72 Cal.App.3d 629, Civ. 16034, Armistead v. California State Personnel Board

Docket NºCiv. 16034
Citation72 Cal.App.3d 629, 140 Cal.Rptr. 227
Opinion JudgePARAS, Associate Justice. [140 Cal.Rptr. 231]REYNOSO, Associate Justice.
Party NameArmistead v. California State Personnel Board
Attorney[140 Cal.Rptr. 228]Robert J. Sullivan of Turner & Sullivan, Sacramento, for plaintiff and appellant. Evelle J. Younger, Atty. Gen., Steven A. Merksamer, Deputy Atty. Gen., for defendants and respondents.
Case DateAugust 10, 1977
CourtCalifornia Court of Appeals

Page 629

72 Cal.App.3d 629

140 Cal.Rptr. 227

James H. ARMISTEAD, Plaintiff and Appellant,

v.

CALIFORNIA STATE PERSONNEL BOARD and Department of Water Resources, Defendants and Respondents.

Civ. 16034.

California Court of Appeal, Third District.

Aug. 10, 1977.

As Modified on Denial of Rehearing Aug. 25, 1977.

Opinion on pages 629-640 omitted.

HEARING GRANTED

For Opinion on Hearing, see 149 Cal.Rptr. 583 P.2d 744

[140 Cal.Rptr. 228]Robert J. Sullivan of Turner & Sullivan, Sacramento, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., Steven A. Merksamer, Deputy Atty. Gen., for defendants and respondents.

PARAS, Associate Justice.

James H. Armistead (hereinafter 'appellant') appeals from a judgment dismissing his petition for writ of mandate (Code Civ.Proc., § 1094.5) after a demurrer of the California State Personnel Board was sustained without leave to amend. The dismissal left intact the Board's decision denying appellant's petition to set aside his resignation from a civil service position as Associate Control System Engineer in the California Department of Water Resources.

The petition alleges the following facts: 1 On Wednesday, December 11, 1974, appellant placed the following memorandum on the desk of his supervisor: 'This memo is to inform you that I intend to resign at the end of all accumulated vacation.' He then absented himself from work, without leave, until Tuesday, December 17, 1974, when he submitted the following memorandum: 'This memorandum is to inform you that, due to family considerations, I do no longer intend to resign as previously stated.' By letter dated December 18, 1974, the personnel officer, with knowledge of the December 17 memorandum, accepted the December 11 resignation.

Section 525.11 of the Personnel Transactions Manual (hereinafter 'PTM'), upon which the personnel officer relied when accepting the resignation, reads: 'An employee who resigns effective at some future date may withdraw his resignation before the effective date of that resignation and continue in employment only with the approval of the appointing power. If the appointing power does not wish to accept his withdrawal, the resignation will become effective upon the date originally stated.' (Emphasis added.)

Appellant's numerous attacks on the judgment fall essentially into three rubrics: [140 Cal.Rptr. 229](1) The PTM is not applicable because civil service employment is contractual and not statutory.

(2) PTM section 525.11 should not be given weight as an administrative interpretation of the civil service statutes.

(3) Application of the PTM to appellant violated his constitutional right to due process of law.

I

Appellant's argument that his employment rights are contractual (and that therefore he had the right to rescind his resignation before it was accepted) is in error. In contrast to public school teachers, whose rights are indeed contractual (Cal.Const., art. VII, § 4, subd. (i) formerly Cal.Const., art. XXIV, § 4, subd. (i); Richardson v. Board of Education (1936) 6 Cal.2d 583, 586, 58 P.2d 1285), the 'terms and conditions of civil service employment are fixed by statute and not by contract.' (Boren v. State Personnel Board (1951) 37 Cal.2d 634, 641, 234 P.2d 981, 985; see also Martin v. Henderson (1953) 40 Cal.2d 583, 590, 255 P.2d 416; Gilmore v. Personnel Board (1958) 161 Cal.App.2d 439, 449, 326 P.2d 874; Patten v. Cal. State Personnel Board (1951) 106 Cal.App.2d 168, 174, 234 P.2d 987; Markman v. County of Los Angeles (1973) 35 Cal.App.3d 132, 134, 110 Cal.Rptr. 610.) The state civil service system consists of general laws enacted by the Legislature and administered by the State Personnel Board (hereinafter 'Board') to govern the employment of all State civil service employees. (Cal.Const., art. VII, supra; Gov.Code, § 18500 et seq.; Proctor v. S. F. Port Authority (1968) 266 Cal.App.2d 675, 683, 72 Cal.Rptr. 248; see Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 105, 77 Cal.Rptr. 224, 453 P.2d 728.)

II

Having determined that appellant's rights are statutory, we examine the statutory authority for PTM section 525.11.

The Legislature has specifically delegated to the Board authority to promulgate rules governing resignations. Government Code section 19502 states in pertinent part: 'Resignations from the State civil service are subject to board rules.' Pursuant to this authority, the Board has adopted rules 445 and 446 (2 Cal.Admin.Code, §§ 445, 446) which state in pertinent part: Rule 445. 'An employee may resign from state service by submitting his written resignation to the appointing power.' Rule 446. 'Permanent separations from state service shall include . . . resignation.'

The PTM is not promulgated by the Board itself, but rather by the executive officer of the Board, to whom the Constitution delegates authority to administer the civil service statutes under the rules of the Board. (Cal.Const., art. VII, § 3, subd. (b).) It is intended only for internal, limited circulation to those involved in personnel management. PTM section 1.1 states: 'The manual is written primarily for those persons engaged in the day-to-day operation of personnel transactions.'

Section 2.11 states in relevant part: 'All requests for a complete manual must be submitted in writing to the Personnel Board Personnel Action Review and Processing Section by the central personnel office of the department . . ..'

Section 2.12 states: 'Each request must include a justification of the need for and intended use of the manual since the distribution is limited to those persons engaged in the day-to-day operation of personnel transactions.'

Both sides agree that the PTM (or at least § 525.11, the only section in issue) relates only to the internal management of the...

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1 practice notes
  • 135 Cal.App.3d 590, 5748, People v. Rocha
    • United States
    • California California Court of Appeals
    • August 31, 1982
    ...We comply, since doing so is in no way a citation prohibited by California Rules of Court, rule 977. In the Court of Appeal decision (72 Cal.App.3d 629, 140 Cal.Rptr. 227) both the majority and dissent discussed the APA. The majority stated that both parties agreed that the section of the P......
1 cases
  • 135 Cal.App.3d 590, 5748, People v. Rocha
    • United States
    • California California Court of Appeals
    • August 31, 1982
    ...We comply, since doing so is in no way a citation prohibited by California Rules of Court, rule 977. In the Court of Appeal decision (72 Cal.App.3d 629, 140 Cal.Rptr. 227) both the majority and dissent discussed the APA. The majority stated that both parties agreed that the section of the P......