ARMISTEAD v. CALIFORNIA STATE PERSONNEL BOARD

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Court of Appeal, Third District, California.

James H. ARMISTEAD, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD and Department of Water Resources, Defendants and Respondents.

Civ. 16034.

Decided: August 10, 1977

Robert J. Sullivan of Turner & Sullivan, Sacramento, for plaintiff and appellant. Evelle J. Younger, Atty. Gen., Steven A. Merksamer, Deputy Atty. Gen., for defendants and respondents.

James H. Armistead (hereinafter ‘appellant’) appeals from a judgment dismissing his petition for writ of mandate (Code Civ.Proc., § 1094.5) after a demurrer of the California State Personnel Board was sustained without leave to amend. The dismissal left intact the Board's decision denying appellant's petition to set aside his resignation from a civil service position as Associate Control System Engineer in the California Department of Water Resources.

The petition alleges the following facts:1 On Wednesday, December 11, 1974, appellant placed the following memorandum on the desk of his supervisor: ‘This memo is to inform you that I intend to resign at the end of all accumulated vacation.’ He then absented himself from work, without leave, until Tuesday, December 17, 1974, when he submitted the following memorandum: ‘This memorandum is to inform you that, due to family considerations, I do no longer intend to resign as previously stated.’ By letter dated December 18, 1974, the personnel officer, with knowledge of the December 17 memorandum, accepted the December 11 resignation.

Section 525.11 of the Personnel Transactions Manual (hereinafter ‘PTM’), upon which the personnel officer relied when accepting the resignation, reads: ‘An employee who resigns effective at some future date may withdraw his resignation before the effective date of that resignation and continue in employment only with the approval of the appointing power. If the appointing power does not wish to accept his withdrawal, the resignation will become effective upon the date originally stated.’ (Emphasis added.)

Appellant's numerous attacks on the judgment fall essentially into three rubrics:

(1) The PTM is not applicable because civil service employment is contractual and not statutory.

(2) PTM section 525.11 should not be given weight as an administrative interpretation of the civil service statutes.

(3) Application of the PTM to appellant violated his constitutional right to due process of law.

I

Appellant's argument that his employment rights are contractual (and that therefore he had the right to rescind his resignation before it was accepted) is in error. In contrast to public school teachers, whose rights are indeed contractual (Cal.Const., art. VII, § 4, subd. (i) formerly Cal.Const., art. XXIV, § 4, subd. (i); Richardson v. Board of Education (1936) 6 Cal.2d 583, 586, 58 P.2d 1285), the ‘terms and conditions of civil service employment are fixed by statute and not by contract.’ (Boren v. State Personnel Board (1951) 37 Cal.2d 634, 641, 234 P.2d 981, 985; see also Martin v. Henderson (1953) 40 Cal.2d 583, 590, 255 P.2d 416; Gilmore v. Personnel Board (1958) 161 Cal.App.2d 439, 449, 326 P.2d 874; Patten v. Cal. State Personnel Board (1951) 106 Cal.App.2d 168, 174, 234 P.2d 987; Markman v. County of Los Angeles (1973) 35 Cal.App.3d 132, 134, 110 Cal.Rptr. 610.) The state civil service system consists of general laws enacted by the Legislature and administered by the State Personnel Board (hereinafter ‘Board’) to govern the employment of all State civil service employees. (Cal.Const., art. VII, supra; Gov.Code, § 18500 et seq.; Proctor v. S. F. Port Authority (1968) 266 Cal.App.2d 675, 683, 72 Cal.Rptr. 248; see Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 105, 77 Cal.Rptr. 224, 453 P.2d 728.)

II

Having determined that appellant's rights are statutory, we examine the statutory authority for PTM section 525.11.

The Legislature has specifically delegated to the Board authority to promulgate rules governing resignations. Government Code section 19502 states in pertinent part: ‘Resignations from the State civil service are subject to board rules.’ Pursuant to this authority, the Board has adopted rules 445 and 446 (2 Cal.Admin.Code, §§ 445, 446) which state in pertinent part: Rule 445. ‘An employee may resign from state service by submitting his written resignation to the appointing power.’ Rule 446. ‘Permanent separations from state service shall include . . . resignation.’

The PTM is not promulgated by the Board itself, but rather by the executive officer of the Board, to whom the Constitution delegates authority to administer the civil service statutes under the rules of the Board. (Cal.Const., art. VII, § 3, subd. (b).) It is intended only for internal, limited circulation to those involved in personnel management. PTM section 1.1 states: ‘The manual is written primarily for those persons engaged in the day-to-day operation of personnel transactions.’

Section 2.11 states in relevant part: ‘All requests for a complete manual must be submitted in writing to the Personnel Board Personnel Action Review and Processing Section by the central personnel office of the department . . ..’

Section 2.12 states: ‘Each request must include a justification of the need for and intended use of the manual since the distribution is limited to those persons engaged in the day-to-day operation of personnel transactions.’

Both sides agree that the PTM (or at least § 525.11, the only section in issue) relates only to the internal management of the agency. Thus it is exempt from the notice and publication requirements of the Administrative Procedure Act. (Gov.Code, § 11371; see Cook v. Craig (1976) 55 Cal.App.3d 773, 785–786, 127 Cal.Rptr. 712.) But by the same token, it does not have the force of law.

The Board nevertheless argues that PTM section 525.11 is entitled to great weight as an administrative interpretation of a statute by those charged with its administration.. We agree. The general rule is that such an administrative interpretation should not be set aside unless clearly erroneous. (Los Angeles v. Superior Court (1941) 17 Cal.2d 707, 712, 112 P.2d 10; Andreadis v. Board of Trustees (1976) 59 Cal.App.3d 344, 351, 130 Cal.Rptr. 652.)

Appellant does not dispute the general rule, but ‘takes issue with the finding that what is essentially an internal managerial document should be elevated to the dignity of an administrative interpretation.’ The argument is without merit, for it is well settled that an agency's interpretation may take the form of a manual of procedure similar to the PTM (Adoption of Parker (1948) 31 Cal.2d 608, 615, 191 P.2d 420), an adjudicatory decision of the administrative agency similar to that in this case (Flores v. Unemployment Ins. Appeals Bd. (1973) 30 Cal.App.3d 681, 684, 106 Cal.Rptr. 543), or even an informally expressed opinion (Christensen v. Thurber (1953) 120 Cal.App.2d 517, 519, 261 P.2d 312).

Furthermore, we do not find PTM section 525.11 erroneous in its interpretation of Government Code section 19502 and rules 445 and 446. Among other things, it is in accord with general case law respecting elected public officials. In Meeker v. Reed (1924) 70 Cal.App. 119, 123, 232 P. 760, 762; the court stated: ‘. . . it appears to be the settled law of this state that a resignation takes effect immediately upon the date mentioned in the written resignation, filed as provided by law by the officer tendering his resignation. No acceptance is required.’ (See also Hamm v. City of Santa Ana (1969) 273 Cal.App.2d 84, 78 Cal.Rptr. 102.)

Moreover, the interpretation of PTM section 525.11 is reasonable and necessary for effective governmental administration. Appellant's case is itself paradigmatic of the need for it. He testified that in November 1974, he requested and was denied approval of a December vacation; he therefore submitted the resignation ‘Primarily to cover the period of time I wanted to look for a job . . .. Previously I had been told you can use this period of time to look for a job, and if you don't find a job, you can continue your employment.’

In other words, appellant intended to use a sham resignation as a device to circumvent his employer's denial of a request for time off in December. He testified that he had submitted a similar resignation when he was working ‘in the Delta’ three or four years earlier and had thereafter been permitted to resume work.2 The resignation in question was not the result of a spur-of-the-moment decision; it was typed on December 5, 1974, six days before it was submitted and the day appellant spoke to a Staff Legal Representative of the California State Employees Association about the effect of a resignation upon his continued representation by CSEA (with respect to an appeal from departmental punitive action against him).3

This illustrates the propriety and wisdom of the Board's interpretation. Without it, appellant's effort in effect to take improper advantage of his employer would have succeeded. Irrespective of PTM section 525.11, the Board has correctly interpreted rules 445 and 446.4

The judgment is affirmed.5

I concur with part one of the majority opinion, but dissent from part two.

Government Code section 19502 states: ‘Resignations from the State civil service are subject to board rules' which for the purposes of this case are ‘regulations' as defined by Government Code section 11371(b).1 Regulations must be promulgated in accordance with the California Administrative Procedure Act (Gov. Code, §§ 11370–11440), which prescribe minimum procedural requirements including notice, filing, and publication. Unless these requirements are complied with, a regulation has not been legally issued and is ineffective.

The majority opinion acknowledges the State Personnel Board's Personnel Transactions Manual (‘PTM’) does not satisfy the California Administrative Procedure Act requirements. However, the opinion argues the ‘PTM’ relates only to the “internal management' of the agency' and is thus exempt from the procedural requirements of the Administrative Procedure Act. Three reasons compel me to reject this argument: First, ‘internal management’ is a limited concept denoting only perfunctory administrative functions. The recent case of Poschman v. Dumke (1973) 31 Cal.App.3d 932, 943, 107 Cal.Rptr. 596, is persuasive. It holds that with respect to the promulgation of regulations, the exception should be construed ‘narrowly so as to encompass accounting techniques and the like.’ Inasmuch as PTM section 525.11 deals with the termination of employment, a matter of considerable moment to every civil service employee, the ‘internal management’ exception is not applicable in the case before us. Secondly, the ‘internal management’ exception, it seems to me, should be limited to the agency promulgating the directive. By contrast, PTM section 525.11 is intended to be generally applied by all appointing powers. Thus, because of its broad scope and general application it cannot be considered within the ambit of ‘internal management’ of the State Personnel Board. Finally, the majority opinion quotes PTM sections 1.1, 2.11, and 2.12 which state the PTM is not to be generally distributed, and indeed all requests to see it must be justified and carefully screened, as evidence that the PTM is intended only for ‘internal management.’ Though the PTM is used ‘internally’ by personnel officers, the fact remains it is used externally, for all State employees, as a ‘standard of general applicability’ to interpret sections 445 and 446 (2 Cal. Admin. Code, §§ 445, 446), and as such it falls outside the ‘internal management’ exception.2

The board also argues that the ‘PTM’ is entitled to great weight as an administrative interpretation of a statute by those charged with its administration because it does no more than clarify or explain sections 445 and 446. However, as a matter of law, under section 11371(b) if the document involves a standard of general applicability that implements, interprets or makes specific a statute it is a ‘regulation’ and thus subject to Administrative Procedure Act strictures. Since PTM section 525.11 is intended for use by all state agencies to regulate a matter of great importance to all employees, it involves a matter of general applicability, and since it is acknowledged that it interprets sections 445 and 446, it is patent that it is a ‘regulation’ as defined by Government Code section 11371(b). Therefore, it must be promulgated pursuant to the Administrative Procedure Act to be effective, and cannot be used as an ‘administrative interpretation’ without violating the intent of the state's basic procedural due process statute.

Two other reasons compel me to disagree with the majority opinion. First, in promulgating PTM section 525.11, the executive officer has purported to delegate personnel officers arbitrary power devoid of standards or guidelines. This he cannot do, for the presumption that an officer will not act arbitrarily but will exercise sound judgment and good faith cannot sustain a delegation of unregulated discretion. (See In re Porterfield (1946) 28 Cal.2d 91, 168 P.2d 706.) Second, contrary to the majority opinion, I feel bound to address further the basic issue of whether, with regard to PTM section 525.11, State employees are entitled to the procedural due process mandated by the Administrative Procedure Act. In my view, the answer is found in both general due process precepts and in the broad language of the Act itself. There is no exception to the rule that a document of general applicability used to implement, interpret, or make specific a statute cannot be enforced against an employee absent notice and an opportunity to comment, and publication reasonably calculated to afford the employee an opportunity to acquire knowledge of the document. (See Martin v. State Personnel Bd. (1975) 46 Cal.App.3d 558, 120 Cal.Rptr. 160.) When we consider that the regulation intimately affects the livelihood of over one hundred thousand California citizens, the policy considerations for applying the Administrative Procedure Act to them is compelling. To do otherwise is to ignore the plain meaning of Government Code section 11371(b) and to sanction the application of a ‘restricted’ document to the livelihood of State employees. Were this a case where PTM section 525.11 was being used truly internally, that is, not affecting the livelihood of employees, I might accept the majority opinion's view. However, I cannot do so when appointing powers in all agencies abide by PTM section 525.11 in processing resignations and perforce subject employees to its interpretations of sections 445 and 446. In effect, the Board has circumvented both State employees' fundamental due process rights and the express will of the legislature, to wit: Employees must be given due notice of the regulations imposed upon them by the terms and conditions of civil service employment.

It should be noted that the rule in the federal courts under the federal analogue to the California Administrative Procedure Act (5 U.S.C., § 551, et seq.) accords with this position: ‘The Congressional directive in regard to the procedure to be followed in the issuance of agency regulations must be strictly complied with, since the issuance of regulations is in effect an exercise of delegated legislative power.’ (Hotch v. United States (9 Cir. 1954) 212 F.2d 280, 282, 14 Alaska 594; Tasty Baking Company v. Cost of Living Council (D.C., 1975) 395 F.Supp. 1367, at p. 1389; cf. California Citizens Band Association v. United States (9 Cir., 1967) 375 F.2d 43.)

The policy considerations for applying the Administrative Procedure Act to this case are apparent, yet ignored by the majority. Had petitioner known of the board's ‘authority’ to prohibit revocation of his ‘resignation’, it is unlikely this case would have developed at all. Further, if the executive director of the Board changes his position with regard to resignations while continuing to insist that as a practical matter only those ‘engaged in the day to day operation of personnel transactions' are entitled to know of the change, we can expect the same litigious results in the next case. Of course, I do not suggest employees may wantonly disregard valid State managerial interests. Should an employee violate a published regulation, the appointing power may simply initiate disciplinary proceedings against him pursuant to Government Code sections 19570, et seq.

I would hold PTM section 525.11 invalid.

Further, I would hold the Board estopped to deny appellant the discretion to revoke his resignation. Having once permitted employees including Armistead to do so, the Board may not now act in a contrary manner absent a pertinent regulation promulgated subsequent in time and in a valid manner. Nothing in rules 445 and 446 suggests a contrary conclusion; indeed they do not speak to this issue. Case law on the subject is at best inconclusive, and in fact Meeker v. Reid (1924) 70 Cal.App. 119, 232 P. 760, cited by the majority opinion, is inapposite for it addresses the issue of acceptance, not revocation, of a resignation. Even were it otherwise, equity and justice dictate that appellant, as all citizens, must be entitled to expect fair and consistent administration of government.

In light of the foregoing, I need not discuss the issue of whether Armistead's ‘resignation’ was anything more than a statement of future intention. However, I note that the form of resignation is one matter that might well be covered in a regulation to avoid future misunderstanding and repeated litigation.

As this court has previously stated, the procedural directions of the Administrative Procedure Act are designed to both promote meaningful public participation (California Optometric Assn. v. Lackner (1976) 60 Cal.App.3d 500, 131 Cal.Rptr. 744) and insure that procedural elasticity is not stretched into disregard of the law. (California Assn. of Nursing Homes Etc., Inc. v. Williams (1970) 4 Cal.App.3d 800, 84 Cal.Rptr. 590.) In reality, the majority opinion encourages the very problem it seeks to avoid by vitiating both good public policy and the legislative mandate requiring openness in government. By contrast, the adoption of a regulation will avoid future problems and comply with the law.

I would reverse the trial court's judgment.

FOOTNOTES

1.  The transcript of the administrative hearing is incorporated into the petition by reference.

2.  The detailed circumstances surrounding the Delta incident are not in the record. No facts with reference thereto were pleaded, and no estopped was ever asserted, either before the Board, the trial court, or this court.

3.  We are not impressed by the argument that the wording of the resignation, couched as it is in the future tense, should alter the result. The totality of the statement, coupled with the immediate cessation of work without permission, could give a reasonable employer no other impression than that termination of employment was a fait accompli.

4.  In view of this portion of our decision, it is unnecessary to discuss appellant's due process argument.

5.  The dissent unnecessarily mixes its admirable enthusiasm for adequate notice of hearing to satisfy due process with all the procedural promulgation requirements of the APA. There is no due process right to a hearing before an administrative rule is promulgated. As we have held, entirely ignoring PTM 525.11, the Board's interpretation of Government Code section 19502 and Administrative Rules 445 and 446 is correct; an unequivocal resignation, even though effective as of a future date, is final. Forthwith upon its delivery, the employer will usually react. For example, he may immediately seek and obtain a replacement, he may promote another employee to the vacated position, or he may shift working responsibility on a temporary or permanent basis. To require the employer to await a possible change of mind before taking action of this sort would be absurd. The only fair result of an unconditional and unequivocal resignation is to accept it at face value, i. e., final and irrevocable.The function of PTM 525.11 in such circumstances is not, as the dissent conceives it, to penalize a recanting resignee, for it would be utterly needless to such purpose. Rather, its function is to assist and favor him in those cases where he deserves to be favored and all the equities make it appropriate. In applying such a salutary rule, personnel officers doubtless consider all the facts, including, inter alia, the action taken in reliance upon the resignation and the good faith of the employee (which is totally absent here).The thrust of the dissent further appears to be that because distribution of the PTM is limited, it was not available for appellant to examine. This assumption is unwarranted. The limited distribution is necessary because of ‘the responsibility of maintaining and updating . . . mailing lists and distributing the revisions . . ..’ (PTM, § 2.11.) Distribution of this two-volume loose-leaf publication and its periodic supplements to every state employee is impractical and wasteful; and the present practice of depositing copies with personnel officers charged with maintaining the supplemental service is adequate to make it reasonably accessible to everyone. We take judicial notice of the fact that two current copies of the PTM are in the California State Library Government Documents Section, where they may be perused at any time by any state employee. The contents of the PTM are thus not a closely guarded secret, as the dissent implies. Appellant had ready access to the PTM, either by seeking it in the Library or other public place, or by asking his personnel officer about it. One would expect that before anyone submits an unconditional resignation intending that it be ineffective, he should himself actively ascertain the existence or absence of any employer rules on the subject.

1.  Government Code section 11371(b) reads in pertinent part:“Regulation' means every rule, regulation, order, or standard of general application or the amendment, supplement or revision of any such rule, regulation, order or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure, except one which relates only to the internal management of state agencies.'

2.  What these sections do show is that in addition to disregarding the Administrative Procedure Act, the State Personnel Board's ‘PTM’ appears to violate the Public Records Act, which establishes (with exceptions not applicable here) every citizen's right to inspect and receive all public records at any time. (Gov. Code, § 6250, et seq.)

PARAS, Associate Justice.

REGAN, Acting P. J., concurs.