CODRINGTON, J.
The Banning Unified School District (District) was a merit system school district that operated under a personnel commission and human resources (HR) department until June 2015. Petitioner and appellant, Bryan Astrachan, was the director of the personnel commission until the District employees voted to abolish the personnel commission and merit system. Due to the abolition of his position, on June 29, 2015, Astrachan was terminated. He petitioned the court for a writ of mandate, claiming he was a permanent classified employee of the District who was entitled to reinstatement with back pay, and he sought an order that his termination was unlawful because he was deprived of statutory notices, rights and remedies of a classified employee. The court denied the petition and Astrachan appealed.
On appeal, Astrachan contends the court erred in ruling that: (a) he was not a permanent classified employee pursuant to Education Code section 45264;
Prior to June 2015, the District operated under a merit system that had a personnel commission and HR department. The personnel commission was made up of three personnel commissioners: one appointed by the District; one appointed by the employee's union; and one appointed by the personnel commission's other two members. The personnel commission had a director of the personnel commission who provided assistance to the personnel commission and worked as a liaison with the Banning School Board (School Board) and the District's senior management. In August 2007, Astrachan was appointed to the position of director of the personnel commission.
At the time of his appointment, Astrachan was scheduled to work one to two days per week at $200 per day. He completed a six-month probationary period and became permanent in this position. His job was deemed management level class, and was designated as "administrative," by the personnel commission, the body which was charged with approving positions and creating job descriptions. In July 2008, Astrachan's employment was increased to two days per week, or 40 percent of the time. In July 2012, he was authorized to work three days per week, or 60 percent of the time.
By 2010, the District experienced financial difficulties and hired an administrator, Robert Guillen, to assist the District in reorganizing its operations. Guillen decided to eliminate overlapping positions to save money, so he, Astrachan, and other administrators, subsumed duties otherwise attributable to other specific positions. During this time, Astrachan was asked to help check credentials for substitute teachers and assist with other minor HR tasks in addition to his own responsibilities, with the approval of the personnel commission.
Based on the additional duties, Astrachan asserted he was appointed as chief HR officer in 2010. References to him in this capacity appear to be documents created by Astrachan himself. However, he did not have full-time HR duties separate from those that he was already performing as director of the personnel commission, he had no prior experience in HR, did not see a posting or apply or interview for the position, and the Board did not vote to approve Astrachan's position as chief HR officer. Indeed, there was no official position bearing the title chief of HR or chief HR officer. Astrachan's only official position was that of director of the personnel commission.
In the summer of 2012, the superintendent resigned, and the Board asked Astrachan to act as interim superintendent while they vetted applicants and hired a replacement. The new assignment form indicates Astrachan received a stipend of $555 per day for this temporary assignment and his hours were increased to full time. The School Board made it clear to Astrachan that he was temporarily assuming duties as the interim superintendent, and these duties ended in May 2013 when Guillen was offered the position as permanent superintendent.
In 2012, while acting as interim superintendent, the person who had been the director of student services left. At that time, the duties were again split among the administrators until a new director of student services could be hired. During this time, Astrachan expressed concern that no one was overseeing the specific duties of child welfare and attendance, so the Board agreed to allow him to subsume those duties. Thus, in 2013, Astrachan held himself out as director for child welfare and attendance (CWA), although those duties were not stand-alone duties, Astrachan created the job description for the CWA position and was not paid extra salary for the additional duty. No personnel forms existed for the CWA position.
By March 2014, a new director of student services was appointed and resumed the majority of CWA duties by July 2014. Also in 2013, Astrachan was obsessed with creating a formal police department and persuaded Guillen to sign a form indicating he had been designated a peace officer, although this was false. After Astrachan improperly directed a retired peace officer to issue misdemeanor citations ordering students to appear in juvenile court on a Saturday, the district attorney's office and the Banning Police Department informed Guillen that Astrachan was holding himself out as a peace officer.
In December 2014, Astrachan was put on administrative leave and disciplinary proceedings were initiated. After he was placed on administrative leave, Astrachan never returned to work.
On May 14, 2015, five months after Astrachan was placed on administrative leave, the District employees voted to eliminate the personnel commission by majority vote. On May 20, 2015, Superintendent Guillen sent a memorandum to the personnel commission regarding the vote results and notified the personnel commission that it would cease to exist as of June, 30, 2015. The following day, on May 21, 2015, Superintendent Guillen proposed two resolution drafts entitled "Reduction or Elimination of Classified Positions" which would have acknowledged Astrachan's layoff rights as a permanent classified employee for the director and CWA positions. However, neither resolution was acted upon by the School Board.
On June 29, 2015, Superintendent Guillen sent Astrachan a letter, the subject line stated, "Statutory Elimination of Position; Termination of Employment." The letter explained that Astrachan and Guillen had discussed that the CWA job was part of Astrachan's extra duties in his administrative capacity. The letter further advised Astrachan that he did not hold any property rights after June 30, 2015, because his position as director of the personnel commission no longer existed.
On the same day, the District sent Astrachan a written reprimand for the alleged misconduct for which he had been placed on administrative leave. In November 2015, Astrachan petitioned the court for a writ of mandate pursuant to Code of Civil Procedure section 1085 alleging that he was a permanent classified employee. He sought an order (1) compelling the District to reinstate him in the superintendent position, contending no valid notice and board action had occurred to remove him; and alternatively, (2) reemployment rights resulting in reinstatement in his positions as chief HR officer and chief of public safety, (3) reemployment preference and voluntary demotion rights (§ 45298), (4) a determination that the District failed to provide him with statutory notice (§ 45117, subds. (a), (b)) when his classified position was eliminated, (5) back pay and other benefits due to the District's failure to perform their duties, and (6) reasonable attorney's fees.
In January 2016, the District filed an answer to the petition. After hearing argument, the court denied mandamus relief finding Astrachan was an administrative employee, and even if he was a classified employee, he was not entitled to the remedies sought. On September 6, 2017, a statement of decision was entered. Thereafter, on September 29, 2017, judgment denying the petition for writ of mandate was entered. On October 4, 2017, Astrachan filed a timely notice of appeal.
Astrachan contends that, as a matter of law, as director of the personnel commission, he was a permanent classified employee of the District when he was terminated. (§ 45264.) As such, he argues he was statutorily entitled to layoff notice, among other rights and remedies. Astrachan further argues that he is entitled to reinstatement in his former positions as chief HR officer and interim superintendent. We disagree.
An aggrieved party may file a mandamus petition pursuant to Code of Civil Procedure section 1085 to compel a public entity to perform a legal duty, typically one that is ministerial. (Weiss v. City of Los Angeles (2016) 2 Cal.App.5th 194, 204.) To be entitled to mandamus relief, the petitioner must show a clear, present, and ministerial duty on the part of the respondent. A ministerial duty "`is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.'" (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)
In determining whether the court erroneously denied mandamus relief, we apply the substantial evidence standard to review the court's findings. (Hayes v. Temecula Valley Unified School Dist. (2018) 21 Cal.App.5th 735, 746.) This standard of review applies even "`when the matter is heard only on written evidence. . . .'" (Agosto v. Board of Trustees of Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330, 336.)
Under the substantial evidence test, the question is "whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) In making our determination, we "resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.)
Most of Astrachan's claims stand or fall on his contention that he was a classified employee, conferring upon him certain property rights to continued employment and other relief, so we address that claim. It is undisputed that Astrachan was appointed as the director of personnel commission and, having passed the probationary period, held this position as a permanent employee during the period in which the District operated under a merit system. As we will show, the record supports the trial court's finding that he was not a classified employee.
In 1935, the Legislature introduced merit systems into local public school personnel administration in accordance with a comprehensive statutory scheme. (§ 45240 et seq.) The statutory model established an independent personnel commission (§ 45243) charged with the duty to classify all school employees and positions not otherwise expressly exempted (§ 45256; see also § 45258) and to enact rules binding upon the governing board designed to promote efficiency and merit employment (§ 45260). (California School Employees Assn. v. Del Norte County Unified Sch. Dist. (1992) 2 Cal.App.4th 1396, 1403, citing Sonoma County Bd. of Education v. Public Employment Relations Bd. (1980) 102 Cal.App.3d 689, 694-696.)
The commission has authority to review certain decisions at the instance of an affected employee. (Personnel Com. v. Barstow Unified School Dist. (1996) 43 Cal.App.4th 871, 878.) Personnel commissions also are granted the authority to prescribe, amend and interpret "such rules as may be necessary to insure the efficiency of the [classified] service and the selection and retention of employees upon a basis of merit and fitness." (§ 45260, subd. (a); Personnel Com. v. Barstow Unified School Dist., supra, at p. 878.)
The director of the personnel commission is appointed by the other two members of the commission, pursuant to section 45240; it operates wholly independent of a school board and is not subject to the board's control. (Personnel Com. v. Board of Education (1990) 223 Cal.App.3d 1463, 1468.) The personnel commission then establishes the classified service (§ 45256), and, after establishing a budget for its own office (§ 45253), the commission appoints a personnel director for its own staff. (§ 45264.) The personnel director, who is appointed by the commission but is not a member of it, is responsible for carrying out all procedures in the administration of the classified personnel, and also acts as secretary of the commission. (§45266.) The staff members of the personnel commission are classified employees. (Hood v. Compton Community College Dist. (2005) 127 Cal.App.4th 954, 962-963.)
Sections 45200 to 45320 cover classified employees in districts which have adopted merit systems. (California School Employees Assn. v. Del Norte County Unified Sch. Dist., supra, 2 Cal.App.4th at p. 1402.) In a merit system, "all persons, including supervisors, who are regularly employed by school districts and are not specifically exempted by the statutes are part of the classified service." (California School Employees Assn. v. Del Norte County Unified Sch. Dist., supra, at p. 1403, citing, California School Employees Assn. v. Sequoia Union High School Dist. (1969) 272 Cal.App.2d 98, 109-110; California School Employees Asso. v. Willits Unified School District (1966) 243 Cal.App.2d 776, 783-785.)
Although the governing board of a school district has primary authority to make employment decisions regarding classified employees, it is the personnel commission that is responsible for "classifying" all of these employees and positions. (§ 45103, subd. (a); Personnel Com. v. Barstow Unified School Dist., supra, 43 Cal.App.4th at p. 878.) The personnel commission's director is an officer of the personnel commission as distinguished from the director of personnel employed by a school district. (California School Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 143, fn. 1.) In other words, the director of the personnel commission is distinct from the personnel director employed by the commission; the terms are not interchangeable.
Members of the personnel commission are not classified employees; the statutory provision describing classified employees expressly excludes members of the personnel commission. (See § 45103, subd. (a) ["The governing board of a school district shall, except where Article 6 (commencing with [s]ection 45240) or [s]ection 45318 applies, classify all of these employees and positions. The employees and positions shall be known as classified service."].) Insofar as the personnel commission operates independently of the school board (Personnel Com. v. Board of Education, supra, 223 Cal.App.3d at p. 1468), and performs the function of classifying employees, members of the personnel commission are not classified employees. For this reason, Astrachan, who was hired as the director of the personnel commission, was not a classified employee.
Nor was he a senior management employee. A senior management employee is an employee in the highest position in a principal district program area, as determined by the governing board, which does not require certification qualifications, and which has districtwide responsibility for formulating policies or administering the program area. (§ 45108.5, subd. (a)(1).) Senior management positions fall within the classified service and are afforded all rights, benefits and burdens of other classified employees. (§ 45100.5, subd. (b).)
However, such a position must be designated by a resolution of the governing board of a school district (§ 45100.5, subd. (a)), and their duties are fixed and prescribed by the governing board. (§ 45109.) In fact, a classified employee is not required to perform any duties not fixed and prescribed by the governing board. (§ 45110.) As we have already established, the governing school board has no authority over the personnel commission and section 45244, subdivision (a)(2), expressly prohibits a member of the personnel commission from being an employee of the district. (See Hood v. Compton Community College Dist., supra, 127 Cal.App.4th at pp. 960-961.) For this reason, as an appointed member of the personnel commission, Astrachan could not be a senior management employee of the District.
Instead, Astrachan's position on the personnel commission was administrative in nature, as it was described in the job posting created by the personnel commission. It has been authoritatively established in California that school administrators serve at the pleasure of the governing board. (Grant v. Adams (1977) 69 Cal.App.3d 127, 132.) Administrative and supervisory personnel do not possess a statutory right to their positions. (Barthuli v. Board of Trustees (1977) 19 Cal.3d 717, 721.)
At all times, his official title was director of the personnel commission, and no matter how many other duties he subsumed, he was paid a per diem rate rather than a salary. He never saw a job posting for any of the additional positions he claimed to have filled, never applied for any of those positions, and was never interviewed. Thus, there is substantial evidence to support the finding by the trial court that Astrachan was not a classified employee, which is dispositive of all of Astrachan's claims.
While a permanent classified employee has a property right in continued employment, with rights to notice of termination or layoff, and reinstatement in the case of layoffs for lack of work or lack of funds (§§ 45117, subds. (a), (b), 45302; Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 109-110), no similar provision is made for an administrator whose position is terminated by the abolition of the position. A classified employee is eligible for reemployment for a period of 39 months, with "bumping rights" over new applicants. (§§ 45298, subd. (a), 45308.) As an at-will administrative employee, Astrachan was neither entitled to notice of the termination of his position, nor bumping rights.
Astrachan argues that as personnel director he was a classified employee, relying on Hood v. Compton Community College Dist., supra, 127 Cal.App.4th 954. However, that case is inapposite. There, members of the personnel commission's staff sued the District for constructive discharge. The trial court had granted the District's motion for summary judgment, finding that the plaintiffs were employed by the personnel commission and not by the District. The reviewing court reversed because pursuant to section 88084 (the community college equivalent of section 45264) commission staff members were classified employees of the District as a matter of law. (Hood v. Compton Community College Dist., supra, at p. 963.) Astrachan, as a commission member, and not a member of the staff, was not a personnel director, and was not entitled to layoff notice, rights or other remedies afforded permanent classified employees of the District. There is substantial evidence to support the trial court's findings.
Even if we concluded that Astrachan was a classified employee, he would not be entitled to notice prior to his termination or reemployment with preference over new applicants, because the merit system was abolished, terminating his position, so he was not laid off.
A school district's power to terminate permanent classified employees is restricted by statute. (Taylor v. Board of Trustees of the Del Norte Unified School District (1984) 36 Cal.3d 500, 504-505.) However, classified employees may be laid off for lack of work or lack of funds. (§ 45308, subd. (a).) "If a classified employee is laid off, the order of layoff within the class shall be determined by length of service. The employee who has been employed the shortest time in the class, plus higher classes, shall be laid off first. Reemployment shall be in order of seniority." (§ 45308, subd. (a).) A layoff is referred to as "an interruption of employment" (§45101, subd. (g)), or a "suspen[sion] of the employment relationship . . . for a time."
Astrachan argues he was entitled to 60 days' notice of the impending layoff pursuant to section 45117, subdivision (b) as a classified employee. That section applies when, as a result of a bona fide reduction or elimination of service being performed by any department, classified employees are subject to layoff for lack of funds or lack of work. Under those circumstances, employees are entitled to 60 days' notice of the layoff. (§ 45117, subd. (b).) He also contends that he was entitled to reemployment with preference over new applicants pursuant to section 45298, due to the layoff, as well as reinstatement of his position as chief HR officer, pursuant to section 45308. We disagree.
First, the record does not support Astrachan's position that he was laid off for lack of work or lack of funds. Such layoffs occur as the result of a "bona fide reduction or elimination of the service being performed by a department. (Gately v. Cloverdale Unified School Dist. (2007) 156 Cal.App.4th 487, 496.) Astrachan's position was eliminated when the classified employees
The abolition of the merit system qualified as a cause that was not foreseeable or preventable by the governing board (§ 45117, subd. (d)(2)), and for which notice was not required. Indeed, notice would have been impossible: Section 45320 provides that upon a successful election to terminate the merit system, the personnel commission shall cease to function on the date specified in the election and the law pertaining to merit system districts or county offices of education shall ease to have any force or effect.
Astrachan was given notice of the date on which the personnel commission would be dissolved. Absent a layoff for lack of funds or lack of work, Astrachan was not entitled to the notice prescribed by section 45117.Astrachan also contends he is entitled to be reinstated in his former positions as chief HR officer and interim superintendent. Again, we disagree.
Section 45298 governs reemployment for persons laid off for lack of work or lack of funds. As we have noted, Astrachan was not laid off for lack of work or lack of funds, which precludes invocation of the statutory remedy he seeks. Additionally, the remedies provided there were intended for employees who have attained permanent status in a position, and reemployment is restricted to the position or class in which permanent status was attained. (California School Employees Assn. v. Governing Bd. Of East Side Union High School Dist. (2011) 193 Cal.App.4th 540, 542, 547.) Because the merit system was abolished, there cannot be any future opening for the position in which Astrachan achieved permanent status.
Astrachan never attained permanent status as chief HR officer, if that position ever existed. The record overwhelmingly shows that the School Board did not approve of the chief HR position, nor did the personnel commission create a job description for such a position, nor did Astrachan apply or interview for the position, nor was he paid a salary for this position. He did subsume some HR duties while working in his administrative capacity as the director of the personnel commission, and acted as a temporary interim superintendent while the District searched for a permanent replacement. However, Astrachan did not have a written contract and was paid a differential daily rate.
He was never a permanent employee in either of the positions for which he argues he is entitled to reinstatement. Thus, even if Astrachan had been laid off for lack of work or lack of funds, and even if it could be said he was a classified employee, it cannot be said he achieved property rights to continued employment as a permanent employee as chief HR officer.
Astrachan was not entitled to be reinstated to the nonexistent position as for his position as acting interim superintendent, the very temporary nature of that position means it was not a permanent position for which he was entitled to reinstatement.
The judgment is affirmed. Each party shall bear their own costs on appeal.
