Thampy v. County of Fresno

Filed 10/25/06 Thampy v. County of Fresno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Rosendo Pena, Judge.

J. Steven Lempel, for Plaintiff and Appellant.

Dennis A. Marshall, County Counsel and Catherine E. Basham, Senior Deputy County Counsel, for Defendants and Respondents.

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Appellant Leon Thampy was a senior accountant for the County of Fresno. He contended that the work he was actually doing fit the description of a higher paying position, that of “principal accountant,” and sought to have himself reclassified as a principal accountant. After the procedural path he followed in this endeavor (and which we will describe in more detail below) proved fruitless, he filed a petition for writ of mandate seeking an order directing the Fresno County Board of Supervisors (“the Board”) to reclassify him as a principal accountant. The superior court denied the petition. Thampy appeals from the order denying the petition. (See Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 944, fn. 1.)^[1]

The primary issue raised by this appeal is this - is the power to create a new principal accountant position in Fresno County held by the Board of Supervisors only, or does the County’s Director of Personnel Services (“the Director”) also have this power? Appellant contends that the board has delegated this power to the Director by means of certain provisions of the “Fresno County Personnel Rules“ adopted by the Board, and that a decision of the County’s Civil Service Commission required the Director to create a new principal account position to be held by appellant. Respondents contend that only the Board has the power to create a new principal accountant position. As we shall explain, we agree with respondents and therefore will affirm the superior court’s order denying appellant’s petition for writ of mandate.

FACTS

Appellant was employed in the classified service of the County of Fresno. On or about April 2, 2001, appellant filed a written request for reclassification of his position from “senior accountant“ in the Financial Division of the Fresno County Department of Human Services to the position of “principal accountant.” The request was filed with the Administrative Services Division of the Department of Human Services. In a memo dated November 12, 2002 the County’s Director of Personnel Services, Ralph Jimenez, asserted that “[n]o change in classification is recommended at this time.” On or about June 11, 2003, appellant filed an appeal with the Fresno County Civil Service Commission. Patrick Murphy of the Department of Personnel Services asked appellant to meet with Mr. Jiminez regarding his request for reclassification. That meeting occurred on August 20, 2003. The parties agree that on the next day “the Civil Service Commission denied Thampy’s Request for Appeal pending another decision by the Personnel Department on Thampy’s request for reclassification.” By letter dated September 2, 2003 Jimenez notified appellant that appellant’s request for reclassification was denied.^[2]

Nine days later appellant refiled his appeal with the Civil Service Commission. The Commission conducted an evidentiary hearing on February 12, 2004, and on March 18, 2004 issued its “Findings, Conclusion and Decisions” (“the Commission’s decision”). The Commission agreed with appellant’s contention that he should be reclassified as a principal accountant. The dispositional language of the Commission’s decision stated “[t]he action taken by Respondent Fresno County, denial of Appellant’s request for reclassification from Senior Accountant to Principal Accountant, is revoked.” Notably, the Commission’s decision did not expressly order any particularly identified person or entity to reclassify appellant.

Appellant then asked the Fresno County Board of Supervisors to reclassify him. The Board heard appellant’s request as part of its regular public meeting on May 25, 2004 and did not reclassify appellant. The transcript of the May 25 hearing shows that appellant’s counsel asked the Board “to confirm the Civil Service Commission’s unanimous order, and to order that Mr. Thampy be reclassified as a principal accountant, rather than a senior accountant” and “that that be done as of the time the application that was made in April, 2001.” Supervisor Arambula moved to receive correspondence from appellant’s counsel and to “direct staff to take no action on the request.” Supervisor Waterston seconded the motion, which passed by a vote of 4 to 1. The one no vote was cast by Supervisor Anderson, who expressed the view that “[i]t’s a very unusual situation, and I would feel more comfortable if we had outside counsel look at our process before we make a decision on this case.”

Appellant then filed his petition in the superior court. His first cause of action sought a writ of mandate directing the Board to reclassify appellant as a principal accountant, effective April 2, 2001. It alleged that by reason of the Civil Service Commission’s decision appellant was entitled to be reclassified, and that the Board “was under the mandatory duty to comply with and enforce the Civil Service Commission’s decision and to reclassify [appellant] to the position of principal accountant.” His second cause of action was for administrative mandamus, and alleged that the Civil Service Commission “committed prejudicial abuse of discretion because its decision is not supported by the findings in that the Commission found that [appellant] is qualified and functioning as a principal accountant but failed and refused to order that he be reclassified to the position of principal accountant.” It sought an order directing the Commission “to modify its Findings, Conclusions and Decision to include an order reclassifying [appellant] to the position of principal accountant, effective April 2, 2001.”

The superior court held a hearing on the petition on April 1, 2005 and announced its decision denying the petition on April 15. These proceedings were conducted without a court reporter. A settled statement, agreed to by the parties and the superior court and included in the record on appeal, states in pertinent part:

“3. No evidence was admitted at the hearing on April 1, 2005, other than the certified transcript of the Board of Supervisors’ meeting on May 25, 2004, and matters of which the parties had requested the Court take judicial notice.

“4. At the hearing on April 15, 2005, the Trial Court announced that it was denying the Petition for Writs of Administrative Mandate and traditional Mandate because the reclassification of County employees is a discretionary, legislative matter solely within the jurisdiction of the Board of Supervisors because they require amendment of the County’s Classification Plan. Based on these legal conclusions, the Trial Court found that there was no reason to reach the factual issues raised in the Petition.

“5. Also at the hearing on April 15, 2005, the Trial Court found that the findings and conclusions of the Civil Service commission were supported by substantial evidence.”

Appellant’s appeal to this court does not contest the denial of the petition for writ of administrative mandamus he sought against the Commission, but does contest the denial of the petition for writ of mandate he sought against the Board.

THE BOARD HAD NO DUTY TO RECLASSIFY APPELLANT

Appellant and respondent both agree that because appellant resigned from employment with the County in November of 2005, he can no longer obtain the reclassification he sought.^[3] Appellant contends, however, that the Board was legally obligated to reclassify him, and that therefore he is entitled to the difference between the amount of money he would have been paid if the Board had reclassified him as a principal accountant and the amount he actually did receive as a senior accountant. Appellant cannot succeed on this claim, however, unless he is correct in his contention that the Board was legally obligated to reclassify him. As we shall explain, we agree with respondent that the Board had no legal obligation to reclassify him. There were three occupied (i.e., unavailable) principal accountant positions in appellant’s department. Any decision as to whether to create a fourth principal accountant position rested within the sole discretion of the Board.

“Generally, mandamus may be used only to compel the performance of a duty that is purely ministerial in character. (Morris v. Harper (2001) 94 Cal.App.4th 52, 62 [114 Cal.Rptr.2d 62].) The remedy may not be invoked to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular way. (Citation.) ‘A ministerial act has been described as “an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act’s propriety or impropriety, when a given set of facts exists.” [Citation.] On the other hand, discretion is the power conferred on public functionaries to act officially according to the dictates of their own judgment. [Citations.]’ (Morris v. Harper, supra, 94 Cal.App.4th at p. 62.)” (Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002-1003.)

The Fresno County Charter states:

“SECTION 12. It shall be the duty of the Board of Supervisors:

“(b) to provide, by ordinance, or resolution for the compensation of elective and appointive officers, assistants, deputies, clerks, attaches, and employees unless such compensation is otherwise fixed by this Charter.

“(c) To provide by ordinance or resolution for the number of assistants, deputies, clerks, attaches, and other persons to be employed from time to time in the several offices and institutions of the County. (Amended November 2, 1954).”

The Board did enact an “ordinance” pertaining to the matters described in Sections 12(b) and 12(c) of the Charter. It is section 3.08.020 of the Ordinance Code of Fresno County. That section states:

“The maintenance and revision of the county position classification plan shall be a function of the director of personnel services. Such function shall include responsibility for periodic and special reviews of class specifications and the auditing of individual positions and groups of positions. The director of personnel services shall recommend such plan and changes therein from time to time to the board of supervisors. The board of supervisors, upon receiving the recommendation of the director of personnel services, may adopt such plan and any change therein by incorporating the same in the county salary resolution which shall include the position classification, titles and salary ranges.”

The final sentence of section 3.08.020 of the Ordinance Code is clear that it is the “board of supervisors” that “may adopt such plan and any change therein.” (Ord. Code,

§ 3.08.020.) Although the first sentence of section 3.08.020 might, if it stood alone, be read as empowering the director of personnel services to make changes to the county position classification plan, the third sentence makes clear that the director “shall recommend such plan and any changes therein from time to time to the board of supervisors.” The fourth sentence is then explicit that the plan and any changes to the plan are made by the Board. The Board “may adopt such plan and any change therein,” but is clearly not required to do what the director recommends. The Board simply exercises the discretion conferred on it by the County Charter.

This is really all that need be said to reach the conclusion that the superior court did not err in denying appellant’s petition for writ of mandate.

Appellant’s argument is based upon the erroneous premise that the director of personnel services had the power to reclassify appellant’s position from senior accountant to principal accountant. Appellant contends that the Director had this power, that the Director erred in refusing to reclassify appellant, that the Civil Service Commission had the power to review the Director’s decision, that the Civil Service Commission “revoked” the Director’s “denial of Appellant’s request for reclassification,” and that because the County did not appeal the Commission’s decision, the decision was final and the County had a duty to enforce it. The flaw in this argument is its very first step, or premise. Appellant is simply incorrect that the Director had the power to reclassify appellant’s position. Ordinance Code section 3.08.20 states otherwise.

A more detailed rendition of appellant’s argument is as follows. Section 44 of the Fresno County Charter directs that “[f]or the purpose of providing for the selection and retention of appointive officers and employees of the County of Fresno on the basis of merit and ability rather than political affiliations, the Board of Supervisors of the County of Fresno shall provide by ordinance for a system of civil service examinations, appointment and retention in employment of all such officers and employees.” (Fresno County Charter, Section 44.) The Charter further provides that “[s]uch ordinance shall provide for: (a) A Civil Service Commission of five electors” and “(b) Dismissal of employees and officers for cause by the Department Head subject to final authority in the Commission to reinstate on appeal.” (Ibid.)

Chapter 2.60 of the Ordinance Code contains ordinances pertaining to the creation of the Commission (§ 2.60.010), the removal of commissioners (§ 2.60.020), the organization of the Commission (§ 2.60.030), and the duties of the Commission (§ 2.60.040). Regarding the Commission’s duties, section 2.60.040 states:

“It shall be the function and duty of the civil service commission to discharge those functions and duties prescribed for said commission by the charter of the county, this chapter, Chapter 3.08 of this code, Chapter 3.12 of this code, and the rules, regulations and resolutions of the board of supervisors adopted pursuant to the provisions of any such chapters.”

Chapter 3.08 of the Ordinance Code contains ordinances pertaining to the civil service system. We have already quoted above section 3.08.020, which provides that the Board has the power to adopt the classification plan and any changes to it. Appellant relies on section 3.08.030, which states:

“The board of supervisors shall adopt rules to implement Section 44 of the charter of the county and this chapter, which said rules, when adopted, shall have the force and effect of law. Such rules shall govern applications, the merit selection processes, probationary periods, promotions, separations, leaves of absences, layoffs, resignations, reinstatements, provisional appointments, certification to fill vacancies, disciplinary actions, appeals therefrom and such other matters as are not in conflict with the charter or this chapter.”

Pursuant to section 3.08.030 the Board adopted the Fresno County Personnel Rules (“Personnel Rules”). Rule 3 of the Personnel Rules is entitled “Classification.” Rule 3 includes several subsections or sub-rules identified by four- or five-digit numbers beginning with “3.” Appellant’s argument is that by adopting Rule 3 the Board delegated authority to the Director of Personnel Services to reclassify appellant’s senior accountant position to a principal accountant position.

We see nothing in Rule 3, however, which gives the Director that authority. Subsection 3010 of Rule 3 recognizes that the Director “is responsible for making classification studies of proposed additional or presently authorized positions .” (Personnel Rules, Rule 3, § 3010 italics added.) It does not say that the Director himself may authorize new positions (such as a new principal accountant position). Appellant calls our attention to subsections 3015, 3016, and 3017. Again, none of these authorize the Director himself to create a new principal accountant position without approval of the Board. Subsection 3015 states that “[w]hen a position study determines the need for a new class of position(s), the Director of Personnel Services or his/her designee develops and implements the new class title, salary range/band, and specification covering the proposed class.” (Personnel Rules, Rule 3,

§ 3015, italics added.) An additional principal accountant position is not a “new class of position(s)” because the class of principal accountant already existed, and all of the existing principal accountant positions were already filled. But even if we were to consider appellant’s desired principal accountant position to be a “new class of position(s),” subsection 3015 still makes clear that the subsection is dealing with a “proposed class.” The Director may or may not wish to have a new class of positions authorized, but the Director can only propose the new class. Only the Board can authorize the new class. (Ord. Code, § 3.08.020, supra.) Subsection 3016 states that the Director “approves allocation of positions and new or revised specifications.” Read in conjunction with Ordinance Code section 3.08.020, subsection 3016 of the Personnel Rules appears to describe the procedure by which the Director forms the recommendations the Director will make to the Board. Section 3017 deals with the status of an incumbent after the position occupied by the recumbent has been reclassified. In sum, the Personnel Rules were adopted “to implement Section 44 of the charter of this county and this chapter” (i.e., chapter 3.08 of the Ord. Code, which includes § 3.08.020 of the Ord. Code). The Personnel Rules were thus adopted to implement § 3.08.020 of the Ordinance Code, not to contradict or repeal it.

Appellant also presents arguments supporting his contention that the Board violated the Brown Act (see Gov. Code, § 54950 et seq.) when its members consulted with counsel regarding appellant’s request for reclassification. The superior court saw no need to hear evidence on this issue. The superior court correctly recognized that any Brown Act issues had no bearing on whether the Board had a mandatory duty to grant appellant’s request for reclassification. As we have explained, the Board did not have such a mandatory duty, and the court thus did not err in denying appellant’s petition for writ of mandate.

DISPOSITION

The superior court’s order denying appellant’s petition for writ of mandate is affirmed.

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Ardaiz, P.J.

WE CONCUR:

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Harris, J.

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Cornell, J.

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^[1] Respondents are the County of Fresno and the Fresno County Board of Supervisors. We refer to them collectively as “respondent.”

^[2] Although the parties refer to the September 2, 2003 letter from Director of Personnel Services Ralph Jimenez to appellant Thampy as a denial of appellant’s request for reclassification, the document itself states “it remains our conclusion that your position is appropriately classified as a Senior Accountant” and explains the Director’s reasons for reaching that conclusion. Nothing in the letter contains any indication that the Director was of the view that he had the authority to reclassify appellant without such a reclassification being authorized by the Board of Supervisors.

^[3] Respondent has filed a motion asking us to consider the additional evidence of appellant’s November 2, 2005 resignation letter. Appellant’s response to the motion states that appellant does not oppose the motion. We grant the motion. We also note that appellant’s opening brief concedes that appellant has “resigned from County service.”