s difficulties with the Director prepared, signed and sent to several members of the board of supervisors “a written statement indicating that their personal experience with petitioner had shown him to be a highly competent building inspector who conscientiously performed his duties as such . . . .” (3) “[A]fter learning of said statement by contractors on behalf of petitioner, [the Director], utilizing said statement as a pretext, and motivated by his long standing hostility to petitioner for his membership and active participation in the [Association],” dismissed petitioner from his employment by means of the letter of termination which, as we have indicated, stated as grounds for dismissal “Insubordination to your superiors and misconduct of a nature.that would reflect adversely upon the Department.” After recounting petitioner’s appeal to the review board and the finding and recommendation of that body, the petition went on to allege that petitioner was not qualified for positions in county departments other than the department of building and safety; that the effect of the review 'board’s recommendation placing, him on the eligibility list for future employment rather than reinstating him afforded him no relief; and that he has been neither employed nor offered employment by the county since the decision of the review board.

Finally, the petition alleged that petitioner’s dismissal was (1) in violation of his right to free speech and assembly as guaranteed by the state and federal Constitutions “in that he was discharged by [the Director] because of petitioner’s membership and activity, including verbal solicitation in a lawful manner on his own time of membership in the [Association] . . . .” and (2) “arbitrary and capricious and without just cause, and therefore in violation of the Fourteenth Amendment to the U. S.

Constitution, in that it deprived petitioner of property without due process of law, namely his loss of his position as building inspector and the stigma it has created as to his professional competency in this field of endeavor in which he has been qualified and skilled for many years.” An alternative writ issued, respondents filed a return, and there was a full trial on the merits.

The decision of the trial court is reflected as follows in the clerk’s minutes: “In this matter heretofore heard and submitted, the Court finds that [plaintiff] has.not carried the burden of proving that his discharge was ‘due to his activities in the Construction Inspector’s Assoc, of Southern California. [Par.] Accordingly, the alternative writ of mandate is discharged, the application for a peremptory writ is denied and the petition is dismissed. [Par.] The Court withholds any opinion concerning whether mandate would otherwise be available in the event of arbitrary discharge from county employment, such issue not having been raised by the petition. . . .” Petitioner appeals from the judgment.

It is now well-settled that even a probationary public employee or one serving at the pleasure of the appointing authority may not be dismissed from his employment for the exercise of constitutional rights absent a showing that the restraints which the employing body would impose on those rights are justified by a compelling public interest. (Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 503-505 [55 Cal.Rptr. 401, 421 P.2d 409]; Rosenfield v. Malcolm (1967) 65 Cal.2d 559, 562-563 [55 Cal.Rptr. 505, 421 P.2d 697]; Ball v.

City Council (1967) 252 Cal.App.2d 136,141 [60 Cal.Rptr. 139]; see also, Fort v. Civil Service Commission (1964) 61 Cal.2d 331 [38 Cal.Rptr. 625, 392 P.2d 385]; cf. Hollon v. Pierce (1961) 257 Cal.App.2d 468, 478, fn. 4 [64 Cal.Rptr. 808] and accompanying text.) It is equally clear, however, that such an employee bears the burden of showing that he was in fact dismissed because he exercised constitutional rights in defiance of restraints sought to be placed by the employing agency, (Stanton v.

Dumke (1966) 64 Cal.2d 199, 205-207 [49 Cal.Rptr. 380, 411 P.2d 108].) In the absence of such a showing the courts will not intervene. (See Rosenfield v. Malcolm, supra, 65 Cal.2d 559, 563-564.) As we have indicated, petitioner sought to show at trial that he was dismissed because of his activities with the Association, but the trial court found to the contrary. (Cf. Ball v. City Council, supra, 252 Cal.App.2d 136.) Petitioner’s contention that that finding lacked substantial support in the evidence is clearly without merit.

The Director testified at trial that he had no objection to the Association or to petitioner’s activities therein on his own time; that he in fact encouraged employe^ participation in the Association; and that petitioner was dismissed for unsatisfactory work performance. Petitioner further urges, however, that although the record may support the trial court’s finding that his Association activities were not the cause of his dismissal, it also shows that the dismissal was triggered by his exercise of his First Amendment right to free speech.

We are directed to portions of the trial record which indicate that the dismissal occurred subsequent to, and as a result of, the testimonial letter sent by local contractors to members of the board of supervisors after petitioner had discussed his job difficulties with one of them. However, the pleadings and the trial transcript reveal that this theory is raised for the first time on appeal. As we have indicated, the contractors’ letter and the circumstances surrounding it were mentioned in the petition for mandate—but only in support of the theory relating to petitioner’s Association activities.

Thus it was alleged that the letter was used as a “pretext” by the Director, whose real motivation for the dismissal was petitioner’s Association activities. Similarly the trial transcript contains no suggestion that petitioner in any way based his claimed right to reinstatement upon the infringement of his First Amendment right to discuss his employment difficulties with others. (See fn. 8, infra.) No findings were made as to any causal relationship between petitioner’s dismissal and the contractors’ letter or the events which precipitated it.

Moreover, petitioner did not object to the findings or request specific findings on the issue he now seeks to raise. The general rule that a legal theory may not be raised for the first time on appeal is to be stringently applied when the new theory depends on controverted factual questions whose relevance thereto was not made to appear at trial. (Panopulos v.

Maderis (1956) 47 Cal.2d 337, 340-341 [303 P.2d 738].) Here there was testimony concerning an admonition by the Director to petitioner that he not discuss his job difficulties with others, and there was also testimony which related in a very general way petitioner’s conversation with one of the contractors which led to the letter, but petitioner at no time prior to appeal attempted to relate this evidence to a contention such as that he now advances. As a result respondents made no effort to develop the factual areas in question.

In these circumstances petitioner may not now raise the theory that his dismissal resulted from the exercise of his right to free speech. Petitioner urges that we should exercise our power under

section 909 of the Code of Civil Procedure (formerly § 956a) and make a finding of fact to the effect that he was dismissed because of the contractors’ letter and his conversation with the contractor which preceded it. Suffice it to say that we decline to exercise our power under

section 909 in a case such as this to find facts supportive of a theory not raised at trial and presented for the first time on appeal. Petitioner finally urges that his dismissal was arbitrary, in violation of county law, and in violation of his constitutional right not to be deprived of “property” without due process of law. Two interrelated contentions are made by petitioner under this heading. First it is contended that county law impliedly invests the review board, upon a finding that there was no reasonable cause for dismissal, with the power to recommend reinstatement. This contention is clearly refuted by subdivision 2(

d) of Resolution No. 440-805, which we have set forth in footnote 2, ante, as well as by Ordinance No. 440 itself, which is set forth in relevant

part in the text accompanying footnote 1, ante. Read together, these provisions of county law clearly provide that a county employee may be dismissed from his position without notice and for cause satisfactory to his department head, but that if, on appeal to the review board, it is determined that there was no reasonable cause for dismissal, the review board may make a binding recommendation that the employee be restored to eligibility for future employment. The applicable provisions give the review board absolutely no power to reinstate the employee in the position from which he was dismissed.

In brief, the department head is given an absolute power of dismissal, with a limited power in the review board to restore a dismissed employee to eligibility for future county employment. It is upon this foundation that petitioner seeks to erect his constitutional argument.

As we understand it the argument is that an absolute power of dismissal pertaining to public employees is forbidden by due process insofar as it permits a dismissal that is “arbitrary and capricious and without just cause”; that a dismissal pursuant to such a power is “arbitrary and capricious and without just cause” unless it is shown by substantial evidence that there was a valid reason for dismissal; that the record in this case fails to show by substantial evidence that there was a valid reason for petitioner’s dismissal; that the trial court’s finding that petitioner’s dismissal was not “arbitrary and capricious and without just cause” was therefore unsupported; and that the dismissal was therefore in violation of petitioner’s constitutional rights.

Petitioner correctly points out that the record as a whole fails to establish any specific reason for his dismissal. Although two grounds for dismissal were assigned by the Director in his letter of termination (insubordination and conduct reflecting adversely upon the department), neither finds concrete support in the record. Thus, the Director testified in general that he equated poor work performance with insubordination, but the trial court specifically found that petitioner performed his work competently at all times.

There was no specific evidence adduced as to conduct reflecting adversely upon the department. The question remains, however, whether the fact that the record fails to establish a specific cause for dismissal is pertinent to this proceeding. The major premise of petitioner’s argument is that a public employee, even though under the terms of his employment he serves at the pleasure of the appointing authority, may not be dismissed without judicially cognizable good cause.

On its face this proposition is contrary to numerous authorities which hold that such an employee may be terminated without cause and without notice or hearing. (See Ball v.

City Council, supra, 252 Cal.App.2d 136, 141, and cases there cited.) It is true, of course, that the rule which these authorities announce has been qualified by the principle, discussed above, that public employment—even that of a probationary employee or one serving at the pleasure of the appointing authority—may not be conditioned upon a waiver of constitutional rights absent a showing of compelling public interest, and that dismissal for the exercise of such rights absent the requisite showing of public interest is in violation of constitutional guarantees. (See Bagley v.

Washington Township Hospital Dist., supra, 65 Cal.2d 499; Ball v. City Council, supra, 252 Cal.App.2d 136, 141, and other cases cited, ante.) However, it is quite another thing to assert—as petitioner does—that even when a dismissed employee serving at the pleasure of the appointing authority fails to show that his dismissal resulted from the exercise of a constitutional right, he nevertheless has the right to be reinstated to his employment unless the appointing authority is able to demonstrate judicially cognizable good cause for dismissal.

This would be tantamount to saying that a public agency cannot employ persons subject to removal at its pleasure, for if judicially cognizable good cause is requisite to removal in all cases there can be no wholly subjective power of removal in the agency. Such is not the law in California, nor has it ever been. A public employee serving at the pleasure of the appointing authority—whether he be a “permanent” employee in a non-civil-service county as in this case, a “provisional” employee in a civil service county (see Rosenfield v.

Malcolm, supra, 65 Cal.2d 559), or any other kind of public employee serving on this basis—is by the terms of his employment subject to removal without judicially cognizable good cause. “Unquestionably, a broad discretion reposes in governmental agencies to determine which [such] employees they will retain. Considerations of comity and administrative efficiency counsel the courts to refrain from any attempt to substitute their own judgment for that of the responsible officials.” (Rosenfield v.

Malcolm, supra, 65 Cal.2d 559, 562-563.) Only when such a public employee can show that his employment has been unjustifiably conditioned on the waiver of his constitutional rights will the courts intervene and give relief. (See Stanton v. Dumke, supra, 64 Cal.2d 199, 205-207.) Despite certain broad language in Fort v. Civil Service Commission, supra, 61 Cal.2d 331, 334, and Hollon v. Pierce, supra, 257 Cal.App.2d 468, 478, those decisions are in no way contrary to what we have said today. In Fort the petitioner clearly showed that dismissal resulted from his violation of a

section of the county charter which impinged upon his constitutional right to engage in political activity! In Rollon the employee was subject to removal only for cause. In the instant case the system of county employment vested in various department heads the power to dismiss their employees without notice and for cause satisfactory to the particular department head. A review procedure was also provided, but that procedure contemplated only that if the dismissal were considered unjustified by the review board that body could recommend that the dismissed employee be made eligible for future county employment.

The power of a department head to remove from his particular department an employee deemed unsuitable by him was absolute within the terms of applicable county law. Petitioner, being dismissed from a particular department but restored to eligibility by the review board, sought a writ of mandate ordering reinstatement on the theory that he was dismissed because of the exercise of his constitutional right to freedom of association. The trial court found on the basis of substantial evidence that that was not the cause of dismissal. The department head’s dismissal of petitioner must therefore stand.

The judgment is affirmed. Wright, C. J., McComb, J., Mosk, J., and Burke, J., concurred.

Other portions of Ordinance No. 440 relating to employment procedures provided that officers might appoint as employees only those persons certified as eligible for the particular position by the personnel director; that officers might appoint “deputies” from among their employees; that a written termination of employment signed by an employing officer should be filed with the personnel director, giving the date of termination and the reason therefor; and that a termination of employment should automatically terminate an appointment as deputy.

Resolution No. 440-805 provided in full: “Be It Resolved by the Board of Supervisors of the County of Riverside, State of California, in regular session assembled on March 25, 1963, pursuant to subsection K of

section 3 of Ordinance No. 440, that Resolution No. 440-776, adopted January 2, 1963, is rescinded and the following is substituted therefor: “1. Probation Period “Every employee entering the county service by appointment to a regular position in the classified service shall be required to serve a probation period of one year from the date of appointment. An employee with permanent status who is promoted shall serve a probation period of 6 months in the position to which he has been promoted dating from the date of such promotion.

The granting of any leave of absence without pay exceeding 11 working days shall-cause the employee’s probation period to be extended by the number of calendar days for which such leave of absence has been granted. The probation period for a person entering the service as a seasonal employee shall be 240 working days provided that one year shall not have elapsed since the original date of appointment. The probationary provisions applying to the promotion of an employee in the seasonal category is identical to that for regular fulltime employees except that the period shall be 120 working days within a year.

Temporary employees are not considered to have a probation period and do not achieve permanent status. A probationary employee may be separated from the service at any time during the probation period without privilege of review or hearing. Notwithstanding any of the provisions of this section, an employee rejected during the probation period from a position in the classified service to which he has been promoted may be restored to the position from which he was promoted. Such restoration is not mandatory, but at the discretion of the department head within the limits of available authorized positions. “2.

Hearing Procedure “A permanent employee shall have the following privileges concerning his discharge or dismissal: “(

a) Notice of Dismissal, In dismissing a permanent employee the department head shall immediately direct a letter to the employee specifically stating the cause or causes for dismissal. The letter shall be delivered to the employee personally if he is present; otherwise, it shall be mailed to him at his last known address. A copy of the letter shall be promptly furnished to the'Personnel Director, accompanied by a statement signed by the department head that the original was delivered to the employee, or that it was mailed to him, giving the address, and the date on which it was mailed or delivered. This copy shall be available to the Review Board upon request. “(

b) Review Board. The Review Board shall include the following members: an elective department head appointed by the Board of Supervisors, an appointive department head appointed by the Board of Supervisors, the County Administrative Officer, the General Manager of the Riverside County Employees Association, a member of the Riverside County Employees Association appointed by the Board of Directors of the Association, and the Personnel Director who shall be a non-voting member and secretary of the Review Board and shall keep its records. Three members shall constitute a quorum, and three affirmative votes shall be necessary for any action. “(

c) Answer. The employee dismissed may, within 14 calendar days after service on him or mailing to him of the letter of dismissal, file with the Personnel Director an answer in writing to the letter of dismissal. The Personnel Director shall forthwith transmit said letter and answer to the Review Board for hearing. The Review Board shall within 20 calendar days from the filing of the answer commence the hearing, and shall notify the interested parties of the time and place of hearing at least 7 calendar days in advance thereof. “(

d) Hearing and Decision. Upon such hearing, both the replying employee and the department head whose action is reviewed shall have the privilege to be heard and present evidentiary facts. At such hearing, technical rules of evidence shall not apply. The Review Board shall, within 7 calendar days after the hearing, make a written finding as to whether or not the employee was dismissed for reasonable cause and shall also make a recommendation as to the eligibility of the employee for future employment with the County of Riverside.

A copy of the written finding and recommendations of the Review Board shall be transmitted to the department head, the employee and the Personnel Director. The Review Board shall transmit, immediately after filing its findings, all of the records in the matter to the Personnel Director for filing. The Personnel Director shall restore the employee’s eligibility for employment in appropriate classifications of the county service where qualified if the Review Board so recommends.

Any action or decision made hereunder shall be final and not subject to judicial review.” Six witnesses testified for petitioner at trial; five witnesses testified for respondents. The trial court’s announcement of the decision does not appear in the transcript of the oral proceedings.

In its formal findings the trial court listed as a conclusion of law: “The plaintiff has not carried the burden of proving that his discharge was due to his activities in the Construction Inspectors Association of Southern California.” Although the finding in question was placed among the court’s conclusions of law in the formal findings (see fn. 5, ante), it was clearly a finding of ultimate fact and will be so regarded. (See Linberg v. Stanto (1931) 211 Cal. 771, 776 [297 P. 9, 75 A.L.R. 555]; Rees v. Department of Motor Vehicles (1970) 8 Cal.App.3d 746, 749 [87 Cal.Rptr. 456]; Petersen v.

Cloverdale Egg Farms (1958) 161 Cal.App.2d 792, 797 [327 P.2d 127].) The court’s findings, through selective incorporation of the allegations of the petition, determine only that the dismissal occurred “after” the Director learned of the contractors’ letter. Petitioner’s attempt to impeach the formal findings by reference to certain tentative remarks of the trial court suggesting a causal relationship must fail. (Baldwin-Lima-Hamilton Corp. v.

Superior Court (1962) 208 Cal.App.2d 803, 825 [25 Cal.Rptr. 798].) Petitioner asserts that he raised the contention at oral argument prior to submission of the case to the court. However, that argument was apparently not reported and is not a part of the record before us. We therefore do not consider this point. (See Van Cise v. Lencioni (1951) 106 Cal.App.2d 341, 349-350 [235 P.2d 236].)

Section 909 provides: “In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make findings of fact contrary to or in addition to those made by the trial court. Such findings may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court.

The reviewing court may for the purpose of making such findings of fact or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make such further or other order as the case may require. This

section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues.” The trial court found untrue the allegation in the petition that petitioner’s dismissal “was arbitrary and capricious and without just cause, and therefore in violation of the Fourteenth Amendment . . . .” The Director specifically denied that he considered petitioner’s conversation with the contractor which resulted in the contractors’ letter án instance of insubordination.

The record in this case is illustrative. The Director testified that his primary reason for dismissal was unsatisfactory and incompetent inspection work by petitioner. The trial court, however, found that petitioner’s work was competent during the period of his employment. If judicially cognizable good cause were requisite to dismissal, and petitioner could, therefore claim reinstatement on the basis of the trial court’s finding, the Director would be required to accept as an employee one whom he personally considered incompetent solely because the trial court disagreed with him on that point.

Clearly, the Director’s power to remove “for cause satisfactory to himself” would have become chimerical.