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California Department of Corrections & Rehabilitation v. California State Personnel Board

California Court of Appeals, Fifth District

July 10, 2015

DEPARTMENT OF CORRECTIONS AND REHABILITATION, Plaintiff and Respondent,
v.
STATE PERSONNEL BOARD, Defendant and Respondent JOSEPH McCAULEY, Real Party in Interest and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County, No. 12CECG01622 Debra J. Kazanjian, Judge.

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COUNSEL

Law Office of Michael A. Morguess and Michael A. Morguess for Real Party in Interest and Appellant.

Stephen A. Jennings, Clayton A. Mack and Christopher D. Howard for Plaintiff and Respondent.

No appearance for Defendant and Respondent State Personnel Board.

OPINION

KANE, J.

Appellant Joseph McCauley (McCauley) was promoted to the position of Correctional Sergeant at Avenal State Prison by his employer, California's Department of Corrections and Rehabilitation (CDCR). The new position began on December 2, 2008, and was subject to a 12-month probationary period before it became permanent. On December 1, 2009, CDCR served a notice of rejection on McCauley to remove him from the position of Correctional Sergeant effective on December 8, 2009. On December 2, 2009, another document was served on McCauley, this one purporting to extend his probationary period until December 8, 2009. McCauley maintained that CDCR’s notice of rejection and other papers were invalid due to failure to comply with certain timing and notice requirements relating directly to the duration of the probationary period. In an administrative appeal to

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California's State Personnel Board (the Board), the Board agreed with McCauley and revoked CDCR’s notice of rejection. CDCR challenged the Board’s ruling by filing a petition for writ of mandate in the trial court. The trial court granted the petition and reversed the Board. McCauley now appeals from the judgment granting the petition for writ of mandate.

We hold that McCauley is correct that the notice of rejection was fatally deficient under applicable law because the effective date of the rejection (i.e., Dec. 8, 2009) was after the completion of his probationary period. In so holding, we also conclude that the proper way to calculate a civil service probationary period is to include the first day, notwithstanding the general rule for calculating time limits in Government Code section 6800[1] and Code of Civil Procedure section 12. Here, then, the first day of McCauley’s probationary period was December 2, 2008, and the last day was December 1, 2009. Thus, CDCR’s effort on December 2, 2009, to extend the probationary period was too late, no extension was accomplished thereby, and the effective date of the rejection was not within the probationary period as required. For all of these reasons, we reverse the trial court’s judgment and direct the trial court to enter a new order denying the petition for writ of mandate.

FACTS AND PROCEDURAL HISTORY

McCauley was employed by CDCR as a correctional officer starting in 2003. In mid-2008, he was given a temporary term promotion to Correctional Sergeant. In late 2008, he was appointed to the permanent position of Correctional Sergeant at Avenal State Prison beginning on December 2, 2008, and subject to a probationary period of 12 months. The position would become permanent only after the successful completion of the probationary period.

On December 1, 2009, CDCR served a “Notice of Rejection During Probationary Period” (notice of rejection) and attached documents on McCauley by mail. The notice of rejection stated, among other things, that “pursuant to … Section 19173, ” McCauley was being “rejected” from his “position of Correctional Sergeant with [CDCR] at Avenal State Prison.” It also stated that “[t]his rejection … shall be effective at the close of business on December 8, 2009.” (Italics added.) The notice of rejection articulated numerous grounds for the rejection decision by CDCR, including McCauley’s failure to meet certain standards expected of persons serving as a correctional

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Sergeant and supervisor.[2] Although the rejection was said to be effective on December 8, 2009, no provision was made in the notice of rejection to extend McCauley’s probationary period. A proof of service listed the documents that were attached to the notice of rejection, but that list did not include a ...


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