Elliott v. Cal. State Personnel Bd

Filed 6/23/06 Elliott v. Cal. State Personnel Bd. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Petition for writ of mandate for review of a decision of the California State Personnel Board. Petition granted.

This writ proceeding arises out of Jerald B. Elliott's termination from his job as an instructor for San Diego State University (which is run by the Board of Trustees of California State University (the University)). The primary issue in this proceeding is whether the California State Personnel Board (the Board) has the authority to "dismiss" certain allegations from the notice of discipline that notified him of the termination and nonetheless uphold the termination. On a prior appeal by Elliott to this court, we held that the administrative law judge (the ALJ) who heard his administrative appeal lacked the authority to proceed to uphold the termination after deleting the same allegation. We reject the Board's suggestion that although the ALJ could not change the notice of discipline before upholding the termination, it could nonetheless do so and thus grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

The parties are familiar with the facts leading up to Elliott's termination, which were fully set forth in our prior unpublished opinion (Elliott v. California State Personnel Board (July 12, 2004, D043030)), and are not relevant here, so we do not restate them.

In September 2000, the University issued Elliott a notice of dismissal pursuant to Education Code section 89538, subdivision (b), indicating that unless it otherwise notified him after review by a reviewing officer, it would terminate him for incompetence and unprofessional conduct. The notice stated in relevant part:

"The events upon which the foregoing cause is based are as follows:

"Upon investigation of [the student]'s complaint against you, the University found you violated [its] Sexual Harassment Prevention Policy by inappropriate conduct that caused the student to feel uncomfortable and afraid. Specifically, in or about December, 1999, the student requested that you stop contacting her, yet you continued to call her at home, send her gifts and notes, and place notes on her vehicle. Additionally, on one occasion you grabbed the student, pulled her towards you, and kissed her on the cheek. Your conduct toward[] the student was unwelcome and sexual in nature, causing the student to seek and receive protection from the San Diego Superior Court. Your conduct also caused the student to avoid going alone to the computer lab when you were there, and caused the student to feel unsafe in her home.

The notice concluded "[y]our behavior was contrary to previous warnings and written direction to you regarding similar conduct. Based on the findings of fact pursuant to [the student's] complaint, we find that you have again acted in an unprofessional manner with students in the performance of your duties . . . ."

After conducting review proceedings, the University terminated Elliott from his position effective December 20, 2000. Elliott appealed the University's action to the Board; in the administrative proceedings, the ALJ accepted the University's contention that the notice of dismissal was not limited to conduct that violated its sexual harassment prevention policy and, over Elliott's objection, struck the language regarding the violation of the sexual harassment prevention policy from the disciplinary notice. The ALJ thereafter issued a recommendation upholding the University's decision on the ground that Elliott's conduct was unprofessional conduct within the meaning of Education Code section 89535, subdivision (b). The Board adopted the ALJ's findings of fact and proposed decision.

Elliott filed a petition for a writ of mandamus in the superior court, seeking in part to compel the Board to reinstate him and to pay him backpay and benefits that would have accrued but for his termination. In connection with the hearing on his writ petition, Elliott requested consideration of various evidence that was not presented in the administrative proceedings, but that he discovered during the course of the proceedings in the student's civil action against him and the University. The superior court declined to consider the extra-record evidence on the ground that the proffered evidence was not germane to the issues before it. It found that the Board's decision was supported by substantial evidence and denied Elliott's petition for a writ of mandate.

On appeal, we reversed the denial of Elliott's petition based on established law holding that once the University imposes discipline in accordance with its notice under Education Code section 89538, it cannot amend or alter the notice or take action on a charge not made. (Elliott v. California State Personnel Board, supra, D043030 at pp. 7-8, citing Brooks v. State Personnel Bd. (1990) 222 Cal.App.3d 1068, 1074-1076 and Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151, 1164-1165 (Brown).) We quoted from the reasoning of Brown, as follows:

"The [U]niversity initiates the disciplinary proceedings by giving a notice (the charging document) to the employee alleging the causes and events upon which discipline is based and takes the disciplinary 'action' (Ed. Code, §§ 89538, 89539). The action constitutes the [U]niversity's judgment that the conduct, i.e., the alleged 'events or transactions,' meets [its] criteria of the alleged cause of discipline, e.g., unprofessional conduct, and that the [employee] has engaged in it. Neither section 89539 nor any other provision of law permits the amendment of the charging document after [the University] has taken its disciplinary action.

"Where, as here, the employee elects an appeal to the [] Board, Education Code section 89539 governs both the grounds of appeal and (necessarily) the grounds upon which the [B]oard may act, here 'that the employee did not do the acts or omissions alleged as the events or transactions upon which the causes are based . . . .' (Italics added.) This provision limits the [B]oard's authority to act (Ed. Code, § 89539) to the allegations of the charging document. Consequently, the [B]oard may not alter the charging document or take action upon a charge not made." (Brown, supra, 166 Cal.App.3d at pp. 1164-1165, see also p. 1163, fn. 3.)

We remanded the matter to the superior court, which in turn ultimately remanded the matter to the Board in accordance with our direction to conduct "further proceedings on the unredacted notice of discipline." (Elliott v. California State Personnel Board, supra, D043030 at p. 11.)

On remand to the Board, Elliott requested a further hearing so that he could present additional evidence showing that he did not violate the University's sexual harassment policy; the University opposed the request, arguing that the existing record was complete and permitted the Board to determine whether to uphold the dismissal. After requesting briefing on the issue of whether our prior opinion required it to reopen the administrative record, the Board declined to hold a further hearing; based on its consideration of the existing record, it found that the University had failed to present sufficient evidence to establish that Elliott's conduct violated its sexual harassment policy or constituted incompetence and purported to dismiss those allegations from the notice of discharge. (According to the record on Elliott's prior appeal, the incompetence allegation was previously dismissed by the ALJ on a motion by Elliott.) It also found, however, that Elliott's conduct constituted unprofessional conduct as defined in Education Code section 89535, subdivision (b) "irrespective of whether [that conduct] also violated [the University's] sexual harassment policy" and sustained his dismissal on that basis.

After the hearing at which the Board made the foregoing findings but before the Board issued its written decision upholding the termination, Elliott filed a petition for writ of mandate in this court seeking to compel the Board to grant him a further evidentiary hearing before making its decision. Thereafter, the Board issued its written decision, which both the Board and the University attached to their returns to Elliott's petition.

In light of the developments since the filing of the petition, we informed the parties that we intended to address not only the issues raised in Elliott's petition, but also the issue of whether the Board's decision to dismiss certain allegations from the notice of discipline affected the validity of its decision upholding the termination and, if so, the nature of the relief that would be appropriate. Despite our invitation to file additional briefs on these issues, we did not receive any responses from the parties.

DISCUSSION

An administrative agency has only such power as is conferred on it by the Constitution or statute; an act in excess of the power so conferred is void and mandate will lie to nullify or rescind such acts. (Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 103-104; B.W. v. Board of Medical Quality Assurance (1985) 169 Cal.App.3d 219, 233-234.) The question here is whether the Board acted in excess of its authority in amending the charging document against him by "dismissing" the allegation that Elliott's conduct violated the University's sexual harassment prevention policy and then upholding the termination. The same analysis that we used in determining that the ALJ lacked the authority to uphold the termination after striking the allegations that Elliott's conduct violated the University's sexual harassment prevention policy applies in answering this question and leads to the inescapable conclusion that the Board similarly lacks the authority to uphold the termination after dismissing those same allegations. (See Brown, supra, 166 Cal.App.3d at pp. 1163-1165 [where a notice of discharge alleged a "series and pattern of sexual harassment" by an associate professor, the Board could not amend the notice to refer to a single sexual advance as a basis for upholding the dismissal].)

The University now argues that the sexual harassment prevention policy violation allegation was not the cause for Elliott's dismissal, but was instead merely a legal conclusion that the Board was permitted to disregard in upholding the dismissal. However, this argument is too little, too late. On Elliott's prior appeal, we concluded that the statutory scheme did not authorize the University to amend a notice of disciplinary action after acting pursuant to the notice nor did it authorize the Board to allow such an amendment without overturning the dismissal. On this basis, we held that the Board failed to proceed in a manner required by law in allowing the disciplinary decision to stand based on the redacted notice. This holding is now law of the case and is determinative of the issue before us.

The Board did not have the authority, after remand of this case, to effectively amend the notice of dismissal to delete the allegations that Elliott's conduct violated the University's sexual harassment prevention policy and then act pursuant to the "amended" notice. For the reasons stated in this opinion and our prior opinion, the Board must dismiss the charge that is currently pending against Elliott. Accordingly, we grant writ relief requiring it to do so.

Elliott has suggested that he is entitled to reinstatement and an award of backpay and benefits that would have accrued but for his termination. However, he has not cited clear authority supporting this relief and, as noted above, neither the University nor the Board has filed any briefing on this issue at all, despite our request. Under these circumstances, we cannot determine whether Elliott is entitled to that type of relief and thus do not reach that issue in this proceeding. Similarly, we make no determination as to whether the University may otherwise pursue Elliott's termination for unprofessional conduct based on the acts alleged in the notice of dismissal.

DISPOSITION

Let a writ of mandate issue directing the Board to vacate its March 2006 decision and to enter a new decision dismissing the charge against Elliott. Elliott is awarded his costs in the writ proceeding.

McINTYRE, J.

WE CONCUR:

McCONNELL, P.J.

AARON, J.

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