CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION v. DEPARTMENT CORRECTIONS

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Court of Appeal, Second District, Division 3, California.

CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, et al., Defendants and Respondents, DEPARTMENT of CORRECTIONS, et al., Real Parties in Interest and Respondents.

Civ. No. B067917.

Decided: June 20, 1994

Gerrit Jan Buddingh', Benjamin C. Sybesma, West Sacramento, Christine Albertine, Rancho Cucamonga and Rudy E. Jansen, Schipper, Azusa, Carroll, Burdick & McDonough, Ronald Yank, Martin R. Gran & John R. Tennant, San Francisco, for plaintiff and appellant. Elise S. Rose, Chief Counsel and Elizabeth S. Stein, Staff Counsel, for defendants and respondents. Daniel E. Lungren, Atty. Gen., Henry G. Ullerich, Sr. Asst. Atty. Gen., Martin H. Milas, Supervising Deputy Atty. Gen., and Silvia M. Diaz, Deputy Atty. Gen., for real parties in interest.

Plaintiff and appellant the California Correctional Peace Officers Association on behalf of itself, its members and fair share fee payers (the Association) appeals a judgment denying its petition for writ of mandate against defendants and respondents the California State Personnel Board and Gloria Harmon, executive officer of the State Personnel Board (collectively referred to as the Board).

In this case of first impression, the essential question presented is whether the time in which the Board must render a decision under Government Code section 18671.1 is mandatory and jurisdictional or merely “directory.” 1 ,2

We conclude the time is mandatory and jurisdictional because the statute specifies a “consequence” for the Board's failure to act timely, namely, the employee is deemed to have exhausted all available administrative remedies, and enforcing the consequence furthers the statute's purpose of ensuring a timely disposition of the employee's administrative appeal.   The judgment therefore is reversed and the matter is remanded for further proceedings.

The trial court shall determine whether any employees waived the time limitations of the statute.   Any employees who did not waive time may bring a proceeding in mandamus directly against the employing agency to revoke the adverse action.  (Code Civ.Proc., § 1085.)   Those employees who waived the time limitations have the remedy of judicial review of the administrative decision by way of administrative mandamus.  (Code Civ.Proc., § 1094.5.)

FACTUAL AND PROCEDURAL BACKGROUND

This case originates from approximately 50 disciplinary actions brought by the Department of Corrections and the Department of Youth Authority (the Departments) against various of their employees, which adverse actions were appealed by the affected employees to the Board.   On May 16, 1991, the Association, on behalf of the employees in their administrative appeals, moved for dismissal of the adverse actions before the Board for the Board's failure to hold a timely hearing on the appeals or otherwise render a timely decision on the same.   At the time of the Association's motion, hearings had not been held in some of the cases and in others, hearings had been held but no decision had been rendered.

All the motions to dismiss were denied by the Board.

On August 20, 1991, the Association filed a petition for writ of mandamus in the superior court (Code Civ.Proc., § 1094.5) seeking dismissal of all pending disciplinary actions on the grounds the Board had “committed a clear abuse of discretion, as a matter of law, for failure to hold hearings and render decisions in accordance [with] the statutory mandates of ․ [sections] 19578 and 19583;  ․”   Maintaining that those provisions were mandatory and that the Board had failed to act timely, the Association contended the Board had lost jurisdiction to rule on the adverse actions.   The Association sought full back pay with interest, lost employee benefits and all rights pertaining to civil service status, such as vacation and sick leave credit, retirement credit and any seniority rights.

The Board filed an answer to the petition and supporting memorandum of points and authorities.   The Departments, as real parties in interest, also filed opposition papers.   The various opposition papers contended the relevant provisions relied on by the Association, while requiring the Board to act reasonably timely on the processing of adverse action appeals, were directory provisions only and did not divest the Board of jurisdiction to act upon the appeals, notwithstanding the delay in processing the cases.   Further, the delay was caused by a severe backlog created by inadequate staffing, increased filings, and the death of an administrative law judge in Southern California.   In addition, the Association had contributed to the delays in processing some of the hearings or had agreed to a procedure that inherently caused delay.   Also, as employers acting in the public's interest to ensure a qualified work force, the Departments stood to be prejudiced by any dismissal of the actions, and they lacked control over case processing once an appeal had been filed with the Board.

The Association filed its replication to the answers denying any waiver and reiterating its argument the pertinent provisions impose a mandatory duty upon the Board and its failure to act divested the Board of jurisdiction over the cases.

On October 4, 1991, the matter was heard.   The trial court requested supplemental briefing regarding the statutory interpretation of the various Government Code provisions at issue and the appropriate remedy to be afforded the Association.   The parties filed supplemental briefs.

On October 30, 1991, the parties again appeared before the trial court.   The trial court found the relevant language regarding the Board's obligation to hold hearings and render decisions within a reasonable time mandatory but directory and not jurisdictional.   The trial court requested further briefing regarding the disposition of the various cases remaining before the Board.

Following additional briefing, on December 9, 1991 the trial court directed the Board, within 60 days, to hold hearings in the two remaining cases which, as of that time, had yet to be heard.   As for 15 pending cases in which a hearing had been held but no decision rendered, the trial court ordered decisions to be rendered within 30 days.

Judgment was entered March 13, 1992.

The Association appealed.

CONTENTIONS

The Association contends, inter alia, the Board's failure to hold a hearing and/or render a decision within the mandatory time frames set forth in section 18671.1 results in loss of the Board's jurisdiction and that the remedy for the Board's noncompliance with the time limitations is dismissal of the disciplinary actions.

DISCUSSION

1. No merit to the Board's contention this appeal should be dismissed as moot.

 The Board asserts decisions have been issued in all of the disciplinary appeals that were the subject of the petition for writ of mandamus.   The decisions, once issued, became reviewable pursuant to Code of Civil Procedure section 1094.5.   Therefore, the question of delay in those cases became moot upon issuance of the final decisions.

The argument is without merit.   Assuming arguendo the time limitations of section 18671.1 are mandatory, the Board would have been without jurisdiction to render any decision beyond the time frame therein and any such decision would be infirm.

Also, the interpretation of section 18671.1 is of general public interest and there is a reasonable probability the same questions will be litigated again and appealed.  (California Ins. Guarantee Assn. v. Liemsakul (1987) 193 Cal.App.3d 433, 436–437, fn. 1, 238 Cal.Rptr. 346.)

Accordingly, we pass upon the issues raised herein.

2. Section 18671.1 is mandatory and jurisdictional because it contains a consequence for noncompliance with its time limitations in furtherance of the purpose of the statute.

a. Principles of statutory construction.

As indicated, section 18671.1 states in relevant part:  “the period from the filing of the petition to the decision of the board shall not exceed six months or 90 days from the time of the submission, whichever time period is less, and except that the board may extend the six-month period up to 45 additional days.”  (Italics added.)

 It is a well-settled principle of statutory construction that the word “ ‘shall’ ” is ordinarily construed as mandatory, while “ ‘may’ ” is generally construed as permissive, “particularly when both terms are used in the same statute.”  (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443, 261 Cal.Rptr. 574, 777 P.2d 610.)   Thus, the usual canons of interpretation would appear to compel the conclusion section 18671.1 is mandatory and therefore jurisdictional, and not merely directory.

However, in this context the use of the word “shall” is not dispositive.

There is no simple mechanical test for determining whether a provision is to be given directory or mandatory effect.  (Morris v. County of Marin (1977) 18 Cal.3d 901, 909–910, 136 Cal.Rptr. 251, 559 P.2d 606.)  “ ‘In order to determine whether a particular statutory provision ․ is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent.   In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time.  [Citation.]  When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]․’  [Fn. omitted.]”  (Id., at p. 910, 136 Cal.Rptr. 251, 559 P.2d 606.)

In Edwards v. Steele (1979) 25 Cal.3d 406, 410, 158 Cal.Rptr. 662, 599 P.2d 1365, which specifically involved the issue of whether a time limitation was mandatory and jurisdictional or merely directory, our Supreme Court stated:  “We have held that, generally, requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional, unless a contrary intent is clearly expressed.   [Citations.]  In ascertaining probable intent, California courts have expressed a variety of tests.   In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment.  [Citations.]  Other cases have suggested that a time limitation is deemed merely directory ‘unless a consequence or penalty is provided for failure to do the act within the time commanded.’  [Citations.]”

b. Mandatory and jurisdictional aspect of the statute.

 Section 18671.1 is mandatory and jurisdictional because it specifies a consequence for noncompliance, which consequence furthers the purpose of the statute.

The same result is reached by applying either of the general tests found in Edwards, supra, 25 Cal.3d at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365, to section 18671.1, compelling the conclusion the time specified in the statute was intended to be mandatory and jurisdictional rather than merely directory.

(1) Specific language as to consequence for noncompliance is controlling.

Section 18671.1 contains a significant “ ‘consequence or penalty’ ” for noncompliance with its time limitations.  (Edwards, supra, 25 Cal.3d at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365.)   The statute provides in relevant part:  “The provisions relating to the six-month or the 90–day periods for a decision may be waived by the employee but if not so waived, a failure to render a timely decision is an exhaustion of all available administrative remedies.”  (§ 18671.1.)

The Board's contention the time limitations of section 18671.1 merely are directory fails to give due consideration to this consequence specified in the statute.   The Board argues an employee's remedy for administrative delay is a court order mandating the Board to hold hearings and to issue decisions in the appeals.  (Code Civ.Proc., § 1085.)   This interpretation ignores the statute's consequence, namely, that “a failure to render a timely decision is an exhaustion of all available administrative remedies.”  (§ 18671.1.)   If an employee aggrieved by the Board's delay is limited to seeking a writ of mandate directing the Board to perform its statutory duty, the consequence never would arise—in no case would the Board's noncompliance with the time limitations of section 18671.1 be deemed an exhaustion of the employee's administrative remedies.

Because section 18671.1 contains a consequence, it stands in marked contrast to the municipal ordinance which the Supreme Court in Edwards v. Steele, supra, 25 Cal.3d at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365, construed to be nonjurisdictional.   That ordinance provided:  “ ‘On the filing of any appeal, the Board of Permit Appeals ․ shall fix the time and place of hearing, which shall be not less than five (5) [days] nor more than fifteen (15) days after the filing of said appeal, and shall act thereon not later than forty (40) days after such filing.’ ”  (Id., at p. 409, 158 Cal.Rptr. 662, 599 P.2d 1365, italics added.)   The ordinance lacked any “ ‘consequence or penalty’ ” for noncompliance with its time limitations.  (Id., at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365.)   Therefore, notwithstanding the ordinance's repeated use of the word “ ‘shall,’ ” the time limitations therein were deemed directory rather than mandatory.  (Id., at pp. 409–410, 158 Cal.Rptr. 662, 599 P.2d 1365.)

For similar reasons, the Board errs in relying on Shaball v. State Compensation Ins. Auth. (Colo.App.1990) 799 P.2d 399, an out-of-state decision which it contends is “on all fours” with the instant case.   There, the employee argued the Colorado State Personnel Board lost jurisdiction when the hearing officer failed to issue a decision within the statutory 45–day period.  (Id., at p. 402.)   The statute stated in pertinent part:  “ ‘The board or a hearing officer for the board shall issue its written decision within forty-five calendar days after the conclusion of the hearing and the submission of briefs.’ ”  (Ibid., original italics omitted, new italics added.)  Shaball recognized “[t]he crucial difference between statutes considered to be directory and those deemed mandatory arises from the consequence of noncompliance.”  (Ibid., italics added.)   Therefore, the statute, which did not contain any “negative language denying the exercise of authority beyond the time period prescribed for action,” was merely directory.  (Ibid.)

In sum, unlike the statutes scrutinized in Edwards and Shaball, section 18671.1 specifies a consequence for noncompliance with its time limitations.

(2) The consequence furthers the purpose of the statute.

As indicated, another test for ascertaining whether a particular time limitation is mandatory or directory focuses on whether the consequence would promote or defeat the purpose of the enactment.  (Edwards v. Steele, supra, 25 Cal.3d at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365.)

The probable intent underlying section 18671.1 appears to be the same as the purpose behind the time limits considered in Edwards, namely, to assure the aggrieved party a reasonably timely hearing of, and decision on, his or her administrative appeal.  (Edwards v. Steele, supra, 25 Cal.3d at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365.)   Once the aggrieved employee is deemed to have exhausted the administrative remedy at the expiration of the statutory period, the employee becomes free to proceed to the next stage of the proceedings.   Consequently, to hold the time limitations of section 18671.1 are mandatory and jurisdictional promotes the purpose of the statute.

In contrast, in Edwards, a holding that the time provisions were mandatory and jurisdictional would have “defeat[ed]” the purpose of the ordinance “by depriving the aggrieved party of his appeal through no fault of his own.”   (Edwards v. Steele, supra, 25 Cal.3d at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365.)

Similarly, in Chrysler Corp. v. New Motor Vehicle Bd. (1993) 12 Cal.App.4th 621, 15 Cal.Rptr.2d 771, a conclusion that the time provisions were mandatory and jurisdictional would have frustrated the purpose of the statute.   Therefore, even though the statute specified a consequence for noncompliance, it was deemed to be merely directory.  (Id., at pp. 629, 631, 15 Cal.Rptr.2d 771.)   The statute in issue there, Vehicle Code section 3067, provides “ ‘[i]f the [New Motor Vehicle Board] fails to act within 30 days after such hearing, ․ then the proposed action shall be deemed to be approved.’ ”   (Id., at p. 623, 15 Cal.Rptr.2d 771.)  Chrysler Corp. treated the statute as directory and not jurisdictional because a jurisdictional rule would have resulted in the automatic entry of a decision unfavorable to the protesting parties by virtue of the “deemed ․ approved” provision of Vehicle Code section 3067.  (Chrysler Corp., supra, 12 Cal.App.4th at pp. 623, 630–631, 15 Cal.Rptr.2d 771.)

However, in the instant case, the Board's failure to act timely is not deemed to result in a decision adverse to the employees—it merely is deemed to result in an exhaustion of the employee's administrative remedies.   Therefore, unlike Edwards or Chrysler Corp., treating the instant time limitation as jurisdictional does not result in a denial or the unfair entry of an adverse decision on the merits.   Instead, construing section 18671.1 to be jurisdictional furthers the statute's aim of assuring the employee a timely disposition of his or her administrative appeal.

Further, we note a time provision has been held mandatory and jurisdictional to further the purpose of the statute, even though the statute did not specify a consequence or penalty for noncompliance.   In Garcia v. Los Angeles County Bd. of Education (1981) 123 Cal.App.3d 807, 809–810, 177 Cal.Rptr. 29, it was contended the school board lacked jurisdiction to expel a student as the hearing had not been held within the time period required by former Education Code section 48914.  (See now Ed.Code, § 48918.)  Garcia held the time provisions in the statute were mandatory and jurisdictional, although the statute lacked any consequence or penalty for the failure to act within the designated time.  (Id., at pp. 811, 813, 177 Cal.Rptr. 29.)

Garcia reasoned the time provision was a matter of substance and the intent of the legislation was to provide a student with the protection of due process when faced with the possible forfeiture of the “ ‘legitimate entitlement to a public education as a property interest.’  [Citation.]”  (Garcia, supra, 123 Cal.App.3d at pp. 811–812, 177 Cal.Rptr. 29.)   The statute was “obviously an attempt to define the period of delay during which it is reasonable to summarily deprive the student of his fundamental right to public education.   The consequence of holding the time limit to be mandatory would, therefore, promote the purpose of the enactment.”  (Id., at p. 812, 177 Cal.Rptr. 29.)

In the context of this case, “[t]he California statutory scheme regulating civil service employment confers upon an individual who achieves the status of ‘permanent employee’ a property interest in the continuation of his [or her] employment which is protected by due process.”  (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206, 124 Cal.Rptr. 14, 539 P.2d 774.)   Therefore, treating the time provisions of section 18671.1 as mandatory and jurisdictional is appropriate because it furthers the purpose of the statute to limit delay in disciplinary proceedings.

In sum, because section 18671.1 contains a consequence for noncompliance, it differs from the provisions which were construed in Edwards, supra, 25 Cal.3d at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365, and Shaball, supra, 799 P.2d at p. 402.   Also, because enforcing section 18671.1's consequence for noncompliance with its time limitation furthers the purpose of the statute, section 18671.1 is unlike the provisions considered in Edwards, supra, 25 Cal.3d at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365, and Chrysler Corp., supra, 12 Cal.App.4th at pp. 630–631, 15 Cal.Rptr.2d 771.   Instead, section 18671.1 is akin to other statutes or rules which contain negative language denying the exercise of authority beyond the time prescribed for action.3

We conclude section 18671.1 is mandatory and hence jurisdictional.

3. Remedy for Board's noncompliance with section 18671.1 is mandamus action by aggrieved employees against the employing departments.

 The Association contends the remedy for the Board's noncompliance with section 18671.1 is dismissal of the adverse disciplinary actions.

The Board and the Departments argue the employees' remedy is limited to securing an order from the superior court compelling the Board to hold a hearing or issue a decision within a time certain.

For the reasons discussed below, we conclude as to those employees who did not waive the statute's time limitations, the proper remedy is a mandamus action by the employee against the employing department to set aside the adverse action.

a. Because section 18671.1 is jurisdictional, Board cannot be mandated to decide these cases after the expiration of the statutory period.

Code of Civil Procedure section 1085 provides, inter alia, a writ of mandamus may be issued by any court to any “inferior tribunal, ․ board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station[.]”  There is no merit to the Board's contention the employees' remedy lies in seeking such a writ to compel the Board to hear and decide the cases pending before it.

As explained, the time limitations of section 18671.1 are jurisdictional.   Therefore, once the statutory period expires and there has been no waiver of time by the employee, the Board loses jurisdiction to act on an administrative appeal.   Consequently, the superior court cannot direct the Board to consider an administrative appeal beyond the time periods specified in section 18671.1.

Also, requiring an employee to seek a writ directing the Board to rule on his or her administrative appeal, notwithstanding the expiration of the statutory period, flies in the face of section 18671.1, which states at the expiration of the statutory period the employee is deemed to have exhausted the administrative remedy.

b. Administrative mandamus review under Code of Civil Procedure section 1094.5 likewise is inapplicable.

At the expiration of the statutory period without the issuance of a decision by the Board, the employee is deemed to have exhausted “all available administrative remedies” (§ 18671.1) and the Board is without jurisdiction to take any further action on an administrative appeal.   Arguably, at that juncture the employee may advance to the next stage, namely, judicial review of the administrative decision by way of a petition for writ of administrative mandate.  (Code Civ.Proc., § 1094.5.)   Here, however, the cases were not in a posture to be reviewed by the superior court on a petition for writ of administrative mandate.

In some of the cases, no evidentiary hearing was held before the Board within the statutory period.   Therefore, no administrative record existed to be scrutinized by the trial court on a petition for writ of administrative mandate.  (Code Civ.Proc., § 1094.5, subd. (c);  Skelly v. State Personnel Bd., supra, 15 Cal.3d at pp. 204–205, 217, fn. 31, 124 Cal.Rptr. 14, 539 P.2d 774.) 4

In other cases, while an evidentiary hearing was held before the Board, no decision was rendered within the statutory period.   Thus, in those cases there was no Board decision to be attacked by the employee and to be reviewed by the superior court.  (Code Civ.Proc., § 1094.5, subd. (a);  Skelly v. State Personnel Bd., supra, 15 Cal.3d at pp. 204–205, 124 Cal.Rptr. 14, 539 P.2d 774.)

Consequently, due to the Board's failure to hold timely hearings or to render timely decisions in the instant administrative appeals, the cases were not in a position to be reviewed by the superior court on a petition for writ of administrative mandamus.  (Code Civ.Proc., § 1094.5.)

c. Appropriate remedy is a mandamus action by the employee directly against the employing department.

As an alternative, the Board proposes allowing an employee to file a petition for writ of mandate in the superior court against the employing department to compel the employer to revoke the disciplinary action on the ground the taking of the disciplinary action constituted an abuse of discretion.   The suggestion has merit.

Code of Civil Procedure section 1085 states, inter alia, a writ of mandate “may be issued ․ to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.”

Thus, in Hollon v. Pierce (1967) 257 Cal.App.2d 468, 64 Cal.Rptr. 808, the employee brought a proceeding in mandamus against the employer after the employee's administrative complaint languished without resolution.   Initially, the employee filed an administrative complaint alleging an unfair unemployment practice.  (Id., at p. 475, 64 Cal.Rptr. 808.)   The State Fair Employment Practice Commission commenced proceedings but failed either to reject the complaint or to render a final order and the commission proceeding “c[a]me to a complete halt.”  (Id., at p. 476, 64 Cal.Rptr. 808.)   The employee then brought a proceeding in mandamus to compel reinstatement by his employer, a high school district.  (Id., at p. 471, 64 Cal.Rptr. 808.)   The superior court held a hearing, took evidence, made findings and denied the petition.  (Ibid.)  A threshold issue presented on appeal was whether the employee adequately complied with the rule of exhaustion of administrative remedies.  (Id., at p. 475, 64 Cal.Rptr. 808.)  Hollon stated:  “Theoretically, the complaining employee might have brought a mandate proceeding with the objective of compelling commission action.”  (Id., at p. 476, 64 Cal.Rptr. 808.)   However, the employee was not required to do so and his pursuit of reinstatement by way of a mandamus proceeding in the superior court was procedurally proper.  (Ibid.)

In view of the above, we conclude that upon the expiration of the statutory period under section 18671.1, at which point an employee is deemed to have exhausted all available administrative remedies, the employee is entitled to seek judicial relief by way of a proceeding in mandamus to set aside the adverse disciplinary action.  (Code Civ.Proc., § 1085.)

Given the lack of an administrative evidentiary record or any Board decision to be reviewed by the superior court, as in Hollon, the trial court will have to proceed de novo and receive evidence to determine whether the employer had legal cause to discipline the employee.

 We observe that while in disciplinary administrative proceedings the burden of proving the charges rests on the appointing power making the charges (Steen v. City of Los Angeles (1948) 31 Cal.2d 542, 547, 190 P.2d 937;  Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 113, 179 Cal.Rptr. 351), on mandamus the burden is upon the petitioner, here the employee, to set aside the adverse action.  (Arwine v. Board of Med. Examiners (1907) 151 Cal. 499, 503, 91 P. 319;  Campbell v. Board of Dental Examiners (1971) 17 Cal.App.3d 872, 876, 95 Cal.Rptr. 351.)   Consequently, the employee will have to elect between waiving time and awaiting action by the Board, or proceeding by way of mandamus and facing the accompanying burden.

This judicial avenue following the expiration of the statutory period under section 18671.1 does not divest the Board of its constitutional authority to review disciplinary actions.  (Cal. Const., art. VII, § 3.)   The Board is vested with authority to review disciplinary actions only during the period it retains jurisdiction.   Because an employee may seek relief by way of a proceeding in mandamus only after the Board loses jurisdiction, this remedy does not divest the Board of its constitutional role.

d. No merit to Association's contention the remedy for Board's noncompliance with section 18671.1 is dismissal.

Under section 18671.1, the effect of the Board's failure to act timely is that an employee is deemed to have exhausted all available administrative remedies.   Generally, once a litigant has exhausted the administrative remedy, resort may be had to a court of law.   Consequently, as explained above, once the instant administrative remedy is exhausted, the employee is entitled to bring a proceeding in mandamus directly against the employing department.   Because section 18671.1 specifies Board delay merely results in an exhaustion by the employee of administrative remedies, there is nothing in the language of section 18671.1 to compel the conclusion the remedy for the Board's delay is dismissal of the adverse disciplinary action.   Further, the Association has not proffered any legislative history to support its contention the Legislature contemplated dismissal rather than judicial proceedings once the administrative remedy before the Board has been exhausted.

It is unnecessary to address any remaining arguments of the parties.

CONCLUSION

The Departments' and the Board's interpretation the time limitations of section 18671.1 merely are directory would nullify the language of the statute that the failure to render a timely decision is deemed an exhaustion by the employee of all available administrative remedies.   If an employee's remedy for the Board's noncompliance were limited to seeking a writ under Code of Civil Procedure section 1085 to compel the Board to act on the employee's administrative appeal, a situation where the employee is deemed to have exhausted his or her administrative remedies never would arise.   The consequence of the Board's failure to comply with section 18671.1 is that the employee is deemed to have exhausted all available administrative remedies and may seek judicial relief by way of a proceeding in mandamus directly against the employing department.

 While we recognize inadequate staffing and funding may have made the Board's task more difficult to accomplish, section 18671.1 compels the Board to proceed timely in order to protect the affected employees' property interest in their employment.  (Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 206, 124 Cal.Rptr. 14, 539 P.2d 774.)   Financial constraints cannot be deemed an excuse for failure to comply with mandatory duties imposed by law.   (Robbins v. Superior Court (1985) 38 Cal.3d 199, 217, 211 Cal.Rptr. 398, 695 P.2d 695;  Mooney v. Pickett (1971) 4 Cal.3d 669, 680, 94 Cal.Rptr. 279, 483 P.2d 1231.)   If the requirements of section 18671.1 cannot be met with the Board's limited resources, the Board must address its concerns to those with the authority to set policy, not to the courts by way of excusing violations of mandatory requirements.   Further, while the Departments are not responsible for the inordinate delay by the Board, neither are the affected employees.

If our interpretation is not what the Legislature intended in the enactment of section 18671.1, it may amend the statute to delete the provision that at the expiration of the statutory period, an employee is deemed to have exhausted all available administrative remedies and instead, provide the remedy for delay by the Board is a writ of mandate directing the Board to proceed timely.

DISPOSITION

The judgment is reversed and the matter is remanded for further proceedings.   Because section 18671.1 states its time provisions may be waived by the employee, the trial court is directed to determine whether any employees waived the time limitations of the statute.

In those cases where there was no waiver by the employee, any decision by the Board beyond the statutory period is ineffective due to a lack of jurisdiction.   Those employees' remedy is a proceeding in mandamus directly against the employing department, pursuant to Code of Civil Procedure section 1085.

As to any employees who waived the statutory time limitations, the Board had jurisdiction to proceed and those employees' remedy is under Code of Civil Procedure section 1094.5.

The Association to recover costs on appeal.

FOOTNOTES

1.   All further statutory references are to the Government Code, unless otherwise specified.

2.   Section 18671.1 states:  “Whenever a hearing or investigation is conducted by the board or its authorized representative in regard to an appeal by an employee, the hearing or investigation shall be commenced within a reasonable time after the filing of the petition and the board shall render its decision within a reasonable time after the conclusion of the hearing or investigation, except that the period from the filing of the petition to the decision of the board shall not exceed six months or 90 days from the time of the submission, whichever time period is less, and except that the board may extend the six-month period up to 45 additional days.   In the event of an extension, the board shall publish substantial reasons for the need for the extension in its calendar prior to the conclusion of the six-month period.   Submission occurs on the last day of the hearing, if no other documents are to be filed, or on the last day designated for the filing of briefs or other evidence necessary to complete the record.   The provisions relating to the six-month or the 90–day periods for a decision may be waived by the employee but if not so waived, a failure to render a timely decision is an exhaustion of all available administrative remedies.   In cases involving complaints of discrimination, harassment, or retaliation, where the executive officer renders a decision, the decision shall be rendered within four months of the filing of the appeal.”  (Italics added.)Consistent therewith, section 19578 provides in relevant part:  “[W]henever an answer is filed to an adverse action, the board or its authorized representative shall within a reasonable time hold a hearing.”Also, section 19583 states in pertinent part:  “The board shall render a decision within a reasonable time after the hearing or investigation.”

3.   For example, section 911.6, within the Government Tort Claims Act (§ 810, et seq.), provides at subdivision (c):  “If the board [of the governmental entity] fails or refuses to act on an application [to present a late claim] within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day․”Under Code of Civil Procedure section 629, a trial court may render judgment notwithstanding the verdict “before the expiration of its power to rule on a motion for a new trial[.]”Code of Civil Procedure section 630, pertaining to a motion for directed verdict, similarly states at subdivision (f), “the power of the court to act ․ shall expire 30 days after the day upon which the jury was discharged, and if judgment has not been ordered within that time the effect shall be the denial of any motion for judgment without further order of the court.”Likewise, under Code of Civil Procedure section 660, if the trial court fails to rule on a motion for new trial before the expiration of the specified time within which the trial court may rule on the motion, “the effect shall be a denial of the motion without further order of the court.”Also, California Rules of Court, rule 24(a), states “[w]hen a decision of a reviewing court is final as to that court, it is not thereafter subject to modification or rehearing by that court, ․”

4.   The disciplinary process commences with the service of a written notice of adverse action by the appointing power, here the Department of Corrections or the Department of Youth Authority, upon the employee.  (§ 19574.)   The notice must include:  (1) a statement of the nature of the adverse action;  (2) the effective date of the action;  (3) a statement of the reasons therefor;  (4) a statement advising the employee of the right to respond to the notice orally or in writing to the appointing power;  and (5) a statement advising the employee of the time within which an appeal must be filed.  (§ 19574;  tit. 2 Cal.Code Regs., § 52.3.)If the employee invokes the right to respond, an informal “Skelly ” hearing is conducted by the appointing power.  (Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774;  see Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 583, fn. 4, 257 Cal.Rptr. 427.)   The parties agree as to the nature of the Skelly hearing.   It is more in the nature of a meeting, as no testimony or other evidence is taken and the meeting generally is not recorded.   This is the employee's first opportunity to refute the charges.   If the employee is dissatisfied with the outcome of the Skelly hearing, the employee may pursue an administrative appeal before the Board by filing a timely written answer to the notice of adverse action.  (§ 19575.)   The answer is deemed to be a request for a formal evidentiary hearing.  (§§ 19575, 19578.)

KLEIN, Presiding Justice.

CROSKEY and KITCHING, JJ., concur.