JOHN S. SNOW, Plaintiff and Respondent, v. BOARD OF ADMINISTRATION OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM et al., Defendants and Appellants, 87 Cal. App. 3d 484

Opinion PARAS, J. The Board Administration (Board) of the Public Employees’ Retirement System of the State of California (PERS) appeals from a judgment of the Sacramento County Superior Court issuing a peremptory writ of mandamus in favor of plaintiff John S. Snow. The board contends that a State Board of Control award to a retired civil service employee for work performed above the class of employment to which he had been appointed may not be considered in determining the amount of his pension benefits. We agree and reverse.

I Until his retirement on May 1, 1974, Snow was a permanent civil service employee of the Department of Water Resources. From May 1, 1970 to March 1, 1974, he was classified as an assistant land agent. He contends however that during that period he was actually performing the duties of associate land agent, a higher classification. On or about June 26, 1974, he filed a claim with the State Board of Control, seeking to recover $8,161 claimed by him to be the difference in salary between assistant land agent and associate land agent for the time involved.

On June 3, 1975, the Board of Control heard and approved his claim for $7,785. The award, payable from the Water Resources revolving fund, was approved by the Legislature and paid in April 1976. In November 1975 Snow applied to PERS to recompute his final compensation and adjust his retirement allowance to include the award as compensation, pursuant to Government Code

section 20022. PERS denied the request and Snow requested a hearing. Although the hearing officer proposed that the claim be granted, the Board determined to decide the matter itself on the - record, and on May 11, 1977, denied the claim. Snow then filed a petition for writ of administrative mandate pursuant to Code of Civil Procedure

section 1094.5. This appeal was taken from the ensuing peremptory writ. II The amount of pension benefits a retired civil service employee is entitled to receive is based upon his age at retirement, his years of service, and his final compensation. (Gov.

Code, § 21251.13.) “Final compensation” means “. . . the highest average annual compensation earnable by a member during the three consecutive years of employment immediately preceding the effective date of his retirement or the date of his last separation from state service if earlier or during any other period of three consecutive years during his membership in the system which he designates . . . .” (Gov.

Code, § 20024.01.) “Compensation earnable” means “. . . the average monthly compensation as determined by the board upon the basis of the average time put in by members in the same group or class of employment and at the same rate of pay.” (Gov.

Code, § 20023.) At the time of Snow’s retirement, “compensation” was defined as “. . . the remuneration paid in cash out of funds controlled by the State, the university or contracting agency, plus the monetary value, as determined by the board of living quarters, board, lodging, fuel, laundry and other advantages of any nature furnished a member by his employer in payment for his services . . . .” (Gov. Code, § 20022.) Snow contends that the award of the Board of Control represents payment for services he rendered and thus is compensation within the meaning of the Government Code.

It follows, he argues, that in computing the amount of his pension benefits, PERS must take into consideration the amount of the award. He asserts that he was entitled to the award because “A person shall not be assigned to perform the duties of any class other than that to which his position is allocated.” (Gov. Code, § 19255.) Based upon the above cited statutes Snow’s argument might on first impression appear logical. Upon careful analysis however its logic becomes illusory.

The Constitution of California requires that except in certain exempt positions employment by the state must be through civil service under a general system based upon merit, ascertained by-competitive examination. (Cal. Const., art. VII, § 1.) The State Personnel Board is a constitutionally established agency with the duty of enforcing the civil service statutes. (Cal. Const., art. VII, § 3.) It is the duty of the Personnel Board to create and adjust classes of positions within the civil service system (Gov. Code, §§ 18702, 18800), to establish and adjust the salary to be paid state employees (Gov.

Code, §§ 18850-18852), to establish and maintain employment lists for state positions (Gov. Code, § 18900 et seq.), and to establish and maintain promotion lists (Gov. Code, § 18950 et seq.). Snow makes no contention that during the disputed period he ever took

part in a competitive examination for or was appointed to the position of associate land agent. In his claim before the Board of Control he alleged that “[d]uring this four-year period [he] and his supervisors repeatedly requested that [he] be permanently classified as an Associate Land Agent,” but that no examination was scheduled which would have enabled him to be so appointed; despite the fact that his request for promotion was repeatedly denied, he continued to perform the duties of the higher classification.

In all cases not excepted or exempted by the Constitution, appointment must be in strict accordance with civil service rules, and not otherwise. (Gov. Code, § 19050.) Attempts by individuals and agencies to circumvent the civil service hiring rules have been repeatedly struck down. (Pinion v. State Personnel Board (1938) 29 Cal.App.2d 314, 315-320 [84 P.2d 185]; Otto v. Reardon (1937) 21 Cal.App.2d 260, 264 [69 P.2d 185]; see also San Francisco City etc. Employees Internat. Union v.

City and County of San Francisco (1975) 49 Cal.App.3d 272, 277-278 [122 Cal.Rptr. 293], Los Angeles Fire & Police Protective League v. City of Los Angeles (1972) 23 Cal.App.3d 67, 77 [99 Cal.Rptr. 908], Ticknor v. City of Sacramento (1947) 80 Cal.App.2d 284, 289 [181 P.2d 893], Campbell v. Board of Civil Service Comrs. (1946) 76 Cal.App.2d 399, 404 [173 P.2d 58], and Heard v.

Board of Administration etc. (1940) 39 Cal.App.2d 685, 695 [104 P.2d 47].) The California Supreme Court has recognized that the only position an employee may lawfully hold is that for which he has been examined and to which he has been certified and appointed in the manner provided by law. (Ferdig v.

State Personnel Bd. (1969) 71 Cal.2d 96, 108 [77 Cal.Rptr. 224, 453 P.2d 728].) Under the rule so established, the mere assumption and performance of the duties of a higher classification cannot require that the employee be appointed to it. “If the appointing power could, by assigning duties ... to a higher class than that of the employee’s original position, give to an employee a permanent civil service status, the entire fabric of the civil service system would fail.

Promotion and appointments in civil service would then no longer be made ‘exclusive under a general system based upon merit, efficiency and fitness as ascertained by competitive examination.’ ” (Pinion v. State Personnel Board, supra, 29 Cal.App.2d at p. 319.) Snow concedes that during the period in question he never took a competitive examination for the position of associate land agent, and that the Department of Water Resources and the State Personnel Board did not certify him to that position.

In fact, the Department of Water Resources repeatedly refused to initiate the procedure to secure that status for him. It is manifest therefore that the highest position he could legally hold during the time in question was that of assistant land agent. Snow’s assumption, with the concurrence of his supervisors, of the duties of an associate land agent did not entitle him to the higher classification. We do not accept the argument that Snow was entitled to associate land agent status under Government Code

section 19257. That

section provides; “Any person acting in good faith in accepting an appointment or employment contrary to this part or the rules prescribed hereunder, shall be paid by the appointing power the compensation promised by or on behalf of the appointing power or, in case no compensation is so promised, then, the actual value of any service rendered and the expense incurred in good faith under such attempted appointment or employment, and has a cause of action against the appointing power therefor.” Here .there was no acceptance of an appointment to the higher position, and Snow was fully aware that his requests therefor had repeatedly been rejected.

There was neither a good faith belief of an appointment by Snow nor an attempted appointment, thus

section 19257 has no application, Snow and his supervisors cannot be allowed to circumvent the constitutional and statutory hiring scheme by the mere assumption by Snow of the duties of a position to which all were aware he had not been appointed. Despite Snow’s failure to receive an appointment in compliance with the civil service rules and regulations, he sought and received a monetary award from the Board of Control. The latter is an administrative board. (Gov. Code, § 13901.) “[I]t has the power to make rules and regulations (Gov.

Code, § 13920) which have the effect of law [citation omitted], the purpose of which is ‘to establish an orderly procedure by which the Legislature would be advised of claims against the State in instances where no provision had been made for their payment’ [citation omitted]; ... it has specified duties with respect to the audit of claims . . . (Gov. Code, § 13912). It is in short an administrative board exercising quasi-judicial powers.” (Chas. L. Harney, Inc. v.

State of California (1963) 217 Cal.App.2d 77, 96-97 [31 Cal.Rptr. 524].) Nowhere in the statutory or decisional law of this state is the Board of Control granted authority over civil service appointments. It is without authority to enforce or effectuate the rules and regulations of the civil service system, and as hereinafter noted, did not undertake to do so. As we have noted, such authority and duty is vested in the State Personnel Board. Since the Personnel Board failed or refused to classify Snow as an associate land agent, he was not entitled to that status for the purpose in question.

We note further that the Board of Control has been granted no authority over PERS. That authority is placed in the defendant Board. The award of the former cannot be held to have a binding effect on the latter. Nor did the Board of Control undertake to determine or purport to interfere with Snow’s employment status. Its subject matter was money only, not classification. The propriety of its award is not before us. It has no res judicata effect. We hold that the award is not “compensation earnable” by Snow.

As we have noted, Snow was entitled to the position of assistant land agent and not that of associate land agent. The compensation earnable by him therefore must be computed on the basis of “the average time put in” by assistant land agents and at the assistant land agent rate of pay. (Gov. Code, § 20023.) The board correctly refused to consider the award of the Board of Control in computing Snow’s retirement benefits. The judgment is reversed. The matter is remanded to the trial court with directions to vacate its peremptory writ and to enter a judgment denying Snow’s petition for a writ of mandamus. Puglia, P.

J., concurred. Government Code

section 20022 has been amended since the effective date of Snow’s retirement; the amendments are not pertinent herein. In a supplemental brief, Snow argues strenuously in support of collateral estoppel and res judicata. We are unpersuaded, first because res judicata requires the prior ruling to have been made by “a court of competent jurisdiction” (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810 [122 P.2d 892]), and the Board of Control neither is a court nor had jurisdiction (see Bank of America v. City of Long Beach (1975) 50 Cal.App.3d 882, 890 [124 Cal.Rptr. 256]; Cal.

Administrative Agency Practice (Cont.Ed. Bar 1970) Collateral Estoppel, § 1.42, p. 36); second because even “ ‘[w]here a question of law essential to the judgment is actually litigated and determined by a valid and final personal judgment, the determination is not conclusive between the parties in a subsequent action on a different cause of action, except where both causes of action arose out of the same subject matter or transaction; and in any event it is not conclusive if injustice would result."' (Italics in original.) Louis Stores, Inc. v.

Department of Alcoholic Beverage Control (1962) 57 Cal.2d 749, 757 [22 Cal.Rptr. 14, 371 P.2d 758]; see also City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 230 [123 Cal.Rptr. 1, 537 P.2d 1250], Cochran v. Union Lumber Co. (1972) 26 Cal.App.3d 423, 427 [102 Cal.Rptr. 632] and Rest., Judgments, § 70, pp. 318-319.)