appeal, stating that her review showed that his termination for unsatisfactory performance
and inappropriate conduct was justified, due to violation of the University's zero-
tolerance standard and core values regarding threats, intimidation or violence in the
workplace.
In a letter dated April 19, 2010, Do's Step 2 appeal was denied by Paul Craig
(Chief Human Resources, Safety and Risk Officer for the medical center), as follows:
"On July 8, 2009 during a disciplinary meeting . . . you stated to your supervisor
[Fletcher] in the presence of your manager [Adams] that the reason for the inappropriate
communication of June 4, 2009 was, 'So I wouldn't deck him.' [This] was a verbally
2 Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215 ["preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline"]. 8
communicated threat of violence in direct violation of MCP 538.2K and UCSD Medical
Center's Core Values."
Third, an evidentiary hearing before a non-university hearing officer was held on
November 17, 2010. Do, Fletcher and Pawlicki testified and a tape-recorded transcript is
in the record. Do agreed that saying "get out of my face" had been inappropriate and
explained that he often associated with younger people who talk that way. He did not
remember using the term "deck you," and did not think he would have used it. Do
explained that in light of his 18 years of experience in IT matters, he did not really need
instructions from Fletcher on how to accomplish a certain task. Do did not want to return
to the same IT department, in light of all that had happened, although he could do so and
improve his communication if necessary.
On December 20, 2010, the hearing officer issued his decision upholding the
termination of Do's employment. The hearing officer acknowledged that Do may have
been overqualified for his job as number two on the team, which could have led to his
frustrations there. The hearing officer ruled that on July 8, 2009, Do had committed an
act that violated Policy 538.2K: "The act in question is the statement [Do] made to
Fletcher in response to the inquiry about what he meant by his June 4 remark." This was
determined to amount to an "intentional act" within the meaning of the policy, since it
was made voluntarily and because Do intended to say what he said: "The response was
not involuntary; it was volunteered, and thus meets the Webster definition of an 'act.' It
also is intentional; what he [Do] said was intended to be said." Do's statement was an act
that "create[d] a fear of harm," and he had intentionally "caus[ed] Fletcher to be fearful
9
that [Do] might respond to his attempts to supervise him by a physical attack on
Fletcher." The University adopted the hearing officer's recommendation of termination.
C. Administrative Mandamus Petition and Ruling
On January 13, 2011, Do filed a petition for writ of administrative mandamus
seeking reinstatement and lost compensation. He lodged the administrative record and
contended that the trial court should apply its independent judgment in reviewing the
decision. Do argued that the hearing officer's findings of intentional threats were not
supported by the weight of the evidence and Fletcher could not have developed a
reasonable fear of harm. Do claimed that he was dismissed based only on speculation,
and that his later expressed thoughts and explanation about why he said what he said on
June 4 did not provide an adequate basis for termination
In opposition, the University contended that a substantial evidence standard of
review applied, because it is a constitutional agency authorized to conduct quasi-judicial
review of employment-related decisionmaking. (Cal. Const., art. IX, § 9.) Once that
standard was applied, the termination decision was proper for Do's demonstrated
insubordination, even if his comments on July 8 were not technically threats or did not
amount to intimidation at a criminal level. They were nevertheless implied threats that
were willfully made and therefore dismissal was justified for violation of University
policies.
A court hearing on the petition was held on September 23, 2011. Do argued there
was no evidence that he intended to carry out any threat, or that he intended to cause
Fletcher to fear for his safety, but instead, he had been obligated to answer questions put
10
to him at the disciplinary hearing. In reply, the University said no one had forced Do to
explain himself in that manner, but when he did so, the employer was entitled to
determine that his acts were in violation of University policy. (See City of Palo Alto v.
Service Employees Internat. Union (1999) 77 Cal.App.4th 327 [an employee's threat at
the workplace did not necessarily require the employee to be fired; interpreting prior
version of section 527.8].)
At the close of the argument, the trial court indicated Do's petition would be
denied, while expressing this reservation: "I'm not sure I would come to the same result
if I were the hearing officer or if it was an independent standard of review, but using the
substantial evidence test in the context of the language, I think I'm compelled to make the
finding that I do in my tentative. I think it's a very close case. . . . [¶] . . . [¶] . . . I'll be
very candid. When I first looked at it, I said wow, how could they fire a guy for this.
That was my first reaction. But then when I got more into it, I think that under the law,
they had the right to do what they did, but I think it's very, very close." A ruling was
issued denying the petition, and Do appeals the judgment.
DISCUSSION
I
STANDARD OF REVIEW AND ISSUES PRESENTED
Section 1094.5 sets forth the procedure for judicial review of an order or a
decision by an administrative agency. (Bixby v. Pierno (1971) 4 Cal.3d 130, 137
(Bixby).) Under section 1094.5, subdivision (b), an agency's abuse of discretion may be
established if its decision is not supported by the findings, or the findings are not
11
supported by the evidence. The next step of the procedure, determining the applicable
standard of review as specified in section 1094.5, subdivision (c), depends on the type of
administrative agency decision that is involved, due to principles protecting the
separation of powers. (Bixby, supra, at p. 141.)
It is well recognized that certain types of administrative agencies are "of
constitutional origin" and "have been granted limited judicial power by the Constitution
itself." (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28,
35 (Strumsky); Boren v. State Personnel Board (1951) 37 Cal.2d 634; Covert v. State
Board of Equalization (1946) 29 Cal.2d 125; Palm Springs Turf Club v. California Horse
Racing Board (1957) 155 Cal.App.2d 242.) As explained by a commentator: "A
relatively few state agencies derive their quasi-judicial or adjudicating powers from the
Constitution itself. Their findings are not subject to reexamination in a trial de novo
[citation], but will be upheld if supported by substantial evidence." (8 Witkin, Cal.
Procedure (5th ed. 2008) Extraordinary Writs, § 260, p. 1168.) Such constitutionally
authorized quasi-judicial agency decisions are subject under section 1094.5, subdivision
(c), to substantial evidence review, in which "abuse of discretion is established if the
court determines that the findings are not supported by substantial evidence in the light of
the whole record." (8 Witkin, Cal. Procedure, supra, at p. 1168.)
Do argues that such a constitutional delegation of quasi-judicial power must be
express and specific, as opposed to the more general delegation of quasi-judicial
administrative decisionmaking power that was analyzed in Ishimatsu, supra, 266
Cal.App.2d 854, 864-865, regarding the language of the California Constitution, article
12
IX, section 9. Absent very specific language of express delegation, Do contends that the
alternative provisions of section 1094.5, subdivision (c) may be applied to his case, to
allow or require the trial court to exercise its independent judgment on the evidence, and
to determine the agency has abused its discretion "if the court determines that the
findings are not supported by the weight of the evidence." He justifies this request by
pointing to the nature of his property interest in his previous, permanent employment.
This was a close case, as the trial court candidly acknowledged, and thus the
standard of review utilized on appeal is critical for evaluating the validity of Do's claimed
property right to continued employment, as opposed to the University's right to
administratively interpret and apply its employment policies. However, as next
explained, Do can point to no authority requiring the University to assert a more explicit
constitutional delegation of quasi-judicial administrative decisionmaking power, even in
an employment rights case.
II
EXTENT OF ADMINISTRATIVE AGENCY AUTHORITY
A. Development of Case Law
Do's petition and appeal allege that the hearing officer committed a prejudicial
abuse of discretion, his decision was not supported by the findings, and the findings were
not supported by the evidence. (§ 1094.5, subd. (b).) Do argues the explanatory
statements he made on July 8 did not amount to intimidation or threats that were made at
that time toward anyone in particular, within the meaning of the University policies and
13
employee handbook, and if the trial court were allowed to utilize independent judgment,
it would have agreed with him.
Do fails to recognize that not every circumstance of public employment creates
vested property rights to continue it. Instead, statutory or due process entitlement to
independent judgment review in a particular case depends upon the type of public agency
involved and whether the agency was created by the Constitution in such a manner as to
delegate quasi-judicial decisionmaking powers. This was made clear in Strumsky, supra,
11 Cal.3d 28, 34-35: A right to "a full and independent judicial review" of an agency's
decision to terminate an individual's public employment does not exist in the case of
agencies "of constitutional origin which have been granted limited judicial power by the
"It is established that when a review of a decision of an agency falling within [such] categories is sought pursuant to section 1094.5 of the Code of Civil Procedure, the court's scrutiny of the agency's factual findings is limited to a determination whether those findings are supported by substantial evidence in light of the whole record -- and this is so whether or not the decision of the agency affects a fundamental vested right." (Strumsky, supra, 11 Cal.3d 28, 35; italics added.)
Ishimatsu, supra, 266 Cal.App.2d 854, 864, and Amluxen v. Regents of University
of California (1975) 53 Cal.App.3d 27, 32, are generally accepted authorities stating that
the California Constitution has granted the University quasi-judicial powers regarding
matters falling within its broad powers to organize and govern the university, and this
includes quasi-judicial adjudication of employment rights. (Cal. Const., art. IX, § 9,
14
subd. (a); Apte v. Regents of University of California (1988) 198 Cal.App.3d 1084, 1091
(Apte).) Such University administrative decisions are subject to review under the
Similar to the state personnel board in Skelly, supra, 15 Cal.3d 194, the University
is " 'a statewide administrative agency which derives [its] adjudicating power from
[article IX, section 9, of] the Constitution . . . [; therefore, its factual determinations] are
not subject to re-examination in a trial de novo but are to be upheld by a reviewing court
if they are supported by substantial evidence. [Citations.]' " (Skelly, supra, at p. 217, fn.
31.) The California Constitution, article IX, section 9, subdivisions (a) and (f) together
enumerate the University's powers and duties regarding management and disposition of
its property, and also specify it shall have "all the powers necessary or convenient for the
effective administration of its trust" (Cal. Const., art. IX, § 9, subd. (f)), such as engaging
in litigation and delegating to its committees and faculty "such authority or functions as it
may deem wise." (Ibid.)
More recently, in Miklosy, supra, 44 Cal.4th 876, 889, our Supreme Court
confirmed, or took as established, this "unique constitutional status of the University of
California," in the course of applying certain procedural provisions of the California
Whistleblower Protection Act (Gov. Code, § 8547 et seq.). In Miklosy, the court relied
on Campbell, supra, 35 Cal.4th at pages 320 to 321, for this same concept: " 'The
California Constitution establishes the [University] as a "public trust . . . with full powers
of organization and government." (Cal. Const., art. IX, § 9, subd. (a).) We have observed
15
that 'Article IX, section 9, grants the [R]egents broad powers to organize and govern the
university and limits the Legislature's power to regulate either the university or the
[R]egents. . . .' This grant of constitutional power to the University includes the grant of
quasi-judicial powers, a view that is generally accepted in our jurisprudence." (Miklosy,
supra, at p. 889; italics added; citing Ishimatsu, supra, 266 Cal.App.2d 854, 864; Apte,
supra, 198 Cal.App.3d 1084, 1091.)3 "In short, the University functions in some ways
like an independent sovereign, retaining a degree of control over the terms and scope of
its own liability." (Miklosy, supra, at p. 890.) " 'It is apparent that the Regents as a
constitutionally created arm of the state have virtual autonomy in self-governance.' "
(Campbell, supra, 35 Cal.4th at pp. 320-321.)4 Staff discipline matters fall within these
powers.
Moreover, there is no reason to believe that these statements in Campbell, supra,
35 Cal.4th at pages 320 through 321, or Miklosy, supra, 44 Cal.4th at page 889 are
confined to the factual context of interpreting whistleblowing statutes, simply because the
analyses were delivered in such cases. Nothing new has been presented to require us to
3 In Apte, the court noted that the decision in Ishimatsu, supra, 266 Cal.App.2d 854, 864, has found "general acceptance" regarding the constitutional grant of power to the University as including the grant of quasi-judicial powers. (Apte, supra, 198 Cal.App.3d at pp. 1090-1091, citing Smith v. Regents of University of California (1976) 58 Cal.App.3d 397, 400; Amluxen v. Regents of University of California, supra, 53 Cal.App.3d 27, 33.)
4 As early as 1975, an appellate court in Arroyo v. Regents of University of California (1975) 48 Cal.App.3d 793, 798, noted that Ishimatsu, supra, 266 Cal.App.2d 854, has been referred to "without disapproval" in Regents of University of California v. Superior Court (1970) 3 Cal.3d 529, 534.) 16
find lacking the basic constitutional language of article IX, section 9, that delegates
quasi-judicial administrative decisionmaking powers to the University. (See Amluxen v.
Regents of University of California, supra, 53 Cal.App.3d 27, 32-33 [discussing
delegation language issue].)
In Goldbaum v. Regents of University of California (2011) 191 Cal.App.4th 703,
709, this court acknowledged the authority that the University is a " 'statewide
administrative agency' " and as " ' "a constitutionally created arm of the state [it has]
virtual autonomy in self-governance." ' " (Ibid.) The few exceptions to this rule of
" 'general immunity from legislative regulation' " are not implicated in Do's case: the
Legislature's powers of (a) appropriation for salaries; (b) enaction of general police power
regulations to be applied to the University; and (c) legislation that regulates "matters of
statewide concern not involving internal university affairs." (Ibid.)
Thus, it is well settled that the delegated powers that are necessary or convenient
for the effective administration of the University's business include quasi-judicial
administrative authority to resolve individualized employment disputes, by applying
University policies to particular cases. (Ishimatsu, supra, 266 Cal.App.2d 854, 861.)
The underlying rationale is that the University and its Board of Regents are public legal
entities " 'charged with the government of a public trust.' " (Regents of University of
California v. Superior Court, supra, 3 Cal.3d 529, 539, fn. 12.)
Such "governance" of University activities requires due process in the carrying out
of its personnel functions, such as adopting and administering employment policies. In
Miklosy, supra, 44 Cal.4th 876, 890, footnote 4, it is clarified that in general, the
17
University's consideration of an employment-related complaint "cannot be so perfunctory
or arbitrary as to violate the due process guarantee of the state or federal Constitutions."
Earlier, in Ishimatsu, supra, 266 Cal.App.2d 854, 861, the court noted " '. . . the power [to
dismiss public employees] may not be exercised arbitrarily in disregard of the employee's
constitutional rights.' " (Citing Bagley v. Washington Township Hospital Dist. (1966) 65
Cal.2d 499, 503-504; Ball v. City Council of City of Coachella (1967) 252 Cal.App.2d
136, 141.)5
Such constitutional grants of quasi-judicial adjudicative power do not offend due
process standards. "Although administrative agencies are not courts in any manner,
administrative agencies exercising adjudicatory powers are judicial bodies in effect or in
a broad sense have and exercise 'adjudicatory' or 'determinative' powers and functions
and, in some cases, perform the same functions as a court would in the court's absence.
This power is not judicial in a sense that constitutes a violation of the principle of
separation of powers, but is administrative and therefore described as 'quasi-judicial.' "
Generally, a court's determination of whether an agency's hearing procedures are
in compliance with relevant statutes and regulations, and with an agency's own policies,
requires application of the rules of statutory interpretation and construction. (Yamaha
5 "While the right to practice a profession is a property right which should not be denied without clear proof of violation of the law, employment as a public officer or employee is not such a property right and no hearing is required unless mandated by statute or agency rules or public policy." (2 Cal.Jur.3d (2007) Administrative Law, § 434, pp. 499-500, fns. omitted.) There is no claim that Do was not afforded his administrative remedies. 18
Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12.) In such cases,
" 'The appropriate mode of review . . . is one in which the judiciary, although taking
ultimate responsibility for the construction of the statute, accords great weight and
respect to the administrative construction. [Citation.]' " (Ibid.; see also Aguilar v.
Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 28 [general rule of judicial
deference to agency's interpretation of its own regulations, unless interpretation is clearly
erroneous or unreasonable].)
B. Independent Judgment Standard for Trial Court Does Not Apply Here
Despite the above generally accepted case law approach that allows the University
a broad scope of quasi-judicial administrative authority for resolving job-related disputes,
Do continues to argue that the trial court was required or authorized to apply the
independent judgment standard of review in light of Sarka, supra, 146 Cal.App.4th 261,
271. In that case, the appellate court did not disagree with the trial court's utilization of
the independent judgment standard for evaluation of the facts and law underlying a
University employment decision. Plaintiff Dr. Sarka, a medical doctor, had been
discharged from University employment "for repeatedly refusing to follow the directions
of his superior to modify his approach to patient care." (Id. at p. 263.) The University
administrative hearing officer upheld the termination, as did the trial court.
In Dr. Sarka's appeal, the court determined as a matter of law that the hearing
officer and the trial court had each appropriately considered and properly applied a
statute that declares a public policy that employers may not penalize physicians
"principally for advocating for medically appropriate health care." (Bus. and Prof. Code,
before discharge].) However, as outlined above, the hearing officer did not rely merely
on speculation of future harm, because the evidence demonstrated instances of growing
stress and strain in the working relationship, over time, that could have caused Fletcher to
have developed a reasonable fear for his safety. This was sufficient to show Do's
statement was an intentional act within the meaning of the zero tolerance policy, as the
University officials were entitled to interpret the policy. (Aguilar, supra, 234 Cal.App.3d
21, 28.)
As acknowledged by the trial court, progressive discipline is not warranted under
University policy when acts of insubordination or other "serious misconduct" have been
proven. Under all of the circumstances, the hearing officer was justified in finding that
Do's intentional statements were acts of intimidation in violation of University policy, so
that a lesser remedy was not required. For the same reasons, Do's argument that he is
unfairly being punished for his private thoughts is not justified, when his statements are
viewed in context of the work circumstances and the delivery of the warning letter.
On substantial evidence review, we do not "weigh the evidence, consider the
credibility of witnesses, or resolve conflicts in the evidence or in the reasonable
inferences that may be drawn from it." (Huang v. Board of Directors (1990) 220
Cal.App.3d 1286, 1293-1294.) Viewing the evidence in the light most favorable to the
judgment, resolving conflicts and drawing inferences in support of the judgment, we
25
conclude that although this was a close case, as the trial court frankly acknowledged, the
University provided substantial evidence from which the hearing officer could reasonably
conclude that the University's personnel policies were violated. (Young v. Gannon,
supra, 97 Cal.App.4th at p. 225; JKH Enterprises, Inc. v. Department of Industrial
Relations, supra, 142 Cal.App.4th p. 1058.) The judgment must be affirmed.
DISPOSITION
The judgment is affirmed. Each party shall bear its own costs.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J
26
Filed 6/11/13
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JAMES DO, D061056
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00083720- CU-WM-CTL) THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, ORDER CERTIFYING OPINION FOR PUBLICATION Defendant and Respondent.
THE COURT:
The opinion filed May 13, 2013, is ordered certified for publication.
McCONNELL, P. J.
Copies to: All parties
AI Brief
AI-generated · verify before citing
Holding. The court held that the University of California is a constitutionally created agency with quasi-judicial authority, meaning its employment termination decisions are subject to the substantial evidence standard of review rather than independent judicial judgment.
Issues
Whether the trial court erred by applying the substantial evidence standard of review instead of the independent judgment standard to the University's termination decision.
Whether the University's administrative findings regarding the employee's workplace threats were supported by substantial evidence.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Because substantial evidence has long been designated the appropriate standard of review for an administrative decision made by such an agency, the University argues for application of that standard”
“The trial court appropriately applied the substantial evidence review standard to this set of administrative appeals that involved conflicting viewpoints”