Paule v. State Personnel Board

Opinion

ROTH, P. J. The issue presented on this appeal from a judgment denying a peremptory writ of mandate, which was heard on pleadings, declarations and a stipulation, is whether the State Personnel Board (Board) under its enabling statutes has discretion to authorize promotional examinations within a given department to the exclusion of other state employees who are not members of the department in which the promotion is to be made.

Respondent Board announced a departmental promotional examination in the Department of Water Resources (Resources) for Staff Counsel III but Resources limited it to eligible members of Resources.

[34]It was stipulated that Leon S. Paule (appellant) is an attorney holding the position of Staff Counsel I with the state Department of Real Estate; fulfilled the qualifications for Staff Counsel III open in Resources; and that he properly applied and was not permitted to take the examination for the sole reason that he was not employed by Resources.

Appellant, citing article XXIV, section 1, subdivision (b) of the state Constitution and Government Code, section 18951, in three causes of action challenges the authority of Board to restrict civil service examinations for higher level positions for department promotion to the eligible employees of the department; asserts excess of jurisdiction and finally alleges a controversy as to the authority of the Board to conduct such examination. The prayer seeks an injunction restraining Board from filling the position until appellant and persons similarly situated1 are permitted to take the examination.

Appellant’s petition for mandate clearly bottomed, as it is, upon the averments that Board had no authority to restrict the examination and acted in excess of its statutory powers is governed by Code of Civil Procedure, section 1085. (Pitts v. Perluss (1962) 58 Cal.2d 824 [27 Cal.Rptr. 19, 377 P.2d 83]; Wilson v. Hidden Valley Mun. Water Dist. (1967) 256 Cal.App.2d 271, 277-278 [63 Cal.Rptr. 889].)

Our review is thus limited to “. . . whether [Board’s] action has been arbitrary, capricious or entirely lacking in evidentiary support, ...” (Pitts v. Perluss (1962) 58 Cal.2d 824, 833 [27 Cal.Rptr. 19, 377 P.2d 83].) This is not a case for nor does the petition before us seek a review under Code of Civil Procedure, section 1094.5 which provides for and may require independent judgment after a review of proceedings held before a state-wide Board. (Pitts, supra, p. 833.)