Lake Elsinore School District (PERB A154E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
ELSINORE
	VALLEY
	EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging
	Party,
v.
LAKE
	ELSINORE
	SCHOOL
	DISTRICT,
Respondent.
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___________________
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Case
	No.
	LA-CE-1968
Administrative
	Appeal
PERB
	Order
	No. 	Ad-154
June
	12,
	1986
Appearance:	
Parham	
&	
Associates, 	Inc.
	by 	James
	C.
	Whitlock
	for
Lake
	Elsinore
	School
	District.
Before
	Hesse,
	Chairperson;
	Porter
	and
	Craib,
	Members.
DECISION
PORTER,
	Member:
	Lake
	Elsinore
	School
	District 	(District)
appeals 	the 	executive
	director's
	rejection
	for 	lack 	of
timeliness
	of
	its
	exceptions
	to
	the 	administrative
	law
	judge's
proposed
	decision.
	The
	proposed
	decision
	was
	served
	on
	the
District
	by
	mail
	on 	December 	13, 	1985.
	The
	cover
	letter
attached 	to
	the
	decision 	specified 	that
	the 	deadline 	for
	filing
exceptions
	was
	January
	2, 	1986.
	The
	District's
	exceptions
	were
sent 	via 	regular
	mail
	from
	Irvine
	on December 	31, 	1985, 	and
were
	received 	in 	the 	Headquarters 	of 	the 	Public
	Employment
day
	Relations
	Board
	(PERB
	or
	Board) 	on
	January
	3, 	1986, 	one
past 	the 	specified 	deadline.
appeal,
	its 	late
	In
	its
	the
	District
	urges
	PERE
	to 	excuse
the
	by 	considering 	the 	"delay," 	presumably 	caused 	by
	filing

holiday
	mail, 	as
	an
	extraordinary
	circumstance.
	Further,
	the
District
	urges
	PERB
	to
	consider 	the
	excusableness 	of
	its
attorney's 	secretary's
	error
	in
	not 	mailing
	the 	exceptions
	by
certified
	mail.
	No
	declaration
	is
	attached
	to
	the 	appeal
explaining
	or 	supporting 	the
	District's
	argument
	that
	clerical
error
	was
	involved,
	nor
	specifying 	the
	time
	of
	day
	at
	which
	the
exceptions
	were
	deposited 	in 	the 	mail.
DISCUSSION
Current
	PERB
	Regulations
	establish
	the
	procedures
	for
excep
t
ing 	to
	a
	propose
	d
ecision.
l	. 	d 	' 	'	
Section
	32300
	of 	those
regulations
	states
	in 	pertinent
	part,
A
party
	may
	file
	with 	the
	Board
	itself
	.•.
a
	statement 	of 	exceptions
	to
	a
	Board
	agent's
proposed
	decision
	•••
	and
	supporting
brief,
	within
	20
	days
	following 	the 	date 	of
service
	of
	the 	decision
	.•
11
Filing
11
is
	defined
	in 	section
	32135
	as 	follows:
All
	documents
	shall
	be
	considered
	"filed"
when
	actually
	received
	by
	the 	appropriate
PERB
	office
	before 	the
	close
	of
	business
	on
the
	last
	date
	set
	for
	filing
	or
	when
	sent
	by
telegraph 	or
	certified
	or 	Express 	United
States
	mail 	postmarked 	not
	later
	than 	the
last
	day
	set
	for
	filing
	and
	addressed 	to 	the
proper
	PERB
	office.
Section
	32136
	provides,
A
	late 	filing
	may
	be 	excused
	in 	the
discretion
	of 	the
	Board
	only 	under
extraordinary 	circumstances.
	A
	late 	filing
which 	has 	been 	excused 	becomes
	a
	timely
filing
	under
	these 	regulations.
lPERB
	Regulations 	are 	set 	forth 	in 	Title
	8
	of 	the
California 	Administrative
	Code, 	commencing
	with 	section
	31001.
2

Previous
	PERE
	decisions
	have
	held
	that
	delays
	caused
	by
	the
U.S.
	mail
	do
	not
	constitute
	extraordinary
	circumstances. 	See,
e.g.,
	University
	of
	California,
	Riverside
	(Jones)
	(1984)
	PERE
Decision
	No.
	386-H,
	in
	which
	the
	Board
	stated,
Mail
	delays 	are 	ordinary,
	commonly
	accepted
occurrences
	and,
	therefore, 	will
	generally
not
	serve
	to
	excuse
	a
	late 	filing.
	Anaheim
Union 	High
	School
	District
	[(1978)
	PERE
	Order
No.
	Ad-42].
Further,
	it
	does
	not 	appear
	here
	that
	any
	delay 	occurred,
	in
that
	only
	one
	full
	business
	day
	(January
	2)
	passed
	between
mailing
	and
	receipt,
	since
	January
	1
	was
	a
	holiday. 	Therefore,
this
	argument
	is
	rejected.
As
	to 	the
	asserted
	clerical
	error,
	while
	the
	Board
	has
	in
the
	past
	excused
	a
	late 	filing
	caused
	by
	a
	temporary
	employee's
failure
	to
	deliver
	exceptions
	to
	a 	PERB
	regional
	office
	(Chula
Vista 	City
	School
	District
	(1978)
	PERB
	Order
	No.
	Ad-29),
	the
facts 	in 	that
	case
	were
	supported
	by 	an
	unrefuted
	affidavit
from
	the 	attorney 	explaining
	his
	normal
	practice
	and
	the
instructions
	he 	gave
	to 	the
	temporary
	office
	help,
	who
	failed
to 	follow, 	or 	did 	not 	understand, 	the
	directions.
	Here,
	there
is
	no
	declaration 	explaining
	what
	steps
	were
	taken 	to 	insure
that 	the 	exceptions
	were
	sent
	by
	certified
	mail.
	A
mere
allegation
	of
	secretarial 	error,
	without
	more,
	does 	not
establish
	good
	cause,
	let
	alone 	extraordinary 	circumstances.
Notwithstanding 	the 	foregoing 	lack 	of 	merit 	in 	the
District's
	arguments,
	we
	nevertheless 	find 	the 	exceptions
	to
3

have
	been
	timely
	filed,
	based
	on
	the 	five-day 	extension
mandated
	by
	Code
	of
	Civil
	Procedure
	(CCP)
	section
	1013.
2
In
so
	holding,
	we
	expressly 	overrule
	Lincoln 	Unified
	School
District
	(1978)
	PERB
	Order
	No.
	Ad-35, 	which
	held
	that
	CCP
section
	1013
	does
	not 	apply
	to
	PERE.
Statutory
	and
	case
	law
	do
	not 	support 	the 	Board's
	prior
holding 	in
	Lincoln 	Unified
	School
	District,
	supra,
	that
	CCP
section
	1013
	does
	not 	apply
	to 	administrative 	actions 	before
this
	Board, 	nor
	did 	they 	support
	former
	section
	32140(b)
	of
PERE
	Regulations.
3
First,
	the
	fact 	that 	section
	1013
	appears
	in
	the
	Code
	of
Civil
	Procedure,
	rather
	than
	in 	the
	Government
	Code
	provisions
that 	are
	under
	PERB's
	jurisdiction,
4
does
	not 	render
	that
2ccP
	section
	1013
	states
	in 	relevant
	part,
a)
	In 	case 	of
	service
	by
	mail,
	...
	the
service
	is
	complete
	at
	the
	time 	of 	the
deposit,
	but
	any
	prescribed 	period 	of
	notice
and 	any
	right
	or
	duty
	to
	do 	any
	act 	or
	make
any
	response 	within
	any
	prescribed 	period 	or
on
	a
	date
	certain 	after
	the 	service
	of 	such
document
	served
	by
	mail
	shall
	be
	extended
five
	days
	if
	the 	place 	of 	address
	is
	within
the 	State
	of
	California,
	.•.
3section
	32140(b)
	stated:
That
	portion 	of 	section
	1013
	of 	the
	Code
	of
Civil
	Procedure
	relating 	to 	extending 	time
after
	mailing
	shall
	not 	apply.
4PERB
	administers 	the 	State
	Employer-Employee
	Relations
Act
	(SEERA)
	found
	at
	Government 	Code
	sections
	3512
	through
3524;
	the 	Educational
	Employment
	Relations 	Act
	(EERA)
	at
sections
	3540
	through 	3549.3; 	and
	the 	Higher 	Education
Employer-Employee 	Relations 	Act
	(HEERA)
	at 	sections
	3560
through 	3599.
4

provision 	inapplicable 	to 	PERB. 	It 	is 	a 	well-settled 	rule 	of
statutory 	construction 	that,
the 	separation 	of 	the 	various 	statutes 	into
codes 	is 	for 	convenience 	only, 	and 	the 	codes
are 	to 	be 	read 	together 	and 	regarded 	as
blending 	into 	each 	other 	thereby 	forming 	but
a 	single 	statute ....
People 	v. 	Ashley 	(1971) 	17 	Cal.App.3d 	1122,
1126. 	See 	also, 	Pesce 	v. 	Department 	of
Alcoholic 	Beverage 	Control 	(1958) 	51 	Cal.2d
310, 	312; 	64 	Ops. 	Atty. 	Gen. 	240, 	252 	(1981).
Second, 	CCP 	section 	1013 	has 	been 	found 	specifically
applicable 	to 	actions, 	decisions 	and 	orders 	of 	administrative
agencies, 	where 	the 	prescribed 	period 	of 	appeal 	runs 	from 	the
service 	of 	the 	administrative 	document 	and 	the 	agency 	effects
service 	by 	mail. 	See, 	e.g., 	Pesce 	v. 	Department 	of 	Alcoholic
Beverage 	Control, 	supra, 	at 	312-13; 	Industrial 	Indemnity 	Co. 	v.
Industrial 	Accident 	Commission 	(1961) 	57 	Cal.2d 	123, 	126;
California 	Accounts, 	Inc. 	v. 	Superior 	Court 	(1975) 	50
Cal.App.3d 	483, 	486-87. 	If, 	however, 	the 	appeal 	period 	runs
from 	issuance 	of 	the 	administrative 	decision 	rather 	than 	from
the 	service, 	then 	CCP 	section 	1013 	is 	not 	applicable. 	Mario
Saikhon, 	Inc. 	v. 	Agricultural 	Labor 	Relations 	Board 	(1983) 	140
Cal.App.3d 	581, 	583.
For 	the 	foregoing 	reasons, 	the 	Board 	repealed 	section
32140(b). 5
Son 	May 	27, 	1986, 	the 	Office 	of 	Administrative 	Law 	(OAL)
approved 	PERB's 	emergency 	filing 	for, 	among 	other 	items, 	repeal
of 	section 	32140(b).
5

PERB's 	current 	Regulations 	establish 	that 	the 	20-day 	appeal
period 	runs 	from 	date 	of 	service 	of 	the 	proposed 	decision 	and,
thus, 	if 	service 	occurs 	by 	mail, 	then 	CCP 	section 	1013 	is
clearly 	applicable. 6 Consequently, 	PERB 	is 	mandated 	by 	CCP
section 	1013 	to 	accord 	the 	District 	an 	additional 	five 	days 	in
which 	to 	file 	its 	exceptions, 	thus 	making 	them 	due 	at 	the 	PERB
office 	on 	or 	before 	January 	7, 	1986. 	Since 	they 	were 	received
on January 	3, 	1986, 	we 	deem 	them 	to 	be 	timely 	filed.
ORDER
The 	executive 	director 	is 	hereby ORDERED 	to 	accept 	as
timely 	filed 	the 	District's 	exceptions 	to 	the 	proposed 	decision
in 	this 	case.
Chairperson 	Hesse 	and 	Member 	Craib 	joined 	in 	this 	Decision.
6rt 	should 	be 	noted 	that 	PERB 	Regulations 	on 	this 	issue
are 	currently 	under 	review, 	and 	future 	parties 	should 	ascertain
the 	status 	of 	the 	regulations 	before 	assuming 	they 	have 	an
additional 	five 	days 	to 	file 	exceptions. 	In 	addition, 	parties
should 	clearly 	understand 	that 	this 	five-day 	extension 	only
applies 	where 	service 	occurs 	by 	mail.
6