Santillano v. State Personnel Board

Opinion

Linda Santillano was discharged from employment as a psychiatric technician at Napa State Hospital, ostensibly by “rejection during probationary period” (Gov. Code, § 19173). Respondent State Personnel Board (the Board) affirmed the dismissal; Santillano’s petition for a writ of mandate (Code Civ. Proc., § 1094.5) was denied by the trial court. Santillano appeals to this court, contending that she had attained permanent status before she was discharged and therefore that the hospital’s purported “notice of rejection during probationary period” was invalid and she is entitled to reinstatement. We agree; therefore we reverse the judgment of the trial court with instructions to issue the writ.

Santillano was appointed as a psychiatric technician as of August 15, 1977, subject to a six-month probationary period which, but for subsequent events, would have ended on February 14, 1978. A tragedy in her family caused Santillano to be off work between October 16 and November 28. On or about December 19 Santillano received a “notice of personnel action/report of miscellaneous change” which recited that “You have a break in service. The 11/77 pay period is not qualifying for state service purposes. You lose credit for the pay period for seniority, higher vacation credit, merit salary increase, sick leave and vacation credits, and service awards.” On or about January 19 she received, but

Santillano contends that her probationary period ended, and she became a permanent employee, on March 4; the Board responds that Santillano’s probationary period was properly extended to March 14. The parties agree as to basic principles: “A civil service probationer is entitled to have the statutory procedure for dismissal strictly followed.” (Wiles v. State Personnel Board (1942) 19 Cal.2d 344 , 351 [ 121 P.2d 673 ]; Brown v. State Personnel Board (1941) 43 Cal.App.2d 70 , 75 [ 110 P.2d 497 ].) Among other things the requisite written notice of rejection must be made effective not “later than the last day of the probationary period” and must be served on or before its effective date. (Gov. Code, § 19173; cf. Wiles v. State Personnel Board, supra, 19 Cal.2d 344 , 351.) If these time limits are not met, no rejection is effected. (Wiles v. State Personnel Board, supra, 19 Cal.2d 344 , 352.) If, as Santillano contends, she became a permanent employee on March 4, she was thereafter subject to discharge only by considerably more elaborate procedures (Gov. Code, § 19570 et seq.) which were not followed in her case: She would be entitled to reinstatement with back pay subject to setoffs. (Cf. Gov. Code, § 19180.) The relevant facts are essentially uncontradicted; the issue must be resolved by construction of the applicable statutes and regulations, a question of law which requires that we ‘“ascertain the intent of the...[lawmakers] so as to effectuate the purpose of the law,’” by recourse in the first instance “‘“to the usual, ordinary import of the language employed in framing”’” the statutes and regulations. (Killian v. City and County of San Francisco (1978) 77 Cal.App.3d 1 , 7-8 [ 143 Cal.Rptr. 430 ].)

The statute applicable to a determination of the last day of Santillano’s probationary period is Government Code section 19170, which provides in relevant part that “The board shall establish for each class the length of the probationary period. The probationary period which

The parties appear to agree that the purpose of section 19170 and of rule 321 is to give the appointive power an adequate “opportunity to observe the conduct and capacity of the probationer.” (See Wiles v. State Personnel Board, supra, 19 Cal.2d at p. 347.) They also agree that section 19170 refers to 6 calendar months (cf. Gov. Code, § 18538.1 and Cal. Admin. Code, tit. 2, § 6.1) and that rule 321 operates to effect an automatic extension if the probationer has not worked 105 days by the end of 6 calendar months. They disagree as to how the end of six calendar months is to be identified.

The Board takes the position that section 19170 requires that a probationer be observed on the job during each of six calendar months of work, and that for this purpose a calendar month is to be defined as a month in pay status under the Board’s rule 6.2 (Cal. Admin. Code, tit. 2, § 6.2). Since November was disqualified as a pay period under rule 6.2, the Board argues, Santillano was properly required to complete another month in pay status during her probationary period, with the result that the end of six calendar months did not occur until March 14. By March 14 Santillano had worked 113 days; therefore, the Board concludes, rule 321 did not apply.

The Board’s argument is unpersuasive. By their own terms the pay period provisions of rule 6.2 are made to apply specifically to statutes and regulations which relate to sick leave, educational leave, vacations, layoffs, recognition of length of service and promotions. Nothing in section 19170 or in rule 6.2 supports the Board’s contention that “six months” in section 19170 means six months in pay status. We agree with Santillano’s interpretation of the law as applied to her situation:

We should point out that different procedures would have applied had Santillano’s leave in October and November amounted to “an extended period of absence.” (Gov. Code, § 19170.) Under the Board’s own rule it did not. (Cal. Admin. Code, tit. 2, § 321, subd. (b).)

The Board makes various arguments against the result we reach; we reject each of them. Legislative delegation of power to implement the purpose of providing an adequate evaluation period was proper (cf. Kugler v. Yocum (1968) 69 Cal.2d 371 , 376 [ 71 Cal.Rptr. 687 , 445 P.2d 303 ]) and the Board’s determination that a probationer should be required to work at least 6 consecutive months but not less than 105 days was reasonable. Our interpretation is supported by the Board’s own practices as reflected in its “Personnel Transactions Manual,” pertinent parts of which were received in evidence; even were the Board’s day-to-day construction of section 19170 to be otherwise, we would not be bound by a construction which was clearly wrong. (Cf. Mudd v. McColgan (1947) 30 Cal.2d 463 , 470 [ 183 P.2d 10 ]; Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal.2d 753 , 757-758 [ 151 P.2d 233 , 155 A.L.R. 405 ].) Broyles v. State Personnel Board, supra, 42 Cal.App.2d 303 simply affirms Santillano’s well-documented conclusion that a 6-month probationary period will continue until the end of 6 calendar months or until the employee has accumulated 105 working days,

The judgment is reversed. The trial court is directed to issue a peremptory writ of mandate ordering the Board to set aside its decision and to restore Santillano to the position she held on March 14, 1978, with payment of back salary as provided in Government Code section 19180. Santillano shall recover her costs of suit in the trial court and her costs on this appeal.