Roe v. Dept. of Justice

Filed 9/21/07 Roe v. Dept. of Justice CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Plaintiff Robert Roe appeals from denial of his petition for writ of mandate seeking de novo review of his termination by the Department of Justice. We hold that the State Personnel Board did not violate the Government Code section 18671.1 time limit for issuing a decision, that Roes due process claims are without merit, and that there is no ongoing wrongful deprivation entitling him to a further backpay award. We affirm the trial court.

Background

The underlying facts are set out in detail in one of our earlier decisions, Roe v. State Personnel Bd. (2004) 120 Cal.App.4th 1029 (Roe III). We repeat here the salient facts for the convenience of the reader.

On August 25, 1992, the Department of Justice (Department) mailed Robert Roe a notice of adverse action dismissing him for cause from his position as a Deputy Attorney General effective August 31, 1992. The Department charged Roe with dishonesty, willful disobedience, misuse of state property, and general failure of qualifications and good behavior. The charges stemmed from Roes unauthorized removal of two computer printers from the offices of the Attorney General.

On August 31, Roes counsel, Roger Patton, met with Assistant Attorney General George Williamson, the Department Skelly officer,[1] and proposed various resolutions short of dismissal; he told Williamson that the Department had not given Roe adequate notice of termination. Patton and Williamson scheduled a Skelly hearing for September 24 at 2:00 p.m. Patton testified that Williamson warned him on September 23 that for Roe to avoid discipline he would have to submit his resignation by the 24th.

On September 24, 1992, at 11:14 a.m., Patton faxed Williamson a letter of resignation signed by Roe, which stated I hereby resign from my position as a deputy attorney general effective today at 5:00 p.m. Pattons cover letter stated in part, Enclosed is [Roes] letter of resignation from his position as Deputy Attorney General. Our understanding is that this terminates the employment relationship and any pending disciplinary proceeding. The Department never responded. In November, when Roe asked his union representative to inquire about his backpay and benefits, he learned for the first time that the Department took the position that he was terminated on August 31, 1992.

On December 23, 1992, the Department filed an amended notice of adverse action with the State Personnel Board (Personnel Board), changing the effective date of the adverse action from August 31 to September 24, 1992. Roe filed an answer to the amended notice, asserting that he resigned September 24 pursuant to an agreement with the Department. In response, the Department tried to withdraw its amended notice, on the new theory that the Board was without jurisdiction because Roes termination had actually become final on September 14, twenty days after service of the original notice of dismissal. The Personnel Board adopted the administrative law judges (ALJ) proposed decision, which concluded that the Board did not have jurisdiction to consider the matter because Roe had not timely appealed his termination.

Roe I

In his first writ proceeding, Roe sought a writ of mandate directing the Department to vacate the August 31, 1992, dismissal and reinstate him. The superior court granted the petition and found (1) that the Personnel Board erred in denying jurisdiction; and (2) that Roe had been terminated without due process. On appeal, this court affirmed the superior courts conclusion that the Personnel Board had jurisdiction to decide Roes appeal on the merits. (Roe v. State Personnel Board (Jan. 15, 1998, A075617) [nonpub. opn.] (Roe I ).) However, we concluded that the superior court erred by deciding whether Roe was denied pretermination due process instead of remanding to the Personnel Board for further proceedings. We directed the superior court to enter a new judgment granting the petition for writ of mandate and remanding the matter to the Personnel Board with instructions to hear Roes appeal.

Roe II

In a second appeal, this court held that Roe was entitled to attorney fees and costs under section 1983 for litigating the Roe I mandamus proceeding. (Roe v. State Personnel Bd. (Aug. 16, 2000, A086674) [nonpub. opn.] (Roe II).)

Roe III

On remand, an ALJ conducted hearings and admitted evidence regarding the underlying claims of misconduct, Roes termination, and subsequent events. The ALJ found that the August 31, 1992, termination was invalid because Roe was not provided adequate notice and that Roe resigned effective September 24. On May 5, 1999, the Personnel Board adopted the ALJs proposed decision awarding Roe backpay for the period September 1 through 24, 1992.

Roe filed a second petition for writ of mandate challenging the finding that he resigned effective September 24, 1992, and the resulting award of limited backpay. The superior court granted the petition, rejecting the Personnel Boards conclusion that Roes resignation was effective, reasoning that the Department itself maintained that Roe had been terminated on August 31.

On appeal, we affirmed the superior court decision that the Personnel Board erred in determining that Roe resigned effective September 24, 1992, and in limiting Roes backpay award accordingly. (Roe III, supra, 120 Cal.App.4th at p. 1032.) We held that Roe was terminated without due process and he was entitled to backpay through May 5, 1999, the date of the Personnel Boards decision after hearings on the merits of the charges against Roe. (Id. at pp. 1032-1033.) We directed the superior court to enter a new judgment granting the petition for writ of mandate and remanding this matter to the Personnel Board for the following limited purposes. The superior court shall direct the board to conduct proceedings to determine the amount of backpay due Roe for the Skelly violation for the period September 1, 1992, through May 5, 1999, and to award it forthwith. Further, as the Board has already heard the evidence on the merits, the superior court shall direct the Board to exercise its discretion and make a finding whether Roes dismissal was for good cause. (Roe III, at p. 1043.)

Roe IV

In May 2005, Roe moved in the superior court for attorney fees for the second writ of mandate proceeding culminating in Roe III. The court denied the motion and we reversed, concluding that the second writ of mandate proceeding was within the scope of 42 United States Code section 1983 and that Roe was entitled to an attorney fee award. (Roe v. State Personnel Bd. (Jan. 30, 2007, A112383) [nonpub. opn.] (Roe IV).)

Post Roe III Remand Events Leading to the Present Proceeding

On remand from Roe III, the superior court issued a peremptory writ of mandate to the Personnel Board on October 6, 2004. The writ commanded the Board to vacate its previous backpay award; to determine and award the amount of backpay due for the period September 1, 1992 through May 5, 1999; to exercise its discretion and make a finding whether Roes dismissal was for good cause; and to file a return by March 1, 2005. On November 16, the Board remanded the matter to the ALJ who conducted the 1999 hearing with instructions to prepare a new Proposed Decision that contains findings, based on the evidence already presented on the merits, as to whether or not the dismissal of [Roe] was for good cause. The Board remanded the matter to another ALJ to schedule a hearing to determine backpay, interest, and benefits through May 1999.

On March 18, 2005, Roe filed the present petition for writ of mandate. Roe alleged that the Personnel Board had not complied with time limits in Government Code section 18671.1[2] requiring the Board to issue a decision within 90 days of submission. He further alleged that, due to the Boards noncompliance with section 18671.1, he was authorized to proceed against the Department through a petition for writ of mandate pursuant to Code of Civil Procedure section 1085, citing California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133 (CCPOA). Roe alleged that there was no good cause for dismissal, that he was suffering from an ongoing wrongful deprivation of employment because the Personnel Boards conclusion that he had resigned had been overturned in Roe III, and that the extended delay in obtaining a decision on the merits constituted a deprivation of due process.

In April 2005, the Board issued a decision sustaining Roes dismissal and adopting the ALJs findings and conclusions. The ALJ found that Roes conduct was dishonest, and constituted a misuse of state property, and other failure of good behavior and upheld the penalty of dismissal because Roes course of deceitful conduct was continuing in nature rather than an isolated incident.

Following briefing and a hearing, the trial court issued a written order denying Roes petition for writ of mandate, concluding that the time limits in section 18671.1 are inapplicable. The trial court reasoned, this statute requires the board to hold hearings and render decisions within a certain amount of time after the filing of a petition by an employee, rather than (as in this case) after a remand to the SPB from the trial court or Court of Appeal after the SPBs decision after hearing has already been rendered. The court concluded that the relevant hearing and decision already took place in late 1998 and early 1999 and there is no basis for Roes assertion that those time limits continue to apply each time some aspect of the SPBs decision is challenged.

Discussion

I.                    Government Code Section 18671.1

Roe contends that because the Personnel Board failed to comply with the time limits in section 18671.1, he is entitled to petition for de novo review of his termination pursuant to Code of Civil Procedure section 1085. Under the plain language of the statute, the time limits in section 18671.1 are inapplicable.

Statutory construction is a question of law we decide de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) Our primary objective in interpreting a statute is to determine and give effect to the underlying legislative intent. (Code Civ. Proc., 1859.) We begin by examining the statutory language, giving the words their usual, ordinary meanings and giving each word and phrase significance. (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.) If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs. (Estate of Griswold (2001) 25 Cal.4th 904, 911.)

Section 18671.1 provides in relevant part that Whenever a hearing or investigation is conducted by the board or its authorized representative in regard to an appeal by an employee, the hearing or investigation shall be commenced within a reasonable time after the filing of the petition and the board shall render its decision within a reasonable time after the conclusion of the hearing or investigation, except that the period from the filing of the petition to the decision of the board shall not exceed six months or 90 days from the time of the submission, whichever time period is less . . . Submission occurs on the last day of the hearing, if no other documents are to be filed, or on the last day designated for the filing of briefs or other evidence necessary to complete the record. The provisions relating to the six-month or the 90-day periods for a decision may be waived by the employee but if not so waived, a failure to render a timely decision is an exhaustion of all available administrative remedies.

Roe relies on CCPOA, supra, 10 Cal.4th 1133, in arguing that he is entitled to de novo review of his termination. CCPOA held that where the Personnel Board has failed to render a decision within the section 18671.1 time limits, the employee may seek de novo judicial review of the adverse action by petition for writ of mandate under Code of Civil Procedure section 1085. (Id. at p. 1156.) That conclusion is based on the language in the statute providing that the Boards failure to render a timely decision constitutes exhaustion of all available administrative remedies. (Id. at p. 1148.) Although CCPOA explains the consequences of violating the section 18671.1 time limit, the decision does not aid in the determination of whether the time limit was violated in the present case.

Our decision turns on the express definition of submission in section 18671.1. Roe contends that the Board failed to issue its decision within 90 days of the submission on remand. Without reference to the statutory language, Roe maintains that submission occurred on November 16, 2004, when the Board remanded the matter to the ALJ who conducted the 1999 hearing with instructions to prepare a proposed decision. However, Roes complaint that before issuing its decision on remand the Board did not conduct a further hearing or provide the parties any opportunity to present additional evidence or argument is fatal to his argument. A further hearing or the presentation of additional evidence or argument are the precise predicates necessary to create a new submission under the plain language of the statute. Absent any re-opening of the record, there was no new submission triggering the time limits in section 18671.1.

In arguing that the remand after Roe III constituted a submission under section 18671.1, Roe cites various California cases which use the term submission in completely unrelated contexts. (See People v. Moore (1960) 53 Cal.2d 451, 454 [criminal case]; Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156, fn. 2 [breach of noncompetition agreement]; Champion v. County of San Diego (1996) 47 Cal.App.4th 972, 977, fn. 7 [tort action]; Verdier v. Verdier (1958) 162 Cal.App.2d 325, 326 [divorce proceeding].) However, submission is defined in section 18671.1, and we are not at liberty to impose a different definition. (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097 [a statute . . . is to be interpreted by the language in which it is written, and courts are no more at liberty to add provisions to what is therein declared in definite language than they are to disregard any of its express provisions ]; see also Reis v. Biggs Unified School Dist. (2005) 126 Cal.App.4th 809, 818-819.) Under Roes loose construction of the statute, one could argue at least three different submission dates: the date of the decision in Roe III, the date the trial court issued the writ on remand directing the Board to issue a decision, and the date the Board took action in response to the writ. The Legislature avoided such uncertainty by precisely defining the date of submission in the statute.

The trial court correctly concluded that the time limits in section 18671.1 are inapplicable and, accordingly, Roe was not entitled to seek de novo judicial review of the termination by petition for writ of mandate under Code of Civil Procedure section 1085.[3]

II.                 Due Process

A.                 Delay

Roe contends that he is entitled to reinstatement due to the delay in the issuance of a decision on the merits. We rejected that due process argument in the unpublished portion of Roe III. We stated: Roe asserts in passing that the delay in resolution of the matter means that Roe has been denied the reasonably prompt hearing and decision that are required for post-termination due process. [Citations.] None of the cases cited by Roe support the proposition that because of the delay it would be unconstitutional for the Personnel Board to uphold the dismissal on remand. Barry v. Barchi (1979) 443 U.S. 55, 66, and Gilbert v. Homar (1997) 520 U.S. 924, 932-935 discuss the process due to employees following suspensions, and [CCPOA, supra, 10 Cal.4th at pp. 1144-1145] discusses the statutory requirement that the Personnel Board issue its decisions within a reasonable time. Absent cogent argument and relevant case authority, we find no basis to conclude that the constitutional guarantee of due process mandates Roes reinstatement in these circumstances. (Cf. CCPOA, at p. 1150 [we cannot assume that the Legislature intended to penalize state agencies and the people of this state by mandating reinstatement of an incompetent or untrustworthy employee solely because the Board failed to render a timely decision in the employees appeal].) (Roe III (July 22, 2004, A098067) at p. 19.)

Roe fails to justify a different decision at this stage in the litigation. Roe does not contend that the Boards procedures are inadequate on their face, as was at issue in Barry v. Barchi, supra, 443 U.S. 55; Gilbert v. Homar, supra, 520 U.S. 924; and other cases he cites, Federal Deposit Ins. Corp. v. Mallen (1988) 486 U.S. 230, 245 and Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 564. The delay in the holding of a hearing and the subsequent delay in obtaining a decision on the merits are due to the extraordinarily contentious nature of this litigation and the filing of multiple appeals in this court. Roe presents no authority supporting the proposition that an employee is constitutionally entitled to reinstatement whenever the litigation required to resolve the issues raised by the parties is of an extended duration. We decline to adopt such a rule.

B.                 Lack of Opportunity to Present Additional Evidence or Argument

Roe also contends that he was deprived of due process because the Personnel Board on remand decided the merits of his termination without conducting a further hearing or requesting further briefing.

Roe cites to no authority supporting the proposition that he had the right to submit further evidence or argument on remand. Roes reliance on William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd. (1987) 191 Cal.App.3d 1195, a labor law case, is misplaced. The issue in the case was the appropriate remedy for a farm employers refusal to bargain in good faith with the employees union. The court held that the employer bore the burden of proving that its conduct was not responsible for the parties failure to reach an agreement. (Id., at p. 1208.) The court remanded for further proceedings before the Board because the employer had been assigned a burden of persuasion not previously recognized. (Id. at p. 1214.) The court reasoned that the employer might have produced additional evidence had it known it had the burden of persuasion. (Ibid.) The court directed the Board to afford the employer an opportunity to present legal arguments and an offer of proof detailing any additional evidence it might want to present. (Ibid.)

In contrast, in Roe III we concluded that the Board erred as a matter of law in concluding that Roes post-termination resignation was effective. (Roe III, supra, 120 Cal.App.4th at p. 1039.) The decision did not affect the legal or factual issues relevant to the Personnel Boards determination of the merits of the termination. That is, nothing in Roe III justified presenting more or different evidence regarding the merits of the termination.

Also inapposite is the assertion in a treatise that The lack of notice or opportunity to present argument to an agency during a court-ordered reconsideration of a penalty is a denial of due process. (2 Cal. Administrative Mandamus (Cont.Ed.Bar, 3d ed. 2007) Procedures after Trial,  15.23, p. 570.) Roe III did not remand to the Board for reconsideration of the penalty. We remanded so that the Board could exercise its discretion in the first instance to find whether Roes dismissal was for good cause. (Roe III, supra, 120 Cal.App.4th at p. 1043.)[4]

Roe has failed to show that the Board was required to permit him an opportunity to present further evidence or argument on remand.

III.               Remedy for Purported Ongoing Wrongful Deprivation

Roe contends that he is entitled to backpay for the continuing wrongful deprivation of his employment after May 5, 1999, when the Board adopted the ALJs proposed decision finding that Roes September 24, 1999, resignation cut-off his entitlement to backpay. In Roe III, we concluded that the Board erred as a matter of law in concluding that Roes post-termination resignation was effective. (Roe III, supra, 120 Cal.App.4th at p. 1039.) We held that Roe is entitled to backpay from September 1, 1992 through May 5, 1999, after which point he was no longer subject to a dismissal without due process but instead was subject to a Board decision rendered after a full and fair hearing on the merits. (Id., at p. 1042.)

Roe now contends that he is entitled to backpay after May 1999 because the invalid dismissal was replaced by the invalid purported resignation. Roes request for ongoing backpay is based on the proposition that, as he argued below, after May 5, 1999, no lawful grounds for the continuing deprivation of employment existed. We rejected this argument in the unpublished portion of Roe III, where we pointed out that the remedy for the procedurally improper termination is damages for the period of deprivation without due process, not reinstatement. (Roe III (opn. mod. Aug. 20, 2004, A098067) at pp. 20-21, fn. 13, citing International Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 209; Williams v. City of Los Angeles (1990) 220 Cal.App.3d. 1212, 1217; and Kirkpatrick v. Civil Service Com. (1978) 77 Cal.App.3d 940, 945-946.) That is, Roe was not entitled to reinstatement following Roe III.

Roe presents no authority in support of his claim that he is entitled to further backpay regardless of whether the dismissal is ultimately upheld. The cases Roe cites award backpay where a government employer placed an employee on leave or refused to reinstate an employee without adequate justification. (Veguez v. Governing Bd. of the Long Beach Unified School Dist. (2005) 127 Cal.App.4th 406, 423-424; Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 116-118.)

As we concluded in Roe III, the appropriate course was to remand to the Board for a determination of the merits of the Departments charges of misconduct. (Roe III (July 22, 2004, A098067) [nonpub. opn.] at pp. 16-21.) Roe has already been awarded backpay for the Skelly violation, and there has been no administrative or judicial finding that the Department was unjustified in terminating him. Because there is no determination in Roes favor on that issue, there is no ongoing wrongful deprivation.

Disposition

The trial court judgment is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

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[1] The term refers to the individual authorized to hear the response of a permanent employee to proposed adverse employment action. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.)

[2] All further statutory references are to the Government Code unless otherwise indicated.

[3] Because we can decide the issue on the narrow grounds that there was no submission as defined by the statute, we need not consider the Departments broad contention, accepted by the trial court, that the time limits in section 18671.1 apply only to an employees initial appeal and never apply on subsequent court remand to the Board.

[4]Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 827-830, states that evidence of postdismissal rehabilitation of an employee is admissible and relevant in determining whether a penalty was appropriate. However, Roe had an opportunity to present any such evidence during the hearing in 1999; he does not offer specific evidence of rehabilitation, much less evidence that could not have been presented in 1999.