James Ward v. CDCR

8/2/2019 James Ward v. CDCR

1/21

JAMES WARDv.

CALIFORNIA DEPARTMENT OFCORRECTIONS AND REHABILITATION

Complaint Alleging Illegally VoidedAppointment

Case No. 09-2437E

RESOLUTION

WHEREAS, the State Personnel Board has considered carefully the findings of

fact and Proposed Decision filed by the Administrative Law Judge in the above matter;

and

WHEREAS, by said Proposed Decision granting Appellants Complaint is hereby

REJECTED.

IT IS RESOLVED AND ORDERED that the Board will decide the case itself,

upon the record, and the matter shall be set for written and/or oral argument before the

Board. The parties right to argue other matters is not limited, but the Board invites

particular discussion on the following issue:

1. Was the Chief Dentist position advertised as a full-timepermanent position?

2. Was Appellant eligible to be appointed to a permanent, fulltime position as Chief Dentist?

3. Once the Chief Dentist position became available to be filledas permanent, full-time, was CDCR obligated to advertise forthat position?

/ / /

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James WardCase No. 09-2437E

Page 2 of 2

4. What authority, if any, did the ISP Personnel Specialist,Delegated Testing Officer/AGPA, and/or the RespondentsRegional Dental Director, IV, have to modify the advertisedChief Dentist, Limited Term classification to a permanent

position?

5. Is the NOPA legally controlling over the verbalrepresentations made to Appellant by Respondentsrepresentatives that the Chief Dentist, Limited Termclassification was only temporary and that Appellant wasactually being hired to a permanent, full-time position?

* * * * *

The foregoing Resolution was made and adopted by the State Personnel Board

in Case No. 09-2437E at its meeting on September 20, 2011, as reflected in the record

of the meeting and Board minutes.

DATE: September 20, 2011 /s/ SUZANNE M. AMBROSESUZANNE M. AMBROSEExecutive Officer


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JAMES WARDv.

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND REHABILITATION

Complaint Alleging Illegally VoidedAppointment

Case No. 09-2437E

Proposed Decision

STATEMENT OF THE CASE

This matter came on regularly for hearing before Jeanne R. Wolfe, Administrative

Law Judge (ALJ), State Personnel Board (SPB), on June 20 and 21, 2011, in Rancho

Cucamonga, California. The matter was submitted after oral closing arguments on June

21, 2011.

Complainant, James Ward (Complainant), was present and represented by

Wendell Phillips, Attorney, Phillips & Rickards, Attorneys at Law.

Respondent, California Department of Corrections and Rehabilitation,

(Respondent, Department, or CDCR) was represented by Michael J. Early, Deputy

Attorney General, California Department of Justice, and Julie A. Hawpe, Staff Services

Manager, Institutional Personnel Officer, Ironwood State Prison (ISP), CDCR.

Complainant contends he was appointed to the full-time, permanent position of

Chief Dentist, ISP, and that CDCR subsequently changed that appointment to a limited-

term position without first seeking the approval of the SPB, as required by Government

Code section 19257.5. Complainant does not dispute that he read and signed the

Notice of Personnel Action (the NOPA) stating that the Chief Dentist appointment was in

a full-time, limited-term capacity. Complainant argues that he was improperly induced


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to his detriment to sign the NOPA based upon representations by Respondent.

Complainant also alleges that Respondent failed to officially return him to a full-time

permanent position as Chief Dentist, ISP, and instead terminated his employment on

July 2, 2009, claiming the limited-term position had expired. Complainant seeks

reinstatement to a full-time permanent position as Chief Dentist1 with all back pay and

benefits he is owed.

Respondent denies that Complainant was appointed to a full-time permanent

position as Chief Dentist, since Complainant voluntarily signed the NOPA which clearly

states that his appointment to Chief Dentist was in a full-time, limited-term capacity.

Respondent further denies anyone acting on behalf of Respondent improperly induced

Complainant to sign the NOPA. Accordingly, Respondent contends that Complainants

complaint should be dismissed.

ISSUES

The issues to be resolved are:

1. Was Complainant appointed to a full-time, permanent position as Chief

Dentist?

2. If Complainant was appointed to a full-time, permanent position as Chief

Dentist, did Respondent unlawfully void the appointment?

3. If Respondent unlawfully voided the appointment, what remedies, if any, is

Appellant entitled to under Susan McGuire(1991) SPB Dec. 91-05?

1During the evidentiary hearing, Appellant acknowledged that the Chief Dentist classification no longer

exists. As a result, Appellant does not object to being returned to the current equivalent position of ChiefDentist, which he believes is Supervising Dentist.


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FINDINGS OF FACT

A preponderance of the evidence proves the following facts:

1. Complainant filled out the Examination and/or Employment Application for

Dentist (Correctional Facility). Complainant signed and dated the

application on April 1, 2006.

2. The Employment Inquiry shows that Complainant was successful in the

examination for Chief Dentist, Correctional Facility, full time, temporary for

12 months, located at ISP. Complainant signed and dated the Employment

Inquiry on November 13, 2006.

3. Yvonne Olivas, Delegated Testing Officer/AGPA, ISP (Olivas), sent a letter to

Complainant dated December 1, 2006, 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. Complainant thereafter interviewed for the Chief Dentist position.

During the interview, the appointment type of the position was not discussed.

4. On April 30, 2007, Complainant spoke with Olivas on the telephone. On

behalf of ISP, she offered him the position of Chief Dentist. She also told him

that the position was permanent. She asked him if he accepted the position,

and Complainant replied absolutely. Complainant believed she had the

authority to make the offer on behalf of ISP.

5. Olivas sent a letter to Complainant dated April 30, 2007, stating that ISP was

offering you the position of Chief Dentist, C.F., permanent full time,


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contingent upon approval of your medical examination, Tuberculosis (TB) test

results and live scan fingerprints.

6. The Health Questionnaire (With Physicians Report) was completed and

signed by Complainants examining physician on May 21, 2007. The form

shows that the appointment type for Complainant is permanent. Someone

other than Complainant marked the appointment type of the position as

permanent.

7. Complainant settled his affairs in San Diego. He and his wife both quit their

respective jobs, and they bought a home in Blythe. They thereafter moved to

their home in Blythe.

8. On July 2, 2007, Complainant began working at ISP as the Chief Dentist. He

believed his position was a full-time permanent position. He also filled out

numerous personnel forms, including the Personnel Identification Card

Information. Under Type of Appointment (Check One), there is a check

mark in the box next to permanent. Someone other than Complainant had

checked the box next to permanent. Subsequently, at an unknown date,

someone other than Complainant scribbled over the original check mark and

checked the box next to limited term.

9. Between April 30, 2007 and July 18, 2007, no one told Complainant that the

appointment type of the Chief Dentist position he had accepted had been

changed from a full-time permanent position to a full-time, limited-term

position for 24 months.


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10. A NOPA was issued on July 18, 2007, for Complainants appointment to Chief

Dentist. The NOPA shows the classification title 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 states:

THIS IS YOUR OFFICAL APPOINTMENT AS SUBMITTED BYYOUR DEPARTMENT AND ENTERED ON YOUR OFFICIALEMPLOYMENT HISTORY RECORD. PLEASE SIGN ANDRETURN THE ORIGINAL TO YOUR DEPARTMENTALPERSONNEL OFFICE WITHIN 10 WORKING DAYS.

YOUR SIGNATURE CERTIFIES THAT TO THE BEST OF YOUR

KNOWLEDGE YOU HAVE PROVIDED YOUR DEPARTMENTWITH COMPLETE AND FACTUAL INFORMATION NECESSARYFOR A PROPER APPOINTMENT; AND THAT YOU INTEND TOSERVE IN THIS CLASS, TENURE, LOCATION AND OTHERELEMENTS OF THIS APPOINTMENT AS REFLECTED ON THISDOCUMENT; AND YOU WILL MAKE A REASONABLE ATTEMPTTO SEEK CORRECTION OF ANY ASPECT OF THISAPPOINTMENT THAT YOU KNOW IS ILLEGAL.

THE INFORMATION AS SHOWN ON THIS DOCUMENT ISASSUMED CORRECT UNLESS YOU NOTIFY YOUR

DEPARTMENTAL PERSONNEL OFFICE IN WRITING OFERRORS WITHIN 30 CALENDAR DAYS FROM ISSUE DATE.ANY CHANGE IN SALARY OR CIVIL SERVICE STATUS ISSUBJECT TO STATE PERSONNEL BOARD APPROVAL.

11. Complainant received a copy of the NOPA on or about July 18, 2007.

Complainant was surprised that the NOPA showed that the Chief Dentist

position was a limited-term position. Complainant did not fully understand the

meaning of limited-term. He went to the Personnel Office and spoke with an

ISP Personnel Specialist named Sherry.2 He asked her what the form meant.

She told him that to be paid he would need to sign the NOPA. She also

2Sherrys last name was not established at hearing. Therefore, she is referred to as Sherry or Personnel

Specialist.


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referred him to Lynda Mixon (Mixon), the Respondents Regional Dental

Director, IV, to whom Complainant reported.

12. Complainant thereafter spoke with Mixon, telling her he did not like the

change in the appointment status of the Chief Dentist position from

permanent to limited term. She 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 had previously held the position of Chief Dentist at ISP, was

in an acting position at headquarters, but once her acting position was made

permanent, then Complainants position would be rolled over to a

permanent status. Complainant thus understood that the limited-term status

of his appointment to Chief Dentist was a temporary matter that would be

rolled over to a permanent appointment once Martinezs acting position was

converted to a permanent position.

13. Based upon what Mixon and Sherry told Complainant, Complainant, on July

25, 2007, signed and dated the NOPA with the belief that once Martinezs

acting position became permanent his Chief Dentist position would become

permanent.

14. On August 9, 2007, Martinezs position in headquarters was made

permanent; thus, the Chief Dentist position at ISP was able to become

permanent as well. Respondent, however, maintained the Chief Dentist

position as a limited-term position.

15. Complainant learned that Martinezs position had been made permanent. He

contacted Mixon to find out when the Chief Dentist position he held at ISP


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would be made permanent, and Mixon responded that she thought that

change had already happened. She also told him she would speak with C.

Park3 (Park), D.D.S., Acting Deputy Statewide Dental Director. Complainant

did not hear back from Mixon or Park.

16. On October 3, 2008, Mixon sent an email to Complainant informing him that

the Dental Program had decided to hold interviews for the permanent Chief

Dentist position at ISP. The email also states 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. The email ends, We look forward to you applying

for the permanent CD (PFT) position.

17. While Complainant did not agree with the decision not to make him the

permanent Chief Dentist, he submitted an application and interviewed for the

position. After the interview, Mixon told Complainant he was the most

qualified candidate for the position and that after his name was approved on

the state level his name would be submitted to the Health Care Manager,

John Culton (Culton), M.D., for approval.

18. Culton did not sign Complainants hiring package. Following the expiration

date of the hiring package, Complainant spoke with Culton. Culton informed

Complainant that he had failed the supervisory check because there was a

pending equal employment opportunity (EEO) complaint against him.4

3Parks first name was not established at hearing.

4The EEO complaint stemmed from circumstances in which Complainant recommended that a dentist not

be passed on probation. Complainant denies that he ever discriminated in any way against the dentist.


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19. The ISP Chief Dentist, limited-term position expired on July 1, 2009. On that

same date, Complainant was terminated from state service on the basis that

his limited-term position had expired.

PRINCIPLES OF LAW AND ANALYSIS

An appointment means the offer to and acceptance by a person of a position in

the State civil service in accordance with this part. (Gov. Code, 18525.) Once an

appointment has been made, only the SPB may void the appointment. The statutory

authority granting this power to the SPB extends for one year:

When the appointment of any employee has been made and acceptedin good faith, but where such appointment would not have been madebut for some mistake of law or fact, which if known to the parties wouldhave rendered the appointment unlawful when made, the Board maydeclare the appointment void from the beginning if such action is takenwithin one year after the appointment.

(Gov. Code, 19257.5.)

The SPB has recognized that [o]n occasion, after an individual has accepted an

offer of appointment, something is discovered or occurs prior to the agreed upon start

date that makes the appointment impractical or illegal. (SPB Memorandum to All State

Agencies and Employee Organizations, Aug. 1, 1990 [SPB 1990 Memorandum].)5 In

that same memorandum, the SPB recommends the approach a department should take

in such an occurrence:

Before a decision not to appoint the individual is made, the appointingpower or his or her designee should consult with the departmentalpersonnel analyst in the Affirmative Action and Merit Oversight Division(AAMOD). Consideration must be given to what, if any, actions the persontook (e.g., quit a job) as a result of relying on the offer, as well as thecircumstances that make the appointment impractical, before deciding

5These types of memorandums, which are distributed to state agencies, are informally referred to as SPB

pinkies.


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upon a course of action. In addition, the affected individual should benotified as soon as possible that there is a problem in order that he/shemay take, or refrain from taking, actions in order to minimize the impact ofa decision not to appoint.

(Ibid.)

The SPB August 1990 Memorandum also points out that [m]any things could

happen between the time an offer of appointment has been accepted and the agreed

upon start date which might warrant not appointing the individual. (SPB 1990

Memorandum.) For example: A person with a mandatory right of return to the class of

appointment must be reinstated and there are no other vacancies in the class. (Ibid.)

Regardless of whether appointment documents have beenprocessed or all the necessary approvals have occurred, anappointment occurs when an individual enters upon the dutiesfollowing an offer and acceptance. That person has an appointmentand can not be involuntarily removed from that appointment exceptby those means provided by law (e.g., adverse action, rejectionfrom probation, layoff, medical termination, etc.). This includesappointments where it is discovered that the person does not havethe required civil service eligibility; such appointments can be

terminated (voided) only through Personnel Board staff action.

(Ibid., emphasis added.)

The proper procedures for voiding an unlawful appointment are set forth in

California Code of Regulations, title 2, section 266. Section 266 provides, in pertinent

part:

When the executive officer determines that an appointment is

unlawful, the executive officer shall determine the good faith of theappointing power and the employee under Rule 8 and shall takecorrective action up to and including voiding the appointment,provided that:

(a) No corrective action shall be taken on any appointment whichhas been in effect for one year or longer if both the appointingpower and the employee acted in good faith; . . . .


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In Susan McGuire(1991) SPB Dec. No. 91-05 [McGuire], the appellant accepted

an appointment as a full-time firefighter and as a permanent, intermittent correctional

officer. She agreed she would be paid at straight time. Subsequently, the department

learned that under the Fair Labor Standards Act (FLSA) the department was required to

pay her overtime for the hours she worked as a correctional officer. Within one year of

the appointment to a permanent, intermittent correctional officer the department voided

her appointment, but never filed anything with the SPB requesting that the appointment

be voided. The appellant appealed her termination. The department argued that the

appointment, although accepted in good faith, would have been unlawful when made;

therefore, its decision to void the appointment should stand.

The SPB disagreed, finding that the department, rather than taking unilateral

action to void the appointment, should have filed a request to void the appointment with

the Executive Officer of the SPB pursuant to statutory and regulatory mandates. The

SPB further found that it lacked the authority to declare the appointment void since

more than one year had lapsed since the appointment. Consequently, the SPB set

aside the Departments attempt to revoke the appellants appointment and reinstated

the appellant to her position as a permanent, intermittent correctional officer with back

pay and benefits, as appropriate.

In this case, on April 30, 2007, CDCR offered to Complainant, and Complainant

accepted, a full-time, permanent position as Chief Dentist, contingent upon approval of

Complainants medical examination, Tuberculosis test results, and live scan fingerprints.

Thereafter, Complainant successfully satisfied those contingencies, and began working

at ISP on July 2, 2007. When Complainant began working at ISP on July 2, 2007, he


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had a reasonable, good faith belief that his position as Chief Dentist was in a full-time,

permanent capacity based upon the conduct and actions of Respondent preceding and

on July 2, 2007.

The afore-stated circumstances establish that on July 2, 2007, Complainant was

appointed to Chief Dentist in a full-time permanent capacity. The language of the SPB

1990 Memorandum, although not precedential but advisory in nature, supports this

conclusion: Regardless of whether appointment documents have been processed or

all the necessary approvals have occurred, an appointment occurs when an individual

enters upon the duties following an offer and acceptance.

The analysis does not stop there, however. It was not until on or about July 18,

2007, when Complainant first received and read the NOPA, that he learned CDCR did

not intend to make his appointment to Chief Dentist a full-time permanent position, but

rather a full-time, limited-term position. After speaking with a staff member in

Respondents personnel office (Sherry) and the Regional Dental Director (Mixon),

Complainant signed the NOPA on July 25, 2007, believing he had to sign the NOPA to

be paid and believing what Mixon had told him: the limited-term nature of the Chief

Dentist position would be rolled over into a permanent position once Martinezs acting

position in headquarters was made permanent. Notwithstanding Complainants belief,

the NOPA itself states that Complainants appointment to Chief Dentist was a full-time,

limited-term position, not a full-time permanent position, with an effective date of July 2,

2007, Complainants start date at ISP.

The significant question in this case does not concern the SPBs power over

appointments, that power is clear: Only the SPB may void an appointment. Instead,


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this case concerns whether Complainant was appointed to a full-time, limited-term

position as Chief Dentist by virtue of his decision to sign the NOPA, which backdated

the effective date of the limited-term appointment to July 2, 2007. Stated another way,

does the NOPA legally supersede and thereby nullify Complainants July 2, 2007,

appointment to a full-time, permanent position as Chief Dentist?

At hearing, Complainant did not dispute that if there had been mutual and

voluntary agreement of the parties, the NOPA would be the controlling document

establishing the status of Complainants appointment to Chief Dentist. Complainant

contended, however, that the NOPA is not the legally operative document because

Complainant was improperly induced to his detriment to sign the NOPA based upon the

statements and representations of Mixon and Sherry. Respondent contended that

Complainants decision to sign the NOPA was voluntary, and therefore, the NOPA is the

legally operative document controlling the legal status of Complainants appointment.

Complainants argument hinges upon principles of equitable estoppel, a doctrine

the SPB recognized in Marc Shelton(1994) SPB Dec. 94-19, 26-27 (Shelton), can be

applicable to state agencies, albeit the appellant in Shelton failed to establish that

equitable estoppel should be applied. (See Feduniak v. State Coastal Commission

(2007) 148 Cal.App.4th 1346, 1359 [Government not immune from doctrine of equitable

estoppel, and it may be applied where justice and right require it, except if doing so

would effectively nullify a strong rule of policy].)6 The SPB states in Shelton:

6At the hearing, no argument was made that applying the doctrine of equitable estoppel in this case

would effectively nullify a strong rule of policy.


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In Lentz v. McMahon (1989) 49 Cal.3d 393, 399, the California Supreme Court

noted that:

[t]he modern doctrine of equitable estoppel is a descendant of theancient doctrine that 'if a representation be made to another whodeals upon the faith of it, the former must make the representationgood if he knew or was bound to know it to be false.' (citationsomitted).

The Supreme Court went on to enumerate the elements of modern estoppel:

Generally speaking, four elements must be present ...: (1) the partyto be estopped must be apprised of the facts; (2) he must intendthat his conduct shall be acted upon, or must so act that the party

asserting the estoppel had a right to believe it was so intended; (3)the other party must be ignorant of the true state of facts; and (4)he must rely upon the conduct to his injury. (citations omitted). Id.

The Evidence Code codifies an aspect of equitable estoppel as well: Whenever

a party has, by his own statement or conduct, intentionally and deliberately led another

to believe a particular thing true and to act upon such belief, he is not, in any litigation

arising out of such statement or conduct, permitted to contradict it. (Evid. Code,

623.) While this statutory language uses language of intent, the courts have found that

equitable estoppel has not been narrowly defined to mean fraud. (Hoopes v. Dolan

(2008) 168 Cal.App.4th 146, 161-162 [Hoopes].) The First District Court of Appeal in

Hoopesexplains:

Equitable estoppel has been applied in a broader context [thanfraud], where the party to be estopped has engaged in inequitable

conduct, induced another party to suffer a disadvantage, and thensought to exploit the disadvantage. (City of Hollister, supra, at p.488, 81 Cal.Rptr.3d 72.) Broadly speaking, estoppel refers less toa doctrine than to a conceptual pattern, first articulated in the courtsof equity, which has come to pervade our law. When it issuccessfully invoked, the court in effect closes its ears to a pointafact, argument, claim, or defenseon the ground that to permit itsassertion would be intolerably unfair. It is commonly said that the


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party to be estopped, having conducted himself in manner X, willnot be heard to assert Y. (Id. at p. 486, 81 Cal.Rptr.3d 72, fn.omitted.)

(Id. at p. 162.)

Applying the estoppel factors as stated in Shelton, it can be reasonably assumed

that Sherry, who worked in Respondents personnel office as a Personnel Specialist,

knew and understood the consequences for an employee who does not sign a NOPA.

It can also be reasonably assumed that Mixon, based upon her high ranking position as

a Regional Dental Director, knew the facts surrounding Complainants appointment to

the Chief Dentist position.

As to the second element of equitable estoppel, Mixons subjective intent was not

established. Nonetheless, Complainant had a reasonable, good faith belief that, given

her position and statements to him, she intended for him to sign the NOPA with the

understanding that the limited-term status of the Chief Dentist position would be

converted to a permanent status once Martinezs acting position in headquarters was

made permanent.

Regarding the aspect of detrimental reliance, which is essential to the equitable

estoppel analysis, Complainant sold his home in San Diego, quit his job, as did his wife,

and moved to Blythe based upon a reasonable, good faith belief that CDCR had

appointed him as Chief Dentist on a full-time permanent basis.7 Upon receiving the

7CDCR, for its part, between approximately April 30, 2007, and July 2, 2007, failed to demonstrate due

diligence regarding Complainants hiring. Had CDCR acted with due diligence, the department could haveand should have known that Martinezs acting position had not yet been classified to a permanentposition. Had the department acted with due diligence in this regard, it could have informed Complainantthat the Chief Dentist position was not full time and permanent, as a departments representative had toldhim verbally and in writing. CDCR, not Complainant, was in the best position to know the status ofMartinezs appointment.


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NOPA, Complainant reasonably and understandably sought information and guidance

from Respondents Personnel Office and from a superior.8 Complainant relied to his

detriment upon Mixonsand the Personnel Specialists representations when he signed

the NOPA: he was misled to believe that he must sign the NOPA to be paid, and he

was misled to believe that his appointment as Chief Dentist in a limited-term capacity

would roll over to a permanent position once Martinezs acting position was converted to

a permanent position. A change in the appointment status never occurred and

Complainant was terminated from state service on the grounds that his limited-term

appointment had expired.

This leaves the final question of whether Complainant was ignorant of the true

state of the facts surrounding a full-time, limited-term appointment to Chief Dentist when

he signed the NOPA. While not required for the application of equitable estoppel, it is

worth noting that no evidence was introduced that Mixon and/or Sherrys statements

were made with an intent to deceive or defraud Complainant to sign the NOPA.

Additionally, no evidence established that Mixon or anyone else (1) threatened or

coerced Complainant to sign the NOPA; (2) attempted to dissuade Complainant from

reading the NOPA; or (3) attempted to dissuade Complainant from seeking outside

counsel or advice on whether to sign the NOPA or not.

It is also important to consider that the representations of Mixon and Sherry did

not contradict the terms of the NOPA; in particular, Mixons statement that

Complainants appointment would roll over into a permanent position after Martinezs

8While Complainant was in the professional ranks, this was nonetheless his first employment with the

state, thus he lacked experience and knowledge of the states civil service systema system that can beconsidered complex and confusing even for experienced civil servants.


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acting position was made permanent was, in essence, an independent promise

separate from the NOPA, since that promise was not included as a term of appointment

in the NOPA.

Further, the NOPA itself must also be considered. Complainant read and signed

the NOPA and affixed a date. The NOPA notified Complainant of its legal

consequences, including the back dating of the effective date of his appointment to July

2, 2007, the full-time, limited-term status of the appointment, and the presumption that

the NOPA is correct absent a written notification to Respondents Personnel Office.

Additionally, the NOPA is not lengthy to read. The language is clearly stated, not

hidden or inserted in small print.

Still, Mixon described the only problem with moving Complainant to permanent

status of the Chief Dentist position was Martinezs acting position being made

permanent. Mixon therefore counseled Complainant not to worry. A reasonable person

would have understood Mixons representations as Complainant did, particularly given

her position as a Regional Dental Director: signing the NOPA would not hinder or

prevent him from eventually being placed in a full-time, permanent position as Chief

Dentist once Martinezs acting position was changed to a permanent position.

As a result of Mixons express representations and her minimizing and glossing

over the legal effect of the NOPA, Complainant was left ignorant of a key material fact:

circumstances other than those involving Martinez could prevent his position as Chief

Dentist from being changed to full time and permanent. In fact, thats what happened.

Based upon the totality of the circumstances, those equitable estoppel elements

and considerations discussed in Shelton and Hoopes have been established here.


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Respondent is thus estopped from relying upon the NOPA as proof that Complainant

voluntarily agreed to an appointment as Chief Dentist on a full-time, limited-term basis.

The overwhelming weight of the evidence, as discussed above, established that on July

2, 2007, Complainants appointment was as Chief Dentist on a full-time, permanent

basis.

Consequently, to void the July 2, 2007, permanent appointment to Chief Dentist,

Respondent was required within one year of the appointment to seek the permission of

the SPB. Respondent failed to do so. Given the lapse of time, the SPB now lacks

authority to void the July 2, 2007, permanent appointment

Accordingly, Complainants complaint is granted. Pursuant to McQuire,

Respondents attempt by way of the NOPA to void Complainants appointment to Chief

Dentist on a full time, permanent basis is set aside. Complainant is reinstated to state

service effective on July 2, 2007, in the classification of Chief Dentist, full time and

permanent; if the Chief Dentist classification no longer exists, Complainant is to be

reinstated to state service in the classification of Chief Dentist, full time and permanent,

effective on July 2, 2007, and reclassified, on the appropriate effective date, to the

classification which Complainant would have been entitled to hold had he continued in

civil service without any break in civil service. Complainant is also entitled to back pay

and benefits as appropriate under Government Code section 19584.

/ / /

/ / /

/ / /

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CONCLUSIONS OF LAW

1. Complainant established he was appointed to a full-time, permanent position as

Chief Dentist;

2. Respondent unlawfully voided Complainants appointment. Therefore,

Respondents attempt by way of the NOPA to void Complainants appointment to

Chief Dentist on a full-time, permanent basis is set aside; and

3. Complainant is reinstated to state service in his classification as Chief Dentist,

full time and permanent, effective on July 2, 2007; if the Chief Dentist

classification no longer exists, Complainant is to be reinstated to state service in

the classification of Chief Dentist, full time and permanent, effective on July 2,

2007, and reclassified, on the appropriate effective date, to the classification

which Complainant would have been entitled to hold had he continued in civil

service without any break in civil service. Complainant is also entitled to back

pay, benefits, and interest, if any, as appropriate under Government Code

section 19584.

ORDER

Complainants complaint is GRANTED. Respondents attempt to void

Complainants appointment to Chief Dentist on a full-time, permanent basis is set aside,

and Complainant is reinstated to state service, as set forth herein under Conclusions of

Law.

As appropriate under Government Code section 19584, Respondent is to pay

Complainant all back pay, benefits, and interest, if any, that would have accrued to him

had he not been dismissed. The matter is referred to the Chief Administrative Law


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Judge and shall be set for hearing upon written request by either party, within one year

of the effective date of the SPB's Decision, should the parties be unable to agree upon

the salary, benefits, and interest, if any, due Complainant under the provisions of

Government Code section 19584.

DATED: September 8, 2011

________________________

Jeanne R. WolfeAdministrative Law JudgeState Personnel Board

James Ward v. CDCR

Documents

Transcript of James Ward v. CDCR