Opinion
H022610.
10-8-2003
ILSE ENG, Plaintiff and Appellant, v. SANTA CLARA VALLEY WATER DISTRICT, Defendant and Respondent.
Ilse Eng (hereinafter Eng) appeals from a judgment of nonsuit entered in favor of respondents Santa Clara Valley Water District (hereinafter the District) on her claim for wrongful constructive termination in violation of public policy. For the reasons outlined in this opinion we will affirm.
"A motion for nonsuit is a procedural device which allows a defendant to challenge the sufficiency of plaintiffs evidence to submit the case to the jury. [Citation.] Because a grant of the motion serves to take a case from the jurys consideration, courts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendants motion for nonsuit if plaintiffs evidence would support a jury verdict in plaintiffs favor." (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117-118.) "In determining whether plaintiffs evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded." (Id. at p. 118.) "A nonsuit in a jury case or a directed verdict may be granted only when disregarding conflicting evidence, giving to the plaintiffs evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs favor, it can be said that there is no evidence to support a jury verdict in their favor." (Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583.)
"In reviewing a grant of nonsuit, we are `guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. [Citation.] We will not sustain the judgment `"unless interpreting the evidence most favorably to plaintiffs case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law." [Citations.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
Accordingly, we set the forth the facts in light of this principle.
Facts
The District employed Eng in early 1992 as an accounting systems analyst in the finance department. In October 1992, she was promoted to the position of budget officer. As budget officer, Eng gathered all the information for the Districts budget.
Stanley Williams, the Districts general manager, decided to implement three major budget changes: separate the capital and operating budgets; adopt project management budget controls; and develop a capital improvement plan.
The District had been using a program-based budget whereby the budget showed the allocation of funds to five or six general programs. In late 1992, the District began changing from this program-based budget to a capital and operating budget. During 1994 and 1995 Eng was active in helping Williams implement these changes.
Williams directed Eng to interact with project managers and supervisors regarding budget issues. In addition, he directed her to gather information for the capital improvement plan by obtaining water projections from the Districts water supply and flood control departments for all capital projects. In 1994-1995, Williams knew that Engs role would generate conflict with project managers.
During this time, Engs work at the District was not popular because it involved changing financial controls, project management and accountability. Engineers in particular viewed Eng as a "bad guy" because her role within the District had changed in that she was more involved with analysis and raising issues. As Williams admitted, Eng became more involved with budget control functions through review and comment in 1994-1995 and some supervisors did not view that change as positive.
In early 1993 or 1994, Eng became concerned about the Districts possible overcollection of property taxes for State Water Project (SWP) purposes based on her review of budget numbers that were submitted to her. Eng called Jennie Micko, the person in charge of the calculation of the State Water Project tax (hereinafter SWP tax) and asked for clarification regarding the gap between the SWP tax revenues collected and spent. According to Eng, Micko did not take her seriously. Micko stated that the
calculation was too complicated for Eng to understand and that Eng should leave the numbers alone because the calculation by Mickos group was correct.
In 1951 the California Legislature authorized construction of a state water storage and delivery system. Eight years later, the Legislature authorized the submission for voter approval of a $1.75 billion general obligation bond issue to build the SWP. The SWP was designed to become a complex system of reservoirs, dams, power plants, pumping plants, canals, and aqueducts to deliver 4.23 million acre-feet (maf) of water annually. (Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 898-899.) The Department of Water Resources (DWR) builds and operates the facilities and manages the SWP. DWR entered into individual contracts with 29 agricultural and urban water suppliers throughout the state. These contractors received entitlements to an annual amount of water in return for which they repay a proportionate share of the financing and maintenance of the SWP facilities. Under the SWP, water contractors "`are obligated to pay for their contractual entitlements of water from the project, `whether the water is delivered or not. [Citation.]" (Id. at p. 899.)
According to District employees, the District pays for its obligations under the State Water Project, including the cost of the water and the transportation of that water, through property tax collected by the county. The property tax revenues come from a supplemental assessment over and above the standard one percent ad valorem property tax. The SWP tax is calculated each year from the Department of Water Resources estimates of costs for the coming years. Since SWP costs are billed and paid in advance, the District does not know the actual costs until long after the SWP tax has been collected and the bills paid. The District often receives a refund. The contract that the District has with the DWR is a 30-year contract. The record indicates that despite the fact that the District overcollected SWP tax in several years, since the start of the contract in 1981, the District had under collected SWP tax by approximately $9,000,000.
However, the District concedes that in several years there was a "technical" overcollection.
Eng reported to Williams that she was investigating the calculation of the SWP tax and that she had determined that the District had collected more tax revenues than it had spent during some years. Eng informed Williams that Micko believed that her engineers were calculating the tax correctly, but that she disagreed and thought there was a better way of doing it.
Eng requested that Williams intervene to change the method of the calculation of the SWP tax. Williams asked the finance manager (Muravez) to take a look at the problem and to talk to Eng about it. Eng had several conversations with Muravez regarding the issue of the Districts overcollection of SWP tax revenues. Muravez recommended that the District should perform a forward adjustment each year. That is, if the District overcollected SWP tax revenues one year, it should compensate for the overcollection by adjusting the calculation of the amount of requested tax revenues for the next year accordingly.
In early 1995, Eng noticed another large gap between the property tax revenues collected and spent for the SWP. Eng called a meeting with John Ryan to address the issue. Eng informed Ryan that she believed that the District had collected more property tax revenues than it had paid out for the SWP and that the District needed to avoid such overcollection in the future.
John Ryan worked for Micko. One of his responsibilities was to help calculate the annual SWP tax.
Accordingly, Ryan took another look at the SWP tax number. In a voicemail message he informed Eng that he would reduce the preliminary amount of requested tax revenues by $2,000,000. However, Mickos group never reported to the board of directors that the District had overcollected SWP tax revenues in any particular year.
Ryan and Williams contend that Ryan reduced the amount of SWP tax by $1,000,000. Ryan did reduce the amount of requested tax revenues in 1995 to $7,352,000.
Williams admitted that his initial conversation with Eng regarding the Districts overcollection of SWP tax revenues was his first involvement with the issue. Additionally, he conceded that the Districts reduction in the amount of SWP tax revenues in 1995 resulted from Engs initiative in raising the issue with him. Similarly, Muravez acknowledged that Engs report to management initiated the entire process for dealing with overcollection of SWP tax revenues.
Between July 1995 and November 1995 Eng went on maternity leave. Before she went on leave, Eng knew that the District was going to reorganize management. In August 1995, Williams appointed Micko as the manager who would be Engs supervisor on her return to work.
During her maternity leave Eng left voicemail messages for Micko in which she asked to talk to Micko directly about the reorganization changes. Micko never responded. After Eng returned to work, relations between Eng and Micko deteriorated. In Engs words, "things at work were just intolerable and [she] wanted [certain] things to stop." Eng sent an e-mail to Micko in which she outlined her concerns and concluded that Micko was "creating a very hostile, intimidating, unsuccessful environment for [Eng]."
On February 1, 1996, Eng filed an internal grievance against Micko and the District. In early February 1996, the District appointed Patrick Heide to preside over the grievance process. The appointment of Heide concerned Eng because he reported directly to Micko. Thus, Eng believed that he could not be objective. As a result, Eng believed that she could not safely stay at the District.
On March 8, 1996, Eng gave the District notice of her resignation effective March 18, 1996.
Proceedings Below
On February 3, 1997, Eng commenced this action by filing a complaint for damages against the District and Micko. Ultimately, Engs operative pleading was the third amended complaint, which she filed on September 11, 1997. In that pleading, Eng alleged claims for damages against the District and Micko for tortious discharge in violation of public policy, employment discrimination and harassment, as well as declaratory relief. Essentially, Engs complaint was that Micko retaliated against her for her work on the Districts budget reform, capital improvement plan, and SWP tax calculation, all of which related to the public policy that the District collect and spend only those tax revenues that were reasonably necessary for its fixed expenses and daily operations.
The trial court granted summary judgment in favor of Micko and eliminated all claims against the District except for Engs claim for wrongful constructive discharge in violation of public policy.
The case proceeded to trial on this theory and ended in a mistrial because of juror misconduct. A second trial commenced in October 2000. The District filed motions in limine to preclude evidence about Engs work on the budget and capital improvement plan and to require that she specify the public policy at issue. The trial judge denied the motions, but expressed skepticism about Engs ability to specify a public policy as follows: "So, what you are doing is handing me a collage of statutes and Government Code sections. What you are doing is putting them altogether somehow creates a public policy? . . . [¶] Heres the thing, this whole thing is nebulous. I think the plaintiffs case, quite frankly is built on a house of cards. [¶] I think the plaintiff is going to have a very difficult time meeting her burden of proof with regard to the issues she must meet. She is going to have to show that the activity of the defendant was somehow — that was improper, was erroneous, injurious and that there was a conduct of the defendant which violated some law somewhere, and Im not sure which law you are referring to because its so general, and at the same time indicate and show that the conduct of the defendant was caused by injury to her and that she was retaliated against. [& para;] I indicated the other day that I think you have an uphill —I think you have a real steep hill to climb in this respect. Change my order, I will let the plaintiff go with it, but I assure you that I will entertain a motion for non-suit if I feel she has not met that burden."
At the close of Engs evidence the District brought a motion for nonsuit. Eng did not file a written opposition. However, the court heard argument on the issues. Counsel for the District argued that with regard to Engs work on the budget changes and capital improvement plan Eng had not "identified any statutory provision or constitutional provision that requires or circumscribes either the implementation of a Capital Improvement Plan or the adoption of a budget from a program — moving from a program-base budget to a budget that breaks out capital and operating projects . . . ." The court agreed and granted the motion stating, "I see no basis for it. I see no reason to continue it. Motion is granted."
From the courts comment following counsels argument that there was no statute or constitutional provision implicated by Engs work on the capital improvement plan or the budget, we can infer that the court granted the nonsuit on the ground that Eng had not identified any state law or constitutional provision to which she could tether an alleged public policy.
In addition, counsel for the District argued that with regard to Engs work to reduce the SWP tax, "there is no law and none has been cited that precludes the District from raising more taxes in a given year than the District tries to raise in order to analyze [sic] its expenditures related to the State Water Project. [¶] Its a 70-year contract and each year the District . . . tries to collect money on an annualized basis." Again the court agreed stating, "The motion is granted. I find no violation of any state law or promulgation here."
The court considered whether there could be any other basis for Engs tortious discharge claim as follows: "Ive been agonizing over this for several days, and it probably would [have been] fair to everybody to give it a quiet death at the outset, but I wanted to hear the evidence, and I wanted to see where we were going with regard to this. [¶] Im firmly convinced that the decision I made on the law is correct, and, you know, the chips have to fall where they might on that, . . . and if there is some cause of action that may survive or some part of this action of the lawsuit that could survive because of a constructive discharged [sic]. Based upon what the plaintiff is alleging as a fact pattern she presented based on some sort of retaliation by the Water District."
The court determined that there was no violation of either the whistleblower provisions of Labor Code section 1102.5 or the false claims provisions of Government Code sections 12650 et seq.
On December 13, 2000, the court entered judgment of nonsuit. Eng filed a timely notice of appeal.
Discussion
An at will employee may bring a tort action for wrongful termination if her employer discharges her for a reason that violates a fundamental public policy. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 887-888.) As our Supreme Court reiterated in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 (Green), "public policy cases fall into one of four categories: the employee (1) refused to violate a statute; (2) performed a statutory obligation; (3) exercised a constitutional or statutory right or privilege; or (4) reported a statutory violation for the publics benefit. [Citation.]" (Id. at p. 76.)
A claim of wrongful termination in violation of public policy requires that the employee be discharged in violation of a public policy that is: "(1) delineated in either constitutional or statutory provisions; (2) `public in the sense that it `inures to the benefit of the public rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental." (Stevenson v. Superior Court, supra, 16 Cal.4th 880, 894.)
"An employer may only be fairly burdened with tort liability when it violates a public policy that is substantial and fundamental. The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes; so limited, the public policy exception presents no impediment to employers that operate within the bounds of law. Employees are protected against employer actions that contravene fundamental state policy. And societys interests are served through a more stable job market, in which its most important policies are safeguarded. [Citation.] [¶] Thus, the primary rationale for requiring that a public policy be substantial and fundamental is `to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge. (Stevenson, supra, 16 Cal.4th at p. 889; see Jennings v. Maralle (1994) 8 Cal.4th 121, 135-136 . . . .) A corollary of the substantial and fundamental requirement, then, is that a `"constitutional or statutory provision must sufficiently describe the type of prohibited conduct to enable an employer to know the fundamental public policies that are expressed in that law." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, fn. 9 . . . .)" (Sullivan v. Delta Air Lines, Inc. (1997) 58 Cal.App.4th 938, 943.)
Whether the asserted public policy meets these requirements is a question of law. (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1478-1479.) We review questions of law de novo.
Eng asserts that public agencies like the District must protect the public fisc and are required "to limit or minimize their tax collections and expenditures, to avoid wasteful government spending and to render accountable public employees who manage public funds."
Eng claims that the public policy implicated in this case is "protecting the public fisc through minimizing both the collection of taxes and the wasteful spending of tax revenues." Eng cites a number of statutes, article XIIIB of the state Constitution, and the California Supreme Court for the proposition that a public agencies overcollection, or wasteful expenditure, of tax revenues results in damage to taxpayers and is a direct attack on public policy.
Relying on two cases that were decided by our Supreme Court, Eng contends that "[t]here could hardly be a more fundamental and substantial public policy."
In Sanchez v.Unemployment Ins. Appeals Bd. (1984) 36 Cal.3d 575 (Sanchez), the Supreme Court was asked to decide whether an employee who quits her job in the face of continuing harassment and threatened dismissal in retaliation for her union activities and "whistle blowing" to public authorities is rendered ineligible for unemployment benefit. (Id. at p. 578.) After determining that discrimination for union activities was contrary to both federal and state law the court went on to note "when the employer is funded with public money . . . good faith complaints by employees to relevant government agencies concerning possible misuse of government funds must also be deemed protected against employer discrimination, as a matter of public policy." (Id. at p. 588, emphasis added.)
In Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418 (Holmes), an employee of a private defense contractor was discharged after reporting his employer was submitting improper and excessive bills to the government in violation of the False Statements Act (18 U.S.C. § 1001). (Id. at pp. 1424-1425.) The Supreme Court noted that the employers knowing and willful overcharges were significant violations of the Act because "overcharging or false statements which result in damage to the government . . . result in damage to the taxpayers." (Id. at p. 1432.) Thus, "[t]hey are the ultimate in a direct attack on public policy, namely that we dont lose money from the public pocket." (Ibid.)
We find Engs reliance on Sanchez and Holmes misplaced. Both cases indicate that it is public policy to protect employees who report misappropriation of public funds. Here, Eng has never suggested that there was fraud or misappropriation of funds. Her only allegation was that the District collected more revenue in several years than was necessary for its fixed expenses and daily operations.
Nevertheless, Eng asserts that there are numerous statutes and constitutional provisions "that mandate public agencies, like the DISTRICT, to limit or minimize their tax collections and expenditures, to avoid wasteful government spending and to render accountable public employees who manage public funds." Thus, her "work on budget reforms and the overcollection of property tax revenues directly implicated this fundamental public policy that is expressed in these constitutional and statutory provisions."
Included in Engs litany of statutes and constitutional provisions, which she argues, "command public agencies to minimize their collection and expenditure of tax revenues," are the following:
Article XIIIB of the California Constitution
"The total annual appropriations subject to limitation of the state and of each local government shall not exceed the appropriations limit of the entity of government for the prior year adjusted for the change in the cost of living and the change in population, except as otherwise provided in this article." (Cal. Const., art. XIIIB, § 1.)
"All revenues received by an entity of government, other than the state, in a fiscal year and in the fiscal year immediately following it in excess of the amount which may be appropriated by the entity in compliance with this article during that fiscal year and the fiscal year immediately following it shall be returned by a revision of tax rates or fee schedules within the next two subsequent fiscal years." (Cal. Const., art. XIIIB, § 2(b).)
Government Code section 7910"Each year the governing body of each local jurisdiction shall, by resolution, establish its appropriations limit and make other necessary determinations for the following fiscal year pursuant to Article XIII B at a regularly scheduled meeting or noticed special meeting. Fifteen days prior to the meeting documentation used in the determination of the appropriations limit and other necessary determinations shall be available to the public. The determinations made pursuant to this section are legislative acts." (Gov. Code, § 7910.)
Government Code section 7911"For the purposes of Section 2 of Article XIII B, a local jurisdiction may return excess revenues by granting a tax credit or refund, by providing a temporary suspension of tax rates or fee schedules, or by any other means consistent with the intent of that section. The determination by the governing body of such entity of the means by which such excess revenues are to be returned is a legislative act." (Gov. Code, § 7911.)
Government Code section 8521 and 8521.5
"It is the purpose of the Legislature in creating the commission, to secure assistance for the Governor and itself in promoting economy, efficiency, and improved service in the transaction of the public business in the various departments, agencies, and instrumentalities of the executive branch of the state government, and in making the operation of all state departments, agencies, and instrumentalities, and all expenditures of public funds, more directly responsive to the wishes of the people as expressed by their elected representatives, by any or all of the following means: [¶] (a) By adopting methods and procedures for reducing expenditures to the lowest amount consistent with the efficient performance of essential services, activities, and functions. [¶] (b) By eliminating duplication and overlapping of services, activities, and functions, and time-consuming or wasteful practices." (Gov. Code, § 8521, subds. (a) and (b).)
The commission to which the statute refers is the Milton Marks "Little Hoover" Commission on California Government Organization and Economy. (Gov. Code, § 8501.)
"The Legislature finds that our system of government is a complex structure of interlocking relationships among all levels of government for managing public funds and programs. Officials and employees who manage and administer these programs must be accountable for their activities to the public. The Legislature recognizes that governmental audits are an important cornerstone in the system of accountability expected by the people of California. One of the most important aspects of public accountability is whether the use of state funds and resources complies with the Legislatures statutory mandates." (Gov. Code, § 8521.5, subd. (a).)
Code of Civil Procedure section 526a"An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not affect any right of action in favor of a county, city, town, or city and county, or any public officer; provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities. . . ." (Code Civ. Proc., § 526a.)
Government Code section 8547.1 et seq.
"The Legislature finds and declares that state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution. The Legislature further finds and declares that public servants best serve the citizenry when they can be candid and honest without reservation in conducting the peoples business." (Gov. Code, § 8547.1.)
"`Improper governmental activity means any activity by a state agency or by an employee that is undertaken in the performance of the employees official duties, whether or not that action is within the scope of his or her employment, and that (1) is in violation of any state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, or (2) is economically wasteful, or involves gross misconduct, incompetency, or inefficiency . . . ." (Gov. Code, § 8547.2, subd. (b).)
"`Protected disclosure means any good faith communication that discloses or demonstrates an intention to disclose information that may evidence (1) an improper governmental activity or (2) any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition." (Gov. Code, § 8547.2, subd. (d).)
Government Code section 12651"(a) Any person who commits any of the following acts shall be liable to the state or to the political subdivision for three times the amount of damages which the state or the political subdivision sustains because of the act of that person. A person who commits any of the following acts shall also be liable to the state or to the political subdivision for the costs of a civil action brought to recover any of those penalties or damages, and may be liable to the state or political subdivision for a civil penalty of up to ten thousand dollars ($10,000) for each false claim: [¶] (1) Knowingly presents or causes to be presented to an officer or employee of the state or of any political subdivision thereof, a false claim for payment or approval." (Gov. Code, § 12651, subd. (a).)
Government Code section 12653"(a) No employer shall make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency or from acting in furtherance of a false claims action, including investigating, initiating, testifying, or assisting in an action filed or to be filed under Section 12652. [¶] (b) No employer shall discharge, demote, suspend, threaten, harass, deny promotion to, or in any other manner discriminate against, an employee in the terms and conditions of employment because of lawful acts done by the employee on behalf of the employee or others in disclosing information to a government or law enforcement agency or in furthering a false claims action, including investigation for, initiation of, testimony for, or assistance in, an action filed or to be filed under Section 12652." (Gov. Code, § 12653, subds. (a) and (b).)
Government Code section 12652 states: "(a)(1) The Attorney General shall diligently investigate violations under Section 12651 involving state funds. If the Attorney General finds that a person has violated or is violating Section 12651, the Attorney General may bring a civil action under this section against that person. [¶] (2) If the Attorney General brings a civil action under this subdivision on a claim involving political subdivision funds as well as state funds, the Attorney General shall, on the same date that the complaint is filed in this action, serve by mail with `return receipt requested a copy of the complaint on the appropriate prosecuting authority. [¶] (3) The prosecuting authority shall have the right to intervene in an action brought by the Attorney General under this subdivision within 60 days after receipt of the complaint pursuant to paragraph (2). The court may permit intervention thereafter upon a showing that all of the requirements of Section 387 of the Code of Civil Procedure have been met. [¶] (b)(1) The prosecuting authority of a political subdivision shall diligently investigate violations under Section 12651 involving political subdivision funds. If the prosecuting authority finds that a person has violated or is violating Section 12651, the prosecuting authority may bring a civil action under this section against that person. [& para;] (2) If the prosecuting authority brings a civil action under this section on a claim involving state funds as well as political subdivision funds, the prosecuting authority shall, on the same date that the complaint is filed in this action, serve a copy of the complaint on the Attorney General. [& para;] (3) Within 60 days after receiving the complaint pursuant to paragraph (2), the Attorney General shall do either of the following: [¶] (A) Notify the court that it intends to proceed with the action, in which case the Attorney General shall assume primary responsibility for conducting the action and the prosecuting authority shall have the right to continue as a party. [¶] (B) Notify the court that it declines to proceed with the action, in which case the prosecuting authority shall have the right to conduct the action."
"(a) No employer shall make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or violation or noncompliance with a state or federal regulation. [¶] (b) No employer shall retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or violation or noncompliance with a state or federal regulation." (Lab. Code, § 1102.5, subds. (a) and (b).)
In addition, Eng argues that the Districts board of directors passed resolutions that required the District to develop and complete a capital and operating budget and a capital improvement plan. As a result, these two resolutions were "just as binding on the [District] as any constitutional or statutory provision." Thus, this court should recognize the boards resolutions as forming a sufficient source of public policy. This we decline so to do. (See Green v. Ralee Engineering Co., supra, 19 Cal.4th 66, 79-80.)
The District argues that this "collage" of constitutional and statutory provisions does not create a definite and applicable public policy, which could support a tortious discharge claim.
"[O]ne of the primary reasons for requiring the public policy that gives rise to a wrongful termination action have `a basis in either constitutional or statutory provisions, is to limit `judicial policymaking . . . ." (Green v. Ralee Engineering Co., supra, 19 Cal.4th at p. 80.) Thus, "when courts discover public policy in regulations enacted under statutory authority, they are not `mistak[ing] their own predilections for public policy, but rather are recognizing a public policy that the Legislature has formulated and the executive branch has implemented." (Ibid.)
As noted, Eng contends that the public policy that is at issue here is the protection of the public fisc. However, she has failed to point to any statute or constitutional provision that delineates the public policy on which she relies.
As this court has said before, "[a] requirement that a policy be `delineated entails more specificity than merely being `derived from or `based on its source. To `delineate means `. . . to describe in detail, esp. with sharpness or vividness (Websters Third New Internat. Dict. (1981) p. 597); `. . . to describe, portray, or set forth with accuracy or in detail (Websters Ninth New Collegiate Dict. (1984) p. 336). Although one should not assume that the employers precise act (e.g., discharging an employee for refusing to commit a crime) must be specifically prohibited for the public policy exception to apply, a constitutional or statutory provision must sufficiently describe the type of prohibited conduct to enable an employer to know the fundamental public policies that are expressed in that law." (Sequoia Ins. Co. v. Superior Court, supra, 13 Cal.App.4th 1472, 1480, fn. omitted, italics added.)
In this case, the District is accused of violating public policy by not collecting and spending only those tax revenues that were reasonably necessary for its fixed expenses and daily operations. Unless Eng can point to a specific statement in any of the statutes and constitutional provisions she has identified that mandate that the District only collect and spend those revenues reasonably necessary for its fixed expenses and daily operations, no public policy can be inferred. (Sequoia Ins. Co. v. Superior Court, supra, 13 Cal.App.4th at p .1480.)
Eng has not identified such a provision. Instead, relying on a collage of statutes and constitutional provisions, she argues that public agencies are required to preserve the public fisc by minimizing their collection and expenditure of tax revenues. Even if we were to accept this as a general proposition, we find no direct statutory or constitutional provision that sufficiently describes the conduct in which Eng alleges the District is required to engage. That is, preserving the public fisc by collecting and expending only those tax revenues that are reasonably necessary for its fixed expenses and daily operations. Accordingly, we find no basis for recovery for wrongful termination in this case.
Disposition
The judgment of nonsuit is affirmed.
In respondents brief, the District asserts that the judgment dismissing this case may be affirmed on the additional ground that the Districts motion for summary judgment/adjudication should have been granted. Since we have affirmed the nonsuit on the grounds relied on by the trial court we need not address the Districts assertion.
WE CONCUR: Wunderlich, J., Mihara, J.