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Court of Appeal, First District, Division 5, California.

CALIFORNIA STATE EMPLOYEES' ASSOCIATION, et al., Plaintiffs and Respondents, v. STATE of California, et al., Defendants and Appellants.

No. A047701.

Decided: July 25, 1990

John K. Van de Kamp, State Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Richard M. Frank, Supervising Deputy Atty. Gen., Faith J. Geoghegan, Deputy Atty. Gen., Sacramento, for defendants and appellants. Gary P. Reynolds, Robert L. Mueller, California State Employees' Ass'n, Alameda, for plaintiffs and respondents.

The State of California, et al., appeal from a judgment granting a peremptory writ of mandate in favor of the California State Employees' Association compelling appellants to cease implementation of a “Driving Under the Influence” (DUI) regulation affecting all California Department of Corrections (CDC) employees.1


On March 17, 1988, CDC Director James Roland (Director), issued a memorandum to all CDC employees advising them of his plan to hold all CDC staff who “become involved in DUI” accountable, enforcing a 10–day suspension coupled with a mandatory referral for counseling to the Employee Assistance Program (EAP).   A second DUI violation would result in dismissal.   On March 13, 1989, the Director issued a second DUI memorandum which explained that, since the first memorandum, the outcome of individual discipline cases before the State Personnel Board regarding off duty DUI was inconsistent.   It stated that, “․ I fully intend to use every legal means available to apply at least remedial, and most likely adverse, consequences to every instance of DUI.”   Specifically, peace officer employees would be held “directly accountable” for DUI, and non-peace officer employees would be reviewed individually to determine the effect on their employment.   A mandatory counseling referral through the EAP would be made for each employee involved in DUI off duty.

On May 26, 1989, the Director issued a third memorandum explaining that a review of State Personnel Board decisions and discussions with labor union representatives had caused him to reconsider administrative approaches to dealing with non-peace officer employees involved in off duty DUI.   It expressly stated that it superseded the prior two DUI memoranda and described the new policy as follows:  “․ The Department will no longer use as a specific charge against a non-peace officer employee the drunk driving incident or its final disposition unless we can show a connection to the subject employee's employment relationship.   Other consequences related to the drunk driving may be cited as a cause for some administrative action, which may include adverse personnel action.   Peace officer employees will continue to be held directly accountable on this law violation.   Mandatory referral for counseling through the [EAP] will be made for each and every employee involved in off-duty [sic ] DUI activity.

“I have directed the Labor Relations Office to coordinate the review of all prior adverse personnel actions of non-peace officer employees based on this memorandum.   Where the State Personnel Board has issued their [sic ] decision to revoke the Department's action on a particular case involving the single charge of off-duty [DUI], these actions will be properly purged from personnel files.   Current proposed actions using the charge of off-duty [DUI] will also be reviewed and a determination made whether there is an employment relationship.

“Effective immediately, each incident of off-duty [DUI] will be reviewed locally and reported to the Labor Relations Office via the respective Deputy Director or Executive Staff member for ultimate review by the Director's Office.”

Respondents sought injunctive and declaratory relief and writs of mandate and prohibition to enjoin the CDC from implementing the DUI policy memoranda on the grounds the policy:  (1) constituted an invalid regulation since it was not promulgated through the Office of Administrative Law (OAL) under the Administrative Procedure Act (APA) (Gov.Code, § 11340, et seq.); 2  and (2) violated APA standards for regulations.

The trial court granted a peremptory writ of mandate and found, inter alia, that (1) appellants' memoranda of March 17, 1988, March 13, 1989 and May 26, 1989 and the “policies, practices and procedures attendant thereto” constitute a “regulation” as defined by the APA;  and (2) the DUI regulation was not promulgated in accordance with the APA.


Compliance with the APA

 We first consider whether the Director's May 26, 1989 DUI memorandum 3 is subject to the provisions of the APA that govern the procedures for promulgation of administrative regulations.   Review of the trial court's ruling that the subject memorandum was invalid for failure to comply with APA requirements is a question of law for this Court's independent determination.  (See California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.)

 Penal Code section 5058, subdivision (a) requires the Director to promulgate rules and regulations for the administration of prisons pursuant to the provisions of the APA.   The APA was enacted to establish basic minimum procedural requirements for the adoption, amendment or repeal of administrative regulations promulgated by administrative agencies.  (§ 11346;  Grier v. Kizer (1990) 219 Cal.App.3d 422, 431, 268 Cal.Rptr. 244.)   A major purpose of the APA is to provide a procedure for persons affected to be heard on the merits of proposed rules.  (Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 204, 149 Cal.Rptr. 1, 583 P.2d 744.)   The APA, in part, requires an agency to (1) give notice of the proposed adoption, amendment or repeal of a regulation (§ 11346.4);  (2) issue a statement of the purpose of the proposed action (§ 11346.7);  and (3) afford interested persons the opportunity to present comments on the proposed action (§§ 11346.5, 11346.8).   A regulation that is not promulgated in substantial compliance with the APA is invalid.   (Armistead v. State Personnel Board, supra, at p. 204, 149 Cal.Rptr. 1, 583 P.2d 744;  Grier v. Kizer, supra, 219 Cal.App.3d at p. 431, 268 Cal.Rptr. 244.)

The APA defines a regulation as “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 the state agency․”  (§ 11342, subd. (b).)  The definition has been broadly construed.  (Ligon v. State Personnel Bd. (1981) 123 Cal.App.3d 583, 588, 176 Cal.Rptr. 717.)

Section 11347.5, subdivision (a) expressly provides that “[n]o state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criteria, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in subdivision (b) of Section 11342, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter.”

Appellants contend the memorandum is not a “regulation” subject to the APA because it does not constitute a rule or a standard of general application.   They argue the memorandum is merely a “forewarning that if an employee is convicted of DUI, the conduct will be scrutinized to determine whether adverse action is warranted inasmuch as such conduct constitutes a crime․”   They also argue that since the memorandum does not set forth any required penalty but is instead discretionary, it does not constitute a regulation.   Alternatively, they argue that even if the memorandum is a standard of general application, it falls within the internal management exception.

We conclude the memorandum at issue establishes a policy that constitutes a regulation as defined by section 11342, subdivision (b).  “For a rule of a public entity to be ‘of general application,’ it does not have to apply to all the citizens of the state.”  (Roth v. Department of Veterans Affairs (1980) 110 Cal.App.3d 622, 630, 167 Cal.Rptr. 552.)   It is of general application if it pertains to all the members of a class, kind or order.  (Ibid.)  “Whether the action of a state agency constitutes a regulation does not depend on the designation of the action, but rather on its effect and impact on the public.   If the action is not only of local concern, but of statewide importance, it qualifies as a regulation despite the fact that it is called ‘resolutions,’ ‘guidelines,’ ‘rulings,’ and the like.  [Citations.]”  (Winzler & Kelly v. Department of Industrial Relations (1981) 121 Cal.App.3d 120, 127, 174 Cal.Rptr. 744.)   Since the memorandum applies to all CDC employees, in California, it may be considered a rule of general application, and therefore falls within the definition of a regulation.   While the memorandum does not specify a specific penalty, it does specify that adverse administrative action may be taken against non-peace officers, and that peace officers would be held “directly accountable.”   Mandatory counseling referrals for every employee involved in off duty DUI activity is specified.

 We also conclude the memorandum is not subject to the internal management exception of section 11342, subdivision (b).  Armistead v. State Personnel Board, supra, 22 Cal.3d at pages 206–207, 149 Cal.Rptr. 1, 583 P.2d 744 held that a State Personnel Board rule relating to an employee's withdrawal of his resignation did not fall within the internal management exception since the rule (1) was designed for use by personnel officers and their colleagues statewide;  (2) interpreted and implemented a board rule;  (3) concerned termination of employment, an issue of import to all state civil service employees;  and (4) was not a rule governing the board's internal affairs.

Armistead cited Poschman v. Dumke (1973) 31 Cal.App.3d 932, 942–943, 107 Cal.Rptr. 596, which refused to apply the internal management exception to a rule regarding tenure of teachers.  Poschman held that “[t]enure within any school system is a matter of serious consequence involving an important public interest.   The consequences are not solely confined to school administration or affect only the academic community.”  (Id., at p. 943, 107 Cal.Rptr. 596, disapproved on other grounds in Armistead v. State Personnel Board, supra, 22 Cal.3d at p. 204, fn. 3, 149 Cal.Rptr. 1, 583 P.2d 744.)   In Stoneham v. Rushen (1982) 137 Cal.App.3d 729, 736, 188 Cal.Rptr. 130 the court refused to apply the internal management exception to the CDC's adoption of an inmate classification system for determining the proper level of custody and place of confinement.   The court concluded the classification scheme extended well beyond matters relating solely to the management of internal affairs of the CDC itself, and embodied “a rule of general application significantly affecting the male prison population” in the CDC's custody.

The above cited decisions suggest that the internal management exception is narrow in scope.  (Accord, Grier v. Kizer, supra, 219 Cal.App.3d at pp. 436, 440, 268 Cal.Rptr. 244.)   In light of the APA's purpose in giving interested persons the opportunity to provide input on proposed regulations, doubts as to the applicability of the APA requirements should be resolved in favor of the APA.

While the DUI regulation in the instant case directly affects only CDC employees, it involves a matter of serious consequence involving an important public interest.   The memorandum expressly states that DUI is a “serious matter” and urges all CDC employees “to use good judgment at all times in your professional and personal lives so you can continue to be a credit to yourselves, your families, the Department, and the State of California.”   Since the department's regulation at the very least affects the safety of the public and the employees and inmates of state prisons, it involves a matter of serious consequence affecting an important public interest rendering the internal management exception inapplicable.

In light of our conclusion, it is unnecessary to decide the remaining issues raised.



1.   Also appealing are CDC and its Director, James Roland, and California Medical Facility at Vacaville and its warden, Eddie Ylst.   Also responding are Local 1000 of the Service Employees International Union, AFL–CIO;  CLC;  Joyce Thomas;  Tom Klyce;  Jeanette Maker;  and Marilyn Standifer on behalf of themselves and others similarly situated.

2.   Unless otherwise indicated, all further statutory references are to the Government Code.

3.   Despite the fact that the trial court found that all three memoranda constituted a “regulation,” we need only review the May 26, 1989 memoranda since it expressly superseded the prior two, rendering them without effect.

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.

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