Judge Mitchell L. Beckloff, Case 19STCP01694 2022-08-19 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 19STCP01694, Date: 2022-08-19 Tentative Ruling

Petitioner, Jorge Mata, challenges the September 29, 2018 decision of Respondent, Los Angeles Community College District, to remove him from his position as Chief Information Officer (CIO) and to cause him to elected to be reassigned to his former and lower position of College Information Systems Manager (CISM). Through his petition, Petitioner seeks a writ of mandate compelling Respondent to reinstate him to his position as CIO with back pay and related emoluments.

Petitioner’s request for judicial notice is granted as to Exhibits 1, 2, 3, 4, 19, 20 and 21. The court denies judicial notice as to Exhibits 7 (does not appear to be judicially noticeable), 34 (does not appear to be judicially noticeable), 12 (no authentication despite reference to Petitioner’s declaration), 18 (no authentication despite reference to Petitioner’s declaration), 36 (late request insufficient time for Respondent to meet the request, no reference in Opening Brief), 37 (late request insufficient time for Respondent to meet the request, no reference in Opening Brief), 39 (late request insufficient time for Respondent to meet the request, no reference in Opening Brief, does not appear judicially noticeable), 40 (late request insufficient time for Respondent to meet the request, no reference in Opening Brief, does not appear judicially noticeable) and 44 (late request insufficient time for Respondent to meet the request, no reference in Opening Brief, does not appear judicially noticeable). Thus, Respondent’s objections to Petitioner’s request are sustained in part.

Respondent’s unopposed request for judicial notice of Exhibits 1 through 10 is granted.

Petitioner’s evidentiary objections:[1] The following objections are sustained – 1 and 4. The following objection is sustained in part – 6 (as to the second sentence). The following objections are overruled – 2, 3, 5 and 7.

Respondent’s evidentiary objections: The following objections are sustained – 1, 2, 3, 4, 5, 6, 8, 11, 13, 15, 16, 17, 18, 20, 21, 22 and 23. The following objections are sustained in part – 7 (as to “except . . . ever occurring”), 14 (as to the first sentence and “she had to address”), 19 (as to “whereas . . . job descriptions”). The following objections are overruled – 9, 10 (the entire declaration is not inadmissible) and 12.

[The court notes Petitioner’s generalized responses to the objections are insufficient to overcome the objections. For example, Petitioner’s declaration does not authenticate Exhibits 7, 12, 17 or 18. The Huron Report appears to be from a third-party vendor as asserted by Respondent. Eisenberg does not provide the foundation for statements such as, “Mata as CIO did not attend the Executive meeting unless the DC invited him to share . . .” or “Mata’s position as CIO had no authority outside of the Educational Services Center . . . .” Finally, to the extent Petitioner’s declaration contains argument (or his legal opinion), such argument does not belong in a declaration. Petitioner also has no foundation to attest to the scope of responsibilities of others.]

Respondent is composed of nine colleges and a central office or headquarters. (AR 1686.)[2] Respondent’s employees fall into two categories—academic or classified. (AR 1710.) Classified employees (i.e., the non-academic employees) are governed by a merit system. (AR 1710.) A merit-based personnel system provides for the selection, retention and promotion of classified employees on the basis of individual merit and fitness demonstrated by competitive examinations and performance. (See Ed. Code[3] §§ 88076, 88080, 88081.)

Respondent is required to have a separate personnel commission. (See § 88063.) Respondent’s personnel commission (PC) is charged with developing and maintaining a merit system for its classified employees including procedures to be followed regarding applications, examinations, eligibility for positions, appointments, promotions, demotions, transfers, dismissals, resignations, layoffs, reemployment, vacations, leaves of absence, compensation, job analyses and specifications, performance evaluations, public advertisement of examinations, and rejection of unfit applicants. (§§ 88076, 88080-81.)

Section 88091, subdivision (a) generally requires that positions for classified employees be filled from eligibility lists. “Appointments shall be made from the eligible having the first three ranks on the list who are ready and willing to accept the position.” (§ 88091, subd. (a).)

Certain classified employees may be categorized as senior classified administrative employees. (§ 88901, subd. (c)(1).) “A ‘senior classified administrative employee’ means a classified employee who acts as the chief business, fiscal, facilities, or information technology adviser or administrator for the district chancellor or superintendent or college president, as determined by the governing board and certified by the personnel commission.” (Ibid.) A senior classified administrative employee (SCAE) position may be filled without reference to eligibility lists or rankings on them. (Ibid.) That is, SCAE positions are not subject to competitive and promotional examination requirements like ordinary classified positions.

On or about March 20, 2003, the PC adopted its Rule 519 and designated, among other positions, Respondent’s CIO position as a SCAE. (AR 1711, 1714-17.) Rule 519 has been revised over the years. (AR 1711, 1718-43.) Nonetheless, since the adoption of Rule 519, Respondent’s CIO position has always been designated as a SCAE. (AR 1711.)

Pursuant to Rule 519, if Respondent “elects not to continue the employment of a [SCAE], the employee shall be given written notice thereof by [Respondent] at least 60 days in advance of his/her release from employment.” (AR 4.) Any SCAE who looses his or her position “shall have the right to return to a position in a classification he or she previously occupied . . . .” (§ 88091, subd. (c)(2).)

In December 2007, Respondent hired Petitioner as CIO on a provisional basis. (AR 411, 1188-89.) In December 2008, Petitioner obtained the CIO position on non-provisional basis. (AR 1712-13.) The job description for the CIO states that the CIO “[p]lans, directs, and administers information systems to support the instructional, student information, human resources, and financial management operations of the District.” (AR 1365-68.)

Petitioner advised the Deputy Chancellor Adriana Barrera on information technology (IT) issues, until she retired in 2016. Petitioner thereafter advised Vice Chancellor of Fiscal Services, Dr. Robert Miller, on IT issues. (AR 1019-36) Petitioner also made presentations to the Chancellor’s cabinet on issues related to IT. (AR 930, 935-36 1019-36, 1149-50, 1167-70 1349.) Petitioner was not a member of the Chancellor’s cabinet, executive team, or district administration, or invited to retreats. (Id.; 763) Petitioner led Respondent’s IT department which had between 50-75 employees, at various times, and a budget of approximately $12 million. (AR 1220, 1365-68, 1343-1344.) Petitioner had direct hiring authority over IT personnel at Respondent’s headquarters. (AR 1165-66, 1151-54.) The IT department worked with various colleges by implementing and maintaining student/academic, financial, supply chain, human resources, and administrative information technology applications, including their underlying technical systems and infrastructure. (AR 136-37) Petitioner was involved in several IT related projects while working for Respondent. (AR 1272-73, 1306-1320.)

On July 31, 2018, Miller notified Petitioner by letter of Respondent’s decision to discontinue Petitioner’s employment in the capacity of CIO effective September 29, 2018, 60 days later. (AR 1687.) After Respondent removed Petitioner as CIO, Petitioner returned to his former and lower position of CISM, the position he held before his CIO position. (AR 1687.) Petitioner is currently employed with Respondent as a Technology Project Manager, and has held that position since July 2019. (AR 1184.)

On May 3, 2019, Petitioner initiated this action. Petitioner seeks a writ of mandate and alleges causes of action for breach of contract, whistleblower retaliation and violations of the Education Code. On August 8, 2019, the court stayed Petitioner’s civil claims (causes of action 2, 3 and 4).

There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present and ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper

where . . . the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“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. 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. 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 (2013) 214 Cal.App.4th 643, 654.)

The court independently reviews legal questions, including questions of statutory construction. (City of Alhambra v. County of Los Angeles (2012) 55 Cal.4th 707, 718.) To the extent “purely legal issues involve the interpretation of a statute an administrative agency is responsible for enforcing, [the court] exercise[s] [its] independent judgment, ‘taking into account and respecting the agency's interpretation of its meaning.’ ” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343; see also Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 11.)

A petitioner “bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

Petitioner contends despite Respondent and the PC labeling his CIO position as a SCAE, the actual duties and authority of his CIO position are inconsistent with a SCAE categorization as described by section 88091, subdivision (c)(2). Petitioner asserts his position as CIO is not exempted is a classified position for which he was entitled to “permanent status” subject to Education Code protections such as notice and a hearing prior to demotion—not merely a 60-day notice under Rule 519. (See §§ 88121, 88123, 88124.) For example, as a permanent classified employee,[4] Petitioner could not be demoted or removed from his position as CIO except for reasonable cause, notice of alleged reasonable cause, and an opportunity to answer and appeal Respondent’s finding of reasonable cause. (§§ 88121,[5] 88123,[6] 88124.[7])

Petitioner argues treating his as a SCAE in his position of CIO would exalt form over substance, which goes against the maxim of jurisprudence that “the law respects form less than substance.” (Civ. Code § 3528.) Petitioner also contends the Legislature demonstrated its intention that job titles should not control the substantive reality of the proper classification for a position. Petitioner points to section 88004 for support:

“Every position not defined by the regulations of the board of governors as an academic position and not specifically exempted from the classified service according to the provisions of Section 88003 or 88076 shall be classified as required by those sections and shall be a part of the classified service. These positions may not be designated as academic by the governing board of a district nor shall the assignment of a title to any such a position remove the position from the classified service.” (§ 88004 [emphasis added].)

The court finds Petitioner’s reliance on section 88004 misplaced. There is no question Petitioner is a classified employee. There is no dispute Petitioner held a position in the classified service when he served in his position as CIO—he was not in an academic position, and sections 88003 and 88076 did not exempt the CIO position from classified service. Section 88004 categorizes positions as academic and/or exempt (by statute) from classified service or classified. According to the Legislature, a job label may not remove the position from classified service.

From the court’s perspective, section 88004 does not relate to section 88901, subdivision (c)(2)’s authorization to fill certain classified positions through other than competitive and promotional examinations. Such SCAE positions “shall continue to be afforded all of the rights, benefits, and burdens of any other classified employee service in the regular service of the district, except that he or she shall not attain permanent status in that administrative position.” (§ 88901, subd. (c)(2) [emphasis added].)

In addition to section 8004, Petitioner cites to several cases to support the notion courts have recognized substance over form when considering job positions and have reclassified individuals based on the duties performed. In those cases, however, the courts have turned to statutes defining specific issues to support the reclassification.

For example, in Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 827, a part-time schoolteacher sought to be reclassified as a probationary employee, and not as a temporary teacher, because it would have entitled him to a pretermination notice and a hearing. The Balen court found the petitioner should have been classified as a probationary instructor because he “[met] the statutory prerequisites for probationary employment,” which entitled him to a pretermination notice and hearing. (Id. at 828.) In addition, the Court found the petitioner’s continuity of service with the school would create the expectation of employment that the Legislature sought to protect from arbitrary dismissal. (Id. at 827.)

In Neily v. Manhattan Beach Unified School Dist. (2011) 192 Cal.App.4th 187, a former school district employee sought to compel the district to reinstate him as a high school baseball coach. The Neily court analyzed whether the district had a mandatory duty to classify the petitioner as a “probationary” employee, which afforded more protections than being classified as a “temporary employee.” The court found, by looking at the Education Code, the petitioner was specifically defined as a temporary employee, and could not be classified as a probationary employee. (Id. at 195.)

In Boxx v. Board of Administration (1980) 114 Cal.App.3d 79, respondents, a retirement system and housing authority, sought to overturn the finding that the petitioner, a patrolman, should be classified as a "local safety member,” which entitled the patrolman to retirement benefits. The Boxx court found the retirement board intended to cover all of its employees, but, by mutual error, misclassified the “patrolmen.” (Id. at 81.) Crucial to the Boxx’s court ruling was petitioner’s duties met the definition of “local policeman” in the Government Code which qualified him as a “local safety member.”[8]

In contrast to those cases relied upon by Petitioner, section 88091, subdivision (c)(2) expressly provides the authority to the governing board and the PC to “determine[]” SCAE positions. The Legislature did not create specific criteria to define SCAE positions. The Legislature broadly instructs a SCAE employee “acts as the chief business, fiscal, facilities, or information technology advisor or administrator for the district chancellor or superintendent or a college president, as determined by the governing board and certified by the personnel commission.” (§ 88091, subd. (c)(2).)

The cases relied upon by Petitioner provide guidance on resolution of this dispute. Issues concerning classification of employees turn on relevant statutes, and whether an employee falls within a specific statutory definition.

Petitioner asserts Respondent misclassified him. Petitioner believes his position as CIO was a non-SCAE position, and as such he is entitled to “permanent status” with protections associated with permanent status such as pre-termination/demotion written notice, demotion based on cause, a full administrative hearing and appeal rights.

Petitioner does not discuss his history and his appointment to the CIO position. As noted earlier, all vacancies for classified service “shall be filled pursuant to” the merit-based selection process based on competitive and promotional examination and scoring. (§ 88091, subd. (a).) Applicants are placed on eligibility lists “in the order of their relative merit as determined by competitive examination.” (Ibid.) “Appointments shall be made from the eligible having the first three ranks on the list who are ready and willing to accept the position.” (Ibid.) Classified employees who obtain their position through the merit-based selection process of examination and ranking may become permanent employees.

Employees who obtain a position through the merit-based process may become permanent status employees. By contrast, SCAE employees who are exempted from the merit-based selection process—that is, do not obtain the position in a competitive context—“shall not attain permanent status in that administrative process.” (Id. at subd. (c)(2).) SCAE positions are filled based solely on the determination by “the district chancellor or superintendent and the personnel commission.” (Ibid.) A candidate for a SCAE position need not be on any eligibility list or within “the first three ranks” on such a list. (Id. at subd. (a).)

Petitioner did not obtain his position as CIO through the merit-based selection process. He was selected from an unranked list of candidates. (AR 1712.) Petitioner did not have to compete for the position within the merit-based selection process because the CIO process had been designed by the PC as a SCAE position.

Much of Petitioner’s argument before the court is based on his claim his title did not reflect the services he performed. That is, while he had the title of CIO, he actually did not serve as the “chief . . . information technology adviser or administrator for the district chancellor or superintendent or a college president . . . .” (Id. at subd. (c)(1).)

Petitioner provides evidence to support his position. For example, Petitioner attests he did not directly report to the permanent Chancellor, was not a member of the Chancellor’s cabinet, executive team, or district administration. Petitioner points out he was never listed on the Chancellor’s “official listing of Board and District Administration,” never had one-on-one meetings with the Chancellor, was excluded from important Chancellor-level IT decisions. Petitioner explains the Chancellor never invited him to retreats, and he made presentations to the cabinet or executive team only when he was invited. In addition, Petitioner reports unlike other “chief” positions, his CIO position did not have a car allowance. Petitioner asserts the CIO job description is different from those of chiefs and is more similar to that of a director. Petitioner notes he also did not serve as an advisor or administrator for college presidents.[9]

“A ‘senior classified administrative employee’ means a classified employee who acts as the chief business, fiscal, facilities, or information technology adviser or administrator for the district chancellor or superintendent or a college president, as determined by the governing board and certified by the personnel commission.”

Petitioner contends as his duties were not that of a true chief of IT, he cannot be a SCAE without “permanent status.”

“The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)

Petitioner requests the court find, in direct conflict with the PC’s decision, Petitioner’s position as CIO was not actually the CIO. Petitioner uses section 88091, subdivision (c)(1) and suggests the court should read into the statute specific duties or standards for a CIO to qualify as a SCAE. The Legislature left what constitutes a CIO to be “determined by the governing board and certified by the personnel commission.” (§ 88901, subd. (c)(1).) The court cannot read duties into the statute where the Legislature did not specifically define the duties and left districts and personnel commissions to decide the issue in the specific context of their institutions. The Legislature did not use a “one size fits all” approach. (Purdy v. Teachers' Retirement Board, supra, 113 Cal.App.3d at 953. [“An intent that finds no expression in the words of the statute cannot be found to exist. The courts may not speculate that the legislature meant something other than what it said. Nor may they rewrite a statute to make it express an intention not expressed therein.”])

On March 20, 2003, the PC adopted Rule 519 and designated the CIO position as a SCAE. While Petitioner believes his duties were different from other “chiefs”—and they may very well have been—there is no requirement under section 88091 that Petitioner’s duties be comparable of other chiefs. Nothing required Respondent to impose on Petitioner the same duties as other chiefs. Petitioner performed those duties required of him as listed in the job description for the CIO position—nothing suggests otherwise.

Additionally, section 88091 does not require the CIO to report directly to a chancellor or college presidents. In fact, the Legislature through sections 88009 and 88095 specifically empower the governing board of a district to prescribe the duties for each position, including the CIO. Here, Respondent’s job description for the CIO position specifically provides the CIO will receive “[g]eneral direction from the Chancellor or his/her designee.” (AR 411 [emphasis added].)

Petitioner also does not suggest how he can obtain “permanent status” after having obtained his position outside of the merit-based selection process. Section 88091, subdivision (c)(2) expressly provides a position exempt from the competitive examination process “shall not attain permanent status in that administrative position.” Finding that Petitioner, who was exempt from section 88091, subdivision (a)’s process of filling the vacant CIO position, is entitled to permanent status—regardless of his job duties—would violate the Legislature’s directive that a position filled “from an unranked list of eligible persons” found “qualified for the position[] as determined by the district chancellor or superintendent and the personnel commission” “shall not attain permanent status in that administrative subdivision.” (§ 88091, subd. (c)(2).)

Based on the foregoing, the court finds that Petitioner was properly treated as a SCAE and was not entitled to a pre-termination/demotion notice and hearing. Petitioner did not have “permanent status,” and Respondent’s 60-day notice to remove him from his position as CIO was proper. Respondent’s decision to treat Petitioner as a SCAE was not arbitrary, capricious or entirely lacking in evidentiary support.

[1] It appears Petitioner filed the same evidentiary objections three times (August 8, 9 and 10). The court could discern no difference in the filings.

[2] For some reason, the parties could not agree on how to label the evidence before the court. While the record is not an administrative record per se, the court nonetheless refers to it as AR consistent with its practice in these matters.

[3] All undesignated sections are to this code.

[4] An SCAE employee cannot obtain permanent status in the SCAE position. “Any person employed in an administrative position exempted under this subdivision shall continue to be afforded all of the rights, benefits, and burdens of any other classified employee serving in the regular service of the district, except that he or she shall not attain permanent status in that administrative position.” (§ 88091(c)(2).)

[5] Section 88121 provides: “No person in the permanent classified service shall be demoted or removed except for reasonable cause designated by rule of the [PC] as detrimental to the efficiency of service. This section shall not be construed to prevent layoffs for lack of work or lack of funds.”

[6] Section 88123 provides in part: “For reasonable causes, an employee may be suspended without pay for not more than 30 days, except as provided in this section, or may be demoted or dismissed. In such case, the personnel director, shall within 10 days of the suspension, demotion, or dismissal, file written charges with the commission and give to the employee or deposit in the United States registered mail with postage prepaid, addressed to the employee at his or her last known place of address, a copy of the charges. . . .”

[7] Section 88124 provides in part: “Any employee in the permanent classified service who has been suspended, demoted, or dismissed may appeal to the commission within 14 days after receipt of a copy of the written charges by filing a written answer to the charges. Such an appeal is not available to an employee who is not in the permanent classified service except as provided by rules of the [PC].”

[8] The court finds Petitioner’s reliance on Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491, 500 is unavailing as the case defines “employees” within the context of Government Code section 20506. In addition, Purdy v. Teachers' Retirement Board (1980) 113 Cal.App.3d 942, addresses the board’s misinterpretation of the Education Code.

[9] Respondent provides evidence otherwise. (See Opposition 11:12-13:4.) For example, Petitioner testified he was the head of Respondent’s IT department. (AR 1264-1265.) He also testified he had 50 to 60 employees reporting to him and an annual budget of around $12 million. (AR 1343-1344.) The LinkedIn profile Petitioner created for himself indicated as CIO he “leads the Information Technology Department [at Respondent] with approximately 75 employees and operational and capital budgets of 12 to 126 million dollars.” (AR 1344, 1345-1347.)

[10] In light of the court’s finding Petitioner is not entitled to a finding he has permanent status and Respondent properly treated him as a SCAE, there is no need to analyze Respondent’s statute of limitations and laches defenses.