Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. 37-2007-00082936-CU-WM-CTL, Luis R. Vargas, Judge.
IRION, J.
The City of San Diego (the City) appeals from the trial court's judgment granting the petition for writ of administrative mandamus filed by firefighter Steve S. Choi and San Diego Firefighters, Local 145, IAFF, AFL-CIO (Local 145). The petition sought, among other things, an order requiring the City to afford Choi a hearing prior to removing him from his position as a paramedic and ceasing to pay him the additional compensation that the City pays to firefighters assigned as paramedics.
Local 145 is the exclusive recognized bargaining representative for all firefighters employed by the City.
As we will explain, we conclude that the City was not required to afford Choi a hearing prior to removing him from the position of paramedic or ceasing to pay him the compensation associated with that assignment. Accordingly, we reverse the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Choi has been employed by the City as a firefighter since 1990. After Choi became licensed by the state as a paramedic in 1998, he was assigned as a firefighter and a paramedic to the "Rescue 4" station in the City.
Pursuant to statute and state regulations, the licensing of paramedics is handled by the California's Emergency Medical Services Authority (the State EMS Authority) (Health & Saf. Code, § 1797.172, subd. (c)), and paramedics are further required to be accredited by the local county emergency services authority in the area where they practice. (Cal. Code Regs., tit. 22, §§ 100142, 100165.) It is undisputed that the State EMS Authority renewed Choi's paramedic license in 2006, and Choi also asserts that San Diego County's emergency medical services department "recertified" him in 2006.
Without further elaboration in the record, we assume that when stating that he was "recertified" by the County of San Diego, Choi was referring to the process of accreditation by the local county emergency services agency described in the applicable state regulations. (Cal. Code Regs., tit. 22, §§ 100142, 100165.)
Under article 43 of the City's memorandum of understanding (MOU) with Local 145, firefighters are entitled to received a "paramedic premium" if they are "certified" as paramedics. Specifically, the MOU states that "a paramedic premium will be paid to Firefighters, Engineers, and Captains, certified as paramedics." According to the MOU, the premium is calculated by referring to the compensation schedule for classified employees, with the paramedic premium being "the difference between E step Firefighter and E step Engineer per month." Choi represents that based on this formula, he received a paramedic premium of approximately $900 per month as of December 2004.
The MOU does not define the term "certified," and the parties dispute its meaning. However, we do not find the definition of "certified" in the MOU to be dispositive of our analysis and thus do not attempt to resolve the dispute. We note also that the MOU states: "Effective July 1, 1997, and on the condition that the City enters into an Agreement with the Fire & Life Safety Department/Rural Metro to provide Emergency Medical Services, only employees qualified under '1.' above [i.e., Firefighters, Engineers, and Captains, certified as paramedics], who are assigned to budgeted paramedic positions will receive the paramedic premium." The record contains no evidence of whether the condition described in this provision occurred, and the parties do not discuss it. As we are not able to determine whether this provision is in effect, it plays no part in our analysis.
On September 19, 2004, the City's emergency medical services battalion chief Criss Brainard sent a memorandum to the City's emergency medical services medical director (EMS Medical Director) James Dunford. The memorandum described several incidents which led Brainard to believe that Choi was performing at "unsatisfactory levels." Brainard recommended that Choi "not be allowed to function as a paramedic" for the City.
Dunford is a medical doctor employed by the Regents of the University of California (the Regents). The City contracted with the Regents to provide Dunford to act as the City's EMS Medical Director. Among other things, the agreement between the City and the Regents states that "[t]he City EMS Medical Director [i.e., Dunford] shall initiate action to suspend the ability of any medically-trained employee to medically function in the City EMS System, by notifying the appropriate authority of the person's employer. In addition, he or she will notify the County EMS Medical Director for further action as appropriate."
Dunford replied in an October 12, 2004 memorandum. Summarizing the incidents described by Brainard, Dunford stated that "[t]he facts presented in your memo identify repeatedly unsatisfactory skills and judgment during critical clinical circumstances." Dunford concluded, "... I agree with your recommendation that [firefighter] Choi should no longer function as a paramedic" for the City.
Based on Dunford's memorandum, the City's human resources manager, Patricia Nuñez, notified Choi on November 9, 2004, that the payment of his paramedic premium would be stopped effective December 4, 2004. Nuñez stated:
"This action is being taken pursuant to... Article 43, Section I.1, of the [MOU] which states, in relevant part '... a paramedic premium will be paid to Firefighters, Engineers, and Captains, certified as paramedics.' [¶] Management and Local 145 have a long standing agreement that as used in Article 43, 'certified as a paramedic' is interpreted to mean certified by the [EMS Medical Director] to operate as a paramedic within the City of San Diego's EMS system. As you know, on October 12, 2004, Dr. James Dunford, the EMS Medical Director, withdrew your certification to function as a paramedic within the City's emergency medical service due to several documented instances of unsatisfactory performance. This change in your status makes you ineligible to receive the hourly wage premium paid to certified paramedics."
It is undisputed that the City gave Choi no opportunity to contest the decision before it went into effect.
Due to an apparent clerical oversight, the City continued to include the paramedic premium in Choi's paycheck until June 2005. When the City became aware of the mistake, it notified Choi that he was responsible for repaying the overpayment of $5,400.66 and that the amount of the overpayment would be deducted from his paycheck over 12 pay periods.
In May 2005, Choi's attorney sent a letter to Dunford arguing that Brainard's memorandum contained serious factual errors, and that Brainard's recommendation was unfounded. Dunford met with Choi's attorney, Choi and Brainard on May 24, 2005, to discuss Choi's performance as a paramedic. After the meeting, Dunford issued a memorandum stating that he did not find sufficient cause to reverse his decision.
In May 2006, Local 145 filed a step V grievance with the City on behalf of Choi, challenging the decision to remove Choi from the position of paramedic and stop the payment of his paramedic premium. Among other things, Local 145 argued that Choi had not been provided with appropriate due process concerning the City's action. The City's labor relations officer denied the step V grievance, finding that the City did not violate article 43 of the MOU and that Choi was not deprived of his due process rights.
Local 145 also specifically disputed Nuñez's assertion that "[m]anagement and Local 145 have a long standing agreement that as used in Article 43 [of the MOU], 'certified as a paramedic' is interpreted to mean certified by the [EMS Medical Director] to operate as a paramedic within the City of San Diego's EMS system." Local 145 stated that it was "unaware of any such agreement and has entered into no such agreement."
On May 7, 2007, the City Council, acting in an adjudicatory capacity, heard the step VI grievance filed by Choi and Local 145 to determine whether there was merit to the contention that the City had violated article 43 of the MOU and had not provided Choi with the required due process. The City Council denied the grievance.
Choi and Local 145 then filed this action seeking a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5. The petition sought a writ ordering the City to (1) set aside the decision denying the step VI grievance; (2) reinstate Choi to his position of firefighter/paramedic, inclusive of the payment of the paramedic premium; and (3) pay Choi the paramedic premium it had withheld since December 2004. The petition contended (1) Choi was denied his constitutional right of due process because he was deprived of a property right without being given the right to be heard in advance; and (2) Choi was deprived of the procedural protections that he was due under the City's civil service rules covering demotions and reductions in pay because the City did not grant him a predeprivation hearing and an appeal before its civil service commission (the Commission).
The trial court ordered that the writ of administrative mandamus should issue as requested by Choi and Local 145. Specifically, the trial court concluded that the City's civil service rules governing reduction in compensation applied to Choi's case, and that accordingly the City had to follow the procedural steps specified in its civil service rules for reduction in compensation prior to ceasing the payment of Choi's paramedic premium.
The City appeals from the judgment.
In its notice of appeal, the City indicated that its appeal would also encompass the trial court's overruling of a demurrer that the City filed against Local 145 challenging Local 145's standing to pursue this action on behalf of Choi. The City has presented no argument on appeal concerning the demurrer, and we thus consider the issue to be waived.
II
DISCUSSION
A. Standard of Review
Choi filed this action under Code of Civil Procedure section 1094.5, which gives the trial court the authority to consider petitions for administrative mandamus to "inquir[e] into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer." (Id., subd. (a).) The trial court reviews the administrative decision to determine whether it was "without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion." (Id., subd. (b).) An abuse of discretion is established "if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Ibid.)
When, as here, the issues in an administrative mandamus proceeding concern " ' "procedural matters... involving the application of the due process clause" ' " a " ' "pure question of law" ' " is presented, and we apply a de novo standard of review. (Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, 168.) "[W]e are not bound by any legal interpretation made by the [City] or the trial court. Instead, we make an independent review of any questions of law necessary to the resolution of this matter on appeal." (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077.) " 'Generally, the same rules of construction and interpretation which apply to statutes govern the construction and interpretation of rules and regulations of administrative agencies. [Citation.]' [Citation.] Thus, '...the interpretation of civil service rules is purely a question of law.' " (Head v. Civil Service Com. (1996) 50 Cal.App.4th 240, 243-244 (Head).)
This appeal presents a legal rather than a factual issue. However, to the extent that any factual findings are at issue, when a trial court evaluates an administrative determination that does not involve a fundamental vested right, the trial court reviews the agency's findings to determine whether substantial evidence supports those findings. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144 & fn. 10; Code Civ. Proc., § 1094.5, subd. (c).) Our inquiry on appeal in such a situation is "the same as that of the trial court." (Steve P. Rados, Inc. v. California Occupational Saf. & Health Appeals Bd. (1979) 89 Cal.App.3d 590, 595; Bixby, at p. 149.) However, if the order or decision of the agency substantially affects a fundamental vested right, the trial court in reviewing factual findings "must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence." (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; see also Code Civ. Proc., § 1094.5, subd. (c).) In that case, "the standard of review on appeal of the trial court's determination is the substantial evidence test." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.)
B. Application of the City's Civil Service Rules
We first consider whether, based on the content of its civil service rules, the City committed an "abuse of discretion" or acted "without, or in excess of jurisdiction" (Code Civ. Proc., § 1094.5, subd. (b)) when it decided that Choi should stop functioning as a paramedic and lose his paramedic premium without a predeprivation hearing and a right to appeal to the Commission.
The issue of whether the City was required to follow a specific process under its civil service rules is separate from the issue, which we will discuss below, of whether Choi was entitled under constitutional principles of due process to a predeprivation hearing. (See Schultz v. Regents of University of California (1984) 160 Cal.App.3d 768, 773 (Schultz) [before addressing a public employee's contention that he was constitutionally entitled to a predeprivation hearing, the court examined the separate issue of whether the employee was entitled to a predeprivation hearing under any statute, rule or written policy of the employer].)
Choi and Local 145 rely on two separate provisions of the City's civil service rules to argue that Choi was entitled under those rules to a predeprivation hearing and an appeal. We consider each in turn.
1. The Provision in the Civil Service Rules Concerning Demotions Is Not Applicable
Choi and Local 145 contend that the civil service rule concerning demotions is applicable here. That rule states:
"The reduction of an employee from a position in a class to a position in another class for which the maximum rate of pay is lower, shall be called a 'Demotion' and may be made upon... the written recommendation of the appointing authority with a statement giving the specific reasons therefor, in which... case, the employee so demoted shall be entitled to a hearing before the Commission. [¶] The procedure and appeal rights affecting such a disciplinary demotion shall be the same as those described in [San Diego Municipal Code] section 23.1204 and 23.1205." (San Diego Mun. Code, § 23.1211.)
Unless otherwise indicated, all further code references are to the San Diego Municipal Code.
Choi and Local 145 argue that Choi's "loss of his position as a Paramedic and his considerable Paramedic Premium based on unsubstantiated charges was equivalent to a 'demotion[.]' " (Italics added.) However, as we will explain, Choi's situation does not meet the definition of a " '[d]emotion' " as described in section 23.1211.
Section 23.1211 describes a demotion as "[t]he reduction of an employee from a position in a class to a position in another class for which the maximum rate of pay is lower...." (§ 23.1211, italics added.) The term "class" is defined in the civil service rules as "a group of positions sufficiently similar in respect to duties and responsibilities that the same title may reasonably and fairly be used to designate each position allocated to the class, that the same minimum qualifications may be required, and the same salary range may be made to apply with equity." (§ 23.0101.) The civil service rules call for the creation of a classification plan which "shall include (a) an outline of classes of positions in the Classified Service arranged in appropriate occupational groups [and] (b) class specifications in such form as the Personnel Director [appointed by the Commission] may prescribe." (§ 23.0202.)
Although the City's classification plan is not part of the record, the parties appear to agree that the class to which Choi belongs is the class of firefighter and that the position of firefighter/paramedic is not a separate classification. Thus, by removing Choi from the position of paramedic and ceasing the payment of his paramedic premium, the City did not reduce Choi from a position in one class to a lower paying position in another class. On the contrary, Choi remained in the classification of firefighter. Thus, section 23.1211 does not apply to this situation and, accordingly, Choi is not entitled to a hearing and an appeal as set forth in section 23.1211.
For example, the verified petition filed by Choi and Local 145 sets forth the following list of classifications when describing the scope of employees represented by Local 145: "Fire Recruits, Fire Fighters, Fire Engineers, Fire Captains, Fire Battalion Chiefs, Fire Prevention Inspectors, Fire Prevention Supervisors, Assistant Fire Marshals, Emergency Medical Technicians, Paramedics, Medical Operations Coordinators, Fire Helicopter Pilots, and Air Operations Managers." The verified petition does not list a separate classification for firefighter/paramedic.
2. The Provision in the Civil Service Rules Concerning Reductions in Compensation Is Not Applicable
Choi and Local 145 also rely on the civil service rule concerning reductions in compensation to argue that Choi was entitled to a predeprivation hearing and an appeal. That rule states:
"The compensation of any employee in the classified service may be reduced within the salary range of that employee's current classification by the appointing authority. Such reduction in compensation may be put into effect upon a determination that the employee's performance has not met the standards established for the employee's classification and/or position. The procedure for, and appeal of, a reduction in compensation shall be provided in the Personnel Manual and/or a current ratified Memorandum of Understanding." (§ 23.1209.)
According to Choi and Local 145, Choi's loss of his paramedic premium constituted a reduction of compensation within the meaning of section 23.1209, giving rise to the procedural protections cited therein. As we will explain, we conclude that section 23.1209 is not applicable here.
Section 23.1209 expressly applies to situations where an employee's salary is "reduced within the salary range of that employee's current classification." Thus, the question for us is whether, in suspending Choi's paramedic premium, the City was reducing Choi's compensation within the salary range of Choi's current classification, which as we have discussed, was the classification of firefighter. The term "salary range" is not expressly defined in the civil service rules. However, based on our reading of the civil service rules as a whole, the term "salary range" appears to refer to the City's compensation schedule for the classified service. Specifically, the civil service rules state that the salary associated with a specific classification is to be set forth in a "compensation schedule" which will include "a table of standard rates of pay, indicating the minimum, maximum, and intermediate range step for each standard rate" and "a list of classes of positions by occupational group, with the standard rate of compensation shown for each class." (§ 23.0203.)
We must interpret a statute (in this case a provision of the City's municipal code) " 'in the context of the statute as a whole and the overall statutory scheme, and we give "significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose." ' [Citation.] In other words, ' "we do not construe statutes in isolation, but rather read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' [Citation.]" ' " (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.)
Choi has presented no evidence that the paramedic premium is set forth in the City's compensation schedule. Indeed, based on the MOU's description of how the paramedic premium is calculated, it appears that the paramedic premium is not contained in the compensation schedule as part of the salary range of a firefighter. Instead, as the MOU establishes, the paramedic premium is additional pay, calculated by taking "the difference between E step Firefighter and E step Engineer per month." Thus, because the paramedic premium is above and beyond the salary range for firefighters as expressed in the City's compensation schedule, Choi's loss of his paramedic premium does not reflect a situation in which his compensation was "reduced within the salary range of [Choi's] current classification." (§ 23.1209.) Accordingly, Choi's loss of his paramedic premium was not the type of reduction in pay that is covered by section 23.1209, and Choi is not entitled under the City's civil service rules to the procedural protections described in section 23.1209.
The City's compensation schedule is not part of the record.
Choi and Local 145 argue that Head, supra, 50 Cal.App.4th 240, is applicable here. We disagree. In Head, a deputy marshal with the County of San Diego was removed from his position as field training officer under which he received an additional $30 each pay period as a " 'premium' " over his regular salary. (Id. at pp. 242-243.) The deputy marshal contended that he was entitled to certain procedural protections under the county's civil service rules, which provided that " '[a]n employee who has completed the required probationary period, who is removed, suspended or reduced in rank or compensation, may... appeal in writing to the [commission] from such order.' " (Id. at p. 244.) Head ruled that based on the specific wording of the county's civil service rules, the deputy marshal's loss of his premium pay constituted a reduction in compensation which gave rise to procedural protections in the county's civil service rules. (Id. at p. 245.) In this case a different set of civil service rules are at issue. We have focused on the specific wording of section 23.1209 of the City's rules, which is significantly different from the county rule at issue in Head. Specifically, unlike the county's rule in Head, section 23.1209 does not merely refer to "reduced... compensation" (Head, at p. 244), but to a reduction in compensation "within the salary range of [the] employee's current classification." (§ 23.1209.)
Choi and Local 145 also rely on the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, §§ 3300-3311) (the Bill of Rights Act) to argue that Choi incurred a reduction in compensation that gave rise to certain procedural rights. (See, e.g., McManigal v. City of Seal Beach (1985) 166 Cal.App.3d 975, 979 (McManigal) [holding that a police officer pulled off of motorcycle assignment, and who thus lost the 5 percent premium in pay associated with that position, was entitled to an administrative appeal]; White v. County of Sacramento (1982) 31 Cal.3d 676 (White) [deputy sheriff who lost his specialized pay when removed from his assignment as a detective was entitled to an administrative appeal].) The Bill of Rights Act applies to peace officers and provides for an administrative appeal when a "punitive action" is undertaken. (Gov. Code, § 3304, subd. (b).) "Punitive action" includes "any action that may lead to... reduction in salary." (Id., § 3303.) Here, unlike the Bill of Rights Act, section 23.1209 requires more than merely a reduction in salary to trigger the right to a predeprivation hearing and an appeal. Instead, there must be a reduction in compensation "within the salary range of [the] employee's current classification" (§ 23.1209), which, as we have explained, did not occur in Choi's case. Thus, the cases decided under the Bill of Rights Act do not provide persuasive precedent here.
We note that the Firefighters Procedural Bill of Rights Act (Gov. Code, §§ 3250-3262) became effective on January 1, 2008, while this litigation was pending in the trial court. (See Stats. 2007, ch. 591, § 2, No. 9 West's Cal. Legis. Service, pp. 4026-4030; Cal. Const., art. IV, § 8, subd. (c), par. (1) [effective date of statutes].) The statute applies to firefighters, including those working as paramedics (Gov. Code, § 3251, subd. (a)), and includes many of the same provisions as the Bill of Rights Act, including the provisions relied on by McManigal, supra, 166 Cal.App.3d 975, and White, supra, 31 Cal.3d 676, for their holdings that a police officer's loss of premium pay gives rise to the right to an administrative hearing. (Compare Gov. Code, § 3304, subd. (b), with id., § 3254, subd. (b); & compare id., § 3303 with id., §3251, subd. (c)].) Although the parties have not raised the issue, it appears that if the Firefighters Procedural Bill of Rights Act was applicable, according to the reasoning set forth in McManigal and White, Choi would be entitled to the procedural rights set forth in that statute prior to being removed from the position of paramedic and losing his premium pay. (Cf. Baggett v. Gates (1982) 32 Cal.3d 128, 140 [the Bill of Rights Act is applicable to charter cities].)
C. Was Choi Entitled to a Predeprivation Hearing Under Constitutional Principles of Due Process?
We next examine the contention that Choi had a property interest in his paramedic position and receipt of his paramedic premium, giving rise to a constitutional right to due process to the adverse employment action.
Choi and Local 145 rely on state and federal constitutional principles of due process for their argument. " '[W]hen a person has a legally enforceable right to receive a government benefit provided certain facts exist, this right constitutes a property interest protected by due process.' " (Schultz, supra, 160 Cal.App.3d at p. 775.) Applying that principle, our Supreme Court held in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215 (Skelly) that the provisions of the Civil Service Act (Gov. Code, § 18500 et seq.), which governs the State of California's civil service system, give permanent state civil service employees a property interest in continued employment, and that, accordingly, the state could not terminate their employment without first according predeprivation procedures. Subsequently, Ng v. State Personnel Bd. (1977) 68 Cal.App.3d 600, 606 (Ng) held that the state's civil servants are also entitled to predeprivation due process before being demoted for disciplinary reasons.
Specifically, Skelly stated that "[a]s a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline." (Skelly, supra, 15 Cal.3d at p. 215.)
"In deciding whether a particular employment action requires predisciplinary procedural safeguards under the due process clause, a court must... determine whether the employer's conduct adversely affects a property right." (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 631, italics added, citing Skelly, supra,15 Cal.3d at pp. 206-207.) Thus, the issue here is whether Choi has a property interest in the position of paramedic and the continued payment of the paramedic premium.
Property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." (Board of Regents v. Roth (1972) 408 U.S. 564, 577.) "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." (Ibid.) "A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." (Perry v. Sindermann (1972) 408 U.S. 593, 601 (Perry).)
In determining that permanent state civil service employees have a property interest in continued employment, both Skelly and Ng focused on the provisions of the Civil Service Act requiring cause to be shown to justify disciplinary action. (Skelly, supra, 15 Cal.3d at pp. 201-205; Ng, supra, 68 Cal.App.3d at p. 606; see also Schultz, supra, 160 Cal.App.3d at pp. 777-778 [explaining that property interest identified in Skelly and Ng was based on the provision of the Civil Service Act and thus did not apply to an employee not covered by that statute].) As Choi is employed by the City, the state's Civil Service Act does not govern the terms of his employment. Thus, we must look to other "rules or mutually explicit understandings that support his claim of entitlement" to assess whether Choi has a property interest in retaining his assignment as a paramedic. (Perry, supra,408 U.S. at p. 601.)
Choi and Local 145 point to three items that they contend collectively give rise to a property interest in Choi's retention of his paramedic status. We consider each in turn.
First, Choi and Local 145 point to the contract between the City and the Regents, which provides that "[t]he City EMS Medical Director shall initiate action to suspend the ability of any medically-trained employee to medically function in the City EMS System, by notifying the appropriate authority of that person's employer. In addition, he or she will notify the County EMS Medical Director for further action as appropriate." We find that this provision does not give rise to a property interest in Choi's continued assignment as a paramedic because it cannot reasonably be read to create an expectation that a firefighter's assignment to function as a paramedic for the City will continue unless specific criteria are present. "Whether an expectation of entitlement is sufficient to create a property interest 'will depend largely upon the extent to which the statute contains mandatory language that restricts the discretion of the [decisionmaker].' [Citation.] If 'the decision to confer a benefit is unconstrained by "particularized standards or criteria," no entitlement exists.' " (Allen v. City of Beverly Hills (9th Cir. 1990) 911 F.2d 367, 370.) Here, the plain language of the contractual provision permits precisely the action taken here, namely, a recommendation by Dunford to the City, based on Dunford's medical judgment and unconstrained by any particular standards or criteria, that a particular firefighter should no longer function as a paramedic for the City.
Second, Choi and Local 145 argue that the "San Diego County Division of Emergency Medical Services Policy/Procedure/Protocol" governing the "prehospital emergency medical care investigative process" gave Choi a property interest in his paramedic position. That document states that the county's emergency medical services medical director may temporarily suspend a paramedic's state-issued license, prior to a hearing, in instances where the paramedic has engaged in conduct that constitutes grounds for revocation of the license or where there is an imminent threat to public health or safety. According to the document, after issuing the temporary suspension, the county must promptly transmit all relevant documentary evidence to the State EMS Authority. We conclude that the county's procedure for temporary suspension of a paramedic's license has no relevance here. The City did not suspend Choi's state-issued license to act as a paramedic. Instead, it decided that it no longer wished to assign Choi to a paramedic position. The county's procedures for temporary suspension of a paramedic's state-issued license, thus, do not give rise to any property interest that is relevant to this case.
Third, Choi and Local 145 argue that the statute governing the State EMS Authority's procedures for suspension or revocation of a paramedic's state-issued license establishes that Choi had a property interest in his paramedic position with the City. This argument fails for the same reason cited above. The City did not suspend or revoke Choi's state-issued paramedic license. Instead, it decided that Choi should not be assigned as a paramedic working for the City. The statutory provisions concerning the State EMS Authority's procedures for suspending or revoking a paramedic license have no bearing on the circumstances under which the City may revoke a firefighter's assignment as paramedic, and thus do not create any property interest relevant here.
Choi and Local 145 have cited no other rules or mutually explicit understandings that would give rise to a property interest in Choi's continued assignment as a paramedic for the City. Thus, we conclude that there is no merit to the contention that constitutional principles of due process require the City to afford Choi a predeprivation hearing and appeal concerning its decision to remove him from his assignment as a paramedic and cease payment of the paramedic premium.
DISPOSITION
The judgment is reversed. The parties are to bear their own costs on appeal.
WE CONCUR: McDONALD, Acting P. J., AARON, J.