Power v. State Personnel Board

Opinion

THE COURT. On June 14, 1971, appellant Joseph A. Power, Jr., filed a first amended petition alleging he had made a formal request to file charges with respondent board, against a fellow state employee. The request included 21 declarations under oath. This original request to file was summarily denied and on September 30, 1970, appellant again his request to file charges. This second request was denied on January 5, 1971, again without a formal hearing before respondent board. Pursuant to a request of respondent, the accused Robert P. Mannen and the Attorney General filed a joint letter response to the accusations, a copy of which was provided to appellant along with respondent’s denial of con[276]sent. Appellant finally alleged that the refusal of respondent to hold any hearings on the request to file charges was an abuse of respondent’s discretion, and further alleged such action was arbitrary and capricious.

The writ was denied with the trial court holding that mandate does not lie to control discretionary acts (namely, the granting or denying of consent to file charges) the exercise of which is exclusively vested in respondent. (See Gov. Code, § 19583.5.) Further, even assuming the court could review file exercise of respondent’s discretion, such judicial review is limited to a determination of whether respondent abused its discretion. The trial court found no such abuse of discretion.

We conclude that the appeal is without merit and will accordingly affirm the judgment of the court below.

Government Code section 19583.5 provides in part: “Any person with the consent of the board or the appointing power may file charges against an employee requesting that punitive action be taken for one or more causes for discipline specified in this article.” (Italics added.)

Appellant urges that article XXIV, section 2, of the California section 18670 of the Government Cede and other statutes require the respondent board to conduct a threshold hearing or to make findings concerning the merits of charges sought to be filed, before rendering a granting or denying consent to file such charges. This is not the law. Respondent board is simply enjoined from exercising its discretion in an arbitrary, capricious, or fraudulent manner and from making a decision that has no reasonable basis in law or substantial basis in fact. (Bixby v. Pierno (1971) 4 Cal.3d 130, 150-151 [93 Cal.Rptr. 234, 481 P.2d 242].)