POHLE v. CHRISTIAN (1941)

The petitioner has appealed from that portion of a judgment which was rendered by the trial court in an application for a writ of mandamus denying him reinstatement to his permanent civil service position as property auditor of the department of finance, and refusing to compensate him for twenty-seven and a half days of service during which he was absent on vacation. In the same proceeding the petitioner was allowed $660 as unpaid salary, being the difference between the amount which he was actually paid and the minimum amount of $205 per month which was fixed as salary for his position. No appeal was taken from the last-mentioned portion of the judgment and it has become final.

The petitioner was appointed November 9, 1931, and served continuously thereafter as property auditor in the department of finance of the state of California until June 30, 1937, when he was notified in writing by the director of finance, pursuant to section 14a of the State Civil Service Act, Stats.1933, chap. 214, p. 712, Deering's Supp. to Laws of Calif. of 1933, p. 1263, Act 1400, that his position “will be abolished in the interests of economy, effective July 1, 1937”, and that his name would then be placed on the “lay-off list” of employees as provided by the section of the act last mentioned. No approval of the personnel board to abolish the office of the petitioner was procured.

The chief issue on this appeal is whether an employee may be suspended and placed on the “lay-off list” without the approval of the personnel board.

In support of the contention that the director of finance is authorized to abolish the petitioner's office, without first obtaining the consent of the personnel board, reliance is placed on article XXIV, section 2(c) of the California Constitution which was adopted as an initiative measure in 1934. That article provides for the adoption of a civil service merit system for state employees. It requires the appointment of a state personnel board of three members consisting of the director of finance, the state controller and the legislative counsel of the state. Section 2(b) provides that the board shall annually elect one of its members as president of the board. Section 2(c), upon which the respondents rely, then provides:

“The board shall appoint and fix the compensation of an executive officer who shall be a member of the State civil service but not a member of the board.

“Said executive officer shall perform and discharge all of the powers, duties, purposes, functions and jurisdiction hereunder or which hereafter by law may be vested in the board except that the adoption of rules and regulations, the creation and adjustment of classifications and grades, and dismissals, demotions, suspensions and other punitive action for or in the State civil service shall be and remain the duty of the board and a vote of a majority of the members of said board shall be required to make any action with respect thereto effective.”

Section 3(a) provides: “Said board shall administer and enforce, and is vested with all of the powers, duties, purposes, functions, and jurisdiction which are now or hereafter may be vested in any other State officer or agency under, Chapter 590 of the California Statutes of 1913 as amended or any and all other laws relating to the State civil service as said laws may now exist or may hereafter be enacted, amended or repealed by the Legislature.”

Section 14a of the Civil Service Act, under which the petitioner was suspended, reads in part: “Whenever it is necessary because of lack of work or lack of funds, or whenever it is advisable in the interests of economy, to reduce the staff of any department or agency in the State service, the appointing power may with the approval of the commission lay off employees according to the procedure set forth in this act and the rules and regulations thereunder.”

Pursuant to the authorization conferred upon the board by article XXIV, section 2(c), of the Constitution, rule 16, section 1, was adopted as follows: “When lay-offs may be made. Whenever it is necessary because of lack of work or because of lack of funds, or whenever it is advisable in the interest of economy to reduce the staff of any department or agency in the service, the appointing power may, with the approval of the board, lay off employees according to the procedure herein set forth.”

We are of the opinion the petitioner was unlawfully placed on the “lay-off list” of employees and thereby deprived of the benefit of his permanent civil service status, on July 1, 1937, without the necessary approval of the personnel board. Art. XXIV, sec. 2(c), Const.; sec. 14a, Civil Service Act; Spaletta v. Kelly, 30 Cal.App.2d 656, 661, 86 P.2d 1074. By the clear terms of the constitutional provision last cited, the board has the exclusive authority to adopt reasonable rules and regulations governing the procedure with respect to the “creation and adjustment of classifications and grades, and dismissals, demotions, suspensions and other punitive action”. The board actually did adopt rule 16 specifically providing that civil service employees could be laid off or suspended, only “with the approval of the board”. That reasonable administrative rule is a mere reiteration of the same requirement provided for by the legislature in section 14a of the Civil Service Act. It will be observed that the authority conferred by article XXIV, section 2(c) of the Constitution upon the executive officer to “perform and discharge all of the powers, duties, purposes, functions and jurisdiction” of the board is specifically limited therein to the exclusive rights of the board above mentioned. Since the Constitution and the statute authorize the board to adopt rules of procedure with respect to suspensions and dismissals of employees, and the legislature has declared that an employee may be laid off only with the approval of the board, it seems clear that the executive officer is without authority to suspend or place an employee upon the lay-off list without first obtaining the consent of the board therefor. This court reached that very conclusion in the Spaletta case, supra, in which a hearing by the Supreme Court was denied.

It follows that the petitioner was wrongfully deprived of his office as property auditor of the department of finance on July 1, 1937, and that he is therefore entitled to be restored to that position as of that date with the minimum compensation of $205 per month which was fixed therefor, together with pay for the accumulated vacation time to which he was entitled, which the court determined was twenty-four and a half days.

That portion of the judgment from which the appeal was perfected is reversed and the court is directed to render judgment in accordance with this opinion.

THOMPSON, Justice.

We concur: PULLEN, P.J.; TUTTLE, J.