Williams v. Department of Water & Power

• Decision Date: 14 April 1982
• Citation: 181 Cal.Rptr. 868,130 Cal.App.3d 677
• Court: California Court of Appeals Court of Appeals
• Parties: Frances V. WILLIAMS, Petitioner and Appellant, v. LOS ANGELES CITY DEPARTMENT OF WATER AND POWER, et al., Respondents. Civ. 63125.

Page 868

181 Cal.Rptr. 868

130 Cal.App.3d 677

Frances V. WILLIAMS, Petitioner and Appellant, v. LOS ANGELES CITY DEPARTMENT OF WATER AND POWER, et al., Respondents.

Civ. 63125.

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

April 14, 1982.

John T. MacMillan, Rosemead, for petitioner and appellant.

Ira Reiner, City Atty., Edward C. Farrell, Chief Asst. City Atty., Ned E. Flusty, Asst. City Atty., and Gilbert W. Lee, Deputy City Atty., for respondents.

LILLIE, Acting Presiding Justice.

Frances V. Williams appeals from judgment denying her petition for writ of mandate to compel respondents to reinstate her to the position of Relief Commercial Service Representative with respondent Los Angeles City Department of Water and Power (DWP) or grant her a hearing on her termination therefrom. The appellate issue is whether, as a temporary part-time non-civil service employee who holds her job at the pleasure of her employer, petitioner has a right to the pretermination procedures outlined in Skelly v. State Personnel Bd., 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774. We conclude that she does not.

The record before the trial court consisted of petition and exhibits attached thereto, and answer and declaration filed by respondents. It reflects the following: In 1967 petitioner was employed by DWP as a Relief Commercial Service Representative, a position of less than half time exempt from the civil service provisions of the City Charter; she worked for 13 years as a part-time nonpermanent employee serving at the pleasure of the DWP; she did not have the right to complete a probationary period, accumulate civil service seniority or appeal a suspension or discharge; she worked not to exceed 19 hours a week (7 hours each Monday and 4 hours daily for 3 other days) and her duties were to relieve regular employees in the same classification (Commercial Service Representative) during peak load periods; dependable attendance was a very critical factor for this job because these relief employees are only required when the work load is at its maximum.

Petitioner's attendance record was far from satisfactory in the following particulars: In 1977 she was absent from the job 11.3 percent of the time; in 1978, 9.8 percent of the time and in 1979, 10.4 percent. During the first three months of 1980 from January through March, petitioner was absent 25.7 percent of the time. On February 28, 1980, she was counseled regarding the Division Absenteeism Control Program and informed that continued poor attendance could result in disciplinary action including discharge. In the three months following she was absent from duty 30.4 percent of the time. On June 12, 1980, she was advised that DWP intended to terminate her employment as a result of excessive absenteeism. Following discussion she refused to sign that notice of the department's intent, and left the office. Her employment was terminated effective at the close of her workday on June 12.

Among other facts the trial court found that DWP is established by and exists under the Charter of the City of Los Angeles; and concluded that petitioner did not have the right to preremoval safeguards before being terminated from her employment, and she was not subject to discharge only for cause and therefore had no property interest in her employment. Accordingly, judgment was entered denying relief.

Conceding she was not a civil service employee, appellant seeks to bring herself within the ambit of Skelly v. State Personnel Bd., 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 by claiming a "proprietary interest in her employment" by virtue of the length of her employment and "other rights" afforded her, none of which has evidentiary support. At most, several were mentioned by her counsel but only in oral argument to the trial court; none was in the record before it. The answer denied most of the factual allegations of the petition, and the declaration of an employee of DWP responsible for petitioner's personnel records provided most of the evidence. However, whether or not she was a "regular employee employed on a continuous basis" as claimed by appellant, is not the issue but rather, whether or not she was entitled to discharge only for cause and had a property interest in the continuation of her employment subject to due process of law.

It is well settled that the terms and conditions of public employment including term of service, are fixed by the statute, rules or regulations creating it, not by contract (even if one is involved) as in private employment. (Miller v. State of California, 18 Cal.3d 808, 814-815, 135 Cal.Rptr. 386, 557 P.2d 970; Boren v. State Personnel Board, 37 Cal.2d 634, 641, 234 P.2d 981; Markman v. County of Los Angeles, 35 Cal.App.3d 132, 134, 110 Cal.Rptr. 610) In all cases dealing with termination of public employment the court examines the statutory scheme creating and regulating the same. (See Skelly v. State Personnel Bd., 15 Cal.3d 194, 206, 124 Cal.Rptr. 14, 539 P.2d 774.) The DWP was established by and exists under the Charter of the City of Los Angeles. The terms and conditions of employment with the department and employment rights are fixed by the provisions of the City Charter and the Civil Service Rules of the City of Los Angeles which created and limited appellant's position. Her position of less than half time limited her work to a maximum of 19 hours a week. "... Positions of less than half time are considered to be intermittent positions." (§ 1.25(c), Civil Service Rules, City of Los Angeles.) One appointed from an eligible list to "an intermittent position cannot complete a probationary period, accumulate seniority (for civil service purposes), or appeal a suspension or discharge." (§ 5.19, Civil Service Rules, City of Los Angeles.) Similarly, section 110 of the Charter of the City of Los Angeles provides that the Board of Civil Service Commissioners shall by its rules provide for: "(d) the tenure of persons appointed from a register of eligibles to positions determined by the board to be temporary or intermittent in character; any rules adopted pursuant to this subdivision shall provide that when appointment is made to a position determined to be temporary or intermittent the provisions of Sec. 109 with respect to period of probation and completion of appointment shall not be applicable." Section 112, subdivision (a) ¹ of the Charter limits the right of removal only for cause to permanent civil service employees. Thus appellant's employment as a Relief Commercial Service Representative, created and limited by the provisions of the City Charter and the civil service rules of the city, was an intermittent nonpermanent non-civil service position held by her at the pleasure of her employer, DWP; she was not entitled to removal only for cause. A public employee serving at the pleasure of the appointing authority is by the terms of his employment subject to removal without judicially recognized good cause. (Bogacki v. Board of Supervisors, 5 Cal.3d 771, 783, 97 Cal.Rptr. 657, 489 P.2d 537.)

To establish a property interest in continued employment which is protected by due process, appellant relies on Williams v. County of Los Angeles, 22 Cal.3d 731, 150 Cal.Rptr. 475, 586 P.2d 956; Skelly v. State Personnel Bd., 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, and Mendoza v. Regents of University of California, 78 Cal.App.3d 168, 144 Cal.Rptr. 117. The holding in Skelly v. State Personnel Bd., 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 "that a permanent civil service employee is entitled to 'notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.' (Id., at p. 215, 124 Cal.Rptr. 14, 539 P.2d 774.) ... is predicated on the finding that permanent civil service employees possess a property right in continued employment because they cannot, under statutory law, be disciplined without cause. (Id., 207, 124 Cal.Rptr. 14, 539 P.2d 774.)" (Barthuli v. Board of Trustees, 19 Cal.3d 717, 722, 139 Cal.Rptr. 627, 566 P.2d 261, original emphasis.) Said the Skelly court, "... the California statutory scheme regulating civil service employment confers upon an individual who achieves the status of 'permanent employee' a property interest in the continuation of his employment which is protected by due process." (15 Cal.3d P. 206, 124 Cal.Rptr. 14, 539 P.2d 774.) In Mendoza v. Regents of University of California, 78 Cal.App.3d 168, 144 Cal.Rptr. 117, the court articulated the widely recognized rule "that if the employee is subject to discharge only for cause, he has a property interest which is entitled to constitutional protection (Arnett v. Kennedy, supra, 416 U.S. 134 [94 S.Ct. 1633, 40 L.Ed.2d 15] )." (78 Cal.App.3d P. 175, 144 Cal.Rptr. 117.) Nor was appellant's position similar to that in Williams v. County of Los Angeles, 22 Cal.3d 731, 150 Cal.Rptr. 475, 586 P.2d 956. At the outset the Supreme Court declared, "This case does not involve 'employment ... at the pleasure of the appointing authority.' (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 782-783 [97 Cal.Rptr. 657, 489 P.2d 537] ....)" (22 Cal.3d P. 736, 150 Cal.Rptr. 475, 586 P.2d 956); in the instant case appellant held her relief position at the pleasure of DWP. The appellant in Williams was a civil service employee (22 Cal.3d p. 733, 150 Cal.Rptr. 475, 586 P.2d 956) while appellant herein was not. Finally, Williams held a "recurrent position" and under the county's civil service rules no person may be employed temporarily in a permanent or recurrent position (p. 734, fn. 2, 150 Cal.Rptr. 475, 586 P.2d 956); appellant was only a temporary employee.

"Indeed, as the cases point out, property interests which are subject to procedural safeguards are not created by the Constitution. Rather, they are created and their...