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Court of Appeal, Third District, California.

John F. SKELLY, M.D., Petitioner and Appellant, v. STATE PERSONNEL BOARD of the State of California et al., Respondents.

Civ. 14283.

Decided: November 06, 1974

Robert J. Sullivan, Loren E. McMaster, Michael D. Stump by Loren E. McMaster, Calif. State Employees Assn., Sacramento, for petitioner-appellant. Evelle J. Younger, Atty. Gen. by Joel Primes, Deputy Atty. Gen., Sacramento, for respondents.

Petitioner appeals following denial by the superior court of his petition for a writ of mandate under Code of Civil Procedure section 1094.5. Petitioner (hereinafter ‘Doctor’) filed his petition following action by the State Personnel Board in affirming his punitive dismissal by the Department of Health Care Services. Doctor's petition for rehearing was denied by the State Personnel Board (‘Board’).

Doctor contends: (1) The Board's decision is not supported by substantial evidence; (2) The penalty imposed was excessive and constitutes an dbuse of discretion; (3) The California Government Code sections providing for discipline of employees violate the Fourteenth Amendment of the United States Constitution and the due process clause of the California Constitution; and (4) The Board's decision and the decision of the Sacramento County Superior Court denying his petition for mandate are void for lack of subject matter jurisdiction.


Doctor gradulated from Washington University Medical School in Washington, D. C., in 1934, and became licensed to practice medicine in California in the same year. He commenced an ear, nose and throat residency at University of California Hospital, and in 1937 entered private practice in San Francisco, specializing in ear, nose and throat problems. He held a teaching assignment with the University of California Medical School from 1937 to 1950, and in 1953 relocated his medical practice in Watsonville, California, continuing his specialty. In 1963 he underwent cataract surgery, and a resulting nerve degeneration in his eyes precluded his continuance in private practice.

Doctor commenced employment as a medical consultant for the State Welfare Department and was subsequently promoted from a Medical Consultant I to a Medical Consultant II. In 1969 the Department of Health Care Services took over the medical services of the Welfare Department, resulting in Doctor's reclassification from Medical Consultant II to Medical Consultant I.

Events relevant to our present inquiry resulted in a notice of punitive action sent to Doctor, informing him that he was terminated from his position effective at 5 p. m. on July 11, 1972. This action was predicated on the provisions of Government Code section 19572, subdivision (h) (intemperance), subdivision (j) (inexcusable absence without leave), and subdivision (t) (other failure of good behavior during duty hours).

We recite from the notice of punitive action upon which the hearing was conducted the following sequence of events which frame the charges against Doctor:

During the week of February 28, 1972, through March 3, 1972, Doctor took more than one hour for lunch each day. On March 3, 1972, supervising personnel discussed these absences with Doctor and informed him that if the pattern continued further disciplinary action would be required. Doctor agreed to adhere to scheduled working hours in the future.

On March 13, 14 and 15, 1972, Doctor was again observed to exceed the previously agreed one-hour lunch period.

On March 16, 1972, Doctor exceeded the agreed lunch period, and personnel again met with him to discuss his continued absences. Doctor at that time indicated that he was sick and that was why he had taken a long lunch period. Doctor was then informed that he had been observed at the bar drinking, shaking dice and joking. At this meeting Doctor was offered the opportunity of changing the basis of his employment from full to part-time which would have permitted Doctor to work only those hours convenient to him. He was further offered the opportunity to ponder his decision. At about 4 p. m. on March 16, 1972, Doctor indicated that he wished to continue to work full-time and was again told that he would be expected to adhere to the office's working hours and that further flagrant violations would result in disciplinary action.

On June 26, 1972, Mr. B. Moore went to Doctor's office at approximately 2 p. m., but Doctor was not present, and during the next hour Moore, on further check with the office, observed the Doctor not there. Moore continued looking for Doctor and found him sitting on a bar stool at a bar located approximately one block from Doctor's office, joking with another person and with an alcoholic drink immediately in front of him. Doctor's absence continued for the balance of the day.

On June 28, 1972, Moore net with Doctor again to discuss his absence of June 26, and at this meeting Doctor was asked how his absence should be charged. Doctor replied that it should be charged to sick leave. Moore responded by indicating that he had personally observed Doctor in a bar and was denying his request for sick leave.

At the hearing evidence was introduced to substantiate the foregoing charges, and additionally other evidence was presented which supported various other charges of impropriety occurring prior to the incidents for which the pending punitive action was brought. Most of these additional charges related to extended lunch hours taken in excess of the allowable office procedures, and on some occasions his conduct resulted in the receipt of a letter of reprimand. On a prior occasion Doctor admitted to his administrator that he had been drinking an alcoholic beverage during an unauthorized absence. For this offense he was suspended without pay for one day.

As to the charger presently involved, Doctor admitted several absences of more than one hour at lunch during the four months preceding June 26, but insisted that the extra time did not exceed 5 to 10 minutes. The district administrator for the Department of Health Care Services testified as to the absences, and Doctor admitted receiving appropriate warnings. As to the June absences Doctor testified that he was ill. Moore, Doctor's supervisor, in describing the June 26, 1972, episode, said Doctor's hair was tousled and his manner was joking, and that he did not give the appearance of being physically ill.

The record discloses that Doctor was aware of his obligation to work a minimum 40-hour week. He insisted that he consistently worked through his morning and afternoon coffee breaks and that he put in more than his required time over holidays. He also on occasion took work home. He denied that he had a drinking problem but admitted to an occasional drink at lunch.

The Board also received the testimony of a Dr. Hale, senior medical consultant, who worked with Doctor for approximately 13 months. Hale described Doctor's work as a medical consultant as good to superior. Doctor compared favorably with other staff physicians. In Hale's opinion Doctor was ‘our right-hand man insofar as ear, nose and throat problems were concerned. Hale described Doctor as efficient and confirmed that Doctor had worked through his coffee breaks. Hale also denied that Doctor routinely consumed alcohol during lunch. One other fellow employee confirmed his cooperative attitude.


Pertinent portions of the findings made by the hearing officer and adopted by the Board indicated: that during the period January through March 1972, notwithstanding the fact that the lunch period for Doctor had been enlarged from 45 minutes to one hour and that he had been suspended for a late return from lunch, Coctor nonetheless was late returning from lunch for four days successively following his suspension; that when questioned with reference to his last delay in return from lunch in March Doctor professed that he had been ill, when in actual fact he had been drinking at a nearby bar; that in June while the district administrator sought to discuss an administrative problem with Doctor he was not at his work but was found drinking at a nearby bar; and that Doctor's contention that he was ill on this occasion was untrue, and his contention that he was unable to notify the district administrator of his absence was equally untrue, as was his contention that he did not know that such a notice was required. Based upon the foregoing, the hearing officer concluded that the facts found, as above recited, constituted cause for punitive action under the provisions of Government Code section 19572, subdivision (j) (inexcusable absence without leave).

Doctor contends that these findings are not supported by substantial evidence.

Our review in a matter of this kind is to determine whether the findings are supported by substantial evidence. (Shepherd v. State Personnel Board (1957) 48 Cal.2d 41, 46, 307 P.2d 4; Lorimore v. State Personnel Board (1965) 232 Cal.App.2d 183, 186, 43 Cal.Rptr. 640). Our function in such a situation was described by the appellate court in Blake v. State Personnel Board (1972) 25 Cal.App.3d 541, 551, 102 Cal.Rptr. 50, 56 in the following words, referring to the Personnel Board: “Respondent Board is a state-wide administrative agency deriving its adjudicating power from section 3 of article XXIV of the Constitution. Consequently, its factual determinations must be upheld by a reviewing court if they are supported by substantial evidence (Shepherd v. State Personnel Board, 48 Cal.2d 41, 46–47, 307 P.2d 4) and all legitimate and reasonable inferences must be drawn in support of such findings (Orlandi v. State Personnel Bd., 263 Cal.App.2d 32, 38, 69 Cal.Rptr. 177; Sweeney v. State Personnel Bd., 245 Cal.App.2d 246, 251, 53 Cal.Rptr. 766). It is not our function to reweigh the evidence. (Shepherd v. State Personnel Board, supra, p. 46)' . . ..' (See also Pereyda v. State Personnel Board (1971) 15 Cal.App.3d 47, 50, 92 Cal.Rptr. 746.)

In the matter before us Doctor admitted that he had returned from lunch 5 or 10 minutes late on six specific occasions. Independent testimony established his late return on March 16, 1972, and on June 26. It is accordingly apparent that the first two findings are established by uncontradicted evidence. The hearing officer and the Board are each permitted to make a factual determination from the conflicting evidence, which determination supports the last challenged finding. Substantial evidence supports the findings of the hearing officer and the Board.


In reviewing the propriety of the penalty imposed, we follow the standard expressed in Blake v. State Personnel Board, supra, 25 Cal.App.3d, page 553, 102 Cal.Rptr. page 57 (hg. den.): ‘It is settled that the propriety of a penalty imposed by an administrative agency is a matter resting in the sound discretion of the agency and that its decision will not be disturbed unless there has been an abuse of discretion. [Citations.] Legal discretion means an impartial discretion taking into account all relevant facts, together with legal principles essential to an informed and just decision. The term ‘judicial discretion’ has been defined as ' ‘an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Emphasis supplied.) [Citations.] The fact that reasonable minds may differ as to the propriety of the penalty imposed will fortify the conclusion that the administrative body acted within the area of its discretion. [Citation.] On the other hand, if the penalty imposed was under all the facts and circumstances clearly excessive, the court is not powerless to act. [Citation.]’

We regard the case as close. On the one hand, Doctor's transgressions amounted to taking a longer period of time for lunch than that allotted and taking occasional absences from his office without official formal leave. The evidence is uncontradicted that Doctor always worked through his coffee break, and although no express finding was made on the point, it can be inferred from the record that the excess time consumed at lunch was compensated for by the time given to his duties in the afternoon. He had performed valuable services for the state, and was otherwise responsible in the discharge of his duties. Nonetheless, the evidence does support the hearing officer's finding that the absences from work were repeated and continued after every reasonable opportunity had been given to Doctor to adjust to the administrative requirements centering on his lunch hour. The record further discloses that his administrative supervisors were cooperative and accommodating within the reasonable demands of the office procedures. We must recognize the administrative necessity of having available during duty hours the medical staff of the Department of Health Care Services. We regard this as a case in which ‘reasonable minds may differ’ as to the propriety of the penalty, and we cannot say, under the Blake formulation, that the penalty imposed was ‘clearly excessive.’

We do not find in this record an abuse of discretion by the Board and reject the contention that the penalty of dismissal is excessive as a matter of law.


Under the Government Code sections pertaining to disciplining of state employees, ‘the appointing power’ may take punitive action against an employee for a specified cause (Gov.Code, §§ 19571, 19572) by notifying the employee of the action and serving him with written notice within 15 days of the effective date of the punitive action (Gov.Code, § 19574). The appointive power may dismiss, demote, suspend or take other disciplinary action (Gov.Code, § 19570). After receiving notice, if the employee wishes to contest the action taken against him, he must file an answer with the State Personnel Board within 20 days of service of the notice. In the absence of such answer the action taken against him is final. (Gov.Code, § 19575.) After filing of this answer, the Board is charged to hold a hearing within a reasonable time (Gov.Code, § 19578). Failure of the employee to appear at the hearing is deemed a withdrawal of his answer, and the action of the appointing power is final (Gov.Code, § 19579).

Government Code section 19582 permits the Board, or its authorized representative, to hold hearings. When an authorized representative (an employee of the Board) hears a case, he prepares a proposed decision which may be adopted as the decision in the case. In the instant matter the Board adopted the proposed decision prepared by its referee.

Doctor makes the following contention: ‘In a series of recent cases the United States Supreme Court has applied the Due Process Clause of the Fourteenth Amendment to a number of diverse situations. From these cases has emerged the constitutional principle that before a significant and fundamental interest in liberty or property may be abridged by a state, a hearing on the matter must first be held.’ He reasons accordingly that the hearing in question must precede the dismissal.

While it is well established that a due process protection enfolds an individual whose employment is affected by state action (Board of Regents v. Roth (1972) 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, 560–561), a fact finding hearing prior to discharge is not the only means of insuring fairness. (Reed v. Franke (4th Cir. 1961) 297 F.2d 17; McCurdy v. Zuckert (5th Cir. 1966) 359 F.2d 491.) In Reed the court stated: ‘The fact that the hearing provided by statute does not precede, but follows, Reed's separation from the service does not make the hearing inadequate. The statutory review is part of the protective procedure and the due process requirements are satisfied if the individual is given a hearing at some point in the administrative proceedings.’ (297 F.2d at p. 27; see also Two v. United States (9th Cir. 1972) 471 F.2d 287, 288.) Although Reed and Two involve separations from the military service, we discern no logical reason why a similar principle is not equally applicable in the matter before us. We find in the matter before us no violation of the due process safeguards and conclude that the Government Code sections in question are constitutional.


Our conclusion that the applicable statutes are constitutional is equally dispositive of the Doctor's final contention that if the statute was unconstitutional the Board's decision and that of the Sacramento County Superior Court denying mandate were both void for lack of subject matter jurisdiction.

The judgment is affirmed.

RICHARDSON, Presiding Justice.

JANES, and GOOD,* JJ., concur.

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Docket No: Civ. 14283.

Decided: November 06, 1974

Court: Court of Appeal, Third District, California.

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