HOAGLUND v. PROBATION DEPARTMENT OF COUNTY OF SAN DIEGO (1988)

When the San Diego County Probation Department (Department) suspended Probation Officer Sean Hoaglund for 30 days for insubordination, he appealed to the County Civil Service Commission (Commission).   Although the Department defended the appeal, it did not request the suspension order be modified or changed, contending only that the discipline imposed was appropriate for Hoaglund's transgressions and consistent with its disciplinary precedent.   After hearing, the Commission ordered Hoaglund terminated.   The trial court denied Hoaglund's petition for writ of mandate.   On appeal, the San Diego County Probation Association has filed a comprehensive amicus brief.

We hold both the San Diego County Charter (Charter) and the Civil Service Rules (Rules) preclude the Commission from changing a suspension to a termination.   As we explain, the structure of the San Diego County Civil Service disciplinary system places the power to issue disciplinary orders in the appointing authority (i.e., the Department), not the Commission.   When an employee who is suspended, but not terminated, appeals to the Commission he is entitled to rely on the appointing authority's determination that complete severance of the employment relationship is not warranted.

We reject Hoaglund's arguments he was deprived of predisciplinary Skelly ¹ rights;  the Department head was precluded from designating his suspension as work days rather than calendar days;  the discipline was to retaliate for his union activities or to punish his appealing to the Commission;  and he was entitled to attorney's fees for arbitrary and capricious government conduct (Gov.Code, § 800).²

We reverse the judgment and direct the trial court to order the Commission to reinstate Hoaglund, award back pay, and determine whether Hoaglund is entitled to attorney's fees under Code of Civil Procedure section 1021.5.

I

FACTUAL AND PROCEDURAL BACKGROUND

Hoaglund was an assistant deputy probation officer for the Department and served as the San Diego County Probation Associations' shop steward at six adult institutions.   He was working at Camp Westfork when the instant disciplinary action occurred.   This camp is a minimum security jail, located in the mountains, with 150 inmates between 18 and 75 years of age, who are housed in dormitories without bars.

30–DAY SUSPENSION

Supervising Probation Officer, Lance Wilson, recommended to Deputy Chief Probation Officer, Vicki Markey, that Hoaglund be suspended for 30 days for several instances of alleged misconduct.   Based on the recommendation, on February 27, 1986, Chief Probation Officer Cecil Steppe sent Hoaglund a notice of intent to suspend for 30 calendar days.   Following an informal predisciplinary Skelly hearing, Steppe suspended Hoaglund for 30 work days citing the following instances of misconduct.

Unauthorized absence from work

On November 20, 1985, Hoaglund gave Wilson a memorandum requesting authorized leave time for November 21 to go to a doctor's appointment in the morning, and union business in the morning and afternoon.   The leave he was granted was not for a set number of hours, but depended on how long the union business lasted.   Hoaglund was scheduled to work the day shift on November 21, and Wilson took him off the schedule.   However, Hoaglund was still scheduled to work standby on the night of November 21, which required him to remain at the camp beyond his normal working hours in case of an emergency.   Hoaglund was expected to return as soon as his union business was completed, or by 7 p.m. when his day shift would have ended.   He did not return until 10:30 p.m. and failed to communicate with the camp.

Hoaglund went to his doctor's appointment at 9 a.m., attended union business from about 10 a.m. to 11:30 a.m., and went to lunch with the negotiating team until about 1 p.m.   He then went to the union office with his Union Supervisor, Don Reeves, to discuss issues pertaining to the negotiations, and at 3:30 p.m. they went to a meeting regarding an employee's discrimination case.   Hoaglund had not been aware of the 3:30 meeting until told of it by Reeves that morning, and he had not obtained his supervisor's authorization to attend.   According to Hoaglund, he called the camp around 11:30 a.m., but there was no answer.   He called later from the union office, somewhere between 1:30 and 3 p.m., but the lines were busy.   There was no evidence Hoaglund engaged in union activity on any other occasion without prior approval from his supervisors.

The 3:30 meeting finished about 5 p.m.   On his way home, Hoaglund had a severe attack of diarrhea, so he had to clean up and take a shower.   Hoaglund's doctor had given him a prescription that morning, and he was at Kaiser getting it filled from about 6:30 p.m. to 8:30 p.m.   He did not try to call the camp again.   He arrived at the camp at about 10:30 p.m., went to his room and went to sleep, without notifying the senior officer he had arrived.   At about 8 p.m., Senior Probation Officer Thomas Clampitt found another officer to take the standby position since Hoaglund's time to show up had already passed.

When officers are delayed or unable to return to the camp, departmental policy requires them to call and advise of their estimated time of arrival to permit adjustments in staffing.   There are three telephone lines at the camp and there have been no problems getting calls through.   It is particularly important at night when they have only two officers on duty and three officers on standby, since that is the bare minimum and if there is a medical or security emergency they need as many as they can get.   The closest sheriff's department to help in case of an emergency is about 45 miles away.   Department personnel stated that although they were able to get a replacement to fill the standby duty Hoaglund missed on November 21, that is not always the case and there are times one would not be available.   Also, Hoaglund should have notified them he had arrived since it is important for the senior officer on duty to know who is there on standby in case of an emergency.

Failure to use a County vehicle

On December 3, 1985, Wilson told Camp Director Nancy Boyle he wanted Hoaglund to drive a County vehicle, equipped with a communications radio, during union business because of the problem they had with his failing to report on November 21.   This would permit contact in case of emergency and if they needed something to be picked up from town, Hoaglund could do it.   Boyle agreed although normally County employees are not allowed to use County vehicles for union business.

Hoaglund had given Wilson a memorandum indicating he needed a few days off the first week of December 1985, for union business, and Wilson modified Hoaglund's schedule accordingly and gave a copy of the schedule to Clampitt and kept a copy for himself.   Wilson was going off-duty for a couple of days, so he called Hoaglund on December 3, 1985 from his home and left the following message on Hoaglund's answering machine:

“Yeah, Sean, this is Lance Wilson.   I got your note this morning and I have adjusted the work schedule so as to accommodate your meetings.   So all three days I got you working 8:00 to 8:00 and you can leave camp whenever necessary to—to make your meetings or whatever.   On Wednesday, probably leave around 12:30 or so and you can take the County car on all three of these.   Pete's [Clampitt] got the schedule too, so if you have any questions you can call him at camp.”  (Emphasis added.)

Wilson also left written instructions with Clampitt that Hoaglund should take a County vehicle to the union meetings, but did not tell Clampitt why he wanted Hoaglund to use a County vehicle.   The written instructions stated:

“12/4 Wed—Hoaglund—Swing officer (8–8) take County vehicle to meeting and return.   Meeting 2:30 to 3:30.

“12–5 Thurs—Swing officer (8–8) take County vehicle to negotiations 10 a.m. until ?

“12–6 Friday—take County vehicle to hearing in Vista—10 a.m. to _.  Crew III.”  (Emphasis added.)

Hoaglund did call Clampitt, who read the instructions to him exactly as they were written and stated Wilson had emphasized he was to take a County vehicle.   Hoaglund did not question the information and was not told why he was to use a County vehicle.   Notwithstanding this communication, Hoaglund did not use a County vehicle on December 5 because he recalled that two years earlier there had been a dispute over the use of County vehicles and reimbursement for the use of private vehicles to attend to union business.³  At that time, Hoaglund had been reimbursed for use of his private vehicle but the County later withdrew the reimbursement and Hoaglund filed a grievance.   After much discussion with Chief Probation Officer Steppe and Deputy Chief Probation Officer Markey, it was decided mileage would not be paid for attending union business and County vehicles could not be used on union business.

Although Wilson viewed his communication as an order to use a County vehicle, Hoaglund interpreted it only as permission to use it.   He stated it was not clear to him Wilson understood what had taken place in the past.   He suspected taking a County vehicle would subject him to disciplinary action because he should have known better than to take a County vehicle.   When asked if he felt he had the right to question orders, he answered, “yes.”   He felt it was possible Wilson, who he believed was hostile to the union, was trying to set him up and subject him to disciplinary action.

Failure to timely complete training materials

In January 1985, a procedures manual and training packets were distributed and the staff was told to read the materials and sign-off by March 1985 as they completed the training packets, after which they would take an exam on the materials.   For various reasons, the March 1985 deadline was not enforced.   At a meeting on November 8, 1985, Boyle gave an order to the staff that they had to sign-off by December 15, 1985, or it could affect their performance evaluations.   According to Boyle, Hoaglund objected to the deadline, stating he had not had time to read the materials during his shift, and he would not read them on off-duty time.

In his capacity as union steward and with advice from Union Supervisor Reeves, Hoaglund made and passed out a flyer to the employees stating they were not responsible for completing the training packets while off-duty and the Department must make on-duty time available to complete them.   The flyer further noted the sign-offs could be used to transfer liability from the Department to the employees—i.e., if an employee made a mistake the Department could point out the employee had signed a document indicating he understood all material in the manual.   Accordingly, the flyer recommended the employees sign an attached disclaimer and request it be made part of their personnel record.   Reeves wrote a letter dated December 3, 1985 to Boyle referring to the December 15, 1985 sign-off deadline and the possibility of discipline for failure to comply, and questioning whether the employees were unfairly assuming some form of liability or not being fully informed of the consequences of complying with the order.   Management responded failure to complete the sign-offs would result in disciplinary action.   Hoaglund acknowledged management's legitimate interest in insuring the staff was familiar with the contents of the procedures manual.

On November 22, 1985, Wilson sent reminder cards to four people, including Hoaglund, who had not yet completed the training packets, indicating what sections they had not done.   Hoaglund told his supervisors he had not decided if he would turn in the training packets.   Hoaglund did not meet the December 15 deadline.   On December 19, 1985, Wilson gave Hoaglund a memorandum indicating there was a possibility of disciplinary action, up to and including termination, if he did not turn the training packets in by January 2, 1986.⁴

According to Hoaglund, he did not recall the December 15 deadline as being a direct order, noting that a negative performance rating may not be used for disciplinary purposes.   He denied he was given a written reminder from Wilson in November.   He did view the January 2 deadline as a direct order, and he tried to comply with it, asking Supervising Probation Officer Neal Pere to send some materials to his home so he could complete them during off-duty hours.

Hoaglund did not turn in the training packets by January 2, and the instant disciplinary action followed.   Boyle had him transferred to another facility on January 3, 1986.   She believed he was personalizing their dispute—i.e., he filed an incident report stating she had tried to run him off the road—and they no longer had a workable management/employee relationship.   Hoaglund testified he was told he was being transferred for “tweaking” his supervisors.

Hoaglund finished the packet several weeks after the transfer and passed the exam.

PRIOR MISCONDUCT

In addition to the above three instances which expressly formed the basis for the 30–day suspension, evidence was presented on the following instances of prior misconduct which were considered when the Department evaluated the appropriate penalty.

Failure to check work schedule

On October 22, 1985, Hoaglund was scheduled to come in at 5 a.m., and when he did not show up, Wilson called him at his home.   Hoaglund stated it was not his normal workday and there was probably a mistake on the schedule.   When he came back on shift, Wilson discussed it with him and stated it might have been a mistake on the schedule, but that if Hoaglund had read the schedule he could have let them know about the mistake and they could have made the changes because it was a major disruption to find a replacement at 5 a.m.   A notation was made in Hoaglund's personnel file noting the discussion.

Wilson acknowledged the October 22 and November 21 incidents were the only two occasions when Hoaglund had a problem with reporting to work.

Clampitt testified sometimes schedules are misunderstood and more than once a month he has called employees who have not shown up to tell them they are supposed to be at work.   Boyle and Wilson explained that when employees show up late for work, a system of progressive discipline is used—i.e., the first time the employee receives a verbal warning, the second or third time they have a record of discussion,⁵ and the fourth time there would probably be formal disciplinary action.   Hoaglund was more harshly disciplined (i.e., the 30–day suspension) for coming back to the camp late on November 21 because his tardiness was not a matter of a few minutes but hours;  he did not tell anyone he had arrived;  failing to be present for standby is a serious violation which threatens the security of the camp;  and he was also being disciplined for other charges of insubordination.

Attendance at management class

According to Hoaglund, he asked Pere to enroll him in a management training class to be held on May 15, 1985, dealing with the Peace Officers Bill of Rights and disciplinary actions.   The union and management had been having difficulty coming to terms with the Peace Officers Bill of Rights, and Hoaglund wanted to take the class to try and understand the Department's position.   Pere tried to enroll him but the class was full, and Hoaglund told Pere it was on his day off and he would go anyway even if he had to sit on the floor because he felt it was important.   Pere did not tell him he could not go, and he went to the class on his off-duty time.

Markey stated she first asked and then gave Hoaglund a direct order to leave the class because he was not enrolled, but he refused.   Personnel Director Merrillyn Carpenter then gave him a direct order to leave, but he would not do so until she put the order in writing.   Markey recorded the discussion.

Unauthorized union business on County time

Once Boyle admonished Hoaglund for purportedly doing unauthorized union business on County time.   According to Boyle, but denied by Hoaglund, in January 1985 he had used County machines during County time to copy the flyer cautioning the employees about the training packet sign-offs.   There were no witnesses to the copying, but during the time period that the flyer appeared, Hoaglund was on a shift where he worked seven days, twelve hours a day at the camp and he had not left the facility.   The admonishment was noted in his March 1985 employee performance report.   However, he appealed the rating and the appeals officer noted there was no concrete evidence documented in his file that he actually did the copying on County property and time, and such evidence should either be placed in the file, or the evaluation should reflect only that the issue was discussed, but should not suggest the charges were true.

Use of profanity

Hoaglund was suspended for one day for using vulgar language while talking with Supervising Probation Officer George Skurla.   He was angry because he had not been timely informed he had to transport an inmate from another camp even though he had been by the other camp twice during the day.   He was not informed until he was on his way back to the camp, he should have been off-duty already for an hour, and he had to return to the other camp.   He called Skurla to find out who had failed to send the transfer request;  Skurla apologized since someone had made a mistake;  and Hoaglund referred to whoever made the mistake as those “fucking assholes.”   Skurla acknowledged Hoaglund was merely venting his anger at the situation and was not directing the vulgarity at Skurla personally.

The parties stipulated Hoaglund performed his day-to-day functions in an acceptable fashion.

DEGREE OF DISCIPLINE

Steppe testified he considered the 30 workday suspension a severe penalty and “a very severe statement” to Hoaglund that his behavior had to stop.

Markey also testified that a 30, 12–hour day suspension was appropriate punishment for Hoaglund's record of misconduct.   Markey stated she tries hard to maintain consistency in the discipline imposed by the Department, explaining supervisors try to discuss cases before taking action so that if they take an action that differs from precedent they will know why.

A review of interdepartmental disciplinary actions for equivalent transgressions during the six months prior to May 30, 1986 shows suspension, not termination, is consistent with departmental practice.   For example, a five workday suspension was imposed on an officer who left his night post an hour early, thereby jeopardizing the safety of the staff and inmates.   An officer who lost “sight and sound” control of a juvenile work crew was suspended for two days.   Other officers received suspensions for such misconduct as tardiness, leaving a post for a short period of time, failing to make hall checks, lying about taking inmate counts, and driving at excessive speed.   The only instance where termination was recommended was for an officer who was arrested for assault with a deadly weapon and possession of a controlled substance.   In that case the discipline actually imposed was a 30–day suspension.

THE COMMISSION AND TRIAL COURT DECISION

After a hearing, a hearing officer found suspension was not sufficient and termination was both necessary and proportionate.   With one dissent,⁶ the Commission adopted the hearing officer's recommendation the discipline be increased to termination, effective September 3, 1986.   The trial court, exercising independent judgment, found the actions of the Department and the Commission to be proper.

II

ANALYSISTHE COMMISSION'S POWER TO CHANGE DISCIPLINE FROM SUSPENSION TO TERMINATION

 Because we conclude the Commission is not authorized by the Charter and Rules to change a discipline from a suspension to a termination, we do not address Hoaglund's alternate argument that if the Charter and Rules do confer such power, it violates his due process rights, especially when directed against one entitled to the enhanced procedural protection of the Public Safety Officers Procedural Bill of Rights Act.  (Gov.Code, § 3300 et seq.)

The Charter and Rules

The Charter provides classified service employees who have completed probation shall only be removed for cause in accordance with the Rules.   (Charter § 909.1.)   The Rules include provisions for disciplining employees for cause and their rights of appeal.  (Charter § 910.1(j).)

The Charter defines the role of the Commission as being “responsible for protecting the merit basis of the personnel system through its appellant authority, investigative powers, and review of Civil Service Rules.”  (Charter § 904.)   Specifically, the Commission “is the administrative appeals body for the County in personnel matters authorized by this Charter.   Upon appeal, the Commission may affirm, revoke or modify any disciplinary order, and may make any appropriate orders in connection with appeals under its jurisdiction.   The Commission's decisions shall be final, and shall be followed by the County unless overturned by the courts on appeal.”  (Charter § 904.1, italics added.)   Similarly, Rule 7.6 states the Commission shall “either affirm, modify or revoke such order, including increasing or decreasing the discipline imposed․”  (Italics added.)

The Charter specifies five areas included within the Commission's appellate authority, i.e., appeals from actions involving:  (a) discipline of classified employees with permanent status;  (b) the selection process;  (c) complaints of discrimination;  (d) charges filed by a citizen against employees;  and, (e) such other matters as provided for in the Rules.  (Charter § 904.2.)

In Andersen v. Civil Service Com. (1981) 122 Cal.App.3d 577, 579–580, 176 Cal.Rptr. 66, we held the Commission had the power to increase the length of four employees' suspension.   There, 81 employees had been disciplined for engaging in an unauthorized job action.   All 81 appealed suspensions to the Commission which found each equally culpable but that the length of suspensions imposed were inconsistent.   The Commission ruled each should be sanctioned using the same formula, which in most cases resulted in lesser suspensions.   Only Andersen and 3 others had their suspensions increased;  2 by 16 working hours and 2 by 8 working hours.   Thus, the Commission action restored parity among similarly situated employees by minimally increasing the type of sanction already imposed on only 4 of the 81 equally culpable persons who jointly participated in identical prohibited job actions.   On appeal, we rejected the argument that the Charter section which authorized the Commission to “affirm, modify, or revoke” the discipline, permitted only a decrease in the suspension.  (Id. at p. 579, 176 Cal.Rptr. 66.)   We noted “modify” means “to alter;  to change an incidental or subordinate feature;  enlarge, extend;  limit, reduce.”  (Ibid.;  italics added.)

Our analysis in Andersen did not address a situation where a suspension was changed to a termination.   A change from suspension to termination does not merely enlarge or extend the discipline, but rather changes the fundamental character of the discipline.   Although the term “modify” can encompass an increase or decrease in the subject matter (Toyota of Visalia, Inc. v. Department of Motor Vehicles (1984) 155 Cal.App.3d 315, 324, 202 Cal.Rptr. 190), it does not contemplate changes which destroy the identity or general purpose and effect of the subject matter (see Police Protective Ass'n of Casper v. City of Casper (Wyo.1978) 575 P.2d 1146, 1149;  Union Electric Co. v. Illinois Commerce Com'n (1968) 39 Ill.2d 386, 235 N.E.2d 604, 609).   A termination is a qualitatively different form of discipline than a suspension—i.e., unlike a suspension, it involves a destruction rather than a mere interruption of employment, and requires the employee to seek a new job hindered by a blight on his employment record.  (See Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 562–564, 150 Cal.Rptr. 129, 586 P.2d 162;  Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 543, 105 S.Ct. 1487, 1494, 84 L.Ed.2d 494.)   We conclude the plain language of the Charter and Rules, which gives the Commission the power to affirm, revoke or modify, including increasing or decreasing, the appointing authority's discipline, does not authorize the Commission to change a discipline from a suspension to a termination.   That is, the Commission's power on appeal from a suspension is confined to affirming the suspension, revoking the suspension, increasing or decreasing the suspension, or altering the suspension to an equivalent discipline other than termination (i.e. transfer, demotion).⁷

This interpretation of the plain language of the Charter and Rules is consistent with the overall scheme in the Charter defining the order-making power of the Commission.   The Charter gives the Commission authority to conduct investigations of all departments to protect the merit basis of the personnel system, and gives it the broad power to make “any necessary orders” in connection with an investigation.  (Charter §§ 907, 907.1.)   Similarly, a clause in Charter section 904.1 broadly authorizes the Commission to make “appropriate orders in connection with appeals under its jurisdiction.”   In sharp contrast, the immediately preceding clause of Charter section 904.1 specifically limits the extent of the Commission's power upon appeals from disciplinary orders to affirming, revoking, or modifying the disciplinary order.   The Charter's failure to use the broad language of “any necessary or appropriate” orders when referring to appeals from disciplinary orders suggests an intent to place the function of choosing the essential nature of the discipline in the appointing authority (i.e. the Department) rather than in the Commission.

CHANGE FROM 30 CALENDAR DAYS TO 30 WORK DAYS AND CONSIDERATION OF MEMORANDA AFTER SKELLY HEARING

The notice of intent to suspend stated the intended suspension would be 30 calendar days.   The later order of suspension was for 30 work days.

At one point in his testimony, Steppe indicated it was his intent to suspend Hoaglund for 30 calendar days when he sent the February 27 notice, but then later he explained his actual intent had been to impose 30 work days and he inadvertently sent a notice stating 30 calendar days.   He discussed the mistake after the Skelly hearing and corrected the order to conform with his original intent.

Apparently the parties agreed the Skelly hearing would essentially consist of Steppe listening to a tape that had been made of an interview with Hoaglund during the performance evaluation process.   After the March 24, 1986 Skelly hearing, Steppe solicited and obtained a memorandum dated April 9, 1986, from Wilson refuting some of Hoaglund's assertions at the Skelly hearing.

Hoaglund had asserted he was not the only employee who had not completed the training packets, naming John Finch as an example.   Wilson provided Steppe with a memorandum dated April 7, 1986 from Finch explaining the circumstances of his completion of the training packets, and Steppe was satisfied Finch timely completed them.   Wilson's memorandum also discussed discrepancies he believed existed between Hoaglund's statements at two interviews regarding whether and how he was instructed to use a County vehicle and what time lunch finished after the union business;  asserted Hoaglund was directed to use a County vehicle because of his failure to report the previous week;  and refuted Hoaglund's claim he did not recognize the order to complete the training packets as a direct order.

Steppe issued the 30 workday suspension order on April 10, 1986.   On April 14, 1986, Steppe sent a letter to Hoaglund's representative, Reeves, including copies of the Wilson and Finch memoranda, and explaining that he pursued some of the issues brought up at the Skelly hearing by obtaining the memoranda from Wilson and Finch, he felt they adequately addressed the issues, and he had therefore issued the order of suspension.   At the Commission hearing, Steppe acknowledged Hoaglund did not have an opportunity to refute the information in the Wilson and Finch memoranda.

Hoaglund argues his due process rights were violated because he was not given notice of the intent to suspend for work rather than calendar days, and because he was not given an opportunity to refute the material in the Wilson and Finch memoranda.

Skelly v. State Personnel Bd., supra, 15 Cal.3d at page 215, 124 Cal.Rptr. 14, 539 P.2d 774, provides that although “due process does not require the state to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action,” it does “mandate that the employee be accorded certain procedural rights before the discipline becomes effective.   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.”   The rationale of the Skelly rule is that although an employee may receive a full evidentiary hearing after the discipline is imposed and may be compensated for lost wages if the punitive action was improper, these postremoval safeguards do not protect the employee who is wrongfully disciplined against the temporary deprivation of property to which he is subjected pending a hearing.   The predisciplinary procedural protections are intended to minimize the risk of error in the initial removal decision.  (Ibid.)

 The information in the memoranda essentially consisted of management's response to information presented by Hoaglund at the Skelly hearing.   There is no new information contained in the memoranda which is significantly different from the charges which had already been spelled out in Wilson's January 9, 1986 memorandum.⁸  It was reasonable for the Commission to credit Steppe's claim the memoranda were not the reason he chose to impose work rather than calendar days suspension, as well as to find that the memoranda did not substantially contribute to the decision to impose the discipline.   Under these circumstances, Hoaglund was not deprived of the opportunity to respond to the charges against him, and we perceive no Skelly violation from the failure to give him the opportunity to respond to the memoranda.  (Compare Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 108, 110, 179 Cal.Rptr. 351 [new information obtained after Skelly hearing, providing basis to establish charges and differing from information at Skelly hearing, violated Skelly right to respond].)

 Steppe testified at the Commission hearing the reference to calendar days was a mistake which he later corrected.   Since Skelly does not require rigid compliance with formal due process procedures, we find no violation from the failure to give predisciplinary notice of the change to working days where it does not substantially interfere with the right to respond to the proposed disciplinary action.

Nor do we find a violation of Government Code section 3305, which gives a public safety officer the right to read and sign adverse comments before they are entered in his personnel file.   The Skelly procedure, giving notice of and an opportunity to respond to proposed disciplinary action, provides more protection than afforded under Government Code section 3305.   Under these circumstances, it was not necessary to follow Government Code section 3305.  (See Gov.Code, § 3310.)

REMAINING ARGUMENTS

 There is substantial evidence to support the finding that Hoaglund was not disciplined by the Department or by the Commission in retaliation for his union activities.   The Department regularly gave him release time to attend to his union business.   There was a sufficient showing the alleged instances of misconduct had a reasonable factual basis, thus dispelling an inference that they were merely contrived or exaggerated in order to retaliate against him.   The record substantially supports a finding the 30 workday suspension is consistent with prior departmental disciplinary actions and that it is appropriate for the misconduct for which it was applied.

 Nor does the record establish the Commission's action was arbitrary and capricious so as to warrant an award of attorney's fees and costs under Government Code section 800.  “Arbitrary or capricious” conduct of a public entity or official encompasses conduct not supported by a fair or substantial reason, a stubborn insistence on following unauthorized conduct, or a bad faith legal dispute.  (Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52, 79, 227 Cal.Rptr. 667, 720 P.2d 15.)   The determination of whether an action is arbitrary or capricious is essentially one of fact, within the sound discretion of the trial court.  (Ibid.)  Although we have concluded the Commission exceeded its power in imposing termination, there is no suggestion the Commission did not seriously consider the evidence and in good faith render what it thought was a proper decision.   Further, there is no suggestion the Commission rendered the termination order to punish Hoaglund for bringing the appeal, in violation of Government Code section 3304, subdivision (a).

 As to whether Hoaglund is entitled to attorney's fees under the private attorney general statute in Code of Civil Procedure section 1021.5, the issue rests initially with the trial court to exercise its equitable discretion.  (Baggett v. Gates (1982) 32 Cal.3d 128, 142, 185 Cal.Rptr. 232, 649 P.2d 874.)

REMEDY

The case is remanded to the trial court with instructions to issue a writ of mandate directing the Commission to set aside its termination order and to order Hoaglund's reinstatement.   Further, the Commission shall affirm the 30 workday suspension imposed by the Department and award back pay (i.e., wages Hoaglund would have earned at the Department less wages he actually earned at other employment) lost while Hoaglund was terminated.⁹  (Fugitt v. City of Placentia (1977) 70 Cal.App.3d 868, 876, 139 Cal.Rptr. 123.)   As stated above, the trial court should also decide whether Hoaglund is entitled to attorney's fees under Code of Civil Procedure section 1021.5.

DISPOSITION

The judgment is reversed and the case remanded for further proceedings consistent with this opinion.

FOOTNOTES

1.   Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215, 124 Cal.Rptr. 14, 539 P.2d 774.

2.   Because we have opted to bottom our holding on the Commission's lack of authority to increase the severity of the sanction imposed by the Department by substituting the qualitatively different discipline of termination, we do not address the extensively briefed issues of whether Hoaglund was denied due process because he was not informed his appeal could result in a more severe punishment and by the dual role of the county counsel in “prosecuting” him and at the same time acting as advisor to the Commission.   We also avoid the issue of whether substantial evidence supports a termination sanction.

3.   Hoaglund did use a County vehicle on December 6, but only because he also used it to transport inmates at the same time and had the approval of Supervising Probation Officer Neal Pere to combine County and union business.   Apparently he stayed at camp on December 4.

4.   According to Boyle, Hoaglund was the only staff member who did not meet the December 15 deadline.   Contradicting her, three staff members testified they did not meet the December 15 deadline, but they did complete the materials shortly thereafter or sometime in January.

5.   A record of discussion is the first step towards disciplinary action, by which the employee is informed of the rules and warned if they are broken again, disciplinary action will be taken.

6.   The dissenting commissioner commented that although a 30 or even 60–day suspension might have been appropriate, termination was not consistent with past decisions of the Commission given the offenses involved.   The dissenting commissioner stated that in other cases the violations have been graver and termination was not applied, and here the violations were not severe, involved union business, and did not cause great harm to the public.

7.   Although we find Andersen both legally and factually distinguishable, we recognize the facial inconsistency of some of its language with the result we reach in this case.   To the extent Andersen may be inconsistent with our holdings here, it is disapproved.

8.   The only reference in Wilson's memorandum which Hoaglund claims provided new information was Wilson's assertion Hoaglund had during one interview stated the lunch after the November 21 negotiations ended at noon, whereas in the taped interview presented during the Skelly hearing he stated lunch ended at 1 p.m., which Wilson characterized as further evidence of his dishonesty.   This information is deminimus when considering the totality of the charges brought against Hoaglund.

9.   We are advised Hoaglund had served the entire suspension before his appeal was heard by the Commission.

WORK, Associate Justice.

WIENER, Acting P.J., and WOODWORTH, J.,* concur.