Patten v. State Personnel Bd.

• Decision Date: 17 August 1951
• Citation: 234 P.2d 987,106 Cal.App.2d 168
• Parties: PATTEN v. STATE PERSONNEL BOARD et al. Civ. 7900.
• Court: California Court of Appeals Court of Appeals

Page 987

234 P.2d 987

106 Cal.App.2d 168

PATTEN v. STATE PERSONNEL BOARD et al.

Civ. 7900.

District Court of Appeal, Third District, California.

Aug. 17, 1951.

Fabian D. Brown, San Francisco, for appellant.

Wilmer W. Morse, Deputy Atty. Gen., for respondents.

SCHOTTKY, Justice pro tem.

This is an appeal from a judgment denying a peremptory writ of mandamus to compel the California State Personnel Board and California Employment Stabilization Commission to employ petitioner in the Department of Employment as a permanent civil service employee in the class of Unemployment Insurance Examiner, Grade 3.

The sole question involved in this appeal is whether the petitioner in July of 1945 received a civil service appointment on a 'regular' or 'permanent' basis, as he contends, or on a 'duration' basis, as contended by respondents.

The facts are not substantially in dispute and will be set forth in the course of this opinion. The facts upon which petitioner and appellant relies are stated by him as follows: 'On July 5, 1945 Mr. Cameron, the representative of the respondent California Employment Stabilization Commission called at the place of business of the appellant and stated that the position was permanent and requested appellant to accept it (Transcript p. 36, lines 19 and 20). Appellant accepted the position on a permanent basis. Thereafter there was presented to appellant a form of oath of office for his execution, which oath described the office as 'Unemployment Insurance Examiner, Grade 3', with nothing to indicate that it was not on a permanent basis, and which was altered somewhere by the California Employment Stabilization Commission, the appointing power, without the knowledge or consent of the petitioner (Transcript p. 38, line 14 to p. 39, lines 1 to 13), and appellant accepted said position upon that basis, went to work and continued to work without any knowledge of the alteration of the documents or the limitation upon his employment. Appellant received his performance report about December 5, 1945 (Transcript p. 39, lines 21 to 26), after which, shown the limitation for the first time, he protested the situation and thereupon discussed the matter with Mr. Cameron, the department's representative, who made the original offer, and was advised to file a written protest with the appointing power, which was done accordingly (Transcript p. 40, line 9 to p. 41, lines 1 to 6).'

The record also shows that on July 3, 1945, the respondent California Employment Stabilization Commission requested the respondent State Personnel Board to certify eligibles to it for appointment to the position of Unemployment Insurance Examiner, Grade 3; that the request was that the certification be made on a 'duration' basis, that is to say, to fill a position for the duration of the war or the existence of any emergency in preparing for the national defense found and proclaimed by the Governor under the provisions of Section 152.6 of the State Civil Service Act, Stats. 1943, Ch. 736, Gen.Laws, Act 1404; that on July 16, 1945, the State Personnel Board certified petitioner's name from the appropriate list for appointment to this position on a duration basis; that on that date petitioner was fourth highest on the list among those who had indicated willingness to accept a regular permanent appointment, but was third highest for a duration appointment; that petitioner was No. 3 for a duration appointment because one Rutledge, who was second highest on the list, had already accepted a duration appointment; that Rutledge was still eligible for certification to a regular permanent position, however, because Rule 307 of the State Personnel Board provided that 'The acceptance or declination of a duration appointment from a regular employment list shall not affect the rights of an eligible to certification for a regular permanent appointment.'

At the time petitioner's name was certified on the duration basis and at the time he was appointed he was not working for the state but was employed by the Ford Motor Company in a key war job at a plant in Richmond. He had, prior to taking the war job, worked in the Department of Employment in a similar position for fir years.

It is apparent from the record that both Mr. Cameron, the representative of the California Employment Stabilization Commission, and petitioner, in the negotiations for the filling of the position, were acting under an honest mistake of fact with respect to the nature of the certification, both supposing that the position was to be filled on a permanent as distinguished from a duration basis. The request for certification was prepared in the personnel section of the Department of Employment, and it appears that in the right half of the column headed 'Estimated Duration of Employment' is the word 'perm' in typewriting, and beneath it the word 'Dur.' in handwriting. The record shows that after petitioner had signed the oath of office attached to the request for certification, and before the request was transmitted to the State Personnel Board, the employee who supervised the appointment of individuals in the Department of Employment observed that the word 'Dur.' had been omitted from the regular form and added it in order that the appointment form should conform to the certification. It also appears that the State Personnel Board was unaware of the change and also that petitioner was not informed of it.

Petitioner argues that under the undisputed facts he is entitled to the appointment on a permanent basis because, as he contends, the facts that he was on a valid list at the time of his appointment and the power to appoint on a permanent, temporary or durational basis existed, and he was deceived and led astray to his financial and other losses, make applicable the doctrine of estoppel which applies to the state and its political subdivisions with the same force and vigor as it does to individuals.

In ruling against this contention of petitioner the learned trial judge in his memorandum opinion said, in part:

'Petitioner cites a number of cases which no doubt state the correct rule, but in each of these cases the agency by whose conduct estoppel was established was the agency that had the authority to act; hence, to hold that there was no estoppel would amount to bad faith, if not actual fraud. In the instant case, the facts are entirely different. In the first place Cameron, an employee of the said Department of Employment, was not authorized to make representations, so far as appears from the record, either for or on behalf of the Department of Employment, or the State Personnel Board. Also it appears from the record that L. B. Steedman, Personnel Officer of the Department of Employment, had no authority to make representations with regard to promising a position to petitioner. As a matter of fact, as already pointed out, (defendant's Exhibit D) the request from that said Department to the State Personnel Department was for a duration appointment only. Hence, it will be seen that not only the appointing power, but also the State Personnel Board had limited any appointment to be made (and none could be made until the State Personnel Board had forwarded the three highest available names from the proper eligible list for selection to fill the position by the one designated by the appointing power) to such position for the duration. Turning to respondent's Exhibit 'C' it will be seen that this is a Certificate of Eligibles sent to the appointing authority, issued by the State Personnel Board. It bears the name H. F. Freeman, with the initial (P) and under the caption 'Period of Appointment' is the word in capital letters 'Duration.'

* * *

* * *

'Section 19057 of the Government Code, provides for the certification of the three persons standing highest on the employment list for the class in which the position belongs and who have indicated their willingness to accept employment under the conditions of employment specified. The Certificate of Eligibles states: 'It is your responsibility to communicate with eligibles in the order listed. After making the number of appointments authorized, enter on this form the names of those appointed and other information requested.' Also the following notation: 'This supplemental is issued in lieu of Florence Somers, who was appointed elsewhere, and in accordance with your request to increase this...