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In its decision denying reinstatement to fired San Francisco elections director Tammy Haygood, the First District Court of Appeal turned her legal arguments against her and chided her lawyer’s conclusions. In a 24-page ruling released Friday, the appellate court reversed San Francisco Superior Court Judge James McBride and held that Haygood was a probationary employee and subject to dismissal without cause or hearing. “The Elections Commission decision to terminate Haygood was proper and did not need to comply with the removal procedures applicable to non-probationary employees,” Justice Paul Haerle wrote in City and County of San Francisco v. Superior Court (Haygood), A099980. Justices James Lambden and Ignazio Ruvolo joined him in the unpublished opinion. Haygood had been the choice of Mayor Willie Brown as elections director and was appointed in August 2001 by the city administrator. A few months later in November, voters changed the city charter, giving a newly formed Elections Commission the power to hire its own director. It fired Haygood in April 2002 without a hearing or stating a cause, but did cite as its authority the probationary agreement she had signed as the condition of her employment. Commissioners had said, however, that they were upset that she had spent $5.6 million over budget for the March 2002 elections. Also during her tenure, several ballot box lids were found floating in San Francsico Bay following the November 2001 election. Haygood appealed her firing, and the city Civil Service Commission reinstated her with back pay. The Elections Commission appealed that order in superior court, where McBride ruled in favor of Haygood’s reinstatement and ordered that she continue to be paid her $120,000-a-year salary with benefits. The reinstatement order was stayed by the appellate panel at the request of the Elections Commission, pending a hearing and oral argument, although Haygood has been paid while the court decided her fate. In its argument defending its reinstatement, the Civil Service Commission told the court that a charter change gave it the power to determine probationary periods absent other language and cited the 1995 ruling Hill v. City of Long Beach, 33 Cal.App.4th 1684. But Haerle disagreed, writing that “rather than aiding Haygood, Hill in fact points to the other direction.” “Haygood argues that the director of elections enjoys hybrid status that no other city or county employee enjoys; the position is neither civil service, even though it is filled by selection from an eligible list, nor subject to the pleasure of the appointing authority,” the justice wrote. “Hence, Haygood is attempting to gain a right — a previously unknown right — based on silence. We agree with Hill that far clearer language is necessary to create such a new right.” Haerle also said there was nothing in the new charter amendments that eliminated a probationary period for someone like Haygood and declined to read the changes differently. He cited Renee J. v. Superior Court, 26 Cal.4th 735 (2001), which held such an interpretation should “result in wise policy rather than mischief or absurdity.” Vernon Grigg III, Haygood’s attorney, said, “We’re disappointed with the outcome, but we recognize this is but one step in the process and we intend to keep all our procedural avenues open.” Grigg said he was weighing the merits of a petition to the California Supreme Court. Attorney Jerome Falk Jr., who represented the Elections Commission, called the decision “a clean sweep.” “They accepted our argument that she was a probationary employee who was subject to a one-year probationary period,” said Falk, a partner at Howard, Rice, Nemerovski, Canady, Falk & Rabkin. Falk said that voters had “changed the rules,” giving the newly created Elections Commission the power to appointment its own director. He said the panel could have fired Haygood even if she had successfully completed her probationary period. Falk’s firm was hired after City Attorney Dennis Herrera declared a conflict because he had represented both the city’s Elections Commission and the Civil Service Commission. Before recusing himself, Herrera said in a legal opinion that Haygood was a probationary employee who could be terminated without cause or a hearing. He said that opinion was “vindicated” by the court’s ruling. In addition to losing the case, Haygood was ordered to pay the city’s costs for the prosecution of the appeal. It is uncertain how much that would be. President Michael Mendelson said the Elections Commission would probably seek a refund for the estimated $70,000 Haygood was paid in salary during the legal process. Falk said his legal fees in representing the Elections Commission would cost the city more than $200,000. The city will also have to pay the legal fees of the Civil Service Commission, which hired William Terheyden of Littler Mendelson to represent it. Terheyden did not return a call seeking comment.

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