STATE PERSONNEL BOARD v. AMON (1983)

This case requires that we resolve a jurisdictional conflict between administrative agencies.   The respondent State Personnel Board (Board) is vested constitutionally with the power and duty to enforce the merit principle in state civil service employment.  (Cal. Const., art. VII, § 3, subd. (a);  Gov.Code, § 18500 et seq.;  Pacific Legal Foundation v. Brown (1981), 29 Cal.3d 168, 183–184, 172 Cal.Rptr. 487, 624 P.2d 1215.)   Appellants Fair Employment and Housing Commission (Commission) and Department of Fair Employment and Housing (Department) are statutorily empowered to enforce and administer the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq.;   all subsequent statutory references are to sections of the Government Code unless noted otherwise.) ¹

Real parties in interest, Richard Amon, Frederick Pade, and Edith Williams (applicants), applied to the respondent California Highway Patrol (Patrol) for civil service appointments as State Traffic Officer Cadets.   Their applications were rejected because of disqualifying physical conditions revealed upon medical examination.   Amon has problems with visual acuity and color blindness;  Pade has a disabling back condition;  Williams has a digestive disorder secondary to intestinal bypass surgery.

Dissatisfied with their disqualifications, these applicants appealed directly to the Board.   In the cases of Pade and Williams, hearings were conducted and the Board upheld the disqualifications, concluding that the medical standards as applied to these two applicants were necessary for the adequate performance of the job classification of State Traffic Officer.   Amon abandoned his appeal to the Board and a hearing was never held in his case.

Although judicial review of the Board's decision in the Pade and Williams cases was available by way of a petition for writ of mandamus (§ 19630 et seq.;  Code of Civ.Proc., § 1094.5), they, together with Amon, chose instead to file with the Department complaints of employment discrimination on the basis of physical handicap.²  (Ibid.)

After an investigation, the Department found probable cause to believe that discrimination had occurred in all three cases and issued formal administrative accusations against the Board and the Patrol, charging them with unlawful discrimination under section 12900 et seq. for disqualifying the three applicants on the basis of physical handicap.   Pursuant to these accusations, administrative hearings were scheduled before the Commission to adjudicate the charges of employment discrimination.

The Board and the Patrol (respondents) filed this action in the superior court seeking to restrain the Department and the Commission (appellants) from filing accusations or holding administrative hearings with respect to the discrimination complaints of Amon, Pade, and Williams and also with respect to all other cases involving state civil service employment.   Respondents also sought a declaratory judgment that the “State Personnel Board has exclusive constitutional jurisdiction over complaints, investigations, and hearings of employment discrimination in the state civil service, and that ․ [appellants] do not have such or any jurisdiction in such matters; ․”

After issuing preliminary injunctive orders, the superior court granted respondents' motion and denied the appellants' cross-motion for summary judgment.   The court entered judgment declaring “․ the State Personnel Board, by virtue of article VII of the California Constitution, has exclusive jurisdiction over the examination and selection of state civil service employees, and ․ defendants, [Department] and Commission, do not have such or any jurisdiction in such matters, even if authorized by statute; ․”   The judgment also permanently enjoined appellants “․ from accepting complaints, conducting investigations, or filing accusations, subpoenas, or other administrative or legal process against the State Personnel Board involving employees or agencies under the Board's exclusive jurisdiction over the state civil service set forth in article VII of the California Constitution; ․”

This appeal ensued.   We shall hold that the judgment of the superior court is a correct application of paramount constitutional principles with regard to the actual controversy but otherwise overbroad to the extent it undertakes to resolve issues not the subject of a concrete dispute.

I

 The California Constitution decrees that state civil service employment will be governed according to the merit principle administered by a nonpartisan personnel board, to the end that the spoils system be eliminated and that employment in the state service be based on merit, efficiency and fitness free from legislative encroachment.   Beyond that, the Legislature remains free to fashion laws relating to personnel administration for the best interests of the state.  (Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at pp. 182–184, 172 Cal.Rptr. 487, 624 P.2d 1215.)   Pertinent constitutional language appears in article VII:  “In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination.”  (§ 1, subd. (b);  “The Board shall enforce the civil service statutes and, by majority vote of all its members, shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions.”  (§ 3, subd. (a)).)  These provisions, as with all provisions of the California Constitution, “are mandatory and prohibitory, unless by express words they are declared to be otherwise.”  (Art. I, § 26;  see also State Board of Education v. Levit (1959) 52 Cal.2d 441, 460, 343 P.2d 8.)   It is the duty of the courts “to give effect to every clause and word of the constitution, and to take care that it shall not be frittered away by subtle or refined or ingenious speculation.”  (Levit, supra, 52 Cal.2d at p. 460, 343 P.2d 8.)

On the other hand, the Legislature is vested with “all legislative power not expressly or by necessary implication denied to it by the Constitution.”  (Dean v. Kuchel (1951) 37 Cal.2d 97, 104, 230 P.2d 811;  Pacific Legal Foundation, supra, 29 Cal.3d at p. 180, 172 Cal.Rptr. 487, 624 P.2d 1215;  City and County of San Francisco v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 103, 113, 148 Cal.Rptr. 626, 583 P.2d 151.)   A presumption lies in favor of the Legislature's power to act, and constitutional “restrictions and limitations are construed strictly, and are not to be extended to include matters not covered by the language used.”  (Collins v. Riley (1944) 24 Cal.2d 912, 916, 152 P.2d 169;  Pacific Legal Foundation, supra, 29 Cal.3d at p. 180, 172 Cal.Rptr. 487, 624 P.2d 1215.)

 This case probes the line of demarcation between constitutional mandate and legislative prerogative.   It is undisputed that the Board and, in turn, the Department and the Commission each have acted by virtue of an express grant of authority, yet only the Board exercises powers derived from the Constitution.  (See Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38 Cal.App.3d 14, 21–22, 112 Cal.Rptr. 872;  Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 211, 98 Cal.Rptr. 467, 490 P.2d 1155.)

We are constrained to attempt to “harmonize” or “accommodate” apparent jurisdictional conflicts between administrative agencies, even where the jurisdiction of one agency flows from the Constitution itself.  (Pacific Legal Foundation, supra, 29 Cal.3d at pp. 175, 197, 199–200, 172 Cal.Rptr. 487, 624 P.2d 1215.)   In Pacific Legal Foundation, the court considered the potential impact of the state Employer-Employee Relations Act (SEERA, § 3512 et seq.) on the Board's constitutional authority to enforce and administer the merit principle in the state civil service.   Holding that SEERA is not unconstitutional on its face, the Court eschewed a “drastic or inflexible rule totally curtailing one agency's jurisdiction at the expense of the other's” because of “the mere possibility of conflict.”  (Pacific Legal Foundation, supra, at p. 175, 172 Cal.Rptr. 487, 624 P.2d 1215.)   Said the Court:  “․ petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute ․   Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.”  (Emphasis in original;  id., at pp. 180–181;  see also p. 200, 172 Cal.Rptr. 487, 624 P.2d 1215.)   Although provisions of SEERA granting the Public Employment Relations Board (PERB) jurisdiction to investigate and devise remedies for unfair labor practices might on their face overlap to some extent, they are not “irreconcilably in conflict with the State Personnel Board's jurisdiction to ‘review disciplinary actions' under article VII, section 3, subdivision (a),” of the Constitution.  (Fn. omitted;  id., at pp. 196, 197–200, 172 Cal.Rptr. 487, 624 P.2d 1215.)   The court emphasized that the Board and PERB each were established to serve a “different, but not inconsistent, public purpose.”  (Id., at p. 197, 172 Cal.Rptr. 487, 624 P.2d 1215.)

Pacific Legal Foundation did recognize the possibility that the statutory authority of a particular agency might in “specific instances conflict with the merit principle of employment embodied in article VII,” particularly in areas “․ relating to classifications, examination, appointment, or promotion, ․”  (Id., at pp. 185, 200, 172 Cal.Rptr. 487, 624 P.2d 1215.)   Those functions are at the very core of the Board's constitutional power to administer and enforce the merit principle.  (Id., at pp. 183–184, 187, 192–195, 172 Cal.Rptr. 487, 624 P.2d 1215.)

Thus the decisive question in this appeal is whether appellants' pursuit of formal accusations against the Board for discrimination based on physical handicap “inevitably pose[s] a present total and fatal conflict with” the Board's constitutionally derived powers of classification, examination, appointment or promotion.  (Pacific Legal Foundation, supra, at p. 181, 172 Cal.Rptr. 487, 624 P.2d 1215.)   If so, then the statutory authority under which the Department and Commission seek to act must yield to the constitutional mandate of the Board.³  (See Sonoma County Bd. of Education v. Public Employment Relations Bd. (1980) 102 Cal.App.3d 689, 701–702, 163 Cal.Rptr. 464, and American Fed. of State etc. Employees v. County of Los Angeles (1975) 49 Cal.App.3d 356, 122 Cal.Rptr. 591, both cases cited with approval in Pacific Legal Foundation, supra, at p. 193, 172 Cal.Rptr. 487, 624 P.2d 1215.)

II.

If a jurisdictional conflict is reconcilable, certain legal principles developed within the doctrine of preemption may supply the solvent.   Recent Supreme Court decisions have applied preemption principles taken from cases involving the National Labor Relations Act (NLRA) to jurisdictional problems arising under state laws governing labor and employment relations.

In Kaplan's Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60, 160 Cal.Rptr. 745, 603 P.2d 1341, the Court held that the jurisdiction of the Agricultural Labor Relations Board (ALRB) over unfair labor practices did not divest the superior court of power to entertain an equitable action to enjoin the obstruction of access to an agricultural employer's premises.   The court reasoned that the issue “turns primarily on whether preemption is necessary to avoid conflicting adjudications which would interfere with the regulatory activity of the administrative board.”  (Kaplan's Fruit, supra, at pp. 69–70, 160 Cal.Rptr. 745, 603 P.2d 1341;  see also Vargas v. Municipal Court (1978) 22 Cal.3d 902, 150 Cal.Rptr. 918, 587 P.2d 714;  Pacific Legal Foundation v. Brown, supra, holding 29 Cal.3d at p. 197, 172 Cal.Rptr. 487, 624 P.2d 1215, that statutes delegating unfair practice jurisdiction to PERB which “operate without damage to the State Personnel Board's jurisdiction” are not facially unconstitutional.)   Critical to the conflict inquiry was the question whether the controversy presented to the trial court was identical to or different from that which could have been presented to the Labor Board.   In the former situation a “ ‘court's exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board ․’ ”  (Kaplan's Fruit, supra, 26 Cal.3d at p. 71, 160 Cal.Rptr. 745, 603 P.2d 1341, quoting Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S. 180, 197, 98 S.Ct. 1745, 1757, 56 L.Ed.2d 209, 225–226.)   In the latter situation the ALRB may be unable to provide “a full and effective remedy.”  (Kaplan's Fruit, supra, 26 Cal.3d at p. 75, 160 Cal.Rptr. 745, 603 P.2d 1341.)

Relying on the same NLRA analogy, the Supreme Court in San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12–14, 154 Cal.Rptr. 893, 593 P.2d 838, held that the expertise which PERB brings to labor disputes arising under the Educational Employer Relations Act and the need for uniformity in resolving such disputes (see Motor Coach Employees v. Lockridge (1971) 403 U.S. 274, 285–288, 91 S.Ct. 1909, 1917–1918, 29 L.Ed.2d 473, 482–483), obliged the superior court to stay an action to enjoin an employee strike pending an unfair practice determination by PERB.  (See also Pacific Legal Foundation, supra, 29 Cal.3d at p. 200, 172 Cal.Rptr. 487, 624 P.2d 1215;  Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 177 Cal.Rptr. 888.)

In areas other than labor relations, recent decisions of the United States Supreme Court have applied a balancing test when dealing with federal preemption issues.  (1 Mezines, Stein, and Gruff, Administrative Law, Preemption, § 2.02[1], pp. 2–16 to 2–22.)   States are not automatically foreclosed from enacting laws which arguably or speculatively conflict with federal laws;  rather, state law must yield to federal law only if it “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ”  (Kewanee Oil Co. v. Bicron Corp. (1974) 416 U.S. 470, 479, 94 S.Ct. 1879, 1885, 40 L.Ed.2d 315, 324;  Ray v. Atlantic Richfield Co. (1978) 435 U.S. 151, 158, 98 S.Ct. 988, 994, 55 L.Ed.2d 179, 188–189;  Fidelity Federal S. & L. Assn. v. de la Cuesta (1982) 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664, 675.)   In determining whether there is such a clash, the high Court has begun with an examination of the objectives of the competing federal and state laws and of their interrelationship.  (Kewanee Oil Co., supra, 416 U.S. at pp. 480–482, 94 S.Ct. at pp. 1885–1886, 40 L.Ed.2d at pp. 324–326;  Merrill Lynch, Pierce, Fenner & Smith v. Ware (1973) 414 U.S. 117, 128–133, 94 S.Ct. 383, 390–392, 38 L.Ed.2d 348, 360–363.)   Where a substantial conflict is apparent (NYS Dept. of Social Services v. Dublino (1973) 413 U.S. 405, 423, fn. 29, 93 S.Ct. 2507, 2517, fn. 29, 37 L.Ed.2d 688, 700, fn. 29), the Court has overridden only that portion of the state law actually in conflict with federal law.  (Ray v. Atlantic Richfield Co., supra, 435 U.S. at pp. 173–174, 98 S.Ct. at pp. 1002–1003, 55 L.Ed.2d at p. 198.)

Courts of other states have analyzed the question of jurisdictional conflict between administrative agencies in a similar vein.   The Supreme Court of New Jersey dealt with a conflict between the state's Civil Service Commission and its Public Employment Relations Commission in City of Hackensack v. Winner (1980), 82 N.J. 1, 410 A.2d 1146.   The court examined the statutory authority of each agency with respect to the disputed matter (id., at p. 1152) and inquired whether the respective statutes served dissimilar purposes (id., at pp. 1157–1158) whether different claims or issues could be raised under each statute (id., at p. 1152), and whether one form of administrative relief was “uniquely the province of one of the competing agencies” (id., at p. 1153).   Because the claims before each agency raised mixed and multiple factual and legal issues, the court concluded that the administrative agencies had concurrent or overlapping jurisdiction.  (Id., at p. 1158;  see also Town of Dedham v. Labor Relations Commission (1974) 365 Mass. 392, 312 N.E.2d 548, 553, 559;  City of Albany v. Public Employment Rel. Bd. (1977) 57 App.Div.2d 374, 395 N.Y.S.2d 502, 504.)

As explained in Kaplan's Fruit, “․ the contours of the preemption doctrine have been largely shaped by ․ the need to avoid conflicting decisions between the NLRB and the courts ․   Such principles by analogy may also serve to guide us in the resolution of controversies between California agencies and California courts.”  (Kaplan's Fruit, supra, 26 Cal.3d at pp. 68, 74–75, 160 Cal.Rptr. 745, 603 P.2d 1341.)   Logically the analogy is equally compelling as applied to a jurisdictional controversy between state agencies such as presented here.

Considering the aforementioned preemption principles in light of the present circumstances, certain criteria emerge as crucial in determining whether the actions of appellants' here in question necessarily, inevitably, and fatally conflict with the Board's constitutional powers to enforce the merit principle in civil service employment.  (See Pacific Legal Foundation, supra, 29 Cal.3d at pp. 180–181, 172 Cal.Rptr. 487, 624 P.2d 1215.)   Starting with a consideration of the powers expressly conferred upon the two agencies with respect to the subject of the present dispute, we shall examine the purposes served thereby, the remedies available under the two systems and the ability or not of the applicants to adjudicate their claims fully, fairly, and competently in the Board's forum without recourse to that of the appellants.   We shall then determine in light of the foregoing considerations whether disqualification for physical handicap of an applicant for the civil service position of traffic officer cadet is a function inseparable from the constitutional authority of the Board over classification, examination and appointment in the civil service.

III

 The Civil Service Act (§ 18500 et seq.) establishes a comprehensive personnel system applicable to all state employees not specifically exempted by the Constitution (art. VII, § 1, subd. (a), § 4).   The system is designed to facilitate the operation of the constitutionally based merit principle and to increase economy and efficiency in the state service.   Accordingly, positions involving comparable duties and responsibilities are similarly classified and compensated.  (§ 18500)  The Board is responsible for classification of every position in the state civil service.  (Cal. Const., art. VII, § 3(a);  § 18800.)   Classification is to be determined according to the duties and responsibilities of the position and is based on the principle that all positions shall be included in the same class if, “[s]ubstantially the same tests of fitness may be used in choosing qualified appointees.”  (Emphasis added;  § 18801.)   The Board also must “establish minimum qualifications for determining the fitness and qualifications of employees for each class of position.”  (Emphasis added;  § 18931.)

Appointments are to be based upon merit and fitness ascertained through practical and competitive examination.  (§ 18500.)   The Board is responsible for the competitive examination of potential civil service candidates and the maintenance of eligible appointment lists.  (Art. VII, § 1(b);  §§ 18900, 18930.)   Examination must be of “such character as fairly to test and determine the qualifications, fitness and ability of competitors actually to perform the duties of the class of position for which they seek appointment. ”  (Emphasis added;  § 18930.)   These examinations may test “intelligence, capacity, technical knowledge, manual skill, or physical fitness,” where appropriate.  (Emphasis added;  § 18930;  see also § 19253.5, specifically relating to medical examinations.)   The Board may refuse to declare eligible for appointment anyone who is “physically ․ so disabled as to be rendered unfit to perform the duties of the position to which he seeks appointment.”  (§ 18935, subd. (c).)

The appointment of nonexempt civil service positions shall be filled in “strict accordance” with the requirements of the provisions of the Civil Service Act.  (§ 19050.)  (Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 102–103, 108, 77 Cal.Rptr. 224, 453 P.2d 728;  Snow v. Board of Administration (1978) 87 Cal.App.3d 484, 488, 151 Cal.Rptr. 127.)

Among the several types of employment discrimination prohibited by the Civil Service Act are discrimination against the totally or partially blind, including those with color vision anomalies (§ 19701), and discrimination against the physically handicapped “unless it can be shown that the particular handicap is job related” (§ 19702).⁴

Authority to implement and enforce the provisions of the Civil Service Act resides with the Board.  (See generally §§ 18700–18716.)   In dealing with complaints of employment discrimination under the act, the Board seeks to resolve as many such complaints as possible through conciliation by the appointing power at the departmental level.   Administrative procedures governing employee complaints of discrimination require that the complaint be competently investigated and timely and fully considered and that the employee be advised of his rights at each stage of the proceedings and not be subjected to official reprisal nor attempts to dissuade him from pursuing his complaint.  (Cal.Admin.Code, tit. 2, §§ 547–547.2.)   If efforts at the departmental level fail to resolve the issue, the complainant is entitled to a full evidentiary hearing before one of the Board's hearing officers.  (§§ 18670, 18671, 18675;  Cal.Admin.Code, tit. 2, § 51 et seq., § 202, subd. (d)(3);  § 547.1;  see also Long v. State Personnel Bd. (1974) 41 Cal.App.3d 1000, 1005–1006, 116 Cal.Rptr. 562.)   If a complaint is not resolved at the departmental level within 180 days from the date of filing it may be referred to the Board as an appeal for remedial action.  (Cal.Admin.Code, tit. 2, § 547.2;  see also Cal.Admin.Code, tit. 2, § 63.)   Applicants who would otherwise be disqualified from a position for medical reasons are afforded the opportunity to receive individualized, special consideration.  (Cal.Admin.Code, tit. 2, § 172.1.) ⁵

From the Board's final decision a complainant has a right of judicial review.  (§ 19630 et seq.;  Code of Civ.Proc., § 1094.5.)

The California Fair Employment and Housing Act (FEHA) (§ 12900 et seq.) contains a comprehensive scheme prohibiting employers from discriminating against certain classes of individuals.  (§§ 12920, 12921, 12940, 12941.)   Employers covered by the Fair Employment Act include “the state or any political subdivision thereof.”  (§ 12926, subd. (c);  see also Hollon v. Pierce (1967) 257 Cal.App.2d 468, 475, 64 Cal.Rptr. 808.) ⁶

Among those whom the FEHA protects from discrimination are the physically handicapped.  (§ 12941;  cf. 42 U.S.C. § 2000e–2;  see also Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 796, 175 Cal.Rptr. 548.)   Unless based upon a “bona fide occupational qualification,” it is unlawful for an employer to refuse to hire persons because of physical handicap or medical condition.  (§ 12940, subd. (a).)  However, this proscription does not apply where the applicant, because of his physical handicap or medical condition, is “unable to perform his or her duties, or cannot perform such duties in a manner which would not endanger the employee's health or safety or the health or safety of others.”  (§ 12940, subds. (a)(1) and (a)(2);  see also § 12994.)

The FEHA contains procedures whereby aggrieved persons within its protection may seek redress.   The Department conducts the investigatory and prosecutorial functions and the Commission the adjudicatory function in processing complaints of employment discrimination.  (§§ 12930, 12935.)   A complaint procedes in accordance with the Administrative Procedure Act.  (§§ 11500, 12972;  Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326, 333, 136 Cal.Rptr. 421.)   Complaining parties may have their cases heard by an administrative law judge within 90 days of the filing of an accusation by the Department (§§ 12967, 12968).   Appeal to the Commission is available.   Final decisions by the Commission are reviewable by the courts.  (Code Civ.Proc., § 1094.5.)   Under certain circumstances, where the Department does not file an accusation, an aggrieved party also has a right to initiate a “private cause of action” in the superior court.  (§ 12965, subd. (b).)

It is apparent that both the Board and the appellants, under their respective governing statutes, are charged with enforcing virtually identical substantive standards with respect to discrimination against the physically handicapped.   The Civil Service Act prohibits employment discrimination against the physically handicapped unless the particular handicap is “job related.”  (§ 19702.)   The FEHA prohibits employment discrimination against the physically handicapped unless justified by a “bona fide occupational qualification” (§ 12940).   As we see it, a “bona fide occupational qualification” is virtually synonymous with the “job related” standard administered by the Board.   Even if the categorial synonymity were not clear, the FEHA further clarifies the essential congruity of the two schemes by providing that an employer may refuse to hire persons with medical or physical handicaps who are unable to or cannot safely perform the duties of the job.  (§ 12940.)

It is true as appellants point out that the appeals to the Board of applicants Pade and Williams were handled as medical rather than physical handicap discrimination appeals.   In medical appeals the issues are limited to the existence of the physical condition in question and whether that condition meets the standards of disqualification for employment under the Board's medical standards for the particular job classification.   Appellants represent that their procedures focus directly on the discrimination issue by affording a physically handicapped complainant rejected for employment the opportunity to show that he is in fact able to perform the job in question notwithstanding his disability;  furthermore appellants hearing assertedly would address the ability of the employer reasonably to accommodate to the complainants' handicap.   However, appellants ignore the availability of a virtually identical remedy in appeals to the Board.   By providing for waiver of a medical employment standard “subject to proper placement” within the class, the Board is prepared to give individualized consideration to applicants who are unable to meet the minimum standards of physical fitness preliminarily required for a particular classified position, but who can demonstrate that “such waiver would not affect the satisfactory performance of the duties assigned to the specific position” (see Cal.Adm.Code, tit. 2, § 172.1;  fn. 5, ante, p. 16).

Appellants rejoin that the Board did not permit applicants the opportunity to show they could actually perform the duties of a traffic officer.   However, there is neither showing nor contention that applicants framed their appeals to the Board as other than medical appeals, i.e., as complaints of discrimination on account of color blindness (§ 19701) or physical handicap (§ 19702), or that they specifically sought waivers of physical or medical standards subject to proper placement within the relevant job classification.  (Cal.Adm.Code, tit. 2, § 172.1.)   It is incumbent upon the dissatisfied applicant who seeks relief from the Board clearly and specifically to frame the issues on appeal:  “A complaint of discrimination which cannot be resolved by the appointing power ․ shall be filed with the Personnel Board as an appeal ․  [¶] Each complaint must be in writing and state clearly the facts upon which it is based, and the relief requested in sufficient detail for the reviewing authority to understand the nature of the complaint and who is involved.”  (Cal.Adm.Code, tit. 2, § 547.2.)

If the Board failed or refused to hear or erroneously decided properly tendered issues of discrimination or waiver, applicants' remedy is to seek judicial review of the administrative proceeding (§ 19630 et seq.;  Code Civ.Proc., § 1094.5).   If claims of discrimination or waiver were not tendered in accordance with the rules of practice before the Board, applicants have no justiciable cause to complain of denial of substantive rights of which, given the opportunity, they failed to avail themselves.⁷

Appellants contend they are uniquely empowered to exercise certain remedial powers upon a finding of discrimination which are not given to the Board.   Specifically appellants can require an offending employer “to cease and desist from ․ [a discriminatory] practice and to take such action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, as in the judgment of the commission, will effect the purposes of [the FEHA] ․”  (§ 12970.)   It cannot be seriously contended, however, that the Board in the present circumstances lacks the authority under the Civil Service Act to compel an employer to refrain from discriminatory employment practices and to cause the hiring of a particular applicant under appropriate circumstances.

Undaunted, appellants direct our attention to the availability of a right of private action to an aggrieved person under the FEHA (§ 12965, subd. (b)), pointing out there is no cognate judicial remedy under the Civil Service Act.   However, appellants fail to mention that the judicial remedy as provided by the FEHA is permitted only in default of agency action where the Department does not file an accusation.   In proceedings before the Board, it is the aggrieved person, not the agency, who must initiate formal proceedings by filing a written complaint (Cal.Admin.Code, tit. 2, §§ 63, 547.1).   Thus availability of a judicial remedy in the first instance is not only unnecessary, it would be useless since such relief at that stage of proceedings would be precluded by the principle requiring exhaustion of administrative remedies as a prerequisite to judicial review.

We conclude the administrative procedures available under the Civil Service Act guarantee full and fair opportunity to challenge individual employment decisions with respect to the medically or physically handicapped.   Appellants insist, however, that the procedural protections afforded claimants under the FEHA are qualitatively superior to the relatively more informal procedures of the Board.   However that may be, we shall not speculate as to the “better” of the two administrative procedures given that those of the Board comport with the requirements of due process of law.  (See French v. Rishell (1953) 40 Cal.2d 477, 481, 254 P.2d 26;  Kremer v. Chemical Construction Corp. (1982) 456 U.S. 461, 480–481, 102 S.Ct. 1883, 1897–1898, 72 L.Ed.2d 262, 279–280;  City of Hackensack v. Winner, supra, 410 A.2d at p. 1163;  Mitchell v. National Broadcasting Co. (1977) 553 F.2d 265, 271.)

Appellants infer a legislative intent to invest them with concurrent jurisdiction with regard to the subject of the present controversy because of a requirement that the Board, as an employer within the scope of FEHA, maintain and preserve personnel application files for a period of one year (§ 12946) and submit to the Commission affirmative action plans and ethnic statistical data.  (§ 19702.5.)   Neither duty, however, specifically relates to information regarding the physically handicapped.   In fact section 19702.5 refers to data relative to sex, age, and ethnic origin without express mention of physical handicap.   These record-keeping requirements, standing alone, do not reflect a legislative intent to dilute the Board's jurisdiction over employment discrimination against the physically handicapped.

 Appellants argue that their concurrent jurisdiction here is supported by the Board's own admissions and past practice.⁸  Although subject-matter jurisdiction may never be waived (Burris v. Superior Court (1974) 43 Cal.App.3d 530, 537, 117 Cal.Rptr. 898;  Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 622, 102 Cal.Rptr. 815, 498 P.2d 1063) and although final responsibility for the interpretation of the law rests with the courts, past and contemporaneous pronouncements and interpretations by administrative officials of their legislative or constitutional authority are accorded considerable weight.  (Mooney v. Pickett (1971) 4 Cal.3d 669, 681, 94 Cal.Rptr. 279, 483 P.2d 1231;  City of Los Angeles v. Public Utilities Com. (1975) 15 Cal.3d 680, 696, 125 Cal.Rptr. 779, 542 P.2d 1371;  see also Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at pp. 191–192, 172 Cal.Rptr. 487, 624 P.2d 1215.)   Nonetheless, these prior statements and practices of the Board are not conclusive of the jurisdictional controversy.   The deposition testimony of Board members indicates at most a twenty-year joint effort, since the adoption of the predecessor to the FEHA, of the Board and appellants to utilize all the state's resources to eradicate discrimination in employment.   Over the years, the Board generally has cooperated with the Commission and Department in cases involving allegations of discrimination in state civil service employment and has viewed the Department's investigatory activities as supplementary to its own.   Yet the Board never has expressed any position with regard to concurrent jurisdiction in the specific area of discrimination against the physically handicapped despite the fact that a prohibition against such discrimination was added by statute in 1973.  (Stats.1973, ch. 1189, § 6.)   Furthermore, in practice, the Department has admitted in discovery that it has never served the Board with accusations of employment discrimination prior to the three accusations filed on behalf of the applicants herein.   Nor have appellants ever issued any finding that the Board has engaged in discrimination.

We are satisfied that the Board has the greater expertise with respect to determination whether a disqualifying physical condition is job related or whether an individual can satisfactorily perform the duties of a particular job notwithstanding an otherwise disqualifying physical disability.   In relation to appellants, the Board's superior expertise extends across the entire realm of civil service classifications including specifically the position of traffic officer.   Virtually every job requires some minimum standard of physical fitness or, stated in another way, the absence of that level of physical incapacity which would preclude adequate performance of the work.   While employment standards may not lawfully take into account individual characteristics such as race, color, or national origin, establishment of a certain minimum level of physical capacity is essential in the formulation of legitimate job standards.   In the latter context, discrimination occurs only when a disqualifying physical condition is not job related (a bona fide occupational qualification) and therefore would not render an applicant unable to perform the duties of the position adequately and safely.   Thus the test for discrimination against the physically handicapped is inherently and exclusively involved with the setting of minimum standards of capacity to perform and with ability actually to perform in particular job classifications.   These matters are uniquely within the competence of the Board and not of the appellants.   Specifically to the point, the Board has the expertise to assess the duties of a state traffic officer, prescribe the minimum qualifications required safely and effectively to perform those duties and determine ability so to perform in individual cases.   The appellants have neither responsibility nor expertise in this area.

In order to discharge its constitutional obligation to classify all positions in the civil service according to comparability (Cal. Const., art. VII, § 3, subd. (a)), the Board must evaluate the duties and responsibilities of and determine the levels of fitness necessary to performance in each class of position (§§ 18500, 18801);  the Board must establish minimum standards of fitness and qualification for each position (§ 18931).   In order to insure appointments are governed by the merit principle, the Board must examine applicants to determine their qualifications, fitness and ability to perform the duties of the class in which they seek employment (art. VII, § 1, subd. (b);  § 18930).   The examination may, where appropriate, test the physical fitness of the applicant (ibid.) and the Board may refuse to certify for appointment anyone who is so disabled as to be rendered unfit to perform in the class to which he seeks appointment (§ 18935, subd. (c)).

Development of job performance standards and assessment of an applicant's ability to perform a civil service job are under the Constitution exclusively within the province of the Board.   They are inextricably intertwined with the Board's exclusive constitutional prerogative to prescribe classifications (Stockton v. Department of Employment (1944) 25 Cal.2d 264, 272, 153 P.2d 741;  Noce v. Department of Finance (1941) 45 Cal.App.2d 5, 11, 113 P.2d 716) and its constitutional authority over appointment and examination all of which are at the heart of its constitutional power to administer the merit principle (Pacific Legal Foundation, supra, at pp. 183–184, 187, 192–195, 172 Cal.Rptr. 487, 624 P.2d 1215).   Immanently a part of these powers is the authority to determine whether an applicant possesses minimum physical capacity necessary to the demands of the particular employment, either by application of general standards of fitness or by individualized physical testing against job performance requirements.

 Relying on a hypothetical example in Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at page 185, 172 Cal.Rptr. 487, 624 P.2d 1215, appellants claim that the Board's constitutional jurisdiction is solely confined to vindicating the merit principle against political influence.   Such a construction is unduly narrow, as the merit principle also necessarily contemplates vindication against corruption, disloyalty, subversion, and commonplace inefficiency, ineptitude and indolence in the classified service.  (See Pacific Legal Foundation, supra, at p. 182, 172 Cal.Rptr. 487, 624 P.2d 1215.)   Whatever the precise scope of the merit principle, it cannot be defined simply in terms of a negative standard, i.e., freedom from political influences, if it is to be administered by other than subjective criteria.   The merit principle is the antithesis of political influence and to administer its acknowledged constitutional powers to insulate state employment from political influence, the Board must devise a set of objective criteria which are intrinsically job related, thus defining and giving substantive content to the merit principle.   Standards of physical fitness and ability physically to perform are essential to the formulation of such objective criteria just as obviously as race, color, party affiliation or consanguinity with high officials are not.   Imposition of appellants' standards applicable to the physically handicapped would, to that extent, inevitably undermine the uniform and objective application of the merit principle in state employment, the stewardship of which is confided exclusively by the Constitution to the Board.

 The Board and appellants seek to occupy the same jurisdictional space in the context of a concrete controversy.   Appellants' claim the right to “examine the qualifications [for employment] set by the Board to determine whether they are bona fide, and then give handicapped applicants the opportunity to demonstrate an ability to perform bona fide requirements.”   The appellants' assertion of jurisdiction over these matters poses a present total and fatal conflict with the Board's constitutional powers of classification, examination and appointment (Pacific Legal Foundation, supra, at p. 181, 172 Cal.Rptr. 487, 624 P.2d 1215).   Where such a conflict exists, the constitutionally derived power of the Board must prevail.  (See Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 11, 114 Cal.Rptr. 753, 523 P.2d 1161).

 The parties have enlarged the dispute in the trial court to encompass areas of hypothetical conflict involving other categories of discrimination not here in dispute.   By declaring the Board has exclusive jurisdiction over all matters of civil service examination and selection and by permanently enjoining appellants from exercising any such jurisdiction, the trial court judgment reflects that enlargement.   A court should abjure ruling on abstract controversies (Pacific Legal Foundation v. Brown, supra, at p. 200, 172 Cal.Rptr. 487, 624 P.2d 1215).   The Board has shown in support of the motion for summary judgment, that no triable issue of fact exists with regard to its preemptive jurisdiction to hear and determine the claims of employment discrimination of Amon, Pade and Williams.  (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20, 112 Cal.Rptr. 786, 520 P.2d 10).   A judgment confined only to the issues involved in this actual dispute should be entered in favor of respondents.

The judgment is reversed.   The cause is remanded with directions to enter judgment enjoining appellants, Department and Commission, from further prosecuting the accusations, charging the Board and the Patrol with employment discrimination in the cases of real parties in interest Amon, Pade, and Williams.   Each party is to bear its own costs on appeal.

FOOTNOTES

1.   Effective January 1, 1981, the Fair Employment Practice Act (former Lab.Code, § 1410 et seq.) and the Rumford Fair Housing Act (former Health & Saf.Code, § 35700 et seq.) were combined to form the California Fair Employment and Housing Act, codified in Government Code section 12900 et seq. (Stats.1980, ch. 992, § 4.)   With this reorganization, the California Fair Employment Practice Commission and the Division of Fair Employment Practices were renamed the Fair Employment and Housing Commission and the Department of Fair Employment and Housing respectively.  (§ 12903.)   Although the instant controversy arose before the reorganization, we shall cite to the newly enacted Government Code provisions and refer to the agencies by their current names.

2.   Williams filed her administrative complaint with the Department prior to the Board's final decision.

3.   In Pacific Legal Foundation, the court stated that “a broad interpretation of article VII, section 3, subdivision (a), reserving to the State Personnel Board alone the authority to inquire into and to remedy any disciplinary action taken against a civil service employee, would reach beyond SEERA and clash with a number of other important statutory procedures as well.”  (Supra, at p. 199, 172 Cal.Rptr. 487, 624 P.2d 1215.)   It cited by way of example sections under the California Fair Employment and Housing Act affording the Fair Employment and Housing Commission “․ authority, analogous to PERB's unfair practice jurisdiction, to investigate claims and to fashion relief, including reinstatement and back pay, for a state employee whom the commission finds has been the victim of racial, religious, sexual or other specifically enumerated employment discrimination.”  (P. 199, 172 Cal.Rptr. 487, 624 P.2d 1215.)   The Court's dicta is not controlling here;  it was examining the facial validity of a statute and specifically concerned with disciplinary actions against a civil service employee, not with the appointment of an applicant to a civil service position.   It neither mentioned nor considered the Commission's statutory authority to deal with charges of discrimination against the physically handicapped either in the abstract or in the context of an actual conflict with the Board's powers to classify, examine and appoint.

4.   The Legislature has established affirmative action programs in the state civil service designed to encourage employment of minorities, women and the physically disabled.   The provisions with respect to the physically disabled (§ 19230 et seq.) are different and are set forth separately from other affirmative action provisions.  (§ 19790 et seq.)

5.   California Administrative Code, title 2;  section 172.1, provides:  “An alternative or additional special personal characteristic stated in the specification for an individual class may, upon the recommendation of the State Medical Officer, be waived for a ‘subject to proper placement’ eligible for a specific position within the class wherein such waiver would not affect the satisfactory performance of the duties assigned to the specific position.   Incumbents with ‘subject to proper placement’ status may not transfer to another position within the class without a reevaluation of the incumbent's medical capabilities in relation to the new position.  (Persons who are ‘subject to proper placement’ have completed the medical examination;  however, they have certain medical conditions that may hazardously conflict with the job duties or the performance required of most, but not all, positions within the classification.)”

6.   In view of this unambiguous declaration of legislative intent, we reject respondents' contention that “employer” as used in the act does not include the state as employer of members of the classified service under the Civil Service Act.   It is clear at least in a general sense that the Board's jurisdiction over civil service employment is not exclusive.  (Pacific Legal Foundation, supra, 29 Cal.3d at p. 199, 172 Cal.Rptr. 487, 624 P.2d 1215.)

7.   In the case of applicant Amon, the abandonment of his appeal to the Board constitutes a voluntary relinquishment of the right to the redress he now seeks from appellants.

8.   Defendants cite the following deposition testimony of Board members:  1.  “In March 1976, the State Personnel Board approved a statewide procedure for resolving complaints of discrimination in State employment.   While the new procedures provide a means for resolving discrimination complaints within state service, nothing in the rules precludes employees or applicants from filing a complaint with the [Department] or [Commission] or from bringing a court action.”2. “All written notices to the complainant or his/her representative which set forth the decision of this Department to deny the complaint or otherwise rule against the complainant, shall contain a statement informing the complainant of his/her right to address the matter to an appropriate state and/or civil rights compliance agency or to the SPB, and of related time limits.”

PUGLIA, Presiding Justice.

REGAN, J., concurs. BLEASE, J., concurs in the result.