JAMES WARD v.

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION Complaint Alleging Illegally Voided Appointment

Case No. 09-2437E RESOLUTION

WHEREAS, the State Personnel Board has considered carefully the findings of fact and Proposed Decision filed by the Administrative Law Judge in the above matter; and WHEREAS, by said Proposed Decision granting Appellants Complaint is hereby REJECTED. IT IS RESOLVED AND ORDERED that the Board will decide the case itself, upon the record, and the matter shall be set for written and/or oral argument before the Board. The parties right to argue other matters is not limited, but the Board invites particular discussion on the following issue: 1. Was the Chief Dentist position advertised as a full-time permanent position? Was Appellant eligible to be appointed to a permanent, full time position as Chief Dentist? Once the Chief Dentist position became available to be filled as permanent, full-time, was CDCR obligated to advertise for that position?

2.

3.

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James Ward Case No. 09-2437E Page 2 of 2 4. What authority, if any, did the ISP Personnel Specialist, Delegated Testing Officer/AGPA, and/or the Respondents Regional Dental Director, IV, have to modify the advertised Chief Dentist, Limited Term classification to a permanent position? Is the NOPA legally controlling over the verbal representations made to Appellant by Respondents representatives that the Chief Dentist, Limited Term classification was only temporary and that Appellant was actually being hired to a permanent, full-time position? * * * * *

5.

The foregoing Resolution was made and adopted by the State Personnel Board in Case No. 09-2437E at its meeting on September 20, 2011, as reflected in the record of the meeting and Board minutes. DATE: September 20, 2011 /s/ SUZANNE M. AMBROSE SUZANNE M. AMBROSE Executive Officer

James Ward Case No. 09-2437E Page 1 of 19

JAMES WARD v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION Complaint Alleging Illegally Voided Appointment

Case No. 09-2437E Proposed Decision

STATEMENT OF THE CASE This matter came on regularly for hearing before Jeanne R. Wolfe, Administrative Law Judge (ALJ), State Personnel Board (SPB), on June 20 and 21, 2011, in Rancho Cucamonga, California. The matter was submitted after oral closing arguments on June 21, 2011. Complainant, James Ward (Complainant), was present and represented by Wendell Phillips, Attorney, Phillips & Rickards, Attorneys at Law. Respondent, California Department of Corrections and Rehabilitation,

(Respondent, Department, or CDCR) was represented by Michael J. Early, Deputy Attorney General, California Department of Justice, and Julie A. Hawpe, Staff Services Manager, Institutional Personnel Officer, Ironwood State Prison (ISP), CDCR. Complainant contends he was appointed to the full-time, permanent position of Chief Dentist, ISP, and that CDCR subsequently changed that appointment to a limitedterm position without first seeking the approval of the SPB, as required by Government Code section 19257.5. Complainant does not dispute that he read and signed the Notice of Personnel Action (the NOPA) stating that the Chief Dentist appointment was in a full-time, limited-term capacity. Complainant argues that he was improperly induced

James Ward Case No. 09-2437E Page 2 of 19 to his detriment to sign the NOPA based upon representations by Respondent. Complainant also alleges that Respondent failed to officially return him to a full-time permanent position as Chief Dentist, ISP, and instead terminated his employment on July 2, 2009, claiming the limited-term position had expired. Complainant seeks

reinstatement to a full-time permanent position as Chief Dentist1 with all back pay and benefits he is owed. Respondent denies that Complainant was appointed to a full-time permanent position as Chief Dentist, since Complainant voluntarily signed the NOPA which clearly states that his appointment to Chief Dentist was in a full-time, limited-term capacity. Respondent further denies anyone acting on behalf of Respondent improperly induced Complainant to sign the NOPA. Accordingly, Respondent contends that Complainants complaint should be dismissed. ISSUES The issues to be resolved are: 1. Was Complainant appointed to a full-time, permanent position as Chief Dentist? 2. If Complainant was appointed to a full-time, permanent position as Chief Dentist, did Respondent unlawfully void the appointment? 3. If Respondent unlawfully voided the appointment, what remedies, if any, is Appellant entitled to under Susan McGuire (1991) SPB Dec. 91-05?

During the evidentiary hearing, Appellant acknowledged that the Chief Dentist classification no longer exists. As a result, Appellant does not object to being returned to the current equivalent position of Chief Dentist, which he believes is Supervising Dentist.

James Ward Case No. 09-2437E Page 3 of 19 FINDINGS OF FACT A preponderance of the evidence proves the following facts: 1. Complainant filled out the Examination and/or Employment Application for Dentist (Correctional Facility). application on April 1, 2006. 2. The Employment Inquiry shows that Complainant was successful in the examination for Chief Dentist, Correctional Facility, full time, temporary for 12 months, located at ISP. Complainant signed and dated the Employment Inquiry on November 13, 2006. 3. Yvonne Olivas, Delegated Testing Officer/AGPA, ISP (Olivas), sent a letter to Complainant dated December 1, 2006, stating that he was scheduled for an interview at ISP for the position of Chief Dentist, C.F., limited term, up to 12 months. This position may become permanent full time in the Complainant signed and dated the

future. Complainant thereafter interviewed for the Chief Dentist position. During the interview, the appointment type of the position was not discussed. 4. On April 30, 2007, Complainant spoke with Olivas on the telephone. On behalf of ISP, she offered him the position of Chief Dentist. She also told him that the position was permanent. She asked him if he accepted the position, and Complainant replied absolutely. Complainant believed she had the authority to make the offer on behalf of ISP. 5. Olivas sent a letter to Complainant dated April 30, 2007, stating that ISP was offering you the position of Chief Dentist, C.F., permanent full time,

James Ward Case No. 09-2437E Page 4 of 19 contingent upon approval of your medical examination, Tuberculosis (TB) test results and live scan fingerprints. 6. The Health Questionnaire (With Physicians Report) was completed and signed by Complainants examining physician on May 21, 2007. The form shows that the appointment type for Complainant is permanent. Someone other than Complainant marked the appointment type of the position as permanent. 7. Complainant settled his affairs in San Diego. He and his wife both quit their respective jobs, and they bought a home in Blythe. They thereafter moved to their home in Blythe. 8. On July 2, 2007, Complainant began working at ISP as the Chief Dentist. He believed his position was a full-time permanent position. He also filled out numerous personnel forms, including the Personnel Identification Card Information. Under Type of Appointment (Check One), there is a check mark in the box next to permanent. Someone other than Complainant had checked the box next to permanent. Subsequently, at an unknown date, someone other than Complainant scribbled over the original check mark and checked the box next to limited term. 9. Between April 30, 2007 and July 18, 2007, no one told Complainant that the appointment type of the Chief Dentist position he had accepted had been changed from a full-time permanent position to a full-time, limited-term position for 24 months.

James Ward Case No. 09-2437E Page 5 of 19 10. A NOPA was issued on July 18, 2007, for Complainants appointment to Chief Dentist. The NOPA shows the classification title as Chief Dentist, Correctional Facility and the appointment status as Civil Service, Limited Term with an expiration date of July 1, 2009. The NOPA also states: THIS IS YOUR OFFICAL APPOINTMENT AS SUBMITTED BY YOUR DEPARTMENT AND ENTERED ON YOUR OFFICIAL EMPLOYMENT HISTORY RECORD. PLEASE SIGN AND RETURN THE ORIGINAL TO YOUR DEPARTMENTAL PERSONNEL OFFICE WITHIN 10 WORKING DAYS. YOUR SIGNATURE CERTIFIES THAT TO THE BEST OF YOUR KNOWLEDGE YOU HAVE PROVIDED YOUR DEPARTMENT WITH COMPLETE AND FACTUAL INFORMATION NECESSARY FOR A PROPER APPOINTMENT; AND THAT YOU INTEND TO SERVE IN THIS CLASS, TENURE, LOCATION AND OTHER ELEMENTS OF THIS APPOINTMENT AS REFLECTED ON THIS DOCUMENT; AND YOU WILL MAKE A REASONABLE ATTEMPT TO SEEK CORRECTION OF ANY ASPECT OF THIS APPOINTMENT THAT YOU KNOW IS ILLEGAL. THE INFORMATION AS SHOWN ON THIS DOCUMENT IS ASSUMED CORRECT UNLESS YOU NOTIFY YOUR DEPARTMENTAL PERSONNEL OFFICE IN WRITING OF ERRORS WITHIN 30 CALENDAR DAYS FROM ISSUE DATE. ANY CHANGE IN SALARY OR CIVIL SERVICE STATUS IS SUBJECT TO STATE PERSONNEL BOARD APPROVAL. 11. Complainant received a copy of the NOPA on or about July 18, 2007. Complainant was surprised that the NOPA showed that the Chief Dentist position was a limited-term position. Complainant did not fully understand the meaning of limited-term. He went to the Personnel Office and spoke with an ISP Personnel Specialist named Sherry.2 He asked her what the form meant. She told him that to be paid he would need to sign the NOPA.
2

She also

Sherrys last name was not established at hearing. Therefore, she is referred to as Sherry or Personnel Specialist.

James Ward Case No. 09-2437E Page 6 of 19 referred him to Lynda Mixon (Mixon), the Respondents Regional Dental Director, IV, to whom Complainant reported. 12. Complainant thereafter spoke with Mixon, telling her he did not like the change in the appointment status of the Chief Dentist position from permanent to limited term. She told him not to worry, and it was a temporary measure that would be changed soon. She also told him that Linda Martinez (Martinez), who had previously held the position of Chief Dentist at ISP, was in an acting position at headquarters, but once her acting position was made permanent, then Complainants position would be rolled over to a permanent status. Complainant thus understood that the limited-term status of his appointment to Chief Dentist was a temporary matter that would be rolled over to a permanent appointment once Martinezs acting position was converted to a permanent position. 13. Based upon what Mixon and Sherry told Complainant, Complainant, on July 25, 2007, signed and dated the NOPA with the belief that once Martinezs acting position became permanent his Chief Dentist position would become permanent. 14. On August 9, 2007, Martinezs position in headquarters was made permanent; thus, the Chief Dentist position at ISP was able to become permanent as well. Respondent, however, maintained the Chief Dentist

position as a limited-term position. 15. Complainant learned that Martinezs position had been made permanent. He contacted Mixon to find out when the Chief Dentist position he held at ISP

James Ward Case No. 09-2437E Page 7 of 19 would be made permanent, and Mixon responded that she thought that change had already happened. She also told him she would speak with C. Park3 (Park), D.D.S., Acting Deputy Statewide Dental Director. Complainant did not hear back from Mixon or Park. 16. On October 3, 2008, Mixon sent an email to Complainant informing him that the Dental Program had decided to hold interviews for the permanent Chief Dentist position at ISP. The email also states that it was determined that the CD hiring interviews would be opened to all viable candidates interested in a permanent position since previously the position could only be advertised as [a] limited term position. The email ends, We look forward to you applying for the permanent CD (PFT) position. 17. While Complainant did not agree with the decision not to make him the permanent Chief Dentist, he submitted an application and interviewed for the position. After the interview, Mixon told Complainant he was the most qualified candidate for the position and that after his name was approved on the state level his name would be submitted to the Health Care Manager, John Culton (Culton), M.D., for approval. 18. Culton did not sign Complainants hiring package. Following the expiration date of the hiring package, Complainant spoke with Culton. Culton informed Complainant that he had failed the supervisory check because there was a pending equal employment opportunity (EEO) complaint against him.4
3 4

Parks first name was not established at hearing. The EEO complaint stemmed from circumstances in which Complainant recommended that a dentist not be passed on probation. Complainant denies that he ever discriminated in any way against the dentist.

James Ward Case No. 09-2437E Page 8 of 19 19. The ISP Chief Dentist, limited-term position expired on July 1, 2009. On that same date, Complainant was terminated from state service on the basis that his limited-term position had expired. PRINCIPLES OF LAW AND ANALYSIS An appointment means the offer to and acceptance by a person of a position in the State civil service in accordance with this part. (Gov. Code, 18525.) Once an appointment has been made, only the SPB may void the appointment. The statutory authority granting this power to the SPB extends for one year: When the appointment of any employee has been made and accepted in good faith, but where such appointment would not have been made but for some mistake of law or fact, which if known to the parties would have rendered the appointment unlawful when made, the Board may declare the appointment void from the beginning if such action is taken within one year after the appointment. (Gov. Code, 19257.5.) The SPB has recognized that [o]n occasion, after an individual has accepted an offer of appointment, something is discovered or occurs prior to the agreed upon start date that makes the appointment impractical or illegal. (SPB Memorandum to All State Agencies and Employee Organizations, Aug. 1, 1990 [SPB 1990 Memorandum].)5 In that same memorandum, the SPB recommends the approach a department should take in such an occurrence: Before a decision not to appoint the individual is made, the appointing power or his or her designee should consult with the departmental personnel analyst in the Affirmative Action and Merit Oversight Division (AAMOD). Consideration must be given to what, if any, actions the person took (e.g., quit a job) as a result of relying on the offer, as well as the circumstances that make the appointment impractical, before deciding
5

These types of memorandums, which are distributed to state agencies, are informally referred to as SPB pinkies.

James Ward Case No. 09-2437E Page 9 of 19 upon a course of action. In addition, the affected individual should be notified as soon as possible that there is a problem in order that he/she may take, or refrain from taking, actions in order to minimize the impact of a decision not to appoint. (Ibid.) The SPB August 1990 Memorandum also points out that [m]any things could happen between the time an offer of appointment has been accepted and the agreed upon start date which might warrant not appointing the individual. (SPB 1990

Memorandum.) For example: A person with a mandatory right of return to the class of appointment must be reinstated and there are no other vacancies in the class. (Ibid.) Regardless of whether appointment documents have been processed or all the necessary approvals have occurred, an appointment occurs when an individual enters upon the duties following an offer and acceptance. That person has an appointment and can not be involuntarily removed from that appointment except by those means provided by law (e.g., adverse action, rejection from probation, layoff, medical termination, etc.). This includes appointments where it is discovered that the person does not have the required civil service eligibility; such appointments can be terminated (voided) only through Personnel Board staff action. (Ibid., emphasis added.) The proper procedures for voiding an unlawful appointment are set forth in California Code of Regulations, title 2, section 266. Section 266 provides, in pertinent part: When the executive officer determines that an appointment is unlawful, the executive officer shall determine the good faith of the appointing power and the employee under Rule 8 and shall take corrective action up to and including voiding the appointment, provided that: (a) No corrective action shall be taken on any appointment which has been in effect for one year or longer if both the appointing power and the employee acted in good faith; . . . .

James Ward Case No. 09-2437E Page 10 of 19 In Susan McGuire (1991) SPB Dec. No. 91-05 [McGuire], the appellant accepted an appointment as a full-time firefighter and as a permanent, intermittent correctional officer. She agreed she would be paid at straight time. Subsequently, the department learned that under the Fair Labor Standards Act (FLSA) the department was required to pay her overtime for the hours she worked as a correctional officer. Within one year of the appointment to a permanent, intermittent correctional officer the department voided her appointment, but never filed anything with the SPB requesting that the appointment be voided. The appellant appealed her termination. The department argued that the appointment, although accepted in good faith, would have been unlawful when made; therefore, its decision to void the appointment should stand. The SPB disagreed, finding that the department, rather than taking unilateral action to void the appointment, should have filed a request to void the appointment with the Executive Officer of the SPB pursuant to statutory and regulatory mandates. The SPB further found that it lacked the authority to declare the appointment void since more than one year had lapsed since the appointment. Consequently, the SPB set aside the Departments attempt to revoke the appellants appointment and reinstated the appellant to her position as a permanent, intermittent correctional officer with back pay and benefits, as appropriate. In this case, on April 30, 2007, CDCR offered to Complainant, and Complainant accepted, a full-time, permanent position as Chief Dentist, contingent upon approval of Complainants medical examination, Tuberculosis test results, and live scan fingerprints. Thereafter, Complainant successfully satisfied those contingencies, and began working at ISP on July 2, 2007. When Complainant began working at ISP on July 2, 2007, he

James Ward Case No. 09-2437E Page 11 of 19 had a reasonable, good faith belief that his position as Chief Dentist was in a full-time, permanent capacity based upon the conduct and actions of Respondent preceding and on July 2, 2007. The afore-stated circumstances establish that on July 2, 2007, Complainant was appointed to Chief Dentist in a full-time permanent capacity. The language of the SPB 1990 Memorandum, although not precedential but advisory in nature, supports this conclusion: Regardless of whether appointment documents have been processed or all the necessary approvals have occurred, an appointment occurs when an individual enters upon the duties following an offer and acceptance. The analysis does not stop there, however. It was not until on or about July 18, 2007, when Complainant first received and read the NOPA, that he learned CDCR did not intend to make his appointment to Chief Dentist a full-time permanent position, but rather a full-time, limited-term position. After speaking with a staff member in Respondents personnel office (Sherry) and the Regional Dental Director (Mixon), Complainant signed the NOPA on July 25, 2007, believing he had to sign the NOPA to be paid and believing what Mixon had told him: the limited-term nature of the Chief Dentist position would be rolled over into a permanent position once Martinezs acting position in headquarters was made permanent. Notwithstanding Complainants belief, the NOPA itself states that Complainants appointment to Chief Dentist was a full-time, limited-term position, not a full-time permanent position, with an effective date of July 2, 2007, Complainants start date at ISP. The significant question in this case does not concern the SPBs power over appointments, that power is clear: Only the SPB may void an appointment. Instead,

James Ward Case No. 09-2437E Page 12 of 19 this case concerns whether Complainant was appointed to a full-time, limited-term position as Chief Dentist by virtue of his decision to sign the NOPA, which backdated the effective date of the limited-term appointment to July 2, 2007. Stated another way, does the NOPA legally supersede and thereby nullify Complainants July 2, 2007, appointment to a full-time, permanent position as Chief Dentist? At hearing, Complainant did not dispute that if there had been mutual and voluntary agreement of the parties, the NOPA would be the controlling document establishing the status of Complainants appointment to Chief Dentist. Complainant contended, however, that the NOPA is not the legally operative document because Complainant was improperly induced to his detriment to sign the NOPA based upon the statements and representations of Mixon and Sherry. Respondent contended that Complainants decision to sign the NOPA was voluntary, and therefore, the NOPA is the legally operative document controlling the legal status of Complainants appointment. Complainants argument hinges upon principles of equitable estoppel, a doctrine the SPB recognized in Marc Shelton (1994) SPB Dec. 94-19, 26-27 (Shelton), can be applicable to state agencies, albeit the appellant in Shelton failed to establish that equitable estoppel should be applied. (See Feduniak v. State Coastal Commission (2007) 148 Cal.App.4th 1346, 1359 [Government not immune from doctrine of equitable estoppel, and it may be applied where justice and right require it, except if doing so would effectively nullify a strong rule of policy].)6 The SPB states in Shelton:

At the hearing, no argument was made that applying the doctrine of equitable estoppel in this case would effectively nullify a strong rule of policy.

James Ward Case No. 09-2437E Page 13 of 19 In Lentz v. McMahon (1989) 49 Cal.3d 393, 399, the California Supreme Court noted that: [t]he modern doctrine of equitable estoppel is a descendant of the ancient doctrine that 'if a representation be made to another who deals upon the faith of it, the former must make the representation good if he knew or was bound to know it to be false.' (citations omitted). The Supreme Court went on to enumerate the elements of modern estoppel: Generally speaking, four elements must be present ...: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. (citations omitted). Id. The Evidence Code codifies an aspect of equitable estoppel as well: Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it. (Evid. Code, 623.) While this statutory language uses language of intent, the courts have found that equitable estoppel has not been narrowly defined to mean fraud. (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 161-162 [Hoopes].) The First District Court of Appeal in Hoopes explains: Equitable estoppel has been applied in a broader context [than fraud], where the party to be estopped has engaged in inequitable conduct, induced another party to suffer a disadvantage, and then sought to exploit the disadvantage. (City of Hollister, supra, at p. 488, 81 Cal.Rptr.3d 72.) Broadly speaking, estoppel refers less to a doctrine than to a conceptual pattern, first articulated in the courts of equity, which has come to pervade our law. When it is successfully invoked, the court in effect closes its ears to a pointa fact, argument, claim, or defenseon the ground that to permit its assertion would be intolerably unfair. It is commonly said that the

James Ward Case No. 09-2437E Page 14 of 19 party to be estopped, having conducted himself in manner X, will not be heard to assert Y. (Id. at p. 486, 81 Cal.Rptr.3d 72, fn. omitted.) (Id. at p. 162.) Applying the estoppel factors as stated in Shelton, it can be reasonably assumed that Sherry, who worked in Respondents personnel office as a Personnel Specialist, knew and understood the consequences for an employee who does not sign a NOPA. It can also be reasonably assumed that Mixon, based upon her high ranking position as a Regional Dental Director, knew the facts surrounding Complainants appointment to the Chief Dentist position. As to the second element of equitable estoppel, Mixons subjective intent was not established. Nonetheless, Complainant had a reasonable, good faith belief that, given her position and statements to him, she intended for him to sign the NOPA with the understanding that the limited-term status of the Chief Dentist position would be converted to a permanent status once Martinezs acting position in headquarters was made permanent. Regarding the aspect of detrimental reliance, which is essential to the equitable estoppel analysis, Complainant sold his home in San Diego, quit his job, as did his wife, and moved to Blythe based upon a reasonable, good faith belief that CDCR had appointed him as Chief Dentist on a full-time permanent basis.7 Upon receiving the

CDCR, for its part, between approximately April 30, 2007, and July 2, 2007, failed to demonstrate due diligence regarding Complainants hiring. Had CDCR acted with due diligence, the department could have and should have known that Martinezs acting position had not yet been classified to a permanent position. Had the department acted with due diligence in this regard, it could have informed Complainant that the Chief Dentist position was not full time and permanent, as a departments representative had told him verbally and in writing. CDCR, not Complainant, was in the best position to know the status of Martinezs appointment.

James Ward Case No. 09-2437E Page 15 of 19 NOPA, Complainant reasonably and understandably sought information and guidance from Respondents Personnel Office and from a superior.8 Complainant relied to his detriment upon Mixons and the Personnel Specialists representations when he signed the NOPA: he was misled to believe that he must sign the NOPA to be paid, and he was misled to believe that his appointment as Chief Dentist in a limited-term capacity would roll over to a permanent position once Martinezs acting position was converted to a permanent position. A change in the appointment status never occurred and Complainant was terminated from state service on the grounds that his limited-term appointment had expired. This leaves the final question of whether Complainant was ignorant of the true state of the facts surrounding a full-time, limited-term appointment to Chief Dentist when he signed the NOPA. While not required for the application of equitable estoppel, it is worth noting that no evidence was introduced that Mixon and/or Sherrys statements were made with an intent to deceive or defraud Complainant to sign the NOPA. Additionally, no evidence established that Mixon or anyone else (1) threatened or coerced Complainant to sign the NOPA; (2) attempted to dissuade Complainant from reading the NOPA; or (3) attempted to dissuade Complainant from seeking outside counsel or advice on whether to sign the NOPA or not. It is also important to consider that the representations of Mixon and Sherry did not contradict the terms of the NOPA; in particular, Mixons statement that Complainants appointment would roll over into a permanent position after Martinezs
8

While Complainant was in the professional ranks, this was nonetheless his first employment with the state, thus he lacked experience and knowledge of the states civil service systema system that can be considered complex and confusing even for experienced civil servants.

James Ward Case No. 09-2437E Page 16 of 19 acting position was made permanent was, in essence, an independent promise separate from the NOPA, since that promise was not included as a term of appointment in the NOPA. Further, the NOPA itself must also be considered. Complainant read and signed the NOPA and affixed a date. The NOPA notified Complainant of its legal consequences, including the back dating of the effective date of his appointment to July 2, 2007, the full-time, limited-term status of the appointment, and the presumption that the NOPA is correct absent a written notification to Respondents Personnel Office. Additionally, the NOPA is not lengthy to read. hidden or inserted in small print. Still, Mixon described the only problem with moving Complainant to permanent status of the Chief Dentist position was Martinezs acting position being made permanent. Mixon therefore counseled Complainant not to worry. A reasonable person would have understood Mixons representations as Complainant did, particularly given her position as a Regional Dental Director: signing the NOPA would not hinder or prevent him from eventually being placed in a full-time, permanent position as Chief Dentist once Martinezs acting position was changed to a permanent position. As a result of Mixons express representations and her minimizing and glossing over the legal effect of the NOPA, Complainant was left ignorant of a key material fact: circumstances other than those involving Martinez could prevent his position as Chief Dentist from being changed to full time and permanent. In fact, thats what happened. Based upon the totality of the circumstances, those equitable estoppel elements and considerations discussed in Shelton and Hoopes have been established here. The language is clearly stated, not

James Ward Case No. 09-2437E Page 17 of 19 Respondent is thus estopped from relying upon the NOPA as proof that Complainant voluntarily agreed to an appointment as Chief Dentist on a full-time, limited-term basis. The overwhelming weight of the evidence, as discussed above, established that on July 2, 2007, Complainants appointment was as Chief Dentist on a full-time, permanent basis. Consequently, to void the July 2, 2007, permanent appointment to Chief Dentist, Respondent was required within one year of the appointment to seek the permission of the SPB. Respondent failed to do so. Given the lapse of time, the SPB now lacks authority to void the July 2, 2007, permanent appointment Accordingly, Complainants complaint is granted. Pursuant to McQuire, Respondents attempt by way of the NOPA to void Complainants appointment to Chief Dentist on a full time, permanent basis is set aside. Complainant is reinstated to state service effective on July 2, 2007, in the classification of Chief Dentist, full time and permanent; if the Chief Dentist classification no longer exists, Complainant is to be reinstated to state service in the classification of Chief Dentist, full time and permanent, effective on July 2, 2007, and reclassified, on the appropriate effective date, to the classification which Complainant would have been entitled to hold had he continued in civil service without any break in civil service. Complainant is also entitled to back pay and benefits as appropriate under Government Code section 19584. /// /// /// ///

James Ward Case No. 09-2437E Page 18 of 19 CONCLUSIONS OF LAW 1. Complainant established he was appointed to a full-time, permanent position as Chief Dentist; 2. Respondent unlawfully voided Complainants appointment. Therefore,

Respondents attempt by way of the NOPA to void Complainants appointment to Chief Dentist on a full-time, permanent basis is set aside; and 3. Complainant is reinstated to state service in his classification as Chief Dentist, full time and permanent, effective on July 2, 2007; if the Chief Dentist classification no longer exists, Complainant is to be reinstated to state service in the classification of Chief Dentist, full time and permanent, effective on July 2, 2007, and reclassified, on the appropriate effective date, to the classification which Complainant would have been entitled to hold had he continued in civil service without any break in civil service. Complainant is also entitled to back pay, benefits, and interest, if any, as appropriate under Government Code section 19584. ORDER Complainants complaint is GRANTED. Respondents attempt to void

Complainants appointment to Chief Dentist on a full-time, permanent basis is set aside, and Complainant is reinstated to state service, as set forth herein under Conclusions of Law. As appropriate under Government Code section 19584, Respondent is to pay Complainant all back pay, benefits, and interest, if any, that would have accrued to him had he not been dismissed. The matter is referred to the Chief Administrative Law

James Ward Case No. 09-2437E Page 19 of 19 Judge and shall be set for hearing upon written request by either party, within one year of the effective date of the SPB's Decision, should the parties be unable to agree upon the salary, benefits, and interest, if any, due Complainant under the provisions of Government Code section 19584. DATED: September 8, 2011

________________________ Jeanne R. Wolfe Administrative Law Judge State Personnel Board