The typical quasi-judicial decision of a local public agency may be challenged in court by bringing a legal action known as a “writ of administrative mandate.” Code of Civil Procedure section 1094.6 provides that such actions must be brought within 90 days after the decision is made, if appropriate notice is given to the parties. In Donnellan v. City of Novato (2001) 86 Cal. App. 4th 1097, the Court of Appeal has now held that, because the City of Novato (City) did not attach an affidavit or certificate of mailing to its notice of decision, police officer John Donnellan, had more than 90 days to seek district court review of the City’s decision to discipline him. Although the decision involved disciplinary action, the decision will also affect many other types of agency decisions, such as land use or licensing permits.
The Facts
On September 8, 1998, City’s Council issued a written decision suspending the police officer for four days without pay. On September 10, 1998, City’s manager mailed a copy of the Council’s decision and a cover letter to the police officer. Neither the decision nor the cover letter contained an affidavit or certificate of mailing. On December 21, 1998, more than 90 days after the date on which City’s manager mailed a copy of the decision, the police officer filed a petition in district court for review of the City’s decision. The district court dismissed the police officer’s lawsuit because he had not filed it within 90 days after the decision, as required by Code of Civil Procedure § 1094.6.
The Court of Appeal’s Decision
The police officer filed his petition for review with the district court under Code of Civil Procedure § 1094.5, which allows review of an administrative order or decision that was made after an evidentiary hearing. Because he sought review under § 1094.5, the police officer was required to file his petition in district court "not later than the 90th day following the date on which the decision [became] final." See Code of Civil Procedure § 1094.6. A written decision becomes final under § 1094.6 “upon the date it is mailed by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the party seeking the writ [review].”
The California Court of Appeal agreed with the police officer’s argument that his district court petition was timely. According to the Court, the police officer’s 90-day time limitation (found in §1094.6), did not begin to run until the City’s decision became final, and, according to § 1094.6, the City’s written decision did not become final until City mailed it to the police officer “by first-class mail, postage prepaid including a copy of the affidavit or certificate of mailing.” Thus, the Court determined that § 1094.6, “on its face requires [City] to include an affidavit or certificate of mailing when mailing the decision.” The reason for requiring an affidavit or certificate of mailing is to inform the party filing a petition of the date of mailing, so that the party knows when the 90-day period begins to run. Because the City did not include an affidavit or certificate of mailing when it mailed the decision to the police officer, the decision did not become final and the police officer’s petition was therefore timely.
The Effect of This Decision
Although this decision concerned disciplinary action by a city against one of its employees, the decision has a wider impact. Section 1094.6 applies to local agencies (other than school districts) and their commissions, boards, officers, and agents. The decisions that are governed by § 1094.5 and § 1094.6 include not only employee disciplinary decisions but also (1) decisions revoking or denying an application for a permit, license, or other entitlement, (2) decisions imposing a civil or administrative penalty, fine, charge, or cost; (3) decisions denying an application for any retirement benefit or allowance; and (4) many types of land use decisions.
Thus, when a public agency mails written decisions to employees, applicants, or other parties affected by the decisions, it should always include a formal certificate of mailing (a written statement saying that a specified person mailed the decision on a certain date) or an affidavit (a written statement, accompanied by an oath or affirmation, that a specified person mailed the decision on a certain date). It is not sufficient to merely send a cover letter that does not include a formal affidavit or certificate of mailing.