Ng v. State Personnel Bd.

• Decision Date: 29 March 1977
• Citation: 68 Cal.App.3d 600,137 Cal.Rptr. 387
• Court: California Court of Appeals Court of Appeals
• Parties: John S. NG, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant and Respondent. Civ. 15812.

Page 387

137 Cal.Rptr. 387

68 Cal.App.3d 600

John S. NG, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant and Respondent.

Civ. 15812.

Court of Appeal, Third District, California.

March 29, 1977.

Rehearing Denied April 26, 1977.

Hearing Denied May 26, 1977.

Donald M. Sea, Oakland, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen. by Stephen Egan, Deputy Atty. Gen., Sacramento, for defendant and respondent.

FRIEDMAN, Associate Justice.

Plaintiff held a permanent civil service position as supervisor of academic instruction at the California Rehabilitation Center, apparently a position comparable to school principal. The Department of Corrections ordered his demotion to the position of elementary school teacher effective October 1, 1973. The stated reasons were incompetence, inefficiency, inexcusable neglect of duty and failure of good behavior. Plaintiff appealed to the State Personnel Board. The board found plaintiff incompetent and inefficient, expressly rejected the other charges and concluded that the demotion was justified. Plaintiff's request for a rehearing was denied on April 24, 1974. Plaintiff filed this superior court action on April 21, 1975, almost one year later.

On May 29, 1975, the superior court filed its decision declaring that the Personnel Board had adopted the decision of its hearing officer without referring to the reporter's transcript of the hearing and ordering remand to the board for reconsideration. In compliance with the court's order, the Personnel Board reviewed the reporter's transcript and exhibits, then upheld its original decision and denied plaintiff's rehearing request. Plaintiff then returned to the superior court and filed a motion for issuance of a writ of mandate. On January 29, 1976, the court entered judgment denying the petition for writ of mandate. On February 26, 1976, plaintiff filed a notice of appeal.

There is no merit in the Attorney General's charge of tardy appeal. The Attorney General argues that plaintiff should have appealed from the judgment or order of May 29, 1975. The argument is ill taken because that order was interlocutory only. The pending mandate proceeding vested the court with continuing jurisdiction to review the Personnel Board's final decision rendered after compliance with the interlocutory order. The appeal from the judgment of January 29, 1976, is properly before us.

Plaintiff contends that the findings of incompetence and inefficiency were not supported by substantial evidence. As is well known, the courts do not reweigh the evidence before the Personnel Board and draw from the evidence all reasonable inferences supporting its findings. (Neely v. State Personnel Board, 237 Cal.App.2d 487, 489, 47 Cal.Rptr. 64.)

Plaintiff is correct in asserting that several items of supporting evidence were hearsay and that hearsay alone will not support a charge. (Walker v. City of San Gabriel, 20 Cal.2d 879, 881, 129 P.2d 349.) We find substantial evidence other than hearsay to support the findings. Mr. Tyson, plaintiff's immediate superior, testified that plaintiff took no effective action to stop a resident student from raising black widow spiders and that he, Tyson, had to take the corrective action. Contrary to Mr. Tyson's instructions, plaintiff failed to make observations and evaluations of teachers adequately or with required frequency. Plaintiff filed standard report forms concerning student dropouts, many of which contained false entries made by plaintiff. Mr. Tyson's investigation revealed that in 19 of 35 cases the dropout reports filed by plaintiff reflected the wrong reason for withdrawal. Despite instructions, plaintiff failed to supervise enrollment procedures to attain classes of approximately equal size. He failed to suppervise and evaluate a new program of elementary education; when another person was put in charge of the program, it showed better results. Plaintiff failed to respond, one way or another, to a teacher's request for leave of absence. These occurrences supplied substantial evidence of incompetence and inefficiency.

Relying upon Walker v. State Personnel Board, 16 Cal.App.3d 550, 94 Cal.Rptr. 132, plaintiff argues that the Personnel Board should have returned the case to the Department of Corrections for reassessment of the penalty after the board rejected several of the department's charges. In Walker the court rejected some charges and sustained others, then directed the Personnel Board to reconsider the penalty. The Walker case is not analogous. The relationship between the court and the Personnel Board is far different than that between the Personnel Board and the employing agency. The Personnel Board is the ultimate authority delegated by law to fix appropriate disciplinary action. (Gov.Code, § 19582.) The courts will not interfere with its penalty unless it has abused its discretion. (Nightingale v. State Personnel Board, 7 Cal.3d 507, 515, 102 Cal.Rptr. 758, 498 P.2d 1006.)

Plaintiff argues that the penalty was excessive. Discretion is abused when the action exceeds the bound of reason. (People v. Russel, 69 Cal.2d 187, 194, 70 Cal.Rptr. 210, 443 P.2d 794.) We cannot say that plaintiff's demotion was an unreasonable penalty.

Plaintiff charges that his demotion without a prior hearing deprived him of procedural due process of law and entitled him to salary in arrears. In Skelly v. State Personnel Board, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, the California Supreme Court established the proposition that the State Civil Service Act confers upon permanent employees a property right in continued employment, which is protected by due process (Id. at pp. 206--207, 124 Cal.Rptr. 11, 539 P.2d 774); that the punitive action provisions of the Act do not fulfill minimum constitutional demands; that these demands require notice and an opportunity to respond before the discipline becomes effective (Id. at p. 215, 124 Cal.Rptr. 14, 539 P.2d 774).

More recently, in Barber v. State Personnel Board, 18 Cal.3d 395, 134 Cal.Rptr. 206, 556 P.2d 306, the Supreme Court held the Skelly principle retroactively applicable to pending proceedings; concluded that an employee dismissed without prior due process is entitled to salary in arrears from the time discipline is actually imposed until the date the State Personnel Board files its decision (Id. at pp. 402--403, 134 Cal.Rptr. 206, 556 P.2d 306).

In our view the procedural due process doctrine enunciated in Skelly extends to demotions as well as dismissals. In a practical sense a permanent employee's property interest in continued employment embraces his current classification as well as his current salary. His property interest is damaged by demotion as well as dismissal. The latter deprives him of the entire interest, the former of part. In Skelly, 15 Cal.3d at p. 203, 124 Cal.Rptr. 14, 539 P.2d 774 the court pointed to the employee's right to an evidentiary hearing except as to minor discipline consisting of suspension of 10 days or less. The right to an evidentiary hearing extends equally to dismissals and demotions. (Gov.Code, § 19578.) The Skelly opinion (15 Cal.3d at pp. 207--208, 124 Cal.Rptr. 14, 539 P.2d 774) places dismissal And other disciplinary measures within the ambit of the right to continued employment which forms a property interest evoking...