Wednesday, February 05, 2014

What sort of employee is preferrred at a corrupt community college like Southwestern? Court of Appeal decides Poveda case

This Southwestern College employment case has been reversed and remanded by the Court of Appeal. It was argued by school attorneys Atkinson Andelson Loya Ruud Romo. This is the new law firm of Mark Bresee, who has a long history in San Diego and Orange Counties. Mr. Bresee worked closely with school attorney Dan Shinoff in Chula Vista Elementary and other schools.

Mark Bresee

Poveda v. Southwestern Community College Dist.
CA4/1, D062460 (Cal. Ct. App. 2014)
California Courts of Appeal

Date Filed: January 17th, 2014
Docket Number: D062460

(Super. Ct. No. 37-2011-00099248- CU-WM-CTL)



Plaintiff and Appellant,



Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Richard E. L. Strauss, Judge. Reversed and remanded with directions.
v David S. Bristol, Boudreau Williams and Jon R. Williams for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Marlon Craig Wadlington for Defendant and Respondent.

Fernando Poveda appeals the trial court's denial of his petition for writ of mandate filed under Code of Civil Procedure section 1085. He contends that during the 39 months after his former employer, respondent Southwestern Community College District (Southwestern), laid him off for lack of funds, he applied for several positions at Southwestern, but Southwestern filled those positions without granting him the reemployment preference to which he was entitled under Education Code1 section 88117. Southwestern counters that it filled all those positions internally with current Southwestern employees. It interprets section 88117 as requiring it to grant Poveda reemployment preference over only external applicants, that is, those not currently employed at Southwestern.

The issue presented is whether the term "new applicants" used in section 88117 applies only to external applicants or to both internal and external applicants. We agree with Poveda and conclude that the latter interpretation comports with the statute's plain terms and the legislative scheme. Accordingly, we reverse the judgment and remand for the court to grant Poveda's writ petition and determine the appropriate relief under Code of Civil Procedure section 1095.


In an October 2011 verified petition for writ of mandate, Poveda alleged that Southwestern hired him in October 1991 as coordinator for outreach/school and community relations, a classified administrative position that later was elevated to a 2 directorship level. In 1999, Poveda held the position of interim dean of student activities for approximately seven months. Effective June 2009, Southwestern eliminated Poveda's job as director of outreach because of lack of work or funds, and not because of his work performance. Southwestern notified him he was eligible for reemployment preference under section 88117. In July 2011, Poveda applied for three deanships, two directorships, three supervisor positions and all open supervisor or administrative positions at Southwestern.2 Southwestern never interviewed Poveda, but instead filled the vacancies internally. Poveda's writ petition sought damages, including employment in one of the positions he had applied for, back pay and lost benefits.

In opposing Poveda's writ petition, Southwestern did not dispute his factual claims; rather, it argued that section 88117 granted Poveda preference over new external applicants only, and not over internal ones. Southwestern acknowledged that although it is not a merit district, section 88117 applies to it under section 88014. Southwestern argued that, faced with massive budget cuts over several years, it was forced to restructure its operations and therefore eliminated certain positions, reduced the total number of full-time employees, and filled other positions internally as permitted by California Code of Regulations, title 5, section 530213. Southwestern claimed that
3 California Code of Regulations, title 5, section 53021 states: "Except as otherwise provided in this section, community college districts shall actively recruit from both
because it does not use promotional or other employment examinations, it could not have violated section 88117, subdivision (a)(2).

Joseph Quarles, Southwestern's interim vice-president of human resources, explained in a supporting declaration why Southwestern did not grant Poveda the reemployment preference. Quarles stated that approximately 87 percent of Southwestern's expenditures are personnel costs, including salaries and benefits. In 2011, in light of reduced state and federal funding, Southwestern reorganized and restructured its operations and programs. Quarles stated that in filling the challenged positions, Southwestern relied on its internal policy titled, "Recruitment and Hiring Policy and Recruitment and Hiring Procedure (No. 7120)," and reviewed all vacancies "for a determination of the necessity of continuing the position and other means of providing services that were less costly. Only where [Southwestern] determined that an absolute need existed for the services provided by a particular position was the position filled. Because the ultimate goal was a reduction in personnel costs, it was determined that instead of following the normal hiring procedure, the vacancies would first be advertised

within and outside the district work force to attract qualified applicants for all new openings. . . . The requirement of open recruitment shall apply to all new full-time and part-time openings in all job categories and classifications." (Cal. Code Regs., tit. 5, 53021, subd. (a).) However, the regulation creates an exception permitting the community college to conduct " '[i]n-house or promotional only' " recruitment under limited circumstances. (Cal. Code Regs., tit. 5, § 53021, subd. (b)(1).) The regulation specifies: "For purposes of this section, a new opening is not created when: (1) there is a reorganization that does not result in a net increase in the number of employees; (2) one or more lateral transfers are made and there is no net increase in the number of employees; (3) a position which is currently occupied by an incumbent is upgraded, reclassified, or renamed without significantly altering the duties being performed by the individual." (Cal. Code Regs., tit. 5, § 53021, subd. (c).)

4 internally for current employees only. If no qualified current employees were found, then the position would be advertised to non-employees. The positions identified by [Poveda] in his declaration and pleadings were all advertised internally only and only current employees were permitted to apply for the positions."4

The court denied Poveda's petition for writ of mandate. It ruled nothing in section 88117 required Southwestern to grant Poveda reemployment preference over internal applicants, and if the Legislature had intended that result, it would have specified that laid-off individuals were entitled to preference over "other new applicants." It reasoned that section 88117 did not apply to Poveda because he was a laid-off employee, and not a "new applicant."


Poveda contends that under a plain reading of section 88117, the term "new applicants," over whom he had reemployment preference, applies to both internal and external applicants. By contrast, Southwestern interprets section 88117 to require it to grant a laid-off employee a reemployment preference only over external applicants...

All statutory references are to the Education Code unless otherwise stated.

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