Opinion
Rehearing Denied Dec. 2, 1960.
Hearing Granted Dec. 28, 1960.
Stanley Mosk, Atty. Gen., Willard A. Shank, Marcus Vanderlaan, Robert L. Bergman, Deputy Attys. Gen., for appellants.
A. Brooks Berlin, Alvin Lo Bree, San Francisco, for respondent.
McGOLDRICK, Justice pro tem.
On March 19, 1934, the Division (now Bureau) of Narcotic Enforcement of the State of California employed on Robert T. Simpson as an inspector. Simpson continued such employment thereafter until his retirement on March 5, 1953. On March 15, 1951, Simpson filed a claim with the State Board of Control for payment for uncompensated overtime and days off which he had worked for the Division during the period from 1934 to 1948 inclusive. This claim was denied on January 7, 1952, following which, on February 21 of that year, Simpson filed a petition for a writ of mandate to compel approval thereof. The court issued an alternative writ directing Following Simpson's aforementioned retirement, and on November 14, 1953, he died. The record contains no evidence of furthe pleadings or proceedings herein until January 20, 1955, when Simpson's widow, in her capacity as executrix of his estate, filed an amended petition for writ of mandate, identical in all material respects to its predecessor save for appropriate changes in named parties. On that day the court caused a second alternative writ to issue, in response to which the then defendants filed notice of motion to strike and dismiss the amended petition, and a demurrer thereto, the parties having stipulated that defendants might delay filing of their answer. The court overruled the demurrer, defendants answered, and then moved for separate trial of their defenses relating to certain statutes of limitations. Although this motion was denied initially, a contrary ruling followed its renewal. Thus, on November 16, 1955, the matter of these specified defenses was heard and submitted, and on June 7, 1956, the court ruled against defendants. Trial was resumed and the matter submitted, following which came various stipulations and orders, and, on January 24, 1958, a notice of motion was filed by petitioner 'to vacate submission and to amend her petition to conform to proof.' The principal amendment requested was the substitution of the State Board of Control and one of its three members, in that capacity, for First Doe and Second Doe, and the addition, to the paragraphs identifying the then controller and director of finance, of the phrase 'and as such is an ex-officio member of the State Board of Control.' The previously identified defendants filed opposition, the matter was heard and submitted, and on July 2, 1958, the court granted petitioner's motion, and ordered that the cause be thereafter deemed resubmitted. On October 27, 1958, the court issued a minute order declaring: 'In this action heretofore submitted Court ordered Judgment for Petitioner from 2-6-43 Holiday from 45.' Petitioner then submitted proposed findings of fact and conclusions of law, in response to which defendants filed objections, suggested corrections, and alternatives of their own. On February 27, 1959, the court signed its version thereof, and ordered that a peremptory writ of mandate issue commanding the original defendants, plus the State Board of Control, to forthwith certify petitioner's claim in the amount of $9,715.50 for uncompensated overtime worked by said Robert T. Simpson during the period from February 6, 1943, to and including June 9, 1948.
All defendants who appeared at the trial appeal from this judgment and the four new defendants added after the conclusion of the trial likewise appeal from the judgment.
All appellants contend that the trial court should be reversed for the following reasons:
1. That Robert T. Simpson being a civil service employee of the State of California during the entire period covered by the judgment (February 6, 1943--June 8, 1948), the judgment must be reversed in the absence of statutory authority for payment for alleged overtime work performed by Robert T. Simpson; that during said period there was no statutory authority for paying Robert T. Simpson more than his monthly salary, regardless of the number of hours he worked.
2. That the State Personnel Board, through allocating the classes in which Robert T. Simpson worked to work week group 4 and through establishing the specifications for such classes, prohibited the appointing power from either providing for overtime work for Robert T. Simpson during said period or from providing for compensating time off for overtime work for Robert T. Simpson.
3. That petitioner's suit and all portions thereof are barred by the statute of 4. That section 16044 of the Government Code does not apply to this case as claimed by petitioner, but that if it did its provisions would bar petitioner's suit and all portions thereof.
5. That petitioner has failed to allege or prove available money.
6. That the trial court committed prejudicial error in admitting in evidence the items found in the diaries, Exhibits 1-7, 9-16, entered in red pencil and the summary of such red pencil items, Exhibit 17.
7. That the findings of fact are defective in that they are not supported by the evidence and that they fail to contain findings on material issues.
8. That the judgment is not supported by the findings.
The major contention of defendants on this appeal is grounded on the late case of Martin v. Henderson, 40 Cal.2d 583, 255 P.2d 416, 419. This case held that
'prior to February 6, 1943, the effective date of section 150.5 of the State Civil Service Act, supra, there was no statutory provisions for overtime compensation.'
Therefore, prior to February 6, 1943 the effective date of section 150.5, supra, there was no applicable statutory provision for overtime compensation for civil service employees. The trial court denied petitioner any recovery for alleged overtime work done prior to that date.
To resolve this controversy, it is necessary to examine the history of the statutes and rules concerning overtime compensation. Prior to February 6, 1943, the rules of the State Personnel Board provided:
'(c) The rates of pay set forth in the pay schedules, unless otherwise indicated in such schedules, represent the total compensation in every form.'
and
'(h) when the rate of pay is in terms of dollars a month, no additional payment for overtime shall be made to any employee for services rendered by him in the same classification in the same department.'
On February 6, 1943, the first overtime statute became effective (Stats.1943, ch. 20, p. 136). On this day, section 150.5 was added to the State Civil Service Act (now section 18005 Gov.Code). Section 150.5 as originally enacted read as follows:
'Upon a separation from service, without fault on his part, a person shall be entitled to a lump sum payment as of the time of separation for any unused or accumulated vacation or for any time off to which the person is entitled by reason of previous overtime work where compensating time off for overtime work is provided for by the appointing power or by the rules of the board. Such sums shall be computed by projecting the accumulated time on a calendar basis so that the lump sum will equal the amount to which the employee would have been paid had he taken the time off but not separated from the service. As to persons separated from the service through fault of their own, they shall be entitled to a lump sum payment for such compensating time off for overtime work, similarly computed, and in addition such portion, if any, of unused vacation as the board may determine.'
Since its original enactment in 1943 as section 150.5 of the State Civil Service Act, the provisions of that section have remained essentially the same. In 1945 (Stats.1945, c. 123) the State Civil Service Act was placed in the Government Code and section 150.5 became section 18005 of the Government Code. After the enactment of section 150.5, the next event occurred on June 7, 1943 when sections 73 and 73.5 were added to the Civil Service Act (c. 1041, Stats.1943, p. 2976). Section 73.5 concerned non-civil service employees and is not relevant to this case. Section 73 concerns civil service employees and as originally enacted, provided as follows: 'Within 90 days of the effective date of this section, the State Personnel Board shall for each class in the State service for which a monthly salary range is fixed determine and establish the normal work week for the class. For purposes of determining eligibility for overtime compensation, the State Personnel Board shall allocate, and reallocate as the needs of the service require, each State civil service class for which a monthly salary range is fixed into one of the following groups:
'(1) Classes with a normal work week of 40 hours;
'(2) Classes with a normal work week of 44 hours;
'(3) Classes with a normal work week of 48 hours;
'(4) Classes which can not be included in any plan of payment for overtime because:
'(a) While requiring at least 40 hours per week, the duties and responsibilities are such that they do not adapt themselves to a maximum number of hours per week;
'(b) The performance of duties is required on a part-time or intermittent basis and does not amount ot a maximum of 40 hours per week.
'Nothing in this act shall be construed as prohibiting the granting of compensating time off in lieu of overtime worked where such compensating time off can be granted within 30 days of the date worked and where it can be granted without impairing the services rendered by the agency. The State Personnel Board shall adopt rules and regulations governing overtime compensation as herein provided.'
The next event was the amendment of Rule 12 concerning the pay plan by the State Personnel Board on June 25, 1943. Since this amendment only concerned an exception to the general rule made for certain employees of hospitals, it is not relevant to this case. Section 73 required the State Personnel Board within 90 days from its effective date (June 7, 1943) to establish a normal work week for each class of employees and to allocate the various classes of employees into various work week groups. On August 12, 13 and 14, 1943, the State Personnel Board complied with this legislative mandate and promulgated Rule 27 by allocating the various classes of state employees into work week groups established in Rule 27. At the same time, the State Personnel Board Rule 12 (concerning the pay plan) was amended by deleting section 2(h) thereof and changing section 2(c) to read:
'Sec. 2. The Interpretation of the Schedules of Pay. * * * (c) The rates of pay set forth in the pay schedules, unless otherwise indicated in such schedules, represent the total compensation in every form except for overtime compensation as provided in Rule Twenty-seven.'
The change in Rule 12 was in recognition of the promulgation of the new Rule 27 required by the enactment of section 73 of the State Civil Service Act. Section 1 of Rule 27 reads:
'Section 1. Normal Work Week.
* * *
* * *
'd. The provisions of this rule do not apply to positions allocated to classes in group 4 and nothing in this rule shall be construed to prevent a state agency from allowing compensating time off to employees in such classes when they are required to work in The next change occurred on December 9, 1943 and was an amendment to section 2(a) of Rule 27. It is to be noted here that Robert T. Simpson at all times pertinent to this case was in work week group 4 and in view of the fact that Rule 27 by its own terms at that time did not apply to employees in work week group 4, this change is not relevant.
The next event occurred on November 24, 1944. This was an attempt by the State Personnel Board to make provisions of Rule 27 applicable to employees in work week group 4 insofar as work on certain listed holidays was concerned. In this connection, however, section 73 which provided for authority for the development of Rule 27, at that time provided that employees in work week group 4 'can not be included in any plan for payment of overtime.' It is apparent that the State Personnel Board recognized the invalidity of the November 24, 1944 change since it was repealed on September 15, 1945.
The next action was the adoption of a resolution by the State Personnel Board effective September 1, 1945 changing the numerical designation of the rules of the State Personnel Board. Here the section numbers were entirely changed and the 'Rules' were called 'Articles'. As is clearly indicated, this change was to make Personnel Board citations to conform to those of the Division of Administrative Procedure (see sections 11370-11445).
The next change occurred on September 15, 1945. Under chapter 123 of the Statutes of 1945 the entire State Civil Service Act was placed in the Government Code. Section 150.5 became section 18005 of the Government Code and the former section 73 became Article 2 of Chapter 1, Part 1, Division 5, Title 2 of the Government Code (sections 18020-18024). There were no substantive changes by chapter 123 of Stats. of 1945. At the same time, however, section 18025 was added to the Government Code (Stats.1945, Ch. 1016). This section provided:
'All employees shall be entitled to the following holidays: The first day the following holidays: The first day the twenty-second day of February, the thirtieth day of May, the fourth day of July, the first Monday in September, the ninth day of September, the twelfth day of October, the eleventh day of November, the twenty-fifth day of December, every day on which an election is held throughout the State, and every day appointed by the Governor of this State for a public fast, Thanksgiving, or holiday.
'When a day herein listed falls on a Sunday, the following Monday shall be deemed to be the holiday in lieu of the day observed. Any employee who may be required to work on any of the holidays herein mentioned, and who does work on any of said holidays, shall be entitled to be paid compensation or given compensating time off for such work within the meaning of Section 73 of this act. For the purpose of computing the number of hours worked, time during which an employee is excused from work because of holidays, sick leave, vacation, or compensating time off, shall be considered as time worked by the employee.'
The reference of 'Section 73' was a reference to the old section 73 of the Civil Service Act. An inadvertence with reference to the old section number was corrected at the next session of the Legislature where in chapter 1339 of the Statutes of 1947 the words 'Section 73 of this act' were changed to 'this article'. Moreover, in the 1945 session of the Legislature, section 18023 of the Government Code was amended (Stats.1945, Ch. 1172) by changing the thirty-day limit within which compensating time off could be granted to a six months limit. At that time the State Personnel Board amended sections 315 and 316 of Article (formerly Rule) 27. This amendment to section 315 obviously was to The rules were next amended on April 11, 1947 to be effective under section 11422 of the Government Code on May 11, 1947. The changes in this rule both as to pay and as to overtime were amended. This was part of a general rearrangement and reorganization of the State Personnel Board Rules. The original Rule 12 on the pay plan (subsequently called Article 12) became Rule 94 and provided:
'94. Entire Compensation. Unless otherwise indicated in the schedule of salary ranges, the rates of pay set forth in the schedule representing the total compensation in every form except for overtime compensation.'
The original Rule 27 (subsequently called Article 27) became Article 6. There were no substantive changes effected in this reorganization. organization. However, Rule 137 of Article 6 still provided:
'137. Group 4 Employees. Although this article does not apply to employees whose classes are allocated to Group 4 under Section 18020 of the act, an appointing power may allow compensating time off to such employees when they are required to work in excess of the work week, if any, established by the appointing power for such classes in his agency.'
The next event was the amendment of sections 18020-18024, Government Code, effective September 19, 1947 (Stats.1947, Ch. 1304). This 1947 amendment was for the prupose of permitting--for the first time--the State Personnel Board to provide for overtime compensation for employees in work week group 4. The definition of work week group 4 found in section 18020 was changed to read:
'(4) Classes and positions with unusual conditions or hours of work requiring the establishment by the Personnel Board of special provision governing hours of work or methods of compensation for overtime.'
As is indicated, the 1947 amendments gave the State Personnel Board the power to provide for overtime compensation for employees in work week group 4. However, the State Personnel Board did not make any provisions for overtime for such employees until June 9, 1948. The State Personnel Board on the very day that the 1947 amendments became effective (September 19, 1947) passed a resolution stating:
'Resolved, That except as may be provided hereafter, employees in classes or positions now or hereafter allocated to Group 4 shall not receive overtime compensation but may by allowed compensating time off as permitted by the appointing power for work in excess of the work week, if any, established by the appointing power for such classes or positions in his agency.'
It is thus apparent that for this time the provisions concerning work week group 4 were retained.
A review of the chronological order of the exhibits on file in this case and the statutes relating thereto reveal no other statutory authority or rule changes until the reorganization of the overtime rules effective June 9, 1948. This general reorganization provided for the first time extensive provisions concerning employees in work week group 4. These rules were filed with the Secretary of State May 10, 1948, and under the provisions of section 11422, Government Code, became effective June 9, 1948. This date is mentioned in section 18005.5 of the Government Code. It is to be here observed that petitioner received judgment only for overtime alleged to have been worked prior to June 9, 1948.
The evidence in this case established that the nature of the job of narcotic inspector is such that it did not and could not have regular hours of work but that long and irregular hours were required. Each of the witnesses who had worked for the Division These reports show that they were neither designed nor intended for the purpose of showing 'overtime or compensating time off.'
A review of testimony of the narcotic inspectors Armstrong, Carpenter, Maloney and the chiefs of the Division of Narcotice Investigations Madden and O'Farrell reveals that what we have said about these daily reports is evident. The evidence also discloses that no promises of overtime pay or compensating time off were made to these inspectors. Rather, they were given a day off to go fishing or permission to report for duty at an hour or two later than the designated time. Also, any reference made by the chiefs of the division as to whether they would obtain payment for overtime or compensating time off were conditioned by the statement that they would be compensated 'in any manner thereafter to be provided for by law.' As previously indicated this did not occur until June 9, 1948.
The only other evidence offered to support Simpson's claim of overtime work was his daily diaries. A review of these diaries discloses that they are typical of the kind kept by police investigators in order to record their activities on a given day to be used at later times to refresh the recollection in the event that they were called on a given case to testify.
A serious question arises as to the admissibility of these diaries. As originally prepared, they contained no reference to overtime or compensating time off. After their original preparation, Simpson and his wife went over them and wrote out in red pencil that certain hours were overtime and that certain hours were compensating time off. These additions took place long after the original entries. A prompt objection to their admissibility in evidence was made by appellants at the trial that they violated the hearsay rule and were not admissible under the business records rule. Notwithstanding this objection, they were admitted into evidence and as such are the sole basis for evidentiary support of the judgment. Petitioner makes the novel contention that these diaries were admissible under the Uniform Business Records Act, sections 1953e and 1953f C.C.P. As a basis for this contention, petitioner claims that they were made by Simpson in the course of his business, viz. that of being a narcotic inspector. Unless these diaries qualified for admission under this rule they are clear hearsay and self serving. We conclude at this point that the trial court erred in admitting them into evidence under this rule since (1) Simpson was not engaged in any personal business of his own--rather he was an employee of the State of California--and (2) assuming that this strained contention would be valid, the entries made in the diaries with reference to hours of overtime work were made long after the original entries and by persons other than the party making the original entries (3) the diaries were not records required to be kept as records of the governmental agency.
The case of Martin v. Henderson, supra, is the key case in this State on the question of the entitlement of public employees to compensation for overtime. Here the court states [40 Cal.2d 583, 255 P.2d 420]:
'The statutory and regulatory limitations upon compensation for services are but a codification and application to civil servants of the oft-repeated rule 'that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be 'The rule applies not only to the duties themselves, as in the cases cited, but also to the hours of work. When the employee is paid by time, as by the day, week, or month, rather than by the amount of work which he does, he is bound, in the absence of statute, to render services without regard to the number of hours worked. Robinson v. Dunn, 77 Cal. 473, 19 P. 878. * * *
'In the absence of a statutory provision therefor, time off granted for work done in excess of those hours is not granted as of right, but is allowed in accordance with the necessities of the duties to be performed. * * * The fact that normal hours of work are established and compensating time off is provided for work beyond those hours does not, of itself, give the employee a right to the payment for overtime.
'The terms and conditions of civil service employment are fixed by statute and not by contract.'
It is to be noted also that the Supreme Court in the Martin case disapproved language contained in cases relied upon by respondent, viz., Howard v. Lampton, 87 Cal.App.2d 449, 197 P.2d 69 and Clark v. State Personnel Board, 56 Cal.App.2d 499, 133 P.2d 11, insofar as they determine that a state officer or employee in the absence of specific statutory authority is entitled to a cash payment for accrued overtime on separation from service.
In Treu v. Kirkwood, 42 Cal.2d 602, 268 P.2d 482, 484, the secretary, Miss Treu, of the lieutenant governor (a non-civil service employee) was required to work a lot of overtime and was promised that she would be paid for overtime as it would be impossible for her to have any time off because of the increased amount of work. Upon her separation from service, she filed a claim for payment of overtime and it was approved by the State Personnel Board. This claim was subsequently rejected by the controller and she thereafter commenced this proceeding. Here the petition for a peremptory writ of mandate alleged a promise by the lieutenant governor to give Miss Treu 'compensating time off for overtime hours worked in addition to her normal hours of work.' The court found that such a promise was made. However, a letter from the lieutenant governor to the Department of Finance and Miss Treu's own testimony showed that she was not promised time off. Promise made to her was that she would be paid for overtime. The court held that in the absence of either a valid contract or statute there was no basis for recovery by Miss Treu; that her monthly salary was payment in full for all of her services without regard to the number of hours she worked. Citing Martin v. Henderson, supra; Robinson v. Dunn, supra.
We therefore conclude at this point that the major premise of the appellants' contention, viz., that without statutory authority no civil service employee of the State of California can recover more than his monthly salary during the period involved is correct. We are unable, however, to end this discussion without reference to respondent's claim that she is entitled to recover under the provisions of section 18005.5 of the Government Code enacted in 1949. That section provides in part that:
'Any time off to which an employee is entitled by reason of overtime worked prior to June 9, 1948, may be compensated by a lump sum * * * at any time prior to the separation of However, since it is our opinion that there was no statutory authority or no contractual basis that existed prior to June 9, 1948 which gave to Simpson the right to overtime compensation, the enactment of section 18005.5 could not create that right retroactively.
In the Martin case, supra, the court held that:
'The enactment of section 150.5 of the State Civil Service Act and the addition of sections 73 and 73.5 to the act, effective June 7, 1943 Stats.1943, ch. 1041, §§ 1-2, pp. 2979-2977; now Govt. Code, §§ 18020-18024, providing a comprehensive system of overtime computation and compensation, did not create a right to payment for overtime previously worked. The statutes were not, and could not be, retroactive. 'The Legislature shall have no power to grant, * * * any extra compensation or allowance to any public officer, agent, servant, or contractor, after service has been rendered * * * in whole or in part, nor to pay, or to authorize the payment of, any claim hereunder created against the State * * * under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.' Const. art. IV, § 32.'
Government Code section 18005.5, supra, cannot form the basis of a cause of action. The wording of this section is permissive only. The controlling section insofar as the accrual of a cause of action is governed by the provisions of section 18005. In the Martin case, supra, the court held that this section controls the time for bringing any action relating to any Civil Service law on a claim for overtime services and that as previously stated, it may not be applied retroactively.
Since it is our conclusion that Simpson had no statutory right or contractual right to recover for overtime work until June 9, 1948 and since the evidence upon which the judgment depends for its support is inadmissible, we refrain from deciding the issue of the applicability of the statutes of limitation, which although meritorious, is unnecessary to the determination of this appeal.
The judgment of the trial court is reversed and the Superior Court is directed to enter a new judgment ordering that petitioner take nothing by her cause of action and that the alternative writs issued be vacated and dismissed, defendants to have their costs on appeal.
DRAPER, Acting P. J., and SHOEMAKER, J., concur.