The opinion
Filed 9/23/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
JUSTIN CHAPLIN et al.,
Plaintiffs and
Appellants,
v. A155107
STATE PERSONNEL
BOARD, (San Francisco County
Super. Ct. No.
Defendant and
CPF16515145)
Respondent;
DEPARTMENT OF
FORESTRY AND FIRE
PROTECTION,
Real Party in Interest
and Respondent.
Real party in interest California Department of Forestry
and Fire Protection (CAL FIRE) disciplined three of its
firefighters (appellants Justin Chaplin, James Michels, and
Frank Schonig) for cheating on a promotional exam. One of the
men appealed his discipline to respondent California State
Personnel Board (Board), but the other two did not. While the
one appeal was pending, CAL FIRE substituted new disciplinary
notices against all three men, seeking to impose harsher
penalties. Over the men’s objections, the Board allowed CAL
1
FIRE to proceed. The firefighters filed a petition for a writ of
mandate in the trial court, which the court denied.
We hold that CAL FIRE permissibly substituted its
disciplinary notice against the firefighter whose appeal was
pending before the Board, but not against the other two, because
by statute their discipline became final 30 days after they did not
appeal. (Gov. Code, § 19575.)1 We therefore affirm the trial
court’s ruling as to the one firefighter and reverse it as to the
other two.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellants started with the Department in the 2000’s:
Chaplin in 2002, Michels in 2004, and Schonig in 2006. In April
2014, they and four other candidates applied to be interviewed
for three fire captain positions that had become available. Before
the interviews, a battalion chief surreptitiously texted
information to appellants about the interview, including
interview questions and desired responses. Without reporting
that they had received this information, appellants proceeded
with the interview and performed well. Chapin and Schonig were
appointed to be limited-term fire captains, and Michels was
appointed to be a permanent fire captain.
An investigation was launched against the battalion chief
after he was accused of murdering his girlfriend and engaging in
wrongdoing at CAL FIRE’s Academy. In the course of this
1All statutory references are to the Government Code
unless otherwise specified.
2
investigation, appellants admitted that they had received the text
messages about the interviews.
In January 2015, CAL FIRE served disciplinary notices,
known as notices of adverse action, on appellants. Chaplin and
Schonig were notified that their appointments as limited-term
fire captains would end, and Michels was notified that he failed
his probationary period. They were also all notified that their
pay would be reduced by five percent for 12 months. This
discipline was upheld in February, after each of the men was
given a hearing conducted in compliance with Skelly v. State
Personnel Bd. (1975) 15 Cal.3d 194 (Skelly).2 The three
firefighters did not appeal their discipline to the Board before the
deadline to do so, but Schonig later sought and received a good-
cause exception to the deadline. His appeal was therefore
allowed to proceed.
Within weeks of their discipline being upheld, two of the
three firefighters were given new interviews and were again
promoted: Schonig to be a permanent fire captain, and Chaplin
to be limited-term fire captain at a different unit from his
previous appointment
2 Skelly requires that civil-service employees be given
notice of proposed disciplinary action, the reasons for the action,
a copy of the charges and the written materials upon which they
are based, and an opportunity to respond either orally or in
writing. (Skelly, supra, 15 Cal.3d at p. 215.) A “Skelly hearing”
refers to the employee’s opportunity to respond, and it has been
described as an “informal probable-cause-type proceeding.”
(Asimow et al., Cal Practice Guide: Administrative Law (The
Rutter Group 2019) ¶ 3:196, p. 3-33 (Asimow).)
3
In early May, the Sacramento Bee published an article with
comments by the director of CAL FIRE about Schonig and
Chaplin’s “boomerang promotions.” The article reported that the
firefighters’ “re-promotions caught [the director] off-guard,” and
he was “unhappy that both men so quickly regained the rank he
stripped from them.” According to the article, the director would
“like to bust them down again.”
Shortly after the article was published, CAL FIRE notified
Chaplin and Michels that the disciplinary action taken against
them was “withdrawn,” and they were placed on administrative
leave. It also notified Schonig, who was still in the process of
appealing his original discipline, that his discipline was being
rescinded and he would also be placed on administrative leave.
CAL FIRE then notified the three that they would be sanctioned
more severely by being demoted from their then-current positions
to the position of Fire Fighter II, effective June 1. They appealed
the new discipline to the Board.
In proceedings before the Board, the three men separately
moved to dismiss the imposition of the new discipline. They all
argued that they could not be disciplined again for the same
conduct for which they had already been disciplined. They relied
on precedential Board decisions holding that a state employer
cannot take adverse action against an employee if the employee
4
has already been disciplined for the same conduct.3 They also
cited Board rules contained in the California Code of Regulations
regarding the finality of disciplinary proceedings. (Cal. Code
Regs., tit. 2, § 52.4, subd. (e)(1)(A) & (e)(3) (Board rule 52.4).)4 A
Board administrative law judge (ALJ) denied the firefighters’
motions to dismiss.
A consolidated evidentiary hearing on the new disciplinary
actions was held in January 2016. In a proposed decision, the
ALJ concluded that CAL FIRE had proven the charges against
the firefighters by a preponderance of the evidence, that their
conduct constituted legal cause for discipline, and that their
demotions were warranted. The Board adopted the decision at a
meeting in April 2016.
The firefighters filed a petition for rehearing. In it, they
again relied on Board rule 52.4 and renewed their argument that
the second notices of adverse action against them were improper
because they previously had been disciplined for the same
conduct. The Board denied the petition without comment.
3 Under section 11425.60, subdivision (b), an agency “may
designate as a precedent decision a decision or part of a decision
that contains a significant legal or policy determination of
general application that is likely to recur.” (See also § 19582.5
[applicability to Board proceedings].) On March 13, 2020, this
court granted appellants’ unopposed request for judicial notice of
the Board decisions that were cited below and relied on by all
parties in this appeal, as well as an additional precedential
decision that was not presented to the Board.
All references to Board rules are to the California Code of
4
Regulations, title 2, section 51.1 et sequitur.
5
In June 2016, the three firefighters filed a petition for a
writ of administrative mandamus in the trial court under Code of
Civil Procedure section 1094.5. In their petition, while not
challenging any of the Board’s factual findings, they reiterated
their claim that the Board was prohibited from disciplining them
twice for the same misconduct. In their memorandum of points
and authorities supporting the petition, they relied on statutes
and Board rules that they maintained restricted a state
employer’s ability to amend an adverse action. (§ 19575.5
[amended notices]; Board rule 52.8, subd. (b) [good cause required
to amend pleading].) Both CAL FIRE and the Board filed
oppositions. In their reply brief, the firefighters specifically cited
section 19575 for the first time and argued that it precludes
employers from withdrawing final disciplinary actions regardless
of any Board decisions that might suggest otherwise.
The trial court denied the petition following a hearing. The
court’s order acknowledged that the firefighters’ position was “not
unreasonable” and was “supported by considerations of fairness
and public policy.” But it nonetheless considered itself
constrained because “the Board’s position [wa]s neither a clearly
erroneous nor arbitrary application of its precedents.” The court
further concluded that “[t]he Board’s double jeopardy precedents
are not based on Government Code [section] 19575” and that the
Board’s determination did not violate the statute in any event.
This appeal followed.
6
II. DISCUSSION
A. The Board’s Reliance on Its Precedential Decisions.
The parties dispute both the deference to which we should
afford the Board’s prior precedential decisions and the way in
which they were applied in this case. Although none of the
decisions address the precise issue presented here, the parties
rely on them extensively. We thus begin by summarizing the
most relevant of these cases.
In In the Matter of the Appeal by Gary Blakeley (1993) SPB
Dec. No. 93-20 (Blakely), a Department of Transportation
employee was informally disciplined with multiple letters of
warning about his conduct, and was later served with a notice of
adverse action of dismissal based on that same conduct. The
Board concluded that incidents used for the basis of informal
discipline cannot later be used for the basis of formal discipline,
except to show the employee had been warned or progressively
disciplined for prior misconduct. The Board’s analysis of the
issue spanned only two paragraphs and did not cite to any legal
authority.
The following year, in In the Matter of the Appeal by Steven
Richins (1994) SPB Dec. No. 94-09 (Richins), the Board
considered a data-center employee who had been issued letters of
warning about his negative performance. The employee later
received a notice of adverse action that listed only one new
incident not covered in the letters of warning. The Board
reaffirmed that under Blakeley, “an employee who has already
been subject to discipline c[annot] again be disciplined for
charges arising out of the same facts.” The Board stated that it
7
stood by its “policy that a department should not discipline
employees twice for the same incidents of poor performance or
misconduct,” even though it acknowledged that ALJs had
inconsistently applied this policy. The Board remarked, “[T]he
question of whether an employee is being disciplined twice for the
same misconduct will be decided on a case-by-case basis,” and it
continued by explaining that Blakeley “was never intended to
preclude an employer from taking formal adverse action after
merely documenting employee misconduct or from counselling or
instructing employees as to the need for improvement.” As in
Blakeley, the Board did not cite any legal authority for its
position.
While the Board has prohibited punishing the same
wrongdoing twice, it has allowed employers to amend notices of
adverse action in pending cases. In In the Matter of the Appeal by
E.W. (1999) SPB Dec. No. 98-1230 (E.W.), the Board considered
an employer that amended a notice of adverse action against a
correctional officer on the first day of a hearing before an ALJ.
After noting the general procedural requirements of Skelly,
supra, 15 Cal.3d at page 215, the Board explained that under
section 19575.5, an employer may, with the consent of the Board,
amend a notice of adverse action at any time before an employee’s
appeal is submitted to the Board or its authorized representative
for decision. The Board concluded that when an employer
requests permission from an ALJ to amend a notice of adverse
action (§ 19575.5), and the employee objects, the ALJ may allow
the amendment but shall order that the effective date of adverse
8
action be modified and order that the employee be given an
opportunity to respond to the new charges at a new Skelly
hearing. In a footnote, the Board stated without citing authority,
“An employer may withdraw a notice of adverse action and serve
a new notice without obtaining prior Board approval. If an
employer takes such unilateral action, it must reimburse the
disciplined employees for any backpay and benefits lost between
the original effective date of the withdrawn adverse action and
the new effective date of the new adverse action.” E.W. concluded
that because the amended notice of adverse action at issue
merely added additional factual details without any new charges
or legal causes for discipline, no new Skelly hearing was required,
and the employee was not entitled to a new effective date or an
award of backpay.
The firefighters here argued that the ALJ was required to
dismiss the new disciplinary actions because they could not be
disciplined twice for the same conduct under Blakeley, Richins,
and other precedential Board decisions. CAL FIRE argued that
Blakeley and Richins were distinguishable because in those cases,
the employers had not withdrawn the first discipline imposed,
whereas here CAL FIRE withdrew the first discipline, made the
firefighters whole, and served revised notices of adverse action.
In denying the firefighters’ motions to dismiss, the ALJ
noted that neither the State Civil Service Act (§ 18500 et seq.)
nor the Board’s regulations (Cal. Code Regs., tit. 2, § 1 et seq.)
address an employer’s authority to withdraw a notice of adverse
action and issue a new one. The ALJ acknowledged the
9
precedential Board decisions cited by the firefighters, but
observed that “the Board has repeatedly recognized an
appointing power’s ability to withdraw a [notice of adverse
action], and serve the employee a new [notice of adverse action],
without violating the ‘double jeopardy’ prohibition.” After
analyzing additional precedential authority, including E.W., the
ALJ remarked that “the Board has consistently acknowledged
than an appointing power does not punish an employee twice for
the same conduct where it voids the first punishment and makes
the employee whole for the voided punishment.” The ALJ
concluded that CAL FIRE had not violated the prohibition
against disciplining employees twice for the same misconduct
because it had followed Board guidance and had made the
firefighters whole before imposing the new discipline on them.
The trial court gave “considerable deference” to the Board’s
precedential decisions and concluded that the Board’s position
was “neither a clearly erroneous nor arbitrary application of its
precedents.”
B. The Standard of Review.
As we have mentioned, the firefighters’ petition for a writ of
administrative mandate was brought under Code of Civil
Procedure section 1094.5. In such a case, the trial court looks at
whether the administrative agency “has proceeded without, or in
excess of, jurisdiction; whether there was a fair trial; and
whether there was any prejudicial abuse of discretion. Abuse of
discretion is established if the respondent has not proceeded in
the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by
10
the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).) “The scope
of our review from a judgment on a petition for writ of mandate is
the same as that of the trial court.” (Department of Corrections &
Rehabilitation v. State Personnel Bd. (2015) 238 Cal.App.4th 710,
716.)
The firefighters contend that the issue to be decided is a
question of law to be reviewed de novo because they do not
challenge any of the Board’s factual findings and only contend
that the ALJ’s decision to allow the second notices of action to
proceed was contrary to statute. By contrast, the Board and CAL
FIRE contend that the application of the Board’s precedential
decisions in this case is reviewed under the “arbitrary and
capricious” standard. The firefighters have the better argument
because the resolution of this appeal turns on the legal effect of
section 19575.
When an “appeal from the administrative mandamus
proceeding presents questions of law, our review is de novo.”
(California Dept. of Corrections v. State Personnel Bd. (2004)
121 Cal.App.4th 1601, 1611 (Henning).) “We respect but do not
necessarily defer to [the Board’s] interpretations of the governing
statutes,” and we apply a “ ‘ “respectful but nondeferential
standard of review” ’ ” to Board interpretations of governing
statutes. (Ibid.) “The judiciary takes ultimate responsibility for
the construction of statutes, although according great weight and
respect to the administrative construction such as is appropriate
under the circumstances.” (Ibid.; see also Yamaha Corp. of
America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12–13
11
(Yamaha) [weight to be given to an agency’s legal conclusion is
situational and involves complex factors such as the particular
agency offering the interpretation, whether the agency has
expertise in the issue to be decided, and whether agency
interpreted its own regulation or a statute].)
The Board contends that it was interpreting “its own
policy” as set forth in “its own precedential decisions.” CAL FIRE
similarly claims that the Board’s “administrative rules regarding
double jeopardy and the withdrawal of adverse actions” are not
based on statute and instead “are entirely the creation of [the
Board’s] administrative rulings.” We agree that “agencies often
make policy through adjudicatory decisions that are treated as
precedent by later agency decisions,” and agency reliance on
these decisions “should be encouraged because it contributes to
principled decisionmaking and to consistency and predictability
of results.” (Asimow, supra, at ¶ 6:442, p. 6-52.) Nevertheless,
“[Board] precedents are not binding on this court.” (Henning,
supra, 121 Cal.App.4th at p. 1618.) “Because an interpretation is
an agency’s legal opinion, however ‘expert,’ rather than the
exercise of a delegated legislative power to make law, it
commands a commensurably lesser degree of judicial deference.”
(Yamaha, supra, 19 Cal.4th at p. 11.)
True enough, the state constitution empowers the Board to
enforce civil service statutes (Cal. Const., art. VII, § 3, subd. (a)),
and the Board “must necessarily interpret, enforce, and
administer” the State Civil Service Act. (Henning, supra,
121 Cal.App.4th at p. 1612.) “Nevertheless, the proper
12
interpretation of a statute is ultimately the court’s
responsibility.” (American Coatings Assn. v. South Coast Air
Quality Management Dist. (2012) 54 Cal.4th 446, 462.) “ ‘The
Board has no greater power than we do to graft a nonexistent
requirement into a statute.’ ” (Department of Corrections &
Rehabilitation v. State Personnel Bd. (2016) 247 Cal.App.4th 700,
708 (Iqbal).) That the Board has not yet addressed the exact
question presented here in a precedential decision, as all the
parties seem to recognize, provides an additional reason for us to
review the issue de novo.
The Board argues that we should afford a “high degree of
deference” to the Board’s “specialized administrative expertise” in
“adjudicating matters within the scope of [its] jurisdiction.” It
relies on Boling v. Public Employment Relations Bd. (2018)
5 Cal.5th 898, 912, in which the Supreme Court affirmed a
“hybrid approach” to reviewing the Public Employment Relations
Board’s (PERB) interpretation of public employee labor relations
statutes. “ ‘ “PERB is ‘one of those agencies presumably equipped
or informed by experience to deal with a specialized field of
knowledge, whose findings within that field carry the authority of
an expertness which courts do not possess and therefore must
respect.’ [Citation.]” [Citation.] We follow PERB’s interpretation
unless it is clearly erroneous. [Citation.]’ [Citation.] . . . . Even
so, courts retain final authority to ‘ “state the true meaning of the
statute.” ’ [Citation.] A hybrid approach to review in this narrow
area maintains the court’s ultimate interpretative authority
13
while acknowledging the agency’s administrative expertise.” (Id.
at pp. 911–912, italics added.)
We are not persuaded the circumstances here warrant a
similar high degree of deference. First, although the Board is
constitutionally vested with the authority to review civil service
statutes (Cal. Const., art. VII, § 3, subd. (a)), it is unclear that the
Supreme Court would apply this “hybrid approach” to the Board.
(See Asimow, supra, at ¶ 17:124, p. 17-27 [“It is unclear why the
Supreme Court adopted this ‘hybrid approach’ by treating labor
law agencies differently from many other state administrative
agencies, all of which enjoy delegated adjudicatory power and
have developed expertise in applying broadly phrased statutory
language to complex practical situations.”].) Second, and more
importantly, we are skeptical that the Board relied on any
“specialized administrative expertise” in resolving the issue here
of whether to allow new discipline for misconduct that was
previously disciplined in a statutorily final prior action.
Whatever merit there may be to having a uniform discipline
policy as expressed in precedential decisions, the Board was in no
better position than the courts to determine in the first instance
whether revoking a prior final discipline was barred by statute.
CAL FIRE and the Board both take the position that the
Board was not interpreting a statute but was instead
interpreting the Board’s “own administratively-created rule”
(according to CAL FIRE) or “the rules established and explained
in [the Board’s] precedential decisions” (according to the Board).
Based on this premise, CAL FIRE argues all the reasons why this
14
court should defer to the Board’s “administrative rules” and
suggests we should apply “the most deferential standard of
review” to the Board’s “quasi-legislative rule.” Again, though,
this court retains the ultimate authority to decline to defer to any
such rule interpretations to the extent they conflict with a
statute.
In short, we agree with the firefighters that the question
whether the Board’s decision was contrary to statute is a legal
question we review de novo.
C. The Notices of Adverse Action That Became Final Were
Not Subject to Withdrawal.
1. The Statutory Disciplinary Procedure.
To resolve the question before us, we begin with an
overview of the State Civil Service Act’s disciplinary procedure.
“Generally speaking, the Board’s authority in disciplinary
matters is limited to that of reviewing disciplinary action taken
by appointing authorities. (Skelly[, supra, 15 Cal.3d at pp. 201–
202].) An ‘appointing power’ is a person or group having
authority to make appointments to positions in the state civil
service. (Gov. Code, § 18524; Cal. Code Regs., tit. 2, § [3.5].)
Under our statutory scheme for employee discipline, the
appointment power is vested with the initial authority to
determine and impose appropriate discipline. The Board, in turn,
is vested with the authority to review the appointing power’s
action. While the Board’s authority is broad, it is not plenary.
The Board may modify or revoke the appointing power’s
imposition of discipline for one of three reasons: (1) the evidence
15
does not establish the fact of the alleged cause for discipline;
(2) the employee was justified; or (3) the cause for discipline is
proven but is insufficient to support the level of punitive action
taken. Unless one of these factors is present, the appointing
power’s action must stand. [Citation.]
“The appointing power or its authorized representative may
take adverse action against an employee for one or more of the
causes for discipline specified by [section 19572] . . . . ‘Adverse
action’ means dismissal, demotion, suspension, or other
disciplinary action. (Gov. Code, § 19570.) No later than
20 calendar days after service of the notice of adverse action, the
employee may file a written answer to the notice with the Board.
Whenever an answer is filed to an adverse action, the Board or
its authorized representative shall hold a hearing within a
reasonable time. (Gov. Code, § 19578.) Failure of either party
(the employee, the employer, or their representatives) to proceed
at the hearing shall be a withdrawal of the cause of action or
appeal, unless the hearing is continued by mutual agreement of
the parties, or upon a showing of good cause. (Gov. Code,
§ 19579.)” (Larson v. State Personnel Bd. (1994) 28 Cal.App.4th
265, 274 (Larson).)
Under this disciplinary scheme, “the appointing power has
the authority to take disciplinary action subject to appeal to the
Board. (Gov. Code, § 19574.) If the employee fails to request or
to prosecute an appeal to the Board, then the appointing power’s
action is final. (Gov. Code, § 19575; [citation].)” (Larson, supra,
28 Cal.App.4th at p. 278, italics added.) Section 19575 provides
16
the conditions for finality: “The employee has 30 calendar days
after the effective date of the adverse action to file with the board
a written answer to the notice of adverse action. The answer
shall be deemed to be a denial of all the allegations of the notice
of adverse action not expressly admitted and a request for
hearing or investigation as provided in this article. With the
consent of the board or its authorized representative an amended
answer may subsequently be filed. If the employee fails to
answer within the time specified or after answer withdraws his or
her appeal the adverse action taken by the appointing power
shall be final. A copy of the employee’s answer and of any
amended answer shall promptly be given by the board to the
appointing power.” (Italics added.)
The firefighters contend that because the previous adverse
actions had become final under section 19575, CAL FIRE was
prohibited from withdrawing the previous notices and initiating
new ones.
2. The Firefighters Did Not Forfeit Their Statutory
Argument.
We first reject respondents’ argument that the firefighters
forfeited their argument based on section 19575 by not raising it
below. Respondents accurately point out that the firefighters did
not specifically cite the statute before the Board, and only cited it
in the trial court when they filed their reply brief in support of
the writ petition. But their argument throughout these
proceedings, up through this appeal, has been consistent: further
disciplinary action against them was barred because the original
17
discipline had become final. Furthermore, in their original
motion to dismiss before the Board, the firefighters relied on
Board rules that mirror and refer to the finality precept of
section 19575. They noted that an appeal from a disciplinary
action must be filed within 30 days under Board
rule 52.4(e)(1)(A), and they argued that after that deadline passes
the “finality” of the discipline should be binding on both the
employee and the employer. Board rule 52.4(e)(1)(A), in turn,
explicitly provides that “[a]ppeals from disciplinary action filed
pursuant to the provisions of Government Code section[] 19575,
shall be filed within 30 days after the effective date of the notice
of adverse action.” (Italics added.) Under these circumstances,
we cannot say that the firefighters forfeited their argument based
on section 19575.
Respondents’ reliance on Bohn v. Watson (1954)
130 Cal.App.2d 24 is misplaced. There, a licensed real estate
broker defended herself before the Real Estate Commissioner
against accusations of fraud, misrepresentation, and deceit. (Id.
at p. 26.) The agent maintained—both in administrative
proceedings and in a petition for a writ of mandate in the trial
court—that the evidence did not support the accusations, but she
did not claim that the charges were time-barred. (Id. at pp. 26–
28.) For the first time in her opening brief in the trial court, the
agent argued that one of the charges against her was barred by
the statute of limitations. (Id. at p. 28.) The trial court rejected
the defense, and the appellate court concluded that the issue was
forfeited because it had not been raised in the administrative
18
proceedings. (Id. at p. 36.) According to the court of appeal, it
did not matter that the trial court had made findings on the
defense, because “as [the findings] were not part of the issues
raised or adjudicated in the administrative hearing, the findings
thereon were immaterial and wholly surplusage.” (Id. at pp. 36–
37.) Here, by contrast, the issue of whether the Board was
barred from disciplining the firefighters after a previous
discipline had become final was squarely before the Board during
administrative hearings.
Moreover, we disagree with CAL FIRE’s assertion that the
firefighters “are essentially making a statute of limitations
argument.” “[T]he statute of limitations is a personal privilege
which is waived unless asserted at the proper time and in the
proper manner, whether it be a general statute of limitations or
one relating to a special proceeding.” (Bohn v. Watson, supra,
130 Cal.App.2d at p. 36.) Here, the firefighters have consistently
claimed that the Board lacked the legal authority to proceed
against them twice for the same behavior. Their specific
argument that a substitution of disciplinary charges must occur
before an action is concluded is based on principles related to
statutory finality, not on those related to limitation periods.
3. CAL FIRE Was Not Permitted to Withdraw the
Notices of Adverse Action That Were Not
Appealed and Were Final.
On the merits, we agree with the firefighters that once a
disciplinary action becomes final, the employer is prohibited from
withdrawing it and initiating a new adverse action. The plain
language of section 19575 could not be clearer: an appointing
19
power’s discipline is final where no appeal is taken within
30 calendar days. It may be true, as the Board notes, that the
statute does not specifically “limit[] the employer’s right to
withdraw the action, reimburse the employee for any lost
backpay and benefits, and impose a new action within the
applicable statute of limitations.” But nothing can be read into
the absence of such a limitation. We reject respondents’
suggestion that the Legislature was required essentially to say it
really meant it after it established the finality of adverse actions
in section 19575.
Respondents’ other arguments are also not persuasive.
CAL FIRE relies on inapposite dicta in the Board’s precedential
decision In the Matter of the Appeal by Ralph Rey (1999) SPB
Dec. No. 99-10 (Rey). In Rey, an employer failed to file a notice of
adverse action with the Board within 15 days after the effective
date of the adverse action as required under section 19574. The
employee argued that the employer’s failure to comply with the
time requirement “invalidate[d]” the notice of adverse action, but
the Board disagreed. It concluded that the deadline was
directory as opposed to mandatory, meaning that the Board
retained jurisdiction even though the employer did not meet the
filing deadline. The Board observed that its “jurisdiction over an
adverse action is triggered when a disciplined employee[] files an
appeal from an adverse action with the Board, not when the
employer files the notice of adverse action. If a disciplined
employee does not file an appeal with the Board in accordance
with Government Code § 19575, the Board will not review the
20
adverse action, and the adverse action will stand, unless the
employer withdraws the action or the parties otherwise settle the
matter. If the Board were to interpret the [15-day] filing
requirements of Government Code § 19574 to be mandatory, it
would have the effect of invalidating all adverse actions not filed
with the Board within the 15-day period, even those that are not
appealed by disciplined employees. Clearly, the Legislature
would not have intended such a consequence when it enacted the
statute.” (Italics added.) This discussion has little application to
the circumstances here because it was made in the context of an
employer withdrawing an action before—not after—the adverse
action was final.
The same is true of Gatti v. California Department of Parks
and Recreation (2012) (Case No. 10-4368A) (Gatti), a
nonprecedential decision upon which the ALJ relied in denying
the firefighters’ motions to dismiss. There, an employee was
served with a notice of adverse action for inappropriate conduct
while driving a department truck, but about a year later was
served with a second notice regarding separate conduct. After a
series of motions before the Board, the employer sought
permission to withdraw both notices without prejudice, and the
ALJ accepted the withdrawal. The employer then served a new
notice of adverse action that alleged the same facts as the
previous two notices. The new notice increased the penalty
sought from a five-percent pay reduction for eight months to a
five-percent reduction for 12 months. Following a hearing, the
ALJ concluded that the penalty for the new notice of adverse
21
action was excessive and reduced it to a five-percent pay
reduction for three months. The ALJ noted among other things
that the employer had not provided a rationale for the increased
penalty.
The Board rejected the ALJ’s proposed decision. In its
nonprecedential decision, the Board adopted the ALJ’s findings of
fact and conclusions of law, except as to the modified penalty.
The Board disagreed with a number of alleged mitigating
circumstances. As for the idea that the employer had failed to
provide a rationale for increasing the penalty, the Board
concluded that “[t]here was no showing that [the employer] was
restricted from re-evaluating the factual and legal grounds for
discipline and re-serving [the employee] with a single [notice of
adverse action] that assessed a different penalty.”
Here, the ALJ remarked that “[c]learly, the original
[notices of adverse action] in [Gatti] had taken effect when the
appointing power withdrew them and issued the new, harsher
[notice]. . . . If the Board found such conduct amounted to
improperly disciplining an employee twice for the same conduct,
the Board would have stated so. Instead, the Board not only
rejected the ALJ’s consideration of the original [notices], but
affirmed the appointing power’s right to withdraw the original
[notices] and serve the [employee] with a new [notice].” But these
remarks miss the point that Gatti simply did not address
whether an employer could withdraw a notice of adverse action
that already had become final. Instead, Gatti was considering
22
the appropriate factors for evaluating the severity of discipline,
something that is not at issue in this appeal.
Our conclusion that an employer cannot withdraw a final
disciplinary action is consistent with Gonzales v. State Personnel
Bd. (1977) 76 Cal.App.3d 364 (Gonzales). In Gonzales, the court
directed the Board to consider an employee’s appeal, even though
he had missed the deadline under section 19575, because the
employee had established good cause to be excused from a six-day
filing delay. (Gonzales at pp. 365–366.) The court concluded that
because the case involved a fundamental and vested right (a job
covered by the State Civil Service Act), the statutory scheme
should be liberally construed in favor of the employee. (Gonzales
at p. 367.) Such a liberal construction meant that even though no
regulation or statute permitted a late appeal of an administrative
decision, “discretionary extensions of time for appeal for good
cause are required.” (Ibid.)
True enough, Gonzales acknowledged that the finality
provision of section 19575 addresses “the concern of an employer
to know whether or not an employee has been lawfully
terminated, so that proceedings to replace that employee may be
instituted,” but held that the employee had nonetheless
established reasons for equitable relief. (Gonzales, supra,
76 Cal.App.3d at p. 367.) CAL FIRE claims this demonstrates
that section 19575’s finality “is clearly intended to benefit the
employer and thus may be waived by the employer” under Civil
Code section 3513 [anyone may waive advantage of law “intended
solely for his benefit”]. But just because section 19575 confers a
23
benefit on employers does not mean that its finality provisions
have no effect on them. CAL FIRE claims that “the finality
provisions of section 19575 have never been construed to benefit
employees,” but the effect of these provisions is a matter of first
impression.
CAL FIRE further argues that if an employee is permitted
under Gonzales to circumvent the finality of an adverse action by
establishing good cause, “the good cause exception to
section 19575 should be equally available to both employees and
employers.” We disagree. Section 19575 provides that an
employee has 30 calendar days to take an action (file an appeal to
the Board), and Gonzales establishes the employee’s ability to
show good cause to extend that period. (Gonzales, supra,
76 Cal.App.3d at p. 367.) In Gonzales, it was undisputed that the
employee had established good cause for filing an appeal six days
late because there was a breakdown in communication between
him and his attorney, and “they were both laboring under the
strain of major criminal proceedings.” (Id. at p. 366.) An
employer is differently situated because by the time an adverse
action has become final, the agency has already taken affirmative
action against its employee by complying with section 19574 and
affording an opportunity for a Skelly hearing.
Furthermore, even if we were to assume that an employer
may set aside a final adverse action upon a showing of good
cause, and that CAL FIRE preserved its right to do so here, we
disagree with CAL FIRE’s claim that it “had more than sufficient
good cause to withdraw and revise the adverse actions” against
24
the firefighters. CAL FIRE argues that it revised the original
adverse actions to include additional facts, causes of action, and
evidence, and it claims that the original actions were “too lenient
given the dishonesty inherent in the appellants’ misconduct.”
This argument fails to prove good cause; it mostly just describes
what actions the agency took after it withdrew the previous
notices.
As for the reason for the delay, CAL FIRE says it would
have been reasonable to take into consideration the negative
publicity the agency received about the firefighters’ original
discipline, as the ALJ concluded in denying the firefighters’
motions to dismiss. To be sure, in In the Matter of the Appeal by
M.M. (1995) SPB Dec. No. 95-01,5 the Board concluded that in
considering the appropriate discipline, an employer may consider
whether the employee’s misconduct, “if known to the public, could
only subject the [employer] to discredit.” But that was a
consideration for imposing discipline in the first instance, not for
withdrawing discipline that had already become final.
We also disagree with CAL FIRE that our interpretation of
section 19575 will “lead to absurd results.” The agency claims
that if employers are barred from withdrawing an adverse action
after it becomes final, employers will be unable to withdraw a
5 Although M.M. was cited by the ALJ in denying the
firefighters’ motion to dismiss, it is not included in the record on
appeal. The court takes judicial notice of the decision on the
court’s own motion. (Evid. Code, §§ 451, subd. (a) [mandatory
judicial notice of decisional law of the state]; 459, subd. (a)
[reviewing court shall judicially notice each matter trial court
was required to notice under § 451].)
25
final adverse action “even if the employer discovers new facts
warranting revision of the disciplinary action.” But there is
nothing “absurd” about expecting an employer to conduct a
thorough investigation about alleged misbehavior before an
adverse action becomes final. And our conclusion says nothing
about an employer’s ability to discipline an employee for new
facts that constitute their own wrongdoing. Finally, nothing in
our decision prevents an employer from seeking to amend a
notice of adverse action to include additional detail before an
employee’s appeal is submitted to the Board for decision
(§ 19575.5; E.W., supra, SPB Dec. No. 98-1230.)
In sum, we agree with the firefighters that the discipline
against Chapin and Michels became final under section 19575
because they did not appeal their discipline to the Board within
30 days of its imposition. And because their discipline was final,
CAL FIRE was not permitted to withdraw the notices of adverse
action and serve new and different notices.
4. CAL FIRE Was Permitted to Withdraw the Notice
of Adverse Action That Was Not Final.
Our analysis is different, however, for Schonig, who
appealed the first notice of adverse action to the Board. His
discipline thus was not final under section 19575 when CAL
FIRE served him with the new notice of adverse action. Under
section 19575.5, “[a]t any time before an employee’s appeal is
submitted to the board or its authorized representative for
decision, the appointing power may with the consent of the board
or its authorized representative serve on the employee and file
26
with the board an amended or supplemental notice of adverse
action.” The firefighters argue that this section is inapplicable
here because CAL FIRE did not secure the consent of the Board
before withdrawing its original notice and sending a new one.
(See also Board rule 52.8(b) [chief ALJ “may require” showing of
good cause before granting request to amend pleading].) But the
Board impliedly gave its consent to withdraw the original notice
and serve a new one when the ALJ denied the motions to dismiss,
and the firefighters do not point to any statutory prohibition
against such a process.
III. DISPOSITION
The trial court’s order denying appellants’ petition for a
writ of mandate is affirmed in part and reversed in part.
The portion denying Schonig’s petition for a writ of
mandate is affirmed.
As for the portion of the order covering appellants Chaplin
and Michels, the order is reversed. The trial court is directed to
enter a new and different order granting Chaplin and Michels’s
petition for a writ of mandate and to direct the Board to vacate
its April 12, 2016 order as to Chaplin and Michels and to
reinstate the notices of adverse action dated January 26, 2015,
for Chaplin and Michels.
Each party shall bear their own costs of appeal.
27
_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Banke, J.
Chaplin et al. v. California State Personnel Board A155107
28
Trial Court:
Superior Court of the City and County of San Francisco
Trial Judge:
Hon. Harold Kahn
Counsel for Plaintiffs and Appellants:
Gary M. Messing, Lina Balciunas Cockrell; Messing Adam &
Jasmine LLP
Counsel for Defendant and Respondent:
Alvin Gittisriboongul, Dorothy Bacskai Egel; State Personnel Board
Counsel for Real Party in Interest and Respondent:
Frolan R. Aguiling, Linda A. Mayhew, Jennifer Pearson, David M.
Villalba; Department of Human Resources, State of California
Chaplin et al. v. California State Personnel Board A155107
29