California Correctional Peace Officers Assn. v. State Personnel Bd.

• Decision Date: 20 June 1994
• Docket Number: No. B067917,B067917
• Citation: 32 Cal.Rptr.2d 93,25 Cal.App.4th 1746
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 25 Cal.App.4th 1746, 30 Cal.App.4th 1570, 35 Cal.App.4th 372 25 Cal.App.4th 1746, 30 Cal.App.4th 1570, 35 Cal.App.4th 372, 146 L.R.R.M. (BNA) 3131 CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, et al., Defendants and Respondents, DEPARTMENT of CORRECTIONS, et al., Real Parties in Interest and Respondents. Civ.

Page 93

32 Cal.Rptr.2d 93

Previously published at 25 Cal.App.4th 1746, 30 Cal.App.4th 1570, 35 Cal.App.4th 372

25 Cal.App.4th 1746, 30 Cal.App.4th 1570, 35 Cal.App.4th 372,

146 L.R.R.M. (BNA) 3131

CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, et al., Defendants and Respondents DEPARTMENT of CORRECTIONS, et al., Real Parties in Interest and Respondents.

Civ. No. B067917.

Court of Appeal, Second District, Division 3, California.

June 20, 1994.

Review Granted Sept. 22, 1994.

Gerrit Jan Buddingh', Benjamin C. Sybesma, West Sacramento, Christine Albertine, Rancho Cucamonga and Rudy E. Jansen, Schipper, Azusa, Carroll, Burdick & McDonough, Ronald Yank, Martin R. Gran & John R. Tennant, San Francisco, for plaintiff and appellant.

Elise S. Rose, Chief Counsel and Elizabeth S. Stein, Staff Counsel, for defendants and respondents.

Daniel E. Lungren, Atty. Gen., Henry G. Ullerich, Sr. Asst. Atty. Gen., Martin H. Milas, Supervising Deputy Atty. Gen., and Silvia M. Diaz, Deputy Atty. Gen., for real parties in interest.

KLEIN, Presiding Justice.

Plaintiff and appellant the California Correctional Peace Officers Association on behalf of itself, its members and fair share fee payers (the Association) appeals a judgment denying its petition for writ of mandate against defendants and respondents the California State Personnel Board and Gloria Harmon, executive officer of the State Personnel Board (collectively referred to as the Board).

In this case of first impression, the essential question presented is whether the time in which the Board must render a decision under Government Code section 18671.1 is mandatory and jurisdictional or merely "directory." ¹ , ² We conclude the time is mandatory and jurisdictional because the statute specifies a "consequence" for the Board's failure to act timely, namely, the employee is deemed to have exhausted all available administrative remedies, and enforcing the consequence furthers the statute's purpose of ensuring a timely disposition of the employee's administrative appeal. The judgment therefore is reversed and the matter is remanded for further proceedings.

The trial court shall determine whether any employees waived the time limitations of the statute. Any employees who did not waive time may bring a proceeding in mandamus directly against the employing agency to revoke the adverse action. (Code Civ.Proc., § 1085.) Those employees who waived the time limitations have the remedy of judicial review of the administrative decision by way of administrative mandamus. (Code Civ.Proc., § 1094.5.)

FACTUAL AND PROCEDURAL BACKGROUND

This case originates from approximately 50 disciplinary actions brought by the Department of Corrections and the Department of Youth Authority (the Departments) against various of their employees, which adverse actions were appealed by the affected employees to the Board. On May 16, 1991, the Association, on behalf of the employees in their administrative appeals, moved for dismissal of the adverse actions before the Board for the Board's failure to hold a timely hearing on the appeals or otherwise render a timely decision on the same. At the time of the Association's motion, hearings had not been held in some of the cases and in others, hearings had been held but no decision had been rendered.

All the motions to dismiss were denied by the Board.

On August 20, 1991, the Association filed a petition for writ of mandamus in the superior court (Code Civ.Proc., § 1094.5) seeking dismissal of all pending disciplinary actions on the grounds the Board had "committed a clear abuse of discretion, as a matter of law, for failure to hold hearings and render decisions in accordance [with] the statutory mandates of ... [sections] 19578 and 19583; ..." Maintaining that those provisions were mandatory and that the Board had failed to act timely, the Association contended the Board had lost jurisdiction to rule on the adverse actions. The Association sought full back pay with interest, lost employee benefits and all rights pertaining to civil service status, such as vacation and sick leave credit, retirement credit and any seniority rights.

The Board filed an answer to the petition and supporting memorandum of points and authorities. The Departments, as real parties in interest, also filed opposition papers. The various opposition papers contended the relevant provisions relied on by the Association, while requiring the Board to act reasonably timely on the processing of adverse action appeals, were directory provisions only and did not divest the Board of jurisdiction to act upon the appeals, notwithstanding the delay in processing the cases. Further, the delay was caused by a severe backlog created by inadequate staffing, increased filings, and the death of an administrative law judge in The Association filed its replication to the answers denying any waiver and reiterating its argument the pertinent provisions impose a mandatory duty upon the Board and its failure to act divested the Board of jurisdiction over the cases.

Southern California. In addition, the Association had contributed to the delays in processing some of the hearings or had agreed to a procedure that inherently caused delay. Also, as employers acting in the public's interest to ensure a qualified work force, the Departments stood to be prejudiced by any dismissal of the actions, and they lacked control over case processing once an appeal had been filed with the Board.

On October 4, 1991, the matter was heard. The trial court requested supplemental briefing regarding the statutory interpretation of the various Government Code provisions at issue and the appropriate remedy to be afforded the Association. The parties filed supplemental briefs.

On October 30, 1991, the parties again appeared before the trial court. The trial court found the relevant language regarding the Board's obligation to hold hearings and render decisions within a reasonable time mandatory but directory and not jurisdictional. The trial court requested further briefing regarding the disposition of the various cases remaining before the Board.

Following additional briefing, on December 9, 1991 the trial court directed the Board, within 60 days, to hold hearings in the two remaining cases which, as of that time, had yet to be heard. As for 15 pending cases in which a hearing had been held but no decision rendered, the trial court ordered decisions to be rendered within 30 days.

Judgment was entered March 13, 1992.

The Association appealed.

CONTENTIONS

The Association contends, inter alia, the Board's failure to hold a hearing and/or render a decision within the mandatory time frames set forth in section 18671.1 results in loss of the Board's jurisdiction and that the remedy for the Board's noncompliance with the time limitations is dismissal of the disciplinary actions.

DISCUSSION

1. No merit to the Board's contention this appeal should be dismissed as moot.

The Board asserts decisions have been issued in all of the disciplinary appeals that were the subject of the petition for writ of mandamus. The decisions, once issued, became reviewable pursuant to Code of Civil Procedure section 1094.5. Therefore, the question of delay in those cases became moot upon issuance of the final decisions.

The argument is without merit. Assuming arguendo the time limitations of section 18671.1 are mandatory, the Board would have been without jurisdiction to render any decision beyond the time frame therein and any such decision would be infirm.

Also, the interpretation of section 18671.1 is of general public interest and there is a reasonable probability the same questions will be litigated again and appealed. (California Ins. Guarantee Assn. v. Liemsakul (1987) 193 Cal.App.3d 433, 436-437, fn. 1, 238 Cal.Rptr. 346.)

Accordingly, we pass upon the issues raised herein.

2. Section 18671.1 is mandatory and jurisdictional because it contains a consequence for noncompliance with its time limitations in furtherance of the purpose of the statute.

a. Principles of statutory construction.

As indicated, section 18671.1 states in relevant part: "the period from the filing of the petition to the decision of the board shall not exceed six months or 90 days from the time of the submission, whichever time period is less, and except that the board may extend the six-month period up to 45 additional days." (Italics added.)

It is a well-settled principle of statutory construction that the word " 'shall' " is ordinarily construed as mandatory, while " 'may' " is generally construed as permissive, "particularly when both terms are used in the same statute." (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432 However, in this context the use of the word "shall" is not dispositive.

                443, 261 Cal.Rptr. 574, 777 P.2d 610.)   Thus, the usual canons of interpretation would appear to compel the conclusion section 18671.1 is mandatory and therefore jurisdictional, and not merely directory
                

There is no simple mechanical test for determining whether a provision is to be given directory or mandatory effect. (Morris v. County of Marin (1977) 18 Cal.3d 901, 909-910, 136 Cal.Rptr. 251, 559 P.2d 606.) " 'In order to determine whether a particular statutory provision ... is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]....' [Fn. omitted.]" (Id., at p. 910, 136...