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Court of Appeal, Fifth District, California.

Trudi MESTNIK, Petitioner and Respondent, v. CITY OF ATWATER et al., Respondents and Appellants.

No. 3198.

Decided: April 07, 1978

John E. Whiting, Arthur Collins, Merced, for respondents and appellants. William T. Ivey, Jr., Allen, Van Winkle & Ivey, Merced, for petitioner and respondent.


On June 23, 1976, respondent filed a petition for a traditional writ of mandate (Code Civ.Proc., s 1084 et seq.) seeking reinstatement to the position of planning director of the City of Atwater and requiring the city to pay her salary accrued since the date of her demotion. On October 8, 1976, the trial court issued a peremptory writ, commanding appellants to reinstate respondent and pay her salary from the date of her demotion to the date of reinstatement, less any amounts paid as leave or sick pay. The basis of the court's decision was that respondent had been denied the procedural rights provided by the Atwater Municipal Code (AMC) and Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774.

The essential facts are as follows: On November 4, 1974, respondent was hired as planning director of the City of Atwater. On May 7, 1976, she was notified in writing by the city administrator, Mr. Cowan, that effective that day she was demoted to the position of assistant planner. Cowan advised respondent that a demotion is subject to an appeal, citing AMC sections 2-4.302 and 2-4.303 and attaching copies of these sections. He added that the city's disciplinary procedures were not clear and that a copy of the letter was being given to the members of the city council, who would ratify the demotion at their meeting on May 10th if they considered such action necessary.

Section 2-4.302 provides that any permanent employee in the competitive service who has been demoted is entitled to request a written statement of the reasons within three days of the demotion. Ten days after the employee answers the charges he may file a demand for a hearing before the personnel board. Section 2-4.303 provides that the personnel board shall make such investigation as it considers necessary and conduct a hearing within 20 days of the employee's request for a hearing. Section 2-4.303 also provides: “Within ten days after concluding the hearing, the Personnel Board shall certify its findings and recommendations to the Council, and to the employee affected. The Council shall affirm, revoke, or modify the action taken, as in its judgment seems warranted, and the action taken shall be final.”

On May 10th the mayor and the majority of the city council, on the advice of the city attorney, expressed the view that respondent was entitled to the competitive service review procedures (AMC ss 2-4.302, 2-4.303) which she obtained as a condition of her employment. On May 12th respondent wrote to Cowan requesting the reasons for her demotion. Cowan replied on May 13th, listing as reasons those set forth in an April 30th letter and several additional instances of “mistakes in judgment (which) are inappropriate for a department head,” and “too numerous to list in their entirety.” He advised her that her 10 days to appeal to the personnel board would start running on May 14th.

On May 21st, respondent requested a hearing before the personnel board. On June 2d, the city attorney sent respondent the “rules of procedure” for hearings before the board.

On June 11th respondent's counsel wrote a letter to the city council demanding that respondent be reinstated in her former position of planning director because she had not been provided with a hearing within 20 days of her request as required by AMC section 2-4.303. He also stated that the AMC review procedures would be constitutionally deficient even if followed. On June 14th respondent's counsel reiterated the demand to the city council. The city council directed the city attorney to provide a hearing at the earliest possible date.1

On June 23d respondent filed the instant petition in the superior court for a writ of mandate seeking reinstatement and accrued salary. On June 28th an alternative writ of mandate issued.


The evidence fully supports the trial court's finding that respondent was a permanent employee entitled to an administrative hearing before the personnel board. Thus, she was entitled to a hearing within 20 days of her demand, to the board's certification of its findings and recommendations to the council within 10 days after concluding the hearing, and to have the council “affirm, revoke, or modify the action taken, as in its judgment seems warranted.” (AMC s 2-4.303.) Until these procedures are complied with, the administrative adjudication of respondent's demotion cannot be deemed final.

The evidence also supports the trial court's finding that respondent did not receive the prediscipline due process rights required by Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774. Skelly holds: “As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Id. at p. 215, 124 Cal.Rptr. at p. 28, 539 P.2d at p. 788.) Mr. Cowan's demotion of respondent on May 7, 1976, without affording her a proper notice of the reasons for the demotion and an opportunity to respond either orally or in writing before the demotion rendered the disciplinary action constitutionally infirm. (See Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 403, 134 Cal.Rptr. 206, 556 P.2d 306.)

However, counsel and the trial court apparently misunderstood the remedy that was available to respondent for the deprivation of her procedural rights under the AMC and Skelly, supra. Respondent had no right to seek reinstatement prior to completion of the administrative review. The exhaustion of administrative remedies is a jurisdictional prerequisite to the right to judicial relief. (Ralph's Chrysler-Plymouth v. New Car Dealers Policy & Appeals Bd. (1973) 8 Cal.3d 792, 794, 106 Cal.Rptr. 169, 505 P.2d 1009; Environmental Law Fund, Inc. v. Town of Corte Madera (1975) 49 Cal.App.3d 105, 111, 122 Cal.Rptr. 282; Cal. Administrative Mandamus (Cont.Ed.Bar 1966) ss 618, 619, pp. 103-104; 2 Cal.Jur.3d, Administrative Law, s 262, pp. 506-510; 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, s 181, pp. 1045-1046.) Only when the administrative decision becomes final may the aggrieved employee seek judicial relief, and this must be by way of administrative mandamus under Code of Civil Procedure section 1094.5.

The fact that the city failed to give respondent the prediscipline due process rights of Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 and failed to provide a hearing within 20 days as required by the AMC did not excuse respondent's failure to exhaust her administrative remedy. Even though the respondent challenged the AMC review procedure as constitutionally invalid, she was not excused from the requirement that she pursue the remedy. (See Cal. Administrative Mandamus (Cont.Ed.Bar 1966 and 1977 Supp.) s 6.23, p. 105, pp. 74-75.) It is only when an employee challenges the constitutionality of the statute underlying the agency's jurisdiction that a bypass of the administrative remedy is permitted. (Cf. Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529; Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 63 Cal.Rptr. 21, 432 P.2d 717.) Stated otherwise, the deficient notice of charges and untimely hearing did not affect the board's jurisdiction to review respondent's demotion; hence, respondent could not ignore the hearing by proceeding in the superior court.DP The due process rights required by Skelly are merely anticipatory of the full rights which are accorded to an employee after initial discipline is imposed, i. e., the right to notice of the charges and the opportunity to be heard. If the evidence at the hearing shows there are valid grounds for dismissal, the employee is not entitled to reinstatement but is merely entitled to damages for the limited period during which discipline was wrongfully imposed. This means that the employee is entitled to back pay from the time discipline is initially imposed to the date the administrative decision upholding the discipline becomes final. (See Barber v. State Personnel Bd., supra, 18 Cal.3d 395, 402-403, 134 Cal.Rptr. 206, 556 P.2d 306; cf. Keely v. State Personnel Board (1975) 53 Cal.App.3d 88, 98, 125 Cal.Rptr. 398; Kristal v. State Personnel Bd. (1975) 50 Cal.App.3d 230, 240-241, 123 Cal.Rptr. 512.)2 Moreover, an employee's right to Skelly damages is incidental to her right to seek reinstatement; hence, the damages initially can be determined only at the administrative hearing. (Cf. Barber v. State Personnel Bd., supra; Keely v. State Personnel Board, supra; Kristal v. State Personnel Bd., supra.) Furthermore, the right to damages presupposes the pursuit of reinstatement through the administrative process; if an employee does not exercise his right to appeal the discipline imposed, he in effect concedes the propriety of the discipline and therefore is not entitled to damages.

The judgment is reversed.


1.  Following the instructions of the council, the city attorney requested from respondent's counsel a convenient date for the hearing and advised that he would withhold setting a date until he heard from respondent's counsel. Upon receiving notice of the mandamus action, the city attorney formally noticed a hearing before the personnel board for July 8th. On July 1st respondent's counsel notified the city attorney that respondent would not appear at the “tardy” hearing. On July 8th a hearing was held by the board without respondent's presence. Correspondences were read into the record and the board received four hours of testimony. However, the record is silent as to whether the board made findings and recommendations concerning respondent's demotion, whether they were certified to the city council, and whether the council affirmed, revoked, or modified the decision of the board as required by AMC section 2-4.303.

2.  The record does not show whether respondent's demotion was ever affirmed by the city council as required by the AMC. This fact is essential to a determination of respondent's right to Skelly damages. If respondent's demotion was affirmed, her damages are limited to the period from May 7, 1976, to the date of affirmance. On the other hand, if the council has not affirmed the demotion, respondent might be entitled to damages for loss of salary until her demotion is affirmed by the council. We say “might” because it also would be necessary for the court on administrative mandamus review to decide whether respondent abandoned her position by not reporting to work after May 7, 1976, and if not, whether the position of planning director was abolished by the council's decision not to fund for it in the 1976-77 budget.

FRANSON, Associate Justice.

GEO. A. BROWN, P. J., and CHARGEN (Assigned by the Chairperson of the Judicial Council), J., concur.