CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION v. PERSONNEL COMMISSION OF PAJARO VALLEY UNIFIED SCHOOL DISTRICT OF SANTA CRUZ COUNTY

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Court of Appeal, First District, Division 1, California.

CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION, a non-profit corporation, Plaintiff and Appellant, v. The PERSONNEL COMMISSION OF the PAJARO VALLEY UNIFIED SCHOOL DISTRICT OF SANTA CRUZ COUNTY, and Pajaro Valley Unified School District of Santa Cruz County, a State agency, Defendants and Respondents.

Civ. 26130.

Decided: March 12, 1970

Richard H. Perry, Burlingame, for plaintiff and appellant. Henry J. Faitz, County Counsel, James L. Rankin, Asst. County Counsel, Santa Cruz, for defendants and respondents.

This is an appeal by petitioner, the California School Employees Association, a nonprofit corporation, from a judgment discharging an alternate writ of mandate and denying a peremptory writ of mandate in an action in which petitioner sought a peremptory writ (1) commanding the respondent personnel commission to annul, vacate and set aside its ‘judgment’ of May 11, 1967 dismissing one Mrs. Virginia Keidel, not a party to these proceedings, (2) commanding respondent district to rescind, annul and set aside its action of May 2, 1967, dismissing that employee, (3) commanding both respondents to reinstate the employee, and (4) awarding damages to the employee for lost compensation.

Petitioner contends that the employee was not lawfully dismissed, that no lawful appellate jurisdiction vested in the respondent personnel commission, and that its proceedings and ‘judgment’ were therefore wholly void. Alternatively, it asserts that if the personnel commission did have jurisdiction its ‘judgment’ dismissing the employee is contrary to law and constitutes an abuse of discretion.

It is concluded that the proceedings seeking review are irregular because of a failure to join the employee as a party, but that since the employee's rights might have been jeopardized by the failure of respondents to present this objection, which could have been cured by her joinder and might be so cured in the event of remand, the merits of petitioner's contentions must be reviewed. On the merits it is determined that the rules and procedures followed by the respondents were not drafted or conducted strictly as authorized by law; that the errors were procedural and not jurisdictional; that the proceedings leading to the dismissal of the employee furnished her a fair and complete hearing; that her dismissal was not contrary to law and was not an abuse of discretion; and that the judgment of the superior court must be affirmed.

Standing

The petition was filed by California School Employees Association, a nonprofit corporation, in its own name. The employee for whom it seeks relief is not a party to the action. Petitioner's standing as an employee organization (see, Ed.Code, §§ 13080–13088) was set forth in the first paragraph of its petition1 and was not denied. In the second paragraph petitioner alleged, ‘that said Virginia Keidel was and is a member in good standing of Petitioner; that at all times pertinent hereto Petitioner represented said Virginia Keidel in her controversy arising out of charges for dismissal made and filed against her in a matter more particularly hereinafter specified, and does now represent her said controversy.’ These allegations were also admitted by failure to deny.

In the third paragraph petitioner alleged, ‘That Petitioner, as representative of said Virginia Keidel, and Respondents are the parties beneficially interested herein; that this action is maintained by Petitioner solely on behalf of said Virginia Keidel at her instance request and under her authority, has exhausted all administrative remedies available to it before Respondent Commission and before Respondent District.’ These allegations were denied. In the third cause of action the petitioner complains because it was not served notice of the charges against the employee. (No such requirement is found in the statutes or rules.) It also complains that the personnel director conferred with the commissioner ‘out of the presence of Petitioner's representative and’ the employee. The petition concludes, ‘That by reason of her unlawful depravation of her employment in her classified position as above averred, Mrs. Virginia Keidel has sustained damage by way of loss of salary, leave rights, retirements rights, vacation rights, and other rights, benefits, and perquisites incident to such employment.’ The prayer seeks no relief for petitioner by way of a declaration of the rights of its members in general. It is solely directed to annulling, vacating and setting aside the May 11, 1967 judgment of the personnel commission, and the May 2, 1967 action of the board, to securing the reinstatement of the employee, and to recovering damages on her behalf, for her wrongful discharge, and costs of suit.

Several cases have upheld the capacity of an employee organization representing public employees to sue on its own behalf. (Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 283–285, 32 Cal.Rptr. 830, 384 P.2d 158 [Lab.Code, §§ 1960–1963; and see, Gov.Code, §§ 3500–3509]; International Ass'n. of Fire Fighters v. City of Palo Alto (1963) 60 Cal.2d 295, 298, 32 Cal.Rptr. 842, 384 P.2d 170 [id.]; East Bay Mun. Employees Union v. County of Alameda (1970) 3 Cal.App.3d 578, 579, fn. 1, 83 S.Ct. 503; California Sch. Employees Assoc. v. Sequoia etc. School Dist. (1969) 272 A.C.A. 118, 122–124, 77 Cal.Rptr. 187; California Sch. Employees Ass'n. v. Willits Unified Sch. Dist. (1966) 243 Cal.App.2d 776, 779–780, 52 Cal.Rptr. 765.) In the first Fire Fighters' case the ‘local and Wheatley brought this action (the latter suing on his own behalf as an employee, and in his representative capacity on behalf of his fellow employees who are members of the local) for the purpose of determining and enforcing the rights and obligations of the respective parties in respect to the provisions of Labor Code sections 1960 through 1963, inclusive. [Fn. omitted.] In their first cause of action plaintiffs alleged that defendant city discriminated against those employees of the fire department who are members of Local 748 (as more particularly set forth in the pleading), in violation of the sections of the Labor Code, and threatens to continue such conduct unless permanently restrained by injunction. The second cause of action seeks declaratory relief on the basis of an existing pleaded controversy between the parties, in which defendant city contends that the specified code sections are not applicable to it by virtue of its status as a chartered city.’ (60 Cal.2d at pp. 279–280, 32 Cal.Rptr. at pp. 831–832, 384 P.2d at pp. 159–160.) The court ruled, ‘the plain meaning of both the Labor Code and the Government Code provisions heerinabove alluded to is that unions such as plaintiff may be organized for the sole purpose of representing their members. An action at law on behalf of such members is one form of such representation. Plaintiff is incorporated. Its members are all employees of the fire department and as such have a clear beneficial interest in the subject matter of the complaint. Its interest is joint with theirs. The entire action is one such as is contemplated by Code of Civil Procedure, section 382 and (if injunction be equated with mandate) under section 1086 as well.’ (Id., p. 284, 32 Cal.Rptr. at pp. 834–835, 384 P.2d at pp. 162–163.)

The issues in the second Fire Fighters' case were stated as follows: ‘Defendants have appealed from a judgment ordering issuance of a peremptory writ of mandate and dismissing their cross-complaint for declaratory relief. [Fn. omitted.] By that judgment the trial court ordered defendants (a chartered city, and its mayor, city manager, council members and fire chief) to grant plaintiffs (an unincorporated union—all of the members of which are employees of defendant city's fire department—and its duly appointed representative) the right of self-organization and the right to ‘present grievances and recommendations regarding wages, salaries, hours and working conditions to the governing body of the Fire Department and to discuss the same with such governing body through such organizations.’ Defendants were further ordered to vacate and set aside certain policies, rules and regulations that will hereafter be mentioned.' (60 Cal.2d at pp. 297–298, 32 Cal.Rptr. at p. 843, 384 P.2d at p. 171.)

It is obvious that in each case the employee organization was suing to establish and vindicate rights claimed on behalf of each and all of its members. In the East Bay Mun. Employees Union case the union sought the reinstatement of over 300 named employees without discrimination or loss of benefit. (3 Cal.App.3d at p. 580, 83 S.Ct. 503.) In the Sequoia Union High School District case the association appealed from an order denying a preliminary injunction which was sought ‘to restrain respondent district from contracting for vending machines to dispense foodstuffs prepared off the school premises to pupils within the district.’ (272 A.C.A. at p. 120, 77 Cal.Rptr. at p. 188.) The question of relief for the particular displaced employees was not discussed. It is again obvious that all member employees who were displaced were equally affected. In the Willits Unified School District case the association sought and secured general relief against an allegedly ultra vires contract for janitorial services, and reinstatement and damages for the displaced employees. (243 Cal.App.2d at p. 779, 52 Cal.Rptr. 765.) On appeal, the court found that the employees who had in fact been reinstated, were not permanent employees and set aside the award of damages for the period they had been displaced. (Id., at pp. 785–787, 52 Cal.Rptr. 765.) The court did observe, ‘Equally lacking in substance is the district's contention that individual actions should have been brought because the evidence relating to the two individuals was different. It was different as to amounts of salary and perhaps other details, but not as to substantial issues, particularly when interpretation of the same statutes was essential to both cases.’ (Id., at p. 780, 52 Cal.Rptr. at p. 767.) There was no discussion as to whether the individual employees seeking relief should have been joined as plaintiffs.2

In this case the tail is wagging the dog. This is not an action to attack the allegedly illegal rules on behalf of all of petitioner's members. That effect is only incidental and collateral to the particular relief sought for the employee. The provisions of the Education Code sections 13083 and 130843 which provide for representation by the employee organization and which define the scope of such representation do not purport to control the provisions of sections 367, 382 or 1086 of the Code of Civil Procedure.4 The employee organization should show that it, or its members collectively have a beneficial interest in the outcome of the controversy. Where both general relief for all members and specific relief for an individual member is sought, the individual employee should be joined. If only specific relief is sought the employee organization can furnish representation without suing in its own name. (See Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar (1964) 377 U.S. 1, 5–7, 84 S.Ct. 1113, 12 L.Ed.2d 89, 11 A.L.R.3d 1196.)

In American Federation of Teachers v. San Lorenzo etc. Sch. Dist. (1969) 276 A.C.A. 161, 80 Cal.Rptr. 758, the employee organization, and its president, in such capacity and as the aggrieved employee sought a writ of mandamus to compel a school district to reemploy a probationary teacher for the following year. One of the questions presented and its resolution are stated as follows: ‘Did the court err in holding that the appellants American Federation of Teachers, Local 1713 and Donald R. Osborn as its president, had no standing to sue in this action?

‘The actual issue here is not one relating to the right of a labor union to represent its members; that is correctly conceded by the parties. The issue is one of pleading, namely, have these appellants stated a cause of action? In their petition the appellants allege the status of appellants as a labor union and as president of that union, and that the union represents employees of the district in matters pertaining to their employment. There is no allegation in the petition that any right of the union or of its president as such has been invaded, and neither appellant asks that any relief be granted to them. The appellants cite Education Code, sections 13083 and 13084 relative to the right of an employee organization to represent its members in relations with public school employers; however, the petition does not contain any allegation that this right is being violated. The appellant union and its president have failed to state a cause of action, and the trial court therefore properly dismissed as to them. The cases cited by appellants (International Ass'n. of Fire Fighters v. City of Palo Alto (1963) 60 Cal.2d 295, 32 Cal.Rptr. 842, 384 P.2d 170, and International Ass'n. of Fire Fighters v. County of Merced (1962) 204 Cal.App.2d 387, 22 Cal.Rptr. 270) are not in point, as in each of those cases the party alleged its rights had been violated, and it was seeking the aid of the court to correct certain policies and rules of the defendant.’ (276 A.C.A. at pp. 165–166, 80 Cal.Rptr. at p. 761. See also, McGlone v. Mt. Diablo Unified Sch. Dist. (1969) 3 Cal.Rptr.3d 17, 23–24, 82 Cal.Rptr. 225.)

The defect in the representative suit is that the employee may secure more lucrative employment, move away, become permanently ill, or disabled, or even die, and thus render it impossible to grant specific relief. The courts should not be required to determine the abstract questions remaining unless they are presented in an appropriate proceeding which establishes a common grievance shared by all, or at least all of one class, of the members of the employee organization, and which is brought by it on their behalf.

Since the record fails to reveal that this issue was raised by the respondents at any stage of the proceedings, it might prejudice the rights of the employee to dispose of the case on this ground at this stage of the proceedings. (See Employees Service Ass'n. v. Grady (1966) 243 Cal.App.2d 817, 827, 52 Cal.Rptr. 831, and fn. 2 above.) If the proceedings are deemed to be irredeemably irregular, the employee, if so minded, should be given an opportunity, by substitution or joinder in the court proceedings, to take advantage of the principles established on her behalf.

Jurisdiction of the Personnel Commission and the School Board

On March 21, 1967,5 Donn R. Baldwin, the district's director of personnel, directed a letter to Mrs. Keidel notifying her of the action of the district to immediately terminate her services as a bus driver. This letter stated that ‘This action is recommended by Mr. James Burns, Business Manager,’ and stated that the reasons for such action were ‘insubordination’ and ‘acts which are incompatible with or inimical to public service.’ The letter stated that these charges were based on Mrs. Keidel's failure to respond to repeated requests to park her automobile in an assigned area and her failure on repeated occasions to provide transportation to certain students in spite of directions to the contrary. The letter also advised Mrs. Keidel that ‘in accordance with rule 171, she had a right to file an answer with the Commission and request a hearing.’

On March 31st Mrs. Keidel filed an answer to the charges, and on April 11th she was notified by the commission that a hearing would be held on April 19th in accordance with the procedures outlined in rule 170 ‘for classified employees of the * * * district.’ This letter reiterated the two charges mentioned in the previous letter. A hearing was thereafter held by the commission which terminated on April 25th. At the close of these proceedings the commission made an oral announcement of its decision against Mrs. Keidel. Mrs. Keidel's representative thereupon made inquiry of a representative of the district concerning the date fixed by the board for Mrs. Keidel's dismissal and was advised that the board had taken no action with respect to the dismissal of Mrs. Keidel. This was the first time that either Mrs. Keidel or her representative became aware that no action of any kind pertaining to Mrs. Keidel had been taken by the board. Upon receiving the information, Mrs. Keidel's representative immediately interposed an objection before the commission to its jurisdiction with respect to all the proceedings against her.6

Subsequently, on May 2nd, the board passed a motion terminating the employment of Mrs. Keidel, effective May 2nd. The minutes of the board reflecting this action indicate that the termination was recommended by Baldwin, the personnel director, ‘with the approval of the Personnel Commission.’ Thereafter, on May 11th, the commission made its written findings of fact and conclusions and its judgment that Mrs. Keidel ‘be dismissed from the District's classified service.’ That judgment provided that Mrs. Keidel was entitled to compensation at her regular rate of pay up to and including March 21, 1967, ‘the date on which her services were terminated by the District action * * *’

The record is unclear whether Mrs. Keidel ceased work following receipt of Baldwin's letter of March 21st advising her of the action of the district ‘to immediately terminate your services as bus driver.’ As indicated above, the minutes of the board disclose that Mrs. Keidel's employment was terminated as of May 2nd, and the ‘judgment’ of the commission states that her services were terminated ‘by the District action’ on March 21st.

Petitioner contends that the jurisdiction to employ and dismiss classified personnel is vested exclusively in the board, that such jurisdiction is nondelegable, and that the commission had jurisdiction to hear the charges brought against Mrs. Keidel only if the board initiated the disciplinary proceedings. It is conceded that the board itself did not initiate the instant disciplinary proceedings and that the board took no action whatsoever concerning Mrs. Keidel's dismissal until after the commission had held a hearing and announced its intended decision to sustain her dismissal. Respondents contend, however, that the board was not required to initiate all disciplinary proceedings but that under rule 171(A) of the personnel rules adopted by the commission this right was also given to the director of personnel, to the commission itself, and to any citizen. It is asserted by respondents that rule 171(A) is consistent with applicable provisions of the Education Code. It is conceded by respondents that the commission does not have the right to dismiss a classified employee but that the actual dismissal of such an employee requires formal action of the board. It is also conceded that Mrs. Keidel was a permanent classified employee in a merit system school district.

A perusal of the applicable statutes indicates that in a merit school system district the power to employ, suspend, demote and dismiss classified employees is vested in the governing board of the district. Education Code section 137037 provides that ‘the governing board shall employ, pay, and otherwise control the services' of such employees subject to the limitations imposed by the provisions of article 5 of chapter 3, division 10, part 2. (§§ 13701–13758; see also § 1001.) The authority to suspend, demote or dismiss such employees is found in section 13742 which provides that ‘For reasonable causes an employee may be suspended without pay for not more than 30 days except as provided in this section or may be demoted or dismissed.’8 Although this language does not make specific reference to the agency or person empowered to suspend, demote or dismiss, it is apparent that section 13742 vests this power in the board. Subsequent language in the section, having reference to the suspension of an employee charged with certain sex, narcotic or dangerous drug offenses, provides that ‘the governing board * * * may immediately suspend’ the employee as provided in the section. Section 13745 provides that if the personnel commission sustains an employee who has been suspended, demoted, or dismissed, following the appeals procedure provided for in such cases, ‘the board shall reinstate the employee.’ (Emphasis added.) This language implicitly acknowledges that the suspension, demotion or dismissal was previously ordered by the board.

The board's power to suspend, demote or dismiss an employee is subject to the right of appeal to the personnel commission. (§§ 13743–13745.) Section 13743 provides that ‘Any employee in the permanent classified service who has been suspended, demoted, or dismissed may appeal to the commission within 14 days after receipt of a copy of the written charges by filing a written answer to the charges. * * *’ (Emphasis added.) Section 13744 provides: ‘The commission shall investigate the matter on appeal and may require further evidence from either party, and may, and upon request of an accused employee shall, order a hearing. * * * The decision shall not be subject to review by the governing board.’ (Emphasis added.) Section 13745 provides: ‘If the commission sustains the employee, it may order paid all or part of his full compensation from the time of suspension, demotion, or dismissal, and it shall order his reinstatement. Upon notification of the commission's decision, the board shall reinstate the employee and authorize such compensation as the commission directs.’ (Emphasis added.) In view of these provisions it is implicit that if the employee does not appeal within the time provided for in section 13743, or the commission does not sustain an employee who has appealed, the suspension, demotion or dismissal is operative as of the date the board orders it to be effective.

Immediately following the language that an employee may be suspended, demoted or dismissed for ‘reasonable causes,’ section 13742 provides as follows: ‘In such case the personnel director shall within 10 days of the suspension, demotion, or dismissal file written charges with the commission and give to the employee or deposit in the United States registered mail * * * addressed to the employee * * * a copy of the charges.’ (Emphasis added.)

In view of the foregoing it is concluded that the procedure for the suspension, demotion or dismissal of a merit system classified employee should be as follows: The board can suspend, demote or dismiss such an employee for reasonable cause. There is no requirement for a hearing by the board prior to such action, but the board can act upon information presented to it indicating reasonable cause for suspension, demotion or dismissal. When the board suspends, demotes or dismisses an employee the personnel director must, within 10 days of the suspension, demotion or dismissal, incorporate the charges upon which such action was predicated into written charges which he must file with the commission. (§ 13742.) A copy of these charges must be given to the employee or mailed to him by registered mail. (§ 13742.) Within 14 days after receipt of a copy of the charges the employee may file a written answer to the charges. (§ 13743.) When such an answer is filed the commission must investigate the charges and may take further evidence; and if the employee so requests, the commission shall grant him a hearing at which he may be represented by counsel. If the commission sustains the employee it orders the board to reinstate him and its decision is not subject to review by the board; if it sustains the board, the suspension, demotion or dismissal remains in effect.

The implementation of the foregoing statutes is entrusted to the commission pursuant to its power to prescribe and amend rules as provided in sections 13713, 13714 and 13740. Section 13713 provides as follows: ‘The commission shall prescribe and amend, subject to this article (commencing at section 13701), such rules as may be necessary to insure the efficiency of the service and the selection and retention of employees upon a basis of merit and fitness. The rules shall be binding upon the governing board.’ Section 13714 provides, in pertinent part: ‘The rules shall provide for the procedures to be followed by the governing board as they pertain to the classified service regarding * * * dismissals * * * and any other matters necessary to carry out the provisions and purposes of this article * * *.’ Section 13740, in pertinent part, provides: ‘No person in the permanent classified service shall be demoted or removed except for reasonable cause designated by rule of the commission as detrimental to the efficiency of the service. * * *’

Pursuant to the statutory power to prescribe rules, the commission, in the instant case, adopted certain rules and regulations referring to the suspension, demotion and dismissal of classified employees. Among these were rules 170 and 171. Rule 170 provides the reasons (designated as ‘Causes of Action’) for which employees may be dismissed. Included among these are ‘Insubordination’ and ‘Acts which are incompatible with or inimical to the public service.’ Subdivision (A) of Rule 171, providing that charges must be filed, reads as follows: ‘The appointing power or his representative, or the Commission or its representative, or any citizen may, for proper cause, file with the Commission any or all the charges enumerated in the Act, against a classified employee. After service of the charges has been made on the employee, the appointing power may suspend or dismiss the employee from service until such time as the charges shall have been heard by the Commission and a decision rendered.’ Subdivision (J) of rule 171 provides: ‘If, after due hearing, the charges against said defendant are not sustained or proved and the employee is found not guilty of the charges, the judgment shall direct the reinstatement of the employee to his position. If the charges against said defendant are sustained, a judgment shall be entered in writing stating the action to be taken against the employee and stating the amount of compensation, if any, to which he is entitled for the period from the date of the original filing of charges.’

It is apparent that in enacting rule 171(A) and rule 171(J), the commission interpreted the applicable statutes to mean that the commission proceeds to act upon charges made by any of the persons or agencies mentioned in the rule, and that the board's function is only to suspend or dismiss pending the hearing by and the decision of the commission, and ultimately to dismiss or reinstate upon the decision of the commission. This interpretation is contrary to the provisions of section 13742 which provides that the personnel director can file the written charges which bring into play the appeal procedures before the commission only after the employee has been suspended, demoted or dismissed and within 10 days thereof, and contrary to the provisions of section 13745 to the extent that it provides that if the charges against the employee are sustained the commission decides what action is to be taken against the employee. As already pointed out the power to suspend, demote or dismiss an employee is vested only in the board,9 and the commission is not empowered to take any action where it sustains the charges against the employee except to announce its decision affirming the action of the board.

It is concluded, therefore, that rule 171 (A) is illegal in its entirety because it is contrary to the provisions of the Education Code, and that rule 171(J) is illegal to the extent here indicated because it violates the provisions of the Education Code, since it is well settled that an administrative agency has no authority to enact a rule or regulation which alters or enlarges the terms of legislative enactment. (Renken v. Compton City School Dist., (1962) 207 Cal.App.2d 106, 114, 24 Cal.Rptr. 347; Wallace v. State Personnel Board (1959) 168 Cal.App.2d 543, 547, 336 P.2d 223; Ellis v. Board of Education (1945) 27 Cal.2d 322, 325, 164 P.2d 1; Whitcomb Hotel, Inc. v. Cal. Emp. Comm. (1944) 24 Cal.2d 753, 757, 151 P.2d 233, 155 A.L.R. 405.)

In the light of the foregoing statutes the respective agencies of the district have confused their proper roles and functions regarding the procedures applicable to the suspension, demotion and dismissal of classified employees. It is at once apparent that the commission has arrogated to itself the determination whether such an employee should be dismissed and has left to the board the perfunctory process of formalizing such dismissal. As we view the statutes, the determination whether a classified employee is to be dismissed should be made initially by the board. The commission's function is to determine whether the board's action should be sustained or overruled in the light of the commission's rules designating reasonable cause for such removal. It is only after such review that the board is bound by the decision of the commission. (§ 13744.)

In the instant case the board ordered Mrs. Keidel's dismissal after the termination of the hearing by the commission and its oral announcement of decision, but prior to the commission's findings and judgment. The minutes of the board ordering Mrs. Keidel's termination state that such action was recommended by the personnel director ‘with the approval of the Personnel Commission.’ The initial recommendation to terminate Mrs. Keidel's service was made by Burns, the district's business manager, to Baldwin, the personnel director, following which the latter filed the instant charges. The procedural confusion disclosed by the record is further compounded by the fact that the board terminated Mrs. Keidel's employment effective May 2nd, the date of the above minute order, and that the commission purported to terminate her employment as of March 21st, the date on which the personnel director had first notified Mrs. Keidel of the action of the district ‘to immediately terminate’ her services. It is significant to note here that the commission's judgment specifically states that ‘It is the judgment of this Commission that Mrs. Virginia Keidel be dismissed from the District's classified service.’ (Emphasis added.) This was not the commission's proper function. Its function was to sustain or reject the employee's appeal.

Despite the foregoing discrepancies the proceedings in the instant action substantially complied with the statutory provisions. There was no lack of jurisdiction in this particular case and no miscarriage of justice. The statute requires a dismissal, notice, and a right to a hearing and review by the personnel commission. The employee has received all of these. It is unconceivable that having received all of the rights to which she was entitled she should be reinstated and awarded the right to compensation for almost three years for what appears to be procedural irregularities.

One is transported to Carroll's Wonderland. The personnel commission, as did the King of Hearts, commands, “Let the jury consider the verdict.” The statute and the petitioner, as did the Queen, each demand, “No, no' * * * Sentence first—verdict afterwards.” According to Alice, the rules have the best of it—“Stuff and Nonsense' said Alice loudly, ‘The idea of having the sentence first”10

The key to this enigmatic contradiction between the statute and the rules, and the result that has ensued, lies in the powers of the business manager to suspend, demote or dismiss classified employees.

It is obvious that in any large school district the governing board must act through its authorized supervising agents. No evidence was offered on the question of the existence or nonexistence of the authority of the business manager to act for the governing board in dismissing a classified employee. In the absence of proof to the contrary it may be assumed in support of the action of the school board and the personnel commission, and in support of the judgment of the trial court that the business manager did have such power and authority and did properly institute the proceedings before the personnel commission. The record supports this conclusion.

At the hearing the employee acknowledged that the business manager was her actual boss subject only to the authority of the district superintendent.

In the petition for writ of mandate it is alleged on her behalf, ‘V. That at all times pertinent hereto one James Burns was an employee of Respondent District acting in the capacity of Business Manager thereof; that at all times herein mentioned one Donn R. Baldwin was an employee of Respondents acting in the capacity of Director of Personnel for Respondent District, and in the capacity of Personnel Director for Respondent Commission; that the actions of said Burns and Baldwin, hereinafter referred to were purportedly taken within the course and scope of their employment, but without lawful authority.

‘VI. That on or before March 21, 1967, said James Burns purporting to act in his capacity as Business Manager for Respondent District did present to said Donn R. Baldwin in one, and/or both, of said Baldwin's capacities, complaints concerning alleged misconduct of the aforesaid Mrs. Virginia Keidel; that on or about March 21, 1967, said Virginia Keidel was served with a letter purporting to be a notification of alleged causes for dismissal issued by said Donn R. Baldwin in his capacity of Director of Personnel for Respondent District; * * * that said action by said Burns and said Baldwin was taken without any action by the governing board directing the instituting of dismissal proceedings, or disciplinary proceedings of any kind or character, against said Virginia Keidel, and, Petitioner is informed and believes and thereupon alleges that said acts were done without the knowledge of the governing board of said Respondent District.’

In their answer, respondents alleged that the actions of the business manager and personnel director referred to in the petition were taken within the course and scope of their employment, and in compliance with rules and regulations governing the dismissal of classified personnel.

The court found that it was true that the board had taken no action with respect to the dismissal until after the commission's decision; but it also found that the dismissal proceedings were initiated by the Director of Personnel as a “representative of the appointing power.” If he acted as a representative of the board, it may be inferred that the board had authorized the business manager to discipline and take disciplinary proceedings against classified employees such as the bus driver, of whom he was the acknowledged supervisor. No proof was offered to the contrary and the burden was on the employee to prove the allegations of the petition filed on her behalf.

In Batson v. State Personnel Board (1961) 188 Cal.App.2d 320, 10 Cal.Rptr. 452, a similar issue was raised. The opinion recites, ‘Appellant also contends that the notice of punitive action under which the hearing was had was not signed by the appointing power as required by section 19575.5 of the Government Code. This section states the appointing power may with the consent of the Personnel Board serve on the employee and file with the board an amended or supplemental notice of punitive action. Section 19574 of the Government Code provides that the appointing power, or any person authorized by him, may take punitive action against an employee. The amended notice of punitive action was signed by Dr. O'Brien, the Superintendent and Medical Director of Modesto State Hospital. ‘Appointing power’ means a person having authority to make appointments to positions in the State Civil Service. Gov. Code, § 18524. Section 6558 of the Welfare and Institutions Code provides that subject to the approval of the Department of Institutions (this is the Department of Mental Hygiene, see Welf. & Inst. Code, § 151.5) the medical superintendent of each hospital shall appoint such employees as he deems necessary. Respondent claims that this section makes Dr. O'Brien the appointing power.

‘We believe that it is a reasonable construction of section 19575.5 of the Government Code that the Superintendent and Medical Director of Modesto State Hospital had authority to file and serve the amended notice of punitive action, but if such construction is not a reasonable one, we believe respondent is entitled to the presumption that Dr. Rapaport, the Director of the Department of Mental Hygiene, authorized Dr. O'Brien to sign the notice. Subdivision 15 of section 1963 of the Code of Civil Procedure provides that it is presumed ‘[t]hat official duty has been regularly performed.” (188 Cal.App.2d at p. 325, 10 Cal.Rptr. at p. 455. See, Mesna v. Dawson (1964)61 Cal.2d 91, 92, 37 Cal.Rptr. 193, 389 P.2d 721; and cf. Nilsson v. State Personnel Board (1938) 25 Cal.App.2d 699, 705, 78 P.2d 467.)

The Education Code recognizes the position of business manager, and the power of the governing board to endow the position with the title of deputy, associate or assistant superintendent for the performance of duties not requiring certification qualifications. (§§ 13059 and 937.1; and see § 13723.4; and cf. §§ 935, 936 and 939 in reference to superintendents of school districts.)

Insofar as the rules provide for the commencement of proceedings by ‘The appointing power or his representative * * *’ (Rule 171, subd. A) they are consistent with the statute. It is unnecessary to determine in these proceedings whether proceedings may properly be instituted by others mentioned in that subdivision. (Cf. Gov.Code, § 19583.5.)11

The statute contemplates disciplinary action by the board or its representative and a hearing by the personnel commission. The employee received both. The subsequent action of the board, on May 2nd, although purportedly based on the recommendation of the personnel director with the approval of the personnel commission, was in view of its timing (before any formal action was taken by the commission) an obvious attempt to ratify the action that had been taken. If abortive, for that purpose, it nevertheless does not detract from, but is consistent with, the prior acts of the board's business manager and personnel director. It is suggested that the board might not have acted to terminate the employee in the absence of the recommendation of the personnel commission. It would appear more reasonable, however, to assume that the board would have been more disposed to follow the unilateral recommendation of the business manager than to necessarily follow a recommendation based on conflicting evidence. (See, Griggs v. Board of Trustees (1964) 61 Cal.2d 93, 98, 37 Cal.Rptr. 194, 389 P.2d 722.)

Finally, it should be noted that if petitioner or the employee had questioned the statement of termination contained in the original letter the matter could have been clarified at that time. Although there was no waiver of this objection because of lack of knowledge that the board, as distinguished from the business manager, had not acted in the matter, the fact remains that the employee had a full hearing. Moreover, if the personnel commission had sustained her objection and immediately started anew, after the board had acted, it is inconceivable that the evidence or the conclusions would have been different.

It is generally true that jurisdictional prerequisites must be complied with literally and exactly in order to give the reviewing tribunal, here the personnel commission, jurisdiction over the subject matter. (See Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942, 132 A.L.R. 715; Fraser v. Superior Court (1953) 115 Cal.App.2d 693, 697, 252 P.2d 365; Kientz v. Harris (1953) 117 Cal.App.2d 787, 791, 257 P.2d 41; Hollywood Circle v. Dept. Alco. Control (1957) 153 Cal.App.2d 523, 526, 314 P.2d 1007; Olmstead v. West (1960) 177 Cal.App.2d 652, 654, 2 Cal.Rptr. 443.) The principles are incontrovertible, but the precedents referred to do not necessitate a finding that the discrepancies in the instant proceedings were jurisdictional as a matter of law. In Abelleira v. District Court of Appeals, supra, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715, it was established that a writ of prohibition would lie to restrain the District Court of Appeal from erroneously proceeding on an application for a writ of mandate when the petitioners in that court had failed to exhaust their legal remedies. Neither that case nor the authorities reviewed therein (17 Cal.2d at pp. 288–291, 109 P.2d 942) are decisive on the issue of whether the procedural irregularities urged in this case demonstrate a ‘lack of jurisdiction.’

In Fraser v. Superior Court, supra, 115 Cal.App.2d 693, 252 P.2d 365, the court ruled, ‘The exercise of jurisdiction by a reviewing court in a case where there has been no service of the notice of appeal when service is required, is ineffectual and void.’ (115 Cal.App.2d at p. 697, 252 P.2d at p. 368.) In this case there was service of the charges, an answer thereto, and a hearing. The question of the authorization for the disciplinary action and the filing of the charges has been reviewed above. In both Kientz v. Harris, supra, 117 Cal.App.2d 787, 257 P.2d 41, and Hollywood Circle v. Dept. Alco. Control, supra, 153 Cal.App.2d 523, 314 P.2d 1007 lack of jurisdiction was predicated upon failure to take timely steps to perfect an appeal as prescribed by statute.

It is also true that jurisdiction over the subject matter cannot be conferred by consent, waiver or estoppel. (Summers v. Superior Court (1959) 53 Cal.2d 295, 298, 1 Cal.Rptr. 324, 347 P.2d 668; Olmstead v. West (1960) 177 Cal.App.2d 652, 654, 2 Cal.Rptr. 443; Estate of Hanley (1943) 23 Cal.2d 120, 123, 142 P.2d 423, 149 A.L.R. 1250; and Dyment v. Board of Medical Examiners (1922) 57 Cal.App. 260, 266, 207 P. 409 [opinion of Supreme Court on denial of hearing].) Waiver does not come into play unless there is a lack of jurisdiction, and in each of the foregoing cases there were defects of more serious nature than those urged here.

In Wiles v. State Personnel Board (1942) 19 Cal.2d 344, 121 P.2d 673 the court ruled, ‘A civil service probationer is entitled to have the statutory procedure for dismissal strictly followed. Brown v. State Personnel Board, 43 Cal.App.2d 70, 110 P.2d 497; Nilsson v. State Personnel Board, 25 Cal.App.2d 699, 78 P.2d 467. The procedure here required rejection within the six months' probationary period. This procedure was not followed and the mere intent to dismiss within the period was not sufficient. A rejection not having been accomplished within the probationary period, no dismissal was effected. Brown v. State Personnel Board, supra; Kelly v. State Personnel Board, 31 Cal.App.2d 443, 88 P.2d 264.’ (19 Cal.2d at pp. 351–352, 121 P.2d at pp. 676–677.) That case, and the precedents upon which it relies each involve the question of whether a proper notice of dismissal had been given the employee prior to the expiration of a probationary period. At the expiration of that period the employee became entitled to certain rights which could not thereafter be taken away. In this case, the precedural defects, if any, in the proceedings did not give the employee a right to be exonerated from any disciplinary measures that might be invoked on account of the alleged misconduct set forth in the charges which were filed. At best she could but hope for a second hearing.

In Ahlstedt v. Board of Education (1947) 79 Cal.App.2d 845, 180 P.2d 949, the rule last quoted was applied to relieve an employee when the personnel commission erroneously refused to exercise its jurisdiction to investigate the merits of her appeal from her dismissal. (79 Cal.App.2d at p. 855, 180 P.2d 949, applying former § 14133, now § 13744.) Here the employee has received a hearing.

In this case the subject matter is not so much the dismissal, but the charges on which it was predicated. (See, §§ 13742 and 13743.) The personnel commission had jurisdiction over the subject matter in that sense. It also had jurisdiction over the person of the employee and the board whose representative had filed the charges. In Cook v. Civil Service Commission (1960) 178 Cal.App.2d 118, 2 Cal.Rptr. 836, the court distinguished between procedural and jurisdictional defects as follows: ‘Petitioner urges a great number of grounds for reversal of the judgment. Most of these are based on alleged procedural defects which he claims are jurisdictional in nature and require his reinstatement.

‘In this regard he relies on a rule of strict construction and strict compliance with applicable charter provisions citing, in support of this position, such cases [among others] as Wiles v. State Personnel Board, 19 Cal.2d 344, 351, 121 P.2d 673; * * * Ahlstedt v. Board of Education, 79 Cal.App.2d 845, 180 P.2d 949; Brown v. State Personnel Board, 43 Cal.App.2d 70, 110 P.2d 497; Kelly v. State Personnel Board, 31 Cal.App.2d 443, 88 P.2d 264 and Nilsson v. State Personnel Board, 25 Cal.App.2d 699, 78 P.2d 467. Particular stress is laid upon language used therein which supports the rule advanced. However, the effect of a general rule, and the authority of broad language used in an opinion must be considered in context with the facts under consideration. In several of the cases cited there was no notice and no hearing. Those involving a time element considered the effect of a failure to act pursuant to authority existing only during a specified time as distinguished from the effect of a failure to follow a directive to act within such a time. Respondent contends that the cited cases consider matters which go to the essence of the proceeding under consideration, i. e., of the particular object sought to be accomplished, as distinguished from those which are procedural, regulatory, and for convenience sake, citing Crane v. Board of Supervisors, 17 Cal.App.2d 360, 367–368, 62 P.2d 189, and Meyer v. Board of Public Works, 51 Cal.App.2d 456, 465, 125 P.2d 50. The Chula Vista charter guarantees a discharged employee a right to appeal to the Civil Service Commission. Its provisions should be strictly construed and enforced to effect such hearing. This being achieved irregularities in the proceedings are not jurisdictional. (Boyd v. Pendegast, 57 Cal.App. 504, 207 P. 713; Kidd v. State Civil Service Comm., 13 Cal.App.2d 653, 57 P.2d 569; De Witt v. Board of Supervisors, 53 Cal.2d 419, 425, 2 Cal.Rptr. 1, 348 P.2d 567)’ (178 Cal.App.2d 118, 125–126, 2 Cal.Rptr. 836, 841–842.)

In Crane v. Board of Supervisors (1936) 17 Cal.App.2d 360, 62 P.2d 189, a school district's petition for a change of boundaries was not accompanied by the superintendent's recommendation as required by law. In determining that the board of supervisors did not act in excess of jurisdiction in the absence of such recommendation, the court noted that the board had to consider all the material facts that might be presented on the merits of the petition and was not bound by the superintendent's recommendation. Moreover it would assume that the recommendation would be in accord with the favorable ruling on the petition. (17 Cal.App.2d 366–370, 62 P.2d 189.) So here the appearance of the superintendent of schools and the county counsel at the hearing gives rise to the inference that the dismissal (see, Horner v. Board of Trustees (1964) 61 Cal.2d 79, 87, 37 Cal.Rptr. 185, 389 P.2d 713) under review, and the charges upon which it was predicated, were authorized by the governing board.

The cases last cited in Cook support the following proposition: ‘All that is required here is that the board afford appellant reasonable notice of the charges, that it conduct its hearing fairly and that appellant be given a full opportunity to refute the charges against him. [Citations.]’ (Wisuri v. Newark School Dist. (1966) 247 Cal.App.2d 239, 243–244, 55 Cal.Rptr. 490, 493. See also, Steen v. Board of Civil Service Comm'rs. (1945) 26 Cal.2d 716, 722–725, 160 P.2d 816; and Gilmore v. Personnel Board of State of California (1958) 161 Cal.App.2d 439, 450–452, 326 P.2d 874.)

In short there has been misdirected but substantial compliance with the statutory requirements. The employee had a full hearing and was not prejudiced by the procedural discrepancies which her representative now asserts.

The Merits

Petitioner asserts, on behalf of the employee, that the conclusions of the personnel commission are contrary to law and constitute an abuse of discretion. It first asserts that the employee was denied a fair hearing because the charges raised at the hearing were beyond the scope of the charges of which she was advised in writing. The statute (§ 13742) contemplates ‘written charges.’ The rules (Rule 171) provided, ‘The charges filed must be in writing and must be set forth clearly with such particularity as shall enable the employee to learn of the exact charges made against him and to make answer to them.’

The letter advising the employee of the charges recited, ‘Specifically, the above charges are based on your failure to respond to repeated requests to park your automobile in an assigned area and your failure on repeated occasions to provide transportation to certain students in spite of directions to the contrary.’ Petitioner complains that it was improper to raise at the hearing an incident in which she had failed to pick up a child for which she previously had received a reprimand, and that it also was improper to refer to the employee's use of a so-called ‘bus pass' system, which had been repudiated as a district policy.

This contention was properly disposed of in the trial court's opinion as follows: ‘The charges were sufficiently specific to advise the employee of the nature of the complaint. The transcript of the proceedings fails to reveal any surprise to the employee. It is noted that the hearing was lengthy and lasted over three nights, April 19, 20 and 25. The employee was ably represented by a representative of petitioner, and employee herself exhibited a more than average ability to interrogate. It should also be noted that no objections were made until the decision of the Commission was announced.’

Secondly, it is asserted that there was no insubordination because the order to the employee to park her automobile in an assigned area was unlawful. (See, Sheehan v. Board of Police Comm'rs. (1925) 197 Cal. 70, 78, 239 P. 844; Garvin v. Chambers (1924) 195 Cal. 212, 224, 232 P. 696; Ball v. City Council of City of Coachella (1967) 252 Cal.App.2d 136, 141–142, 60 Cal.Rptr. 139; and International Ass'n. of Fire Fighters v. County of Merced (1962) 204 Cal.App.2d 387, 395, 22 Cal.Rptr. 270.) It is contended that an employee cannot be required to forgo his right to park in an unrestricted parking zone on a public street or highway as a condition of his employment.

There is nothing unusual in ordering an employee to park away from the entrance to his employer's business so that the public may have more convenient access. Here the evidence shows that parking where the employee parked increased the traffic hazards for the school children. It was a reasonable condition of employment, and not an arbitrary divestment of a constitutional right to order the employee to park her personal car in a place provided for that purpose. ‘The wilful refusal * * to obey the reasonable rules and regulations of the employing board of education is insubordination. [Citation.]’ (Board of Education v. Swan (1953) 41 Cal.2d 546, 552, 261 P.2d 261, 265; and see Coomes v. State Personnel Board (1963) 215 Cal.App.2d 770, 775, 30 Cal.Rptr. 639.)

Thirdly, it is contended that the phrase, ‘Acts which are incompatible with or inimical to the public service’ (Rule 170, subd. (N)) is unconstitutionally uncertain. (See, McMurtry v. State Board of Medical Examiners (1960) 180 Cal.App.2d 760, 766, 4 Cal.Rptr. 910.) Whatever may be said concerning the phrase in the abstract, it is settled that where, as here, the employee has been advised to discontinue the activities which formed the basis for the charges, he cannot complain of uncertainty. (Cf. Byrne v. State Personnel Board (1960) 179 Cal.App.2d 576, 580–581, 4 Cal.Rptr. 32, with Shepherd v. State Personnel Board (1957) 48 Cal.2d 41, 49–51, 307 P.2d 4.)

Finally, petitioner contends that the findings of the personnel commission are not supported by substantial evidence in the light of the whole record. ‘When the superior court has rendered its judgment on mandamus and the judgment is appealed, the power of the appellate court is governed by the substantial evidence rule, i. e., the determination of whether the evidence, viewed in the light most favorable to the respondent, sustains the findings of the trial court, resolving any reasonable doubts in favor of those findings. This rule obtains whether the appellate court is reviewing the findings of the trial court where the latter has exercised independent judgment or whether the findings involve the decision of a local administrative agency. In the former situation the appellate court is confined to the evidence received by the trial court; in the latter case it is limited to the evidence in the agency record. [Citations.]’ Le Strange v. City of Berkeley (1962) 210 Cal.App.2d 313, 321, 26 Cal.Rptr. 550, 555.) A review of the record sustains the finding of the trial court, that the decision of the personnel commission sustaining the charges, was itself supported by substantial evidence in the record.

The judgment is affirmed.

I dissent.

I agree with the majority that these proceedings are irregular because of the failure to join Mrs. Keidel as a party. In my opinion this irregularity is jurisdictional and requires a reversal of the judgment.

The majority has properly demonstrated that Mrs. Keidel is an indispensable party. ‘A person is an indispensable party to an action if his absence will prevent the court from rendering any effective judgment between the parties or would seriously prejudice any party before the court or if his interest would be inequitably affected or jeopardized by a judgment rendered between the parties.’ (Code Civ.Proc. § 389.)1 This section has been interpreted to mean that when a complete determination of the controversy cannot be had without the presence of other parties such parties become necessary and indispensable parties. (U-Tex Oil Co. v. Pauley, 209 Cal.App.2d 88, 99, 25 Cal.Rptr. 790; Ambassador Petroleum Co. v. Superior Court, 208 Cal. 667, 671, 284 P. 445; Mitau v. Roddan, 149 Cal. 1, 7–9, 84 P. 145.) Accordingly, where the plaintiff seeks some kind of affirmative relief which, if granted, would injure or affect the interests of a third person not joined, the third person is an indispensable party. (Bank of California v. Superior Court, 16 Cal.2d 516, 522, 106 P.2d 879; Irwin v. City of Manhattan Beach, 227 Cal.App.2d 634, 637–638, 38 Cal.Rptr. 875.) In the instant case Mrs. Keidel's interests are vitally affected by the relief sought by plaintiff, not only because it involves her reinstatement, but also because it involves the damages to which she would be entitled if it is found that her employment was wrongfully terminated. It is well settled that an employee who has been wrongfully deprived of his position is entitled to recover the amount of his accrued salary during the period he is prevented from performing his duties, less the amount he has received from private or public employment during that period. (City of Ukiah v. Fones, 64 Cal.2d 104, 107, 48 Cal.Rptr. 865, 410 P.2d 369; Stockton v. Department of Employment, 25 Cal.2d 264, 273–274, 153 P.2d 741; State Bd. of Equalization v. Superior Court, 20 Cal.2d 467, 474, 127 P.2d 4; Ahlstedt v. Board of Education, 79 Cal.App.2d 845, 857, 180 P.2d 949.) In the light of these principles it appears that any attempt to adjudicate Mrs. Keidel's rights without her joinder as a party would be futile. (See Bank of California v. Superior Court, supra.)

Section 389 provides, further, that ‘When it appears that an indispensable party has not been joined, the court shall order the party asserting the cause of action to which he is indispensable to bring him in. If he is not then brought in, the court shall dismiss without prejudice all causes of action as to which such party is indispensable * * *.’ This section is mandatory and the question then becomes one of jurisdiction and the court may not proceed without bringing the indispensable party in. (U-Tex Oil Co. v. Pauley, supra; ambassador Petroleum Co. v. Superior Court, supra.) In sum, a failure to join an indispensable party constitutes a jurisdictional defect. (Bank of California v. Superior Court, supra, 16 Cal.2d 516, 522, 106 P.2d 879; Sime v. Malouf, 95 Cal.App.2d 82, 116, 212 P.2d 946, 213 P.2d 788; Estate of Reed, 259 Cal.App.2d 14, 22, 66 Cal.Rptr. 193.)

Since the requirement that indispensable parties be before the court is mandatory, it may be raised at any time, and it may be raised by the appellate court of its own motion if the parties fail to make the objection. (Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232, 265, 73 P.2d 1163; Bank of California v. Superior Court, supra, 16 Cal.2d at p. 522, 106 P.2d 879; U-Tex Oil Co. v. Pauley, supra, 209 Cal.App.2d at p. 95, 25 Cal.Rptr. 790; Estate of Reed, supra, 259 Cal.App.2d 14, 22, 66 Cal.Rptr. 193.) In the instant case no objection to the non-joinder of Mrs. Keidel was made in the court below nor has it been urged by the parties on this appeal. The indispensable party defect has been raised by this court on its own motion.

It is clear from the provisions of section 389 that an action should not be dismissed summarily whenever it appears that there is a party whose presence is indispensable, but that the proceedings should be suspended in order to afford the party asserting the cause of action to which such party is indispensable an opportunity to bring him in. (Irwin v. City of Manhattan Beach, supra, 227 Cal.App.2d 634, 638, 38 Cal.Rptr. 875.) As observed in Irwin, ‘The proper procedure would have been for the court to take notice of the absence of the indispensable parties which the litigants had evidently overlooked, order them to be brought in by plaintiff and to dismiss the action without prejudice if they were not brought in.’ (P. 638, 38 Cal.Rptr. p. 878.) However, if this procedure is not invoked or such an order is not applied for in the trial court, the proper and necessary disposition by an appellate court is to conditionally reverse the judgment solely upon the ground that it is void since the appellate court is without authority to affirm it as the trial court was without authority to render it. (Irwin v. City of Manhattan Beach, supra, at p. 639, 38 Cal.Rptr. 875.)

I would not, in any event, affirm the judgment even if we had authority to do so. I agree with the majority that the Commission does not have the right to dismiss a classified employee, that such dismissal requires formal action of the Board, and that the Commission's proper function is to determine whether the Board's action should be sustained or overruled in the light of the Commission's rules designating reasonable cause for such removal. I also agree with the majority's determination that rule 171(A) is illegal in its entirety because it is contrary to the provisions of the Education Code, and that rule 171(J) is illegal to the extent indicated in the majority opinion. I do not, however, agree with the conclusion that there has been a substantial compliance with the statutory provisions.

The majority, after clearly demonstrating that the basic statutory provisions were not complied with, dismisses the noncompliance as consisting of nothing more than mere discrepancies and procedural irregularities. The gist of its holding is that because Mrs. Keidel received a hearing and review by the Commission she received all of the rights to which she was entitled. This conclusion presupposes, of course, that the Commission had something to hear. What it was supposed to hear was whether the Board was justified in dismissing Mrs. Keidel. Since the Board had not taken any action with respect to the dismissal of Mrs. Keidel when the Commission undertook to investigate the matter of her dismissal, it is obvious that the Commission was not holding a hearing to determine whether the Board's action should be sustained or overruled. (See Cook v. Civil Service Commission, 178 Cal.App.2d 118, 130–131, 2 Cal.Rptr. 836.) It is patently clear, moreover, that what the Commission undertook to do when it conducted its hearing was to determine whether under the rules it had formulated Mrs. Keidel should be dismissed. In essence it was acting in the dual capacity of prosecutor and judge.

As I view this case the crucial issue is whether the Commission had jurisdiction. If it did not it is of no moment that Mrs. Keidel received a hearing, no matter how fairly that hearing was conducted. It is equally true that if the Commission lacked jurisdiction Mrs. Keidel was deprived of due process and it follows that there was a miscarriage of justice. I apprehend, moreover, that we cannot give the proceedings jurisdictional life by a ‘lifting by the bootstraps' rationale which is predicated upon the premise that, since Mrs. Keidel did receive a hearing and was ultimately dismissed by the Board because of the Commission's determination, we should strive to avoid placing upon the District the financial burden which would ensue if Mrs. Keidel is reinstated.

The Commission in the present case did not have jurisdiction of the subject matter because no decision to dismiss Mrs. Keidel had been made by the Board when the Commission undertook to investigate the matter of her dismissal. It is the policy of our law that the jurisdictional prerequisites must be complied with literally and exactly in order to give the appellate or reviewing tribunal jurisdiction over the subject matter. (See Abelleira v. District Court of Appeal, 17 Cal.2d 280, 288, 109 P.2d 942, 132 A.L.R. 715; Fraser v. Superior Court, 115 Cal.App.2d 693, 697, 252 P.2d 365; Kientz v. Harris, 117 Cal.App.2d 787, 791, 257 P.2d 41; Hollywood Circle v. Dept. Alco. Control, 153 Cal.App.2d 523, 526, 314 P.2d 1007; Olmstead v. West, 177 Cal.App.2d 652, 654, 2 Cal.Rptr. 443.) This policy applies to appeals in administrative tribunals. (Hollywood Circle v. Dept. Alco. Control, supra.) In administrative mandamus the inquiry extends to whether the agency proceeded without or in excess of its jurisdiction, whether there was a fair hearing, and whether there was any prejudicial abuse of discretion. (Code Civ.Proc. § 1094.5, subd. (b); Le Strange v. City of Berkeley, 210 Cal.App.2d 313, 320, 26 Cal.Rptr. 550.) Abuse of discretion is established if the agency has not proceeded in the manner required by law. (Code Civ.Proc., § 1094.5, subd. (b); Le Strange v. City of Berkeley, supra.)

Jurisdiction over the subject matter cannot be conferred by consent, waiver or estoppel. (Summers v. Superior Court, 53 Cal.2d 295, 298, 1 Cal.Rptr. 324, 347 P.2d 668; Olmstead v. West, supra, 177 Cal.App.2d 652, 654, 2 Cal.Rptr. 443; Estate of Hanley, 23 Cal.2d 120, 123, 142, P.2d 423, 149 A.L.R. 1250; Dyment v. Board of Medical Examiners, 57 Cal.App. 260, 266, 207 P. 409 [opinion of Supreme Court on denial of hearing].) Accordingly, in the present case it may not be urged that Mrs. Keidel did not make a timely objection to the Commission's jurisdiction since there was a want of jurisdiction whether she objected or not. (See Dyment v. Board of Medical Examiners, supra.) Moreover, it is apparent that Mrs. Keidel objected to the Commission's jurisdiction at the earliest opportunity upon being apprised that she had not been dismissed by action of the Board. As found by the trial court, Mrs. Keidel was not aware that her dismissal was not initiated by the Board until after the Commission's verbal decision at which time she made a prompt objection.

The lack of jurisdiction on the part of the Commission precludes consideration of the case on the merits on the basis that since Mrs. Keidel has had a full hearing before the Commission, expediency dictates that we do so in order to avoid the necessity of another hearing. Such a suggestion assumes that the Board, acting on its own initiative, would be disposed to dismiss Mrs. Keidel. Such an assumption is pure speculation. I am not persuaded, moreover, by the suggestion that the Board's dismissal action on May 2 was, in effect, a ratification of the original determination made by the District's business manager so as to make the Board's action retroactive to March 21. In this regard it should be noted that the Board's minutes of May 2 reflect that the Board was not acting upon the business manager's recommendation, but, rather, upon the determination of the Commission that Mrs. Keidel should be dismissed; and that acting upon such determination the Board was terminating her employment as of May 2. In any event, I am satisfied that neither of these suggestions conforms to the basic requirements of due process.2

It is well established that a classified civil service employee is entitled to have the statutory procedures for dismissal strictly followed. (Wiles v. State Personnel Board, 19 Cal.2d 344, 351, 121 P.2d 673; Ahlstedt v. Board of Education, supra, 79 Cal.App.2d 845, 855, 180 P.2d 949.) In my opinion these procedures were not strictly followed in the present case. For the reasons indicated the Commission did not acquire jurisdiction to investigate the matter on appeal and it abused its discretion as a matter of law because it did not proceed in the manner provided by law. Accordingly, Mrs. Keidel's employment was wrongfully terminated.

I would reverse the judgment with directions to the court that, pursuant to section 389, it order plaintiff to bring in Mrs. Keidel as a party. If she is properly brought in as a party, the instant mandamus action should be retried. If she is not brought in the court shall dismiss without prejudice all causes of action to which Mrs. Keidel is indispensable. I would not award costs of appeal to either party.

FOOTNOTES

1.  This paragraph reads, ‘I. Petitioner is, and at all times pertinent hereto was, a non-profit corporation and an employee representative organization representing public school classified employees and approved as an educational organization for membership by school districts and county superintendents of schools by action of the State Board of Education as of December 15, 1966, for the period from March 12, 1965, through June 30, 1968. That Petitioner has members in good standing in Respondent Pajaro Valley Unified School District including but not limited to one Mrs. Virginia Keidel; that one of the primary purposes of Petitioner is representing members in their employment relations with their school district employers.’

2.  The record, 1 Civ. 25817 (Div. 3), reflects that although relief was originally sought for four employees by the time of the entry of the pretrial order one former employee was dropped from the group. In its decision the trial court had noted, ‘It would seem that the requirement that the action be conducted individually would be unnecessary, although it might have been preferable if the plaintiff had so handled this particular litigation.’ The court refused to give legal expression to its preference, because under the facts of the particular case it would exalt form over substance. (Cf. Daniels v. Sanitarium Ass'n., Inc. (1963) 59 Cal.2d 602, 609, 30 Cal.Rptr. 828, 381 P.2d 652.)

3.  Education Code section 13083 provides: ‘Employee organizations shall have the right to represent their members in their employment relations with public school employers. Employee organizations may establish reasonable restrictions regarding who may join and may make reasonable provisions for the dismissal of individuals from membership. Nothing in this section shall prohibit any employee from appearing in his own behalf in his employment relations with the public school employer.’Section 13084 states: ‘The scope of representation shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to wages, hours and other terms and conditions of employment.’

4.  Code of Civil Procedure section 367 provides: ‘Every action must be prosecuted in the name of the real party in interest, except as provided in section three hundred and sixty-nine of this code.’Section 382 provides: ‘Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the Court, one or more may sue or defend for the benefit of all.’Section 1086 provides: ‘The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.’ (Cf. Sperry & Hutchinson Co. v. Cal. State Bd. of Pharmacy (1966) 241 Cal.App.2d 229, 231–232, 50 Cal.Rptr. 489, with Funeral Dirs. Ass'n. v. Bd. of Funeral Dirs. (1944) 67 Cal.App.2d 311, 313, 154 P.2d 39.)

5.  Unless otherwise indicated, all dates referred to have reference to the year 1967.

6.  These proceedings were not reported. At the hearing in the court below Joe Starns, Mrs. Kiedel's representative before the commission, was called as a witness and testified concerning these matters. Based upon this testimony the trial court made findings after the chairman of the commission announced the commission's decision; that the board had taken no action with respect to Mrs. Kiedel's dismissal until after the commission's decision; and that neither Mrs. Kiedel nor her representative were informed of this fact.

7.  Unless otherwise indicated, all statutory references are to the Education Code.

8.  The exceptions with respect to suspension have reference to an employee charged with certain sex, narcotic, and dangerous drug offenses. In these cases the governing board may suspend for a period longer than 30 days as provided in the section.

9.  Under its rule-making power the commis sion was empowered to provide that charges against employees could be filed with the board by the persons or agencies mentioned in rule 171(A). In such case the board could act upon such charges in the first instance and if it elected to suspend, demote or dismiss the employee upon the basis of such charges, these would form the basis of the written charges filed with the commission by the personnel director, following which the employee involved would be entitled to seek a review by the commission of the charges.

10.  Alice's views are found in the procedure to dismiss permanent certificated employees. (See, Ed.Code, §§ 13403–13441 passim, and particularly § 13446.) Probationary certificated employees have similar limited rights (see, §§ 13442 and 13443); and permanent classified employees not under a merit system are entitled to a hearing by the governing board (see, § 13583).

11.  Petitioner envisions and parades a line of spectral employees who might be dismissed on the complaint of an irate citizen by the personnel commission without any action by, and over objections of, the governing board. It suffices to state that no such situation is presented by this case, in which the decision of the board is of record.

1.  Unless otherwise indicated, all statutory references in this dissenting opinion are to the Code of Civil Procedure.

2.  We do not suggest that the Board could not delegate its authority to hire, demote, suspend or dismiss classified employees under the merit system to the business manager or other administrative officers of the District. In the present case the record is devoid of any showing that such authority was so delegated.

SIMS, Associate Justice.

ELKINGTON, J., concurs.