Ferdig v. State Personnel Bd.

• Decision Date: 08 May 1969
• Citation: 77 Cal.Rptr. 224,453 P.2d 728,71 Cal.2d 96
• Court: California Supreme Court
• Parties: , 453 P.2d 728 Wayne L. FERDIG, Plaintiff and Appellant, v. STATE PERSONNEL BOARD et al., Defendant and Respondent. Sac. 7823.

Page 224

77 Cal.Rptr. 224

71 Cal.2d 96, 453 P.2d 728

Wayne L. FERDIG, Plaintiff and Appellant, v. STATE PERSONNEL BOARD et al., Defendant and Respondent.

Sac. 7823.

Supreme Court of California,

In Bank.

May 8, 1969.

Walter W. Taylor, Sacramento, for plaintiff and appellant.

Thomas C. Lynch, Atty. Gen., William M. Goode and Robert Burton, Deputy Attys. Gen., and Harry T. Kaneko, Sacramento, for defendants and respondents.

SULLIVAN, Justice.

This is an appeal from a judgment denying a writ of mandate to compel respondent State Personnel Board (Board) ¹ to set aside and annul its order revoking the appointment of appellant Wayne L. Ferdig to a state civil service position, and to reinstate appellant in said position.

The facts are not in dispute and, as disclosed by the trial court's findings and the documents in the record, are as follows: On May 14, 1962, appellant was appointed to the class of Refrigeration Engineman with no veterans' preference requested or applied to his score. On March 12, 1963, he was transferred to the class of Office Building Engineer.

On July 20, 1963, appellant took an examination for class of Chief Engineer II in the Department of General Services and the employment list established on October 1, 1963, ranked him as number 16. On October 17, 1963, he applied to the Department of Veterans Affairs (Department) for a veterans' preference, presenting a certificate of discharge. This document was issued by the United States Naval Service and certified in substance that appellant, described therein as 'APPRENTICE SEAMAN, CLASS M--1' had been honorably discharged from said service. It indicates on its face appellant's service in the United States Naval Reserve, as distinguished from the United States Navy; another document in the record refers to appellant's service as 'war-time service in the merchant marine.' As a result of said presentation, the Department of Veterans Affairs notified the Board that veterans' preference points were applicable to appellant's score, thereby moving appellant up to number 4 on the list.

As a result of a waiver by a person ahead of him, appellant then became one of the top three on the list and thus eligible for appointment. On August 24, 1964, he was appointed to the position of Chief Engineer II. Without the addition of veterans' points, he would not have been within the top three on the list.

On September 25, 1964, the question was raised with the Department of Veterans Affairs as to whether the application of veterans' preference points to appellant's case was proper. The Department then requested appellant to resubmit the documents supporting his claim therefor. On November 9, 1964, approximately nine weeks after appellant's appointment to the position, the Department advised appellant that his application for the points had been approved erroneously. Appellant objected to this determination and the Department directed an inquiry to the appropriate federal agency as to whether appellant's service and training in the Naval Service was considered active duty in the armed forces of the United States.

On January 4, 1965, an officer of Local 411 on the Union of State Employees, by letter to the Board, questioned the legality of appellant's appointment as Chief Engineer II. Shortly thereafter the Judge Advocate of the Department of the Navy advised the Department of Veterans Affairs that appellant had performed no active duty or other active naval service. The latter Department thereupon notified both appellant and the Board that it had removed appellant's veterans' preference. On April 9, 1965, the Board, after a hearing, made its order revoking appellant's appointment 'from the beginning.'

The trial court, concluding that the Board had acted lawfully, denied appellant's petition for a peremptory writ of mandate and discharged the alternative writ theretofore issued. This appeal followed.

Appellant makes no claim before us that he is, or ever was, a veteran as that term is use in Government Code, section 18973 ² which provides for additional credits for veterans attaining passing marks in specified examinations. Essentially he advances two contentions: First, that the jurisdiction of the Board to remove civil service employees is expressly limited by statute and appellant's removal was not authorized by any statute; and second, that although the Board's action in crediting him with veterans' preference points was erroneous, it had nevertheless become final and the Board was without jurisdiction to reconsider or correct it.

We turn first to the circumstances of appellant's appointment. The record before us establishes without any contradiction that appellant was not entitled at any time to the veterans' preference points which advanced him from number 16 to number 4 and eventually to number 3 on the list, and thereby made him eligible for appointment.

Section 18973 at the times here material provided that in certain examinations 'a veteran with 30 days or more of service' who becomes 'eligible for certification from eligible lists by attaining the passing mark established for the examination' shall be allowed specified additional points. The statute further provided: 'For the purpose of this section, 'veteran' means any person who has served full time for 30 days or more in the armed forces in times of war or in time of peace in a campaign or expedition for service in which a medal has been authorized by the Government of the United States, or during the period September 16, 1940, to December 6, 1941, inclusive, or during the period June 27, 1950, to January 31, 1955, and who has been discharged or released under conditions other than dishonorable, * * *' ³

Appellant was not a 'veteran' within the meaning of the above statute. His service in the merchant marine did not satisfy the statutory service requirements specified as essential for a veterans' preference. The plain fact of the matter is that appellant was not entitled to any veterans' preference credits. Indeed, appellant himself seems to concede all this.

Authority to determine the allowance of veterans' preferences emanates from the California Constitution ⁴ and has been in turn conferred by the Legislature upon the Department of Veterans Affairs. (§ 18976.) ⁵ The Department is thus charged with the responsibility of notifying the State Personnel Board which candidates have qualified for veterans' preference. We think it is clear that in carrying out this responsibility the Department must make its determination in accordance with the statute allowing the additional credits. (§ 18973; see fn. 3, Ante.)

But the veteran himself has some responsibility in these matters. Under section 18976: 'Request for and Proof of eligibility for veterans' preference credits shall be submitted By the veteran to the Department of Veterans Affairs.' (§ 18976.) (Italics added.) In the instant case, appellant's application for veterans' preference made on an official form of the Department is before us. At the top of the document in large bold type appears the following: 'INSTRUCTIONS AND ELIGIBILITY REQUIREMENTS ARE LISTED ON THE BACK OF THIS APPLICATION.' The reverse of the document contains, among other things, an explicit statement of the eligibility requirements in accordance with the language of section 18973. ⁶ Immediately above appellant's signature on the face of the application appears the following: 'SIGNATURE: I HEREBY CERTIFY that I am eligible for veterans' preference and that the statements on this application are true, and I agree and understand that any misrepresentation of material facts herein may cause forfeiture of all right to any employment in the service of the State of California.'

In sum, not only was the allowance of a veteran's preference to appellant unauthorized because he was at no time a veteran; it was also made as a consequence of appellant's erroneous representation to the Department that he was a veteran, when in fact he was not. Although appellant's representation may be have been made in good faith and the Department's action may be characterized as a mistake, nevertheless the fact remains that the Department notified the Board that appellant was a candidate who qualified for veterans' preference credits on the examination (§ 18976) when in fact he did not.

The action of the Department which appellant invoked by his request for veterans' preference credits was an integral part of the civil service system established by the people (Cal.Const. art. XXIV; see Boren v. State Personnel Board (1951) 37 Cal.2d 634, 639, 234 P.2d 981) and implemented by the Legislature through the State Civil Service Act (Act) (§§ 18500--19765). This system is grounded upon the constitutional mandate that permanent appointments and promotion in the state civil service shall be 'based upon merit, efficiency and fitness as ascertained by competitive examination.' (Cal.Const. art. XXIV, § 1; see Gov.Code, §§ 18500, 18930, 18950.) The Act provides a detailed method of carrying out this mandate (§ 18500, subds. (a) and (c)) so that among other objectives, appointments shall be based upon merit and fitness (§ 18500, subd. (c)(2)) and state civil service employment can be made a career. (§ 18500, subd. (c)(3).) It is manifest from an examination of the Act that the Legislature has taken great pains to prescribe exactly how appointment to state civil service positions is to be made. (See for example §§ 18532, 18900, 18950, 19052.) This finds emphatic confirmation in section 19050: 'The appointing power in all cases not excepted or exempted by virtue of the provisions of Article XXIV of the Constitution shall fill positions by appointment, including cases of transfers, reinstatements, promotions and demotions, in strict accordance with this part and the rules prescribed from time to time hereunder, And not otherwise. Except as provided in this part, appointments to vacant positions...