GOZIER v. DEPARTMENT OF CALIFORNIA HIGHWAY PATROL

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Court of Appeal, Third District, California.

Juan A. GOZIER, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent, DEPARTMENT OF CALIFORNIA HIGHWAY PATROL, Real Party in Interest and Respondent.

Civ. 23593.

Decided: July 09, 1984

Hession, Creedon, Hamlin, Kelly, Hanson & Brown, and Richard J. Romanski, San Mateo, for plaintiff and appellant. No appearance for defendant and respondent. John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., and Robert L. Mukai, Deputy Atty. Gen., for respondent and real party in interest.

Plaintiff appeals from a judgment denying his petition to set aside the decision of defendant State Personnel Board (Board) sustaining his dismissal from employment. (Code Civ.Proc., § 1094.5.)

FACTS

Plaintiff was employed as a state traffic officer with the California Highway Patrol (CHP). In March of 1982 he was granted a retirement by the Public Employees Retirement System (PERS) because of an industrial injury which had caused him to be off work for the previous year. His retirement date was established as April 21, 1982, the day following the exhaustion of his accumulated sick leave. (Gov.Code, §§ 21025.2, 21025.5.)

While on disability leave, on March 27, 1982, plaintiff and two other off-duty officers, following a night on the town, discharged live rounds of ammunition and illegal firecrackers at plaintiff's home. Officers from the Los Angeles Police Department and the CHP investigated the disturbance. Plaintiff made false and misleading statements to them saying he was solely responsible for discharging the guns and firecrackers.

On March 30 plaintiff wrote to PERS waiving his remaining sick leave and requesting that his disability retirement become effective April 1, 1982. On July 6, 1982, PERS approved plaintiff's request.

Meanwhile, on April 13, 1982, plaintiff was given a written notice of dismissal and an opportunity to respond. He was dismissed on April 20, 1982, by the mailing of a notice of adverse action.1 Plaintiff requested a hearing which was held in September of 1982. The hearing officer sustained the dismissal and his findings and conclusions2 were adopted by the board. This action followed.

DISCUSSION

Plaintiff seeks to reverse the adverse action on jurisdictional grounds. His sole claim is that he was not an employee subject to discipline on April 20, 1982 by virtue of the subsequent action of PERS establishing April 1 as his date of retirement. The board does not dispute the right of an employee to advance his disability retirement date by waiver of a leave of absence or the right of PERS to retroactively approve an advanced date. (See Gov.Code, § 21025.5) Nor does the board dispute plaintiff's legal status as a retiree on April 20, 1982, for the purpose of disability retirement benefits.3 Rather, it says plaintiff was an employee on April 20 for purpose of dismissal because that was his status when the dismissal action was taken. (See Gov.Code, § 19574.) The board concludes the subsequent action of PERS cannot unring that bell.

The board assumes that a person simultaneously can be both an employee and a retiree if different purposes are pursued for each status. That is not the case. An “employee” is one “legally holding a position in the State civil service.” (Gov.Code, § 18526.) Retirement is the withdrawal from service with a retirement allowance. (Gov.Code, § 20035.) “A person … never has simultaneous status as an employee and a retired person. Each status is mutually exclusive.” (39 Ops.Cal.Atty.Gen. 172, 173 (1962); emphasis added.) The issue therefore is a singular one, whether plaintiff was an employee on April 20, 1982.

The board assumes that issue is measured by plaintiff's historical status on that date because that is when the dismissal action occurred. The assumption confuses an historical with a legal measure of employment status. Plaintiff's legal status was not fixed by what happened on April 20, 1982. Rather, it was fixed by the action of PERS on July 6, 1982, retroactively advancing plaintiff's retirement date to April 1, 1982. That action was evidenced in the administrative hearing in September of 1982 and is not in dispute. In the absence of a challenge to the validity of the PERS's action, and the board makes none, the PERS action is dispositive of the plaintiff's legal status on April 20. Since PERS established he was retired on that date, he was not an employee and the board subsequently had no authority to sustain his dismissal as an employee.

For these reasons the judgment is reversed. The trial court shall issue a peremptory writ of mandate directing the board to set aside its decision sustaining the action of dismissal.

FOOTNOTES

1.  Government Code section 19574 provides in relevant part that: “The appointing power … may take adverse action against an employee … if a written notice is served on the employee prior to the effective date of the action ․” Government Code section 19570 provides in part: “As used in this article ‘adverse action’ means dismissal, demotion, suspension, or other disciplinary action.”

2.  The hearing officer made the following findings and conclusions:“During the discussions with the Los Angeles police and with his supervisors [on the night of the March 27 incident], [plaintiff] falsely indicated that he was the only person responsible for discharging the guns and firecrackers.“Later, on March 30, 1982 [plaintiff] admitted that he was under the influence of alcohol and that he along with two other officers had discharged the guns and firecrackers.“On July 22, 1974, [plaintiff] received … 10 working days' suspension for being arrested for driving under the influence of an alcoholic beverage.“On November 1, 1976, [plaintiff] received a 30 working day suspension for driving, becoming involved in a traffic collision and leaving the scene while under the influence of alcohol and being untruthful about the incident ․“It is believed that the misconduct occurring in [plaintiff's] residence [ [ [ [on March 27] resulted from an impairment of his judgment caused by the consumption of alcohol. This was his third occurrance [sic] of alcohol-related misconduct which has caused discredit to his agency and his employment. [Plaintiff's] participation in the disturbance … is a cause for adverse action within the meaning of Government Code Section 19572 (t) [‘failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to his agency or his employment.’]. Considering the prior incidents of misconduct, the dismissal is warranted and reasonable.”

3.  (See fn. 1, supra; see also Gov.Code, § 21200.1; and see 64 Ops.Cal.Atty.Gen. 83, 92 (1981): “No provision of law prevents an applicant from selecting an effective [retirement] date at the expiration of or during the time within which the applicant is receiving sick leave or leave with compensation. To the contrary, the statutes expressly authorize the applicant to select an effective date for his retirement despite the occurrence of any of such events.”)

BLEASE, Associate Justice.

EVANS, Acting P.J., and CARR, J., concur.