The opinion
Filed 7/10/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION, F069100
Plaintiff and Respondent, (Super. Ct. No. 12CECG01622)
v.
CALIFORNIA STATE PERSONNEL BOARD,
Defendant and Respondent; OPINION
JOSEPH McCAULEY,
Real Party in Interest and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Debra J.
Kazanjian, Judge.
Law Office of Michael A. Morguess and Michael A. Morguess for Real Party in
Interest and Appellant.
Stephen A. Jennings, Clayton A. Mack and Christopher D. Howard, Staff Counsel,
Department of Corrections and Rehabilitation Office of Legal Affairs, for Plaintiff and
Respondent.
No appearance for Respondent California State Personnel Board.
-ooOoo-
Appellant Joseph McCauley (McCauley) was promoted to the position of
Correctional Sergeant at Avenal State Prison by his employer, the California Department
of Corrections and Rehabilitation (CDCR). The new position began on December 2,
2008, and was subject to a 12-month probationary period before it became permanent.
On December 1, 2009, CDCR served a notice of rejection on McCauley to remove him
from the position of Correctional Sergeant effective on December 8, 2009. On
December 2, 2009, another document was served on McCauley, this one purporting to
extend his probationary period until December 8, 2009. McCauley maintained that
CDCR’s notice of rejection and other papers were invalid due to failure to comply with
certain timing and notice requirements relating directly to the duration of the
probationary period. In an administrative appeal to the California State Personnel Board
(the Board), the Board agreed with McCauley and revoked CDCR’s notice of rejection.
CDCR challenged the Board’s ruling by filing a petition for writ of mandate in the trial
court. The trial court granted the petition and reversed the Board. McCauley now appeals
from the judgment granting the petition for writ of mandate.
We hold that McCauley is correct that the notice of rejection was fatally deficient
under applicable law because the effective date of the rejection (i.e., Dec. 8, 2009) was
after the completion of his probationary period. In so holding, we also conclude that the
proper way to calculate a civil service probationary period is to include the first day,
notwithstanding the general rule for calculating time limits in Government Code
section 68001 and Code of Civil Procedure section 12. Here, then, the first day of
McCauley’s probationary period was December 2, 2008, and the last day was December
1, 2009. Thus, CDCR’s effort on December 2, 2009, to extend the probationary period
was too late, no extension was accomplished thereby, and the effective date of the
rejection was not within the probationary period as required. For all of these reasons, we
1 Unless otherwise indicated, all further statutory references are to the Government Code.
2.
reverse the trial court’s judgment and direct the trial court to enter a new order denying
the petition for writ of mandate.
FACTS AND PROCEDURAL HISTORY
McCauley was employed by CDCR as a correctional officer starting in 2003. In
mid-2008, he was given a temporary term promotion to Correctional Sergeant. In late
2008, he was appointed to the permanent position of Correctional Sergeant at Avenal
State Prison beginning on December 2, 2008, and subject to a probationary period of
12 months. The position would become permanent only after the successful completion
of the probationary period.
On December 1, 2009, CDCR served a “NOTICE OF REJECTION DURING
PROBATIONARY PERIOD” (notice of rejection) and attached documents on McCauley by
mail. The notice of rejection stated, among other things, that “pursuant to … Section
19173,” McCauley was being “rejected” from his “position of Correctional Sergeant with
[CDCR] at Avenal State Prison.” It also stated that “[t]his rejection … shall be effective
at the close of business on December 8, 2009.” (Italics added.) The notice of rejection
articulated numerous grounds for the rejection decision by CDCR, including McCauley’s
failure to meet certain standards expected of persons serving as a Correctional Sergeant
and supervisor.2 Although the rejection was said to be effective on December 8, 2009, no
provision was made in the notice of rejection to extend McCauley’s probationary period.
A proof of service listed the documents that were attached to the notice of rejection, but
that list did not include a written notification that CDCR was extending McCauley’s
probationary period.
On December 2, 2009, McCauley was personally served with a second copy of the
notice of rejection and attached documents. The papers personally served on
2 One week after CDCR’s notice of rejection, CDCR informed McCauley that as a result of
being rejected from the position of Correctional Sergeant, he would be returning to his former
position as a regular correctional officer.
3.
December 2, 2009, also included a letter (dated “December 1, 2009”) signed by
Employee Relations Officer Kimberly Thornton, informing McCauley that “‘[p]ursuant
to Government Code Section 19173 and California Code of Regulations … Section 321
[his] probationary period [was] being extended to December 8, 2009 .…’” The fact that
this letter was served on December 2, 2009, is highly significant in this case because
CDCR’s notice extending the probationary period had to be given “[p]rior to the
completion of the probationary period .…” (Cal. Code Regs., tit. 2, § 321, subd. (e).)
According to McCauley, the last day of the 12-month probationary period was
December 1, 2009, and, therefore, the letter attempting to extend the probationary period
was served one day too late and had no effect. That is, by December 2, 2009, the
probationary period was already over and, from McCauley’s perspective, he “woke up
that morning (the 366th day) as a permanent correctional sergeant.”
McCauley filed an administrative appeal to the Board, claiming that the notice of
rejection was not timely or effective under the circumstances. An Administrative Law
Judge (ALJ) was assigned to hear the matter. McCauley submitted a motion to the ALJ
to revoke the notice of rejection. In that motion, McCauley argued the notice of rejection
was invalid because the written notice of rejection must set forth an “effective date” for
the rejection that “shall not be later than the last day of the probationary period.” (See
§ 19173, subd. (b).) The notice of rejection also had to comply with California Code of
Regulations, title 2, section 52.6, subdivision (a), which provides that such notice “shall”
be given “[a]t least five working days before the effective date of [the] proposed
action .…” McCauley further argued that no extension of the 12-month probationary
period was accomplished by CDCR because notice thereof was not given “[p]rior to the
completion of the probationary period .…” (Cal. Code Regs., tit. 2, § 321, subd. (e).)
According to McCauley’s motion, since the probationary period was not extended, the
effective date of the rejection (i.e., Dec. 8, 2009) was well after the final day of the
probationary period on December 1, 2009.
4.
On January 26, 2012, the ALJ issued a written decision. The ALJ agreed with
McCauley that the 12-month probationary period ended on December 1, 2009. The ALJ
also found that CDCR’s letter purporting to extend the probationary period was not
served until December 2, 2009, one day after the probationary period had already ended.
The ALJ concluded: “Due to [CDCR’s] failure to meet the requirements of California
Code of Regulations, title 2, section 321, [McCauley’s] probationary period ended
December 1, 2009, and therefore the [notice of rejection] is revoked as being untimely.”
On February 7, 2012, the Board adopted the ALJ’s decision as its own, including
the findings of fact, determination of issues, and the decision to revoke CDCR’s notice of
rejection.
On May 15, 2012, CDCR filed its petition for writ of mandate in the trial court. In
support of its petition, CDCR argued for the first time that the probationary period
actually ended on December 2, 2009, not on December 1, 2009, based on generally
applicable statutes providing a method of computing time (i.e., Gov. Code, § 6800 &
Code Civ. Proc., § 12), under which method the first day of the period would be
excluded. The trial court agreed with CDCR’s position and, on November 15, 2013, the
court granted the writ of mandate and directed the Board to set aside its decision revoking
the notice of rejection. Notice of entry of the trial court’s judgment was served and filed
on January 30, 2014.
McCauley’s timely notice of appeal followed.
DISCUSSION
I. Standard of Review
The scope of our review from a judgment on a petition for writ of mandate is the
same as that of the trial court. (Cate v. State Personnel Bd. (2012) 204 Cal.App.4th 270,
282.) To the extent factual questions are involved, the Board’s findings of fact are
reviewed under the substantial evidence test. (Id. at pp. 281–282; Gonzalez v. State
Personnel Bd. (1995) 33 Cal.App.4th 422, 428; Code Civ. Proc., § 1094.5, subd. (c).) If
5.
a question of law is presented, we undertake a de novo review of the Board’s ruling
(Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404), including where (as
here) the question involves the interpretation of statutory or regulatory provisions
(Riverside Sheriffs’ Assn. v. County of Riverside (2011) 193 Cal.App.4th 20, 28; Riveros
v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1349–1350).
We also recognize that courts show deference to an administrative body’s
reasonable construction of relevant statutory provisions within its field of expertise. As
summarized by our Supreme Court: “Ultimately, the interpretation of a statute is a legal
question for the courts to decide, and an administrative agency’s interpretation is not
binding. [Citation.] … But we have also said that when a statute is susceptible of more
than one interpretation, we will consider an administrative interpretation of the statute
that is reasonably contemporaneous with its adoption. [Citation.]” (Sara M. v. Superior
Court (2005) 36 Cal.4th 998, 101.) Although not necessarily controlling, “‘“[c]onsistent
administrative construction over many years, particularly when it originated with those
charged with putting the statutory machinery into effect, is entitled to great weight and
will not be overturned unless clearly erroneous.”’ [Citations.]” (Id. at p. 1012; accord,
People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 309; Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1388–1389.)
Here, however, it does not appear that the Board has addressed and determined the
precise issue before us in its precedents. That is, the Board has not directly considered the
legal question of whether, in light of the general rule of Government Code section 6800
and Code of Civil Procedure section 12, the first day is to be excluded in the calculation
of a civil service probationary period. In the one Board precedent referenced by
McCauley, the Board apparently included the first day of the probationary period, but did
not provide any discussion or explanation for doing so. (See In re Dorri (2002) SPB
Dec. No. 02-05 (Dorri).) In any event, the specific statutory issue before us was not
raised in that case. Under the circumstances, we shall consider the Board’s prior action
6.
under a respectful but nondeferential standard of review. (See Kuhn v. Department of
General Services (1994) 22 Cal.App.4th 1627, 1639.)
II. Relevant Statutes and Regulations
We begin with a brief summary of the pertinent statutory and administrative
provisions relating to probationary periods in the employment of state civil service
employees.
Pursuant to section 19170, subdivision (a), the Board is required to establish for
each class of civil service employee “the length of the probationary period.” The section
further states, “[t]he probationary period that shall be served upon appointment shall be
six months unless the board establishes a longer period of not more than one year.”
(Ibid.) During the probationary period, the appointing power is required to “evaluate the
work and efficiency” of a probationer. (§ 19172.) Section 19173, subdivision (a),
provides that “[a]ny probationer may be rejected by the appointing power during the
probationary period for reasons relating to the probationer’s qualifications, the good of
the service, or failure to demonstrate merit, efficiency, fitness, and moral
responsibility .…” (Italics added.)
Section 19173, subdivision (b), specifies the process that must be followed by the
appointing power to effectuate the employee’s rejection during the probationary period.
It provides, in relevant part, as follows:
“A rejection during [the] probationary period is effected by the
service upon the probationer of a written notice of rejection which shall
include: (A) an effective date for the rejection that shall not be later than
the last day of the probationary period; and (B) a statement of the reasons
for the rejection. Service of the notice shall be made prior to the effective
date of the rejection, as defined by board rule for service of notices of
adverse actions. Notice of rejection shall be served prior to the conclusion
of the prescribed probationary period. The probationary period may be
extended when necessary to provide the full notice period required by
board rule .…” (Italics added.)
7.
California Code of Regulations, title 2, section 52.6, subdivision (a) (formerly
§ 52.3) sets forth the minimum notice period required by the Board. It states that “[a]t
least five working days before the effective date of a proposed … rejection during the
probationary period, … the appointing power … or an authorized representative of the
appointing power shall give the employee written notice of the proposed action.…”
The Board’s rules also implement the language of Government Code
section 19173, subdivision (b), relating to extension of the probationary period.
California Code of Regulations, title 2, section 321, subdivision (c), states: “The
probationary period may be extended for a maximum of five working days in order to
comply with notice requirements as set forth in Section 52.6 for rejection during
probation.” California Code of Regulations, title 2, section 321, subdivision (e), then
specifies the method for accomplishing such an extension: “Prior to the completion of
the probationary period, the appointing power shall notify the employee in writing that
the probationary period is being extended under this rule and of the length of the
extension.…” (Italics added.)
As concisely summarized in Santillano v. State Personnel Bd. (1981) 117
Cal.App.3d 620 (Santillano): “‘A civil service probationer is entitled to have the
statutory procedure for dismissal strictly followed.’ [Citations.] Among other things the
requisite written notice of rejection must be made effective not ‘later than the last day of
the probationary period’ and must be served on or before its effective date. [Citations.]
If these time limits are not met, no rejection is effected. [Citation.]” (Id. at p. 623.)
III. Calculating the Probationary Period: First Day is Included
There is no dispute that McCauley commenced his 12-month probationary period
on December 2, 2008. The key question before us is whether, in calculating the 12-
month period, the first day is to be counted. In the present appeal, McCauley’s position
is that the proper method of calculating an employment probationary period is to include
the first day of the probationary period. CDCR’s position—which was adopted by the
8.
trial court—is that the first day of the probationary period must be excluded from the
calculation under the general rule set forth in Government Code section 6800 and Code
of Civil Procedure section 12, which method would make December 2, 2009, the last day
of McCauley’s probationary period. As explained below, we conclude that McCauley’s
position is correct: The first day is to be included in the calculation of the probationary
period. Therefore, the last day of McCauley’s probation was, as the Board specifically
found, December 1, 2009.3
We begin our discussion of this issue by summarizing CDCR’s argument for the
exclusion of the first day in calculating the 12-month period. Government Code
section 6800 and Code of Civil Procedure section 12 state as follows: “The time in
which any act provided by law is to be done is computed by excluding the first day, and
including the last, unless the last day is a holiday, and then it is also excluded.” (See Civ.
Code, § 10 [same].) This is the ordinary or general rule of computation of time. (Ley v.
Dominguez (1931) 212 Cal. 587, 594.) “‘Before a given case will be deemed to come
under an exception to the general rule the intention must be clearly expressed that a
different method of computation was provided for.’ [Citation.]” (Latinos Unidos de
Napa v. City of Napa (2011) 196 Cal.App.4th 1154, 1161.) “Absent a compelling reason
for a departure, this rule governs the calculation of all statutorily prescribed time periods.
Our Supreme Court has encouraged the use of uniform rules so that the method of
computing time not be a source of doubt or confusion. ‘“The gravest considerations of
public order and security require that the method of computing time be definite and
certain.”’” (In re Anthony B. (2002) 104 Cal.App.4th 677, 682.)
3 The Board found, without expressly articulating its methodology, that the last day of
McCauley’s 12-month probationary period was December 1, 2009. It would seem that the Board
implicitly assumed it was appropriate to count the first day. However, the Board did not address
the issue of whether the general rule for calculating time (i.e., Code Civ. Proc., § 12; Gov. Code,
§ 6800) applied, because that issue was not raised by CDCR until it filed its petition for writ of
mandate in the trial court.
9.
According to CDCR, nothing in the relevant statutory provisions (§§ 19170–
19173) or the regulations adopted by the Board (e.g., Cal. Code Regs., tit. 2, § 321)
clearly express an intention to depart from the general rule for computation of time and,
therefore, the general rule must be applied—that is, the first day of the probationary
period must be excluded. If one were to apply this method of calculation, the last day of
McCauley’s probationary period would be December 2, 2009, in which case all of the
essential notices were served by CDCR on McCauley during the probationary period as
required.
McCauley contends that CDCR’s position is unreasonable in light of the nature of
a civil service employment probationary period. We agree. As stated by our Supreme
Court in Skelly v. State Personnel Bd. (1973) 15 Cal.3d 194 (Skelly), with reference to the
language of section 19170, “[t]he ‘probationary period’ is the initial period of
employment and generally lasts for six months unless the Board establishes a longer
period not exceeding one year.” (Skelly, supra, at p. 197, fn. 3, italics added.) Since the
probationary period is identified with the initial period of employment in the appointed
position,4 it logically follows that the first day on which the subject employment
commences or takes effect is also the first day of the probationary period. (See § 19170,
subd. (a) [the “probationary period [is] … served upon appointment”].) This direct
correlation to the employment itself is a strong indicator that the Legislature intended to
include the first day thereof in the calculation of an employee’s service of his or her
probationary period. That is, just as the first day on the job is an actual day of
employment, it is also an actual day served of the probationary period and should be
counted as such. This basic understanding of an employment probationary period is also
in keeping with the primary purpose for having such a probationary phase, which is to
4 There are some occasions in which the employee is absent from the job so often the
initial period will be extended. (See Cal. Code Regs., tit. 2, § 321, subds. (a), (b).) We are not
dealing with that situation here.
10.
give the appointing power “the opportunity to observe the conduct and capacity of the
probationer” before he or she acquires permanent civil service status. (Wiles v. State
Personnel Board (1942) 19 Cal.2d 344, 347 (Wiles); see § 19172.) In practical terms,
that “opportunity to observe” an employee’s work conduct begins on the first day of his
or her service in the appointed position. Since that is so, one would reasonably expect the
first day to be counted toward the probationary period.
Further, as explained by McCauley in his opening brief, excluding the first day
would lead to absurdity: “CDCR’s application … doesn’t make factual sense: it suggests
that on December 2, 2008, the first day McCauley served probation, he didn’t work or he
hadn’t even started his probation, or doesn’t get credit for it, as if he was in some sort of
pre-probationary period for one day.” Along the same lines, we would add the following
observation of our own: Hypothetically, if McCauley had been rejected by CDCR on
December 2, 2008, the first day of his new position, that action would obviously be a
rejection during probation. That being the case, consistency and common sense lead to
the conclusion that December 2, 2008, should be counted as day one of the probationary
period.
Moreover, contrary to CDCR’s argument, the relevant statutory language supports
the inclusion of the first day in calculating the probationary period. Section 19170,
subdivision (a), states that “[t]he probationary period that shall be served upon
appointment shall be six months unless the board establishes a longer period of not more
than one year.” (Italics added.) By providing that the probationary period shall be
“served” by the employee “upon appointment,” the statute reflects that the probationary
period (1) is the initial period of employment (see Skelly, supra, 15 Cal.3d at p. 197, fn. 3
[“[t]he ‘probationary period’ is the initial period of employment”]) and (2) begins upon
appointment or when the appointment takes effect.5 In short, the language of the statute
5 Also, since one year is defined as 365 days (see § 6803), excluding the first day arguably
conflicts with the legislative mandate that the probationary period established by the Board not
11.
conveys the idea that when employment effectively commences for the subject position,
the probationary period commences as well, and this correlation is such that day one of
employment is day one of the probationary period for purposes of calculation. We are
satisfied that section 19170 adequately reflects the Legislature’s intention to include the
first day of the probationary period when calculating the employee’s service, and this is
particularly the case in light of the fact that we are to ascribe to the statute a construction
that is both reasonable and avoids absurdity. (See DeYoung v. City of San Diego (1983)
147 Cal.App.3d 11, 18 [a statutory provision should be given a reasonable and common
sense interpretation consistent with its apparent purpose while avoiding absurdity].)
A number of prior cases generally support the conclusion we have adopted herein.
Although the prior cases do not address the specific issue raised by CDCR (regarding
Gov. Code, § 6800 & Code Civ. Proc., § 12), they do take a consistent approach of
counting the first day of the subject appointment when computing a civil service
probationary period. For example, in Anderson, supra, 103 Cal.App.3d 242, the
appellant argued based on the administrative record that her employment starting date
was March 15, 1976, and, therefore, her one-year probationary period concluded on
March 14, 1977, with the result that a notice of rejection served on her on March 15,
1977, was not timely. The Court of Appeal rejected the appellant’s argument because
substantial evidence supported the Board’s finding that the appellant’s employment
actually started on March 17, 1976, and, therefore, the notice of rejection served on
March 15, 1977, was timely. In so holding, the Court of Appeal noted that on March 15,
1977, it was still “the day before” the end of her probationary period. (Id. at pp. 245–
246.) In Currieri v. City of Roseville (1970) 4 Cal.App.3d 997, the Court of Appeal held
exceed “one year.” (§ 19170, subd. (a); see Anderson v. State Personnel Bd. (1980) 103
Cal.App.3d 242, 245-246 (Anderson) [first day included in calculation, noting § 6803]; Davis v.
Thayer (1980) 113 Cal.App.3d 892, 902 [in ordinary usage, one year is equivalent of twelve
months].) We find it unnecessary to reach this argument.
12.
that two police officers who began their employment on September 1, 1966, subject to a
one-year probationary period, became permanent employees on September 1, 1967.
From this holding, it is clear that the last day of their probationary period was August 31,
1967. (Id. at pp. 999, 1001.) In Santillano, supra, 117 Cal.App.3d 620, the employee’s
six-month probationary period began with her appointment on August 15, 1977, and the
last day of that period was February 14, 1978, subject to extension only as provided by
Board rule. (Id. at pp. 622, 624–625.) Finally, in Wiles, the employee was appointed to a
permanent civil service position on August 13, 1938, subject to a six-month probationary
period. The probationary period began on August 13, 1938, and ended on February 12,
1939. (Wiles, supra, 19 Cal.2d at pp. 346–347, 350–352.)
In addition to the above cases, McCauley has referred us to the Board’s own
precedent, Dorri, supra, SPB Dec. No. 02-05. In that case, the employee was appointed
to a civil service position on September 21, 1998, subject to a one-year probationary
period. On September 20, 1999, he was rejected during his probationary period. The
employee appealed the rejection. The appeal was subsequently resolved by a stipulated
settlement agreement whereby the notice of rejection was withdrawn and the employee
agreed to serve a new one-year probationary period. The new probationary period began
on September 1, 1999, and concluded on August 31, 2000. As with the appellate cases
highlighted above, the Board appears to have included the first day of the probationary
period, but did not explain its methodology or address the issue of whether the general
rule of Government Code section 6800 and Code of Civil Procedure section 12 was
potentially applicable. Nevertheless, although we do not accord deference to the Board
in this circumstance, we believe it is significant that the Board assumed in Dorri, as well
as in McCauley’s case below, that it was appropriate to include the first day of the
probationary period in the calculation of the time period. We say this because the Board
is the agency charged with establishing probationary periods and their duration under the
civil service law. (§ 19170.)
13.
Based on all of the foregoing discussion and analysis, we conclude that in
calculating an employee’s probationary period, the first day is to be included in that
calculation. This means that the general rule of Government Code section 6800 and
Code of Civil Procedure section 12 is not applicable to the situation of computing civil
service probationary periods. As a result, the last day of McCauley’s probationary period
in this case was December 1, 2009.
IV. The Notice of Rejection Was Properly Set Aside
Because the last day of McCauley’s probationary period was December 1, 2009,
CDCR’s written notice served on December 2, 2009 purporting to extend his
probationary period was too late and of no effect. (Cal. Code Regs., tit. 2, § 321,
subd. (e); Santillano, supra, 117 Cal.App.3d at p. 623 [a civil service probationer is
entitled to have the statutory procedure for dismissal strictly followed].) Furthermore,
because the probationary period was not extended and the last day thereof was
December 1, 2009, the effective date of the notice of rejection (i.e., Dec. 8, 2009) was
after the completion of the probationary period. As a result, the notice of rejection was
invalid6 and was properly revoked by the Board. (§ 19173; see Wiles, supra, 19 Cal.2d at
p. 352.) Therefore, the trial court erred in granting the writ petition.
6 To avoid confusion in the context of our discussion of the calculation issue, we have been
reluctant to label the notice of rejection as untimely. It was timely in one sense and untimely in
another. The notice of rejection served on December 1, 2009, was timely in the sense that it was
served on the last day of the probationary period. However, other provisions of law applicable to
the facts of this case rendered the same notice of rejection untimely for other reasons. Namely:
(1) the notice had to be given five working days before the effective date of the proposed action
(Cal. Code Regs., tit. 2, § 52.6, subd. (a)), (2) the effective date for the rejection could not be
later than the last day of the probationary period (Gov. Code, § 19173, subd. (b)), and
(3) CDCR’s attempt to extend the probationary period under California Code of Regulations,
title 2, section 321, subdivision (c), was too late and, thus, ineffective.
14.
DISPOSITION
The judgment of the trial court is reversed, with directions to enter a new order
denying the petition for writ of mandate. Costs on appeal are awarded to McCauley.
_________________________
KANE, J.
WE CONCUR:
_______________________________
LEVY, ACTING P.J.
_______________________________
POOCHIGIAN, J.
15.