Reed Smith, Raymond A. Cardozo and Peter Maio; Office of The General Counsel, University of California, Charles F. Robinson, Margaret Wu, Norman J. Hamill, and Michael R. Goldstein, for Respondent and Appellant, The Regents of The University of California. James S. Link for Petitioner and Respondent Sarkis Joseph Khoury.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1719090) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed in part, reversed in part with directions. Reed Smith, Raymond A. Cardozo and Peter Maio; Office of The General Counsel, University of California, Charles F. Robinson, Margaret Wu, Norman J. Hamill, and Michael R. Goldstein, for Respondent and Appellant, The Regents of The University of California. James S. Link for Petitioner and Respondent Sarkis Joseph Khoury.
In this dispute between The Regents of the University of California (Regents) and Sarkis Joseph Khoury, a former professor, we must decide whether or not Khoury was fired. The Regents, respondent and appellant here, claim that on January 18, 2012, they dismissed petitioner and respondent Khoury from employment. In 2011, however, Khoury had informed the Regents that he would retire as of January 1, 2012. The trial court held that the Regents had no authority to dismiss Khoury post-retirement. We agree with the Regents that, under the terms of their Academic Personnel Manual (APM), they are entitled to dismiss retired faculty. We therefore reverse.
I. FACTUAL AND PROCEDURAL HISTORY
The parties' dispute is long-standing. (See Regents of the University of California v. Khoury (Apr. 19, 2011, E050160) [nonpub. opn.]; Khoury v. Regents of the University of California (Jan. 31, 2008, E041330) [nonpub. opn.]; Khoury v. Regents of Univ. of Cal. (9th Cir. 2017) 693 Fed. Appx. 606.) As concerns us here, in 2017, Khoury filed a verified petition for a writ of mandamus pursuant to Code of Civil Procedure section 1085. According to the petition, Khoury was a finance professor at the University of California at Riverside Anderson Graduate School of Management. He alleged that he "had never been disciplined in all his years at the school until he advocated for the first Latina hire at [the] Anderson Graduate School of Management during a department hearing," after which the Regents "accused Khoury of stale conflict of commitment charges and ultimately issued a decision dismissing him from employment."
The record does not provide much detail about the Regents' charges or other events leading to Khoury's dismissal. The parties stipulated, however, that:
"1. On December 15, 2011, Professor Khoury submitted to the University of California, Riverside a notice of intent to retire effective January 1, 2012, and supporting papers.
"2. Effective January 1, 2012, Professor Khoury retired.
"3. On January 18, 2012, The Regents imposed on Professor Khoury a disciplinary sanction consisting of: (1) immediate dismissal from University employment; and (2) non-conferral of the title of Professor Emeritus, if he was still a University employee at the time of dismissal, or revocation of the title of Professor Emeritus, if he had resigned or retired prior to dismissal."
According to the APM, emeritus status is "[a]n honorary title conferred, upon retirement, on certain academic appointees." An academic appointee is "one who is engaged primarily in one or more of the following: teaching, research, and public service, and whose duties are closely related to the University's instructional and research functions."
The petition contended that the dismissal was void and that Khoury has suffered harm because he is "obligated to inform potential employers . . . that he was terminated from employment, even though he retired prior to the decision of the Regents terminating that employment." The petition therefore sought a writ of mandate "compelling the Regents to set aside the January 18, 2012 decision dismissing Khoury from employment."
Khoury's notice of intent to retire stated that conditions at the university were "so unacceptable and prejudicial that [he had] no choice but to retire," and that he did so "as a Constructive Termination." We observe that constructive termination is "a doctrine that transforms what is ostensibly a resignation into a firing." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) We do not consider what effect Khoury's statement that he was constructively terminated has on his claims here, however, as the parties have not addressed it.
Following a hearing, the trial court granted the petition in part, holding that the Regents' decision to dismiss Khoury was void but that their decision to disallow or revoke his Professor Emeritus title was valid.
In his appeal brief, Khoury contends he never intended to litigate the issue of emeritus status to begin with.
The sole question in this appeal is whether the Regents had authority to dismiss Khoury from employment despite the fact that he had already retired. The answer depends on the extent the term "faculty," as defined in the APM, includes retired faculty, because only "faculty" members are subject to the disciplinary procedures outlined in the APM. We begin by describing the level of deference accorded to the Regents' interpretation of the APM in light of their status under the California Constitution. We then consider the arguments raised by the parties. As we explain, the Regents were entitled to dismiss Khoury post-retirement.
A. Applicable Law
"Because the present action involves the rights of a [University of California (University)] employee, we should note the Regents' constitutional status." (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320 (Campbell); see also Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 889 (Miklosy) [Regents have a "unique constitutional status"].) The California Constitution establishes the Regents as a "public trust . . . with full powers of organization and government, subject only to such legislative control as may be necessary to insure the security of its funds and compliance with the terms of the endowments of the university . . . ." (Cal. Const., art. IX, § 9, subd. (a).) As our Supreme Court has described, the Constitution "'grants the [R]egents broad powers to organize and govern the university and limits the Legislature's powers to regulate either the university or the Regents[, which] contrasts with the comprehensive power of regulation the Legislature possesses over other state agencies.'" (Campbell, supra, at p. 320.) "This grant of constitutional power . . . includes the grant of quasi-judicial powers, a view that is generally accepted in our jurisprudence." (Ibid.) The grant of quasi-judicial powers "includes quasi-judicial adjudication of employment rights." (Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1485 (Do).)
"The Regents may also exercise quasi-legislative powers, subject to legislative regulation." (Campbell, supra, 35 Cal.4th at p. 320.) "Indeed, 'policies established by the Regents as matters of internal regulation may enjoy a status equivalent to that of state statutes.' [Citation.] . . . Thus, '[t]he Regents have been characterized as "a branch of the state itself" [citation] or "a statewide administrative agency" [citation]' [citation], and '[i]t is apparent that the Regents as a constitutionally created arm of the state have virtual autonomy in self-governance' [citation]. Therefore, '[t]he Regents have the general rule-making or policy-making power in regard to the University [citation], and are . . . fully empowered with respect to the organization and government of the University.'" (Id. at pp. 320-321; see also Miklosy, supra, 44 Cal.4th at pp. 890-891 ["the University functions in some ways like an independent sovereign" and is "a semiautonomous branch of the state government"].)
"The Regents are not entirely autonomous. The Legislature may regulate the Regents' actions in three areas: (1) the Regents cannot compel appropriations for university salaries, because the Legislature is vested with the power of appropriation; (2) statutes that express the state's general police power, such as workers' compensation laws, apply to the Regents; and (3) when legislation regulating public agency activity addresses matters of statewide concern not involving internal university affairs, the legislation may be made applicable to the Regents." (Campbell, supra, 35 Cal.4th at p. 321.)
The Regents have adopted the APM, which has the "force and effect of statute" given their constitutional status. (Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 198; see also Campbell, supra, 35 Cal.4th at p. 320.) In construing the APM, we give the Regents' interpretation "'"great weight and respect"'" (Do, supra, 216 Cal.App.4th at p. 1488) given their unique status as well as their "expertise and familiarity" with their own procedures (Berman v. Regents of University of California (2014) 229 Cal.App.4th 1265, 1272). No such deference is warranted, however, for any interpretation that is clearly erroneous or unreasonable. (Do, supra, at p. 1488; Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 28.)
Our analysis focuses on two sections of the APM: APM-110, which defines "faculty" and other terms, and APM-016, entitled "University Policy on Faculty Conduct and the Administration of Discipline." Under the heading "Faculty," APM-110 states that "[a] member of the faculty of the University is an academic appointee in a School, College, Division, Department, or Program of instruction and research who has independent responsibility for conducting approved regular University courses for campus credit." For those who are "faculty," APM-016 states that the types of discipline that may be imposed are, "in order of increasing severity: written censure, reduction in salary, demotion, suspension, denial or curtailment of emeritus status, and dismissal from the employ of the University."
For the Regents to prevail, we need only conclude that reading "faculty" to include retired faculty such as Khoury is reasonable. (See Do, supra, 216 Cal.App.4th at p. 1488.) A number of considerations convinces us that it is. For one, the APM clearly contemplates that at least some retired faculty are subject to discipline. APM-016 lists "denial or curtailment of emeritus status" as a means of discipline, and the policy goes on to state that the discipline entails "[d]enial or curtailment of current or future emeritus status of a faculty member, including the privileges associated with the emeritus status." (Italics added.) The Regents could not curtail a faculty member's "current" emeritus status unless that faculty member had already retired and been given emeritus status. The APM thus contemplates that, even in retirement, faculty may be subject to discipline.
For another, defining "faculty" broadly would further the Regents' goal, as stated in APM-016, of "preserv[ing] conditions hospitable to [the] pursuits" of "teaching, learning, research, and public service." As our Supreme Court has stated, "to be effective," the Regents "must have considerable discretion to determine how best to carry out the University's educational mission." (Smith v. Regents of University of California (1993) 4 Cal.4th 843, 852.) The ability to dismiss a faculty member, even after retirement, and thereby signal to others that the University has severed all ties with the faculty member, falls within such discretion.
The Regents' authority to discipline retired faculty is not unlimited, but it appropriately includes dismissal. For instance, although the Regents' authority presumably could not encompass reduction of a retired faculty member's salary when there is no salary to reduce, the ability to dismiss an employee who has already left service is not unfamiliar to our case law. (See, e.g., Winter v. City of Los Angeles (2002) 96 Cal.App.4th 1058; Suidan v. County of San Diego (1999) 72 Cal.App.4th 916; Cilderman v. City of Los Angeles (1998) 67 Cal.App.4th 1466.) As APM-016 provides the Regents authority to discipline retired faculty in at least some instances, we see no reason why construing that authority to include dismissals is clearly erroneous or unreasonable.
The parties dispute whether Khoury's dismissal was to be effectuated even if he had resigned before the dismissal was ordered. A letter from the Regents to Khoury states that "on January 18, 2012, The Regents of the University of California approved the following action: [¶] 1. Professor Sarkis Khoury be dismissed from University employment, effective immediately. [¶] 2. Notwithstanding the provisions of Standing Order 103.5(a): [¶] A. The title Professor Emeritus not be conferred if Professor Khoury is still a University employee at the time this recommendation is considered; or [¶] B. The title Professor Emeritus be revoked if Professor Khoury has resigned or retired by the time this recommendation is considered." It is reasonable to read the letter, as the Regents do, as indicating that Khoury was terminated as of January 18 even if he had resigned (as he did) in the period shortly before the letter was approved: it was in apparent recognition of this possibility that the Regents approved two different treatments of the title of Professor Emeritus, the difference between the two turning on whether he had resigned or retired. Accordingly, the definitive language of the termination decision indicates an intent to dismiss Khoury even if he resigned or retired prior to the decision. Khoury does not persuasively explain how the Regents could be precluded from imposing their decision to terminate even if he resigned shortly before it occurred.
The Regents' ability to determine themselves whether they have assumed the power to discipline and dismiss employees post-retirement results from the status the Regents occupy in our state Constitution, as well as from the relationship retired faculty have with the University. Unlike private employers or even other public agencies, the Regents have been granted "full powers of organization and government" (Cal. Const., art. IX, § 9, subd. (a)), a phrase used nowhere else in the California Constitution. And even after retirement, faculty maintain a formal relationship with the University in ways not seen in other employment contexts. For instance, as a letter appended to the APM from a former University President states, despite "formal retirement," many faculty "continue to be members of the Academic Senate, their departments, and their disciplinary communities. Some are recalled to the University to teach, while many continue their scholarly or creative activities and their active service to the University." For those who were members of the Academic Senate at retirement and have been conferred emeritus status (and thereby retain Academic Senate membership), Academic Senate bylaws provide for limited notice and voting privileges within the retired faculty member's department. (See Bylaws of the Academic Senate, Bylaw 55.D. <https://senate.universityofcalifomia.edu/bylaws-regulations/bylaws/blpart1.html#bl55> [as of September 9, 2019].) And of course, there is the ability for certain faculty to call themselves emeriti. (See Regents Policy 1203: Policy on Emerita/Emeritus Title Suffix <https://regents.universityofcalifornia.edu/ governance/policies/1203.html> [as of September 9, 2019].) Beyond these significant rights and privileges, retired faculty possess other privileges suggesting that the retired faculty member is in good standing with the University, such as a University e-mail address. All of these suggest that the Regents' ability to discipline "faculty" should be broad and concomitant with the relationship faculty have with the University after retirement. Accordingly, the disciplinary procedures outlined in the APM extend to retired faculty, and the Regents were entitled to dismiss Khoury despite his earlier retirement.
C. Khoury's Arguments
Khoury asserts a number of arguments as to why the Regents could not dismiss him, each of which we address in turn.
First, Khoury contends that use of present tense verbs such as "is" in the definition of "faculty" indicates that the term is limited to current faculty. In support, Khoury relies on Piombo v. Board of Retirement (1989) 214 Cal.App.3d 329 (Piombo), as well as the rule that "[i]n construing statutes, the use of verb tense by the Legislature is considered significant" (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 776 (Hughes)). In Piombo, the Court of Appeal construed a statute to impose a requirement of current employment in part because the statute excluded those "'who are not in service of an employer . . . .'" (Piombo, supra, at p. 333, citing Gov. Code, § 31831.1.) The Piombo court, however, reached its holding after considering "the context in which the statute is placed" and concluding that construing the statute otherwise would have conflicted with other statutory definitions, contravened legislative intent, and rendered the entire exclusion "essentially meaningless." (Piombo, supra, at pp. 334-337.) In construing the term "faculty" in light of the broader context and goals of the APM, we do not believe that the use of present tense verbs dictates Khoury's preferred result here. Although "the use of verb tense by the Legislature is considered significant" (Hughes, supra, at p. 776), "[t]he rules of grammar and canons of construction are but tools, 'guides to help courts determine likely legislative intent. [Citations.] And that intent is critical.'" (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1017; see also Ex parte Washer (1927) 200 Cal. 598, 604 ["In the interpretation of statutes courts are not bound by grammatical rules, and may ascertain the meaning of words by the context"]; In re John S. (2001) 88 Cal.App.4th 1140, 1144, fn. 1 ["While punctuation and grammar should be considered in interpreting a statute, neither is controlling unless the result is in harmony with the clearly expressed intent of the Legislature."].) In light of the broader context of the APM and the Regents' intent, discussed above, we do not find the use of present tense verbs in the definition of "faculty" dispositive.
We recognize that the APM is not literally a statute and the Regents not literally the Legislature, but those differences do not affect our analysis here.
Second, Khoury contends that only a different section of the APM, APM-015, could allow the Regents to dismiss him. APM-015 is entitled "The Faculty Code of Conduct as Approved by the Assembly of the Academic Senate," or simply the Faculty Code of Conduct. According to Khoury, authority to discipline faculty comes from two statements in the Faculty Code of Conduct. The first is that "[t]he authority to discipline faculty members in appropriate cases derives from the shared recognition by the faculty and the administration that the purpose of discipline is to preserve conditions hospitable to" the pursuits of "teaching, learning, research, and public service." The second is that "University discipline under this [Faculty] Code [of Conduct] may be imposed on a faculty member only for conduct which is not justified by the ethical principles and which significantly impairs the University's central functions as set forth in the Preamble." Neither of these statements, however, purport that authority to discipline faculty derives exclusively from the Faculty Code of Conduct. Rather, it is clear that such authority is also to be found in APM-016, which expressly states that "[t]he types of discipline that may be imposed on a member of the faculty" include "dismissal from the employ of the University," and that "[t]he University policy on faculty conduct and the administration of discipline is set forth in its entirety in this policy and in the Faculty Code of Conduct." (Italics added.)
Third, Khoury relies on three cases where our courts have held that an agency loses jurisdiction over an employee upon his or her retirement (or, in one case, death). (Monsivaiz v. Los Angeles County Civil Service Com. (2015) 236 Cal.App.4th 236 (Monsivaiz); County of Los Angeles Dept. of Health Services v. Civil Service Com. of County of Los Angeles (2009) 180 Cal.App.4th 391 (Latham); Zuniga v. Los Angeles County Civil Service Com. (2006) 137 Cal.App.4th 1255 (Zuniga).) Khoury makes no attempt to extend the analysis of those cases to the facts here, instead stating in conclusory fashion that "[t]he same [result] is true here," so we may treat the argument as waived. (See Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [point asserted "without any argument . . . is deemed to be without foundation and requires no discussion by the reviewing court"].) But setting the lack of analysis aside, the cases are easily distinguishable. All three cases concerned the jurisdiction the Los Angeles County Civil Service Commission (Commission) had over former employees under the authority granted it by the Los Angeles County Charter. (Zuniga, supra, at p. 1257; Latham, supra, at p. 397; Monsivaiz, supra, at p. 238.) All three noted that a civil service commission created by charter has only the special and limited jurisdiction expressly authorized by the charter. (Zuniga, supra, at p. 1259; Latham, supra, at p. 398; Monsivaiz, supra, at p. 240.) All three looked to the county's Civil Service Rules, which "allow the Commission to exercise authority over former employees in only a few limited circumstances" (Zuniga, supra, at p. 1259), and each concluded that those "few limited circumstances" were not applicable under the facts before it. In contrast, as discussed above, the Regents' authority to exercise authority over retired faculty is not constrained to apply "in only a few limited circumstances" (Zuniga, supra, at p. 1259), as the Commission is wholly unlike the Regents in terms of the powers granted to it. (See Cal. Const., art. IX, § 9, subd. (a) [Regents granted "full powers of organization and government, subject only to such legislative control as may be necessary to insure the security of its funds and compliance with the terms of the endowments of the university"].) These cases are therefore unpersuasive.
In Zuniga, the Court of Appeal held that there was no provision in the county charter or Civil Service Rules "granting the Commission authority to hear a wage claim brought by a former civil servant." (Zuniga, supra, 137 Cal.App.4th at p. 1259.) Three years later in Latham, the Court of Appeal, following Zuniga, held that "the Commission has authority to address only matters involving a member of the civil service, and a person who has retired is no longer a member of the civil service." (Latham, supra, 180 Cal.App.4th at p. 401.) And in Monsivaiz, the court held, following Zuniga and Latham, that "[e]ven more than the voluntary act of retiring or resigning from service, the death of a former employee" prevented the former employee's widow from pursuing the employee's relief for reinstatement and backpay. (Monsivaiz, supra, 236 Cal.App.4th at p. 241.)
Finally, Khoury asserts that the Regents should not be able to simply "punish former faculty members they do not like." Khoury does not show, however, why the Regents—unique in their "'general rule-making or policy-making power in regard to the University'" and "'virtual autonomy in self-governance'" (Campbell, supra, 35 Cal.4th at p. 321)—would lack the ability to discipline former faculty members who may still have formal ties to the University. In this regard, we observe what Khoury has not claimed: he has not claimed that any investigations, hearings, or other events leading up to his dismissal were deficient in any way, or that they violated any of his due process rights. Although the Regents' exercise of authority, however broad, "cannot be so perfunctory or arbitrary as to violate the due process guarantee of the state or federal Constitutions" (Miklosy, supra, 44 Cal.4th at p. 890, fn. 4), we see nothing wrong with allowing the Regents to discipline faculty within reasonable interpretations of the APM's terms.
In sum, the term "faculty" in the APM includes retired faculty such as Khoury; accordingly, the Regents were entitled to dismiss him, despite the fact that he had retired some weeks prior. Such a reading is reasonable because it aligns with the Regents' broad authority to self-govern under the California Constitution as well as the formal relationship retired faculty have with the University, a relationship not seen in other employment contexts. The arguments raised by Khoury do not convince us otherwise.
Following briefing, Khoury filed a motion for sanctions on the ground that the Regents' appeal was frivolous or taken solely for delay. (See Code of Civ. Proc., § 907; Cal. Rules of Court, rule 8.276.) Because we conclude that the appeal is meritorious, the motion is denied. --------
The judgment is reversed with respect to the Regents' decision to dismiss Khoury and affirmed in all other respects. The matter is remanded to the trial court with directions to enter a new order denying Khoury's petition in its entirety. The Regents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
J. We concur: RAMIREZ
P. J. SLOUGH