Slivkoff v. Board of Trustees

• Decision Date: 27 April 1977
• Citation: 137 Cal.Rptr. 920,69 Cal.App.3d 394
• Court: California Court of Appeals Court of Appeals
• Parties: Frank SLIVKOFF, Petitioner and Respondent, v. CALIFORNIA STATE UNIVERSITY AND COLLEGES and the Trustees thereof et al., Respondents and Appellants. Civ. 49967.

Page 920

137 Cal.Rptr. 920

69 Cal.App.3d 394

Frank SLIVKOFF, Petitioner and Respondent, v. CALIFORNIA STATE UNIVERSITY AND COLLEGES and the Trustees thereof et al., Respondents and Appellants.

Civ. 49967.

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

April 27, 1977.

Evelle J. Younger, Atty. Gen., Marilyn K. Mayer, Deputy Atty. Gen., for respondents and appellants.

Loren E. McMaster and Bernard L. Allamano, Sacramento, for petitioner and respondent.

POTTER, Associate Justice.

This is an appeal by the California State University and Colleges and the trustees thereof; Glen S. Dumke, Chancellor; California State College, Sonoma; and Marjorie D. Wagner, president thereof (hereinafter 'appellants') from a judgment granting petitioner Frank Slivkoff (hereinafter 'petitioner') a peremptory writ of mandate.

The petition alleged that petitioner had been employed from April 19, 1965, to December 6, 1968, by appellant California State College, Sonoma, as a stationary engineer; that on the latter date he left his employment, 'in good standing,' until reemployed in the same position on September 28, 1970. On April 24, 1974, petitioner requested an investigation of the possibility of crediting his current sick leave account with the unused sick leave which had accumulated at the time of separation in December 1968. Thereafter, petitioner initiated a grievance requesting such credit. The final action on this grievance was a decision that the request could not be granted.

In their return to the petition, appellants admitted the factual allegations of the complaint. The matter was presented to the court upon such admitted facts and memoranda of points and authorities. These memoranda submitted to the court included references to provisions of the Constitution of the State of California, the Government Code, the Education Code, and the California Administrative Code. The pertinent provision of the California Constitution was article 24, section 4, subdivision (h), which declared that 'Officers and employees of the University of California and the California State Colleges' were exempt from civil service. ¹

The Government Code sections to which reference was made included chapter 3 of Part I of Division 5 (§§ 18100--18107) governing sick leave. The particular pertinent provisions of the chapter were: (a) section 18100, setting forth the conditions for the accrual of sick leave applicable to '(e)ach state officer and employee who is employed full time' and designating the State Personnel Board to 'provide by rule for the regulation and method of accumulation of sick leave for civil service employees'; (b) section 18101, permitting accumulation but prohibiting 'additional sick leave with pay beyond that accumulated'; (c) section 18101.5 authorizing the State Personnel Board to provide by rule for crediting unused sick leave accrued in a state position exempt from civil service before separation, provided the employee 'entered other state service not more than six months after separating from his exempt employment'; (d) section 18105, providing for the administration of sick leave for exempt employees 'in accordance with the rules of the State Personnel Board,' but as amended in 1972, authorizing the trustees of the California State University and Colleges to 'establish and adjust rules for the administration of sick leave,' and section 18106, establishing the right of state college employees who previously were employees of a state college auxiliary organization to retain and accumulate sick leave from such former employment.

Another Government Code section referred to was section 19143. The pertinent part of this section, as in effect at all relevant times, read as follows:

'Notwithstanding any other provision of the law to the contrary, an employee whose continuity of employment in the state service as either an exempt or civil service employee is broken for six months or longer by a permanent separation such as resignation, dismissal, or rejection during a probationary period, and who is subsequently reemployed after December 31, 1949, shall not be credited for service prior to such separation, for purposes of layoff or sick leave, nor shall he be credited with any sick leave which he had accumulated prior to his separation, and he shall again serve the months required to qualify for vacation credit. The State Personnel Board shall adopt rules governing the crediting of service before and after such a break in service for purposes of vacation as specified in Section 18050 and the keeping of service records related thereto.'

The provisions of the Education Code which were pertinent to the court's determination were section 22600, providing that the California State University and Colleges 'shall be administered by a board designated as the Trustees of the California State University and Colleges,' and section 24201 which, as enacted in 1961, read as follows:

'The trustees shall provide by rule for the government of their appointees and employees, pursuant to the provisions of this chapter and other applicable provisions of law, including, but not limited to, appointment, classification, terms, duties, pay, leave of absense, tenure, vacation, layoff, dismissal, demotion, suspension and reinstatement.

'The rules adopted by the trustees relating to tenure, layoff, dismissal, demotion, suspension, and reinstatement of academic and administrative employees shall be adopted on or before February 1, 1962 and become effective on July 1, 1962, with respect to employees who are academic teaching and administrative employees as defined in subdivision (1)(e) of Section 24301, as it read on June 30, 1961.'

However, in 1972, by the same enactment which amended Government Code section 18105 to permit the trustees to establish and adjust rules for the administration of sick leave, Education Code section 24201 was amended to read as follows:

'Notwithstanding any other provision of law, the trustees shall provide by rule for the government of their appointees and employees, pursuant to the provisions of this chapter and other applicable provisions of law, including, but not limited to, appointment, classification, terms, duties, pay And overtime pay, leave of absence, tenure, vacation, layoff, dismissal, demotion, suspension, Sick leave and reinstatement.

'The rules adopted by the trustees relating to tenure, layoff, dismissal, demotion, suspension, and reinstatement of academic and administrative employees shall be adopted on or before February 1, 1962 and become effective on July 1, 1962, with respect to employees who are academic teaching and administrative employees as defined in subdivision (1)(e) of Section 24301, as it read on June 30, 1961.'

(1972 additions underlined.)

Finally, reference was made to Title 5 of California Administrative Code, section 43551. This administrative regulation, as promulgated by the trustees in 1962, read as follows:

'The appointing power may rehire any person, who fulfills all employment requirements, who was previously employed in the state college and who left in good standing. Such persons:

'(a) shall acquire permanent status in the same manner as new employees.

'(b) shall, if rehired within five years, be credited with any unused sick leave at the time of previous separation as a regular employee.'

In 1972, the words 'employed at the campuses' were inserted in lieu of the words 'employed in the state colleges'; otherwise, the regulation has remained the same at all times.

The trial court found the facts as admitted by the pleadings, and concluded that appellants had wrongfully failed to give petitioner credit for his unused sick leave. In reaching this conclusion, the court stated its view that (1) Government Code section 19143 'which is contained within the Civil Service Act, does not apply to petitioner who is exempt from the Civil Service Act by virtue of Article XXIV, section 4(h) of the California State Constitution'; and (2) Education Code section 24201 'controls over Government Code section 19143'; therefore, Title 5, California Administrative Code, section 43551 'was properly adopted by the . . . Trustees in 1962 under the authority of Education Code 24201.'

Contentions

Appellants contend: (1) that the right to credit for sick leave upon separation and reinstatement of all state officers and employees is limited by Government Code section 19143 to employees whose reinstatement occurs within six months of their separation; (2) that Title 5 of the California Administrative Code, section 43551, is not, therefore, a permissible rule for the government of employees of the California State University and Colleges insofar as it conflicts with Government Code section 19143; and (3) that in any event, section 43551 of the Administrative Code was adopted at a time when the trustees had no authority to adopt rules for the administration of sick leave; subsequent authorization to adopt such rules could not validate the prior exercise of the power.

Petitioner contends: (1) that Government Code section 19143 has no application to employees of the California State University and Colleges because it is a part of the state Civil Service Act, and they are exempt from civil service; (2) that Education Code sections 22600 and 24201 have at all times since 1960 empowered the trustees to make regulations governing the reinstatement of employees, including concomitant credit for sick leave; and (3) that Title 5 of the Administrative Code, section 43551, is, and at all times has been, a valid exercise of that power.

Discussion

We agree with appellants that Government Code section 19143 limits the right of all state employees whose employment 'as either an exempt or civil service employee is broken for six months or longer by a permanent separation,' and that the provisions of Education Code sections 22600 and 24201 are not controlling to the contrary. Consequently, the provisions...