Filed 3/3/20 California Association of Professional Scientists v. State Personnel Board CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

CALIFORNIA ASSOCIATION OF PROFESSIONAL SCIENTISTS,

Plaintiff and Appellant,

v.

STATE PERSONNEL BOARD et al.,

Defendants and Respondents.

C084869

(Super. Ct. No. 34201680002426CUWMGDS)

The California Association of Professional Scientists (CAPS) challenges a decision by the Department of Fish and Wildlife (Department) to have employees classified as Senior Environmental Scientist (Specialist) report to employees classified as Senior Environmental Scientist (Supervisory). The Department’s decision was approved by the California Department of Human Resources (CalHR). When CAPS protested the reporting structure change to the State Personnel Board (SPB), the SPB declined to exercise jurisdiction. CAPS then filed a petition for writ of mandate and complaint against the SPB, CalHR, and the Department. The trial court denied the petition and dismissed the complaint.

On appeal, CAPS contends (1) CalHR and the Department exceeded their statutorily conferred powers in changing the reporting relationship between the two classes in the Environmental Scientist series, (2) “the environmental scientist class series clearly delineates reporting relationships,” and (3) the SPB wrongly refused to exercise its jurisdiction over the Personnel Classification Plan as it related to the Department’s decision to have Specialists report to Supervisors.

We conclude CAPS has not established that the SPB, CalHR, or Department failed to carry out a ministerial duty or that they violated any statutory or regulatory provision. Accordingly, we affirm the trial court’s denial of the petition for writ of mandate. We also affirm the trial court’s dismissal of CAPS’s complaint for injunctive and declaratory relief because CAPS does not separately address the complaint to allege any error different than those asserted in the denial of the writ petition.

BACKGROUND

Change in Reporting Structure

The Environmental Scientist series was established by the SPB in 1981 and revised in 2001. The series comprises six classifications: Environmental Scientist, Senior Environmental Scientist (Specialist), Senior Environmental Scientist (Supervisory), Environmental Program Manager I (Supervisory), Environmental Program Manager I (Managerial), and Environmental Program Manager II (Managerial).

The Specialist classification is described as follows: “The Senior Environmental Scientist (Specialist) is the advanced journey level of the series. Incumbents independently identify problems, develop courses of action, and conduct critical and/or sensitive scientific investigations and studies and may prepare guidance, policy, planning, or regulatory documents and legislative proposals on issues of importance to the employer, and do other related work. Decision making at this level has a higher consequence of error than that of an Environmental Scientist, Range C. Incumbents may be assigned lead responsibility for a specific project, program function, or area of expertise; may act as a mentor to lower level staff; and may act as consultants to other technical staff, management, and other agencies in those matters.”

The Supervisory classification is described as: “This is the first supervisory level of the series. Incumbents supervise and direct the work of professional or technical staff, are responsible for staff development, performance evaluation, program budgeting, and work force planning, and do other related work. Incumbents performing in this capacity have the authority and responsibility in the interest of management to recruit, hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline employees. Incumbents have the responsibility to direct employees, adjust employee grievances, or effectively recommend such actions.” (Italics added.)

Although not directly challenged by CAPS, the classification of the Environmental Program Manager I (Supervisory) is also pertinent to the reasoning that would later be used by the trial court in this case. In relevant part, this classification is defined as follows: “This is the second supervisory level of the series. Incumbents direct and have charge of critical and/or sensitive public health, environmental, agricultural productivity, and natural resource management programs or components; . . . plan for work force needs; represent their organization in compliance negotiations, policy implementation, program budgeting, and strategic planning; and do other related work. Incumbents may supervise a group of Senior Environmental Scientists and other professional and technical staff working on a critical and/or sensitive public health, environmental, and natural resource management, regulation, compliance, or research project.” (Italics added.)

Before 2014, the Specialist class and Supervisory class had nearly equivalent salary ranges. As a result of litigation, the Supervisory class received a more than 40 percent increase in salary in July 2014.

In September 2014, the Department issued a human resources memorandum to its employees addressing a “[c]hange in [r]eporting [s]tructure” for the Specialist classification. In pertinent part, the memorandum stated: “As a result of the new salary increase, the Senior Environmental Scientist (Specialist) classification is no longer within transferable range (i.e., 9.99%) for the Senior Environmental Scientist (Supervisor) classification. Therefore, employees in the Senior Environmental Scientist (Specialist) class must take an examination in order to promote into the Supervisor class.” The memorandum further stated: “Effective October 1, 2014, [the Department] will allow the Senior Environmental Scientist (Supervisor) to supervise the Senior Environmental Scientist (Specialist).”

Challenge in the SPB

In November 2014, CAPS filed a merit appeal in the SPB to challenge the change in the reporting structure. In December 2015, CalHR responded to the appeal as follows: “[CalHR’s] Personnel Management Division (PMD) has reviewed the information pertinent to this inquiry. Based on the review, it is determined reporting relationships are not derived from the classification specification. Exceptions can be made with regards to reporting relationships based on departmental needs and allocation factors. Therefore, on an exceptional basis the Senior Environmental Scientist (Specialist) may report to the Senior Environmental Scientist (Supervisor) at the [Department].”

In April 2016, the SPB formally declined to exercise jurisdiction over the merit appeal. The SPB responded to CAPS that “when this matter was first presented to the SPB as an appeal, there was genuine concern on whether this was an issue that is properly before the SPB. After deliberation, it was determined that this issue should be addressed through formal negotiations with [CalHR] either as a collective bargaining issue or a classification planning issue. We attempted to facilitate a further discussion between CalHR and your organization. Unfortunately, as you have advised, the discussion was not fruitful.”

Petition for Writ of Mandate and Complaint

In April 2016, CAPS filed a petition for traditional writ of mandate and complaint for declaratory and injunctive relief in the Sacramento County Superior Court to challenge the Department’s “use of the Senior Environmental Scientist Supervisory . . . classification to supervise its peer class, the Senior Environmental Scientist Specialist . . . classification.” CalHR and the Department filed a joint opposition on grounds CAPS had not established they had failed to discharge any ministerial duty or violated any law. The SPB filed separate opposition on grounds CAPS had established no ministerial duty that the SPB failed to discharge.

The trial court denied the petition and dismissed the complaint. In denying the petition, the trial court determined the “express terms of the [Personnel Classification Plan for the Environmental Scientist class series] do not preclude the Supervisory class from supervising the Specialist class.” The trial court reasoned: “The Supervisory class definition is written broadly and states incumbents may supervise ‘professionals or technical staff.’ This language can be reasonably interpreted to include the Specialist class. Further, the definition of the Environmental Program Manager I (Supervisory) class states that incumbents ‘may, supervise a group of Senior Environmental Scientists.’ The word may is permissive. This definition does not state that the Environmental Program Manager I (Supervisory) class must supervise Specialists, precluding other supervisory classes from doing so. Accordingly, CAPS has not shown that the terms of the relevant [Personnel Classification Plan] preclude the challenged change in reporting structure.”

From a judgment denying the petition and dismissing the complaint, CAPS timely filed a notice of appeal.

DISCUSSION

I

Traditional Mandate

A petition for a writ of traditional mandate under Code of Civil Procedure section 1085 “will lie to ‘compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station’ (Code Civ. Proc., § 1085) ‘where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’ (Code Civ. Proc., § 1086.) The writ will issue against a county, city or other public body or against a public officer.” (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.) “To obtain such a writ, the petitioner must show (1) a clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present, and beneficial right in the petitioner to the performance of that duty. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540; County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 972.)” (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 128-129 (Alliance for a Better Downtown).)

A ministerial duty refers to a nondiscretionary action compelled by law. Specifically, “ ‘[a] ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists. Discretion, on the other hand, is the power conferred on public functionaries to act officially according to the dictates of their own judgment.’ (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501-502; Transdyn/Cresci JV v. City and County of San Francisco (1999) 72 Cal.App.4th 746, 752.)

“Normally, mandate will not lie to control a public agency’s discretion, that is to say, force the exercise of discretion in a particular manner. However, it will lie to correct abuses of discretion. (Manjares v. Newton (1966) 64 Cal.2d 365, 370.) In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency’s action, its determination must be upheld. (Id. at pp. 370-371.) A court must ask whether the public agency’s action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.” (County of Los Angeles v. City of Los Angeles, supra, 214 Cal.App.4th at pp. 653-654.)

II

Changes in Reporting within the Environmental Scientist Series

CAPS argues that CalHR and the Department “impermissibly usurped the [SPB’s] constitutionally granted authority” to change the Environmental Scientist series classes. We disagree.

A.

The SPB and CalHR

The SPB has power to delineate classifications for state civil service positions. “The Constitution provides the five-member [SPB] ‘shall enforce the civil service statutes and, by majority vote of all its members, shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions.’ (Cal. Const., art. VII, § 3, subd. (a), emphasis added.) The [SPB] has exclusive jurisdiction to classify positions in the state civil service. [¶] In 1981, the [Department of Personnel Administration] succeeded to ‘the duties, purposes, responsibilities, and jurisdiction exercised by the [SPB] with respect to the administration of salaries, hours and other personnel related matters, training, performance evaluations, and layoffs and grievances.’ (§ 19816, added by Stats. 1981, ch. 230, § 55, p. 1170.)” (Lowe v. California Resources Agency (1991) 1 Cal.App.4th 1140, 1146 (Lowe).)

In 1985, CalHR (then the Department of Personnel Administration) assumed responsibility from the SPB for administering the state’s Personnel Classification Plan. (Lund v. California State Employees Assn. (1990) 222 Cal.App.3d 174, 181, 188.) Government Code section 19818.6 charges CalHR with the administration of the Personnel Classification Plan. Section 19818.6 provides: “The department shall administer the Personnel Classification Plan of the State of California including the allocation of every position to the appropriate class in the classification plan. The allocation of a position to a class shall derive from and be determined by the ascertainment of the duties and responsibilities of the position and shall be based on the principle that all positions shall be included in the same class if: [¶] (a) The positions are sufficiently similar in respect to duties and responsibilities that the same descriptive title may be used. [¶] (b) Substantially the same requirements as to education, experience, knowledge, and ability are demanded of incumbents. [¶] (c) Substantially the same tests of fitness may be used in choosing qualified appointees. [¶] (d) The same schedule of compensation can be made to apply with equity.”

The Government Code further provides that the director of CalHR shall “[p]erform any other duties that may be prescribed by law, and any other administrative and executive duties that have by other provisions of law been previously imposed.” (§ 19815.4, subd. (h); see also generally Lowe, supra, 1 Cal.App.4th at p. 1146.) CalHR may delegate the allocation and administration of positions under the Personnel Classification Plan to another department. To this end, section 19818.14 provides, in pertinent part, that CalHR “may designate an appointing power to allocate positions to the Personnel Classification Plan in accordance with Section 19818.6 and department rule. The department may audit position allocations. If the department finds that an appointing power has allocated positions inappropriately, the department may order corrective action, including, but not limited to, reallocating positions, voiding lawful personal transactions, and revoking or restricting the appointing power’s ability to allocate positions.”

B.

Change in Reporting Structure within the Environmental Scientist Series

In 2014, the Department changed the reporting structure schedule in the Environmental Scientist series based on four considerations. CalHR’s deputy director of labor relations explained CalHR’s approval of the change as follows: “CalHR determined the Senior Environmental Scientist (Supervisory) classification could supervise Senior Environmental Scientist (Specialist) classification for the following reasons: (1) CalHR policy allows a reporting relationship between Supervisory and Specialist classifications where appropriate; (2) historically, CalHR has agreed to such reporting relationships in other similar situations; (3) department operational needs, and (4) Senior Environmental Scientist (Supervisory) class earns a salary far more than two steps higher than the maximum range of the Senior Environmental Scientist (Specialist) class, which supports the use of the Supervisory class to supervise the Specialist class.”

C.

The Supervisory and Specialist Class Descriptions Did Not Change

We agree with the trial court that CalHR and the Department did not abuse their discretion by changing the reporting structure within the Environmental Scientist series. CalHR articulated four valid reasons supporting the exercise of discretion in making the change in reporting structure. First, the class definitions do not preclude the Supervisory class from supervising the Specialist class. The Supervisory class description expressly notes this class may “supervise and direct the work of professional or technical staff . . . .” Conversely, nothing in the Specialist class definition prohibits it from being supervised by the Supervisory Class. Second, the new reporting relationship comports with CalHR’s historical practices in similar circumstances and the needs of the Department. Third, the change supported the Department’s operational needs. And, fourth, the salary difference between the classes counseled in favor of having the Supervisory class supervise the Specialist class. These reasons establish that the change in reporting structure within the Environmental Scientist series was not arbitrary, capricious, or devoid of evidentiary support.

We reject CAPS’s assertion the change in reporting structure within the Environmental Scientist series constituted a usurpation by CalHR of the SPB’s prerogative to change job classifications. The change in reporting structure did not change the classifications within the Environmental Scientist series. Instead, the change comported with the job descriptions already in place during the change in 2014. No amendment to the descriptions of the classes within the Environmental Scientist series was necessary.

CalHR’s valid exercise of its discretion in changing the reporting structure precludes CAPS’s petition for a writ of mandate because mandate only lies to enforce a ministerial duty. (Alliance for a Better Downtown, supra, 108 Cal.App.4th at pp. 128-129.) CAPS has not demonstrated CalHR failed to discharge a ministerial duty regarding its administration of the Environmental Scientist series. Instead, sections 19815.4, subdivision (h), and 19818.6 endow CalHR with the power to administer the Personnel Classification Plan. The change in reporting structure within the Environmental Scientist class constituted the permissible exercise of discretion.

We also reject CAPS’s assertions regarding discussions between CAPS and CalHR in the year prior to the 2014 reporting structure change. Specifically, CAPS explores various proposals regarding the Environmental Scientist class that were discussed over the span of several years. We reject CAPS’s reliance on these proposed revisions. Unadopted proposals relating to the Environmental Scientist class do not govern the duties of the Supervisory and Specialist classes in this case. As this court has previously recognized, “The light shed by . . . unadopted proposals is too dim to pierce statutory obscurities. As evidences of legislative intent they have little value.” (California Chamber of Commerce v. State Air Resources Bd. (2017) 10 Cal.App.5th 604, quoting Sacramento Newspaper Guild v. Sacramento Board of Supervisors (1968) 263 Cal.App.2d 41, 58.) The same rationale applies here where CAPS seeks to color meaning of the classes in the Environmental Scientist series with unadopted proposals.

CAPS argues CalHR erred in relying on pay difference considerations as support for the change in reporting structure. In so arguing, CAPS relies on this court’s decision in Westley v. California Public Employees’ Retirement System Bd. of Administration (2003) 105 Cal.App.4th 1095 (Westley). Westley, however, is inapposite. In Westley, the state controller sued the Board of Administration of the California Public Employees’ Retirement System (CalPERS). (Id. at p. 1099.) At issue was the meaning of article XVI, section 17 of the California Constitution (Section 17), a constitutional provision uniquely germane to “the retirement board of a public pension or retirement.” (Westley, supra, at p. 1099, italics added.) The SPB was not a party to the action, and the Westley decision does not mention the SPB. (See generally id. at p. 1099.) Westley held that the CalPERS retirement board did not have authority under Section 17 to exempt its portfolio managers from the strictures of civil service. (Id. at p. 1113.) This court further held the Legislature had not delegated the power of exemption from civil service to the CalPERS retirement board. (Id. at p. 1106.) Westley does not address the nature or scope of the SPB’s ability to delegate its own power. More importantly, as we explained above, CalHR’s change to the reporting structure did not run afoul of the classifications already existing for the Environmental Scientist series. The change in reporting structure did not conflict with the description of the classes within the Environmental Scientist series in the Personnel Classification Plan.

III

Classification System

CAPS asserts that “the express terms of the Personnel Classification Plan outline the reporting relationship between the Senior Environmental Scientist classes clearly.” The exact nature of the argument on this point is difficult to discern because CAPS cites no legal authority in support. We would be justified in deeming the argument forfeited for lack of legal authority. (In re S.C. (2006) 138 Cal.App.4th 396, 408.) CAPS appears to assert that the history of the Environmental Scientist class compels an interpretation of the Supervisory class and Specialist class descriptions that prohibits one class from supervising the other. We are not persuaded.

The historical fact that the Supervisory class did not begin by supervising the Specialist class does not disallow a change in the reporting structure between them. As we noted above, the Supervisory class is expressly charged with supervising other professionals. And the Specialist class description does not specify who may or may not supervise that class. These class descriptions do not prohibit the Supervisory class from supervising the Specialist class.

IV

Whether the SPB had a Mandatory Duty to Exercise Jurisdiction over this Matter

Based on our conclusion CalHR’s change in the reporting structure for the Environmental Scientist series did not change the classifications originally established by the SPB, we also reject CAPS’s argument that the “SPB wrongly refused to exercise its jurisdiction over the Personnel Classification Plan when notified of CalHR and [the Department’s] plans to violate the [Personnel Classification Plan].” The SPB’s classifications for the Environmental Scientist series are not undermined by the reporting structure change. Consequently, the SPB had no ministerial duty to address an action that does not conflict with the Personnel Classification Plan as it relates to the Environmental Scientist series.

V

Complaint for Declaratory and Injunctive Relief

Finally, we note CAPS does not separately address its complaint for declaratory and injunctive relief. Having determined the trial court properly dismissed CAPS’s petition for writ of mandate, we also affirm the dismissal of the complaint. The burden is on the appellant to demonstrate error, and the absence of any claim of error regarding dismissal of the complaint on grounds different from those supporting the dismissal of the writ petition compels affirmance. (Reddell v. California Coastal Com. (2009) 180 Cal.App.4th 956, 960, 971-972 [affirming dismissal of complaint where validity of complaint was dependent on the same grounds as rejected by the appellate court in affirming the denial of a joined petition for writ of mandate].)

DISPOSITION

The judgment is affirmed. Respondents State Personnel Board, California Department of Human Resources, and California Department of Fish and Wildlife shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

HOCH, J.

We concur:

/s/

HULL, Acting P. J.

/s/

RENNER, J.