Weisner v. Santa Cruz County Civil Service Commission

Filed 6/22/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JAMES WEISNER, H041850
(Santa Cruz County
Plaintiff and Appellant, Super. Ct. No. CV179070)
v.
SANTA CRUZ COUNTY CIVIL
SERVICE COMISSION,
Defendant and Respondent;
COUNTY OF SANTA CRUZ
Real Party in Interest and
Respondent.
This appeal arises from the 2008 termination of appellant James Weisner’s
employment with the County of Santa Cruz (the County). Several years of litigation
followed the termination, with Weisner eventually reinstated to his County employment
without back pay.
In this appeal, Weisner seeks reversal of a 2014 order denying his petition for
administrative writ of mandamus. The writ petition asked the superior court to order the
Santa Cruz County Civil Service Commission (the Commission) to award back pay and
other benefits as part of the reinstatement of Weisner’s County employment. The
superior court denied Weisner’s writ petition as moot, finding that the Commission lost
jurisdiction to grant relief because Weisner resigned from his reinstated employment with
the County. As set forth below, we conclude that the matter is not moot, and we reverse.
FACTUAL AND PROCEDURAL HISTORY
For over seven years, Weisner worked as a heavy equipment mechanic at the
County’s Buena Vista Landfill. At the same time, he owned and operated a construction
hauling business. At three different times in 2008, Weisner used County employees and
equipment to remove trucks full of construction materials from the landfill. As a result of
these incidents, Weisner was investigated by the County. Following the investigations,
on May 12, 2008, the County dismissed Weisner for violations of County rules and
Public Works Department policies. Weisner appealed his dismissal to the Commission.
In December 2008, the Commission found that there was just cause to terminate
Weisner’s employment. In April 2009, Weisner filed a petition for writ of mandate that
asked the superior court to set aside his termination. The superior court granted
Weisner’s writ petition, concluding that only two of the Commission’s five findings had
sufficient evidentiary support, Weisner’s termination was excessive punishment, and the
Commission’s decision to uphold Weisner’s termination was an abuse of discretion. The
superior court ordered the Commission to rehear evidence and determine appropriate
discipline.
The County appealed the superior court’s order on the writ petition. This court
affirmed the order in September 2011. (Weisner v. Santa Cruz County Civil Service
Commission (Sept. 6, 2011, H035387) [nonpub. opn.].)
Following a hearing in March 2012, the Commission again upheld the termination
of Weisner’s employment. Weisner filed a petition for administrative writ of mandamus
that asked the superior court to set aside the Commission’s decision. On
December 12, 2012, the superior court granted Weisner’s writ petition. The superior
court ordered the Commission to conduct a de novo hearing limited to two charges,
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unauthorized use of public equipment and engaging in personal business on County time,
with “no[] reference” to “any prior hearings in this matter.”
After a hearing on January 15, 2014, the Commission found that Weisner had
engaged in unauthorized use of public equipment and had conducted personal business on
County time. The Commission additionally found that “[t]ermination was not warranted
since there was a lack of progressive discipline and this was a first offense of this nature.”
In a unanimous decision, the Commission reinstated Weisner’s employment. The
Commission further ordered: “No back pay shall be awarded and the reinstatement of
employee shall not include credit towards seniority, accruals, county service or
compensation for other County benefits.”
On April 22, 2014, Weisner filed a petition for administrative writ of mandamus
that asked the superior court to “direct the Commission to order back-pay, accompanying
seniority, and all attendant benefits.” In the writ petition, Weisner argued: “This Petition
seeks to correct an abuse of discretion in that, based on a fair and impartial view of the
evidentiary record and the Commission’s disciplinary decision holding that Petitioner’s
termination was unjustified, [the County] did not meet its burden of proof in establishing
good cause to deny Petitioner his accrued back-pay and other benefits, which equates to a
nearly six-and-a-half-year-long suspension: an unprecedented punishment for admittedly
first time offenses, which did not warrant a firing.”
On June 23, 2014, Weisner returned to his County employment as a heavy
equipment mechanic. Two weeks later, on July 7, 2014, Weisner approached his
supervisor, expressed his belief that the terms of his reinstatement had been violated, and
stated that his attorney had advised him to leave the workplace and not return. On
July 8, 2014 and July 9, 2014, Weisner did not go to work. According to the County’s
Director of Personnel, Michael McDougall, Weisner telephoned McDougall on
July 10, 2014, said he was resigning from County employment, and agreed to provide a
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written letter of resignation. Weisner never gave McDougall a written letter of
resignation. On July 14, 2014, McDougall sent Weisner a letter that stated: “You have
been absent from work for the past five working days, and have not contacted the County
since our July 10, 2014 telephone conversation. Based upon your lack of contact, and
your verbal resignation during our last conversation, it is apparent that you are not
interested in continued employment with the County of Santa Cruz. I therefore accept
your resignation effective July 10, 2014.”
On October 28, 2014, the superior court held a hearing on the petition for
administrative writ of mandamus that Weisner had filed on April 22, 2014. In a written
order, which was signed on November 7, 2014 and filed on November 13, 2014, the
superior court denied the writ petition as moot. In the written order, the superior court
explained: “The court finds that Mr. Weisner resigned voluntarily from the County of
Santa Cruz in July, 2014. In doing so, the Santa Cruz County Civil Service Commission
lost jurisdiction over his appeal proceeding . . . . [¶] The court therefore denies
[Weisner’s writ petition] as moot.”
Weisner now appeals from the order denying his writ petition as moot.
DISCUSSION
Weisner contends that the order denying his petition for administrative writ of
mandamus must be reversed because the superior court erred in determining that the
matter was moot. Weisner makes two arguments on appeal. He first contends that the
superior court erred in finding that he resigned from County employment in July 2014.
He alternatively contends that, even if he did resign, such resignation did not divest the
Commission of jurisdiction over his administrative appeal.
The Commission and the County argue that the superior court properly found that
Weisner resigned. The Commission and the County further argue that the Commission
lost jurisdiction over Weisner’s administrative appeal when Weisner resigned.
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We need not determine whether Weisner resigned in July 2014. As explained
below, even if Weisner did resign in July 2014, the Commission did not lose jurisdiction
to grant relief to Weisner. The superior court therefore erred in ruling that Weisner’s
petition for administrative writ of mandamus was moot, and we must reverse.
Standard of Review
This appeal presents a question of law, namely whether an employee’s resignation
from County employment divests the Commission of jurisdiction over that employee’s
administrative appeal proceeding. We review such questions of law de novo. (Ramon v.
City of Santa Clara (2009) 173 Cal. App. 4th 915, 921.)
The Commission Did Not Lose Jurisdiction to Grant Relief to Weisner
In making their arguments regarding the effect of resignation on Commission
jurisdiction, the parties rely on civil service rules included in the Santa Cruz County Code
and personnel rules articulated in the Personnel Regulations and References of Santa
Cruz County (PRRSC).1 We agree that we must analyze those rules in order to determine
whether resignation divests the Commission of jurisdiction. (See Hughes v. City of San
Bernardino (2016) 244 Cal. App. 4th 542, 550 (Hughes) [when determining whether
resignation divests a civil service commission of jurisdiction, an appellate court will
“search the rules applicable to [the employee’s] employment”].)
PRRSC section 130(I)(D) is titled “Appeals to the Civil Service Commission.”
That section specifies that “any affected applicant or employee may appeal an action or
decision of the Personnel Director to the Commission on the grounds of his/her failure to
observe or properly apply those Sections of the Ordinance Code which comprise the
Limited Civil Service System or these Civil Service Rules.” (PRRSC § 130(I)(D)(1).)
1
On July 23, 2015, the County requested that we take judicial notice of civil
service provisions in the Santa Cruz County Code. We granted that request on
September 16, 2015. We now additionally take judicial notice of the personnel rules in
the PRRSC. (Evid. Code, §§ 452, subd. (b), 459, subd. (a).)
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PRRSC section 130(I)(D) requires the “appellant” to submit an appeal form that
identifies the specific action being appealed. (PRRSC § 130(I)(D)(3).) PRRSC section
130(I)(D) further provides: “Hearings for appeals shall be scheduled in accordance with
County Code Section 3.24.030.” (PRRSC § 130(I)(D)(2).)
Santa Cruz County Code section 3.24.030 is titled “Dismissals, suspensions and
demotions.” Subdivision (A) of that section provides that “[a]ny officer or employee in
the classified service may be dismissed, suspended, reduced in compensation or demoted
by the appointing authority by a written order, stating specifically the reasons for the
action.” (Santa Cruz County Code, § 3.24.030, subd. (A).) The right to administratively
appeal such an order is articulated in subdivision (B) of Santa Cruz County Code section
3.24.030, which states in pertinent part: “The officer or employee within seven days after
presentation to him of the order may appeal . . . to the Civil Service Commission from the
order.” (Santa Cruz County Code, § 3.24.030, subd. (B).) Subdivision (D) of Santa Cruz
County Code section 3.24.030 describes procedures to be followed at the Commission’s
hearing on an appeal, and it states in relevant part: “The appellant may appear
personally, produce evidence, obtain counsel to represent him/her and be entitled to a
public hearing.” (Santa Cruz County Code, § 3.24.030, subd. (D).) Finally, subdivision
(E) of Santa Cruz County Code section 3.24.030 states: “The findings and decision of
the Civil Service Commission shall be certified to the department head or officer whose
act was the basis for the hearing, and to the appellant, and shall be enforced forthwith and
such decision followed by them.” (Santa Cruz County Code, § 3.24.030, subd. (E).)
Under PRRSC section 130(I)(D) and Santa Cruz County Code section 3.24.030, a
dismissed employee may appeal the dismissal to the Commission. Here, it is undisputed
that the Commission had jurisdiction to hear Weisner’s administrative appeal when
Weisner appealed his dismissal to the Commission in 2008. The petition for
administrative writ of mandamus at issue here arose from the 2008 administrative
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appeal—the writ petition sought an order requiring the Commission to award back pay
and other benefits associated with reinstatement when the Commission ultimately found
Weisner’s dismissal to be unwarranted. Given that the Commission had jurisdiction to
hear Weisner’s appeal of his dismissal, it would also have jurisdiction to award back pay
and other benefits when it determined that Weisner was wrongfully dismissed. (See Santa
Cruz County Code, § 3.24.030, subd. (D) [the Commission may revoke an order of
dismissal, and the appellant may seek compensation if reinstated].) We fail to see how
Weisner’s resignation from County employment, which occurred while the writ petition
was pending, would divest the Commission of its existing jurisdiction; we have searched
the civil service rules in the Santa Cruz County Code and the personnel rules in the
PRRSC, and we have found no rule that states that resignation divests the Commission of
existing jurisdiction.
The County contends that resignation divests the Commission of jurisdiction
because Santa Cruz County Code section 3.24.030 and PRRSC section 130(I)(D) use the
word “employee” when describing the individuals who may file an administrative appeal
with the Commission. Given the use of the word “employee,” the County argues that the
Commission has jurisdiction only over those individuals who are currently employed by
the County. This argument is unconvincing. Santa Cruz County Code section 3.24.030
and PRRSC section 130(I)(D) also use the word “appellant” when describing those who
may appeal to the Commission. (Santa Cruz County Code, § 3.24.030, subds. (D) & (E);
PRRSC § 130(I)(D)(3).) The word “appellant” does not have any connotation of current
employment. We do not believe that the mere use of the word “employee” in portions of
Santa Cruz County Code section 3.24.030 and PRRSC section 130(I)(D) equates to a rule
that the Commission loses jurisdiction if an individual resigns after properly initiating an
administrative appeal.
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Hughes, supra, 244 Cal. App. 4th 542 is instructive. In Hughes, a sheriff’s deputy
employed by the County of San Bernardino administratively appealed a 15-day
suspension, but he missed the scheduled hearing after suffering a heart attack. (Id. at
p. 544.) He retired for medical reasons, and the San Bernardino Civil Service
Commission ruled that it had no jurisdiction to continue with the administrative appeal.
(Ibid.) On appeal to the Fourth District Court of Appeal, the issue was “whether a [San
Bernardino] County employee who pursues an administrative appeal of an adverse
personnel action is entitled to complete the appeal process if he resigns or retires before
the process is complete, or whether the [San Bernardino Civil Service Commission] loses
its prior jurisdiction when an employee resigns or retires.” (Id. at p. 550.) The Fourth
District concluded that the San Bernardino Civil Service Commission does not lose
jurisdiction. (Id. at pp. 548-554.) The “central” reason for that conclusion was that
“[n]owhere do the [County of San Bernardino] Personnel Rules provide that regular
classified employees who properly initiate an appeal lose the ability to complete the
appeal when they resign or retire, or that the [San Bernardino Civil Service Commission]
thereby loses jurisdiction to complete the appeal.” (Id. at pp. 551, 553.) The Fourth
District also noted that it would be unfair to require “an ill, injured or retirement-age
employee put at risk his well-being by continuing to work in order to see to completion
his administrative appeal of an adverse personnel action.” (Id. at p. 553.) The Fourth
District ultimately held: “Given both the lack of any provision in the [County of San
Bernardino] Personnel Rules that deprives the [San Bernardino Civil Service
Commission] of jurisdiction over the properly initiated administrative appeal of an
employee who later resigns or retires before the appeal is concluded, and the unfairness
of implying such a rule in the absence of a specific provision, we conclude that the
County here was required to hold an administrative hearing . . . . If a San Bernardino
County classified employee with regular status is, at the time of filing an administrative
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appeal, within the class of persons who may file an appeal, the County [of San
Bernardino] has failed to show any grounds in the [County of San Bernardino] Personnel
Rules to deny that person a hearing if he or she thereafter resigns or retires.” (Ibid.)
We believe the holding in Hughes is sound and applicable to this case. As in
Hughes, we have found nothing in the Santa Cruz County Code or the PRRSC that
deprives the Commission of jurisdiction over the properly initiated administrative appeal
of an employee who later resigns. Moreover, we also see unfairness in holding that
resignation divests the Commission of jurisdiction. Weisner fought for several years to
obtain reinstatement of his employment. When the Commission ultimately ruled that
Weisner was wrongfully terminated and ordered reinstatement, it refused to award
Weisner “back pay . . . credit towards seniority, accruals, county service or compensation
for other County benefits.” It seems inequitable to conclude that Weisner’s resignation
from his reinstated position—a position that Weisner describes as “inferior to the position
he once held”—moots his writ petition that seeks back pay. Weisner’s opening brief
describes further inequity in adopting a rule that resignation divests the Commission of
jurisdiction: “Had the tables been turned, and the Commission awarded Mr. Weisner
back-pay for the half-decade that he had been wrongfully fired and displaced from the
County, all Mr. Weisner would have had to do to make such an Order unappealable by
the County is to resign, even if the County had already filed a Writ of Mandate.” Thus,
like Hughes, we cannot conclude that resignation divests the Commission of jurisdiction
to grant relief to Weisner.
Finally, we distinguish the cases relied upon by the County and the Commission.
The County and the Commission cite Zuniga v. Los Angeles County Civil Service
Commission (2006) 137 Cal. App. 4th 1255 (Zuniga) and County of Los Angeles
Department of Health Services v. Civil Service Commission of the County of Los Angeles
(2009) 180 Cal. App. 4th 391 (Health Services) for the bright-line proposition that an
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employee’s resignation divests a civil service commission of jurisdiction. Such reliance
on Zuniga and Health Services is unavailing. Zuniga and Health Services “interpret the
Los Angeles County civil service rules to allow the [Los Angeles County Civil Service
Commission] to hear administrative appeals from former employees only in very narrow
circumstances.” (Hughes, supra, 244 Cal.App.4th at p. 548.) As Weisner points out,
Zuniga and Health Services “relied on the peculiarities of the completely different Los
Angeles County Civil Service Commission Rules” to conclude that an employee’s
resignation or retirement divests the Los Angeles County Civil Service Commission of
jurisdiction. Given that Zuniga and Health Services interpret the Los Angeles County
civil service rules—not the Santa Cruz County civil service rules and personnel rules that
are at issue here—Zuniga and Health Services are not dispositive in this case.
In sum, we conclude that even if Weisner resigned in July 2014, such resignation
did not divest the Commission of jurisdiction over his administrative appeal. The
superior court therefore erred in concluding that Weisner’s writ petition was moot, and
we must reverse the order denying the writ petition as moot.
DISPOSITION
The order denying Weisner’s writ petition as moot is reversed. The matter is
remanded to the superior court with directions to consider the merits of the writ petition.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
___________________________________
MÁRQUEZ, J.
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Trial Court: Santa Cruz County Superior Court
Superior Court No.: CV179070
Trial Judge: The Honorable Paul M. Marigonda
Attorneys for Plaintiff and Steven P. Cohn
Appellant James Weisner:
Sean Bothamley
Attorneys for Defendant and Thompson, Kontz & Brenner
Respondent Santa Cruz County Civil
Service Commission: Thornton Kontz
Attorneys for Real Party In Interest and Dana McRae,
Respondent County Counsel
Betsy Allen,
Assistant County Counsel
Weisner v.Santa Cruz County Civil Service Commission
11