Cal. Dep't of Corr. & Rehab. v. Cal. State Pers. Bd.

• Decision Date: 10 July 2015
• Docket Number: F069100
• Citation: 238 Cal.App.4th 710,189 Cal.Rptr.3d 619
• Court: California Court of Appeals
• Parties: CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Plaintiff and Respondent, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant and Respondent; Joseph McCauley, Real Party in Interest and Appellant.

238 Cal.App.4th 710

189 Cal.Rptr.3d 619

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Plaintiff and Respondent

v.CALIFORNIA STATE PERSONNEL BOARD, Defendant and Respondent;Joseph McCauley, Real Party in Interest and Appellant.

F069100

Court of Appeal, Fifth District, California.

Filed July 10, 2015

Law Office of Michael A. Morguess and Michael A. Morguess for Real Party in Interest and Appellant.

Stephen A. Jennings, Clayton A. Mack and Christopher D. Howard, Staff Counsel, Department of Corrections and Rehabilitation Office of Legal Affairs, Sacramento, for Plaintiff and Respondent.

No appearance for Respondent California State Personnel Board.

OPINION

KANE, J.

AppellantJoseph McCauley(McCauley) was promoted to the position of correctional sergeant at Avenal State Prison by his employer, California's Department of Corrections and Rehabilitation(CDCR).The new position began on December 2, 2008, and was subject to a 12-month probationary period before it became permanent.On December 1, 2009, CDCR served a notice of rejection on McCauley to remove him from the position of correctional sergeant effective on December 8, 2009.On December 2, 2009, another document was served on McCauley, this one purporting to extend his probationary period until December 8, 2009.McCauley maintained that CDCR's notice of rejection and other papers were invalid due to failure to comply with certain timing and notice requirements relating directly to the duration of the probationary period.In an administrative appeal to California's State Personnel Board(the Board), the Board agreed with McCauley and revoked CDCR's notice of rejection.CDCR challenged the Board's ruling by filing a petition for writ of mandate in the trial court.The trial court granted the petition and reversed the Board.McCauley now appeals from the judgment granting the petition for writ of mandate.

We hold that McCauley is correct that the notice of rejection was fatally deficient under applicable law because the effective date of the rejection (i.e., Dec. 8, 2009) was after the completion of his probationary period.In so holding, we also conclude that the proper way to calculate a civil service probationary period is to include the first day, notwithstanding the general rule for calculating time limits in Government Code section 6800¹andCode of Civil Procedure section 12 .Here, then, the first day of McCauley's probationary period was December 2, 2008, and the last day was December 1, 2009.Thus, CDCR's effort on December 2, 2009, to extend the probationary period was too late, no extension was accomplished thereby, and the effective date of the rejection was not within the probationary period as required.For all of these reasons, we reverse the trial court's judgment and direct the trial court to enter a new order denying the petition for writ of mandate.

FACTS AND PROCEDURAL HISTORY

McCauley was employed by CDCR as a correctional officer starting in 2003.In mid-2008, he was given a temporary term promotion to correctional sergeant. In late 2008, he was appointed to the permanent position of correctional sergeant at Avenal State Prison beginning on December 2, 2008, and subject to a probationary period of 12 months.The position would become permanent only after the successful completion of the probationary period.

On December 1, 2009, CDCR served a “Notice of Rejection During Probationary Period ”(notice of rejection) and attached documents on McCauley by mail.The notice of rejection stated, among other things, that “pursuant to ... Section 19173,” McCauley was being “rejected” from his “position of Correctional Sergeant with [CDCR] at Avenal State Prison.”It also stated that “[t]his rejection ... shall be effective at the close of business on December 8, 2009. ”(Italics added.)The notice of rejection articulated numerous grounds for the rejection decision by CDCR, including McCauley's failure to meet certain standards expected of persons serving as a correctional sergeant and supervisor.²Although the rejection was said to be effective on December 8, 2009, no provision was made in the notice of rejection to extend McCauley's probationary period.A proof of service listed the documents that were attached to the notice of rejection, but that list did not include a written notification that CDCR was extending McCauley's probationary period.

On December 2, 2009, McCauley was personally served with a second copy of the notice of rejection and attached documents.The papers personally served on December 2, 2009, also included a letter (dated December 1, 2009) signed by employee relations officer Kimberly Thornton, informing McCauley that “ ‘[p]ursuant to Government Code Section 19173andCalifornia Code of Regulations ... Section 321[his] probationary period [was] being extended to December 8, 2009....’ ”The fact that this letter was served on December 2, 2009, is highly significant in this case because CDCR's notice extending the probationary period had to be given “[p]rior to the completion of the probationary period....”(Cal.Code Regs., tit. 2, § 321, subd. (e).)According to McCauley, the last day of the 12-month probationary period was December 1, 2009, and, therefore, the letter attempting to extend the probationary period was served one day too late and had no effect.That is, by December 2, 2009, the probationary period was already over and, from McCauley's perspective, he“woke up that morning (the 366th day) as a permanent correctional sergeant.”

McCauley filed an administrative appeal to the Board, claiming that the notice of rejection was not timely or effective under the circumstances.An administrative law judge (ALJ) was assigned to hear the matter.McCauley submitted a motion to the ALJ to revoke the notice of rejection.In that motion, McCauley argued the notice of rejection was invalid because the written notice of rejection must set forth an “effective date” for the rejection that “shall not be later than the last day of the probationary period.”(See§ 19173, subd. (b).)The notice of rejection also had to comply with California Code of Regulations, title 2, section 52.6, subdivision (a), which provides that such notice “shall” be given “[a]t least five working days before the effective date of [the] proposed ...action....”McCauley further argued that no extension of the 12-month probationary period was accomplished by CDCR because notice thereof was not given “[p]rior to the completion of the probationary period....”(Cal.Code Regs., tit. 2, § 321, subd. (e).)According to McCauley's motion, since the probationary period was not extended, the effective date of the rejection (i.e., Dec. 8, 2009) was well after the final day of the probationary period on December 1, 2009.

On January 26, 2012, the ALJ issued a written decision.The ALJ agreed with McCauley that the 12-month probationary period ended on December 1, 2009.The ALJ also found that CDCR's letter purporting to extend the probationary period was not served until December 2, 2009, one day after the probationary period had already ended.The ALJ concluded: “Due to [CDCR's] failure to meet the requirements of California Code of Regulations, title 2, section 321, [McCauley's] probationary period ended December 1, 2009, and therefore the [notice of rejection] is revoked as being untimely.”

On February 7, 2012, the Board adopted the ALJ's decision as its own, including the findings of fact, determination of issues, and the decision to revoke CDCR's notice of rejection.

On May 15, 2012, CDCR filed its petition for writ of mandate in the trial court.In support of its petition, CDCR argued for the first time that the probationary period actually ended on December 2, 2009, not on December 1, 2009, based on generally applicable statutes providing a method of computing time (i.e., Gov.Code, § 6800;Code Civ. Proc., § 12 ), under which method the first day of the period would be excluded.The trial court agreed with CDCR's position and, on November 15, 2013, the court granted the writ of mandate and directed the Board to set aside its decision revoking the notice of rejection.Notice of entry of the trial court's judgment was served and filed on January 30, 2014.

McCauley's timely notice of appeal followed.

DISCUSSION

I.Standard of Review

The scope of our review from a judgment on a petition for writ of mandate is the same as that of the trial court.(Cate v. State Personnel Bd.(2012)204 Cal.App.4th 270, 282, 138 Cal.Rptr.3d 691.)To the extent factual questions are involved, the Board's findings of fact are reviewed under the substantial evidence test.(Id. at pp. 281–282, 138 Cal.Rptr.3d 691;Gonzalez v. State Personnel Bd.(1995)33 Cal.App.4th 422, 428, 39 Cal.Rptr.2d 282;Code Civ. Proc., § 1094.5, subd. (c).)If a question of law is presented, we undertake a de novo review of the Board's ruling (Pollak v. State Personnel Bd.(2001)88 Cal.App.4th 1394, 1404, 107 Cal.Rptr.2d 39 ), including where (as here) the question involves the interpretation of statutory or regulatory provisions (Riverside Sheriffs' Assn. v. County of Riverside(2011)193 Cal.App.4th 20, 28, 122 Cal.Rptr.3d 197;Riveros v. City of Los Angeles(1996)41 Cal.App.4th 1342, 1349–1350, 49 Cal.Rptr.2d 238 ).

We also recognize that courts show deference to an administrative body's reasonable construction of relevant statutory provisions within its field of expertise.As summarized by our Supreme Court: “Ultimately, the interpretation of a statute is a legal question for the courts to decide, and an administrative agency's interpretation is not binding.[Citation.]... But we have also said that when a statute is susceptible of more than one interpretation, we will consider an administrative interpretation of the statute that is reasonably contemporaneous with its adoption.[Citation.]”(Sara M. v. Superior Court(2005)36 Cal.4th 998, 1011, 32 Cal.Rptr.3d 89, 116 P.3d 550.)Although not necessarily...