Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. 37-2007-00067706- CU-WM-CTL, Yuri Hofmann, Judge.
BENKE, Acting P. J.
Plaintiff and appellant Francisco Pardo, M.D., appeals the trial court's denial of his writ of mandate brought under Code of Civil Procedure section 1094.5, subdivision (a). The trial court reviewed the administrative record and concluded the evidence supported the decision and findings of the independent hearing officer that defendant and respondent The Regents of the University of California (the Regents) had no obligation to renew Pardo's appointment as an associate adjunct professor at the University of California, San Diego (UCSD), and acted properly in allowing Pardo's appointment to lapse.
After eight days of testimony, the hearing officer concluded the Regents did not violate certain policies and procedures contained in the Regents' Academic Personnel Manual (APM). Such policies and procedures are afforded the same status as state statutes in matters of internal regulation of the Regents and apply to all 11 University of California campuses, including UCSD. In reaching its decision, the hearing officer rejected Pardo's argument that his appointment was governed by certain policies and procedures in the APM applicable to a series other than an adjunct professor appointment and that he was entitled to notice and a hearing regarding non-reappointment under the policies and procedures in the Personnel Policy Manual (PPM) of UCSD. Finally, the hearing officer found the Regents did not act in an arbitrary and capricious manner in connection with the personnel actions taken against Pardo.
For reasons we shall explain, we conclude the hearing officer applied the correct policies and procedures to Pardo, and the Regents acted properly under those policies and procedures when it allowed his appointment to lapse. We thus affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Like the trial court, we are bound by an agency's findings if supported by substantial evidence. (Young v. Gannon (2002) 97 Cal.App.4th 209, 225.) Under that standard of review, we "view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
Pardo was recruited to UCSD by Dr. Stephen Seagren, M.D. Seagren was the division chief of radiation oncology until he retired in 2005. In the course of his "due diligence" of Pardo, Seagren learned he was in litigation with a former employer over his dismissal. Seagren also learned Pardo was recognized for his strong research skills but there was less information available regarding his clinical abilities. On Seagren's recommendation, the Regents hired Pardo in 1999 to work as a radiation oncologist in the radiology department at UCSD.
Pardo initially was hired under a non-faculty emergency appointment policy, called "MAP," pending completion of his application for an academic appointment. The MAP appointment was temporary: it commenced on August 16, 1999, and expired on August 15, 2000, unless extended or renewed.
A. Staff's Complaints About Pardo
Seagren was away from UCSD during the entire month of September 1999. On his return, Seagren received several complaints from staff about Pardo, including that he was spending too little time on clinical work, kept patients waiting and made uncalled for demands on staff, who questioned his clinical competence. Seagren spoke to Pardo about these issues and reminded Pardo he was hired mainly to work as a clinician.
In January 2000 several staff members again complained about Pardo's lack of communication, which led to problems in the department where teamwork is so vital. Staff also complained about Pardo's "recurring tendency to make snide comments about staff behind their backs while being friendly to their face, his failure to be accountable when scheduling faux pas occurred, generally blaming staff to their frustration; and making deriding remarks about patients and family to staff such as '[name redacted] mother is a lazy, fucking bitch', [and] 'Don't cry about your pain—you've had worse.' They cited feedback from patients, such as 'Please tell me that Dr. Pardo is a brilliant doctor, because he never listens to me [and] makes jokes and laughs when I see him and breast cancer is no joke.' [Name redacted.]"
B. Seagren Supports an Academic Appointment for Pardo Despite Ongoing Concerns about His Competence as a Clinician
In the months following the January 2000 meeting, Seagren repeatedly met with Pardo to discuss and address staff concerns. Seagren's impression at that time was Pardo mainly wanted to do research and did not take clinical medicine "seriously" and Pardo was unsure of himself as a clinician. Seagren nonetheless decided to recommend Pardo for an academic appointment as an associate adjunct professor, step I, effective
The Regents has several types of academic appointments, also known as "series," each carrying with it very different rights. "The type of academic appointment, and the series within which it rests, are critical to a determination of an employee's rights, including the right to a review." "Rank" refers to the level of appointment within each title series. In the adjunct professor series, there are four ranks: (1) adjunct instructor, (2) assistant adjunct professor, (3) associate adjunct professor, and (4) adjunct professor. "Merit" or "step" refers to established salary levels within a given rank.
August 1, 2000, through June 30, 2002, "subject to the availability of appropriate funds."
After returning from a two-week absence in July 2001, Seagren learned Pardo failed to cover a head and neck tumor board meeting "to the chagrin of [Seagren's] surgical colleagues." Other concerns about Pardo also surfaced or resurfaced, including "his imperious and demanding language when little things went wrong, [e.g.,] the printer running out of paper," his procrastination in decision-making, which created stress and late hours for staff members, and his failure to see patients when scheduled. Seagren again met with Pardo to address these concerns.
In fall 2001 Seagren responded to a request from the interim chair of the department of radiology for an assessment of Pardo, which would be used to determine reappointment and a possible merit increase effective the following July. Seagren praised Pardo's research skills and his work to expand the profile of the research program, but tempered his praise with the observation Pardo's clinical performance received "mixed reviews" from his colleagues and patients. Seagren further noted the staff expressed frustration over Pardo's "procrastination" and "failure to follow-through until the last minute on detail, and frequent change-of mind," which led to a decrease in efficiency and increased risk of error.
Despite his reservations about Pardo's clinical performance, Seagren recommended Pardo be reappointed and given a merit increase. The chair of the department of radiology adopted Seagren's recommendation, and Pardo's file was forwarded for review. In mid-December 2001 the dean of academic affairs approved the department's recommendation and advanced Pardo to associate adjunct professor, step II, "effective July 1, 2002 to June 30, 2004."
Following the approval of Pardo's merit increase to step II, issues concerning his clinical performance resurfaced, including reports of patient care planning mistakes, failing to complete dictations in a timely manner, delays in completing patient disposition reports, mismanaging port films (e.g., X-rays), and approving inappropriate simulation films to the degree that staff lost confidence in Pardo and frequently sought second opinions from other doctors. There were also complaints about Pardo's lack of professionalism with staff, including a complaint he greeted one of the registered nurses one morning by saying, "Good Morning Bitch."
C. Staff Requests that Seagren Take Action against Pardo
In early June 2003 a group of 10 staff members (roughly half of the division of radiation oncology), including physicists, dosemitrists, therapists and nursing staff, jointly signed a memorandum addressed to Seagren complaining of Pardo's performance in the department. The memorandum stated complaints about Pardo "have gone on for quite some time," and the staff decided to put their feelings about him in "writing in the hope that it will get your attention and help those who are in a position to do something, realize the seriousness of the situation."
It further stated that Pardo was "an embarrassment to this department in his day to day dealings with patients, nondepartment staff, nonedepartment physicians and students," that by "shirking his responsibilities in the department he makes it very frustrating for other staff members to do their work," that his "apparent lack of clinical knowledge is a liability to our department's reputation," and that his "apparent disregard for the accuracy of patient information in the chart is a bad example to set for students in the department."
The memorandum cited various examples of these problems:
"Rarely reviews port films on a daily basis"; [¶] "[r]arely performs a simulation completely and accurately"; [¶] "[r]arely writes a prescription completely and accurately"; [¶] "[r]arely draws treatment volumes when scheduled"; [¶] "[r]arely draws conedown volumes or blocks in a timely manner"; [¶] "[d]isplays ignorance of standard procedures related to common clinical practice of [r]adiation [o]ncology";[¶] and "[m]akes comments in front of students about how unimportant it is to read dictations before signing off on them."
D. Pardo's Performance Temporarily Improves Once the Chairman of the Department of Radiology Becomes Involved
Dr. William Bradley, Jr., M.D., the chairman of the department of radiology, sent Pardo a three-page letter dated August 7, 2003, stating he and Seagren found Pardo's "performance beneath department expectations." Bradley informed Pardo that if he failed to make "significant and sustained improvement during the next three months," the department would "initiate the process of corrective action" against him. Bradley directed Pardo to contact Seagren and arrange bi-weekly meetings with him so they could review and evaluate whether there was any improvement in Pardo's job performance.
Pardo received substantial and consistent feedback in these meetings and his performance again improved. As a result, Bradley recommended Pardo for reappointment and a merit increase to associate adjunct professor, step III.
E. Pardo's Problems Reemerge
In the ensuing months, problems with Pardo's performance resurfaced. In early December 2003, Marcy Kaufman, a radiation therapist who also acted as manager of the division of radiation oncology, sent Seagren an e-mail stating they needed to meet to discuss issues involving Pardo. In mid-January 2004, a staff member had to show Pardo his intended treatment plan would give a pancreatic cancer patient's kidneys an inappropriately large dose of radiation.
In late January 2004, Pardo inserted a vaginal cylinder in a patient suffering from cervical cancer, instead of the appropriate tandem and ovoid. On discovering the mistake, the vaginal cylinder was removed. Because the procedure was a simulation and no radiation was involved, the patient was not harmed, although the patient was emotionally upset and inconvenienced.
Apart from the mistake itself, this incident led to several other issues involving Pardo, which respondent describes as the "breaking point." First, Pardo claimed at the time, and testified, that the cervical cancer patient was not his but he was simply filling in for another doctor. However, both Seagren and Kaufman testified the patient did in fact belong to Pardo, and both were critical of Pardo's lack of accountability in connection with this incident.
Second, Pardo asked staff not to disclose the mistake and he attempted to keep it quiet. When Kaufman questioned Pardo about the mistake, Pardo denied any wrongdoing and became defensive after Kaufman indicated the patient was a "near miss" and an electronic quality variance report (EQVR) was needed. Kaufman later brought Pardo's error to the attention of Seagren, who agreed an EQVR needed to be completed. However, after Seagren left to attend a tumor board meeting, Pardo "became very unprofessional" and made "derogatory comments towards management," including about Seagren.
Third, Pardo also claimed he discovered and corrected the error on his own. However, Kaufman testified a staff member present for the procedure revealed the error.
F. Bradley Changes His Recommendation of Pardo to a No-Merit Increase
Because of the late January 2004 incident and another incident involving Pardo when he put patients in a clinical drug study who were ineligible for the study, Seagren decided to take action. He prepared a memorandum to Bradley dated February 6, 2004, recommending Pardo be disciplined and possibly terminated from the department as a result of Pardo's ongoing behavior problems and mismanagement of cases. Seagren's memorandum contained a detailed recitation of these and other incidents involving Pardo. A few days later, Kaufman also wrote Bradley about Pardo, stating she witnessed incidents when Pardo was "unprofessional, inappropriate, [dis]organized" and, in her opinion, "[lacked] medical judgment."
These events led Bradley to reconsider his October 2003 recommendation that Pardo receive a merit increase effective the following July. Bradley advised the dean's office his previous recommendation for a merit increase for Pardo was based on the perceived success of the "remediation program" for Pardo, but that Seagren was now of the view the remediation program did not work as anticipated. Bradley indicated Seagren wanted to amend the recommendation to a no-merit increase (e.g., reappointment, but no pay increase).
G. Pardo Receives One More Chance
In early May 2004, Bradley and Julie Ebreck, manager of the human resources and academic personnel in the radiology department, met with Pardo and advised him of the department's decision to recommend a no-change merit increase. They told Pardo he was doing a great job on the research side but was still having problems on the clinical side. Pardo blamed his difficulties in part on a personality conflict with Seagren and stated his intention to respond in writing to the no-change merit recommendation.
Following the meeting, Pardo e-mailed Bradley and sought Bradley's advice regarding his options and how best to rehabilitate his career at UCSD: "As we discussed the other week, I have the option of submitting a reply to your letter regarding my merit. I have found it difficult to decide if/how to reply, and request your advice. I respect your decision, but I do have an issue with the characterization of my clinical abilities/accomplishments. Do you think it would be helpful for me to (1) document briefly my overall accomplishments since my last promotion, (2) reply by concentrating on clinical abilities, and provide my opinions as well as those of colleagues with letters, or (3) not reply, but continue to work with Dr. Seagren on improving interpersonal interactions and any clinical issues that he might perceive (which I will still do regardless of replying to the letter)? [¶] Thank you for your advice; if you think I should get this advice from Dr. Seagren or another source, please let me know, [as] I am still learning our system here at UCSD, and want to do what's right."
Bradley recommended Pardo "make the fewest waves possible" and encouraged him to continue working with Seagren, inasmuch as he was Pardo's supervisor. Pardo responded by thanking Bradley for his prompt input and said he trusted Bradley's "judgment regarding the best course of action" because he was "trying to view this process as a chance to reflect and polish clinical administrative and communicative skills."
In early June 2004, conversations were taking place between Bradley, Seagren and Ebreck regarding Pardo. On June 8, 2004, Ebreck e-mailed Bradley and Seagren that she spoke with the dean's office regarding Pardo. Ebreck stated that because Pardo was an associate adjunct professor, he did not have an indefinite appointment but rather had a two-year appointment that would simply "run out" on June 30, 2004, unless his file for reappointment was completed before July 1, 2004. She further pointed out that a mid-year review of Pardo, as contemplated by Seagren, was not an option, and that if Pardo were to seek an extension of his term, he must seek an exception to the policy to defer his review until July 1, 2005. She noted, however, that by seeking such an extension, Pardo would lose one year of possible pay increase (assuming he corrected his deficiencies) but that he would avoid having his appointment simply expire on June 30, 2004.
On June 9, 2005, Seagren e-mailed Kaufman that he (again) spoke to Pardo about his deficient job performance and told Pardo he was placed on a two-month probation commencing June 8, 2004. On June 11, 2004, Pardo elected to seek deferral of his merit review for one year. He formalized that request on June 14, 2004, sought the withdrawal of his academic merit and reappointment file previously submitted for review and asked for the return of that file to the department. Bradley concurred in Pardo's request, which was subsequently approved by the associate dean of academic affairs.
H. Bradley Obtains Advice from Legal Counsel of the Regents Concerning Pardo
Although Pardo made an effort to improve his job performance during his probationary period, Seagren and staff continued to note significant patient care lapses by Pardo and conduct by him suggestive of poor personal judgment in decision-making. In early September 2004, Bradley and Seagren decided Pardo could not remain in his then-current capacity at UCSD.
That same month, Bradley on more than one occasion discussed his options concerning Pardo with legal counsel from the office of the president. Bradley was told by legal counsel that because Pardo was an associate adjunct professor with less than eight years in service, one option was simply to let Pardo's appointment lapse without seeking reappointment, which "would have the effect of allowing the passage of time to cause Dr. Pardo's separation from [UCSD]." By mid-September 2004, Bradley decided not to reappoint Pardo.
On September 27, 2004, a meeting took place between Bradley, Seagren, Pardo and Ebreck. Bradley told Pardo they were still not satisfied with his job performance, his medical staff appointment privileges would expire on October 31, 2004, and his academic appointment would expire on June 30, 2005. Bradley gave Pardo two options: (1) accept reduced salary solely as a researcher, in light of Pardo's success in that area, or (2) remain in his current position until June 30, 2005, without doing any clinical work after October 31, 2004, and then depart UCSD. Pardo responded he would fight this decision, as he stood by his medicine.
I. Administrative Hearing
Pardo filed an administrative grievance against the Regents, challenging its decision not to renew his academic appointment. The parties stipulated to the appointment of John Seitman, a neutral at JAMS San Diego, to act as an independent hearing officer. The hearing officer's order identified the issues that would be decided at the administrative hearing:
"1. Did the University wrongfully fail to renew Dr. Pardo's academic appointment by: (i) acting in an arbitrary or capricious manner that adversely affected his then-existing terms or conditions of employment; (ii) violating applicable University rules, regulations, or Academic Personnel policies which adversely affected his then-existing terms or conditions of employment; (iii) denying him due process; or (iv) violating the University's policy for Protection of Whistleblowers from Retaliation? [¶] 2. Did the University breach its written employment contract with Dr. Pardo? [¶] 3. Was Dr. Pardo the victim of discrimination or harassment by the University?"
The administrative hearing lasted eight days. Pardo presented evidence, cross-examined witnesses and submitted rebuttal evidence. At the conclusion of the hearing, the hearing officer issued his findings and conclusions, which led to his recommendation Pardo's claims be denied "in their entirety."
Specifically, the hearing officer found Pardo's appointment was a "term appointment" as defined in APM 137-4; the APM's and PPM's on which Pardo relied did not support his claim, inasmuch as they did not apply to a term appointment such as Pardo's; the Regents did not deny Pardo due process by allowing his appointment to lapse without affording him a merit review in 2004-2005; the University did not violate its policies for protection of whistleblowers from retaliation; the University did not act in an arbitrary and capricious manner that adversely affected Pardo's then-existing terms or conditions of employment; the University did not breach any written employment contract with Pardo; and Pardo was not the victim of discrimination or harassment by the University.
At the administrative hearing, Pardo relied on APM 110 (44) to argue his appointment at UCSD was within the "title series" (e.g., assistant professor, associate professor and professor) and was not a term appointment. Pardo apparently has abandoned this argument on appeal.
In February 2007 the Chancellor of UCSD, Marye Anne Fox, adopted the findings and recommendations of the hearing officer, which became the final administrative decision in connection with the grievance process initiated by Pardo under APM 140-80.
On appeal, Pardo does not challenge the agency's decision that the University denied him due process, violated its policy for protection of whistleblowers from retaliation, violated its policies against discrimination or harassment in the workplace or breached any written employment contract between him and the University.
J. Writ of Mandate
Pardo petitioned the superior court for a writ of administrative mandate under Code of Civil Procedure section 1094.5, arguing the findings of the hearing officer were not supported by the weight of the evidence in the administrative record. Pardo sought reinstatement to his position as associate adjunct professor, the restoration of his research laboratory and grant money he received, back pay and attorney fees under Government Code section 800. The trial court denied the writ petition and dismissed the case.
DISCUSSION
I
Standard of Review
Code of Civil Procedure section 1094.5, the state's administrative mandamus provision, sets forth the procedure for judicial review of an order or a decision by an administrative agency. (Bixby v. Pierno (1971) 4 Cal.3d 130, 137.) This statute contemplates that, at a minimum, the trial court must determine both whether substantial evidence supports the administrative agency's findings and whether the findings support the agency's decision. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-515.)
Subdivision (b) of Code of Civil Procedure section 1094.5 states that on a petition for a writ of mandate, a court's inquiry should extend, among other issues, to "whether there was any prejudicial abuse of discretion," which it defines to include instances where the administrative agency "has not proceeded in the manner required by law," the administrative order or decision "is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).)
Because, as we shall discuss, the Regents derives its adjudicatory authority from the California Constitution (Cal. Const., art. IX, § 9(a) ), a superior court considering a petition for administrative mandate must defer to the agency's factual findings if they are supported by substantial evidence. (State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512, 522; Ishimatsu v. Regents of University of California (1968) 266 Cal.App.2d 854, 862 (Ishimatsu) ["It is now settled that where the statewide agency is delegated quasi-judicial power by the Constitution, the reviewing court is limited to determining whether there was substantial evidence supporting the agency's decision"].)
Article IX, section 9 of the California Constitution provides in part: "(a) The University of California shall constitute a public trust, to be administered by the existing corporation known as 'The Regents of the University of California,' with full powers of organization and government, subject only to such legislative control as may be necessary to insure the security of its funds and compliance with the terms of the endowments of the university . . . . [¶] . . . [¶] (f) . . . . Said corporation shall also have all the powers necessary or convenient for the effective administration of its trust, including the power to sue and to be sued, to use a seal, and to delegate to its committees or to the faculty of the university, or to others, such authority or functions as it may deem wise. . . ."
In such instances, our task as a reviewing court is the same as the trial court's examination, and we review the administrative record to determine whether the agency's findings are supported by substantial evidence. (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 217-220.) Substantial evidence is defined as evidence of "ponderable legal significance . . . reasonable in nature, credible, and of solid value [, and] relevant evidence that a reasonable mind might accept as adequate to support a conclusion." (County of San Diego v. Assessment Appeals Bd. No. 2 (1983) 148 Cal.App.3d 548, 555.)
In making this determination, we examine all relevant evidence in the entire administrative record and view that evidence in the light most favorable to the judgment, resolving all conflicts in the evidence and drawing all inferences in support of the judgment. (Young v. Gannon (2002) 97 Cal.App.4th 209, 225 (Young); Taylor Bus. Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1340.) The burden is on the appellant to prove there was an abuse of discretion through the issuance of a decision that was unsupported by substantial evidence. (Young, supra, 97 Cal.App.4th at p. 225.) Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, can the court conclude the agency's findings are not supported by substantial evidence. (BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1244.)
We are not bound, however, by the findings of the trial court or the administrative agency to the extent they constitute conclusions of law. (Purdy v. Teachers' Retirement Board (1980) 113 Cal.App.3d 942, 949; see also JKH Enterprises, Inc. v. Department of Industrial Relations, supra, 142 Cal.App.4th at p. 1058, fn. 11.) "The nature of an issue on appeal determines the appellate court's standard of review in an administrative mandamus case," and thus "[q]uestions of law . . . are given a de novo review." (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 851.)
II
The Regents
The Regents is a statewide administrative agency, administered by its Board of Regents, which, as already noted, derives its powers from the California Constitution. (Cal. Const., art. IX, § 9(a); see also Regents of University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135.) It operates 11 University of California campuses, including UCSD, and its employees are public employees. (Ishimatsu, supra, 266 Cal.App.2d at pp. 860-861.)
The Regents has general rule-making or policy-making power concerning the University of California, including UCSD, and is "fully empowered with respect to the organization and government of the University." (Regents of University of California v. Superior Court (1970) 3 Cal.3d 529, 540; see also Goldberg v. Regents of University of California (1967) 248 Cal.App.2d 867, 874.) " '[T]he power of the Regents to operate, control, and administer the University is virtually exclusive.' " (Regents of University of California v. Superior Court, supra, 3 Cal.3d at pp. 540-541, quoting 30 Ops.Cal.Atty.Gen. 162, 166; see also Pennington v. Bonelli (1936) 15 Cal.App.2d 316, 321 [characterizing the Regents as "a branch of the state itself"].) "As a consequence, policies established by the Regents as matters of internal regulation may enjoy a status equivalent to that of state statutes." (Regents of University of California v. City of Santa Monica, supra, 77 Cal.App.3d at pp. 135-136.)
III
The Agency's Determination the Regents Acted Properly in Not Renewing Pardo's Appointment Is Supported by Applicable University Policy and Substantial Evidence
A. Nature of Appointment
A key issue in this case involves the nature of Pardo's academic appointment, inasmuch as the type of academic appointment, and the series within which it rests, are critical to a determination of an employee's rights, including the right to a review. Because public employment in California is held not by contract, but by statute (Miller v. State of California (1977) 18 Cal.3d 808, 813; Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 164-165), the terms of such employment is governed by the APM, which applies campus-wide, and the PPM adopted specifically by UCSD to implement the APM.
On appeal, Pardo argues his appointment is governed by the policies in the PPM, inasmuch as he was employed as a full-time, salaried associate adjunct professor. Pardo contends his appointment must follow the policies in the PPM that are specific to UCSD and not the campus-wide AMP policies. He further contends the specific UCSD PPM policies regarding appointment, promotion and termination of academic personnel "trump" the "conflicting" APM policies, he was entitled to a "full academic review" and a minimum of 12 months' notice before he could be terminated/non-reappointed from employment, and the findings of the hearing officer, as adopted by the administrative agency, are not supported by the evidence.
In support of this argument, Pardo relies on APM 100, which was not part of the administrative record. APM 100 governs University policy concerning academic appointees. The Regents objected to the inclusion of APM 100 based on the rule that a reviewing court may not consider evidence outside the administrative record. (Cooper v. Kizer (1991) 230 Cal.App.3d 1291, 1300.) However, we need not resolve this dispute because even if we considered APM 100, it would not change the outcome of our decision.
1. The APM Governs Pardo's Academic Appointment
As a threshold matter, we disagree with Pardo's contention the PPM "trumps" related policies in the APM. Applicable provisions of the PPM confirm they implement, and thus are subject to, the APM, to the extent there is any alleged conflict among the respective provisions.
For example, UCSD policy PPM 230-20, on which Pardo relies to support his contention the provisions in the PPM trump those in the APM, provides in part: "This PPM section incorporates and implements provisions of the University of California Academic Personnel Manual (APM); however, the APM contains additional policies and details beyond those contained in this section." (Italics added.) Identical language appears in PPM 230-28—governing academic reviews, confirming the role of the PPM is to implement provisions of the APM.
PPM 230-20 is 58 pages in length, excluding supplemental provisions. The full text of PPM 230-20, and other provisions of the PPM, are available at http://adminrecords.ucsd.edu/ppm/ppmindex.html.
In addition, we reject Pardo's argument there is a conflict between the AMP, on the one hand, and the PPM, on the other hand, in light of the fact the PPM specifically references, incorporates and implements the AMP. Instead, the conflict derives from Pardo's interpretation of such provisions and his argument the PPM, and not the AMP, governs his academic appointment.
As we have noted, the policies in the APM enjoy the same status as state statutes in the regulation of the University. (See Regents of University of California v. City of Santa Monica, supra, 77 Cal.App.3d at p. 135.) We thus follow the rules of statutory construction, including the rule that we first look to the statutes' words, as those are the best indicator to determine the meaning and/or intent of a provision. (See Bernard v. Foley (2006) 39 Cal.4th 794, 804; see also Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047 (Diamond).) If the words are "clear and unambiguous our inquiry ends. There is no need for judicial construction and a court may not indulge in it." (Diamond, supra, 19 Cal.4th at p. 1047.)
In interpreting a statute, "we strive to give effect and significance to every word and phrase." (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1284.) "We give the words of a statute their ordinary and usual meaning and construe them in the context of the statute as a whole." (American Liberty Bail Bonds, Inc. v. Garamendi (2006) 141 Cal.App.4th 1044, 1052.) Moreover, a statute is not to be read in isolation but rather must be construed with related statutes and considered in the context of the statutory framework as a whole. (In re Estate of Burden (2007) 146 Cal.App.4th 1021, 1028.)
In addition, an agency's interpretation of its own regulations is afforded significant deference by courts. (See Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 14.) "[B]ecause the agency will often be interpreting a statute within its administrative jurisdiction, it may possess special familiarity with satellite legal and regulatory issues. It is this 'expertise,' expressed as an interpretation . . . that is the source of presumptive value of the agency's views." (Id. at p. 11; see also Exxon Mobil Corp. v. County of Santa Barbara (2001) 92 Cal.App.4th 1347, 1357.) In light of the plenary authority of the Regents to "operate, control and administer" the University (Regents of University of California v. City of San Monica, supra, 77 Cal.App.3d at p. 135), this rule of construction applies with special force here.
2. Pardo Had a Term Appointment that Lapsed on its Own Terms
We independently conclude Pardo's appointment was governed by APM 280, which is the system-wide policy governing appointment and promotion within the adjunct professor series. APM 280 sets forth the basic term and definition of Pardo's appointment: each appointment in steps I, II and III is limited to a maximum term of two years and has a specific starting and ending date.
Specifically, APM 280-17, subdivision (b)(1), provides: "For an Associate Adjunct Professor (Steps I, II, III), each appointment is limited to a maximum of two years. For an Associate Adjunct Professor (Steps IV and V) and for an Adjunct Professor, each appointment is limited to a maximum term of three years. These appointments may be made for a shorter term.
"The appointee shall be advised by letter and/or on the appropriate campus approval document that the appointment is for a specified period and that the appointment ipso facto ends at the specified date.
"Termination prior to the specified ending date of an appointment may be only for good cause and is subject to the provisions of Standing Order 103.9. See APM - 280-20-c."
A true and correct copy of APM 280, as well as other policies and procedures in the APM, is available at http://www.ucop.edu/acadadv/acadpers/apm/.
APM 280-20 provides that appointments in the adjunct professor title series are not members of the academic senate (APM 280-20, subd. (a)) and "[n]either tenure nor security of employment is acquired by appointment to a title in this series." (APM 280-20, subd. (b).) Subdivision (c)(1)(a) of APM 280-20 provides, in pertinent part: "An appointment to a title in [the adjunct professor] series with a specified ending date expires by its own terms on that date, and additional notice of the ending of the appointment is not required."
The administrative agency found Pardo received an academic appointment on August 1, 2000, as an associate adjunct professor, step I. It further found this appointment, and each successive appointment, carried with it a fixed term—with a specified beginning and ending date. Pardo's own appointment letters and related paperwork support the agency's finding Pardo's appointment as an associate adjunct professor was for a fixed term, which was confirmed by legal counsel from the office of the president. We conclude Pardo's appointment was a term appointment with a specified beginning and ending date and not an appointment for an indefinite term as Pardo alleges.
Although Pardo cites to evidence in the record supporting his argument his appointment was for an "indefinite" term, under the substantial evidence standard of review we must affirm a finding if the record demonstrates substantial evidence in support of it, even if there is contrary evidence that would support a different finding. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.)
As a term appointment, Pardo's employment was subject to APM 137-4, which provides in part: "A term appointment is an appointment for a specified period which ends on a specified date. An appointment with an established ending date is self-terminating," subject to certain notice requirements not applicable here. (APM 137-4.)
See also PPM 230-20, subdivision VII (A)(4)(e) [tracking the language of APM 280-17, subd. (b)(1) and noting the terms of service for an academic appointment (to Pardo's title of) associate adjunct professor "normally will be made with a specified ending date (two years for Associate Adjunct Professor [steps] I, II, and III; three years for Associate Adjunct Professor [steps] IV and V and Adjunct Professor [steps] I -- VIII; and four years for Adjunct Professor [steps] IX and Above Scale)"].
Because we conclude, as did the agency, Pardo's appointment was a "term appointment" within the meaning of APM 137-4, we further conclude the appointment lapsed by its own terms. APM 137-30, subdivision (b), provides that for appointees who have served fewer than eight consecutive years in the same academic title or title series, "the appointment terminates automatically on its specified ending date unless notice of reappointment is given. It is within the University's sole discretion not to reappoint an appointee under this section, so long as the reasons for non-reappointment are not unlawful or in violation of University policy."
Here, the evidence in the record shows Pardo served fewer than eight consecutive years as an associate adjunct professor, steps I and/or II. Under APM 137-30, subdivision (b), Pardo's appointment was self-terminating on its specified ending date—June 30, 2005. Because the administrative agency found the University's decision not to reappoint Pardo was not unlawful or a violation of public or University policy, we conclude it was within the University's sole discretion to allow Pardo's appointment to lapse.
B. Pardo's Appointment Was Not Terminated under the Provisions of the PPM
As such, we further conclude Pardo was not entitled to a hearing regarding the University's decision not to reappoint him for another two-year term. Pardo claims he was entitled to a "full academic review" under PPM 230-9.2 because his appointment was "terminated." He also claims he was entitled to a minimum of 12 months' notice under PPM 230-9.2.
PPM 230-9.2 governs termination of appointments for the adjunct professor series. Subdivision III (A) of PPM 230-9.2 provides in part: "The decision to terminate for academic reasons must be preceded by a full academic review. When appointees in the series are not reappointed for academic reasons, the minimum period of notice shall be as set forth in the Academic Personnel Manual, Section 220-20, c, 1-3. This section provides that those faculty who will have more than two years of service by the end of the current appointment shall be given twelve (12) months[s] notice." (Italics added.)
However, Pardo was not "terminated" for purposes of PPM 230-9.2. Instead, the Regents decided to allow his appointment to lapse, as was its right under APM 137-30, subdivision (b). The APM recognizes the difference between an appointment that is terminated and one that merely lapses: APM 150-30, subdivision (b), defines "dismissal" as "the termination of an appointment for good cause initiated by the University prior to the ending date of appointment." In contrast, "non-reappointment" is defined in APM 137-4 as "a decision not to reappoint an individual beyond the established ending date."
We thus reject Pardo's argument mere semantics is the only difference between termination, on the one hand, and non-reappointment, on the other hand. Because Pardo's appointment lapsed on June 30, 2005, which was the end of his term, he was, by definition, not terminated and thus neither entitled to a full academic review nor 12 months' notice under PPM 230-9.2.
C. The Regents Did Not Violate the Provisions of the PPM When Bradley Changed His Recommendation of Pardo from Merit to No-Merit and When The Regents Allowed His Appointment to Lapse
Pardo argues the Regents erred when it concluded it did not violate UCSD's policies in connection with Bradley's amendment of his recommendation of Pardo from a merit to a non-merit increase, after Bradley received complaints the "remediation program" for Pardo was not working, and when it allowed his appointment to lapse. Pardo relies on PPM 230-29, which sets forth the policies and procedures to assure fairness in the academic personnel review process. Section III of PPM 230-29 states in part that final administrative decisions "concerning promotion, merit increase, appraisal, reappointment, nonreappointment and terminal appointment shall be based solely upon the material contained in the individual's Review File."
Pardo argues the Regents violated Section III of PPM 230-29 when Bradley wrote the dean of academic affairs on May 4, 2004, and stated "new information" had come to light that caused Bradley to recommend a no-merit increase for Pardo because that "new information" was not included in his personnel review file. However, in his May 4, 2004, letter to the dean of academic affairs, Bradley also wrote "Pardo's colleagues and coworkers have expressed serious concern regarding patient care and his behavior within the Oncology Division," which concern Bradley shared.
The evidence in the administrative record also shows Bradley and Ebreck met with Pardo that same day and gave Pardo a copy of Bradley's letter and Pardo signed a "Certification C," which is a form used after new material is added to an appointee's file after department recommendation. In the Certification C, Pardo acknowledged he was given an opportunity to receive a copy of the newly added material and to submit a written statement in response.
In fact, the evidence shows Pardo sought the advice and counsel of Bradley regarding whether to challenge the May 4 no-merit recommendation; Bradley recommended Pardo make the "fewest waves possible" and encouraged Pardo to work with Seagren, inasmuch as Seagren was Pardo's direct supervisor; and Pardo followed Bradley's advice and chose not to challenge the no-merit recommendation. Pardo was thus fully aware of the reason(s) Bradley changed his recommendation from merit to no-merit and made an informed decision not to challenge that recommendation.
We conclude the Regents complied with the procedural safeguards in the academic personnel review process in connection with Bradley's decision to change his recommendation of Pardo from a merit to a no-merit increase, as required by PPM 230-29. We further conclude that to the extent there was any violation of PPM 230-29, it was not material inasmuch as the hearing officer found Pardo "received substantial and consistent feedback regarding areas in which improvement was needed," which finding we conclude is supported by substantial evidence in the record.
Finally, Pardo argues he was promised a reappointment in connection with PPM 230-28, which contains the "campus policies and procedures pertaining to academic appraisals, merits, promotions, and reappointments of academic personnel at [UCSD]," and which, as we have already noted, "implements" provisions of the APM. He argues Bradley's June 14, 2004, letter to the associate dean of academic affairs "clearly and specifically states" Pardo would be reappointed on July 1, 2005, if he deferred his review. We disagree.
As already noted, the evidence in the record shows that from the very beginning of his employment at UCSD Pardo was told of his perceived shortcomings regarding his administrative and clinical performance; he "received substantial and consistent feedback" in the areas he needed to improve; he was aware Bradley changed his recommendation from merit to no-merit in May 2004 because of these shortcomings; he was placed on probation in June 2004 and given one more chance to improve his performance; and during the two-month probationary period there were a number of instances when his "clinical and administrative problems" recurred, thus leading Seagren and Bradley to conclude Pardo could not remain in his then-current position. The evidence in the record thus overwhelming shows the Regents did not promise Pardo he would be reappointed on July 1, 2005, as he argues, if he agreed to defer his review. The evidence instead shows the opposite: unless Pardo improved his performance during the period of his probation, he would not receive a reappointment.
Pardo refers to his probation as a "secret probation," and denies he was ever told of it. However, after weighing the evidence, the hearing officer found Pardo was informed of his probationary status, a finding we conclude is supported by substantial evidence.
As to his argument the Regents was required to give him a final review despite its decision to allow his appointment to lapse, Pardo relies on PPM 230-28, Section VIII(B)(1), which applies to formal recommendations when a candidate is not recommended for advancement. Subdivision (B)(1)(a) of Section VIII of PPM 230-28 provides: "A complete file should be prepared and submitted for review for a candidate serving in the final year of the normal period at step, even though the individual is not recommended for advancement." (Italics added.) Subdivision (B)(1)(b) of Section VIII of PPM 230-28 further provides in part: "With appropriate justification, a candidate may request that a review be deferred for one year."
We note PPM 230-28 requires a formal review when a candidate is not recommended for advancement. Here, however, the Regents decided not to reappoint Pardo after his appointment lapsed on June 20, 2005. We agree with the testimony of Sharon Letter, assistant dean and director of academic affairs at the UCSD School of Medicine, who, according to the hearing officer, was for many years the University's "go to" person on issues relating to the APM and PPM, that "if a decision is made to allow a less-than-eight-year term appointment to expire, there is no need for any review of that decision." We conclude subdivision (B)(1)(a) and (b) of Section VIII of PPM 230-29 did not require the Regents to prepare and submit for review a complete file of Pardo in the fall 2004, when it already had decided to allow his appointment to lapse on its own terms.
IV
The Agency Did Not Act in an Arbitrary and Capricious Manner in Connection with Its Decision to Place Pardo on Probation
Pardo argues the lack of any University policy and/or procedure allowing for probation, and the Regents' failure to advise him of such probation, show the Regents acted in an arbitrary and capricious manner when it placed him on probation in June 2004. We disagree.
Turning briefly to Pardo's second point, as already noted the hearing officer heard and considered conflicting evidence on whether Pardo was told about his probationary status in June 2004. The hearing officer determined Pardo was so informed, and we conclude that finding is supported by substantial evidence.
As to his first point, we independently conclude the lack of a specific policy and/or procedure in the APM and PPM regarding probation does not support Pardo's argument Bradley, Seagren and thus the Regents lacked the authority to place Pardo on probation. While the APM and PPM set forth the overall policy and procedures for UCSD, we conclude (as did the hearing officer) under the circumstances presented they should not be interpreted to preclude probation merely because neither expressly permits it. The Regents should not be penalized for giving Pardo another chance to improve his deficiencies in his clinical work and in his interaction with staff, when it had the authority to allow his appointment to lapse on its on own terms (absent any violation of University or public policy).
Here, the evidence in the administrative record shows Bradley and Seagren wanted Pardo to succeed and gave him multiple opportunities to do so despite ongoing complaints about Pardo from patients, staff and colleagues. Seagren testified he met with Bradley and concluded a two-month probation was a sufficient period of time for him and others to evaluate whether Pardo was making sufficient progress to warrant reappointment. The evidence further shows that during the probationary period Pardo continued to make a number of clinical mistakes, which led Bradley and Seagren to conclude Pardo could not continue as a radiation oncologist at UCSD. We thus conclude the evidence in the record shows the Regents did not act in an arbitrary and capricious manner when it placed Pardo on probation for two months and gave him one last chance to improve his job performance.
DISPOSITION
The judgment is affirmed. The Regents is entitled to its costs on appeal.
WE CONCUR: HUFFMAN, J. NARES, J.