Opinion
E040485
5-22-2007
KELLY KRASNEY, Plaintiff and Respondent, v. ALEXANDER COHN, Defendant; COUNTY OF RIVERSIDE, Real Party in Interest and Appellant.
Joe S. Rank, County Counsel, and Jamila T. Purnell, Deputy County Counsel, for Real Party in Interest and Appellant. Roth & Roth and Diane Catran Roth for Plaintiff and Respondent.
NOT TO BE PUBLISHED
The single issue in this case is whether an arbitrator, defendant, Alexander Cohn, can impose an 80-day suspension rather than a 40-day suspension on a County employee, plaintiff Kelly Krasney.
The County of Riverside, the real party in interest, appeals from a judgment by the superior court reversing the arbitrators award imposing an 80-day suspension, instead of a 40-day suspension, on Krasney. The arbitrator had also reversed the Countys decision to terminate Krasneys employment. That reversal is not challenged on appeal.
The County argues the superior courts judgment was an abuse of discretion because the arbitrator could properly award an 80-day suspension. Krasney contends the arbitrator could award only a 40-day suspension.
We are not persuaded that the governing memorandum of understanding (MOU) affords the arbitrator power to impose greater discipline than it gives the County. We affirm the judgment of the superior court reversing the 80-day suspension.
2. Factual and Procedural Background
Krasney was a supervisor in the Countys Department of Public Social Services (DPSS). In early March 2002, a child was killed who had been the subject of a department referral handled by Krasney. Krasneys handling of three other cases was also reviewed. Krasneys employment was terminated in January 2003. A six-day arbitration was conducted in 2003 and 2004. In March 2005, the arbitrator ruled that Krasney was not discharged for just cause and the "improper termination shall be converted to a disciplinary suspension without back pay or benefits, except seniority, for eighty (80) working days."
The relevant sections of the governing MOU are articles XI and XII. Article XI, entitled "Discipline, Dismissal, and Review," provides in section 3: "Suspension of an employee shall not be for more than 40 working days." Article XII, entitled "Disciplinary Appeal Procedure," provides in section 8.J.4: "In the case of discharges, if the arbitrator finds the order of discharge should be modified, the appellant shall be reinstated to a position in the classification held immediately prior to discharge subject to forfeiture of pay and fringe benefits for any period of suspension imposed by the arbitrator."
Furthermore, at the beginning of the arbitration, the parties stipulated "the issue in dispute in this matter is whether Grievant was discharged for just cause and, if not, what shall be the remedy?"
3. Discussion
The acknowledged standard of review is whether the arbitrators determination of the 80-day suspension constitutes a "manifest abuse of discretion." (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 217-218.)
The MOU states the County may impose a suspension of no more than 40 days. Notwithstanding this limitation on suspension, the County asserts that an arbitrator hearing an appeal of a County disciplinary action may impose "any period of suspension."
We disagree. The County does not point to any language in article XII, covering "Disciplinary Appeal Procedure," that grants an arbitrator expanded or unlimited authority to fix the period for a disciplinary suspension. The County offers no credible argument or authority that "any period of suspension" in article XII was intended to or operated to supplant the 40-day suspension expressed in article XI.
The primary case cited by the County, Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 1150, dealt with the reduction by a civil service commission of a termination by the sheriff to a 90-day suspension. Kolender did not address whether the 90-day suspension was too long pursuant to an MOU, the issue presented here.
The case of Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216, 1222, merely expressed the general principle that the arbitrators decision must be supported by substantial evidence. The issue in the present case is not whether the suspension was correct or not but whether it could be 80 days instead of 40. Under the terms of the MOU, 40 days was the longest permissible suspension.
The Countys reliance on Barber v. State Personnel Board (1976) 18 Cal.3d 395, 404-405, and Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 107, also does not help. Both of those cases hold the trial court or appellate court may not substitute its own discretion on the issues of penalty. Neither case states an arbitrator may override the terms of an MOU.
The stipulation regarding the scope of the arbitration did not include an agreement the arbitrator could impose a different penalty than the one established by the MOU. Therefore, the arbitrators award was not based on contractual language or the parties conduct. (Sunshine Mining Co. v. United Steelworkers of America, etc. (9th Cir. 1987) 823 F.2d 1289, 1293.) The arbitrator exceeded the scope of the issues submitted and made a decision violating due process accorded to public employment and running counter to public policy. (Perea v. Fales (1974) 39 Cal.App.3d 939, 941;SFIC Prop. v. Internat. Assn of Mach. & Aero. Wkrs. (9th Cir. 1996) 103 F.3d 923, 925.)
4. Disposition
The 80-day suspension was an abuse of discretion by the arbitrator. We affirm the judgment of the superior court. Respondent shall recover her costs on appeal.
We concur:
HOLLENHORST, Acting P. J.
RICHLI, J.