Roe v. St. Personnel Bd.
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Filed 8/20/04 CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE ROBERT ROE, Plaintiff and Respondent, v. STATE PERSONNEL BOARD, Defendant, A098067 (Alameda County Super. Ct. No. 820295-2) DEPARTMENT OF JUSTICE, Real Party in Interest and Appellant. ROBERT ROE, Plaintiff and Appellant, v. A098624 STATE PERSONNEL BOARD, Defendant, DEPARTMENT OF JUSTICE, Real Party in Interest and Respondent. BY THE COURT: The opinion filed July 22, 2004, is ordered modified as follows: In part IV, footnote 13, commencing on page 20, is modified by inserting as the fourth sentence the following: Moreover, Roe is not entitled to reinstatement pending the Board s determination because, as Kirkpatrick recognizes, the remedy for the Skelly violation is damages, not reinstatement. (Kirkpatrick, at pp. 945-946; see also International Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 209; Williams v. City of Los Angeles (1990) 220 Cal.App.3d. 1212, 1217.) As so modified, footnote 13 now reads: 13 Roe cites Kirkpatrick v. Civil Service Com. (1978) 77 Cal.App.3d 940, 945, which holds that under Barber and Skelly if [the Personnel Board] hearing shows that there were good grounds for dismissal, the employee is not entitled to reinstatement. Roe concludes that he is entitled to reinstatement because the Board has not concluded that there were good grounds for his dismissal. However, nothing in the case requires reinstatement rather than remand where, following a Skelly violation, the Personnel Board has conducted a full hearing but not yet made a determination on the merits of the dismissal. Moreover, Roe is not entitled to reinstatement pending the Board s determination because, as Kirkpatrick recognizes, the remedy for the Skelly violation is damages, not reinstatement. (Kirkpatrick, at pp. 945-946; see also International Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 209; Williams v. City of Los Angeles (1990) 220 Cal.App.3d. 1212, 1217.) None of the other cases cited by Roe are on point. (See Santillano v. State Personnel Bd. (1981) 117 Cal.App.3d 620 [employee could not be terminated through procedures for probationary employees; no discussion of Skelly]; California School Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139 [district s personnel commission lacked jurisdiction to dismiss petitioner; pre-Skelly]; Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 221 [denying reinstatement where procedurally invalid nonreappointment deemed harmless; no discussion of Skelly].) This modification makes no change in the judgment. Appellant Roe s petition for rehearing is denied. Respondent Department of Justice s request for depublication is denied. Date_____________________ Roe v. State Personnel Board (A098067, A098624) __________________________P.J.
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