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

Ann PELGER, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA;  Francis A. Sooy, Chancellor of the University of California, San Francisco;  and David S. Saxon, President of the University of California, Defendants and Respondents.


Decided: February 07, 1983

Geoffrey Rotwein, Ruffin & Rotwein, San Francisco, for plaintiff and appellant. Donald L. Reidhaar, Glenn R. Woods, Christine Helwick, Fred Takemiya, Berkeley, for defendants and respondents.

Plaintiff Ann Pelger was, and is, a permanent career employee of defendant Regents of the University of California (hereafter all defendants, collectively, will be termed the University).   She was placed on indefinite layoff status from her employment because of lack of funds.   Under the University's grievance procedures, she was soon thereafter accorded an administrative hearing at which she was represented by counsel, and permitted to present evidence.   The administrative body found the layoff to be in accordance with law and the University's procedures.   Following renewed state funding plaintiff, within the year, was reemployed.   Thereafter, she applied for a writ of mandate in the superior court.   By her application she sought from the University (1) “all employee benefits that she would have been entitled to had she been employed” during the layoff period, and (2) “general, special, compensatory, and punitive damages to compensate her for the violation of her constitutional rights.”

Each of the adverse parties thereafter moved for summary judgment.   Following a hearing, the superior court denied plaintiff's, and granted the University's, motions.   Summary judgment was thereupon entered denying plaintiff's application, and declaring:  “1.   Defendants performed no acts in violation of any rights secured plaintiff under the United States or California Constitutions;  2.   Plaintiff is not entitled to any monetary award in this action; ․”

Plaintiff has appealed from the summary judgment in favor of defendants.

On her appeal plaintiff raises but one issue.   She expressly “does not seek to review or challenge the administrative order ․ upholding the layoff.”   Instead, she contends only that the pertinent statutes and the University's “layoff” procedures did not accord her the constitutionally guaranteed “due process of law.”   Her reliance is mainly on the authority of Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217, 124 Cal.Rptr. 14, 539 P.2d 774.   The contention was unraised at her grievance proceeding and in the superior court.

 We reject the University's contention that we should decline to consider such an argument raised for the first time on appeal.   At each of the lower tribunals' hearings the material evidence was largely uncontroverted, and the issue here appears to be one of law.   We apply the rule that an appellant may be permitted to change his theory on appeal, when a question of law alone is presented on the facts appearing in the record.  (See 6 Witkin, Cal.Procedure (2d ed.1971) Appeal, § 288, p. 4275.)

It is deemed proper here to pause and point out that plaintiff's layoff was not punitive and did not in any way relate to the quality of her job performance, that she was a University staff employee and not a tenured professor or teacher, that her and other layoffs were fairly implemented in inverse order of seniority, and that she was promptly reemployed by the University upon resumption of funding therefor.

Adverting now to Skelly v. State Personnel Bd., upon which plaintiff relies, we observe that Skelly was a medical doctor permanently employed by the state, against whom disciplinary proceedings seeking his job termination for misconduct had been successfully taken.   The procedures followed statutorily permitted “punitive action against an employee by simply notifying him of the action taken.”   However, within 15 days after his disciplinary job termination, Skelly was given written notice, as required, specifying:  “(1) the nature of the punishment, (2) its effective date, (3) the causes therefor, (4) the employee's acts or omissions upon which the charges are based, and (5) the employee's right to appeal.”  (15 Cal.3d at pp. 202–203, 124 Cal.Rptr. 14, 539 P.2d 774.)

Pointing out the extreme prejudice attending one's job termination for misconduct,* Skelly v. State Personnel Bd. held that one situated as was Skelly, is entitled to notice and a hearing before disciplinary sanctions are imposed.   And the hearing will in such cases necessarily entail “the right to appear personally before an impartial official, to confront and cross-examine adverse witnesses, to present favorable evidence, and to be represented by counsel.”  (15 Cal.3d at pp. 208–216, 124 Cal.Rptr. 14, 539 P.2d 774.)

It is plaintiff's contention that Skelly v. State Personnel Bd. thus also, established the due process requirements apposite to her case.

We disagree.

It is first observed that Government Code section 19530 (repealed 1981, and replaced with section 19997 of similar tenor) provided at the time:

“Whenever it is necessary because of lack of work or funds or whenever it is advisable in the interests of economy to reduce the staff of any state agency, the appointing power may lay off employees pursuant to this article and department rule.”

Plaintiff concedes that she had received adequate due process notice of her impending layoff.   Instead, she focuses her appellate argument on the lack of provision for a statutory or administrative hearing until after her layoff.

 The Fourteenth Amendment, as is well known, commands that no “State shall deprive any person of ․ liberty, or property, without due process of law.”  (Emphasis added.)   A public employee has a “liberty ” interest in his employment, vis à vis disciplinary charges of misconduct which tend to “stigmatize” his reputation, or “seriously impair” his opportunity to earn a living, or which “might seriously damage his standing or associations in his community.”  (See Paul v. Davis (1975) 424 U.S. 693, 702, 96 S.Ct. 1155, 1161, 47 L.Ed.2d 405;  Board of Regents v. Roth (1972) 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548.)   In other respects his employment will be deemed a “property ” interest.  (See Goldberg v. Kelly (1970) 397 U.S. 254, 261–262, 90 S.Ct. 1011, 1016–17, 25 L.Ed.2d 287;  Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 206–209, 124 Cal.Rptr. 14, 539 P.2d 774.)

 Where there is such a “liberty” interest the employee's “remedy mandated by the Due Process Clause of the Fourteenth Amendment is ‘an opportunity to refute the charge [and] to clear his name.’ ”  (Codd v. Velger (1976) 429 U.S. 624, 627, 97 S.Ct. 882, 883, 51 L.Ed.2d 92.)   He must be afforded “notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective.”  (Board of Regents v. Roth, supra, 408 U.S. at p. 570, fn. 7, 92 S.Ct. at 2705, fn. 7;  and see Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 201–216, 124 Cal.Rptr. 14, 539 P.2d 774.)

 No authority has been proffered by plaintiff, nor has any been found by us, which holds or suggests that a public employee, laid off from his employment for lack of funds alone, and without charges of misconduct, had been deprived of a “liberty” interest and was thus entitled to the due process standards articulated by Codd v. Velger, supra, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 192;  Paul v. Davis, supra, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405;  Board of Regents v. Roth, supra, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548.

Closely relevant to our discussion, we opine, is the following high authority.

Morrissey v. Brewer (1972) 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484:  “Once it is determined that due process applies, the question remains what process is due.   It has been said so often by this court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands.”

Joint Anti-Fascist Refugee Committee v. McGrath (1950) 341 U.S. 123, 163, 71 S.Ct. 624, 643, 95 L.Ed. 817 (Justice Frankfurter's widely quoted concurring opinion):  “ ‘[F]air play’ ․ cannot, therefore, be tested by mere generalities or sentiments abstractly appealing.   The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished—these are some of the considerations that must enter into the judicial judgment.”

Goldberg v. Kelly, supra, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287:  “The extent to which procedural due process must be afforded ․ depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication.”

Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 209, 124 Cal.Rptr. 14, 539 P.2d 774:  “[M]ore recent decisions of the [nation's] high court have regarded the ․ due process requirements as being somewhat less inflexible and as not necessitating an evidentiary trial-type hearing at the preliminary stage in every situation involving a taking of property.   Although it would appear that a majority of the members of the high court adhere to the principle that some form of notice and hearing must precede a final deprivation of property ․, nevertheless the court has made clear that ‘the timing and content of the notice and the nature of the hearing will depend on an appropriate accommodation of the competing interests involved.’  ․ In balancing such ‘competing interests involved’ so as to determine whether a particular procedure permitting a taking of property without a prior hearing satisfies due process, the high court has taken into account a number of factors.   Of significance among them are the following:  whether predeprivation safeguards minimize the risk of error in the initial taking decision, whether the surrounding circumstances necessitate quick action, whether the post-deprivation hearing is sufficiently prompt, whether the interim loss incurred by the person affected is substantial, and whether such person will be entitled to adequate compensation in the event the deprivation of his property interest proves to have been wrongful.”  (Emphasis in original.)

Adverting to plaintiff's job layoff, no attendant stigma is discernible;  she was otherwise not prejudiced in earning a living.   The available post-layoff due process hearing was reasonably prompt, and in the event that error should there be found, she would be ordinarily entitled to adequate compensation, i.e., her salary during the layoff period.

Balanced against such considerations was what Skelly v. State Personnel Bd. called the need for “quick action,” for where there is no funding, someone must necessarily be promptly laid off.   Such layoffs are often sudden, depending upon legislative purpose and decisions.   Were the requirements of Skelly v. State Personnel Bd. applicable to layoffs (sometimes unfortunately, massive layoffs) with each affected employee's right to counsel, to present evidence, and to confront and cross-examine witnesses, the attendant problems of government would be staggering.   And those problems would be compounded during such hearing periods by the subject employees' right to pay for which there would be no funding.

We accordingly conclude that the trial court did not err in entering judgment for the University.

Our conclusion on the merits of the due process issue renders it unnecessary to pass upon other points raised by the parties.

The judgment of the superior court is affirmed.


FOOTNOTE.   “During the period of delay, the employee is off the Government payroll.   His ability to secure other employment to tide himself over may be significantly hindered by the outstanding charges against him․  Even aside from the stigma that attends a dismissal for cause, few employers will be willing to hire and train a new employee knowing that he will return to a former Government position as soon as an appeal is successful․  And in many States, ․ a worker discharged for cause is not even eligible for unemployment compensation.”  (Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 213, 124 Cal.Rptr. 14, 539 P.2d 774;  Arnett v. Kennedy (1974) 416 U.S. 134, 219–220, 94 S.Ct. 1633, 1676–77, 40 L.Ed.2d 15.)

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.