Dominey v. Department of Personnel Administration

• Citation: 205 Cal.App.3d 729,252 Cal.Rptr. 620
• Decision Date: 28 October 1988
• Docket Number: No. C002852,C002852
• Court: California Court of Appeals
• Parties: Perry DOMINEY et al., Plaintiffs and Appellants, v. DEPARTMENT OF PERSONNEL ADMINISTRATION, Defendant and Respondent, DEPARTMENT OF JUSTICE, Real Party In Interest and Respondent.

Page 620

252 Cal.Rptr. 620

205 Cal.App.3d 729

Perry DOMINEY et al., Plaintiffs and Appellants, v. DEPARTMENT OF PERSONNEL ADMINISTRATION, Defendant and Respondent, DEPARTMENT OF JUSTICE, Real Party In Interest and Respondent.

No. C002852.

Court of Appeal, Third District, California.

Oct. 28, 1988.

Lanny T. Winberry, Giattina & Winberry, Sacramento, for plaintiffs and appellants.

Christine A. Bologna, Chief Counsel, San Diego, and Kenneth R. Hulse, Labor Relations

Counsel, Dept. of Personnel Admin., Sacramento, for defendant and respondent and real party in interest.

PUGLIA, Presiding Justice.

Plaintiffs, 48 current and former special investigators and senior special investigators with the Department of Justice's Medi-Cal Fraud Unit (MCFU), appeal from the judgment denying their first amended petition for writ of mandamus. By that petition, plaintiffs sought to compel the respondent Department of Personnel Administration (DPA) (1) to award them back pay for work they allegedly performed "out of class" and (2) to reclassify their positions to that of special agents, or to order DPA to grant them a rehearing. The trial court treated the hearing provided by DPA as quasi-legislative, rather than quasi-adjudicative, and thus reviewed DPA's decision under the arbitrary and capricious standard of review. Plaintiffs contend the trial court should have applied the more exacting de novo standard of review because (1) the DPA proceeding was quasi-adjudicative and (2) the hearing concerned fundamental vested rights. To the extent the DPA hearing dealt with plaintiffs' claim for back pay, we agree it was quasi-adjudicative and implicated fundamental vested rights. We shall therefore reverse the judgment in part.

I

On October 30, 1981, plaintiffs filed a grievance with the State Personnel Board in which they claimed, "The special investigators in the Medi-Cal Fraud Unit are currently working out of class." The grievance requested "reclassification of all investigators within the Medi-Cal Fraud Unit from, the special investigator series, to the special agent series." Soon thereafter, the Legislature transferred the authority to review out-of-class claims from the State Personnel Board to DPA. (Gov.Code, §§ 19816, 19818, 19818.6, 19818.16; further statutory references to sections of an undesignated code are to the Government Code.)

On November 12, 1985, DPA conducted a hearing on the grievance. Counsel for the MCFU special investigators and senior special investigators (hereafter "MCFU investigators") explained it was their position they were performing duties comparable to that of special agents and were entitled to reclassification and back pay as remedies. ¹ Counsel introduced documentary evidence and the testimony of several MCFU investigators in support of plaintiffs' position. In addition, evidence was introduced showing that both the federal government--which pays 75% of the MCFU investigators' salaries--and the Department of Justice supported plaintiffs' claim. No evidence was offered to rebut their claim.

On January 21, 1986, DPA issued its decision denying plaintiffs' out-of-class claim. DPA reviewed a number of documents contained within its file which were not introduced at the grievance hearing. DPA reasoned that although the MCFU investigators' tasks are similar to those of some of the special agents, the MCFU investigators are not performing the full range of special agent duties in that they (1) are not cross-trained to perform a broad range of law enforcement duties as are special agents, and (2) do not provide training, technical assistance and coordination to local law enforcement agencies. ² Thus, DPA concluded plaintiffs are not working out of class as special agents.

On February 20, 1986, plaintiffs petitioned DPA for rehearing. Plaintiffs attached to their petition a number of documents indicating MCFU investigators have provided training and coordination to local law enforcement agencies. The petition for rehearing was denied.

Plaintiffs filed their first amended petition for writ of mandate on August 19, 1986. Plaintiffs contended DPA violated their right to due process by considering materials which were not introduced at the grievance hearing, thus precluding their right to rebut contradictory evidence. In addition, plaintiffs contended DPA abused its discretion in that its decision was not supported either by the weight of the evidence or by substantial evidence.

The trial court denied the petition by order of April 27, 1987. That order refers to the court's tentative decision of January 14, 1987, in which the court reasoned DPA acted in a quasi-legislative capacity when it reviewed plaintiffs' out-of-class grievance. The court reasoned plaintiffs were requesting DPA to reclassify them and formulate a new policy to encompass their job duties, rather than asking DPA to award relief under existing rules: "[Plaintiffs'] contention that they sought [DPA] to apply existing classification criteria (Government Code section 19818.6) to their situation, does not take into account that the only means for relief was the creation of a new classification policy. Accordingly, a quasi-legislative action was undertaken by the agency."

Because the trial court concluded the DPA hearing was quasi-legislative, the court treated the petition as one for traditional, rather than administrative, mandamus and concluded DPA did not act in an arbitrary or capricious manner. Finally, the court rejected plaintiffs' contention they had been denied due process, reasoning that an agency acting in a quasi-legislative capacity may consider public information, such as its own file, even though the information was not introduced at the hearing. Judgment was entered in DPA's favor on June 3, 1987.

II

As a prerequisite for review by administrative mandamus, the administrative decision must be one made in a proceeding in which a hearing is required by law. (Code Civ.Proc., § 1094.5, subd. (a).) DPA has jurisdiction over two matters relevant to our analysis: (1) "allocation of a position to a class" ( §§ 19818.6, 19818.20), and (2) back pay for out-of-class work. ( § 19818.16, subd. (a).) ³ DPA must conduct hearings regarding all matters related to its jurisdiction. ( § 19815.4, subd. (e); see also § 18670; Webb v. State Personnel Board (1971) 16 Cal.App.3d 542, 547, 94 Cal.Rptr. 115 [employee entitled to hearing on allocation of his position].)

DPA argues it lacks the authority to promote employees to a higher classification to remedy a claim of out-of-class work because to do so would destroy the fundamental civil service requirements of examination, certification and appointment by statute. (See Pinion v. State Personnel Board (1938) 29 Cal.App.2d 314, 319, 84 P.2d 185. See also Ligon v. State Personnel Bd. (1981) 123 Cal.App.3d 583, 590-591, 176 Cal.Rptr. 717; Snow v. Board of Administration (1978) 87 Cal.App.3d 484, 489, 151 Cal.Rptr. 127; Otto v. Reardon (1937) 21 Cal.App.2d 260, 69 P.2d 185.) However, none of the authorities and nothing in the statutes prohibit DPA from reallocating the plaintiffs' positions to the class of special agent, leaving it to the incumbent plaintiffs to compete for the reclassified positions. This is precisely one of the remedies sought by plaintiffs. Moreover, DPA clearly has the authority pursuant to section 19818.16, to award back pay for out-of-class work for up to one year prior to the date the employee filed a claim. (See ante, fn. 3.)

III

We next consider the question on which the appeal turns, whether the DPA hearing was quasi-legislative or quasi-adjudicative. Review of quasi-legislative determinations is by ordinary mandamus (Code Civ.Proc., § 1085) under the arbitrary and capricious standard, while review of quasi-adjudicative decisions is by administrative mandamus (Code Civ.Proc., § 1094.5) under either the substantial evidence or the independent judgment standard. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, 112 Cal.Rptr. 805, 520 P.2d 29, fn. 2; Bixby v. Pierno (1971) 4 Cal.3d 130, 140-144, 93 Cal.Rptr. 234, 481 P.2d 242.)

"Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts." (Strum supra, at p. 35, 112 Cal.Rptr. 805, 520 P.2d 29, fn. 2, citing Wulzen v. Board of Supervisors (1894) 101 Cal. 15, 24, 35 P. 353, and Smith v. Strother (1885) 68 Cal. 194, 196-198, 8 P. 852, overruled on another ground in Millholen v. Riley (1930) 211 Cal. 29, 35-36, 293 P. 69.) In Smith v. Strother, the court addressed the question (68 Cal. at pp. 196-197, 8 P. 852): "What constitutes the distinction between a legislative and judicial act?" and responded: "The former establishes a rule regulating and governing the matters or transactions occurring after its passage. The other determines rights or obligations of any kind, whether in regard of persons or property concerning matters or transactions which already exist and have transpired here the judicial power is invoked to pass on them.... We have found no more accurate statement of the difference between a legislative and a judicial act than that expressed by Justice Field in his opinion in the Sinking Fund Cases. [p ] " 'The distinction,' says the learned justice, 'between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had; the other provides what the law shall be in future cases arising under it. Whenever an act undertakes to determine a question of right or obligation, or of property, as the foundation on which it proceeds, such act is to that extent a judicial one, and not the proper exercise of legislative functions.' ( [Central Pac. R. Co. v. Gallatin] 99 U.S. 761 .)" ⁴

Stated another way, legislative facts are " ...