Judge Mitchell L. Beckloff, Case Number: 22STCP00565, Date: 2023-12-13 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP00565, Date: 2023-12-13 Tentative Ruling

Petitioner, Nathan Lehman, seeks a writ of mandate directing Respondent, the Los Angeles County Civil Service Commission (Commission), “to set aside its decision . . . that it does not have jurisdiction to adjudicate Petitioner’s appeal . . . .” Petitioner attempted to appeal the decision of Real Party in Interest, the County of Los Angeles (through its Director of Personnel) that Petitioner did not meet the eligibility requirements for the civil service examination for the position of Supervising Program Analyst, Probation. (Pet. Prayer ¶ 1.) The County opposes the petition.

In December 2016, the County’s probation department hired Petitioner as a Research Analyst II, Behavioral Sciences. (AR 762.) While employed as a Research Analyst II, on December 6, 2017, Petitioner applied to take the civil service examination for the position of Supervising Program Analyst, Probation. (AR 558-563). On April 18, 2018, the probation department determined Petitioner did not meet the eligibility requirements to take the examination and rejected his application. (AR 565-566.) Petitioner appealed the decision to the County’s human resources department. (AR 568-572.) On November 15, 2018, the Director of Personnel denied the appeal. (AR 658-659.) The Director of Personnel advised Petitioner he had “exhausted [his] appeal rights to the Director of Personnel under Civil Service Rule 6.” (AR 659.)

On December 14, 2018, Petitioner timely requested an appeal hearing with the Commission challenging the Director of Personnel’s decision affirming the probation department’s decision he did not qualify to take the Supervising Program Analyst, Probation examination. (AR 661-665.) On August 14, 2019, the Commission granted Petitioner’s request for a hearing. (AR 185.) The Commission’s hearing officer thereafter conducted an appeal hearing on February 13 and 14, 2020 and May 3, 2021. (AR 390.)

Among other evidence, the hearing officer heard testimony from Petitioner. During his testimony, Petitioner reported he had accepted a position of Health Program Analyst I with the County’s Department of Public Health on May 16, 2018 while his appeal was “winding its way through the system.” (AR 393 [hearing officer’s report], 760 [Petitioner’s testimony].)

On or about July 16, 2021, the hearing officer submitted his report recommending the Commission find the probation department’s decision “was appropriate” and deny Petitioner’s appeal. (AR 404.)

Petitioner filed objections to the findings of fact and conclusions of law and the recommendation of the hearing officer. (AR 409-442.) At its meeting on January 12, 2022, the Commission overruled Petitioner’s objections and also voted to deny Petitioner ’s appeal on the ground the Commission lacked jurisdiction to entertain his appeal. (AR 1039.)

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

“ ‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ . . . Interpretation of a statute or regulation is a question of law subject to independent review.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

The petition raises purely legal questions concerning the Commission’s jurisdiction and the proper construction of the Commission rules.[1] “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.)

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.) The amount of weight to accord an agency's construction is “situational,” and depends upon the circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.)

Petitioner contends the Commission erred when it concluded it lacks jurisdiction to hear Petitioner’s appeal. Petitioner asserts he has a right to a hearing before the Commission pursuant to Civil Service Rules (the Rules) 4.01, 6.04(A), and 7.20.

The County contends unless a discrimination claim is alleged under Rule 25, the Commission lacks jurisdiction over decisions by the Department of Human Resources (DHR) and the Director of Personnel (the Director) concerning an applicant’s qualifications for an examination.

“The Commission's jurisdiction derives from the Charter of the County of Los Angeles. ‘A civil service commission created by charter has only the special and limited jurisdiction expressly authorized by the charter.’ ” (Monsivaiz v. Los Angeles County Service Commission (2015) 236 Cal.App.4th 236, 240; see also Hunter v. Los Angeles Civil Service Com. (2002) 102 Cal.App.4th 191, 194.)

As discussed in more detail below, the Charter vests the Commission with jurisdiction over two types of appeals: (1) appeals alleging discrimination; and (2) appeals concerning discharge or reduction of permanent employees. (See Charter §§ 35(4) and 35(6); County of Los Angeles Dept. of Public Social Services v. Civil Service Com. of Los Angeles County (2019) 35 Cal.App.5th 273, 284-285 [Hoa].)

The County’s Board of Supervisors has also "prescribe[d] and adopt[ed]" the Rules "which . . . have the force and effect of law." (Rule 1.01.)[2] Among others (discussed in the analysis below), the following Rules are relevant here:

A. Administer the civil service system in accordance with these Civil Service Rules;

7. Pass upon all questions relating to the eligibility of applicants, the admissibility of applicants to the examination, extensions of time, and all questions arising during the course of an examination, subject to appeal to the commission as provided in these Rules. . . .

Any employee or applicant for employment may petition for a hearing before the commission who is:

A. Adversely affected by any action or decision of the director of personnel concerning which discrimination is alleged as provided in Rule 25;

B. Adversely affected by any action or decision of the commission made without notice to and opportunity for such person to be heard other than a commission decision denying a petition for hearing;

No person in the classified service or seeking admission thereto shall be appointed, reduced or removed, or in any way favored or discriminated against in employment or opportunity for employment because of race, color, religion, sex, physical handicap, medical condition, marital status, age, national origin or citizenship, ancestry, political opinions or affiliations, organizational membership or affiliation, or other non-merit factors, any of which are not substantially related to successful performance of the duties of the position. ‘Non-merit factors’ are those factors that relate exclusively to a personal or social characteristic or trait and are not substantially related to successful performance of the duties of the position. Any person who appeals alleging discrimination based on a non-merit factor must name the specific non-merit factor(s) on which discrimination is alleged to be based. No hearing shall be granted nor evidence heard relative to discrimination based on unspecified non-merit factors.

The director of personnel, subject to the right of any person aggrieved to appeal to the commission as provided in Rule 4, may refuse to accept an application or to examine an applicant, or may withhold the name of a person from the eligible list or an eligible from certification, or after notice may remove the name of an eligible from the eligible list: A. Who does not meet the requirements set forth in these Rules or in the bulletin announcing the examination; . . . .

Rule 11.05 entitled “Restoration to certification,” states in pertinent part:

When the name of a person has been withheld from an eligible list or from certification, or has been removed from the list, it may be placed on such list or restored thereto by the director of personnel or by the commission on appeal taken within 10 business days after notice of the decision of the director of personnel, only under the following circumstances: . . . C. Where the withholding or removal was for a reason stated in Rule 6.04 and such action was improper or the defect has since been cured.[3]

If the applicant believes an error has been made in the application of the written-test scoring key, or in the rating given him/her on any part of the examination, or that any other error has been made, except such as could have been objected to during the key-copy inspection period, the applicant may, during the final 10-day period referred to in Rule 7.19, make a protest in writing stating specifically where an error has been made; provided, however, that if there has been a key-copy inspection period, no protest may be made against the written questions and key answers which would have been made during the key-copy inspection period. Each protest shall be in writing and on forms provided by the director of personnel, shall give specific facts and reasons to support the protest, and shall include authoritative references or opinions of recognized experts where such exist. No protest may be made after the 10-day period. Upon receipt of a written protest or request for re-scoring or re-rating, a review of the protest shall be made by the director of personnel, who shall pass on all such protests or requests within 60 days of the date of such protest or request and make any necessary corrections in grades and ratings. If the director of personnel does not render a decision within such time period, the appellant may, at his/her option, deem this a denial and proceed with an appeal to the commission. Any person aggrieved may appeal to the commission for the rulings of the director of personnel pursuant to Rule 4, within 10 business days of the notice of such rulings. Notwithstanding the foregoing, in a situation where a successful appeal will not result in the appellant moving from one group (as defined in Rule 11.01) to a higher group, the appellant will not proceed with the appeal to the civil service commission.

The Commission Did Not Have Jurisdiction Over Petitioner’s Appeal Pursuant to the Charter

The starting point for analysis of the Commission’s jurisdiction is the Charter. As the Court of Appeal has explained:

Section 34 of the Los Angeles County Charter provides that the Commission “shall serve as an appellate body in accordance with the provisions of Sections 35(4) and 35(6) of this article and as provided in the Civil Service Rules. [¶] The Commission shall propose and, after a public hearing, adopt and amend rules to govern its own proceedings.” Section 35(4) of the Los Angeles County Charter requires the Board of Supervisors to adopt rules to provide for procedures for appeal of allegations of discrimination.’ (Zuniga, supra, 137 Cal.App.4th at p. 1259, 40 Cal.Rptr.3d 863.) Section 35(6) of the Charter requires that the Rules provide for “Civil Service Commission hearings on appeals of discharges and reductions of permanent employees.” Thus, as is evident from the plain language of the Charter, the Commission's special and limited jurisdiction encompasses only appeals alleging discrimination—including ‘discrimination based on . . . handicap” (Charter, § 35(4))—and appeals concerning discharge or reduction of permanent employees (Charter, § 35(6)). (Hoa, supra, 35 Cal.App.5th at 284-285.)

Petitioner does not address Hoa or related Court of Appeal decisions suggesting the Commission’s jurisdiction is limited to these two issues (allegations of discrimination and discharge or reduction of permanent employees). Petitioner has not identified any other Charter provision that afforded him a right to appeal before the Commission for the Director’s eligibility decision. While Petitioner argues that various Rules afforded him a right to appeal, Petitioner does not explain why the court should interpret the Rules to grant jurisdiction to the Commission that is more expansive than that authorized by the Charter and Court of Appeal decisions.

Furthermore, even if the Rules could provide appeal rights that exceed those stated in the Charter, Petitioner’s jurisdictional arguments are not persuasive, as discussed below.

Petitioner does not contend he is entitled to an appeal before the Commission under Rule 4.01(A) or 4.01(B). Petitioner concedes he was not “[a]dversely affected by any action or decision of the director of personnel concerning which discrimination is alleged as provided in Rule 25.” (Rule 4.01(A); see Opening Brief 4, fn. 2.) Petitioner also does not suggest he was “[a]dversely affected by any action or decision of the commission made without notice to and opportunity for such person to be heard other than a commission decision denying a petition for hearing.” (Rule 4.01(B).)

Petitioner argues the Commission had jurisdiction over his appeal pursuant to Rule 4.01(C). Rule 4.01(C) provides for a hearing if the employee or applicant is “[o]therwise entitled to a hearing under the Charter or these Rules.” Rule 4.01(C) does not provide any independent basis for jurisdiction, but instead generally refers to hearing rights in unspecified parts of the Rules or County Charter.[4]

Petitioner contends he is entitled to an appeal before the Commission pursuant to Rule 6.04. Rule 6.04 provides, in pertinent part, that “[t]he director of personnel, subject to the right of any person aggrieved to appeal to the commission as provided in Rule 4, may refuse to accept an application or to examine an applicant . . : A. Who does not meet the requirements set forth in these Rules or in the bulletin announcing the examination; . . . .” (Emphasis added.)

Petitioner focuses on the words “subject to the right of any person aggrieved to appeal to the commission” in Rule 6.04. Petitioner argues the Director may “refuse to accept an application” and “any person aggrieved” by the Director’s decision has the “right” “to appeal to the commission . . . .” (Rule 6.04.) The rule then instructs the right to appeal is “as provided in Rule 4.” (Rule 6.04.) Rule 4 then instructs “[a]ny . . . applicant for employment may petition for a hearing before the commission . . . .” (Rule 4.01.) The aggrieved person’s appeal “right” requires a petition which may result in the Commisssion granting a hearing.

Petitioner’s interpretation follows the plain language of Rule 6.04 and Rule 4.01. Because Petitioner was “aggrieved” by the Director’s “refus[al] to accept [his] application,” Petitioner has the “right” “to appeal to the commission as provided in Rule 4.” (Rule 6.04.) Rule 4.01 instructs Petitioner “may petition for a hearing before the commission” because Rule 6.04 entitles him to such a hearing because he is aggrieved by the Director’s decision.[5]

The County disagrees arguing Petitioner ignores Rule 4.01(A). (Opposition 11:19.) The County asserts the Commission’s authority extends only to decisions where discrimination is alleged. (Opposition 11:19-22.) The County’s position is not persuasive.

Petitioner concedes discrimination is not at issue here. He does not claim the Director discriminated against him as described in Rule 25. Moreover, Rule 4.01 is not limited to discrimination. Rule 4.01B also confers jurisdiction where due process issues are alleged. Rule 4.01(C) confers jurisdiction on the Commission where an individual is “[o]therwise entitled to a hearing under . . . these Rules.”

The County contends “neither clause (in Rule 4.01(C) and/or Rule 6.04) provides an independent basis for jurisdiction. Both refer to other provisions.” (Opposition 12:1-4.) Rule 6.04, however, expressly provides an appeal right of “any person aggrieved” by a Director’s decision to reject an application. To pursuant the appeal, the “person aggrieved” must proceed pursuant to Rule 4.01 and “petition for a hearing before the commission . . . .” (Rule 4.01.) The “person aggrieved” is expressly “entitled to a hearing under” Rule 6.04.

In interpreting a statute, the court “may neither insert language which has been omitted nor ignore language which has been inserted.” (People v. National Automobile and Casualty Ins. Co. (2002) 98 Cal.App.4th 277, 282.) The County’s interpretation reads language into Rule 6.04 that does not exist. The County would limit the “person aggrieved” language (i.e., insert language) in the rule to claims of discrimination and due process.

The court acknowledges Rule 6.07, entitled “Appeals,” which states in part: “any person aggrieved by any ruling of the director of personnel concerning . . . the eligibility or disqualification of applicants, or the withholding of name from certification; and who believes such action was based on consideration of non-merit factor(s) as set forth in Rule 25, may appeal to the commission in writing within 15 business days as provided in Rule 4.”[6] (Emphasis added.) Rule 6.07 extends the time from 10 to 15 days for an appeal of the Director’s eligibility determination based on discrimination. (See Rule 4.05(B).) Neither Rule 6.04 nor Rule 4 provide the time within which a petition must be filed—Rule 6.07 is about timing.

Finally, the County’s argument Petitioner’s “broad reading of Commission jurisdiction runs contrary to the Monsivaiz, Zuniga, Hunter and Hoa line of cases, just to name a few” is unpersuasive. None of the cases referenced address the factual circumstances here.

While Hoa largely focused on the Charter, Hoa also recognizes the Rules can and do confer jurisdiction. (Hoa, supra, 35 Cal.App.5th at 285. [“. . . no Charter provision or Rule permitting the Commission to hear appeals . . . .”]) Zuniga v. Los Angeles County Civil Service Com. (2006) 137 Cal.App.4th 1255, 1259 addressed the definition of “employee” for purposes of Rule 4.01 and has no relevance to the jurisdictional dispute here. Hunter v. Los Angeles County Civil Service Com. (2002) 102 Cal.App.4th 191, 195 explained the Rules do not establish and “procedure for appeal from a failure to promote.” Finally, Monsivaiz v. Los Angeles County Civil Service Com. (2015) 236 Cal.App.4th 236, 241 found “a deceased former employee does not fit within the description of ‘employee’ under the Commission’s rules” and dismissed a writ proceeding challenging the Commission’s decision for an employee who had died during the pending writ proceeding.[7]

Based on the foregoing, the court finds Rule 6.04 and Rule 4.01 conferred jurisdiction on the Commission to hear Petitioner’s appeal as a “person aggrieved” by the Director’s eligibility determination.

The Commission Did Not Have Jurisdiction Over Petitioner’s Appeal Pursuant to Rule 7.20

Petitioner also argues he was “authorized to appeal to the Commission pursuant to Rule 7.20, as Lehman was a person aggrieved by the ruling of the Director of Personnel denying his appeal.” (Opening Brief 3:22-23.)[8] The County asserts Petitioner “takes the language of Rule 7.20 out of context” and “Rule 7 relates to the examination process; [Petitioner] never took the SPA examination.” (Opposition 10:24-26.) The County’s interpretation of Rule 7.20 is more persuasive.

Rule 7 is entitled “Competitive Examinations” and includes detailed rules pertaining to the conduct of civil service examinations. Rule 7.20 is one of those rules and is entitled “Protests against ratings to the director of personnel.” Rule 7.20, which is quoted in full above, authorizes an appeal for an applicant who “believes an error has been made in the application of the written-test scoring key, or in the rating given him/her on any part of the examination, or that any other error has been made.” (Emphasis added.)

While the emphasized language might apply to the Director’s eligibility decision for purposes of qualifying to take the examination, reading the rule in that manner would ignore context. Rule 7 addresses errors in the examination process—not eligibility. When interpreting a statute, the court must construe the statute to achieve harmony among its parts. (People v. Hull (1991) 1 Cal. 4th 266, 272.)

Since Petitioner did not take the examination at issue, Rule 7.20 does not apply to him.

Petitioner’s interpretation of Rule 7.20 violates well-established rules of statutory construction. Rule 7.20 must be interpreted in context of Rule 7 as a whole. The detailed examination rules within Rule 7 and also the titles of such rules show that Rule 7 only pertains to the examination process. Further, Rule 7.20 is titled “Protests against ratings to the director of personnel” and is reasonably interpreted to apply only to examination errors.

For example, the protest procedure in Rule 7.20 only applies “during the final 10-day period referred to in Rule 7.19.” If a protest is successful, the Director may “make any necessary corrections in grades and ratings.” Further, “in a situation where a successful appeal will not result in the appellant moving from one group (as defined in Rule 11.01) to a higher group, the appellant will not proceed with the appeal to the civil service commission.” These procedures necessarily only apply to the examination process and make no sense if applied to an eligibility decision.

The principle of ejusdem generis also applies to Rule 7.20. “Ejusdem generis ‘instructs that ‘when a statute contains a list or catalogue of items, a court should determine the meaning of

each by reference to the others, giving preference to an interpretation that uniformly treats items similar in nature and scope.’ ” (In re Corrine W. (2009) 45 Cal.4th 522, 531.) “Ejusdem generis applies whether specific words follow general words in a statute or vice versa. In either event, the general term or category is ‘restricted to those things that are similar to those which are enumerated specifically.’ ” (Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 827.)

Rule 7.20 authorizes a protest “against ratings” in the following three circumstances: “[1] If the applicant believes an error has been made in the application of the written-test scoring key, [2] or in the rating given him/her on any part of the examination, or [3] that any other error has been made, except such as could have been objected to during the key-copy inspection period . . . .” The first two listed categories are specific and clearly pertain to errors in the examination process. Pursuant to ejusdem generis, the third category, which is general in nature, should be interpreted similarly in nature and scope as the first and second categories. Petitioner’s interpretation violates this rule of construction because it would expand the list of items that may be protested under Rule 7.20 to include eligibility decisions, which is a category dissimilar from the first two specifically enumerated items in the list. As discussed above, other provisions of Rule 7, and the titles of such Rules, also provide context for the proper interpretation of the third, general category of protest listed in Rule 7.20 and do not support Petitioner’s interpretation.

For these reasons, Petitioner’s reliance on Rule 7.20 is misplaced. That rule provides no basis for Commission jurisdiction over Petitioner’s appeal of an eligibility decision of the Director.

The County contends the petition is moot because: (1) the Commission “cannot provide [Petitioner] with any form of statutorily authorized relief” (Opposition 13:13-24); (2) “[e]ven assuming that the Commission had jurisdiction, [Petitioner] fails to show how it could reopen a closed examination and expired promotional list, or how it could simply deem him qualified” (Opposition 13:20-21); and (3) Petitioner’s “objections to the Commission were overruled and thus even if the Commission had jurisdiction, [Petitioner’s] instant Petition could only serve to reinstate the Commission’s adoption of the hearing officer’s report.” (Opposition 14:11-13.)

“California courts will decide only justiciable controversies. [Citations.] The concept of justiciability is a tenet of common law jurisprudence and embodies ‘[t]he principle that courts will not entertain an action which is not founded on an actual controversy. . . .’ ” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.) “A case is considered moot when ‘the question addressed was at one time a live issue in the case,’

but has been deprived of life ‘because of events occurring after the judicial process was initiated.’ ” (Id. at 1574.) “The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.” (Ibid.)

Here, if the court found the Commission erred when it dismissed Petitioner’s appeal on jurisdictional grounds, the court could issue a writ directing the Commission to decide the appeal on the merits and determine the appropriate remedy, if any. Accordingly, to the extent the petition challenges the Commission’s decision on jurisdictional grounds, the writ petition technically is not moot.[9]

Because the Commission determined it lacked jurisdiction over Petitioner’s appeal, its decision to overrule Petitioner’s objections does not show the Commission intended to adopt the hearing officer’s report as to the merits of Petitioner’s appeal. The County’s remaining “mootness” arguments go to the merits of Petitioner’s appeal and the appropriate remedy—issues to be determined by the Commission.

Petitioner asserts the Commission “previously rejected” the County’s jurisdictional argument when it granted the petition for hearing. That the Commission initially exercised jurisdiction over the appeal is not dispositive. Jurisdictional issues may be raised at any time, including for the first time on appeal. (Hoa, supra, 35 Cal.App.5th at 284.) As Petitioner ultimately concedes in reply, the “Commission’s initial discussion of jurisdiction at its meeting on August 14, 2019 and its referral of the appeal to a hearing officer does not create Commission jurisdiction.” (Reply 5:14-16.)

Petitioner also asserts the County’s contention Petitioner lacks standing because he transferred to the Department of Public Health is a “distraction”; and the Commission has authority to fashion an equitable remedy and appoint Petitioner to the position of Supervising Program Analyst, Probation. However, as Petitioner acknowledges in reply, these are merits-based issues that only become relevant if the Commission had jurisdiction over the appeal.[10]

The County also briefly asserts Petitioner “failed to exhaust his administrative and/or judicial remedies, in a timely fashion, jurisdictionally barring this action.” (Opposition 14:15-16.) The County does not provide any legal analysis in support of its exhaustion defense and it does not explain how the authorities it cites are relevant here. Given the limited briefing, the court finds the County’s exhaustion defense unpersuasive. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862-863 [argument must be supported by reasoned legal analysis and discussion of authority].)

Based on the foregoing, the court finds the Commission erred when it concluded it lacked jurisdiction over Petitioner’s appeal.

[1] Because the petition raises purely legal issues of statutory construction, the standard of review is identical under administrative and traditional mandate. Accordingly, the court need not address the County’s position the petition is governed by Code of Civil Procedure section 1085. (See Opposition 13, fn. 2.)

[2] On its own motion, the court takes judicial notice of the Rules.

[3] Petitioner cites Rule 11.05 but he does not contend that such Rule is relevant to whether Commission had jurisdiction in this case. (OB 11:14-16.) The court has quoted Rule 11.05 for context, as it refers to Rule 6.04.

[4] As noted, Petitioner does not argue or show that he was entitled to an appeal under any provisions of the Charter. Thus, under the circumstances, Rule 4.01(C) would read: “Any employee or applicant for employment may petition for a hearing before the commission who is: . . . C. Otherwise entitled to a hearing under . . . these Rules.”

[5] The Commission is not required under the Rules to grant a hearing request. (Rule 4.02(B).)

[6] While the County claims Petitioner’s interpretation of the relevant rules renders Rule 6.07 “surplusage” (Opposition 12:7), the County’s interpretation does exactly that. If an appeal under Rule 6.04 is limited to discrimination, Rule 6.07’s limitation to discrimination is unnecessary.

[7] The court acknowledges the language in Monsivaiz v. Los Angeles County Civil Service Com. indicating the jurisdiction of the Commission is limited to claims of discrimination and appeals related to discharges and reductions. The statement is dicta because the issue before the court turned on the definition of employee. There was no question in the case the Commission had jurisdiction to consider the employee’s termination.

[8] Petitioner quotes the opinion of a Deputy County Counsel given during a hearing before the Commission. The Deputy County Counsel advised the Commission it had jurisdiction over Petitioner’s appeal pursuant to Rule 7.20. (Opening Brief 4:1-12 and fn. 3.) Ultimately, the Commission disagreed with the legal opinion. Petitioner has not cited any legal authority suggesting the Deputy County Counsel’s view of Rule 7.20 is entitled to deference or is somehow binding.

[9] For the reasons argued by the County, the court is skeptical of how the Commission could fashion an appropriate remedy under the circumstances of this case. Petitioner has taken a new position in a different department with the County and the examination at issue has long since closed.

[10] The Commission did not find it lacked jurisdiction because Petitioner had transferred to the Department of Public Health. (See AR 1039.) Petitioner remained a County employee after his transfer.