Armistead v. California State Personnel Board

• Citation: 72 Cal.App.3d 629,140 Cal.Rptr. 227
• Parties: James H. ARMISTEAD, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD and Department of Water Resources, Defendants and Respondents. Civ. 16034.
• Decision Date: 10 August 1977
• Court: California Court of Appeals

Page 227

140 Cal.Rptr. 227

72 Cal.App.3d 629

James H. ARMISTEAD, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD and Department of Water Resources, Defendants and Respondents.

Civ. 16034.

Court of Appeal, Third District, California.

Aug. 10, 1977.

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

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

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:

(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 agency. Thus it is exempt from the notice and publication requirements of the Administrative Procedure Act. (Gov.Code, § 11371; see Cook v. Craig (1976) 55 Cal.App.3d 773, 785-786, 127 Cal.Rptr. 712.) But by the same token, it does not have the force of law.

The Board nevertheless argues that PTM section 525.11 is entitled to great weight as an administrative interpretation of a statute by those charged with its administration.. We agree. The general rule is that such an administrative interpretation should not be set aside unless clearly erroneous. (Los Angeles v. Superior Court (1941) 17 Cal.2d 707, 712, 112 P.2d 10; Andreadis v. Board of Trustees (1976) 59 Cal.App.3d 344, 351, 130 Cal.Rptr. 652.)

Appellant does not dispute the general rule, but 'takes issue with the finding that what is essentially an internal managerial document should be elevated to the dignity of an administrative interpretation.' The argument is without merit, for it is well settled that an agency's interpretation may take the form of a manual of procedure similar to the PTM (Adoption of Parker (1948) 31 Cal.2d 608, 615, 191 P.2d 420), an adjudicatory decision of the administrative agency similar to that in this case (Flores v. Unemployment Ins. Appeals Bd. (1973) 30 Cal.App.3d 681, 684, 106 Cal.Rptr. 543), or even an informally expressed opinion (Christensen v. Thurber (1953) 120 Cal.App.2d 517, 519, 261 P.2d 312).

Furthermore, we do not find PTM section 525.11 erroneous in its interpretation of Government Code section 19502 and rules 445 and 446. Among other things, it is in accord with general case law respecting elected public officials. In Meeker v. Reed (1924) 70 Cal.App. 119, 123, 232 P. 760, 762; the court stated: '. . . it appears to be the settled law of this state that a resignation takes effect immediately upon the date mentioned in the written resignation, filed as provided by law by the officer tendering his resignation. No acceptance is required.' (See also Hamm v. City of Santa Ana (1969) 273 Cal.App.2d 84, 78 Cal.Rptr. 102.)

Moreover, the interpretation of PTM section 525.11 is reasonable and necessary for effective governmental administration. Appellant's case is itself paradigmatic of the need for it. He testified that in November 1974, he requested and was denied approval of a December vacation; he therefore submitted the resignation 'Primarily to cover the period of time I wanted to look for a job . . .. Previously I had been told you can use this period of time to look for a job, and if you don't find a job, you can continue your employment.'

In other words, appellant intended to use a sham resignation as a device to circumvent his employer's denial of a request for time off in December. He testified that he had submitted a similar resignation when he was working 'in the Delta' three or four years earlier and had thereafter been permitted to resume work. ² The resignation in question was not the result of a spur-of-the-moment decision; it was typed on December 5, 1974, six days before it was submitted and the day appellant spoke to a Staff Legal Representative of the California State Employees Association about the effect of a resignation upon his continued representation by CSEA (with respect to an appeal from departmental punitive action against him). ³

This illustrates the propriety and wisdom of the Board's interpretation. Without it, appellant's effort in effect to take improper advantage of his employer would have succeeded. Irrespective of PTM section 525.11, the Board has correctly interpreted rules 445 and 446. ⁴

The judgment is affirmed. ⁵

REGAN, Acting P. J., concurs.

REYNOSO, Associate Justice.

I concur with part one of the majority opinion, but dissent from part two.

Government Code section 19502 states: 'Resignations from the State civil service are subject to board rules' which for the purposes of this case are 'regulations' as defined by Government Code section 11371(b). ¹ Regulations must be promulgated in accordance with the California Administrative Procedure Act (Gov. Code, §§ 11370-11440), which prescribe minimum procedural requirements including notice, filing, and publication. Unless these requirements are complied with, a regulation has not been legally issued and is ineffective.

The...