Ishimatsu v. Regents of University of Cal.

• Citation: 266 Cal.App.2d 854,72 Cal.Rptr. 756
• Court: California Court of Appeals Court of Appeals
• Decision Date: 28 October 1968
• Parties: Chizuko ISHIMATSU, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, a corporation, Defendant andRespondent. Civ. 24471.

Page 756

72 Cal.Rptr. 756

266 Cal.App.2d 854

Chizuko ISHIMATSU, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, a corporation, Defendant andRespondent.

Civ. 24471.

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

Oct. 28, 1968.

Hearing Denied Dec. 24, 1968.

Garry, Dreyfus, McTernan & Brotsky, Charles R. Garry, Fay Stender, San Francisco, for appellant.

Thomas J. Cunningham, Milton H. Gordon, Berkeley, for respondent.

HAROLD C. BROWN, Associate Justice.

This is an appeal from a judgment denying a petition for a peremptory writ of mandamus directed to the Regents of the University of California to show cause why the discharge of petitioner should not be set aside and petitioner be reinstated with back pay as a librarian with the University of California.

The Facts: Appellant was employed by the University of California (University) on February 1, 1962, as head of the medical center catalog department, professional classification 'Librarian II.' On July 1, 1963, she was reclassified to the position of 'Librarian III.' Her term of employment was designated as indefinite. On December 28, 1964, appellant was advised in writing by her immediate supervisor that her employment with the University would be terminated January 12, 1965. The reason given for the termination was '(s)upervisory relationship with subordinates made it impossible for employee to be retained.' Appellant claimed that she was wrongfully discharged and requested that her grievance be investigated by proceedings applicable to that class of academic employees who could be discharged only for cause. President Kerr, however, directed that her grievance be heard pursuant to the provisions applicable to nonacademic employees and appointed Professor Mason Haire, the resident psychologist of the Institute of Industrial Relations at Berkeley, California, as the hearing officer.

Professor Haire, after conducting the hearings which lasted two days, recommended that the dismissal be sustained and Chancellor Saunders accepted the recommendation. Appeals to President Kerr and to the board of regents were denied. Appellant thereafter filed a petition for writ of mandate in the San Francisco Superior Court to command the regents of the University to set aside her dismissal and to restore the position to her with back pay or to refer her administrative appeal to the appropriate unit of the University's grievance structure. The court found that appellant was employed on a non-tenure status; that the University had power to adopt personnel practices regarding its employees and to conduct quasi-judicial hearings; that the University was not required by law to find cause as a prerequisite to termination of appellant's employment, and that there was substantial evidence supporting the hearing officer's findings. The court ordered judgment denying the petition for the writ of mandate.

Two questions have been raised by the parties on this appeal: (1) does appellant come within the classification of academic employees who could be discharged only for cause after a hearing by a committee of the academic senate, and (2) does the Constitution of the State of California delegate to the University quasi-judicial power to conduct hearings concerning its personnel so that in judicial review the courts are limited to determining the existence of substantial evidence supporting the University's decision and, if so, was there substantial evidence present here?

Appellant contends that under the directives from the President of the University, Clark Kerr, dated June 18, 1962 and July 2, 1962, she, as a librarian, was classified as an academic employee, and that as such she was entitled to a hearing for cause under the July 2, 1962 directive which provides that librarians would be under the jurisdiction of the president's office, or pursuant to the rules of the University pertaining to hearings for academic employees.

When appellant was first employed by the University on February 1, 1962, her designation as 'Librarian II' brought her within the University's classification of nonacademic employee. Her employment tenure was 'indefinite.' The University had formulated and elaborate and formal grievance procedure for nonacademic personnel. These rules (Rule 26.2, Non Academic Personnel Rule) provided that each campus chief should establish formal grievance procedures which should include provision for mediation of these grievances, appeal to the department chairman and campus personnel appeals officers, written grievances, and hearings by a campus appeals commission or a hearing officer appointed by the chairman or president. The committee or personnel officer hearing the grievance is not authorized to make any final decision but, instead, makes a recommendation to the chancellor or president of the University who thereafter renders the decision.

Rule 26.2 of the Nonacademic Rules of the University relative to grievance hearings does not contain language which would compel the University to show cause before discharging an employee who did not come within the classification of professor, associate professor or their equivalent ranks. Such employees could be terminated at will. (See Ruinello v. Murray, 36 Cal.2d 687, 689, 227 P.2d 251; Mallard v. Boring, 182 Cal.App.2d 390, 394, 6 Cal.Rptr. 171.) A different procedure was provided under chapter VI 3(j) and chapter VI 2(a), Standing Orders of the Regents of the University, for specified academic employees and those of equivalent rank designated by the president of the University and approved by the board of regents. These specified academic employees could be discharged only for cause after a hearing by a committee of the academic senate. ¹

The directives relied upon by appellant consist of letters written by President Clark Kerr to all campus officers. On July 2, 1962, President Kerr wrote as follows: 'Office of the President July 2, 1962 CHIEF CAMPUS OFFICERS: Enclosed herewith is a new classification and salary compensation plan for professional Librarians in the University. Under date of May 21, 1962 I sent you the following statement:

'Effective July 1, 1962, professional librarians will be classified as academic employees and will come under the jurisdiction of the Academic Personnel Offices.'

'This statement is now amended to read:

'Under the new classification and salary compensation plan, Professional librarians will be classified as academic employees. At the statewide level they will come under the jurisdiction of the Academic Personnel Unit in my office.' (Emphasis ours.) * * * 'The change from nonacademic to academic status will not affect existing fringe benefits and working conditions * * *. / s/ Clark Kerr'.

The July 2, 1962 letter and an accompanying memorandum specified numerous changes under the new academic classification, but there was no reference to tenure of librarians nor was there any change specified in grievance hearing procedures. It is to be particularly noted that the record is silent as to any approval as to the change of the status of librarians by the board of regents which approval is required by chapter VI 3(j) and VI 2(a) of the Standing Rule of the Board of Regents before librarians would attain status equivalent to professors and assistant professors.

In a letter dated November 5, 1965 (these proceedings commenced January 5, 1965, when appellant filed her claim of grievance and request for hearing), President Kerr attempted to clarify the meaning of the July 2, 1962 directive as follows: 'In a memorandum dated July 2, 1962 outlining the new classification and salary compensation plan for professional librarian classes at the University, the following statement appeared: 'The change from nonacademic to academic status will not affect existing fringe benefits and working conditions.' Under this statement, it was intended that any grievances of professional librarians would continue to be governed by, and processed in accordance with, Nonacademic Personnel Rule 26 and campus regulations implementing that rule. It was also intended that all other nonacademic personnel rules not inconsistent with the new classification and salary compensation plan announced in the July 2 memorandum would continue to be applicable to librarians. This interpretation will continue in effect until completion of a study covering all non-faculty academic appointees including librarians.' (Emphasis added.)

The May 21, 1962 directive (referred to in the July 2 letter of President Kerr), the July 2, 1962 directive and the November 5, 1965 clarifying letter indicate that the status of librarians was changed from nonacademic to academic personnel. The privileges of librarians under the new status, however, were limited to salary increases and working conditions as specified in the memorandum accompanying the July 2 letter. Appellant has objected to making President Kerr's letter of November 5, 1965 a part of the record on appeal as it was not introduced in evidence at the hearing or before the trial court. It appears, however, the letter was appended to the respondent's brief presented to the trial court and was properly made a part of the record on appeal. (Relative to introduction of evidence not produced before the hearing officer see Dare v. Bd. of Medical Examiners, 21 Cal.2d 790, 136 P.2d 304; Code Civ.Proc. § 1094.5.) President Kerr's intention to retain grievance hearings for librarians may be inferred not only from his letter of November 5, 1965, but also from his action in directing that the nonacademic grievance procedure be followed relative to appellant's grievance and in denying her appeal.

It is concluded, therefore, that the trial court's finding that the 'conducted grievance hearing and proceeding were made in accordance with Respondent's (the University's) rules, regulations, policies and procedures applicable to Petitioner' is supported by reasonable...