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Court of Appeal, First District, Division 2, California.

Ronald C. LAPEKAS, Plaintiff and Respondent, v. STATE PERSONNEL BOARD, et al., Defendants and Appellants.

Civ. 49649.

Decided: July 10, 1981

Ronald C. Lapekas, Hayward, in pro. per. George Deukmejian, Atty. Gen., Robert E. Murphy, Deputy Atty. Gen., San Francisco, for defendants and appellants.

Defendants, State Personnel Board (Board) and Department of Insurance (Department), appeal from a judgment granting plaintiff, Ronald Lapekas, a peremptory writ of mandamus.   The judgment ordered the Board to set aside its decision dismissing plaintiff's appeal from a disciplinary suspension from employment, and to grant plaintiff a new hearing.

Plaintiff was a full-time, permanent insurance investigator for the Department.   On July 1, 1976, the Department informed plaintiff that, effective July 8, 1976, he was to be suspended without pay for four months for providing confidential Department information to Assemblywoman Leona Egeland, in violation of Department regulations.   The notice of punitive action stated that plaintiff had the right to respond to the action within five days by contacting Clifford Porter, Chief of the Staff Services Bureau.   Plaintiff contacted Porter, but Porter did not have the evidence against plaintiff for his review.   On July 8, 1976, plaintiff requested a hearing before the Board.1

 After three continuances, a hearing was held on March 14 and 15, 1977, before the Department's hearing officer, Robert Hill.   Plaintiff raised a jurisdictional claim, asserting that he had been denied his “Skelly” rights.2  Hill admitted evidence on the claim but did not make a ruling.   Plaintiff also attempted to introduce evidence that the Department had been motivated by retaliation when it imposed the suspension.   Hill refused to admit the evidence, ruling that it was irrelevant.   Finally, plaintiff attempted to introduce into evidence a tape recording of a meeting that he had with Assemblywoman Egeland.   The tape was marked for identification and returned to plaintiff so that a transcript could be made.   On March 31, 1977, plaintiff informed Hill that he would not prepare a transcript of the tape and wished to withdraw it as evidence because it contained information that could be used for impeachment purposes.

On May 11, 1977, plaintiff formally requested that the tape be withdrawn.   Hill informed plaintiff that the tape was part of the record and that, unless it was returned, plaintiff's appeal would be dismissed.   Plaintiff responded that he was entitled to withdraw the tape as it had not been formally introduced into evidence.

In his proposed decision to the Board, Hill recommended that plaintiff's appeal be dismissed.   On July 7, 1977, the Board, adopting Hill's recommendation, dismissed plaintiff's appeal.

Plaintiff then initiated this mandamus action, asserting that he had been denied a predisciplinary hearing, as required by Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 and that the Board's failure to rule on this jurisdictional issue rendered its decision a nullity.   Second, plaintiff argued that evidence that a disciplinary action was motivated by retaliation for the exercise of a constitutionally guaranteed right is expressly permitted by Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 592, 100 Cal.Rptr. 16, 493 P.2d 480 and that Hill's refusal to admit the evidence constituted a denial of plaintiff's right to a fair hearing.   Third, plaintiff contended that the Board did not have the power to dismiss plaintiff's appeal for refusing to return the tape, and that even if it did have the power, the Board's action was an abuse of discretion.

The trial court found that the Board had exceeded its powers and had acted arbitrarily in dismissing plaintiff's appeal;  that the Board had unlawfully deprived plaintiff of his right to present evidence concerning the true reason for his dismissal;  and that plaintiff had been denied a fair and complete hearing.   Consequently, the court issued a judgment granting a peremptory writ of mandamus ordering the Board to grant plaintiff a new hearing, to allow plaintiff to introduce evidence in support of his claim of a retaliatory motive, and to make findings of fact, including findings pertaining to plaintiff's claim that he had been denied his Skelly rights.  (Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774.)

Judicial review of final administrative decisions is governed by section 1094.5 of the Code of Civil Procedure.  (Boren v. State Personnel Board (1951) 37 Cal.2d 634, 637, 234 P.2d 981.)   Subdivision (b) provides that “The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction;  whether there was a fair trial;  and whether there was any prejudicial abuse of discretion.   Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.”

Defendants raise only one contention on appeal:  that the trial court should have denied plaintiff's petition for a writ of mandate because the Board acted properly and within its powers when it dismissed plaintiff's appeal for his failure to return the tape recording.   Defendants make no attempt to challenge the trial court's finding that the Board should have ruled upon plaintiff's claim that he was denied the procedural rights mandated by Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, or the court's finding that the Board improperly precluded plaintiff from attempting to establish that his suspension was imposed for retaliatory reasons.   Instead, defendants apparently take the position that, assuming these errors did occur, plaintiff's subsequent refusal to return the tape rendered the errors moot and fully justified the Board's order dismissing his appeal.

In support of their contention that the Board properly dismissed plaintiff's appeal, defendants rely on numerous cases, including Lubliner v. Bd. of Alcoholic Bev. Con. For Paterson (1960) 59 N.J.Super. 419, 158 A.2d 54;  In re Fain (1976) 65 Cal.App.3d 376, 135 Cal.Rptr. 543;  and Alberio v. Hampton (1977) 433 F.Supp. 447.   In Lubliner, supra, 158 A.2d at page 61, the court cited Central Home Trust Co. v. Gough (1949) 5 N.J.Super. 295, 68 A.2d 848, 851, which held that administrative agencies have inherent power to rehear and reconsider cases.   Each of these cases is factually distinguishable from this case.   None pertain to the Board or directly support its position relative to the broad powers allegedly possessed by administrative agencies.

However, there are cases pertaining to the Board which are on point.   In Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 103, 77 Cal.Rptr. 224, 453 P.2d 728, the court held that the Board is a body of limited jurisdiction and possesses only such powers as have been conferred, expressly or by implication, by Constitution or statute.   Defendants cite no authority which empowers the Board to dismiss an appeal for the appellant's failure to comply with the order of a hearing officer regarding the production of evidence.

 Section 11525 of the Government Code, which is contained in the Administrative Procedure Act (Gov.Code, § 11370 et seq.), provides that if a person in proceedings before an agency disobeys a lawful order or is guilty of misconduct, the agency is to certify the facts to the superior court.   The superior court then issues an order directing the party to appear before the court and show cause why he should not be held in contempt.   While the Board is not specifically identified as an agency to which section 11525 applies (Gov.Code, §§ 11500, 11501), the history of the adoption of the Administrative Procedure Act would justify the premise that the act is the considered legislative expression of the public policy of this state and should be given great weight in determining the rules to be followed where other statutes or case law have not clearly established a contrary rule.  (2 Cal.Jur.3d, Administrative Law, § 141, pp. 362–363.)   In this instance, we are aware of no contrary rule applicable to the Board;  therefore, we are of the opinion that the Board ought to have followed the less severe contempt procedure specified in section 11525 and that the dismissal of plaintiff's appeal constituted an act which was in excess of the Board's jurisdiction as well as an abuse of discretion.

 One final point needs to be discussed.   On April 22, 1981, plaintiff moved for an order dismissing the appeal as frivolous and for an award granting attorney fees.   Although the grounds for defendants' appeal in this case are untenable, the case law in this area was sufficiently ambiguous as to justify a challenge.   Therefore, defendants' appeals cannot be characterized as frivolous.

Plaintiff's motion to dismiss the appeal is denied.   The judgment granting plaintiff a peremptory writ of mandate is affirmed.


1.   On July 13, 1976, in a meeting with the Department's counsel, Murphy, plaintiff was shown the evidence which constituted the basis for his suspension.   It consisted of a file containing confidential Department information which plaintiff was alleged to have shown to Assemblywoman Egeland.   Plaintiff informed Murphy that the file in question was not the one he had shown to Egeland, and that, therefore, the Department did not have the evidence to support his suspension.   On August 23, 1976, the Department served plaintiff with an amended notice of punitive action, pursuant to section 11507 of the Government Code, to augment the charges made against him and to correct the reference to the wrong file.   Plaintiff was again informed that he had five days in which to respond to the notice, but he did not do so.

2.   In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215, 124 Cal.Rptr. 14, 539 P.2d 774, the court held that, although a public employee was not entitled to a full trial-type hearing prior to disciplinary action, he was entitled to certain due process protections.   Before a punitive action takes effect, the employee must receive notice of the proposed action, the reasons for the action, a copy of the charges and the materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing the discipline.

ROUSE, Acting Presiding Justice.

MILLER and SMITH, JJ., concur.