Kristal v. State Personnel Bd.

• Decision Date: 30 July 1975
• Citation: 50 Cal.App.3d 230,123 Cal.Rptr. 512
• Court: California Court of Appeals Court of Appeals
• Parties: Stanley KRISTAL, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant and Appellant. Civ. 44151.

Page 512

123 Cal.Rptr. 512

50 Cal.App.3d 230

Stanley KRISTAL, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant and Appellant.

Civ. 44151.

Court of Appeal, Second District, Division 1, California.

July 30, 1975.

Hearing Denied Sept. 24, 1975.

D. Brandon Bernstein, Beverly Hills, for plaintiff and appellant Stanley Kristal.

Evelle J. Younger, Atty. Gen., and David W. Halpin, Deputy Atty. Gen., for defendant and appellant California State Personnel Bd.

THOMPSON, Associate Justice.

The case at bench involves cross-appeals. That of appellant Kristal (Employee) asserts that he was erroneously discharged from his position as a tenured teacher of mentally and emotionally disturbed children at Camarillo State Hospital and was denied procedural due process by the absence of an evidentiary hearing before his dismissal became effective. The appeal of California State Personnel Board (Board) argues that the trial court erred in holding that Employee's dismissal was not effective as of the date specified in a notice of punitive action served pursuant to Government Code section 19574 and did not become operative until after administrative action on a hearing on Employee's answer to the notice (Gov.Code, § 19575) became final. We conclude that Employee's contentions are not supported by the record and applicable precedent. We conclude also that, while the matter is by no means free of doubt, Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed. 15, decided after the trial of the case at bench, should be read as validating the effective date of dismissal adopted by the trial court.

Employee was employed as a tenured civil service employee serving as a teacher of emotionally and mentally disturbed children at Camarillo State Hospital. ¹ On November 8, 1972, an adolescent emotionally disturbed boy patient in Employee's class said he did not want to do any more school work. The boy knocked several books from a shelf to the floor and Employee ordered him to leave the classroom. When a psychiatric technician summoned by Employee arrived to remove the boy, Employee ordered the boy to pick up the books. The boy started to comply and then struck Employee lightly on the head with a book laughing as he did so. A graduate assistant arrived in the room to help. The boy picked up a chair and, from a distance of 5 to 6 feet, pointed it toward Employee in the manner of a lion tamer and then ran around the room to elude the psychiatric technician and graduate assistant. The technician and assistant caught the boy and successfully restrained him. When the boy was restrained, Employee left his desk and grabbed the boy by the neck causing the entire group to fall to the floor. The boy's face reddened while Employee held his neck. After the boy was on the floor in the restraint of the technician and assistant, Employee pushed his knee onto the boy's chest. The technician and assistant requested Employee to get off the boy. Employee did not do so and was forcibly removed by the technician while the assistant pulled the boy away.

On November 28, 1973, Employee, while in the doorway of his classroom, told a different patient, 14 years old, 5 feet tall, and weighing 90 pounds, to get out. Employee pushed the boy from behind, causing him to fall.

The incidents were reported to Employee's superiors. Employee was not given an opportunity to respond to these reports. On January 10, 1973, Employee was served with a notice of punitive action signed by the chief deputy director of the California Department of Mental Hygiene. The notice recites the incidents of November 18 and 28. It states that 'Rule 84 of the Director's Rules for the governance of all employees of the Department of Mental Hygiene forbids employees to strike, abuse or inflict cruelty upon a patient,' notifies Employee that he is discharged as of January 13, 1973, and specifies that the disciplinary action is taken for inexcusable neglect of duty within the meaning of Government Code section 19572, subparagraph (d), and willful disobedience within the meaning of Government Code section 19572, subparagraph (o).

As permitted by statute, Employee answered the notice of punitive action. The matter was set for administrative hearing by a hearing officer of the State Personnel Board on February 13, 1973.

At the outset of the hearing, counsel for Board moved to amend the notice of punitive action by adding as an additional basis for termination of employment 'failure of good behavior during duty hours of such a nature that it causes discredit to (the) employing agency within the meaning of Government Code Section 19572, subparagraph (t).' No change in the factual allegations of the notice was proposed in the motion to amend. No objection to the amendment was made by Employee and the motion to amend was granted.

Evidence at the administrative hearing established the facts of Employee's two assaults upon patients of Camarillo State Hospital while they were in attendance at Employee's classes at the institution. Employee did not deny that the assaults occurred. He presented evidence purporting to establish that his co-employees who testified against him were prejudiced and that he had been provoked into action by racial slurs. Counsel for Board presented no evidence of the content of Rule 84 which the notice alleged Employee had violated. The allegation of willful disobedience of an order was stricken. The hearing officer found that the factual allegations of misconduct were true and that grounds for dismissal existed by reason of Employee's inexcusable neglect of duty and failure of good behavior during duty hours of such nature that it causes discredit to the employing agency. The hearing officer recommended that the dismissal of Employee be sustained upon the two grounds, 'both separately and severally,' the dismissal being effective January 13, 1973, as stated in the notice. The hearing officer's proposed decision was adopted by Board and Employee's petition for rehearing was denied on April 12, 1973, at which point the administrative decision became final, subject to judicial review.

On June 1, 1973, Employee filed his petition in administrative mandate pursuant to Code of Civil Procedure section 1094.5, commencing the case at bench. Applying the substantial evidence test to the record of the administrative hearing, the trial court determined that the findings of cause for dismissal were sustained. It rejected Employee's claims that the administrative agency prejudicially erred in permitting the amendment to the notice of punitive action and that the notice did not state facts sufficient to confer jurisdiction upon Board or a basis for disciplinary action because the allegation pertaining to Rule 84 was stricken. The trial court sustained Employee's contention, founded upon Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, and its progeny, that dismissal of a tenured public employee without a prior hearing at which a showing of validity of the charges against him is made violates the due process requirement of the United States and California Constitutions. Accordingly, the court ruled that Employee's dismissal was not effective as of January 13, 1973, as stated in the notice, but that it was effective on April 12, 1973, when the administrative decision after hearing became final.

Both Employee and Board appealed from the resulting judgment. In his opening brief, Employee contends: (1) the administrative action taken against him pursuant to the Government Code sections applicable to public employees in general is void because he was entitled to the procedure set forth in Education Code sections 13403 through 13413 dealing with discharge of public school teachers; (2) the Board prejudicially erred in allowing the amendment to notice of punitive action; (3) the findings of fact of Board and trial court do not sustain the conclusion that Employee committed the misconduct charged and the evidence does not support the findings of fact; and (4) having denied Employee a pretermination hearing on the charges against him, Board was without power to proceed so that Employee must be fully reinstated with 'permanent tenure' and allowed all back pay to date. In his closing brief, Employee asserts for the first time that: (1) the trial court erroneously applied the substantial evidence test of review rather than applying its independent judgment to make findings of fact based upon the record in the administrative proceeding; (2) a 1970 amendment to the California Constitution eliminated the adjudicatory power of the State Personnel Board; and (3) the penalty imposed by Board was an abuse of its discretion. Board contends that no pretermination hearing is required in the dismissal of a tenured public employee so that the trial court's ruling that Employee's dismissal was effective on April 12 rather than January 13 is erroneous.

The issues presented to us, other than that pertaining to the possible requirement of a pretermination hearing, are properly the subject of summary disposition.

Article XXIV, section 4 of the California Constitution exempts from the jurisdiction of the state civil service system and consequently from the administrative jurisdiction of the State Personnel Board only '(t)he teaching staff of schools under the jurisdiction of the Department of Education or the Superintendent of Public Instruction' (Cal.Const., art. XXIV, § 4, subd. (i)). Employee not having raised the issue made no showing before the administrative agency that the teaching staff of the school at Camarillo State Hospital was under the jurisdiction of the Department of Education or the Superintendent of Public Instruction. He made no such showing by evidence or request for judicial notice in the trial court and none in his briefs on appeal. Nor did Employee, at any stage of the proceedings, attempt to establish that the instructional function...