Friday, June 19, 2009

PERB Recognizes Equitable Tolling Under HEERA

Trustees of the California State University (San Jose) (2009) PERB Decision No. 2032-H (Issued on 5/29/09)

This case involved a CSU professor who was demoted because he refused to comply with a university decision on allowing a student to retake an exam. He was demoted in November 2005, but did not file his unfair practice charge until May, 2007—almost two years later. The employee argued that the time for filing his unfair practice charge should be “equitably tolled” during the period of time he was proceeding under the university’s grievance process. PERB agreed.

PERB noted that unlike the other statutes it administers, HEERA does not expressly provide for the tolling of the statute of limitations. (HEERA, §3563.2.) However, PERB noted that in Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072 (“Coachella”), the California Supreme Court held that a six-month statute of limitations applied to the MMBA. The Court came to this conclusion based heavily on the fact that all the other statutes administered by PERB had a six-month statute of limitations. Relying on Coachella, the Board held that the same result should apply to the issue of equitable tolling. Basically, PERB held that it makes sense as a matter of public policy to interpret all the statutes similarly where the public policies are the same.


I actually disagree with this decision. My disagreement arises from the fact that I believe the Regents of University of California v. Public Employment Relations Bd. (1985) 168 Cal.App.3d 937, 944-945 (1985) ("Regents") case is more applicable to this situation than Coachella. The Regents case involved a very similar situation under HEERA. Basically, the issue involved the rights of non-exclusive representatives. The language on this issue under HEERA differed from the other statutes administered by PERB. As in this case, PERB concluded that even though language in all the other statutes was missing in HEERA, it could still read that language into the act. On appeal, the court disagreed and held:

“We cannot agree with the Board's conclusion that HEERA's omission of a “right to represent” was without significance. It is true that we must accord great respect to an administrative agency's interpretation of the statute it is charged with enforcing. [Citations omitted] But upholding such a reading would go well beyond respect for the agency's interpretation. It would authorize the Board to rewrite the statute to suit its notion of what the Legislature must have intended to say about organizational rights. It would do this in the face of strong evidence of a contrary legislative intent: the Legislature's use of the same construction in four different pairs of statutes, and its failure to use that construction in the statute under scrutiny. The Legislature would be rendered nearly powerless to make changes in the law if we were to permit the Board to interpret this obvious change as an attempt to continue the same legal relationships established in the George Brown Act, EERA, and SEERA."

That’s almost exactly the same situation here. Except the MMBA, the equitable tolling language appears in all the acts under than HEERA. Under Regents, that fact is strong (in my mind presumptive) evidence that the legislature intentionally left the language out.

It’s true that Coachella appears to take a different approach than Regents. That’s why it’s disappointing that the Court in Coachella didn’t discuss the Regents case. However, I believe it’s possible to reconcile the two approaches. Indeed, Coachella acknowledged that where one of the statutes administered by PERB has different statutory language than the others it could be indicative of legislative intent to treat that statute different. Specifically, the Court held:

“[T]he PERB argues that because the Legislature included an express six-month limitation period in every other public employment relations law under the PERB's jurisdiction, the omission of an express six-month limitation period in the MMBA is compelling evidence of a different legislative intent. We would agree if there were any plausible ground for the Legislature to draw such a distinction, or, in other words, if this line of reasoning did not lead to an inexplicable anomaly. The rule that the PERB cites is merely one of several guides to statutory construction; it applies generally but not universally, and we do not find it helpful or controlling here.”

Thus, Coachella basically says that statutory differences should be recognized where there is some reason to do so. Here, in my opinion there is a very good reason to draw a distinction between HEERA and the other acts. HEERA covers the University of California (UC), which is a constitutional agency. Under the constitution, the UC has distinct powers from other public agencies. (e.g. UC policies have the force and effect of statutes. See, e.g., Regents of the University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 135.) Thus, the Legislature may not have wanted to impose equitable tolling on a constitutional agency.

Last year, the California Supreme Court issued the Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 decision, which actually is very instructive in this case. There, the Court considered a set of whistle-blower statutes where the statute covering the UC contained different language than that covering the state and the CSU. As in this case, there was no legislative history explaining the difference. However, the Court held that there was good reason to treat the UC differently:

“In short, the University functions in some ways like an independent sovereign, retaining a degree of control over the terms and scope of its own liability. Given the University's unique constitutional status, it is not surprising that the Legislature would take a deferential approach when authorizing damages actions against the University.” (Miklosy, at p. 890.)

One might argue that there is no evidence that the Legislature intended to give deference to the UC in crafting HEERA. However, that’s no different than Miklosy. One could also argue Coachella represents a better approach than Regents. Maybe. However, in my mind Coachella was a very different case. There, the Court had to find some statute of limitations since no one was arguing that the absence of an express limitations period meant there wasn’t one. Here, it’s entirely possible that the Legislature excluded the equitable tolling language.

So where does that leave us? This case is precedential and binding on future cases. However, that doesn’t mean the UC or CSU might not try to get PERB to reconsider this issue in the future. This is especially true given that the employee in this case was pro per and likely failed to address the issues I raise above. Also, the CSU didn’t make an appearance in this case so there was no one to competently argue the other side.