GONZALEZ v. California Department of Education, Real Party in Interest and Appellant.

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Court of Appeal, Third District, California.

Arnoldo GONZALEZ, Plaintiff and Respondent, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant, California Department of Education, Real Party in Interest and Appellant.

No. C016541.

Decided: January 19, 1995

Joseph R. Symkowick, Gen. Counsel, and JoAnne Lowe, Deputy Gen. Counsel, for appellant and real party in interest. Christopher W. Waddell, K. William Curtis, Nalda Keller, and Dolly A. Jones, Sacramento, amicus curiae, for appellant and real party in interest. No appearance, for defendant. Barbara E. Brecher, Sacramento, for plaintiff and respondent.

This appeal concerns the obligation of a state agency to make “reasonable accommodation” to the limitations of an employee caused by that employee's alcoholism.   The real party in interest, California Department of Education (CDE), terminated plaintiff's employment because of misconduct related to his alcoholism.   Plaintiff's termination was upheld by defendant State Personnel Board (Board).

CDE is required by federal and state law to make reasonable accommodation for known physical and mental limitations of its employees who have a disability.   Assuming alcoholism is a “disability” under the applicable law, the issue in this case narrows to whether, as a reasonable accommodation, CDE must provide an employee the opportunity to receive “in-patient” medical treatment before terminating the employee for misconduct related to alcoholism.

The trial court concluded alcoholism is a disability under state law and that state law requires as a reasonable accommodation to an employee's alcoholism that he be given an opportunity to receive in-patient treatment for his disability before he may be discharged.   Since CDE had made no such accommodation, the trial court dismissed several charges of misconduct which, it found, were related to plaintiff's alcoholism, and directed the Board to reconsider plaintiff's termination in light of other charged misconduct, but only if it first finds the other misconduct was not caused by plaintiff's alcoholism.   CDE appeals from the judgment.1

We disagree that state law mandates the degree of accommodation found by the trial court to be required.   In our view, the Board's finding that CDE made reasonable accommodation to plaintiff's alcoholism is consistent with state law.   However, because federal law requires a greater degree of accommodation than was afforded plaintiff by CDE, and the Board failed to find whether plaintiff is entitled to the protection of federal law in the particular circumstances of this case, we shall reverse with directions to the trial court to issue a writ of mandate ordering the Board to reconsider plaintiff's termination under federal law.

I

We have not been provided a transcript of the administrative hearing, but the relevant facts are recited in the findings of the administrative law judge and are undisputed.   Plaintiff was employed by CDE as a bilingual/migrant education consultant, responsible for developing and promoting services in the areas of bilingual and migrant education, and consulting thereon with local administrators, teachers, and others.   Plaintiff's work required that he travel throughout the state on a regular basis.

On May 24, 1988, plaintiff was served a notice of adverse action imposing a 30–day suspension from work.   The notice stated as the basis for this discipline that between 1985 and 1988, there had been several episodes when plaintiff reported to work intoxicated, was unable to perform his duties, was absent without leave, and used abusive language on the job.   CDE informed plaintiff it considered these incidents related to his long-term alcohol abuse and recommended he seek treatment.   Plaintiff was warned continued misconduct would result in termination.

Plaintiff appealed his suspension and, on August 31, 1988, reached a settlement with CDE which reduced the suspension to seven days on the condition plaintiff “enroll in and complete an alcohol abuse treatment program.”

Plaintiff attended an out-patient alcohol abuse treatment program at Kaiser Hospital on July 28, August 17, and November 10, 1988.   On November 10, plaintiff began attending weekly alcohol group meetings.   Nevertheless, plaintiff continued to abuse alcohol and did not submit proof to CDE that he completed Kaiser's out-patient treatment program.

On February 25, 1989, the Department of Motor Vehicles suspended plaintiff's driver's license due to alcohol-induced lapses of consciousness.   On March 6, plaintiff checked out a state vehicle in order to drive to San Benito County the following day to attend a migrant education compliance review.   Before leaving Sacramento, plaintiff was notified by mail that his driver's license had been suspended.   He did not so inform CDE.

En route to San Benito County, plaintiff began experiencing what was later diagnosed as an “alcoholic hallucinosis episode” during which he believed, falsely, that two other persons were with him in the state vehicle and were arguing.   Plaintiff abandoned the vehicle on Interstate 5 in Fresno County, leaving the keys in the ignition.   The next morning, March 7, he was picked up by the Fresno County Sheriff's Department and taken to Valley Medical Center where he was evaluated and released.   The vehicle was later discovered and returned to Sacramento at a cost to CDE of $623.43.

Plaintiff did not notify CDE of his whereabouts on March 7 and, it goes without saying, did not attend the compliance review in San Benito County that day.   Plaintiff returned to Sacramento on March 8 and reported to work.   He was immediately placed on administrative leave.   Plaintiff was directed to call his office each morning and afternoon while on leave and to prepare and deliver to his superiors by March 13 a written report of the incident.   Plaintiff failed to call in as directed and he did not deliver the required incident report until two days after the March 13 deadline.

Plaintiff was terminated on March 29, 1989.   At that time, he still did not acknowledge his alcoholism.   A notice of adverse action listed the following misconduct as the basis for termination:  (1) driving a state vehicle without a valid license;  (2) abandoning a state vehicle and failing to give notice;  (3) failing to attend a scheduled compliance review;  (4) being absent without leave and failing to notify CDE on March 7 and 8;  (5) failing to call in on March 9, 10, 13 and 14;  and (6) failing to comply with the earlier settlement agreement by attending outpatient treatment.

Plaintiff appealed his termination to the Board.   An administrative law judge (ALJ) took evidence and rendered a proposed decision finding true the first five of the six grounds for termination set forth in the notice of adverse action.   As to the sixth ground, failure to comply with the settlement agreement, no finding was made as CDE had indicated it did not intend to rely upon that ground.   The ALJ found plaintiff's alcohol abuse directly responsible for his abandonment of the vehicle, but only indirectly responsible for the other charged misconduct.   The ALJ also found CDE made “serious and sustained attempts to reasonably accommodate” plaintiff's alcoholism but plaintiff resisted all such efforts.   Finally, the ALJ concluded “[t]he circumstances surrounding the misconduct and the likelihood of recurrence were of such a nature as to support dismissal.”   The Board adopted the ALJ's proposed decision.

Plaintiff commenced the underlying administrative mandamus proceeding pursuant to Code of Civil Procedure section 1094.5.   The petition alleged the findings of the Board are not supported by the record, the decision upholding termination is not supported by the findings, and the penalty of dismissal is excessive.   Plaintiff further complained the Board did not proceed in the manner provided by law, alleging it upheld his termination despite CDE's failure to afford reasonable accommodation as required by both state and federal law.

The trial court issued a peremptory writ of mandamus.   The court found inapplicable the federal Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.;  [federal Rehabilitation Act] ).   Although the federal Rehabilitation Act requires reasonable accommodation for alcoholism, it expressly excepts from that requirement alcoholic employees whose current use of alcohol renders them unable to perform the duties of the job or who pose a threat to property or the safety of others.   The trial court made a finding that plaintiff fell within that exception to the federal law.

The trial court concluded alcoholism is a disability under state law to which the employer must make reasonable accommodation.   The court rejected the argument of CDE that state law contains an exception similar to that in the federal Rehabilitation Act.   The trial court adapted to state law certain specific criteria of reasonable accommodation to alcoholism which have been judicially engrafted upon the federal Rehabilitation Act.   Applying those criteria, the trial court held CDE was required to afford plaintiff an opportunity for in-patient treatment before it could lawfully terminate him for alcoholism related misconduct unless CDE could demonstrate such accommodation would present an undue burden.   The trial court found plaintiff's abandonment of the vehicle and failure to notify CDE of his whereabouts were misconduct related to plaintiff's alcoholism and dismissed these charges.   The Board was directed to determine whether facilitating in-patient treatment would pose an undue burden to CDE and, if not, to determine the appropriate penalty for any misconduct not related to plaintiff's alcoholism.

In deciding this appeal, it is necessary to resolve only one of CDE's contentions, i.e., that it made reasonable accommodation under state law to plaintiff's alcoholism.

II

 Review of disciplinary action by an appointing authority is directed in the first instance to the Board.   The Board acts as an adjudicatory body, weighing the evidence to determine the facts and exercising discretion to ascertain whether the charges sustained are sufficient for the discipline imposed.  (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 827, 284 Cal.Rptr. 839.)   Because the Board is an agency of constitutional authority, its findings are reviewable by a trial court in an administrative mandamus proceeding under the substantial evidence test.  (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1125, 278 Cal.Rptr. 346, 805 P.2d 300.)   “The record must be viewed in a light most favorable to the decision of the Board and its factual findings must be upheld if they are supported by substantial evidence.   In addition, the Board's exercise of discretion must be upheld unless it abuses that discretion.”  (Department of Parks & Recreation v. State Personnel Bd., supra, 233 Cal.App.3d at p. 823, 284 Cal.Rptr. 839, citations omitted.)   Our review is essentially identical to that of the trial court.  (Bixby v. Pierno (1971) 4 Cal.3d 130, 149, 93 Cal.Rptr. 234, 481 P.2d 242.)

 The Board reached two general conclusions from the undisputed facts.   Applying state law, the Board concluded:  (1) CDE made reasonable accommodation for plaintiff's alcoholism, and (2) the extent of misconduct was sufficient to justify termination.   Although the second conclusion is clearly a matter within the Board's discretion, the first is a mixed question of law and fact turning on the nature of CDE's legal obligation to make reasonable accommodation under state law.

III

In order to furnish needed context to the discussion of CDE's state law claim, we commence with a discussion of federal law and plaintiff's claim thereunder.   The federal Rehabilitation Act prohibits exclusion of any “otherwise qualified individual with a disability” from participation in any state program receiving federal financial assistance.   Section 794, subdivision (a) of 29 United States Code reads in relevant part:  “No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance․”

It is undisputed CDE receives federal financial assistance for the program in which plaintiff was employed.   Accordingly, CDE is required by the federal law to make “reasonable accommodation to the known physical and mental limitations” of its employees “unless [it] can demonstrate that the accommodation would impose an undue hardship on the operation of its program.”  (29 C.F.R. § 1613.704(a).)

It has been held, and the parties do not dispute, that alcoholism is a disability within the meaning of the federal Rehabilitation Act.  (Rodgers v. Lehman (4th Cir.1989) 869 F.2d 253, 258.)   In Rodgers v. Lehman, supra, the Fourth Circuit Court of Appeals adopted criteria for the reasonable accommodation of alcoholism under the federal Rehabilitation Act which include informing the employee of available services, warning of the possibility of discipline, and providing an opportunity for out-patient and, of particular relevance to this case, in-patient treatment.2  These criteria have been adopted by the Ninth Circuit in Fuller v. Frank (9th Cir.1990) 916 F.2d 558, 561–562.

Expressly excepted from the definition of “individual with a disability” under the federal Rehabilitation Act, and hence from the requirement of reasonable accommodation, is “any individual who is an alcoholic whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others.”  (29 U.S.C. § 706(8)(C)(v).)

The trial court concluded plaintiff came within this exception and, therefore, the federal Rehabilitation Act is inapplicable to this case.   The court explained:  “There is substantial evidence that by virtue of his alcoholism, [plaintiff] was unable to perform the duties of his job or constituted a direct threat to property or the safety of others.”   However, the Board made no finding as to whether plaintiff's current alcohol use prevented him from performing the duties of his job or posed a threat to property or the safety of others.

 The trial court reviews the findings of the Board (Coleman v. Department of Personnel Administration, supra, 52 Cal.3d at p. 1125–1126, 278 Cal.Rptr. 346, 805 P.2d 300).   To the extent resolution of this matter turns on the application of the federal Rehabilitation Act, the determination of whether plaintiff falls within the indicated exception is a question of fact to be decided in the first instance by the Board.   Rather than make the finding itself, the trial court should have ordered the Board to reconsider the matter and determine the applicability of federal law.  (Code Civ.Proc., § 1094.5, subd. (f).)

In its decision, the Board referred to both federal and state statutory requirements for reasonable accommodation.   Therefore, we assume plaintiff raised both federal and state grounds for relief in the administrative proceeding.3  The Board analyzed the case and rendered its findings and decision under state law only.   The trial court found plaintiff came within an exception to the federal Rehabilitation Act, but ruled for plaintiff on state law.   CDE's appeal claims error with respect to the ruling applying state law.   Plaintiff did not appeal.

 Nevertheless, on appeal, plaintiff may raise a claim of error in order to establish that the trial court's judgment ordering the Board to reconsider was a correct disposition even though done for the wrong reasons.  Code of Civil Procedure section 906 allows a non-appealing respondent to request a reviewing court to consider any rulings involving the merits or affecting the judgment or the rights of a party “for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal or modification of the judgment from which the appeal is taken.”   Plaintiff urges us to conclude that the trial court erroneously found that he came within the exception to the federal Rehabilitation Act.   Thus, even if the trial court erred in ruling state law required CDE to facilitate in-patient treatment to satisfy its reasonable accommodation obligation, CDE would not be prejudiced by that ruling if the trial court also erred in concluding plaintiff was excepted from the federal reasonable accommodation requirements, which unarguably do require in-patient treatment.   In respect to the latter issue, a correct ruling by the trial court would also require it to order the Board to reconsider its decision.

 We shall hold the trial court erred both in the application of state law and in concluding plaintiff was excepted from the protection of the federal Rehabilitation Act.   The ruling on the federal issue was error because the question is one which the Board must be given an opportunity to determine in the first instance.4  We now turn to consideration of state law.

IV

The trial court found CDE required by Government Code sections 19230 and 19231 to make reasonable accommodation for plaintiff's alcoholism.  (Further statutory references to sections of an undesignated code are to the Government Code.)  Section 19230 declares it is legislative policy “to encourage and enable individuals with a disability to participate fully in the social and economic life of the state,” to encourage employment of such individuals in state service, and to require state agencies to “make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee who is an individual with a disability.” 5  Section 19231 defines the terms “individual with a disability” and “reasonable accommodation” and establishes criteria for determining whether a particular accommodation poses an undue hardship.6

Section 19231 does not enumerate covered disabilities and hence neither expressly includes nor excludes alcoholism.   Nor do sections 19230 or 19231 contain any express exceptions to coverage similar to that in the federal Rehabilitation Act excluding alcoholics whose current use of alcohol renders them unable to perform the duties of the job or who pose a threat to the property or safety of others.   Ordinarily, we would look to Legislative intent to determine if alcoholism is a covered disability under the state statute.   However, as will appear, we are spared that task.

Section 19230 et seq. is part of an enactment which replaced and enlarged upon section 3550.   Section 3550 had declared legislative policy to encourage participation and employment of “blind persons, visually handicapped persons, and other physically disabled persons.”  (Stats.1968, ch. 461, § 2, italics added.)  Section 19230 et seq. added to the definition of disability both physical and mental impairment.  (Stats.1977, ch. 1196, § 1.)

In 1987, the Legislature added the reasonable accommodation requirement (§ 19230, subd. (c)), the definition of “reasonable accommodation” (§ 19231, subd. (a)(2)), and the criteria for determining “undue hardship” (§ 19231, subd. (b)).  (Stats.1987, ch. 292.)   In 1992, the most recent amendments to sections 19230 and 19231 replaced “disabled person” with “individual with a disability” and expanded the definition of reasonable accommodation.  (Stats.1992, ch. 913, §§ 27 and 28.) 7

We need not decide whether “a physical or mental impairment” (§ 19231, subd. (a)(1)) includes alcoholism.   For purposes of this proceeding, CDE concedes alcoholism is a disability within the meaning of section 19230 et seq.8

Although conceding alcoholism is a covered disability, CDE contends the Legislature adopted an exception to the need to make reasonable accommodation to alcoholism related disabilities similar to that in the federal Rehabilitation Act.   CDE relies on an uncodified provision of Assembly Bill No. 2663 (hereafter AB 2663) which was enacted in 1984, three years before the reasonable accommodation requirement was added to section 19230.9

The trial court concluded the uncodified provision of AB 2663 was not intended as an exception to the reasonable accommodation requirement of section 19230 as it relates to alcoholism because, as previously noted, that requirement was not added until after enactment of AB 2663.   According to the trial court, the phrase “[a]s used in this section” suggests the Legislature intended the alcohol and drug abuser exception to be applicable only to statutes “affected by AB 2663,” and would not include section 19230.

We need not be further detained by this issue.   The Board, whose findings and decision we review, did not find that plaintiff fell within an exception to the reasonable accommodation requirement.   Therefore, we express no opinion on the trial court's finding that AB 2663 did not create such an exception.   Instead, we turn to a consideration of the Board's finding that CDE did accommodate plaintiff's disability and that its accommodations were reasonable.

V

Section 19231, subdivision (a)(2) defines “reasonable accommodation” as both “[m]aking facilities used by employees readily accessible to and usable by disabled persons” and “[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate readjustment or modification of examinations, training materials or policies, provisions for qualified readers or interpreters, and other similar accommodation.”   Arguably, the requirement for modified work schedules would include granting leave to obtain medical treatment.   Perhaps on the strength of such a broad reading, the trial court adopted the federal standard for reasonable accommodation of alcoholism enunciated in Rodgers v. Lehman, supra, 869 F.2d 253.  (See fn. 2 ante, p. 420.)   We would not go so far.

In devising the federal standard, the Rodgers court relied heavily on directives issued by the Office of Personnel Management which the court characterized as providing “a sound basis for constructing” the reasonable accommodation duty.  (Rodgers v. Lehman, supra, 869 F.2d at p. 259.)   Like the Office of Personnel Management under the federal Rehabilitation Act, the Board is the agency charged with issuing guidelines for the interpretation of section 19230 et seq.

The record contains no guidelines of the Board which address the requirements for reasonable accommodation of alcoholism nor have any been properly cited to us.10  This is not surprising since, as previously noted, the Board does not recognize alcoholism as a disability within the meaning of section 19230.  (See fn. 7 ante, p. 423.)   Nevertheless, the Board did make a finding in this case that accommodation afforded plaintiff by CDE, though short of that outlined in Rodgers, was reasonable.

 The question whether and to what extent state employers must accommodate disabilities is one for the Legislature.   Subject to the express language of section 19231, subdivision (a)(2), the Legislature has delegated to the Board the determination of what accommodation is reasonable under given circumstances.   The construction given to this requirement by the Board in this case is therefore entitled to great weight unless clearly erroneous or unauthorized.  (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 491, 156 Cal.Rptr. 14, 595 P.2d 592;  Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668–669, 150 Cal.Rptr. 250, 586 P.2d 564.)

 According to the findings of the ALJ, plaintiff was put on notice on July 13, 1988, that abuse of alcohol was negatively affecting his performance.   It was recommended that plaintiff obtain treatment.   Thereafter, plaintiff's superior contacted the State Employee Assistance Program several times to obtain counseling for plaintiff.   It was arranged for plaintiff to have three visits with a psychiatrist.   Plaintiff quit after the first or second session.   Next, plaintiff's superior contacted Kaiser Hospital regarding alcohol abuse programs.   This resulted in plaintiff attending a Kaiser program for a short period.   On one occasion, when plaintiff was so sick he needed hospitalization, his superior tried unsuccessfully to have the hospital keep plaintiff for in-patient treatment.   Plaintiff was also required to undergo out-patient treatment by virtue of the settlement agreement to which he was a party.   According to the ALJ, it was clear that had plaintiff requested leave for in-patient treatment, it would have been granted.

The Board found these efforts sufficient reasonably to satisfy whatever duty CDE had to accommodate plaintiff's alcoholism.   Although we are not bound by this finding, we find it persuasive.   The only thing CDE failed to do under the federal criteria of Rodgers v. Lehman, supra, was to force plaintiff to take leave for in-patient treatment.   In our view, section 19230 does not require such a draconian measure in the name of “reasonable accommodation.”  (869 F.2d at p. 259.)

The judgment is reversed and the matter remanded to the trial court with directions to issue a writ of mandate ordering the Board to set aside its decision, determine whether in the circumstances shown plaintiff is entitled to the protection of the federal Rehabilitation Act, i.e., whether or not at the time of termination plaintiff's current alcohol use prevented him from performing the duties of his job or posed a threat to property or the safety of others (29 U.S.C. § 706, subd. (8)(C)(v)) and, if not, whether requiring CDE to afford plaintiff the opportunity for in-patient treatment would have posed an undue hardship on CDE (29 C.F.R. § 1613.704(a));  if the Board finds plaintiff falls within the exception to federal law or, if not, that in-patient treatment would have posed an undue hardship on CDE, the Board should reinstate the penalty previously imposed;  if the Board finds plaintiff entitled to the protection of the federal Rehabilitation Act, it must then determine an appropriate penalty based solely on conduct not attributable to plaintiff's alcoholism.   The parties shall bear their own costs on appeal.

FOOTNOTES

1.   The Board did not take an active part in the litigation in the trial court and has not entered an appearance in this court.   This appeal is being prosecuted by CDE alone.

2.   As spelled out in Rodgers v. Lehman, supra, the criteria are:“1. When the agency suspects that an employee's poor job performance results from alcoholism, it should inform the employee of available counseling services.“2. If the employee's unsatisfactory job performance continues, the agency must provide the employee with a ‘firm choice’ between treatment and discipline.   The agency must clearly and unequivocally warn the employee that unsatisfactory job performance caused by drinking will result in discipline, eventually including the termination of employment.“3. Unless in a particular case it is clear that inpatient treatment is immediately required, the employee must be permitted to participate initially in outpatient treatment of sufficient duration to assure him a reasonable opportunity for cure.   If he continues to drink while participating in that treatment, the agency may impose progressive discipline upon him for any resulting job-related misconduct.“4. If the employee ceases to participate in the outpatient treatment, is discharged for non-cooperation or continues to drink after completion of that treatment and is guilty of job-related misconduct, the agency must, before discharging him, afford him an opportunity to participate in an inpatient program, using accrued or unpaid leave, unless the agency can establish that it would suffer an undue hardship from the employee's absence.“5. If the employee completes the program but thereafter relapses, and as a result fails to perform his job satisfactorily, a decision by the agency to discharge him will be presumed to be reasonable.   Only in a rare case, such as where a recovering alcoholic has had a single relapse after a prolonged period of abstinence, can this presumption be rebutted.”  (869 F.2d at p. 259, fn. omitted.)

3.   As previously noted, the transcript of the administrative hearing is not included in the record on appeal.

4.   The Board made several of findings from which it could arguably be inferred plaintiff fell within the federal exception.   For example, the Board found “[t]he potential harm from further conduct of the same nature is incalculable if [plaintiff] drives while under the influence or blacks out while withdrawing from a binge.”   The Board also found:  “The circumstances surrounding the misconduct and the likelihood of recurrence were of such a nature as to support dismissal.”   Finally, the Board found:  “There was some evidence of post-termination rehabilitation but it did not remove the substantial likelihood of recurrence of misconduct by [plaintiff].”A court reviewing administrative adjudication pursuant to Code of Civil Procedure section 1094.5, must determine whether substantial evidence supports the administrative agency's findings and, if so, whether the findings support its decision.  (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514–515, 113 Cal.Rptr. 836, 522 P.2d 12.)  “[I]mplicit in section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.”  (Id. at p. 515, 113 Cal.Rptr. 836, 522 P.2d 12.)   In order to bridge this analytic gap, an administrative decision imposing discipline must reveal both the conduct justifying adverse action and the legal standard applied.  (Medlock Dusters, Inc. v. Dooley (1982) 129 Cal.App.3d 496, 502–503, 181 Cal.Rptr. 80.)Thus, it is not enough that the Board found a potential for harm under certain circumstances and a likelihood of recurrence of misconduct.   The Board must also determine whether these findings support a conclusion, under federal law, either that plaintiff's current use of alcohol prevents him from performing the duties of his job or that plaintiff's continued employment by reason of current alcohol abuse would constitute a direct threat to property or the safety of others.   The Board failed to make a crucial finding necessary to bridge the analytic gap between the evidence and the order imposing discipline.   Rather than speculate what the Board would have found had it directly addressed the issue, we deem it appropriate to order remand to the administrative tribunal whose duty and prerogative it is, in the first instance, to make that determination.  (Robinson v. State Personnel Bd. (1979) 97 Cal.App.3d 994, 1004, 159 Cal.Rptr. 222.)

5.   Section 19230 provides in full:  “The Legislature hereby declares that:“(a) It is the policy of this state to encourage and enable individuals with a disability to participate fully in the social and economic life of the state and to engage in remunerative employment.“(b) It is the policy of this state that qualified individuals with a disability shall be employed in the state service, the service of the political subdivisions of the state, in public schools, and in all other employment supported in whole or in part by public funds on the same terms and conditions as the nondisabled, unless it is shown that the particular disability is job related.“(c) It is the policy of this state that a department, agency, or commission shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee who is an individual with a disability, unless the hiring authority can demonstrate that the accommodation would impose an undue hardship on the operation of its program.   A department shall not deny any employment opportunity to a qualified individual with a disability if the basis for the denial is the need to make reasonable accommodation to the physical and mental limitations of the applicant or employee.”

6.   Section 19231 provides:“(a) As used in this article, the following definitions apply:“(1) Individual with a disability means any individual who (A) has a physical or mental impairment which substantially limits one or more of that individual's major life activities, (B) has a record of impairment, or (C) is regarded as having such an impairment.“An individual with a disability is ‘substantially limited’ if he or she is likely to experience difficulty in securing, retaining, or advancing in employment because of a disability.“(2) ‘Reasonable accommodation’ means both of the following:“(A) Making facilities used by employees readily accessible to and usable by disabled persons.“(B) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, provision of qualified readers or interpreters, and other similar accommodations.”“(b) Undue hardship on the operation of a department's program shall be judged on all of the following:“(1) The overall size of the department's program with respect to the number of employees, the number and type of facilities, and the size of the department's budget.“(2) The type of departmental operation, including composition and structure of the department work force.“(3) The nature and cost of the accommodation needed.”

7.   The fact sections 19230 and 19231 were amended to substitute “individuals with a disability” for “disabled persons” is of no significance.   The amendments simply reflect current usage without effecting substantive change.

8.   In In re Aceves (Feb. 4, 1992) SPB Case No. 92–04, the Board decided alcoholism was not a disability within the meaning of section 19230, but held it could be considered in mitigation of discipline.  (At p. 14.)   Although we would normally give great weight to the interpretation of the statute by the agency charged with enforcing it, we shall accept CDE's concession for purposes of this appeal only.In its opening brief, CDE “assumes [we] will hold that alcoholism is a disability within the meaning of Section 19230 and 19231.”   How we should arrive at that “holding” when the issue has never been joined frankly escapes us.   If there are arguments on the other side of the issue, and we assume there are, CDE does not make them.   We will not shirk a difficult task of statutory construction if it is properly tendered to us, but we decline to place our imprimatur on a particular rendering of an ambiguous statute simply because that accords with a view of appropriate policy that CDE appears to prefer.

9.   The uncodified provision of AB 2663 provides:“It is the intent of the Legislature that guidelines for equal and fair employment protections apply to all categories of disabled persons.   As used in this section, ‘disabled person’ does not include any individual who is an alcohol or drug abuser whose current use of alcohol or drugs prevents the individual from performing the duties of the job in question, or whose employment, because of current alcohol or drug use, would constitute a direct threat to the property or the safety of others.   The State Personnel Board shall conduct a review of the methods now used to insure equal employment opportunities for all categories of the disabled and explore alternative ways to identify and track nonobservable disabilities, while protecting applicant and employee confidentiality and right to privacy.   The board shall also explore whether affirmative action goals and timetables, including exemption from layoff, ought to be extended to include all categories of disabled persons, and, if that question is answered in the affirmative, then the board shall study how to accomplish those results.   The board shall submit a report to the Legislature outlining the board's findings and recommendations no later than June 30, 1985.”  (Stat.1984, ch. 1481, italics added.)

10.   Amicus California Department of Personnel Administration has attached to its brief a copy of selected pages from a Guide of Implementing Reasonable Accommodation dated May 1992 and prepared by the Affirmative Action and Merit Oversight Division of the Board.   This guide indicates:  “The need for reasonable accommodation can only be determined on a case-by-case basis.”  (At p. 10.)   Plaintiff has moved to strike the attachments to the amicus brief as not part of the administrative record.   We grant the motion to strike as the indicated documents were not part of the record below and have not been properly authenticated.

PUGLIA, Presiding Justice.

SPARKS and DAVIS, JJ., concur.