BARON R. EARL, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent; DEPARTMENT OF CORRECTIONS AND REHABILITATION, Real Party in Interest and Respondent.
No. C074677
Third Dist.
Nov. 13, 2014.
231 Cal.App.4th 459
COUNSEL
Mastagni Holstedt, David E. Mastagni, Isaac S. Stevens, Jeffrey R.A. Edwards and Ian B. Sangster for Placer County Deputy Sheriff‘s Association, Sacramento Police Officer‘s Association, Sacramento Area Firefighter‘s Local 522, Peace Officers Research Association of California and Peace Officers Research Association of California Legal Defense Fund as Amici Curiae on behalf of Plaintiff and Appellant.
Alvin Gittisriboongul and Heather Glick for Defendant and Respondent.
Stephen A. Jennings for Real Party in Interest and Respondent.
OPINION
DUARTE, J.—Baron R. Earl (Earl), a parole agent, was disciplined by his employer, California‘s Department of Corrections and Rehabilitation (Department) for conducting a purportedly unlawful search of a residence, and after
Because we agree that notice was untimely, we need not reach Earl‘s remaining contentions. We reverse with directions to issue a writ commanding the Board to grant Earl‘s motion to dismiss.
BACKGROUND
Because of the narrowness of our holding, the facts surrounding the search and the subsequent discipline imposed are not relevant.
The parties do not dispute that the Department learned of Earl‘s actions during a hearing regarding another employee conducted on May 27, 2009, and “served a Letter of Intent on Earl by certified mail on May 27, 2010,” notifying him that the investigation was complete and that thе “allegations of an improper entry . . . were sustained.” Earl‘s position that this notice was not adequate under the relevant statute was rejected by the Board, which upheld discipline, and the trial court, which denied Earl‘s administrative mandamus petition.
Earl timely appealed from the judgment.
DISCUSSION
Earl contends he was entitled to actual notice of the contents of the “Letter of Intent” within one year of the date of discovery, not service by mail as perfeсted by the Department. Amici curiae, groups of public safety officers, concur.1 We agree with this position.
We review questions of law, which would include statutory interpretation, de novo. (See Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404 [107 Cal.Rptr.2d 39].)
However, peace officers are subject to an entirely separate statute, be they state or local peace officers, namely, the Public Safety Officers Procedural Bill of Rights Act (popularly known as POBRA;
Earl persuasively contends that the word “notify” as used in the emphasized portion of the just quoted statute means actual notification, not constructive notice, such as by mail. He relies on the rule, stated in many cases, that “[u]nder settled principles of statutory construction, ‘[a] statute requiring that a notice shall be given, but which is silent as to the manner of giving such notice, contemplates personal service thereof.‘” (Hoschler v. Sacramento City Unified School Dist. (2007) 149 Cal.App.4th 258, 264 [57 Cal.Rptr.3d 115] (Hoschler); see Simpson v. City of Los Angeles (1953) 40 Cal.2d 271, 280-281 [253 P.2d 464] (Simpson); Stockton Automobile Co. v. Confer (1908) 154 Cal. 402, 408-409 [97 P. 881] (Stockton); Johnson v. Barreiro (1943) 59 Cal.App.2d 213, 218-219 [138 P.2d 746] (Johnson).)
The trial court, relying on Mays and our decision in Sulier v. State Personnel Bd. (2004) 125 Cal.App.4th 21 [22 Cal.Rptr.3d 615] (Sulier), agreed with the Department. However, Mays and Sulier actually undermine the Department‘s argument, as we shall explain.
In Mays, our Supreme Court “granted review to address the question of whether the notice required by
In the cоurse of its discussion, our Supreme Court explained why it was not necessary to provide notice of the specific punishment to be imposed, as follows:
“Viewing the terms of
section 3304(d) as a whole, it appears clear that the fundamental purpose of this provision is to place a one-year limitation on investigations of officer misconduct. The one-year period runs from the timethe misconduct is discovered. Once the public agency decides that discipline may be warranted (‘that discipline may be taken’ (ibid.)), it must so inform the public safety officer (must ‘notify the public safety officer of its proposed disciplinary action’ (ibid.)). In this context, it seems most reasonable to interpret the language ‘proposed disciplinary action’ as referring to the agency‘s determination that ‘discipline may be taken.’ (Ibid.) Not only completion of the investigation, but also thе requisite notification to the officer, must be accomplished within a year of discovery of the misconduct. This interpretation is consistent with the apparent purpose of the subdivision, which is to ensure that an officer will not be faced with the uncertainty of a lingering investigation, but will know within one year of the agency‘s discovery of the officer‘s act or omission that it may be necessary for the officer to respond in the event he or she wishes to defend against possible discipline. “A contrary conclusion—that
section 3304(d) requires notification of the specific discipline contemplated by the public agency—prematurely would impose a requirement that is unreasonable in view of the timing of the notice.Section 3304(d) refers to an agency decision that ‘discipline may be taken.’ (Italics added.) The use of the conditional word ‘may’ demonstrates the preliminary nature of the proceedings at the time the notice is required under subdivision (d). It would be anomalous to require the public agency to reach a conclusion regarding potential discipline prior to any predisciplinary proceedings or response on the part of the officer. (See [Sulier, supra, 125 Cal.App.4th at p. 29] [‘the notice contemplated bysection 3304(d) is given at a time when the disciplinary authority has not necessarily committed itself to disciplining the employee . . .‘].) Such a requirement also could have thе practical effect of always leading the public agency to propose the maximum punishment in order to ensure it retained the full range of options in the subsequent disciplinary proceedings.” (Mays, supra, 43 Cal.4th at pp. 321–322, some italics added.)
The Supreme Court bolstered this view with reference to other parts of the statute.5 (Mays, supra, 43 Cal.4th at pp. 322–323.) Then the court emphasized that
The trial court (incorporating the Board‘s decision) and the Department read Mays as holding a full one-year investigative period is a fundamental purpose of the statute. Mays does not hold that; in fact, its language suggests the oppоsite.
First, that point was not at issue in Mays. “[A] case is not authority for a point that was not actually decided by the court.” (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902 [160 Cal.Rptr. 124, 603 P.2d 41].)
Second, there is explicit language in Mays cutting against the Department‘s view: ”Not only completion of the investigation, but also the requisite notification to the officer, must be accomplished within a year of discovery of the misconduct. This interpretation is consistent with the apparent purpose of the subdivision, which is to ensure that an officer will not be faced with the uncertainty of a lingering investigation, but will know within one year of the agency‘s discovery of the officer‘s act or omission that it may be necessary for the officer to respond in the event he or she wishes to defend against possible discipline.” (Mays, supra, 43 Cal.4th at pp. 321–322, italics added.) This passage is fully consistent with a requirement of actual notice within that one year; indeed, the second emphasized portion assumes actual notice within one year.
Compounding its misreading of Mays, the Department then misreads Sulier, a case which also cuts against its position. In Sulier, the Department sent Sulier a letter within one year of beginning its investigation, advising him that the investigation was over and revealing the proposed discipline. Later, after the one-year period had run, the Department personally served Sulier with a formal notice of adverse action, with the detail required by
“[U]nder the plain language of
section 3304(d) , if the CDC desires to discipline an officer, then it must cоmplete the investigation into the misconduct within one year of the discovery of the misconduct by a person
authorized to start an investigation into the conduct. If, at the conclusion of that investigation, the CDC ‘determines that discipline may be taken,’ then it must give the officer notice of the ‘proposed disciplinary action’ during that same one-year time frame. [Citation.] When the CDC actually ‘decides to impose discipline,’ then it must notify the public safety officer in writing of its decision to impose discipline ( § 3304, subd. (f) , italics added).“Here, the CDC complied with this statute. Within one year of initiating the investigation, it served a notice on Sulier informing him that the investigation was completed. Further, that same letter identified the ‘proposed discipline’ of ‘a one-step demotion to a Correctional Officer.’ Within 30 days of that notice, the CDC provided Sulier with a formal notice of adverse action under
section 19574 notifying him of its decision to impose discipline on him.” (Sulier, supra, 125 Cal.App.4th at p. 27, first italics added, second italics in original, some italics omitted.)
Thus, Sulier, too, did not involve the question of notice within the one-year period but the difference between formal and informal notice.6 And Sulier stated that notice must be “during that same one-year time frame” which cuts against the Department‘s argument to the contrary. (Sulier, supra, 125 Cal.App.4th at p. 27.)
Sulier also explained
“The language of
section 3304(d) does not suggest any invocation of this formal civil service process. Unlike sections [19574] and 19635, section
3304(d) contains no reference to the service of a ‘notice of adverse action.’ It contains no reference tosection 19574 . Further, it does not reference any of the items specified insection 19574 except the nature of the proposed discipline. As we have already stated, allsection 3304(d) requires is that the agency ‘notify the public safety officer of its proposed disciplinary action within that year.’ We conclude this does not invoke the requirements ofsection 19574 .“The context of
section 3304(d) , both in terms of who it applies to and where it is located in theGovernment Code , vitiates Sulier‘s argument. First,section 3304(d) applies to both state and local agency employees, not solely state civil service employees. (See, e.g., Stanton v. City of West Sacramento (1991) 226 Cal.App.3d 1438, 1443 [277 Cal.Rptr. 478] [‘the procedural details of an administrative appeal required bysection 3304, subdivision (b) are to be formulated by the locаl agency‘].) Thus, it makes sense thatsection 3304(d) does not necessarily incorporatesection 19574 . Second,section 3304(d) is contained in a completely separate part of theGovernment Code from the state civil service portion of theGovernment Code . Thus, there is no logical reason to infer thatsection 3304(d) incorporates the notice of adverse action requirements ofsection 19574 .” (Sulier, supra, 125 Cal.App.4th at pp. 28–29, fn. omitted.)
Thus, Sulier declined to import into
If we did not allow the Department to avail itself of
As we have explained, clearly the notification itself is required to occur within a year of the discovery of the misconduct. But what precisely did the Legislаture mean by “notify the public safety officer” in
Thus actual notification must occur within the same year as the investigation.
Although the Department dismissed it cavalierly, we find our prior decision in Hoschler helpful. There, we interpreted a provision of the
“The statute requires the District to give notice, but is silent as to the method. When the meaning of a statute is not clear from the plain meaning of the words used, we turn to a variety of aids including rules of statutory construction, with the objective of determining the intent of the Legislature. [Citation.]
“Here, the statute is silent on the method of notice. Under accepted canons of statutory interpretation, where a statute does not prescribe the method of notice, personal service is contemplated. Thus, unless a different purpose is found within the statutory scheme to justify an exception, the presumption of the personal service method of notice applies.” (Hoschler, supra, 149 Cal.App.4th at p. 266.)
We see no reason not to apply the same interpretive rule here, where the Department was required to “notify the public safety officer,” as we did in Hoschler, where the district was required to “notify the employee.” In both cases, certified mail received after the outer limit of the relevant time period was not sufficient notification.7
Accordingly, the Board erred in failing to dismiss the action, and the trial court erred when it declined to issue a writ compelling the Board to do so.
DISPOSITION
The judgment is reversed with directions to the trial court to issue a writ of mandate commanding the Board to grant Earl‘s motion to dismiss. The Department shall pay Earl‘s costs of this appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
Nicholson, Acting P. J., and Butz, J., concurred.
The petition of real party in interest for review by the Supreme Court was denied February 25, 2015, S223385.