I dissent.
The majority rejects petitioner’s contention that the penalty of dismissal was so severe as to constitute an abuse of discretion by the chief of police, the terminating officer. I consider the contention meritorious and sufficient to mandate a reversal of the judgment.
It is true that the petitioner was in the process of serving a 12-month term as a probationary officer. He had completed nine months of his probationary term. Section 109, subdivision (c), of the Los Angeles City Charter provides for termination of a probationary employee by the appointing authority during the term of probation “upon assigning in writing the reasons therefor.” I am unable to interpret that section as giving the appointing authority an absolute, capricious, and arbitrary right to terminate a probationary employee during the probationary period.
I interpret section 109, subdivision (c), of the Los Angeles City Charter as requiring a good faith termination with an absence of purely arbitrary and capricious action. The majority’s view is that probationary employees have, for all intents and purposes, practically no rights at all.
In view of my interpretation of charter provision section 109, subdivision (c), I find that the penalty of dismissal in the case at bench amounted to an abuse of discretion on the part of the chief of police in terminating petitioner. The majority discounts the undisputed facts that petitioner’s employment record revealed a long list of commendations of his work as a police officer and the fact that the one incident of driving under the influence of alcohol occurred when he was not in uniform and was not on duty. The majority also dismisses as irrelevant the fact that the record shows no pattern of alcoholism, but only a single act of intoxication as a *68result of a party which was promoted by the police department and at which intoxicating liquor was freely served.
The record establishes that the chief of police did not take any of these matters into consideration but acted solely on a determination that a single act of drunk driving by a probationary police officer, off duty, evidenced such bad judgment as to make him a poor risk for further police duties. I agree that driving while under the influence of alcoholic beverages is not to be condoned, but if such a single act is to be considered such an act of bad judgment as to constitute a valid reason for discharging a probationary officer in the face of an otherwise exemplary record during the probationary period, then any reason whatever, such as the race or sex of a probationary officer could, with equal validity, be deemed a valid exercise of discretion by the chief of police to terminate that officer as a poor risk for further police duties. The majority’s disclaimer that its view does not go this far is simply unpersuasive.
There is no showing in this case at bench that petitioner deliberately drove his vehicle with full knowledge that he had imbibed too much alcohol to drive safely. Thus, an act of negligence such as is involved here cannot logically be deemed an act of bad judgment which connotes a deliberate choice of action. The conclusion that this single act of negligence makes petitioner a poor risk for further police duties is utterly untenable and indefensible.
Although the legal principles involved with permanent employees are not controlling, I consider the reasoning of such cases as persuasive in the matter before us.
In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14, 539 P.2d 774], a permanent employee was dismissed for matters such as drinking during duty hours and exceeding the time allotted for lunch break and for having been seen in a bar on one occasion during working hours and with a drink in front of him. In holding that dismissal was excessive and constituted an abuse of discretion, the court remarked: “However, considering all relevant factors in light of the overriding concern for averting harm to the public service, we are of the opinion that the Board clearly abused its discretion in subjecting petitioner to the most severe punitive action possible for his misconduct. [¶] . .. the penalty of dismissal was clearly excessive and disproportionate to the misconduct on which it was based.” (Skelly, supra, 15 Cal.3d 194, 219.)
*69Similar to Skelly is Blake v. State Personnel Board (1972) 25 Cal.App.3d 541 [102 Cal.Rptr. 50]. A discharge of a deputy labor commissioner was reversed because the penalty was deemed clearly excessive. Blake involved a single instance of misconduct which was far outweighed by an otherwise exemplary employment record.
The case at bench is not unlike the situations presented in Skelly and Blake. I readily concede that, under the charter provision involved in the case at bench, petitioner does not have the same rights as permanent employees involved in Skelly and Blake. But I cannot agree with the majority that the charter provision should be interpreted to hold that a probationary employee has no right against an arbitrary, capricious, and unreasonable ground of termination.
In my view, petitioner’s case is not one on which reasonable minds may differ as to whether the basis of termination was a reasonable exercise of discretion.
I would reverse the judgment from which the appeal has been taken.
A petition for a rehearing was denied June 5, 1978. Jefferson, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied July 13, 1978. Bird, C. J., and Newman, J., were of the opinion that the petition should be granted.