FERDIG v. STATE PERSONNEL BOARD

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Court of Appeal, Fifth District, California.

Wayne L. FERDIG, Petitioner and Appellant, v. STATE PERSONNEL BOARD et al., Respondents.

Civ. 864.

Decided: January 18, 1968

Walter W. Taylor, Sacramento, for petitioner and appellant. Thomas C. Lynch, Atty. Gen., Robert Burton and William M. Goode, Deputy Attys. Gen., for respondents State Personnel Board of State of California, Joseph L. Wyatt, Jr., Robert S. Ash, May Layne Bonnell, Ford A. Chatters, and Samuel Leask, Jr., members thereof. Harry T. Keneko, Sacramento, for respondent Theodore J. Walas.

OPINION

The petitioner, Wayne L. Ferdig, failed in his attempt to secure from the lower court a writ of mandate setting aside the order the State Personnel Board that he be removed from his civil service position as Chief Engineer II, and requiring that he be reinstated with all the rights and privileges of the office as of the close of business on April 9, 1965. In essence, Mr. Ferdig by mistake was given veterans' preference points, in addition to the points earned by him through a civil service examination, so that by the addition of such unearned veterans' points and the withdrawal of other candidates for appointment he became one of the top three taking the examination, thus moving upward on the appointment list from sixteenth to third place; he was thereafter appointed to the position of Chief Engineer II, Department of General Services, and served in that capacity for more than the six-month probationary period; if his original appointment had been good, he would then have become a permanent appointee under the civil service law; the objection which was made by a citizen and which resulted in the order of removal which is here attacked, although noted by the complainant before the expiration of the six-month probationary period, was not in fact formally heard by the personnel board until after the expiration of that period

The litigation involves the following basic questions:

1) Has the personnel board jurisdiction to remove an appointee from his position under the civil service system when it develops that his original appointment was invalid by reason of the fact that he was mistakenly given preferential credit as a veteran in order to place as one of the first three names on the appointment list?

2) If by mistake a candidate under the civil service system is given credit as a veteran to which he is not entitled, is he legally in a position to receive appointment under the civil service law?

3) Is there any provision of law or recognized custom which constitutes a statute of limitation, and thus prevents the removal of a civil service appointee, even though he did not legally qualify for that consideration?

4) Is this a legitimate contest between the petitioner, Wayne L. Ferdig, and the person appointed to take his place after he was dismissed, Theodore J. Walas?

In response to the first question posed above, it is our holding that the California State Personnel Board had jurisdiction to consider and act upon the question whether Mr. Ferdig should be removed from the position. His counsel stresses as a principal argument that the State Personnel Board is a body of special and limited jurisdiction only having the powers granted it by the law of its creation. Generally speaking, this statement is correct. The jurisdiction of the board is defined and is limited by article XXIV of the California Constitution and the statutes passed pursuant thereto. (Conover v. Board of Equalization, 44 Cal.App.2d 283, 112 P.2d 341.) But it is our holding that the board is given by law the right to act as it did in this case. The contention to the contrary advanced by petitioner indicates at least a belief on his part that the Legislature was not awake to the fundamental necessity of providing an effective enforcement of the civil service system; to believe there was a complete lacuna with respect to the subject here being considered runs contrary to the well-known fact that the civil service method of securing worthy employment has for many years been a leading element of state policy. The provisions of the Constitution relative to civil service provide some indication that such a theory is untenable. Section 3 of article XXIV of the Constitution, provides:

‘Said board shall administer and enforce, and is vested with all of the powers, duties, purposes, functions, and jurisdiction which are now or hereafter may be vested in any other state officer or agency under, Chapter 590 of the California Statutes of 1913 as amended or any and all other laws relating to the state civil service as said laws may now exist or may hereafter be enacted, amended or repealed by the Legislature.’

Chapter 590 of the statutes of 1913, page 1035, in effect August 10, 1913, shows a detailed set of provisions relative to the duties and powers of the commission. Among these are the requirements that the commission ‘Enforce the provisions of this act and prescribe, and enforce suitable rules and regulations for carrying the same into effect and from time to time amend and repeal the same.’ The commission was also directed (p. 1037) to ‘Make investigations concerning and report upon all matters touching the enforcement and effect of the provisions of this act and the rules and regulations prescribed thereunder; inspect all state institutions, offices, places of employment and services affected by this act, and ascertain whether this act and all such rules and regulations are obeyed.’ Section 6 (p. 1039) requires that all persons subject to the authority of the state shall ‘* * * aid in all proper ways in carrying into effect the provisions of this act and the rules and regulations prescribed from time to time thereunder. * * *’ And section 18 of the act (p. 1046) provides:

‘Any commissioner or examiner, or any person who shall wilfully by himself or in co-operation with one or more persons, defeat, deceive or obstruct any person in respect to his or her right of examination or registration, according to any rules or regulations prescribed pursuant to the provisions of this act, or who shall willful and falsely mark, grade, estimate, or report upon the examination or proper standing of any person examined, registered, or certified, pursuant to the provisions of this act, or aid in so doing, or who shall wilfully make any false representation concerning the same, or concerning the person examined, or who shall wilfully furnish to any person any special or secret information for the purpose of either improving or injuring the prospects or chances of any person so examined, registered, or certified, or to be examined, registered, or certified, or who shall personate any other person, or permit or aid in any manner any other person to personate him, in connection with any examination or registration or application or request to be examined or registered, shall be deemed guilty of misdemeanor.’

Thus, from the early days of civil service the need for honesty and accuracy in the implementation of the system was stressed. There were requirements of the utmost impartiality and fairness incorporated in the administration of the system so that the people who were best able to work for the state under the civil service standard would be so selected. There have been some changes of detail in the specific provisions of law applicable to the administration of the system since its origin, but the essential requirements have not changed. It is imperative that the civil service should be administered fairly, honestly and in strict accordance with the directions set up by statute.

Section 18670 of the Government Code provides:

‘The board may hold hearings and make investigations concerning all matters relating to the enforcement and effect of this part and rules prescribed hereunder. It may inspect any State institution, office, or other place of employment affected by this part to ascertain whether this part and the board rules are obeyed. ‘The board shall make investigations and hold hearings at the direction of the Governor or the Legislature or upon the petition of an employee or a citizen concerning the enforcement and effect of this part and to enforce the observance of the provisions of ArticleXXIV of the Constitution and of this part and the rules made hereunder.’ (Emphasis added.)

In Boren v. State Personnel Board, 37 Cal.2d 634, 638, 234 P.2d 981, our Supreme Court has said:

‘Sections 2(c), 3(a), and 5(a) of Article XXIV of the Constitution vest the State Personnel Board with jurisdiction over all dismissals, demotions, and suspensions in the state civil service. See, also, Government Code, § 19570 et seq. The order dismissing plaintiff from his civil service position was therefore within the jurisdiction of the Board.’

The opinion continues on page 639, 234 P.2d on page 983:

‘To obtain responsible control over state employment the civil service system was established by the people. Const., Art. XXIV. The power to discipline employees was largely transferred from various officials and departments to the State Personnel Board. It was contemplated, furthermore, that civil service should be under the Board's supervision, to the end that all personnel matters be expertly and uniformly administered. There is no unfairness, therefore, in the fact that plaintiff's rights have been decided in the first instance by the same public agency with which he dealt at the time of his appointment. The position of the State Personnel Board in this respect is not unlike that of the Board of Medical Examiners and other licensing agencies that supervise the granting of licenses, the scope of the activities permitted thereunder, and, when necessary, the disciplining of licensees. See Dare v. Board of Medical Examiners, 21 Cal.2d 790, 136 P.2d 304; Webster v. Board of Dental Examiners, 17 Cal.2d 534, 110 P.2d 992; Covert v. State Board of Equalization, 29 Cal.2d 125, 173 P.2d 545; O'Brien v. Olson, 42 Cal.App.2d 449, 109 P.2d 8. Moreover, state employment is accepted subject to statutory provisions regulating such matters as salary, working conditions, and tenure. State of California v. Brotherhood of Railroad Trainmen, 37 Cal.2d 412, 417, 232 P.2d 857; Risley v. Board of Civil Service Commissioners, 60 Cal.App.2d 32, 36–39 [140 P.2d 167], and plaintiff is presumed to have known when he joined the civil service that the State Personnel Board is charged by law with deciding all questions of dismissal. Const., Art. XXIV; Govt.Code, § 19570 et seq.’

It is our conclusion that the State Personnel Board had jurisdiction to consider the matter here at issue and to make the order which it did.

With respect to the second question, namely, whether or not there was justifiable cause for the board to order a reconsideration of the appointment of the plaintiff and to dismiss him from the position which he claimed to have earned after the six-month probationary period, the ratio decidendi is that Mr. Ferdig never was legally entitled to veterans' preference points, and that, therefore, he never could be properly appointed to a probationary term and never thereafter to the permanent civil service position. The requirement of the civil service system has been at all times that there must be compliance with the essentials; for the petitioner to receive the benefit of veterans' additional points when he never was a qualified veteran is to strangle the whole system; unless the requirements of appointment are observed, there might as well be no civil service. Mr. Ferdig had previously applied for state service in another position without claiming that he deserved any additional points as a veteran. This is somewhat significant: he claims, as he testified on the witness stand, that he did not previously know that he had any right to veterans' additional points, but when someone advised him to apply he did so accordingly. It should be noted in this connection that Mr. Ferdig himself stated in his application to the Department of Veterans Affairs that he was eligible for veterans' preference. He made this incorrect certification innocently, but he now concedes that it was untrue:

‘I HEREBY CERTIFY that I am eligible for veterans preference and that statements on this application are true, and I agree and understand that any misrepresentation of material facts herein may cause forfeiture of all right to any employment in the service of the State of California.’

The certificate of discharge from the naval service which he filed contemporaneously showed on its face that he was not entitled to veterans' additional points. A veteran eligible for preference in competitive civil service examinations was defined in section 18973 of the Government Code, as it then read, as follows:

‘* * * any person who has served full time for 30 days or more in the armed forces in time of war or in time of peace in a campaign or expedition for service in which a medal has been authorized by the Government of the United States, or during the period September 16, 1940, to December 6, 1941, inclusive, or during the period June 27, 1950 to January 31, 1955, and who has been discharged or released under conditions other than dishonorable, but does not include any person who served only in auxiliary or reserve components of the armed forces whose service therein did not exempt him from the operation of the Selective Training and Service Act of 1940.’

To summarize, the mistake in certification by the Department of Veterans Affairs followed an incorrect statement of Ferdig himself that he was entitled to preference, whereas he was not. If petitioner should be permitted to continue in the position to which he was appointed as the result of a mistake, he would be acting in direct disregard of the law and of the elements which, when properly administered, gave preference to other persons entitled to preferred consideration.

In the view that the appellant takes of the record and surrounding circumstances, there is no provision of law constituting a statute of limitations. Debatably, there should be, as both sides have the feeling as expressed in the record that finality to the orders of the State Personnel Board should be achieved at some stage. Under the holding of the trial court and our view of the present law, there is no limit to the time within which the board may set aside an order in a case similar to this where the person receiving an appointment illegally enjoyed the benefit of the mistake of the Department of Veterans Affairs. However, the question of providing for a limitation of actions is a question to be determined by the Legislature; it is a matter of choice, but one which the Legislature would do well to consider.

Theodore J. Walas, who was made a party defendant in the case, contends that the crux of the litigation is a contest between Ferdig and Walas as to which one shall have the appointment. We do not accede to this viewpoint. If Mr. Ferdig was improperly removed from his position because of lack of jurisdiction of the personnel board, he would be entitled to reinstatement. On the other hand, if the board had the right under the Constitution and statutes to remove him, things must remain as they are. It is not as primary question of a contest between Ferdig and Walas; the litigation involves first the power of the board from a jurisdictional standpoint, and, second, whether there existed the right on the part of the board to act as it did. We believe that the answers to both questions are affirmative.

The judgment of the trial court denying a writ of mandate is affirmed.

DISSENTING OPINION

I dissent. This case does not involve bad faith; no one alleged or gave evidence of bad faith at the hearing before the State Personnel Board or at the superior court trial. To the contrary, it is undisputed that appellant acted in good faith when he claimed a veterans' preference which ultimately resulted in his appointment to the state position from which the State Personnel Board removed him.1 However, a brief review of the pertinent facts is essential.

Appellant passed the qualifying examination for the state position of Chief Engineer II. He placed sixteenth on the appointment list. Appellant then presented his naval discharge to the Department of Veterans Affairs for a determination as to whether he was eligible for a veteran's preference.2 Appellant served in the Merchant Marine during World War II, and the document which he presented to the Department of Veterans Affairs stated that applicant, as an Apprentice Seaman Class MI, United States Navy and Naval Reserve, had been discharged from the Ninth Naval District and the U. S. Naval Service under honorable conditions.

Apparently, the Department of Veterans Affairs informed appellant that he qualified for the veterans' preference, and he made the veterans' certification which the majority opinion focused upon.3 After the certification, the Department of Veterans Affairs awarded appellant the veterans' points that elevated his name from sixteenth to third place on the appointment list. Then appellant was appointed to fill the vacant position of Chief Engineer II in the Department of General Services. The State Personnel Board subsequently removed appellant from this position after the Department of Veterans Affairs determined that appellant's military service was not ‘active duty’ under the veterans' preference law, and, consequently, that he was not entitled to the veterans' points which he received.

It is patent that appellant was granted veterans' points which placed his name high on the appointment list as the result of a mistake made by the state agency entrusted with the responsibility of making this determination. Thus, as I see it, the basic and fundamental question presented herein is whether the State Personnel Board may remove an employee from a state position to which he was appointed, without any limitation as to time, if it is subsequently discovered that the appointment was made as the result of an honest mistake of the responsible state agency even though the employee qualified for the position by passing the necessary examination and demonstrated his competence by completing his probationary period in a satisfactory and efficient manner. In my judgment the answer to this question is in the negative.

The avowed purpose for the state civil service system is to guard against the ‘spoils system’ and to promote economy and efficiency in the state service by the appointment of qualified employees and by granting such employees tenure as a reward for efficient service (Cal.Const., art. XXIV, Gov.Code, § 18500). Accordingly, the State Civil Service Act (Division 5 of Title 2 of the Government Code) inter alia meticulously provides for the selection of employees from appointment lists after competitive examination and specifies, with particularity, the exact causes for which state employees may be discharged or disciplined after appointments to state positions. However, no-where in the Civil Service Act or elsewhere in the law is the securing of a civil service appointment as the result of an ‘honest mistake’ referred to or even mentioned as a cause for removal. Thus, since the State Personnel Board is a body of special and limited jurisdiction, having only the powers given to it by law (Conover v. Board of Equalization, 44 Cal.App.2d 283, 112 P.2d 341), it is manifest that its power to remove an employee from the state service for this reason alone is nonexistent.

The majority quotes excerpts from section 3 of article XXIV of the Constitution and concludes that the State Personnel Board has the inherent or implied power to remove an employee from the state service for a mistake made in the initial appointment, regardless of the circumstances, and apparently irrespective as to when the mistake is discovered. I do not agree. I believe that article XXIV simply creates a State Personnel Board to supervise, administer and enforce the Civil Service Act as adopted, amended or revised by the Legislature, and that it is in this connection only that the board may prescribe and enforce the ‘suitable rules and regulations' alluded to by the majority. In other words, I do not believe that the State Personnel Board has the constitutional power to legislate or to interfere with the legislative scheme as adopted by the Legislature; otherwise the Constitution delegates autocratic powers to a state agency which would eventually lead to a ‘spoils system’ in reverse.

Significantly, the Legislature has expressly stated that ‘fraud in securing appointment’ is cause for removal or other disciplinary action (Gov.Code, § 19572). And it is clear that the personnel board would have the supervisory power to enforce the penalty if the appointing authority failed or refused to take appropriate action. The Legislature, however, has not made an honest mistake of any kind in securing an appointment a cause for removal, let alone a mistake made by a state agency. Hence, the Legislature has not defined the essential guidelines or time limits under which such removal may be accomplished, nor has any legislative consideration been given to the rights of the employee; by the time a mistake is discovered the employee could have acquired substantial sick leave, vacation and retirement benefits which would be lost if he were removed from his position. Thus, to hold that the State Personnel Board has the implied or inherent power to remove an employee under this circumstance is not only contrary to the doctrine of expressio unius est exclusio alterius, but if countenanced, without legislative restrictions or guidelines of any kind, delegates to the commission arbitrary legislative powers which could lead to harsh and even incongruous results. In fact, if the majority opinion is carried to its ultimate conclusion, it would mean that the personnel board, without regard to the equities involved, could discharge a qualified and competent state employee after many years of fruitful service and compel the department in which he was employed to take an unproven, inexperienced employee in his place simply because an honest mistake was made when the employee was appointed, even though the mistake was made by a responsible state agency. Manifestly, such a result would not subserve the objects and purposes of the Civil Service Act which was adopted by the Legislature to attain efficiency and economy in state government in compliance with the mandate of the People as expressed in article XXIV of the Constitution.

I would reverse the judgment and direct the superior court to grant petitioner's writ of mandate reinstating petitioner to the position from which he was removed.

FOOTNOTES

1.  By communication dated April 9, 1965, John F. Fisher, Executive Officer of the California State Personnel Board, advised appellant as follows:‘Dear Mr. Ferdig:On April 9, 1965, the State Personnel Board adopted a motion to void the August 24, 1964, appointment of Wayne L. Ferdig as Chief Engineer II, Department of General Services, from the beginning; but that he shall receive compensation for the position during the time he performed the duties of the position until the close of business April 9, 1965, since the attempted appointment was made and accepted in good faith.Very truly yours,/s/ John F. FisherJOHN F. FISHERExecutive Officer'

2.  Section 18976 of the Government Code reads as follows:‘Request for and proof of eligibility for veterans' preference credits shall be submitted by the veteran to the Department of Veterans Affairs. The procedures and time of filing such request shall be subject to rules promulgated by the Department of Veterans Affairs. After the State Personnel Board certifies that all parts of an examination have been completed and the relative standings of candidates are ready to be computed the Department of Veterans Affairs shall notify the State Personnel Board which candidates have qualified for veteran preference credits on the examination.’

3.  Appellant testified as follows:‘MR. FREDIG: Gentlemen. When i entered States service approximately three years ago I did not know there was such a thing as veteran preference points this is why I didn't file for veteran preference points. I was not aware of them. After having worked for the State of California a reasonable length of time I did hear about the veteran points and was of the opinion that this was those veterans who saw action over seas in the armed forces. So naturally I applied no veteran points I was in the Merchant Marines at that time, not in the armed forces.‘MR. WYATT: When did you serve in the Merchant Marines?‘MR. FREDIG: Well, during the second World War approximately '43 through the war. Then people would ask me, Wayne, do you have your veteran points. I'd say no, I was in the Merchant Marines, I wasn't in the armed forces. Well, he said he knew chaps that had been in the Naval Reserves that had thirty to sixty days in boot camp and this came as quite a shock to me. So after discussing this with a few people I said well, I think I'll take my discharge and go up to the people that know and that are familiar with the veteran affairs and ask them if I have veteran points and she said you certainly do, needless to say I was very pleased to hear that. Consequently approximately one year later a eleven months later I was chosen for the Chief Engineering of the Resources Building. I was very proud of that position, that is the position I am holding today. If there are any questions I would be very happy to answer them.’

CONLEY, Presiding Justice.

STONE, J., concurs.