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Court of Appeal, Second District, Division 5, California.


No. B039925.

Decided: January 24, 1990

Brown and Conradi, William E. Brown, San Diego, and Penn Foote, for defendant and appellant. Hill, Farrer & Burrill, Darlene Fischer Phillips, Los Angeles, and Deborah A. Sanowski, for plaintiff and respondent.

The Lynwood Board of Education voted to reduce the hours of the director of the Lynwood Personnel Commission by one-half.   At the time the Board took this action, the position of personnel director, a classified position, was vacant.   The trial court concluded that the Board had no power to create a half-time position.   We disagree, and reverse.


On April 26, 1988, the members of the Board of Education of the Lynwood Unified School District (the Board) voted unanimously to reduce the position of the director of classified personnel to a half-time position, and transferred a portion of the duties performed by the director to another office in the district.   At the time, the position of director of classified personnel was vacant.

Six weeks after the Board took this action, the Personnel Commission of the Lynwood Unified School District (the Commission) hired William Hartford to fill the still-vacant position of personnel director.   The minutes of the Commission meeting held on June 2, 1988, indicate that Hartford was hired as a full-time employee.   On June 14, 1988, however, the Board voted to approve/ratify the employment of Hartford as a half-time employee.   When Hartford began work on June 20, 1988, he was informed that he would only be paid for twenty hours per week and not as a full-time personnel director.

The Commission then filed the petition for a writ of mandate at issue here, seeking to compel the Board to rescind its action reducing the personnel director to a half-time position.   The Commission also sought a declaration stating that it alone is empowered to hire a personnel director on a basis which it determines is appropriate, and that the Board has no power to reduce that position.   The grounds for the petition were that the statutes governing the operation and duties of the Board and the Commission made the Board's action illegal.

On June 30, 1988, the trial court issued an alternative writ commanding the Board to pay the personnel director a full-time salary until the court ruled on the merits of the petition.   The Board filed a demurrer to the petition which was overruled by the trial court on September 9, 1988.   The court granted judgment for the Commission on December 9, 1988, and issued a peremptory writ of mandate stating that the Board had abused its discretion by reducing the personnel director to half time, and ordering the Board to give full-time status and salary to Hartford.

The Board appeals.


1. Standard of Review

 Code of Civil Procedure section 1085, the “traditional” mandamus statute, may be invoked when, as here, a party seeks judicial review of nonadjudicatory administrative actions.1  Judicial intervention is warranted when a public entity adopts a rule or makes a policy decision of general application which is shown to be arbitrary, capricious, contrary to public policy, unlawful, or procedurally unfair.   Whether the action is tainted by one or more of these factors is a question of law.   With respect to these questions the trial and appellate courts perform essentially the same function, and the determinations of the trial court are not conclusive on appeal.  (Lewin v. St. Joseph Hospital of Orange (1978) 82 Cal.App.3d 368, 386–387, 146 Cal.Rptr. 892;  American Canyon Fire Protection Dist. v. County of Napa (1983) 141 Cal.App.3d 100, 106, 190 Cal.Rptr. 189.)

2. Board's Authority to Alter the Status of the Personnel director

a. The Position of Personnel Director Is Classified

The Education Code requires that every position in a school district be included in the district's classified system, even in a district which, like Lynwood, has adopted a merit system.2  The only positions which need not be classified are (a) those requiring certification and (b) those which are specifically exempted from the classified system.  (§ 45104.)   The positions requiring certification in a merit system are listed in section 44065;  the position of personnel director is not one which requires certification.   The positions which, in a merit system, are exempt from classification are listed in sections 45256 and 45258;  the position of personnel director is not one which is exempt from classification.

 Because the position of personnel director is neither certified nor exempt, it must, under section 45104, be classified.   Indeed, the Lynwood Unified School District “Vacancy Information and Authorization” form which evidences the hiring of William Hartford indicates that his position as director of classified personnel is, in fact, a classified position.

We conclude that the personnel director is a classified employee as a matter of law.

b. The Board Controls the Employment of Classified Employees

Respondent does not attempt to refute the proposition that the personnel director is a classified employee.   Nor does it deny that the Education Code mandates that the Board “employ, pay, and otherwise control the services” of classified employees.  (§ 45241.)   Rather, it argues that the Board must be denied the power to control the hours of one particular classified employee;  namely, the personnel director.

The Education Code provides that the workweek of a classified employee shall be 40 hours, or eight hours per day;  however, “[n]othing in this section shall be deemed to bar the district from establishing a workday of less than eight hours or a workweek of less than 40 hours for all or any of its classified positions.”  (§ 45127.   By its own terms, § 45127 applies to districts having a merit system.)

 Notwithstanding this statutory provision expressly empowering the Board to reduce the number of hours for any or all classified positions, respondent contends that there is no legal authority permitting the Board to reduce the hours of the personnel director.   In support of its contention, respondent cites several statutes (§§ 45256 and 45298) and judicial case law relating to “voluntary reductions” of an employee's assigned time in lieu of layoff.   Such reductions, respondent states, must be consented to by the affected employee.   The cited statutes are inapposite:  the consent requirement obviously applies only when a particular employee's hours are being reduced.   Here, it is uncontroverted that the position of personnel director was vacant at the time the Board voted to reduce the number of hours allotted to the classification.   Plainly, there is no need to obtain consent to a reduction of hours in lieu of layoff from an employee who does not exist.

An opinion from this Division which respondent believes favors its position in fact lends support to the legitimacy of the Board's action in this case.   In California Sch. Employees Assn. v. Pasadena Unified Sch. Dist. (1977) 71 Cal.App.3d 318, 139 Cal.Rptr. 633, we were confronted with a situation in which a school board had reduced the working hours of a number of classified employees.   The plaintiff in that instance, like the plaintiff in this case, relied upon a 1975 opinion of the state Attorney General (58 Ops.Cal.Atty.Gen. 357) relating to reductions in assigned times and the need to obtain the employee's consent.   We wrote, “The Attorney General's opinion is technically correct in stating that the hours of individual classified employees may not be reduced except with the employee's consent in order to avoid interruption of employment by layoff.   But the opinion erroneously implies, and plaintiff erroneously leaps to the conclusion, that because such reductions cannot be made except with the employee's consent in lieu of layoff, therefore they cannot be made at all.”  (71 Cal.App.3d at pp. 323–324, 139 Cal.Rptr. 633, emphasis in original.)   We thus rejected the concept that there is no way for a school district to accomplish the objective of reducing the time assignments of employees within a classification for reasons of economy or lack of work.

Similarly, in California School Employees Assn. v. King City Union Elementary School Dist. (1981) 116 Cal.App.3d 695, 172 Cal.Rptr. 368, the court of appeal followed our conclusion in the Pasadena case, noting that the statutes are “by clear implication ․ calculated to protect individual employees who voluntarily accept reduction in hours of employment or assignment to a lower employment class or grade in their seniority rights vis-a-vis other employees.   It does not purport to prevent, without consent, temporary or partial (as here) layoffs of an entire class for lack of funds.”  (116 Cal.App.3d at p. 704, 172 Cal.Rptr. 368, emphasis in original;  see also Short v. Nevada Joint Union High School Dist. (1985) 163 Cal.App.3d 1087, 1097, 210 Cal.Rptr. 297.)

The Commission takes its misleading argument a step further when it asserts that the Board's action was illegal because the Commission alone has the final say in determining on appeal whether there were sufficient grounds for suspending, demoting or dismissing any employee in the classified service.  (§§ 45305 and 45306.)   The Board did not suspend, demote or dismiss any employee in this instance:  it simply reduced the hours for a classification which was vacant.   Sections 45305 and 45306 do not apply to the facts presented here.

 Finally, respondent contends that the Board's reduction of the hours worked by the personnel director will “destroy the Commission and the merit system.”   Respondent is overstating the threat to the merit system.   The Legislature has ensured the autonomy of the Commission by expressly providing that Commission members are not employees of the school district, and that members of the Board may not be members of the Commission.  (§ 45244.)   The Legislature did not, however, see fit to accord a similar status to the personnel director, whose job is administrative.  (§ 45266.)   Rather, the personnel director has been accorded the status of a classified employee.   Respondent categorizes the director's status as an “employee” as a “red herring,” and urges that the director be treated differently from all other employees.   There is no statutory basis for requiring that the Board treat this particular employee differently.   In the absence of contrary authority, the Board has the power under section 45127 to reduce the hours of any vacant classification in the merit system without obtaining consent from anyone.   This rule applies without exception, even to the personnel director, who is literally and technically in a class by himself.

 Our conclusion is, of course, limited to the general facts of this particular case.   We have decided only that the Board is by law generally authorized to reduce the position of personnel director to half time.   When, as here, the Board has this power, we may not inquire into the reasons for its exercise so long as the Board acts in good faith and is not seriously injuring a significant public interest.  (Lewin v. St. Joseph Hospital of Orange, supra, 82 Cal.App.3d 368, 384–385, 146 Cal.Rptr. 892.)   Quite a different scenario would be presented if the Commission were to file a petition alleging specific facts which tend to prove that the Board had acted in bad faith and that its reduction of the personnel director's hours was seriously affecting the Commission's ability to carry out its duties pursuant to the provisions of the Education Code.   If the Commission's ability to function were to be compromised by the Board, a significant public interest would be affected, and judicial intervention might be authorized.   No such facts are presented by this appeal.


The judgment is reversed.   Each side to bear its own costs on appeal.


1.   By contrast, had the Board taken action intended to affect the rights of a specific individual, it would have been acting in a quasi-judicial manner, and Code of Civil Procedure section 1094.5 would apply.

2.   All statutory references are to the Education Code unless otherwise indicated.

BOREN, Associate Justice.

LUCAS, P.J., and ASHBY, J., concur.

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