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District Court of Appeal, Third District, California.


Civ. 6493

Decided: April 09, 1941

Albert Sheets, of Sacramento, for appellant. Earl Warren, Atty. Gen., and Wilmer W. Morse and Bayard Rhone, Deputy Attys. Gen., for respondents.

The petitioner has appealed from a judgment of the trial court refusing to grant a writ of mandamus to require the State Personnel Board of California to reinstate him in the permanent position of personnel record officer of the California national guard, and to pay his fixed salary of $140 per month. It is contended his appointment to that position as a probationary officer was wrongfully terminated.

On August 13, 1938, Elmer J. Wiles was appointed by the adjutant general of California to the position of personnel record officer of the national guard of this state at a salary of $140 per month, with a probationary period of six months. He served efficiently in that position, with a high rating of 88 per cent, until September 11, 1938, at which time he sustained serious injuries in an automobile casualty, resulting in two fractured vertebrae, on account of which he was confined in a hospital until October 24, 1938. During the time he remained in the hospital he continued to perform a part of his official duties. While he was in that institution the petitioner did not receive his salary from the state, but was paid full disability compensation from the state compensation insurance fund. February 9, 1939, the petitioner received a letter from the adjutant general, notifying him that his probationary appointment as personnel record officer would be terminated March 4, 1939, on account of unsatisfactory work and failure to perform the duties of his employment. After the last-mentioned date, the petitioner was not permitted to continue his employment and he was paid no further salary. A copy of the notice of future dismissal was filed with the State Personnel Board, February 11, 1939. The trial court adopted findings adverse to the petitioner upon all material issues. A judgment was rendered against him in accordance with the findings. From that judgment this appeal was perfected.

The chief question to be determined on this proceeding is whether the petitioner's probationary tenure of office was terminated within six months from the time of his appointment, in the manner required by law and in accordance with the duly-adopted rules of the State Personnel Board. If it was not so terminated, we assume that he automatically attained permanent tenure entitling him to retain his office with its fixed compensation, and that he could not thereafter be lawfully removed for cause except in the manner provided by section 173 of the State Civil Service Act. Stats.1937, p. 2085, 1 Deering's Gen.Laws of Cal. of 1937, p. 742, Act 1404.

By the provisions of that act the Personnel Board is vested with exclusive authority to fix the probationary period of an employee at not less than six months, and not to exceed one year. Secs. 35(a) and 118, State Civil Service Act, supra; Spaletta v. Kelly, 30 Cal.App.2d 656, 86 P.2d 1074. Pursuant to the foregoing statutory authorization, the board adopted rule nine, which definitely fixed the probationary period of service at six months. In accordance with that rule, the petitioner's probationary service terminated February 12, 1939.

When an employee has served his full probationary term without having been dismissed as provided by section 122 of the act, he then automatically becomes a permanent employee. Section 10 of the act provides in that regard: “ ‘Permanent employee’ means an employee who has permanent status. ‘Permanent status' means the status of an employee who is lawfully retained in his position after the completion of the probationary period provided in this act and the rules prescribed by the board.”

We are of the opinion a probationary employee is not entitled to a vacation period with pay. Certainly the appointing power has no authority to extend the probationary term fixed by law, by allowing an additional period of time for his vacation. Section 150 of the act authorizes the allowance of fifteen days' vacation, only, during “each year of continuous service”. That section reads: “Each employee shall be entitled to a vacation of not to exceed fifteen days' duration, excluding Sundays and holidays, with pay, during each year of continuous service. The time when such vacations shall be taken shall be determined by the appointing power of such employee. The board shall provide by rule for the regulation and accumulation of vacations and may provide for vacations for employees who have been employed for a period of at least six months and less than one year.”

The clear inference from the foregoing section is that an employee is not entitled to vacation unless and until he has been employed continuously for at least six months.

Pursuant to the section the board adopted rule thirteen. Section 1 of that rule provides that: “After six months of continuous service, each employee in the State Civil Service shall be entitled to a vacation on the basis of one and one-quarter working days for each month or major portion of a month of service up to the first of January next following the completion of such six months of service.”

It is true that the petitioner in this case performed only a portion of the duties imposed upon him, after his injury was received and during the six weeks he was confined in the hospital. In construing statutes similar to the State Civil Service Act, with relation to acquiring permanent tenure of office, it has been determined that when the employee has not been removed from office in the manner required by law, he may acquire the status of a permanent employee even though he is relieved of his duties a portion of the time or when he performs only a part of his regular work by consent or without objection on the part of the appointing power. Eisenhuth v. Department of Motor Vehicles, 2 Cal.App.2d 207, 37 P.2d 725; Gastineau v. Meyer, 131 Cal.App. 611, 22 P.2d 31. In both of the last-cited cases, hearings were denied by the Supreme Court. The same principle applies when an employee performs only a part of his prescribed duties while he is confined to a hospital as the result of personal injuries, in the absence of a termination of his employment by the appointing power, in the manner required by law.

It is true that three days before the petitioner's probationary period expired, he was served with notice that his term would expire March 4, 1939. That notice reads:

“February 9, 1939.

“Mr. Elmer J. Wiles

“116 State Office Building

“Sacramento, California

“Dear Sir:

“Effective March 4, 1939, your services as Personnel Officer, California National Guard, will be terminated.

“This action is found necessary due to unsatisfactory work during your probationary period. During your probationary period you failed to carry the responsibilities and duties prescribed for this position by the Personnel Board and the Personnel Section of this office fell far behind in its work.

“It was found during this period that the responsibilities and duties required of this position had been shifted to a Junior Stenographer–Clerk in the Personnel Section.

I find it necessary to take this action for the good of the service.

“You will be allowed your accumulated vacation from February 10th to March 3, 1939, inclusive.

“Very truly yours

“(Signed) P.J.H. Farrell

“Brigadier General, CNG

“The Adjutant General.

“cc State Personnel Board.”

The foregoing notice did not have the effect of dismissing the petitioner “during the probationary period”, as required by section 122 of the act. It purports to dismiss him on March 4, 1939, more than three weeks after his tenure became permanent. A notice of unsatisfactory work, which specifically assumes to dismiss the employee at some future time beyond the probationary period does not conform to the statute. If such notice could be deemed to be sufficient, the appointing power might with equal effect give notice that the employee would be dismissed three months or three years after his probationary period had expired. Section 122 provides in that regard: “Any probationer may be rejected by the appointing authority during the probationary period for reasons relating to the probationer's qualifications or the good of the service, or failure to demonstrate merit, efficiency, fitness and moral responsibility. Notice of such action accompanied by the statement of the specific reasons therefor, truthful within the knowledge of the appointing power or other officer or person in charge of the employee, shall be filed by the appointing power with the board and a copy served upon the probationer to give effect to the rejection.”

Since the appointing power had no authority to extend the petitioner's probationary period beyond the limitation thereof fixed by the rules of the board, by allowing him credit for three weeks' vacation time, and he was not dismissed “during the probationary period”, he must be deemed to have automatically acquired permanent tenure, entitling him to reinstatement and a judgment for his fixed compensation at the rate of $140 per month from March 4, 1939.

It is true that the board attempted to correct the failure to dismiss the petitioner within his probationary term as required by law, by filing on February 20, 1939, a report pursuant to its regularly-adopted form therefor, as required by section 121 of the act. That notice is ineffectual for several apparent reasons. The section last mentioned prescribes the form upon which such notice shall be made and that it shall be sent to the appointing power “not less than ten working days before the expiration of any probationer's probationary period”, and that the report, duly signed by the appointing power, shall be filed with the board “before the expiration of the probationary period”, and a copy thereof served upon the employee. None of these essential requirements were performed. The very form relied upon by the respondent is headed, “Certificate to be submitted during probation period”. It was not filed until after the probationary period expired. No copy of that report was ever served on the petitioner. It is ineffectual for any purpose.

It is immaterial that the particular classification of the petitioner as personnel record officer has been abolished or reclassified since March 4, 1939. It is specifically provided in section 64 of the act that the status of the employee “shall not be affected” thereby. It appears that the particular work which he was performing is now being done under a different classification.

The judgment is reversed and the trial court is directed to issue the writ of mandante reinstating the petitioner as a permanent employee with his fixed salary of $140 per month from March 4, 1939, as prayed for.

THOMPSON, Justice.

We concur: PULLEN, P.J.; TUTTLE, J.

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