Gonzales v. State Personnel Board

Opinion

KINGSLEY, Acting P. J. This is an appeal from a judgment of the superior court ordering a peremptory writ of mandate to issue compelling appellant to hear respondent’s appeal from his dismissal as a youth counselor with the Department of the Youth Authority.

On October 31, 1974, respondent was placed on administrative leave of absence from the Department of the Youth Authority. The leave provided for a 15-day suspension without pay pursuant to Government Code section 19574.5. On November 12, 1974, respondent was terminat[366]ed from his position, effective October 31, 1974, based upon Government Code section 19572, subdivisions (j) and (t). The dismissal was predicated upon respondent’s arrest on October 25, 1974, for drug related offenses.

On November 15, 1974, respondent was notified of his dismissal and informed that, pursuant to Government Code section 19575, he had the right to appeal his termination providing he did so within 20 days of notification. Respondent filed his appeal on December 11, 1974, some 26 days after receiving the aforementioned notice of termination.

Appellant refused to consider respondent’s appeal as a result of the lateness of its filing. On April 14, 1976, the superior court granted respondent’s petition for a writ of mandate which would require appellant to allow respondent to appeal his dismissal. It is from that order and judgment issuing the writ of mandate that the instant appeal is taken.

Appellant contends that the superior court erred in granting the writ in that respondent’s failure to appeal within the time specified by the statute made any subsequent appeal improper as a matter of law. We disagree.

I

On review of the declarations filed on behalf of petitioner, the trial court found:

“The action of the Respondent, California State Personnel Board, was in error in that:

“(a) Good cause existed for the late filing of Petitioner’s Request for Appeal, on December 11, 1975, in that said late filing was due to the mistake, inadvertence, and excusable neglect of Petitioner and his attorney, due to a breakdown in communication between them, as well as the fact that they were both laboring under the strain of major criminal proceedings.” That finding of good cause is not attacked on this appeal.