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Richard W. Katzberg v. Chancellor

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


February 15, 2012

RICHARD W. KATZBERG, PLAINTIFF AND APPELLANT,
v.
CHANCELLOR, UNIVERSITY OF CALIFORNIA, DAVIS, DEFENDANT AND RESPONDENT.

(Super. Ct. No. 34-2008-80000090CUWMGDS)

The opinion of the court was delivered by: Duarte , J.

Katzberg v. Chancellor, UC Davis

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Dr. Richard Katzberg appeals from a judgment denying his petition for writ of mandate against the Chancellor of the University of California at Davis Medical School. Following the Chancellor's denial of his privilege and tenure grievance, Katzberg sought by writ of mandate to compel the Chancellor (1) to restore his protected academic time of two days per week, and (2) to recalculate his compensation in line with his view that certain state funds allocated to pay a portion of his base salary should be credited to him in determining his entitlement to a productivity bonus. Katzberg also sought a judicial declaration that the Chancellor's decision violated University policies.

As we will explain, we conclude that the Chancellor's decision to deny Katzberg's privilege and tenure grievance was supported by substantial evidence and did not violate University policies. Accordingly, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I

Job Description

A. Katzberg's Position

Katzberg is a professor in the Department of Radiology (Department) at the University of California at Davis School of Medicine (UC Davis). He was hired in 1991 and served as Chair of the Department until 1996. Katzberg's responsibilities include teaching medical students both in the classroom and in clinical settings, serving as thesis advisor for graduate students, conducting research and publishing books and articles, serving on the editorial boards of medical journals, serving on national and local committees dealing with medical and health care issues, and performing clinical work as a radiologist at the UC Davis Medical Center.

There are four professor designations within the Department: regular faculty, in-residence faculty, salaried clinical faculty, and clinical X faculty. Because Katzberg is a "regular" professor, as opposed to an in-residence, salaried clinical, or clinical X professor,*fn1 his base salary is funded by "19900 funds," which are a combination of state funds, educational fees, and University general funds. These funds are designated to "support instruction, research, and related administration."

B. Reduction in Academic Time

When Katzberg was hired as Chair of the Department, the goal was to provide regular professors with two academic days per week devoted exclusively to teaching and research. This goal was never achieved; however, regular professors were "more likely" than clinical professors to receive two academic days "some weeks." In 1992, Katzberg implemented a policy of providing 1.5 academic days per week. In 1996, academic time was decreased to one day per week. However, individual faculty were permitted to apply for additional academic time for an approved laboratory research project or secure a grant for additional funding. In 1998, Dr. James Brunberg became the Department Chair (Chair) and continued the policy of providing only one protected academic day per week for all professors, including regular professors, who were by definition receiving 19900 funds.

C. Compensation Plan

We need not describe in detail the many complexities of the Department's compensation plan; the following overview will suffice.

A faculty member's total compensation equals the sum of three components: X, Y, and Z. The X component, also referred to as "total base salary," consists of "regular salary (as defined by academic rank and step)" plus "a differential determined by the base scale for the Academic Program Unit (APU) to which the faculty member belongs." For example, during the 2001-2002 fiscal year, Katzberg's rank as professor at step 7 in the APU for radiologists performing clinical film interpretation entitled him to $125,900 in regular salary plus an additional $81,800 determined by the base scale for the APU, for a total base salary of $207,700. In other words, step 7 amounted to a salary multiplier of roughly 1.65.*fn2

The Y component is "[a]additional compensation negotiated with the Department Chair . . . in order to meet market rates for salary within a specialty/discipline." The Chair begins by making a conservative estimate of funds available for the "Y pool," which is the amount of money available for the academic year after total base salary (X) obligations and all

departmental expenses have been met. Once the amount of the Y pool is determined, the Chair negotiates a Y component with each faculty member that will divide the Y pool based on "[t]he quantity and quality of a faculty member's total contribution, including quantity and quality of teaching, research, professional service and university/public service." For example, going back to the 2001-2002 fiscal year, Katzberg's additional negotiated compensation came to $43,055. Thus, Katzberg's total compensation (X Y) for that year came to $251,775.

The Z component is "[o]ptional incentive/bonus compensation." If funds remain after all expenses have been paid, including total base salary (X) and additional compensation (Y) obligations, then 40 percent of the surplus accumulates in the Department reserves and the remaining 60 percent is divided among the faculty based on a specified formula. However, in order to qualify for this bonus compensation, a faculty member's total compensation (X Y) plus benefits cost cannot be more than 1.5 times the net amount of revenue the faculty member brings into the Department minus allocated expenses per faculty member. For the 2001-2002 fiscal year, Katzberg did not receive a bonus because his total compensation ($251,775) plus benefits cost ($24,347) totaled $276,122, an amount that was more than 1.5 times his net revenue minus allocated expenses ($159,537).

II

Grievances

A. 2003 Salary Grievance

In February 2003, Katzberg filed a salary grievance regarding his denial of a year-end (Z) bonus for the 2001-2002 fiscal year. According to Katzberg, because state funds comprised roughly $120,000 of his base salary as a regular professor, this amount should be "backed out" of the equation determining his entitlement to the bonus. Indeed, if $120,000 is subtracted from his total compensation plus benefits cost, the "adjusted" figure becomes $156,122, which is less than 1.5 times his net revenue minus allocated expenses, entitling him to Z compensation in the amount of $36,151 based on the factors specified in the compensation plan for dividing the Z pool.

The basis for Katzberg's claim that state funds should have been subtracted from his total compensation in determining his entitlement to the bonus is the following language, under the title "Allocation of Income," in the 2001-2002 compensation plan: "State funds assigned by the School of Medicine to cover the X portion of salary for tenured faculty positions will be allocated to the individuals assigned those funds." According to Katzberg's reasoning, because these state funds must be allocated to him, they must also be considered revenue brought into the Department for purposes of calculating his entitlement to Z compensation.

The Chair (Dr. Brunberg) disagreed, explaining: "The result of this line of reasoning would be that the Departmental Guidelines governing the [Y] and Z components of salary were intended to grant a windfall benefit only to those faculty receiving 19900 funds for the X component of their salaries." In order to "more clearly define" how these 19900 funds are allocated, the Department amended the 2002-2003 compensation plan to reflect that these funds do not count towards determining a faculty member's entitlement to Z compensation. This amendment provides: "State funds assigned by the School of Medicine to cover the X portion of salary are included as faculty income." In other words, while 19900 funds are used to cover Katzberg's regular salary, these funds are designated as "faculty income," as opposed to revenue Katzberg personally brought into the Department for purposes of determining his entitlement to a year-end (Z) bonus.

After reviewing the salary grievance, the Compensation Advisory Committee determined that denial of Z compensation to Katzberg was "equitable and fair" and recommended that the grievance be denied. The Faculty Executive Committee endorsed this recommendation. The Dean then reviewed both faculty committee determinations and denied the grievance.

B. 2004 Privilege and Tenure Grievance

In January 2004, Katzberg filed a privilege and tenure grievance asserting that the Chair (1) misappropriated his 19900 funds by designating them "faculty income" and pooling them with all departmental income, (2) improperly denied him a year-end (Z) bonus, (3) reduced academic time reserved for research and teaching from two days per week to one day per week, and (4) disregarded the University mandate to engage in shared governance with faculty members.

The grievance was submitted to the Privilege and Tenure Committee (Committee), which appointed an investigative subcommittee to determine whether a formal evidentiary hearing was warranted. The investigative subcommittee filed a report concluding that Katzberg's grievance should be brought to a hearing.*fn3

In February 2007, after reviewing the investigative subcommittee's report and holding a hearing, the Committee's Hearings Subcommittee (Subcommittee) issued a recommendation to the Chancellor. The Subcommittee first recommended that Katzberg "should be allowed to devote two academic days to research and teaching each week." According to the Subcommittee, the reduction in academic time from two days per week to one day per week has "undermined Dr. Katzberg's ability to function as a scholar, a researcher, and a scientist," in violation of certain provisions of the University's Academic Personnel Manual (APM) specifying that teaching and research "are 'clearly' the 'primary activities' of faculty members and must receive the largest commitment of energy and effort," and despite the fact that "the State has allocated 19900 funds to pay Dr. Katzberg's salary so that he can conduct research." Acknowledging that the reduction in academic time was prompted by the financial needs of the Department, the Subcommittee explained its view that such a reduction would be equitable for non-regular professors whose salaries are fully funded by clinical revenues. However, according to the Subcommittee, "[b]y holding [regular] faculty members to the same revenue-generating rules as [non-regular] faculty members, the Department of Radiology not only hinders [regular] faculty members from fully performing their research duties as 19900 researchers, but also essentially applies 19900 monies to purposes for which they were not intended." The Subcommittee further asserted that the reduction in academic time "shifted the nature of Dr. Katzberg's job functions away from what he agreed to when he initially took the position with the University."

The Subcommittee also recommended that the Department "should develop a new method to determine how [regular] faculty members can earn productivity bonuses." As the Subcommittee explained its reasoning, the amendment to the 2002-2003 compensation plan resulted in the entire amount of Katzberg's base salary, including the portion funded by 19900 funds, being considered a "draw down" from department revenue when determining his eligibility for a year-end (Z) bonus. According to the Subcommittee: "[T]he present system does not work as a 'productivity' bonus for Dr. Katzberg, since he must offset a very large percentage of his salary. This is troubling because the evidence shows that Dr. Katzberg is a productive faculty member. If a department is going to award a bonus based on productivity, it seems unfair to award that bonus to some people, and not award it to others who have been just as productive. The department must find a more equitable way to reward Dr. Katzberg for his contributions to productivity." The Subcommittee opined that "the fair thing to do" would be to "base Dr. Katzberg's bonus on his actual cost to the Department of Radiology. Since he is ascribed $125,000 in 19900 funds, that number should be 'credited' to Dr. Katzberg when calculating his productivity" for purposes of determining his entitlement to Z compensation.*fn4

The Chancellor received and reviewed the recommendation of the Subcommittee, and disagreed with that recommendation, finding that the Subcommittee's conclusions were "unsupported by evidence or University policy." Specifically, the Chancellor concluded that there was no University policy specifying a right to more than one academic day per week; nor did Katzberg have the right to receive credit for 19900 funds when calculating his eligibility for a year-end (Z) bonus. We will explain the Chancellor's decision in greater detail in the Discussion, post.

C. Petition for Writ of Mandate

Katzberg filed a petition for writ of mandate in the trial court seeking to compel the Chancellor (1) to restore his protected academic time of two days per week, and (2) to recalculate his compensation in line with the view that 19900 funds should be credited to him when determining his entitlement to the year-end (Z) bonus. Katzberg also sought a judicial declaration that the Chancellor's decision violated University policies. The petition for writ of mandate was denied. Judgment was entered in favor of the Chancellor on the complaint for declaratory relief. This appeal followed.

DISCUSSION

I

Standard of Review

The appropriate method of obtaining review of most public agency decisions is by instituting a proceeding for a writ of ordinary or administrative mandate. (Code Civ. Proc., §§ 1085, 1094.5; Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) "The applicable type of mandate is determined by the nature of the administrative action or decision. [Citation.] Usually, quasi-legislative acts are reviewed by ordinary mandate and quasi-judicial acts are reviewed by administrative mandate. [Citation.]" (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1784.) However, while denial of a privilege and tenure grievance is undoubtedly a quasi-judicial act, administrative mandate is available only if the decision resulted from a "proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the [agency]." (Code Civ. Proc., § 1094.5, subd. (a), emphasis added.) "Ordinary mandate is used to review an adjudicatory decision when an agency is not required to hold an evidentiary hearing." (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 745; McGill v. Regents of University of California, supra, 44 Cal.App.4th at p. 1785.)

Here, the operative law is contained in the University Bylaws of the Academic Senate.*fn5 Senate Bylaw 335 provides for the procedure to be used in privilege and tenure grievance cases. A faculty member is entitled to a formal evidentiary hearing only if the Committee first determines "that the grievant has made out a prima facie case of violation of a right or privilege, and there is sufficient reason to believe that the grievant's rights and privileges may have been violated." If the Committee "determines either that the grievant has not made out a prima facie case or that after a preliminary review, there is not sufficient reason to believe that the grievant's rights and privileges may have been violated, it shall advise the grievant to that effect in a written communication stating the reasons for its conclusion."

Under these provisions, the Committee could have denied Katzberg's privilege and tenure grievance after a preliminary review, without holding an evidentiary hearing. But it did not do so. Instead, it determined that Katzberg had made a prima facie showing that there was sufficient reason to believe that his rights and privileges had been violated. Once that determination was made, an evidentiary hearing was required. Accordingly, we conclude the Chancellor's decision denying Katzberg's privilege and tenure grievance resulted from a "proceeding in which by law a hearing [was] required to be given, evidence [was] required to be taken, and discretion in the determination of facts [was] vested in the [University]." (Code Civ. Proc., § 1094.5, subd. (a).) The appropriate means of seeking review of this decision, under these specific circumstances, was by administrative mandate.

Katzberg filed a petition for writ of ordinary mandate in the trial court. While the trial court could have treated the filing as a petition for writ of administrative mandate (see Anton v. San Antonio Community Hospital (1977) 19 Cal.3d 802, 813-814), it did not do so.

Review by writ of administrative mandate "is limited to the record compiled by the administrative agency, and the agency's findings of fact must be upheld if supported by 'substantial evidence.'" (State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 977.) Review by writ of ordinary mandate "is even more deferential; the agency's findings must be upheld unless arbitrary, capricious, or entirely lacking evidentiary support." (Ibid.; McGill v. Regents of University of California, supra, 44 Cal.App.4th at p. 1786; Stone v. University of California, supra, 77 Cal.App.4th at p. 745.) Regardless of the form of writ review, questions of statutory construction are subject to independent review. (See Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8 [ultimate responsibility for statutory interpretation rests with the court, not the agency administering the statute].) And "'[t]he contemporaneous administrative construction of a statute by an administrative agency charged with its enforcement and interpretation is entitled to great weight unless it is clearly erroneous or unauthorized.' [Citation.]" (Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491, 501; see also Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th at p. 8 [standard for judicial review of agency interpretation of law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action].)

On appeal from the denial of a writ of mandate, we perform the same function as the trial court. (Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 233.) Thus, while the trial court applied the incorrect standard of review to the Chancellor's decision to deny Katzberg's grievance, we shall apply the appropriate standard and affirm the decision as supported by substantial evidence.

II

Analysis of the Decision

We next address the Chancellor's decision to deny Katzberg's privilege and tenure grievance. Under Senate Bylaw 335, in order for Katzberg's grievance to be sustained, he was required to prove by a preponderance of evidence that his rights or privileges as a faculty member were violated by the reduction in academic time and the denial of a year-end (Z) bonus. The Chancellor concluded that Katzberg did not carry this burden.

A. Reduction in Academic Time

The Chancellor concluded there was no University policy specifying a right to more than one academic day per week. In reaching this conclusion, the Chancellor disagreed with the Subcommittee's finding that 19900 funds are "dedicated solely to support research." Dr. Frederick Meyers, Senior Associate Dean for Academic Personnel at the School of Medicine, testified that 19900 funds "are for instruction and research, not just for research." Professor Norman Matloff, Chair of the Committee, confirmed that these funds should be used to support instruction and research.

This view is entirely consistent with the University policies cited by the Subcommittee: APM 025-6 provides that "[t]eaching and research or creative work activity are clearly the primary activities of the faculty and receive the largest commitment of effort and energy." APM 015 provides that "a major responsibility of the administration is to protect and encourage the faculty in its teaching, learning, research, and public service." APM 670 provides that the University "is committed to excellence in instruction, research, and public service in the health sciences just as it is committed to the same goals in other academic disciplines."

The Chancellor further disagreed with the Subcommittee's apparent assumption that clinical practice constitutes an "outside activity" that interfered with Katzberg's primary activities of teaching and research. Indeed, APM 210-3 recognizes that "[m]any faculty in the health sciences devote a great proportion of their time to the inseparable activities of teaching and clinical service and, therefore, have less time for formal creative work than most other scholars in the University." APM 670 also provides that clinical practice is "essential to the teaching function." This view was confirmed by Dean Meyers, who testified that "a huge amount of clinical teaching . . . occurs in the third and fourth year of medical school." Katzberg himself testified that his clinical work involved teaching residents and medical students.

We find that the record fully supports the Chancellor's conclusion that "[n]one of the policies cited by the Subcommittee, nor any other University policy, require that state funding ultimately received by [Katzberg] be dedicated solely to support [his] research, much less a set amount of two academic days free of other University obligations." The record also supports the Chancellor's conclusion that clinical practice and teaching are inseparable activities, and therefore, a reduction in academic time in favor of an additional day of clinical practice does not conflict with University policies making teaching and research the primary activities of faculty.

Katzberg concedes that University policy "does not specify a specific number of days for research and teaching." Nevertheless, relying on Adelson v. Regents of University of California (1982) 128 Cal.App.3d 891 (Adelson), Katzberg asks that we reverse the Chancellor's decision because he "ignored and mischaracterized" the Subcommittee's findings.

In Adelson, the University terminated Adelson, a non-tenured professor of psychology whose salary was funded through the Community Mental Health Project, after revising the curriculum and determining that Adelson's services were no longer needed. (Adelson, supra, 128 Cal.App.3d at p. 893.) The Committee on Privilege and Tenure held an evidentiary hearing and concluded that there was widespread acceptance of a campus practice that "'faculty members in "soft money" positions of long duration and associate professor or professor rank should not be terminated except for adequate cause as long as the extramural funds for their project continue.'" (Ibid.) The Committee recommended reinstatement because a new umbrella grant continued to fund the courses previously taught by Adelson, as did the prior grant for the Community Mental Health Project, and the University did not offer adequate cause for his termination. (Id. at p. 894.) Without reviewing the hearing transcript, the Chancellor rejected the Committee's recommendation, calling it a "'de facto recognition of tenure'" for a professor in the residence series. (Ibid.)

The court reversed, explaining that the Chancellor "mischaracterized the committee's findings" by erroneously concluding that accepting the recommendation would amount to providing Adelson with tenure. (Adelson, supra, 128 Cal.App.3d at p. 895.) The court also found that the Chancellor erred by disregarding the Committee's factual findings without independently reviewing the evidence presented at the hearing to determine whether Adelson was properly dismissed. (Adelson, supra, at pp. 895-896.)

This case is not Adelson. Here, the Chancellor neither mischaracterized the Subcommittee's findings nor disregarded factual findings without independently reviewing the evidence presented at the hearing. Katzberg makes much of the Subcommittee's conclusion that the Chair "reduced" academic time from two days per week to one day per week, thereby "shift[ing] the nature of Dr. Katzberg's job functions away from what he agreed to when he initially took the position with the University." However, as the Chancellor correctly pointed out after independently reviewing the record, the Chair "did not reduce [the] number of dedicated academic days from two to one. The amount of protected research time within the Department was one day when [the Chair] assumed his position as Chair, and he simply maintained that level. The record indicates that the number of protected academic days was declining long before the Chair arrived, evidenced by [Katzberg's] own decision as Chair to reduce the number of academic days to 1.5/week in 1992."

Indeed, Katzberg testified that when he was hired the "goal" was to provide regular professors with two academic days per week devoted exclusively to teaching and research, but that this goal was never actually achieved. Thus, the Subcommittee's suggestion that Katzberg was promised two academic days per week when he was hired is simply incorrect.

Katzberg also makes much of the fact that the Chancellor's decision clarified that 19900 funds come from sources other than state funds. However, this clarification was entirely accurate, and reveals the level of care with which the Chancellor reviewed the record.*fn6 And while Katzberg also claims that the Chancellor "ignored and mischaracterized" the Subcommittee's findings with respect to University policies, the record reveals simply that the Chancellor considered the Subcommittee's findings, and after reviewing the evidence, disagreed with them. Nothing in Adelson requires the Chancellor to agree with the Subcommittee's recommendation after review.

Finally, Katzberg disagrees with the Chancellor's determination that clinical practice is inseparable from teaching and research, calling it "a distinct activity whose [sic] purpose is the production of revenue-generating hospital work." However, simple disagreement with the Chancellor's characterization of clinical practice does not warrant reversal. As we have explained, the Chancellor's decision in this regard is supported by University policies and Katzberg's own testimony. Denial of Katzberg's grievance on this issue was supported by substantial evidence and a reasonable interpretation of University policy.

B. Compensation Claim

The Chancellor also rejected, both procedurally and on the merits, Katzberg's grievance with respect to his entitlement to a year-end (Z) bonus.

The Chancellor first concluded that Katzberg's unsuccessful 2003 salary grievance precluded his ability to raise the same issue in his privilege and tenure grievance, explaining that the "compensation appeals process is the sole University forum for addressing . . . faculty compensation issues, and the decision resulting from this process, upholding the department's formula for determining 'Z' compensation (which did not credit 19900 funds received by a faculty member as a measure of productivity), is conclusive of this matter."

Katzberg takes issue with this conclusion, citing section V(C) of the UC Davis Medical School Clinical Compensation Plan requiring that "grievances within the purview of the Plan" must be brought before the Compensation Advisory Committee and ultimately decided by the Dean, but also providing that "[a]ny further grievance would be to the Chancellor in accordance with standard procedures." According to Katzberg, following the Dean's decision denying his grievance, he had a "further grievance" with respect to this issue, which he brought to the Chancellor in accordance with privilege and tenure procedures.

The Chancellor argues that "the most reasonable reading of [this language] is that '[a]ny further grievance' refers, not to an appeal of the Dean's decision on a grievance regarding Plan implementation, but a 'further grievance' relating to issues outside the scope of the Plan." The Chancellor points out that this interpretation is consistent with section II of the Plan, providing: "University Policies and Procedures with respect to academic affairs, including employment, promotion, leave, eligibility for general campus benefits, or termination of employment, shall be unchanged by virtue of Plan participation. All grievance actions shall therefore be carried forth under the Policies and Procedures of the University, excepting grievances limited to fiscal actions or policies within the purview of the Plan, which grievance actions shall be carried forth and adjudicated by procedures described in Section V, Paragraph C, of this document." Thus, argues the Chancellor, the "further grievance" language in section V(C) merely reiterates the distinction between compensation grievances subject to the procedure contained in section V(C) and all other grievances.

We agree with the Chancellor's interpretation of section V(C). In light of section II's express exception of fiscal matters from the jurisdiction of the Privilege and Tenure Committee, section V(C) must mean a "further grievance" that does not concern fiscal matters. Accordingly, we agree with the Chancellor's determination that Katzberg's grievance as to the denial of a year-end (Z) bonus was procedurally barred. (See Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 240-245.)*fn7

In any event, the Chancellor went on to reject Katzberg's grievance on the merits, "find[ing] persuasive the evidence indicating that the purpose of providing 19900 funds to [regular] faculty is to guarantee base salary, that [Katzberg possessed] no right or entitlement to have these funds use[d] as a measure of [his] productivity in the Department, [and] that it was not a violation of [his] faculty rights and privileges to exclude 19900 funds from the Department's productivity calculation to determine eligibility for a 'Z' bonus payment." Thus, Katzberg's assertion that the Chancellor failed to rule on the merits is belied by the record.

The Chancellor's decision on the merits was supported by substantial evidence. As the Chancellor explained his reasoning: "Based upon the evidence presented at the hearing, it appears that the structuring of the Department's compensation guidelines was responsive to market forces relevant to recruitment and retention of radiologist specialists. In order to attract junior faculty, who receive a relatively low X salary due to lower rank and step, a relatively larger Y salary is required in order to compete with peer Universities. At higher faculty levels, faculty are rewarded with a higher X salary (which is secure from year to year and is covered compensation for retirement), but less Y salary is required to remain competitive with peer Universities." Accordingly, the Department has made it "more difficult for high level faculty to qualify for optional 'Y' and 'Z' salary payments, which are based in significant part upon clinical revenues," by placing a cap on salary payments, i.e., requiring X compensation to be less than 1.5 times net revenue minus allocated expenses in order to qualify for Z compensation.

The Chancellor also explained that denial of Z compensation to Katzberg "is offset by the fact that as a function of [his] high faculty level, Step 8, and the Department's uniquely high salary scale of 8 for the Clinical Academic Program Unit, [Katzberg] already enjoy[s] significant sharing of Departmental clinical revenue in order to meet [his] high base salary ('X'). Fully one half of [his] guaranteed base salary comes from clinical funds. [¶] With the 8 salary scale, the base rank and step salary of a faculty member is doubled." Finally, the Chancellor noted that the Subcommittee's recommendation of crediting Katzberg for the 19900 funds used to pay half of his base salary, as though they were clinical revenue, for purposes of calculating his eligibility for Z compensation "raises issues of inequity with [non-regular] faculty."

The Chancellor concluded that "the Department's compensation plan is fair, even though there might be other fair ways of determining faculty productivity," and explained that he would forward the Subcommittee's concerns to the current Department Chair, Dr. Raymond Dougherty, so that he may reassess not only "the appropriate measure of clinical productivity of [regular] faculty in determining eligibility for optional 'Z' salary payments," but also "the appropriate number of academic days for [regular] faculty." We conclude this decision to be supported by substantial evidence and based on a reasonable interpretation of University policy.

III

Declaratory Relief

We also reject Katzberg's contention that the trial court erroneously found in favor of the Chancellor on his complaint for declaratory relief. Katzberg's declaratory relief claim was based exclusively on his assertion that the Chancellor's decision approving the reduction in academic time from two days per week to one day per week violated University policies. For reasons previously stated, this assertion fails.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent. (Cal. Rules of Court, rule 8.278(a)(1).)

I concur: ROBIE , J.

I concur in the opinion and in the result. I add these comments to fill in some missing pieces in the argument.

The procedural posture of the case was confused at the outset by the parties and by the trial court. The case was filed as a Code of Civil Procedure section 1085 case.*fn8 The parties disagreed whether the case sounded in ordinary mandamus or in administrative mandamus but agreed that the standard of review was whether the Chancellor's decision was arbitrary, capricious or entirely lacking in evidentiary support. That was the wrong standard of review as the opinion makes clear in concluding that the action of the privilege and tenure committee was quasi-adjudicative and that administrative mandamus was the appropriate means of relief.

However, the opinion does not make clear that the arbitrary and capricious standard applies only to a narrow range of quasi-legislative cases in which there is a challenge to the validity of the exercise of an express delegation of rule-making power.*fn9 (California Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200, 211-213.) A challenge to its exercise is to the findings made by the agency in its support. That is not this case.

Since the plaintiff proceeded under the wrong (§ 1085) form of relief the question arises whether we can consider the case on its merits. "Where parties have proceeded under the wrong writ of mandate . . . the reviewing court should determine whether the trial court considered the appropriate evidence and applied the appropriate standard of review, based upon the facts of the case." (Eureka Teachers Association v. Board of Education of Eureka City Schools (1988) 199 Cal.App.3d 353, 366.)

The review of section 1085 and 1094.5 cases are alike, other than in quasi-legislative cases under section 1085 and subject matter differences, in that both are subject to the substantial evidence review of the facts, both are limited to the review of ministerial actions (i.e., review of the law), and both are subject to the standard rules of interpretation of administrative regulations. Prior to the enactment of section 1094.5 in 1945, section 1085 was used to perform the function now performed by section 1094.5. (See Kleps, Certiorarified Mandamus Reviewed: The Courts and California Administrative Decisions - 1949-1959 (1960) 12 Stan.L.Rev. 554.)

The trial court did consider the appropriate evidence for the resolution of Dr. Katzberg's grievance, but not pursuant to the appropriate standard. Since we are in the same position as the trial court with respect to the review of the evidence, it is appropriate to proceed with the case applying the appropriate standard of review. The fact that the trial court used the wrong standard of review is subject to correction using the correct standard of review of the construction of administrative regulations.

As noted, the arbitrary and capricious standard does not apply to the interpretation of a rule of law, in this case a University policy. The correct standard is set forth in Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1. The court said: "In International Business Machines v. State Bd. of Equalization (1980) 26 Cal.3d 923 . . . we contrasted the narrow standard under which quasi-legislative rules are reviewed -- 'limited,' we wrote, 'to a determination whether the agency's action is arbitrary, capricious, or lacking in evidentiary support, or contrary to procedures provided by law' [] -- with the broader standard courts apply to interpretations. The quasi-legislative standard of review 'is inapplicable when the agency is not exercising a discretionary rule-making power, but merely construing a controlling statute.'" (19 Cal.4th at pp. 11-12.) "[E]ven quasi-legislative rules are reviewed independently for consistency with controlling law. A court does not, in other words, defer to an agency's view when deciding whether a regulation lies within the scope of the authority delegated by the Legislature. The court, not the agency, has 'final responsibility for the interpretation of the law' under which the regulation was issued." (Id. at p. 11, fn. 4; citations omitted.)

The University of California is a constitutional agency of statewide jurisdiction. (Cal. Const, art. IX, § 9.) "The courts have also recognized the broad powers conferred upon the regents as well as the university's general immunity from legislative regulation." (San Francisco Labor Council v. The Regents of the University of California (1980) 26 Cal.3d 785, 788.) However, we are not tendered a challenge to a legislative act of the Regents. Nor are we concerned with the validity of the internal rules of the University or a challenge to the Chancellor's authority to review them in this grievance proceeding. Rather, we are concerned with the Chancellor's interpretation of University rules and policies. We are also concerned with the Chancellor's role in the resolution of grievance disputes. This is closely tied to the internal mechanisms for University governance.

"The proper scope of a court's review is determined by the task before it." (Woods v. Superior Court (1981) 28 Cal.3d 668, 679.) In reviewing an agency construction of its rules the courts should, first, place the rules in their administrative context and then read them in the light of the interpretive claims of the contending parties. If the court's interpretation agrees with the agency interpretation, that is the end of the matter since there is no conflict to resolve and no deference required. If not, the question becomes what deference is to be accorded the administrative agency's interpretation.

Here the question involves the nature of the rules and policies relied upon by Dr. Katzberg. As near as I can tell, it is composed of an amalgam of rules, policies, practices and ethical norms. Clearly, this probes deeply into the way in which the University functions, in particular into the distribution of authority among faculty and administration to determine these matters. This is called shared governance. As is typical in administrative proceedings the recommendations of the Privileged and Tenure Hearing Subcommittee were submitted to the governing entity, in this case the Chancellor, for a decision. That involves considerable discretion on the Chancellor's part.*fn10

I agree with the construction of the applicable rules and principles in the majority opinion. I add only this. Relief pursuant to section 1085 requires that the University law compel the grant of two days research time to Dr. Katzberg.*fn11 His basic argument is that APMs 025 and 015 identify research and teaching as the primary activities of regular faculty. He reads into that a command, and concludes that one day a week of non-clinical time is not primary. He derives this from the broad statement of principles in the APMs. APM 025-6 provides that "[t]eaching and research or creative work activity are clearly the primary activities of the faculty and receive the largest commitment of effort and energy . . . ." This is not a command. The verb "are" is the language of description. Similarly, APM 015 provides that "a major responsibility of the administration is to protect and encourage the faculty in its teaching, learning, research and public service." Like APM 025, this also is not the language of a command. It is the language of a guideline, to "protect" and "encourage." What Dr. Katzberg misses is the relation between teaching, research and clinical practice. All three functions may be performed in the course of clinical teaching. As the Chancellor argues: "University clinical practice is an essential part of the teaching, research, and professional activity obligations of School of Medicine faculty. APM 015 is the Faculty Code of Conduct and does not purport to require any specific allocation of research time." And APM 670 does not identify research as the University's primary commitment, but instead reiterates the University's philosophy of giving balanced attention to teaching, research and clinical practice activities.

These policies do not amount to a rule compelling the granting of two academic research days, free of clinical duties, to Dr. Katzberg, as required by section 1085. It is true that Dr. Katzberg's expectations of research time were not met. But there is no rule guaranteeing such an outcome.

BLEASE , Acting P. J.


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