Figueroa v. Housing Authority

found merit in his alternative argument and on that basis issued a peremptory writ of mandate ordering Figueroa’s reinstatement with back pay.

Issue on Appeal

Under the due process guarantees of the federal Constitution and the Constitution of the State of California, a public employee is entitled to due process upon termination from employment if either “property” or “liberty” interests are implicated. (Arnett v. Kennedy (1974) 416 U.S. 134 [ 40 L.Ed.2d 15 , 94 S.Ct. 1633 ]; Perry v. Sindermann (1972) 408 U.S. 593 [ 33 L.Ed.2d 570 , 92 S.Ct. 2694 ]; Board of Regents v. Roth (1972) 408 U.S. 564 [ 33 L.Ed.2d 548 , 92 S.Ct. 2701 ]; Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [ 124 Cal.Rptr. 14 , 539 P.2d 774 ].) In addition, and without regard to the existence of a property or liberty interest, procedural and substantive safeguards attach to termination for reasons which deprive the employee of other constitutional rights, such as freedom of speech (e.g., Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274 [ 50 L.Ed.2d 471 , 97 S.Ct. 568 ]).

Figueroa does not claim that his “liberty” interests were implicated in his termination, or that he was terminated for reasons which offend substantive constitutional protections. And the Housing Authority does not question the trial court’s determination that it failed to accord Figueroa the process required for deprivation of a property right.^[2] Rather, the briefs of both parties are confined, so far as constitutional issues are concerned, to the single question whether Figueroa had a property right in his employment such as to require due process upon termination. These contentions frame the issue on appeal.

Discussion

The constitutional ground rules for determining when a public employee’s interest in continued employment constitutes a “property right”

have been explicated in a number of United States Supreme Court decisions. “To have a property interest in a benefit, a person clearly must have more than a . . . unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” (Board of Regents v. Roth, supra, 408 U.S. 564 , 577 [ 33 L.Ed.2d 548 , 560].) “A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” (Perry v. Sindermann, supra, 408 U.S. 593 , 601 [ 33 L.Ed.2d 570 , 579].) Thus, the existence of an entitlement amounting to a property right may be established through agreement, express or implied, limiting the public employer’s right to dismiss “absent ‘sufficient cause.’” (Id., at pp. 602-603 [33 L.Ed.2d at pp. 580-581].') Or, it may be established through statutory protection against dismissal without cause. (Arnett v. Kennedy, supra, 416 U.S. 134 ; see Skelly v. State Personnel Bd., supra, 15 Cal.3d 194 , 207.) In either event, “the sufficiency of the claim of entitlement must be decided by reference to state law.” (Bishop v. Wood (1976) 426 U.S. 341 , 344 [ 48 L.Ed.2d 684 , 690, 96 S.Ct. 2074 ].) And, “‘if the employee is subject to discharge only for cause, he has a property interest which is entitled to constitutional protection.’ [Citations.]” (Williams v. County of Los Angeles (1978) 22 Cal.3d 731 , 736 [ 150 Cal.Rptr. 475 , 586 P.2d 956 ].)

Appellant was established pursuant to, and is governed by, the provisions of the state Housing Authorities Law (Health & Saf. Code, § 34200). That statute, in section 34278, permits an employer “such . .. officers, agents, and employees as it' requires,” and to “determine their qualifications, duties, terms of employment and compensation,” but mandates that: “The authority shall adopt personnel rules and regulations applying to all employees,” and that “[s]uch rules shall contain . . . personnel procedures on hiring and firing including removal of personnel for inefficiency, neglect of duties, or misconduct in office.” (Italics added.) The rules and regulations so adopted are required to be of public record.

At the time of Figueroa’s dismissal, the Housing Authority was not in compliance with the statutory mandate; its personnel policies contained no procedures relating to the removal of employees for the statutorily enumerated reasons, or for any reasons.^[3] Arguably, Figuer

oa’s termination was invalid on that ground alone, but since that argument has not been made we refrain from deciding the case on that basis.

The fact that the Legislature has mandated the adoption of procedures for removal of employees for stated reasons does, however, support the trial court’s finding that Figueroa had a “claim of entitlement” to his job beyond a “mere expectancy.” That finding is further supported by Figueroa’s status as a “permanent” employee and by the Housing Authority’s personnel policies which, under the heading “Basic Principles,” provide: “A. Merit System: The employment of personnel and all actions affecting employees shall be based solely on merit, ability, and justice.” The trial court reasoned: “[IJf a man is told that all employee relationships are based on merit, then it is utterly inconsistent to say that he serves at the pleasure of the appointing authority.”

We conclude that the trial court did not err in finding that Figueroa had a “property right” in his job within the meaning of applicable constitutional principles.

Affirmed.

Racanelli, P. J., and Goff, J.,^[4] concurred.