Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV110212
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Appellant Michael Valderrama was employed as an airport operations worker by the Roads and Airports Department of the County of Santa Clara (County) for more than four years. His employment was terminated for cause in January 2006 and a hearing officer upheld the termination after a Skelly hearing. Valderrama sought review of the hearing officer’s decision by the Santa Clara County Personnel Board (Board). Four members of the five-member Board held an evidentiary hearing in July and August of 2006 and reached a tie vote, with two members voting to sustain Valderrama’s termination and two members voting to overturn it due to the lack of progressive discipline.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).
Valderrama subsequently filed a petition for a writ of administrative mandamus in the superior court pursuant to Code of Civil Procedure section 1094.5. He sought a writ commanding the Board to reinstate his employment on the sole ground that the Board’s tie vote meant that the County had failed to meet its burden to prove just cause for his termination. Valderrama did not seek a new Board hearing or challenge the evidence. The trial court independently reviewed the evidence and found that the weight of the evidence supported Valderrama’s termination. The court also determined that the Board’s tie vote “was the equivalent of no action,” with the result that Valderrama was returned to the employment status he held before the Board’s tie vote and after his termination was upheld by the hearing officer, and therefore his termination remained in effect. The trial court accordingly denied the petition for a writ of administrative mandamus.
All statutory references hereafter are to the Code of Civil Procedure unless otherwise indicated.
On appeal, Valderrama contends that the trial court erred because the legal consequence of the Board’s tie vote is the reinstatement of his employment and because the court lacked authority to perform an independent review of the evidence. He does not seek a new Board hearing. For the reasons stated below, we agree with the trial court that the Board’s tie vote constituted no action by the Board and, therefore, Valderrama’s termination remained in effect because that was his employment status prior to the Board’s 2006 hearing. Accordingly, we will affirm the trial court’s order denying the petition for a writ of administrative mandamus.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Valderrama’s Employment and Termination
The facts concerning Valderrama’s employment and subsequent termination are essentially undisputed, as reflected in the record available on appeal. Valderrama began his employment as an airport operations worker in the County’s Roads and Airports Department on June 16, 2002. His duties included maintaining the safety and security of the Palo Alto Airport, assisting in the event of an aircraft accident, and providing customer service to airport users.
In 2005, Valderrama was regularly scheduled to work at the Palo Alto Airport from 1:00 p.m. to 11:00 p.m. Sunday through Tuesday and 7:00 a.m. to 5:00 p.m. on Saturday. On November 1, 2005, Valderrama’s supervisor, Liliana Valle, arrived at the Palo Alto Airport to drop off food left over from her evening Airports Commission meeting and discovered that Valderrama had left work before the end of his shift. Because Valderrama had left the terminal locked and the airport unattended, Valle remained to open the terminal and let in an arriving pilot and his passengers. She also completed a runway inspection in the airport vehicle and stayed until Valderrama’s shift ended at 11:00 p.m. Valderrama never returned to work on November 1, 2005.
Valle thereafter undertook an investigation of Valderrama, which included surveillance of his comings and goings at the Palo Alto Airport. As a result of her investigation, Valle determined that Valderrama had left the airport before the end of his assigned shift, without permission, on seven additional days in November 2005 and that he had falsified his time cards for those dates to reflect that he worked a full shift. Valle also determined that on three occasions, Valderrama had created a falsified electronic pass down log. The purpose of the pass down log was to advise the next shift worker of the duties that Valderrama had performed and any issues that had arisen during his shift. Valderrama falsified the electronic pass down logs on those three occasions by creating a time stamp that indicated he had worked a full shift when he had not done so.
Valderrama was unaware that Valle was observing him in November 2005 to determine whether he worked his full shifts. On December 6, 2005, Valderrama and his union representative met with the administrative services manager for the Roads and Airport Department. During the meeting, Valderrama was confronted with the false time cards and false pass down logs. He was also informed that the administrative services manager believed that Valderrama had left work early on multiple occasions, had submitted false time cards, and had falsified other documents to show management that he had worked his full shift.
Valderrama was notified by a letter dated January 3, 2006, that Valle had recommended that he be terminated from his position as an airport operations worker effective January 31, 2006, for violation of the merit system rules, including “ ‘Inefficiency, incompetence, or negligence in the performance of duties...,’ ” “ ‘Careless, negligent, or improper use of County property, equipment or funds,...’ ” and “ ‘Absence without leave.’ ”
B. The Hearing Officer’s Decision
A Skelly hearing was held before hearing officer Edward Souza on January 17, 2006. The hearing was attended by Valderrama and his union representative. During the hearing, Souza reviewed the facts on which the proposed termination was based, including the instances when Valderrama had left work before completing his shift and had falsified his time cards and pass down logs. Valderrama was given the opportunity to respond to the charges that he had knowingly and fraudulently submitted false time cards, received compensation for hours that he had not worked, and created pass down logs with false electronic time stamps. Valderrama explained that he had worked through his lunch period and break on the dates in question in order to leave early so he could meet with the mother of his child regarding their child custody dispute. He also stated that he was not aware of any policy or procedure that prevented him from working through his lunch periods and breaks in order to leave work early or required him to take his breaks or lunch period at any certain time.
A “Skelly” hearing provides an opportunity for the employee to respond to charges upon which the employer’s proposed discipline is based. (Skelly, supra, 15 Cal.3d at p. 215; Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 280.)
In a letter dated January 23, 2006, the hearing officer informed Valderrama that his termination had been upheld. The hearing officer’s reasons for upholding the termination included (1) operational hours at the Palo Alto Airport were not maintained because Valderrama left work early; (2) Valderrama knowingly and fraudulently submitted time cards that did not reflect the hours he actually worked; (3) Valderrama was compensated for time (over eight hours) that he did not actually work; (4) Valderrama created pass down logs on three occasions with falsified electronic time stamps; (5) the current union contract provided that workers, who, like Valderrama, were required to be at the work stations for more than eight consecutive work hours, were to have their meals during work hours; and (6) the current union contract also provided that a worker was not entitled to an earlier quitting time if a rest break was not taken.
The hearing officer’s letter also advised Valderrama that he had a right to appeal the hearing officer’s decision to the Board.
C. Proceedings Before the Board
After Valderrama’s union representative advised the Board that Valderrama wished to appeal the hearing officer’s decision, the Board held a hearing on July 28 and August 3, 2006. At the outset of the hearing, the Board’s chairperson announced that one of the five members of the Board was not able to be present. The hearing proceeded before four members of the Board without any objection by the parties.
The record on appeal contains only a few pages of the reporter’s transcript of the hearing. From the limited record on appeal, it appears that the hearing before the Board was an evidentiary hearing that included testimony by Liliana Valle, Valderrama’s supervisor; Eric Peterson, airports supervisor; Tony Arata, administrative services manager; Lawrence Feldman, a prior airports supervisor who trained Valderrama; and Valderrama.
On August 3, 2006, following the testimony given on the second day of the hearing, the Board deliberated, then reconvened and announced (as stated in the August 3, 2006 Board minutes) its decision as follows: “[T]he termination of Michael Valderrama was upheld, with Members Anderson and Fallon voting to sustain the termination and Members O’Neal and Shope voting to overturn the termination. Absent a majority of 3 votes, there is no action of the Board, so the termination stands.”
Thereafter, the Board was unable to agree upon its findings of fact for over one year, in part due to a dispute over which party had prevailed in the absence of a majority vote. The Board’s findings of facts eventually issued on January 11, 2008, and included a summary of the evidence given at the Board’s hearing on July 28 and August 3, 2006. Additionally, the findings of fact stated that “Members O’Neal and Shope did not agree that the County established violations of the [merit system rules] by a preponderance of the evidence, and/or felt that the absence of even minimal attempts to comply with the requirements of ‘progressive discipline’ as well as other mitigating factors did not warrant termination but a lesser degree of discipline.’ ” The findings of fact also advised Valderrama of his right to seek judicial review of the “Board decision by filing [a petition for] a writ of mandate pursuant to [section] 1094.5.”
The copy of the Board’s findings of fact included in the record on appeal lacks all even numbered pages.
D. The Petition for a Writ of Administrative Mandamus
On April 10, 2008, Valderrama filed a petition for a writ of administrative mandamus in the superior court in which he sought a writ “commanding the [Board] to perform its mandatory duty and issue a decision ordering [the County] to reinstate Petitioner to his employment with [the County].” Valderrama argued that under the pertinent provisions of the Santa Clara County Charter and the due process clauses of the United States and California Constitutions “a deadlocked vote on the jurisdictional issue of just cause for termination requires that Petitioner be reinstated to his employment with [the County] because [the County] did not carry its burden of proof.”
In its opposition to the petition, the County argued that the trial court should undertake an independent review of the Board’s decision pursuant to Bixby v. Pierno (1971) 4 Cal.3d 130 because the decision concerned the fundamental vested right of employment. The County further argued that an independent review would show that the evidence supported Valderrama’s termination for cause. Additionally, the County explained that under the pertinent provisions of the Santa Clara County Charter and the Board’s rules the Board had proceeded properly with four members and the legal consequence of the Board’s tie vote was no action by the Board and the termination of Valderrama’s employment.
E. The Trial Court’s Order
The hearing on the petition for a writ of administrative mandamus was held on September 22, 2008. During the hearing, Valderrama conceded that there “was sufficient evidence to believe that [he] was justly terminated. That is not the issue here.” The issue, according to Valderrama, was whether the Board’s tie vote resulted in the reinstatement of his employment because his termination was not confirmed by a majority vote of the Board. Valderrama also stated that it would be inappropriate for the trial court to order the Board to hold another hearing.
The record reflects that Valderrama submitted a “trial brief” on the day of the hearing, September 22, 2008. However, the record on appeal lacks his “trial brief.”
While the County agreed that it had the burden of proof in the proceedings before the Board, the County emphasized its view that the Board’s tie vote constituted no action by the Board and therefore the Board had not acted to overturn Valderrama’s termination. The County also noted that there was no provision in either the County Charter or the County’s rules and no past practice that would support reinstatement of a terminated employee in the event of a tie vote by the Board. As to the possibility of a new hearing by the Board, the County stated that the trial court had the authority to order the full Board to hold a new hearing pursuant to section 1094.5, subdivision (f).
The trial court issued its order after hearing on October 1, 2008. First, the trial court determined that it would exercise its independent judgment because the Board’s decision affected a fundamental vested right. The trial court also noted that the complaining party had the burden to show that the administrative decision was contrary to the evidence. After performing its independent review on “the record presented,” the trial court further determined that Valderrama’s termination was justified, because he “effectively took public funds that did not belong to him and because of his responsible position at the airport his flagrant absenteeism raised serious public safety and welfare issues.”
It is unclear from our review of the record on appeal whether the reporter’s transcript of the Board hearing of July 28 and August 2, 2006, was included in the record presented to the trial court.
Second, the trial court determined that “due process was obtained in the proceedings below” and the Board properly proceeded with four members, noting that “[o]nce there was a quorum of the Board an objection to proceed would not have been properly sustained.” Finally, the trial court concluded that the “split decision of the Board was the equivalent of no action. Thus, Petitioner is returned to the status quo ante, that is the posture before the non-action of the Board but after the decision of the hearing officer.... Therefore, Petitioner’s termination of employment remains in effect.”
For these reasons, the trial court denied the petition for a writ of administrative mandamus. Judgment on the October 1, 2008 order denying the petition was entered on December 17, 2008 and Valderrama filed a notice of appeal on December 5, 2008.
The notice of appeal was filed before the entry of judgment on December 17, 2008. On our own motion, we deemed the notice of appeal to be from the subsequent judgment.
III. DISCUSSION
A. The Issues on Appeal
On appeal, Valderrama contends that the trial court erred in denying his petition for a writ of administrative mandamus commanding the Board to reinstate his employment with the County. His primary contention on appeal, as he states in his reply brief, raises “a pure issue of law”: whether the legal consequence of the Board’s tie vote was the reinstatement of his employment because the Board did not sustain the County’s charges against him. Valderrama’s secondary contention on appeal is that the trial court exceeded its authority when it conducted an independent review of the evidence before the Board, although the Board had not issued a decision that could be reviewed for sufficiency of the evidence and he had not raised the issue of whether the evidence was sufficient.
B. The Standard of Review
Our evaluation of Valderrama’s contentions begins with an overview of the pertinent rules governing review of an administrative decision. Judicial review of a final decision or order of an administrative agency by administrative mandate is governed by section 1094.5. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313 (Wences). Section 1094.5 provides that where the agency has engaged in an adjudicatory function and the decision was “the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested” in the agency, administrative mandate is the appropriate form of review. (§ 1094.5, subd. (a).)
The scope of judicial review of an administrative mandate proceeding is also set forth in section 1094.5. The court’s review extends to questions of “whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (§ 1094.5, subd. (b).) As to prejudicial abuse of discretion, where there is no challenge to the findings or to the evidence, the question is whether the agency “proceeded in a manner required by law.” (Ibid.) This is a legal issue subject to de novo review. (Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 1174.)
Where there is a challenge to the sufficiency of the evidence, and the agency’s decision “substantially affects a fundamental vested right,” the court “must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence.” (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44; Bixby v. Pierno, supra, 4 Cal.3d 130, 143.) It is well established that “ ‘[d]iscipline imposed on public employees affects their fundamental vested right in employment,’ and therefore, when a public employee challenges an employer’s disciplinary action in a mandamus proceeding, the trial court is required to exercise its independent judgment.... [Citations.]” (Wences, supra, 177 Cal.App.4th at p. 314.)
C. Analysis
In the present case, we understand the primary issue on appeal to be whether the Board proceeded in the manner required by law when it determined that Valderrama’s termination remained in effect as a result of the Board’s tie vote. This is a legal issue that we will review de novo. (Duncan v. Department of Personnel Administration, supra, 77 Cal.App.4th at p. 1174.)
The County disagrees with Valderrama’s claim that the Board’s tie vote resulted in the reinstatement of his employment and asserts that the trial court properly found that his termination remained in effect following the Board’s tie vote. The County explains that the Board proceeded properly when it heard Valderrama’s appeal with only four members of the five-member Board present, since section 506 of the County Charter provides that three members constitutes a quorum and three votes are required for a County board to take action. The County emphasizes the requirement of a majority vote for a valid board action, which is set forth in section A6-8 of the Santa Clara County Ordinance Code and the Board’s Rules of Procedure. In particular, the County points to Section 7 of the Board’s Rules of Procedure, which expressly provides that no Board act is valid absent three concurring votes.
Section 506 of the County Charter provides in pertinent part, “A majority of the members of a board or commission shall constitute a quorum for the transaction of business and no act of a board or commission shall be valid unless at least a majority of the entire membership concurs therein.”
Section A6-8 of the Santa Clara County Ordinance Code provides, “All acts of any board shall be accomplished by a roll call vote if requested by any member in attendance. No act will be valid save with the concurrence of the majority of the entire membership thereof, unless otherwise provided by law.”
Section 7 of the Board’s Rules of Procedure provides in pertinent part, “All acts of the Board shall be accomplished by a roll call vote if requested by any member in attendance. No act shall be valid without the concurrence of three members (a majority of the membership) unless as otherwise provided by law.”
The County acknowledges that the County Charter, the County Ordinance Code, and the Board’s Rules of Procedure are silent with respect to the consequences of a tie vote by a County board. The County argues, however, that because the Board’s vote on Valderrama’s appeal resulted in a tie vote by two members who voted to uphold the termination and two members who voted against termination, the Board took no action on Valderrama’s appeal and therefore his termination remains in effect. We agree.
It is well established that “ ‘ “[a]s a general rule an even division among members of an administrative agency results in no action.” ’ [Citation.]” (Lopez v. Imperial County Sheriff’s Office (2008) 165 Cal.App.4th 1, 4 (Lopez) [employment appeals board]; Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1176 [city council]; Graves v. Commission on Profession Competence (1976) 63 Cal.App.3d 970, 976-977 [school district’s commission on professional competence]; Anderson v. Pittenger (1961) 197 Cal.App.2d 188, 195 [city council].) This general rule is consistent with the Board’s Rules of Procedure, section 7, requiring three concurring votes for a valid Board act and the County’s provisions, including section 506 of the County Charter and section A6-8 of the Santa Clara County Ordinance Code, which require a majority vote for a valid action by any County board. Thus, since there was no majority Board vote with respect to Valderrama’s appeal of his termination, we determine that the Board’s tie vote resulted in no action on the appeal and the County’s termination of Valderrama’s employment remained in effect.
The decision in Lopez, supra, 165 Cal.App.4th 1, concerning two correctional sergeants’ appeals of the termination of their employment by Imperial County, supports our determination in the present case. When the two sergeants’ appeals were heard by five members of Imperial County Employment Appeals Board, one member voted to abstain, two members voted to sustain the terminations, and two other members voted to reverse the terminations. (Lopez, supra, 165 Cal.App.4th at p. 3.) Because there was no majority vote, the Imperial County Employment Appeals Board denied the appeals. The two correctional sergeants filed a joint petition for writ of mandate arguing that “the proper way to interpret the Board’s tie vote was a reversal of [their] terminations and, therefore, their reinstatement to their jobs.” (Id. at p. 4.) The trial court noted that the pertinent Imperial County ordinance was silent regarding the effect of a tie vote, and ordered the Imperial County Employment Appeals Board to vacate its decisions and to determine the appeals by a majority vote. (Ibid.) The correctional sergeants appealed.
The appellate court in Lopez affirmed the trial court’s order, finding that “[n]o Imperial County ordinance provision permits us to deem reversed respondent’s decision in the event of a tie vote by the commission. We hold that the tie votes resulted in a failure to act. Contrary to appellants’ claim, the Board’s inaction did not require a reversal of the respondent’s rulings. Rather, appellants were returned to the status quo ante, and the respondent’s terminations remain in effect until the Board conducts another vote.” (Lopez, supra, 165 Cal.App.4th at p. 5.)
Thus, the decision in Lopez supports our determination that the Board’s tie vote resulted in no action on Valderrama’s appeal and his termination remained in effect because that was the status of his employment prior to the Board’s hearing. Valderrama has not directed us to any County ordinance or other provision indicating that the result of a tie vote by the Board is reversal of the County’s termination of employment or other disciplinary action.
Valderrama argues, however, that the result of a tie vote by the Board must be the reinstatement of his employment because the Board did not sustain the charges against him. In making this argument, Valderrama relies on section 708(e) of the County Charter, which provides, “A suspended, demoted, or removed employee shall be reinstated in the position immediately without loss of continuity of service or compensation if the charges against the employee are not sustained.”
Valderrama’s argument for reinstatement is not convincing because the Board did not make a finding, decision or conclusion that the charges against him either were or were not sustained. As we have discussed, only two members of the Board found that the County had not met its burden to justify Valderrama’s termination and voted to overturn the termination. The vote of these two members could not constitute a decision that the charges against Valderrama were not sustained because, as we have also discussed, a valid decision of the Board requires three votes.
Valderrama also relies on rule 12.2 of the Board’s Rules of Procedure, which provides in part that “the employee shall be regarded as innocent of the charges against him/her until the contrary is established by a preponderance of the evidence....” However, rule 12.2 is inapplicable in the present case because that rule expressly applies, as stated in rule 12, to a hearing before “an independent third party who is to act as hearing officer for the Personnel Board.” The issue here concerns the Board hearing, not the hearing held before the hearing officer who upheld Valderrama’s termination.
Rule 12.2 of the Rules of Procedure of the Santa Clara County Personnel Board provides, “Burden of Proof: the employee shall be regarded as innocent of the charges against him/her until the contrary is established by a preponderance of the evidence in accordance with the rules for conduct of civil proceedings under the laws of this state. The appointing authority has the burden of proof by a preponderance of the evidence. If the preponderance of the evidence is persuasive of the charges being true, the hearing officer shall so find this burden of proof exists, and must be met by the appointing authority in the event the employee fails to appear at the time, date and place set for the hearing.”
Rule 12.0 of the Rules of Procedure of the Santa Clara County Personnel Board provides, “General: A hearing shall be held in accordance with these rules and regulations by an independent third party who is to act as hearing officer for the Personnel Board in designated cases. After a hearing, to be held in accordance with these rules, a written decision is to be rendered by the hearing officer setting forth proposed findings of facts, conclusions and a recommended disposition to be forwarded to the Personnel Board, the Appointing Authority and/or representative, and the affected employee and/or representative for further consideration in accordance with these rules.”
Additionally, Valderrama objects to the County’s argument that substantial evidence supports the trial court’s finding that his termination was justified, on the ground that there was no Board decision for the court to review. We observe that because Valderrama did not challenge the sufficiency of the evidence in his petition for a writ of administrative mandamus, the trial court was not required to determine whether the weight of the evidence showed that his termination was justified. In any event, we will not address the issue because Valderrama conceded at the time of the hearing on the petition that the evidence before the Board was sufficient when his counsel stated, “I would concede... there was sufficient evidence to believe that Mr. Valderrama was justly terminated. That is not the issue here. The issue here is whether or not the Board, based on the two/two tie... should not have issued a ruling in favor of Mr. Valderrama.”
We will also not address the issue of whether the matter should be remanded for a new hearing before the Board regarding whether Valderrama’s termination should be sustained. Valderrama has not raised that issue, either in the trial court or on appeal, and in fact, at the time of the hearing on his petition for a writ of administrative mandamus, his counsel rejected the possibility of a new hearing. In response to the trial court’s inquiry as to whether the court should order another Board hearing, Valderrama’s counsel stated, “It would be inappropriate, I think, because this is really a pure question of law; and I think in this instance would be the wrong call by the Court.” We express no opinion as to whether a new hearing before the five-member Board would be appropriate under the circumstances of this case because Valderrama did not seek the remedy of a new Board hearing either in the trial court or on appeal.
For these reasons, we conclude that the trial court properly determined that the Board’s tie vote was the equivalent of no action by the Board and that Valderrama’s termination remained in effect. Therefore, we will affirm the trial court’s order denying the petition for a writ of administrative mandamus.
IV. DISPOSITION
The judgment entered on the order of October 1, 2008, denying the petition for a writ of administrative mandamus is affirmed. Costs on appeal are awarded to respondent County of Santa Clara.
WE CONCUR: Mcadams, J., Duffy, J.