_______________________________

N 4

EdnunJ G Brown Jr

JAMES WARD
V.

Case No. 09-2437EA BOARD DECISION

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION Complaint Alleging Illegally Voided Appointment APPEARANCES: Derek T. Anderson and Wendell Phillips on behalf of Appellant, James Ward; Evan R. Sorem, on behalf of Respondent, California Department of Corrections and Rehabilitation. BEFORE: President Maely Tom, and Members Patricia Clarey, and Richard Costigan. DECISION This case is before the State Personnel Board (SPB or Board) after the Board rejected the Administrative Law Judges (AU) Proposed Decision to consider whether Appellant, James Ward, was appointed to a permanent position as Chief Dentist. And if so, the appropriate remedy for Appellant as a result of Respondent, California Department of Corrections and Rehabilitations, termination of his employment. The Board finds that Appellant was not appointed to a permanent, but a limited term position. The Board further finds that Respondent did not violate any State Civil Service Act or Board regulation or policy when Respondent terminated Appellant from

service upon the expiration the limited-term.

dismissed.

As such, Appellants complaint is

James Ward 09-2437EA Page 2 of 14 SUMMARY OF FACTS AND BACKGROUND Appellant filled out the Examination and/or Employment Application for Dentist (Correctional Facility). Appellant signed and dated the application on April 1, 2006. On October 24, 2006, Employment Inquiry form. lronwood State Prison (ISP) sent Appellant an

The Employment Inquiry showed that Appellant was

successful in the examination for Chief Dentist, Correctional Facility, full time, temporary for 12 months, located at ISP. The Employment Inquiry stated that [i]f interested, please submit a completed state application, a copy of your dental license to the address above.
****

This position may become permanent full time in the

future.**** Upon receipt of the form, Appellant telephoned the personnel department at ISP where he spoke with Yvonne Olivas, Delegated Testing Officer/AGPA, ISP (Olivas), regarding the language stating that the position may become permanent. Olivas told him to complete the application and submit it. Appellant checked the box yes that he was interested and signed and dated the Employment Inquiry on November 13, 2006. On December 1, 2006, Olivas sent a letter to Appellant stating that he was scheduled for an interview at ISP for the position of Chief Dentist, C.F., limited term, up to 12 months. This position may become permanent full time in the future. Appellant thereafter interviewed for the position. During the interview, the appointment type of the position was not discussed. Olivas telephoned Appellant on April 30, 2007, and offered him the position of Chief Dentist. During the conversation, she told him that the position was permanent. Appellant accepted the position. That same day, Olivas sent a letter to Appellant stating

James Ward 09-2437 EA Page 3 of 14

that ISP was offering you the position of Chief Dentist, C.F., permanent full time, contingent upon approval of your medical examination, Tuberculosis (TB) test results and live scan fingerprints. On July 2, 2007, Appellant commenced work at ISP as the Chief Dentist. Appellant completed various personnel forms before he started working at ISP. On

some of the forms, under type of appointment, permanent was marked. Appellant also moved his familys home from San Diego to Blythe believing the position was permanent. Two weeks later, on July 18, 2007, Appellant received a copy of the Notice of Personnel Action Report of Appointment (NOPA). The NOPA showed the classification as Chief Dentist, Correctional Facility and the appointment status as Civil Service, Limited Term with an expiration date of July 1, 2009. The NOPA also stated in part: Your appointment is from an employment list for other than permanent work. NOPA further stated: Your signature certifies that to the best of your knowledge you have provided your department with complete and factual information necessary for a proper appointment; and that you intend to serve in this class, tenure, location and other elements of this appointment as reflected on this document; and you will make a reasonable attempt to seek correction of any aspect of this appointment that you know is illegal. The information as shown on this document is assumed correct unless you notify your departmental personnel office in writing of errors within 30 calendar days from issue date. Any change in salary or civil service status is subject to State Personnel Board approval. The

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The NOPA also stated that there was no probation period and the due dates for probation reports were left blank. Appellant was surprised that the NOPA showed the Chief Dentist position as a limited-term position. Appellant went to the Personnel Office and spoke with an ISP Personnel Specialist where he was informed that in order to get paid he needed to sign the form. He was also told to contact his direct supervisor, Lynda Mixon (Mixon), Appellant thereafter spoke with Mixon

Respondents Regional Dental Director, IV.

regarding his concerns about the position. Mixon told him not to worry, and it was a temporary measure that would be changed soon. She also told him that Linda Martinez (Martinez), who previously held the position of Chief Dentist at ISP, was in an acting position at headquarters. Once her acting position was made permanent, Appellants position would be rolled over to a permanent status. Appellant thus understood that the limited-term status of his appointment to Chief Dentist was a temporary matter and would be rolled over to a permanent appointment once Martinezs acting position was converted to a permanent position. Based on these conversations, Appellant signed the NOPA on July 25, 2007. Appellant did not submit a writing to the personnel department noting any errors in the NOPA. On August 9, 2007, Martinezs position in headquarters became permanent. Upon learning that Martinezs position was made permanent, Appellant contacted Mixon to find out when his position would be made permanent. Mixon responded that she

thought the change already occurred and that she would follow up with C. Park (Park),

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D.D.S., Acting Deputy Statewide Dental Director. Mixon or Park.

Appellant did not hear back from

On October 3, 2008, Mixon sent an email to Appellant informing him that the Dental Program decided to hold interviews for the permanent Chief Dentist position at ISP. The email also stated that it was determined that the CD hiring interviews would be opened to all viable candidates interested in a permanent position since previously the position could only be advertised as [a] limited term position. Appellant interviewed for the permanent position even though he did not agree with the initial decision not to roll him over into that position. After the interview, Mixon informed Appellant that he was the most qualified candidate for the position. His package was submitted to the Health Care Manager, John Culton (Culton), M.D., for approval. Culton never signed Appellants hiring package. Appellant worked for the duration of the limited-term. In July 2009, at the

conclusion of the two-year limited, Appellants employment expired on its own terms.

PROCEDURAL SUMMARY
On June 26, 2009, Appellant filed a Merit Issue Complaint with the Appeals Division of the SPB. The primary thrust of the complaint was that he was denied a permanent position as Chief Dentist at ISP after having received and accepted such an offer. Respondent tiled a response to the complaint on October 29, 2010. The Appeals Division issued its determination denying the complaint finding in part that Appellant was appointed to a limited-term. In February 2011, counsel for Appellant requested the case file be reviewed in light of the change in procedural regulations adopted by the

James Ward 09-2437EA Page 6 of 14 SPB in August 2010. While a review of the case file did not reveal any anomalies with regards to the new procedural regulations, it was determined that the allegations underlying the Merit Issue Complaint related to whether Appellant was appointed to a permanent position as Chief Dentist. As such, the determination rendered by the

Appeals Division was rescinded and an evidentiary hearing was ordered for the limited purpose of determining whether [Appellant] was appointed to a full time, permanent position as Chief Dentist, and if so, whether respondent unlawfully voided said appointment and any remedies which may result as provided for under Susan McGuire (1991) SPB Dec. No. 91-05. The matter was heard before an Administrative Law Judge (AU) on June 20 and 21, 2011. The AU issued a Proposed Decision granting Appellants complaint finding that Appellant was appointed to the permanent Chief Dentist position. The AU set

aside Respondents attempt to void Appellants appointment to Chief Dentist on a fulltime, permanent basis and reinstated Appellant with back pay and benefits. At its

September 20, 2011, meeting the Board rejected the Proposed Decision and invited discussion on the following issues: (1) Was the Chief Dentist position advertised as a full-time permanent position; (2) Was Appellant eligible to be appointed to a permanent, full time position as Chief Dentist; and (3) Once the Chief Dentist position became available to be filled as permanent, full-time, was CDCR obligated to advertise that position; and

James Ward 09-2437EA Page 7 of 14

(4) What authority, if any, did ISP Personnel Specialist, Delegated Testing Officer/AG PA, and/or the Respondents Regional Dental Director, IV, have to modify the advertised Chief Dentist, Limited Term classification to a permanent position; and (5) Is the NOPA legally controlling over the verbal representations made to Appellant by Respondents representatives that the Chief Dentist, Limited Term classification was only temporary and that Appellant was actually being hired to a permanent, full-time position?

ISSUE
The issue presented is whether Appellants civil service appointment was permanent or on a limited-term basis? If he was appointed as a permanent employee, what is the appropriate remedy?

DISCUSSION
It is well settled in California that public employment is not held by contract but by statute and that, insofar as the duration of such employment is concerned, no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law. (Miller v. State of California (1977) 18 Cal.3d 808; 813-814; see also Boren v. State Personnel Board (1951) 37 Cal.2d 634, 639; Patten v. State Personnel Board (1951) 106 Cal.App.2d 168, 172.) The terms of Appellants appointment, therefore, are determined by statute and not by contract. Thus, in determining whether Appellant was appointed, the Board looks to the State Civil Service Act (Act), Government Code section 18500 et seq.

James Ward 09-2437EA Page 8 of 14 The Act was created by the Legislature in response to the people of Californias constitutional amendment whereby they sought to eliminate the spoils system, in particular the milieu of appointments of inefficient individuals and abuse of temporary positions. (Allen v. McKinley (1941) 18 Cal.2d 697; Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 184.) The Act sets forth a comprehensive scheme of how

positions in state civil service are filled to ensure that employment is based on merit, efficiency and fitness as ascertained by competitive examination. (Cal. Const. art VII; subd. (b); Gov. Code

18500, 18930, and 18950.)

To fill a vacancy, an appointing agency submits a request to the SPB to certify names of persons eligible to be appointed. (Gov. Code

19052.) The request includes

a statement of the duties of the position as well as the necessary and desired qualifications of the person to be appointed. (Id.) From this information, the SPB

certifies to the appointing power the names and addresses of all those eligible whose scores, at the time of certification, represent the three highest ranks on the employment list for the class, and who have indicated their willingness to accept appointment under the conditions of employment specified. (Gov. Code

19057.1.) (Emphasis added.)

Those eligible who have not agreed to certain conditions are purposefully excluded. The appointing agency then appoints an eligible from the certified list. An individual may not be appointed to any position other than that for which the list was sought as the parameters of the list are determined by the vacancy. Were that to occur, the SPB and/or the appointing agency would act in excess of their authority as set forth in the California Constitution and the Act, and such action would be void.

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(Ferdig v. State Personnel Board (1969) 71 Cal.2d 96, 100-101, noting that [i]t is settled principle that administrative agencies have only such powers as have been conferred on them, expressly or by implication, by constitution or statute.) This

restriction in appointment serves the sole purpose of the Act to ensure that employment is based on merit and fitness as ascertained by competitive exam. In creating the Act, the Legislature was cognizant of the fact that in some situations, permanent appointments were impractical where the position would only be vacant for a short period of time. To avoid layoffs or displacement of new hires filling 1 these positions, the Legislature created limited-term appointments. (Gov. Code

19080.3.) Limited term appointments [are] made only for temporary staffing needs. (Id.) To hire a limited-term appointment, the appointing agency submits a request to the SPB to certify a list of eligibles interested in the position and willing to work for a limited-term. For limited-term positions, the request for certification must state the (Gov. Code

duration of the position.

19080.)

The SPB then certifies only those

individuals who were successful in the examination and have agreed to work for a limited-term. Those individuals who have not agreed to work for a limited-term are not included on the certified list. An individual from the list is then appointed to the limitedterm position. Limited-term employees are not permanent employees. As such, they are not afforded the same rights or protections. Limited-term employees do not serve a

Positions may be vacant only temporarily due to an incumbents temporary appointment to another position, nonindustrial leave, seasonal, or other approved durational absence.

James Ward 09-2437EA Page 10 of 14

19171.)2

probationary period.

(Gov.

Code

18528 and

Their employment

automatically terminates after the expiration of the term, and they may be terminated at any time without cause. (Gov. Code

19080.3; Cal. Code Regs., tit. 2,

282).

Appointments to limited-term positions are not counted toward acquiring permanent status in any position. (Cal. Code Regs., tit. 2,

281.)

In the present case, the prior incumbent, Martinez, was appointed to an acting position at headquarters for two years. To backfill the opening caused by Martinezs reassignment, Respondent created a limited-term position as evidenced by the Employment Inquiry, NOPA and Mixons October 3, 2008, e-mail stating the previous position could only be advertised as a limited-term position. ISP sent out inquiries to identify those individuals successful in the Chief Dentist, Correctional Facility classification willing to accept a limited-term appointment. The

Employment Inquiry directed individuals interested in a temporary for 12 months position to mark a box YES- I am interested in being considered for possible appointment to this position. I have attached my completed application (STD. 678) to this copy for your consideration. Appellant received such an inquiry and responded indicating he was interested in the temporary position by his marking the box yes and signing his name. 4

The Act mandates that a new hire must successfully complete a probationary period before attaining ermanent status in the classification or position. (Gov. Code 19171.) The Board notes that there is an exception in those cases where emergency or temporary employees in limited-term positions remain employed in the same class and the same layoff subdivision. In such circumstances, a limited-term employee may only be separated for cause. (Cal. Code Regs., tit. 2, 282.) The SPB does not condone Respondents actions of stating in the Employment Inquiry [tjhat this position may become permanent and Olivas and Mixons communications. An applicant unfamiliar with the Civil Service laws could logically assume from these representations that by an appointment to a

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5 The NOPA clearly indicated that the appointment was for a limited-term. The Appointment Status was delineated as Civil Service Limited Term. The NOPA also identified that the term expires on 07/01/09 and that Appellant cannot be paid or work beyond that date unless he received another appointment. The NOPA even stated that his appointment is from an employment list for other than permanent work. Lastly, Mixons October 3, 2008, e-mail confirms that the position could only be advertised as a limited-term position. From this evidence, it is clear that pursuant to the Act, Appellant was appointed to a limited-term appointment. The Boards analysis and conclusion are supported by Patten v. State Personnel Board, supra, 106 Cal.App.2d 168. In Patten, the petitioner filed a writ seeking to

compel his appointment to be deemed permanent based on representations from his employer that his position was permanent. The court denied the writ noting that the petitioner did not receive a permanent appointment, where it appeared, among other things, that the request for certification of eligible was on a duration basis, that petitioner was not reachable on the list of eligible for a permanent appointment, and that a representative of the appointing commission had authority from neither that commission nor SPB to represent to petitioner that the position was permanent.
limited-term position, they could become a permanent employee. To be appointed to a permanent position, however, Respondent would need to request another certified list and the individual would need to be successful in the exam to be on that list. Because Appellant was appointed to the appropriate vacancy from which the list was certified to, Respondent did not violate those laws which the SPB is charged with overseeing. The SPB is limited by its constitutional role to uphold and administer the Act. This Decision does not address whether Appellant has remedies available to him under other legal authorities that may be more appropriately addressed before forums other than the SPB. Appellant asserts that he signed the document in order to be paid. Whether he signed the document is not determinative of whether he agreed with the NOPA. The NOPA clearly provides that [t]he information as shown on this document is assumed correct unless you notify your departmental personnel office in writing of errors within 30 calendars from issue date. Appellant never filed any writings with Respondent.

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The rationale behind Patten applies to this case. Eligibility lists are created from specified parameters covering the appointing agencys employment needs. If the need is determined to be temporary, then the position is advertised for a limited-term appointment. Such advertisement will predictably draw candidates who are willing to fill a durational appointment while deterring other qualified candidates who are only interested in permanent appointments from competing. Thus, to convert a limited-term appointee into a full-time permanent appointment is tantamount to a circumvention of the merit-based appointment system where the permanent appointment will not be based on a selection of all qualified candidates who may be interested in the permanent appointment. Appellant asserts under the theory of equitable estoppel Respondent should be estopped from asserting that the position was for a limited-term based on Respondents communications. As noted above, the terms and conditions of civil service employment are determined by statute. The only position lawfully held by Appellant was that for

which he was examined, certified, and appointed to in the manner provided by lawa

limited-term.
Further, it has been held that the authority of a public officer cannot be expanded by estoppel. (Boren v.State Personnel Board, supra, 37 Cal.2d at 640.) In

Boren, plaintiff was dismissed when he failed to report for duty in Sacramento. Plaintiff
argued that it was a condition of his contract that he would not be required to serve outside the Southern California area and, as such, he was justified in disobeying the order to report to Sacramento. The Supreme Court upheld plaintiffs dismissal finding

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that under the Act, the SPB was without authority to make a contract limiting the geographical area. The Supreme Court noted that [tb invoke estoppel in cases like the present would have the effect of granting to the states agents the power to bind the state merely by representing that they have the power to do so. (Id.) Mixon and Olivass authority cannot be expanded to appoint Appellant to a permanent position from a certified limited-term list. In addition, estoppel is not

applicable in the present case as the court has made it clear that neither the doctrine of estoppel nor any other equitable principle may be invoked against the governmental body where it would defeat the effective operation of a policy adopted to protect the public.

(Feduniak v. State Coastal Commission (2007) 148 Ca.App.4th 1346, 1359.)

Here, the pubic policy that public employment be based on merit, efficiency, and fitness through competitive examination would be circumvented if a state agencys

misrepresentations were allowed to bind the state contrary to the intent of the Civil Services Act. Lastly, estoppel is inapplicable because Appellant is unable to meet the following element: the other party must be ignorant of the true state of facts.

(Lentz v.

McMahon (1989) 49 Cal.3d 393, 399.) It has been held that [w]hen an employee of the state, under civil service, accepts a position, he does so with knowledge of the tact that his appointment is subject to the law governing such matters, as set forth in the statute and rules and regulations. (Boren v. State Personnel Board, supra, 37 Cal.2d 634.) Appellant is charged with the knowledge that his appointment was for a limited-term and cannot claim ignorance.

James Ward 09-2437 EA Page 14 of 14

CONCLUSION
Appellant was appointed to the Chief Dentist, limited-term. When his limited-term expired, Respondent terminated his position. In doing so, Respondent did not violate the State Civil Service Act or board regulation or policy. As such, Appellants complaint is dismissed.

ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this case, it is hereby ORDERED that: 1. The complaint is hereby DISMISSED.

STATE PERSONNEL BOARD

Maeley Tom, President Patricia Clarey, Vice President Richard Costigan, Member
*****

I hereby certify that the State Personnel Board made and adopted the foregoing Decision and Order at its meeting on May 22, 2012.

/
Suzanne M. Ambrose ExedIjlive Officer State Personnel Board