Trial Court: Sonoma County Superior Court Trial Judge: Hon. Patrick M. Broderick (County of Sonoma Super. Ct. No. SCV-249446)
The opinion of the court was delivered by: Lambden, J.
CERTIFIED FOR PUBLICATION
Cathy Neville appeals from the trial court's judgment denying her petition for writ of mandate against the County of Sonoma (the County) and the Sonoma County Board of Supervisors (the Board). She filed the petition after the Board terminated her employment as the head of the County's Department of Agriculture (the Commissioner) and as the County Sealer of Weights and Measures (the Sealer). Neville contends that under the Food and Agricultural Code and Business and Professions Code only the state had the authority to terminate her position. The County and Board maintain that the state has exclusive jurisdiction over granting and revoking licenses for the commissioners and sealers but the counties have the authority to terminate their employment for reasons related to purely local concerns. The trial court ruled that permitting the Board to terminate Neville's employment did not impinge on the state's power or authority under the statutes. We affirm the judgment.
The Commissioner/Sealer Position
County commissioners/sealers have several duties, some of which are performed under the direction and supervision of the California Department of Food and Agriculture (CDFA), and some of which are performed under the direction and supervision of the Board. In the County, the commissioner/sealer heads the County's Agricultural Commissioner's Office (the Office).
On December 31, 2008, the Board appointed Neville to a four-year term from December 31, 2008, through December 30, 2012, to the consolidated offices of the Commissioner and Sealer. Previously, she had served in the same capacity with the County of San Diego. When hired, she became responsible for a budget of over $8,000,000 and more than 60 employees in the Office's divisions of agriculture, weights and measures, and animal care and control.
The agricultural division of the Office employs a full-time staff of 25 with a main office and two satellite offices. This division locally administers the following state agricultural programs: prevention and spread of pests; pesticide regulation enforcement; seed certification; nursery inspection; fruits, nuts, and vegetable standardization; egg inspection; apiary inspection; and crop statistics. It also performs several local functions under the exclusive direction and supervision of the Board. The agricultural division is responsible for administering a hazardous material and waste generator program, participating in planning and development committees established by the Board to analyze the environmental and agricultural impacts of County projects and subdivision development, and administering and enforcing local agricultural ordinances.
The weights and measures division of the Office employs approximately six full-time inspectors, who are licensed by the CDFA. This division locally administers a variety of state programs. The County's general fund provides 70 percent of this division's budget and the other 30 percent is provided by user fees.
In 2008, when the Board appointed Neville to the position of Commissioner/ Sealer, the animal care and control division served purely local interests under the supervision of the Board. The animal care and control is responsible for the enforcement of city and county ordinances and state laws pertaining to domestic animals.
In July 2010, Neville terminated the employment of Amy Cooper, the animal care and control division director.*fn1 Following this action, the County Administrator's Office conducted several interviews with staff of the animal care and control division, and these interviews revealed Cooper's dismissal negatively impacted morale. The interviews also indicated poor communication between the staff of animal care and control and Neville. The Board determined that the animal care and control division could no longer function effectively under Neville's leadership; thus, on September 14, 2010, the Board placed the animal care and control division under the direction and supervision of the Department of Health Services.
In the fall of 2010, the County Administrator's Office received numerous complaints from the staff in the agricultural division about Neville. Employees complained that Neville made demeaning comments to them directly and to others, including calling employees "5th graders," "retards," "whores," "sluts," and "fat cows." Staff also expressed concerns that the community saw the division as being unable to regulate and enforce state law and county ordinances effectively because of Neville's lack of leadership and inability to direct staff employees to carry out their duties.
On January 10, 2011, Neville filed a formal complaint against the County Administrator, Veronica Ferguson. The Board approved the hiring of an independent investigator to evaluate the allegations against Neville and Neville's allegations against Ferguson. The County placed Neville on paid administrative leave beginning on January 12, 2011.
The investigator interviewed over 20 County employees, including several senior officials such as the Assistant County Counsel, the County Administrator, and the Director of Human Resources. The investigator concluded that Neville used derogatory terms; behaved and communicated inappropriately, inconsistently, and unpredictably with her staff and other County employees; improperly directed that confidential personnel files of employees of the animal care and control division be copied after those employees were no longer under supervision; incompetently handled an important and sensitive project regarding vineyard erosion and sediment control; failed to take a lead role in a significant and controversial project aimed at developing local oversight of agricultural frost protection practices to better protect endangered fish species in the Russian River; and brought discredit to herself and the County by resisting arrest for driving under the influence and eventually being convicted of that crime. The investigator opined that Neville had created an irreparably dysfunctional relationship with her staff. The investigator described strong emotions expressed during interviews ranging from tears to anger. He also concluded that during the investigation Neville had not been forthcoming and had sometimes been untruthful.
Disciplinary Proceedings and the Termination of Neville's Employment
The Board, acting through its Chair, decided to initiate disciplinary proceedings against Neville. On March 1, 2011, the Chair issued a Notice of Intended Disciplinary Action indicating the Board's intent to terminate her employment. On March 18, Neville's attorney responded and contested the Board's authority to conduct termination proceedings and asserted that the allegations, even if true, did not justify termination.
On March 22, 2011, the Board issued a termination order. The Board provided Neville with an opportunity to contest her termination in a formal hearing before an administrative law judge where she could cross examine witnesses and present evidence. She did not request a hearing.
Petition for Writ of Mandate
On April 4, 2011, Neville filed a verified petition for writ of mandate pursuant to Code of Civil Procedure section 1085 challenging the authority of the Board to terminate her employment. Her petition alleged that the Board's action violated the Food and Agricultural Code sections 2121 et seq. In a second cause of action, she also alleged that the Board's action did not comply with Business and Professions Code sections 12200 et seq. She also requested declaratory relief. She sought reinstatement with back pay and attorney fees.
The superior court held a hearing on Neville's petition on May 17, 2011. The court denied Neville's petition for writ of mandate and dismissed her declaratory relief claim. At the hearing, the court stated that it had examined the Agricultural Code and the California Constitution and explained: "There has been a historical development regarding these statutes concerning the position of an Agricultural Commissioner and, indeed, this court does find that the distinction between licensing of the Agricultural Commissioner and the position and activities of the Agricultural Commissioner are distinguishable. And as the court has repeated it in its questions in this matter, should the matter again be submitted to and go before a state trial board, the state trial board has only two options, either dismissing the charges or removal. However, the court in looking at the logic of this matter and the statute and harmonizing the statutes believes there does have to be an intermediate position, and the court will be specific.
"The court does believe there are activities and actions that an Agricultural Commissioner engages in that are indeed of statewide concern. However, the court also finds and believes that there are activities and responsibilities that an Agricultural Commissioner has that are only of local concern, and I think both counsel have articulated that and made distinctions."
The court noted that counsel for Neville acknowledged that the County could discipline the Commissioner but argued that terminating the Commissioner's employment is exclusively within the authority of the state trial board. The court emphasized that the state trial board could either dismiss the charges or remove the Commissioner, which would result in the Commissioner's losing his or her license. The court explained that the intermediate position is to terminate the commissioner's employment without requiring the commissioner to lose his or her license, and the state trial board could not implement the third option.
The superior court explained that "the state has specifically occupied the province in the area of the licensing of the State Agricultural Commissioners." The statutes regarding appointment of a commissioner use the word "shall," while the statutes related to removal uses the word "may." The court found "that the interpretation of the word 'may' as permissive and not exclusive is in harmony with the relationship of the Commissioner's statewide functions and municipal functions and, again, would not lead to this result of a county not being able to make decisions about the continuing tenure of the commissioner short of having to have that commissioner be removed at the state board and lose [his or her] license." The court concluded that the interpretation of the removal statute as being permissive did not impinge upon the state's power or authority over the licensing and qualifications of the commissioner.
Judgment denying Neville's petition for writ of mandate was entered on May 25, 2011. Neville filed ...