Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2009-00085505-CU-WM-CTL, Ronald S. Prager, Judge.
O'ROURKE, J.
County of San Diego, Library (County) appeals from the superior court's order denying its petition for a writ of mandate directed against the San Diego County Civil Service Commission (Commission). We affirm the order.
County filed a June 1, 2010 request that we judicially notice the San Diego County Charter (the Charter), Civil Service Rules, Administrative Manual, and Board of Supervisors Policy. We grant the request as to all but the last document. We deny Commission's September 2010 request to judicially notice the Charter provisions governing civil service commissions in San Diego and Chula Vista, which were not admitted into evidence in the trial court.
County hired Richard Needham in 1994, and he became a senior Department Personnel Officer (DPO) in the Library Department (the Library) in 2005. In his March 2006 to February 2007 performance review, he received an overall rating of "needs improvement." He did not appeal this performance evaluation.
The overall rating scale, in descending order, is "outstanding, " "above standard, " "standard" and "needs improvement."
In December 2007, the Library Director, Jose Aponte, issued Needham a formal written "performance improvement plan" (PIP), outlining Needham's performance shortfalls and an improvement plan. In June 2008, Aponte issued Needham a letter of reprimand for incompetency, inefficiency for failing to supervise the payroll unit and noncompliance for failing to approve employees' time cards for payroll purposes. In July, 2008, Needham filed a grievance challenging the PIP and the reprimand, but it was denied as untimely.
Needham received an overall rating of "needs improvement" in a performance review for March 2007 to February 2008. He appealed this rating internally, but the appeal officer affirmed the overall rating.
In July 2008, Aponte sent Needham a "notice of intent to remove" him from his position and a follow-up August 2008 "final order of removal and charges" for incompetency in failing to: (1) promptly handle an employee's catastrophic leave request; (2) properly coordinate and manage the Library associate job specification changes in a timely manner; (3) properly arrange for the Library's recruitment initiative at a library association conference; (4) send a timely request to human resources to open key recruitments prior to the 2008 annual American Library Association conference; (5) timely follow-up with staffing two bookmobiles; (6) effectively supervise the library's personnel unit; (7) maintain productivity and service levels in the payroll unit as its supervisor; (8) correctly advise library management regarding an employee's temporary reassignment request; (9) timely complete a demographic study; (10) properly complete his timecard. Additionally, Needham was charged with insubordination related to his use of his work computer for "non-County business."
Commission Proceedings
In August 2008, Needham appealed his removal to Commission under Rule VII of the Civil Service Rules. In September, 2008, he filed a separate complaint with Commission under Rule VI, alleging County had retaliated against him from 2006. County asserts that a copy of the complaint was not included in the administrative record lodged in the superior court. County asserted in proceedings below that "Needham later withdrew his Rule VI complaint of discrimination; no probable cause finding was issued by OIA [Office of Internal Affairs]; no hearing was held, and no findings were made in the Rule VI proceeding."
Further rules references will be to the San Diego County Civil Service Rules.
County petitioned the hearing officer to consolidate both matters, arguing, "In essence, Mr. Needham claims that his discipline was a result of retaliation as alleged in his discrimination complaint. As these issues are intertwined, it would be most efficient to have all the issues decided at a single hearing." However, Needham opposed the request because he was "not prepared to go forward with the discrimination complaint" and he wanted the investigating officer to complete the investigation of his retaliation complaint. The hearing officer ruled that the hearing would be held on the removal under Rule VII, but an OIA investigator would continue to investigate the retaliation complaint, attend the Rule VII hearing and possibly "obtain sufficient information to conclude the investigation and report back to the Commission concurrently with the issuance of the Rule VI findings."
Following the hearing, the hearing officer issued "findings, conclusions and recommendations." The synopsis states: "[Needham] was a Senior [DPO] in the County Library, which is a part of the Community Services Group of the County. He was removed for incompetence and insubordination, the latter charge referring to personal use of the County computer. [Needham] appealed the Order of Removal under Civil Service Rule VII. [He] also filed a discrimination complaint with [Commission] under Civil Rule VI, based on a theory of retaliation. [Aponte] largely failed to prove the Rule VII charges. In each instance the alleged mistake was (1) not [Needham's] fault, (2) mitigated or corrected, or (3) not a violation of a clearly stated work rule or deadline. [Needham] proved that his record of performance was standard to above standard until he was alleged to have complained to the Community Services Group Deputy Chief Administrative Officer about [Aponte]. He was even recommended for a performance-based raise and referred to as the 'best DPO in the Community Services Group just prior to that time.' After [Aponte] alleged [Needham] had complained about him, [Needham's] performance ratings suddenly and severely declined, he was placed on a [PIP], disciplined and ultimately removed. The PIP and [Aponte's] efforts to rehabilitate [Needham] were not credible. The charges in the Removal [Order] were contrived. Testimony at the hearing supported [Needham's] version of events. Accordingly, it is hereby recommended that the Order of Removal be reversed."
The hearing officer made the following findings: Until April 2006, Needham's overall ratings were standard and above. In April 2006, Aponte recommended him for a ten percent raise. But the pay raise was denied notwithstanding that Joseph Cordero, the director of human resources, told Needham that he was "the best DPO." The charges against Needham were motivated by Aponte's personal anger and disappointment at Needham's perceived disloyalty because Needham had made comments about Aponte's management style to a senior officer investigating a complaint against Aponte. From that point, Aponte no longer spoke casually to Needham. The PIP did not support the Library's claim Needham was performing poorly because the Library made no earnest effort to regularly meet with Needham and constructively assist him. Further, "The Library's professed desire to assist [Needham] in the PIP was belied by Mr. Cordero's testimony that a Senior DPO shouldn't need instruction during a PIP." The charge of insubordination was unproved because although Needham admitted a technical violation of county policy, it was "so minimal as to be immaterial." The hearing officer noted, "Additionally, [Needham's] testimony that Mr. Aponte had made known that he was unconcerned with limited personal usage during off-duty times was plausible, credible, and unrebutted, " and concluded the evidence presented in support of this charge "illustrates an effort to support a predetermined removal, coming as it did at the end of the PIP period."
The hearing officer concluded, "Needham's own demeanor and delivery during testimony tended to rebut the charges. [His] testimony had clarity and organization of thought. He appeared knowledgeable regarding all of his projects and duties, and was able to clearly explain delays, obstacles, and accomplishments related to the charges. [His] recollection of statements by Mr. Aponte and Mr. Cordero [was] corroborated by their own rebuttal testimony. [Needham's] demeanor more closely resembled the employee with above-standard performance ratings and numerous promotions, than the incompetent employee described in the [removal order]."
The hearing officer recommended that: (1) the order of removal be reversed; (2) Needham be transferred to another department; (3) the June 18, 2008 letter of reprimand be sealed; (4) the Library's requested sick leave verification and the PIP be revoked; and (5) Needham be awarded back pay, including Quality First payments for fiscal year 2006-2007, and interest and benefits from the date of removal to the date of the decision, minus any wages he received from outside employment. Finally, the hearing officer recommended the Library complete new performance appraisals for the March 2006 to July 2008 period because the previous ones, "violate the Civil Service Rules in that the appraisals include incidents that have been found to be not proven, not [Needham's] fault, or mitigated by the circumstances and a lack of direction by the Library. To the extent that the overall ratings in the Performance Appraisals were based on charges found to be unproven or improper in this Report, such ratings were improper and not in compliance with the Civil Service Rules."
County explained in its writ petition that "Quality First" payments are based on County Compensation Ordinance section 5.12.1, and that, "[A]n employee must not have received a sub-standard performance appraisal during the performance period to receive the increased performance pay." County argues, "Needham was not eligible for 'Quality First' in [fiscal year] 2006-2007 because he received a 'needs improvement' rating during that period."
In January, 2009, Commission voted to adopt the recommended decision and action.
Trial Court Proceedings
In March 2009, County filed a petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5, contending Commission's hearing was limited to the issue of Needham's removal under Rule VII, and Needham did not appeal his performance appraisals or reprimands, which at any rate are not covered by Rule VII. County requested the superior court issue a peremptory writ of mandate ordering Commission to vacate the portions of its order that awarded Needham Quality First payments for 2006 and 2007, required the Library to complete new performance appraisals for March 2006 to July 2008, and sealed the June 2008 letter of reprimand.
The parties stipulated in the trial court that County was not challenging Needham's reinstatement as a County employee and award of backpay during the period of his appeal. They further stipulated to exclude from the administrative record on appeal a transcript of the Commission proceedings, and that if the trial court affirmed the Commission's order, County would be estopped from claiming that its order was not supported by the evidence presented at the Rule VII appeal hearing.
At the writ petition hearing, after a discussion regarding what would be gained from remanding the matter for a rehearing before Commission, the trial court told County's counsel, "It seems to me you're beating a dead horse" and, "[Y]ou want to go back and nitpick some of these things, you can't change the basic things. The [die] is cast. The scope of [Commission's investigation and findings] was so broad." The court continued, "I think from a fairness standpoint it's time to move on. I don't see what good it would do to drag the respondent back to another hearing to argue what was covered and not covered. [¶] It also seems to me from the point of giving deference to the administrative hearing officer, he heard all this evidence, he felt comfortable making these determinations which were within the scope, broad scope of jurisdiction that is conferred on [Commission]. [¶] To try to [undo] this or reopen this, based on some procedural argument[] the County was somehow misled doesn't really resonate with me."
The trial court ruled that the Charter represents the supreme law, subject only to conflicting provisions in the United States and California Constitutions or to preemptive state law. It reasoned that section 910 of the Charter set forth the procedures for implementing the rules, and section 904 provides that the Commission is "responsible for protecting the merit basis of the personnel system through its appellate authority, investigative powers, and review of Civil Service Rules." The trial court concluded, "Thus, the Charter provides [Commission] with the authority to impose ancillary remedies if warranted by the circumstances of the case.... Reprimands and evaluations fall within [Commission's] appellate jurisdiction because [they] relate to the discipline imposed on [Needham]. Furthermore, Rule VII does not prohibit [Commission] from taking reprimands up on its own motion."
DISCUSSION
I.
Contentions
County contends Commission's remedies challenged on this appeal were beyond its jurisdiction because the hearings did not proceed under Rule VII, and the Commission lacked ancillary jurisdiction to order those remedies. County elaborates: "Having declined consolidation of the retaliation case, but then deciding, without appropriate notice, the retaliation issues, the Commission... clearly violated Rule VI, and deprived the County of both the chance to put on evidence, and the chance to invoke various defenses that exist in Rule VI, but not Rule VII matters."
County argues that Commission's actions were also erroneous for the following interrelated reasons: (1) the reprimand, PIP and some of the evaluations encompassed in Commission's order were long since settled, not timely challenged, unsuccessfully challenged or not reviewable; (2) the appraisals were not reviewable by Commission under Rule V, section 5.1.6; (3) Commission did not provide County proper notice under Rules V and VI, and it was insufficient that an investigator attended the Rule VII proceedings; (4) Commission violated Rule VI by issuing Rule VI findings as part of the Rule VII opinion, without a determination by the OIA and a properly noticed evidentiary hearing; (5) although County is not technically a "person, " within the meaning of the Fourteenth Amendment to the United States Constitution, it still was entitled to notice under Rule VI; and (6) Commission was estopped from hearing and determining Rule VI issues in the Rule VII case because it refused to consolidate the proceedings regarding both complaints. County claims the order to rewrite the performance review was unauthorized under Rule V, section 5.1.8, which provides that "changes to the appraisal as a result of the department appeal process can only be made by the appointing authority."
II
Standard of Review
"Code of Civil Procedure section 1094.5 governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. [Citation.] If the decision of an administrative agency substantially affects a fundamental vested right, such as the right to disability benefits, then the trial court must not only examine the administrative record for errors of law, but must also exercise its independent judgment on the evidence. [Citations.] In the appellate court, the appropriate standard of review is the substantial evidence test. [Citations.] Therefore, where the trial court is required to exercise its independent judgment in an administrative mandamus proceeding, the appellate court reviews the record to determine whether the trial court's judgment is supported by substantial evidence. [Citations.] [¶] Questions of law, on the other hand, are subject to a de novo standard of review." (Dobos v. Voluntary Plan Administrators, Inc. (2008) 166 Cal.App.4th 678, 683.) We review for an abuse of discretion Commission's decision to modify an award under the Charter. (Accord, Andersen v. Civil Service Com. (1981) 122 Cal.App.3d 577, 580.)
III.
Analysis
County did not challenge the sufficiency of the evidence supporting Commission's factual findings in the trial court, and stipulated it would not contest the trial court's ruling on the basis of insufficient evidence. Accordingly, Commission's factual findings are binding on appeal. Those findings support the unchallenged Commission orders under Rule VII regarding Needham's reinstatement, transfer and award of backpay, and also the challenged orders. In light of its thorough rejection of the underlying basis for County's charges against Needham, Commission specifically tethered the order to rewrite the performance appraisals to its finding that the appraisals relied on incidents that were unproven or improper. In turn, those appraisals were the basis for denying Needham Quality First pay, which Commission ordered restored. Finally, the letter of reprimand that Commission ordered sealed included some of the same charges Commission determined were unproven.
We agree with the trial court that the challenged orders were permissible under section 904.1 of the Charter, which states, "The Commission is the administrative appeals body for the County in personal matters authorized by this charter. Upon appeal, the Commission may affirm, revoke or modify any disciplinary order, and may make any appropriate orders in connection with appeals under its jurisdiction. The Commission's decisions shall be final, and shall be followed by the County unless overturned by the courts on appeal." Commission had jurisdiction to hear Needham's challenge to the County's order of removal, and it had the concomitant jurisdiction to "make any appropriate order" in connection with that appeal, including the challenged orders, which were appropriate to give full effect to Commission's conclusions that the charges against Needham were "contrived" and an effort to support a "predetermined removal."
County disputes this interpretation of the Charter, arguing, "Section 904 puts litigants on notice that the discipline in a particular cause might be increased or decreased. But nothing in section 904, or that concept, can fairly be read to include the idea that notice of the power to increase discipline for a termination order subsumes the power to consider, adjudicate and remediate other orders not before the court or appellate body. This is especially true where, as here, the Commission had by prior order made clear that it was not going to consider those issues in the hearing dealing with the termination order." The assumption underlying this argument, and County's appeal in general, is that Commission's challenged orders were made under Rule VI. But as County pointed out in the trial court, Needham's Rule VI retaliation/discrimination complaint was withdrawn with no findings made. We cannot fully evaluate this contention because no record of the contents of Needham's Rule VI complaint are included in the record before us, and therefore we cannot evaluate to what extent Commission's challenged orders addressed Needham's Rule VI complaint. But in any event, as noted, Commission had jurisdiction for its orders under section 904 of the Charter.
DISPOSITION
The order is affirmed. Needham is awarded his costs on appeal.
I CONCUR: BENKE, Acting P. J.
I CONCUR IN RESULT: HALLER, J.