Opinion
Page __
__ Cal.App.2d __ 240 P.2d 32 TREU v. KUCHEL, State Controller, et al. Civ. 8010. California Court of Appeals, Third District Jan. 21, 1952.Hearing Granted March 20, 1952.
Rehearing Denied Feb. 13, 1952.
Wilmer W. Morse, Deputy Atty. Gen., for appellants.
James H. Phillips, Sacramento, for respondent.
SCHOTTKY, Justice pro tem.
Petitioner brought mandate proceedings in the Superior Court of Sacramento County against the State Controller and the State Treasurer to compel them to allow a claim filed by her against the State in the sum of $3,076.53, being the cash value of compensating time off which, she alleged, was promised her for overtime worked while employed by the Lieutenant Governor of California, but which was not received prior to her separation. This appeal is from a judgment directing the claim to be paid.
The petitioner is a former employee of the Lieutenant Governor. She was appointed on March 1, 1947, to the position of secretary. She served in it until March 1, 1948, when she was appointed to the position of executive secretary. On August 1, 1949, she terminated her employment with the Lieutenant Governor. She was exempt from civil service in both positions. Authority for her appointment is contained in Government Code Section 12101, which provides that 'The Lieutenant Governor may appoint and, subject to the approval of the Director of Finance, fix the salaries [240 P.2d 34] of one secretary and such clerical assistants as the Lieutenant Governor deems necessary for his office.'
During the two years and five months she worked for the Lieutenant Governor her salary was fixed with the approval of the Department of Finance on a monthly basis in amounts which progressively increased from $275 per month, as of the date of her first employment, to $436 per month as of the date of her final separation. This salary has been paid.
The Lieutenant Governor established the hours of 9 o'clock a. m. to 5:30 o'clock p. m. Mondays through Fridays and 9 to 12 on Saturdays as normal office hours.
The petitioner kept a record showing the extra hours she worked, which were recorded on the monthly attendance report forms. These extra hours were authorized to be worked by the Lieutenant Governor and are supported by Authorization for Overtime Form 682.
Prior to the time petitioner separated from service with the Lieutenant Governor she had not received compensating time off for the extra hours. Following her separation a claim for payment for the overtime was prepared, approved by the State Personnel Board, presented to the State Controller and by him rejected. Thereafter, on April 4, 1950, these proceedings were commenced.
Other material facts will be set forth in the course of this opinion.
Appellants make a vigorous attack upon the judgment. In their opening brief they state:
'The petition is carefully drafted to bring the case within the rule of Clark v. State Personnel Board, 56 Cal.App.2d 499, 133 P.2d 11. The rule of that case is that a state civil service employee has the right to a lump sum payment upon separation from service in lieu of compensatory time off which he was promised for overtime worked but which he did not receive prior to separation. In Howard v. Lampton, 87 Cal.App.2d 449, 197 P.2d 69, the rule of the case is said to be codified in Section 18005 of the Government Code. That section in effect provides that upon separation from service a civil service employee is entitled to a lump sum payment as of the time of separation for any time off to which he is entitled by reason of previous overtime work where compensating time off for overtime work is provided by the appointing power. Under the Clark case the payment of the lump sum on separation is based on breach of contract, namely, a contract to allow compensating time off prior to separation.
'The petitioner, in order to bring her case under the rule of the Clark case, alleges that the appointing power established normal hours of work for the petitioner, that he 'promised petitioner compensating time off for overtime hours worked in addition to her normal hours of work', that 'said promise was made prior to the time said overtime hours were worked,' that the petitioner was authorized by the appointing power to and did work the hours claimed, that petitioner 'has not received compensating time off or other compensation for the overtime hours worked,' that she did not waive compensating time off by refusing to take it when offered, and that the amount claimed is the cash equivalent of the overtime standing to her credit at the time of separation and for which she was not granted compensating time off.
'The findings of the trial court incorporate by reference the allegations of the petition and find them to be true.'
Appellants first contend that the finding that petitioner was promised compensatory time off for overtime work is not supported by the evidence. The particular finding is 'that said Lieutenant Governor, Goodwin J. Knight, promised petitioner compensating time off for overtime hours worked in addition to her normal hours of work.'
The record shows that at the time petitioner was employed by the Lieutenant Governor she was told that 'there was a terrific amount of work in the office and he knew I was going to work a lot of overtime' and that 'at the time the overtime was worked Miss Treu (petitioner) was told that she would be paid for the [240 P.2d 35] overtime as it would be impossible for her to take any time off because of the increased amount of work.'
Respondents argue that this evidence does not support a finding that petitioner was promised compensating time off for overtime worked. The Assistant Director of Finance upon the same evidence wrote respondent State Controller: 'The seven items which he [the Attorney General] set forth in his letter [item 2 being that he did promise the employee compensating time off for extra hours worked] already have been substantiated, and there is available in our files the required letters and affidavits making the required substantiation.' The trial court also was satisfied that the evidence justified the finding above set forth.
It must be borne in mind that we have here a case where the Lieutenant Governor, an important and responsible State official, in order to fulfill the duties of his office and to carry on the work of the State of California, found it necessary for his secretary, the petitioner, to work overtime. When he told her that because of the increased amount of work it would be impossible for her to take any time off and that she would be paid for the overtime, such statement, in our opinion, necessarily implied that if the situation in the office became such that compensating time off could be given she would receive such compensating time off. There is a presumption that public officials have performed their duties in a regular manner, C.C.P., Sec. 1963, subd. 19, and this presumption is itself a species of evidence. It is a fair assumption that the Lieutenant Governor was familiar with the rule of the Clark case and the applicable statutes, and that he was not trying to word his statement to petitioner in language that would prevent her from being paid for the overtime that the record without dispute shows that she worked.
If the trial court had found in accordance with appellants' contention, it may be that such conclusion would be supported by the evidence, but the evidence does not compel such a conclusion. It was for the trial court to weigh the evidence, and there is sufficient evidence, and reasonable inference therefrom, to support his finding that petitioner was promised compensating time off for overtime hours worked in addition to her normal hours of work.
Appellants' second contention is based on the theory that the trial court may be considered to have found that a contract to pay cash compensation was entered into.
We have hereinbefore held that the finding that petitioner was promised compensating time off for overtime hours worked is supported by the record, so little discussion of respondents' second contention is required. The record shows that the salary of petitioner was fixed with the approval of the Department of Finance and that the Lieutenant Governor did establish normal hours of work. If respondents intend to argue that the Department of Finance must approve overtime before a State department can order the overtime worked and give compensating time off or pay cash for the same, we believe it is in error. We agree with the following language of the trial judge in his memorandum opinion:
'Respondent further argues that even though petitioner was promised that she would be paid for the overtime; that, (A) She was paid by a salary increase of $50.00 a month, and (B) that if there was anything further than the increase in salary expected, there was no approval of the Department of Finance, and accordingly, this being additional 'compensation', would be ineffective without such approval.
'Section 18,004 of the Government Code provides in part: 'Unless the Legislature specifically provides that approval of the Department of Finance is not required whenever any state agency or court fixes the salary or compensation of an employee or officer, which salary is payable in whole or in part out of state funds, the salary is subject to the approval of the Department of Finance before it becomes effective and payable.'
'It will be noted that respondent includes a lump sum compensation in lieu of compensating time off in this requirement. It [240 P.2d 36] is true that the statute states 'salary or compensation' but later each one of the clauses refers only to the word 'salary'. This court does not feel that that statute is subject to the broad interpretation which respondent puts upon it. We are of the opinion that the words 'salary or compensation' are used as interchangeable terms, but that a lump sum to be paid in lieu of compensating time off is not such 'compensation' as is meant there. It is admitted that in the ordinary case where an employee is promised compensating time off for overtime and fails to receive the full amount of this, that a lump sum payment may be given upon separation from the service without regard to any action by the Department of Finance. Section 12,101 of the Government Code refers specifically to the fixing of the salaries of one secretary and such clerical assistance as the Lieutenant Governor deems necessary by the appointing power with the Director of Finance. This Court feels that there was no evidence in the case that the question of overtime was in any way a factor in granting the pay raise to petitioner in this matter. The letter of July 16, 1947, (respondent's Exhibit A written to Mr. Fred Links by Lieutenant Governor Knight) states in part, 'and I feel their salaries should be increased to * * * $3900 per year for Miss Treu.' This the court believes is entirely separate and apart from the question of any lump sum payment for overtime, which is the sole matter to be decided in this action.'
In Howard v. Lampton, 87 Cal.App.2d 449, at page 459, 197 P.2d 69, 74, the court quoted with approval the opinion of the Attorney General that making provision for overtime and compensation therefor does not increase the monthly salary of the employee. Said opinion, dated April 9, 1940, No. 1-ES2496, stated: 'Situations will arise from time to time where certain employees in an office may be required in certain emergencies to work a number of hours of overtime for one or more days in a week. The emergency may be such that the officer or board cannot procure the services of some other person to do this overtime work. It seems entirely reasonable and in accord with efficient and humane office management that the head of the office should grant to such an employee compensating time off for the extra hours worked under such circumstances. Such compensating time off does not constitute additional payment for overtime. The monthly salary of the employee is not increased.'
The third major contention of respondents is that the judgment is invalid in that petitioner has been paid her fixed monthly salary, which under the law was payment in full for all services required of her.
Respondents' argument in support of this contention consists very largely of an attack upon the soundness of the decision of this Court in Clark v. State Personnel Board, 56 Cal.App.2d 499, 133 P.2d 11. Virtually the same argument was made by these respondents as was made by respondents, represented by the same counsel, in the cases of Martin v. Lampton (Redwine v. Lampton) Cal.App., 240 P.2d 21. Though the factual situations in those cases were somewhat different, the issues and principles involved are not substantially different from the instant case. Upon the authority of Pohle v. Christian, 21 Cal.2d 83, 130 P.2d 417; Clark v. State Personnel Board, supra, and Howard v. Lampton, supra, we decided adversely to respondents' contention, and we refer to our opinion in those cases.
We do not agree that our decision in the Clark case is basically unsound and should be reversed, for our decision in the Clark case was cited and reaffirmed in Howard v. Lampton, supra, and a hearing was denied by the Supreme Court in the Howard case. The fact that the Legislature enacted Section 18005 of the Government Code as an urgency measure so soon after the decisions in Pohle v. Christian and Clark v. State Personnel Board, supra, and thus wrote the doctrine of those cases into the statutory law of our State strengthens us in the belief that the doctrine of the Clark case is sound and should be adhered to unless and until it is overruled by the Supreme Court.
[240 P.2d 37] In his memorandum opinion the trial judge stated: 'Respondent takes the position that the Clark case, supra, was wrongly decided, but that does not lie within the province of this court. It is the law of this state at this time, and that is all that we are here concerned with. This court feels that to place a strained interpretation on rules involving the labor of public employees is entirely out of line with our common knowledge of today. In the case at bar the actual hours of 9:00 a. m. to 5:30 p. m. five days per week, with an additional three hours on Saturday, were explained to petitioner and certainly there is not greater reason why an employer who happens to be an agent of the sovereign power should have any greater latitude to exact more hours of work than such normal hours, where they are in fact fixed, than a private employer, and it would be absurd to say today that a private employer could refuse to give an employee lump sum payments for overtime worked. We all know that for any overtime the employee is usually compensated on a time and a half or double time basis in private industry. The statutes and the rules, with regard to public employment, are proceeding along the same lines; therefore, when an employee accepts a position with a sovereign power and there is a definite contract of employment, then any time worked over those normal hours entitled the employee to compensating time off and if this is not given, under the rules of the cases cited in the Howard case, supra, the employee is entitled to a lump sum in lieu thereof.'
We agree with this analysis.
No other points raised require discussion.
In view of the foregoing we conclude that the trial court correctly determined that petitioner was entitled to a judgment directing that she be paid the sum of $3,076.73 as the cash value of overtime worked but not compensated for prior to her separation from State service, and that the judgment should be and the same is hereby affirmed.
ADAMS, P. J., and PEEK, J., concur.