DPA Case Number 06-C-0064 - Protest of Involuntary Transfer

Final Non-Precedential Decision Adopted: September 1, 2006

By: David A. Gilb, Director

ON JURISDICTION

On May 11, 2006 the California Public Employee’s Retirement System (CalPERS), (respondent) verbally notified appellant, he was being reassigned (transferred) out of his position of Associate Governmental Program Analyst (AGPA) in the Diversity Outreach Program, Executive Office.1 On May 25, 2006, after additional discussions regarding what position appellant would be transferred into, respondent notified appellant in writing he was being transferred into the position of AGPA in the Management Support Office, Information Technology Services Branch effective June 1, 2006.2

Appellant filed a protest (appeal) of his involuntary, non-geographic transfer with the Department of Personnel Administration (DPA) on June 30, 2006. DPA has subject matter jurisdiction over appellant’s appeal.

Government Code section 19994.4 requires an appeal of an involuntary transfer be made within thirty (30) days of the time “the employee is notified of the transfer.” Appellant was notified he was being transferred on May 11, 2006. His appeal would have been timely filed on or before June 10, 2006. Appellant’s appeal is untimely because it was filed 20 days after it should have been filed.

California Code of Regulations, Title 2, section 599.904 allows the Department of Personnel Administration (DPA) to accept a late filed appeal within 30 days of the date the appeal should have been filed if the appellant has good cause. Appellant’s protest falls within the requisite 30 days.

Appellant claimed he had good cause for late filing because: (1) Respondent failed to notify him of his right to appeal his transfer; (2) He filed his appeal immediately on learning about his appeal rights; (3) The delay was short based on respondent’s May 25, 2006 written notification to him; and, (4) His transfer was not “officially executed” at the time he filed his appeal because he had not received a “Notice of Personnel Action” (NOPA).

Respondent disputed appellant’s claim of good cause for late filing. Respondent argued: (1) Appellant was informed on May 11, 2006 he was being reassigned; (2) Appellant did not protest his reassignment and did not decide to file an appeal until the time for appeal had expired; (3) Appellant could have learned of his right to appeal because he was in contact with the Association of California State Supervisors (ACSS) who represented him during the timely appeal period; and, (4) appellant was not transferred for the purpose of harassing or disciplining him.

The only issue to be decided at this time is: Did appellant have good cause for late filing?

 

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Appellant filed a late appeal for reinstatement after automatic resignation. The appeal was 20 days late.

Courts consider three basic items in determining whether to permit a late filed appeal: (1) length of delay; (2) whether prejudice accrues to the other party if the appeal is heard; and, (3) the actual cause of the delay. (Gonzales v. State Personnel Board (1977) 76 Cal.App.3d 364.)

No specific length of delay has been established, but any delay must be “brief or de minimus.” Reported cases have found “good cause” where the delays ranged from 3 to 6 days. (Gonzales v. State Personnel Board (supra) 76 Cal.App.3d 264—6 days; Faulkner v. Public Employees Retirement System (1975) 47 Cal.App.3d 731—4 days; Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal.3d 494—3 days.) In this case, the delay in filing was 20 days. This 20-day period exceeds existing case law supporting a brief or de minimus delay.

Appellant’s arguments that the time for filing his appeal began either when he received the May 25, 2006 written notification of the details of his transfer, i.e. the position into which he was being transferred and the effective date, or when he received the NOPA are misplaced. Information provided by appellant in his August 18, 2006 correspondence clearly indicated he knew on May 11, 2006 that respondent’s decision to transfer him had been made and the transfer was to be permanent. Furthermore, although Government Code section 19994.1 requires written notification of a transfer that requires the employee to reasonably change his residence, there is no statute, rule, or case law requiring written notification where, as in this case, the transfer did not require an employee to change his residence. Appellant was notified and understood he was being permanently transferred on May 11, 2006. His time for filing his appeal of his involuntary non-geographic transfer began on that date.

There is no evidence in this case that appellant’s failure to timely appeal immediately prejudiced respondent. However, this factor alone or combined with the length of the delay is not dispositive.

In the cases cited above, the courts weighed not only the length of the delay and resulting prejudice caused by the delay, but also the reason for late filing. In Gonzales v. State Personnel Board, supra, 76 Cal.App.3d 364, the court excused late filing because of a breakdown in communication between the petitioner and attorney when both were laboring under the strain of criminal proceedings. In Faulkner v. Public Employee Retirement System, supra, 47 Cal.App.3d 731, the court excused appellant’s late filing based on the inadvertent act of sending an appeal to the wrong address. And, in Gibson v. Unemployment Insurance Appeals Board, supra, 9 Cal.3d 494, the court held an attorney’s inadvertent calendaring error was sufficient to justify late filing.

In examining the cause for late filing, courts generally look to the California Code of Civil Procedure (CCP) section 473. This section provides relief for “mistake, inadvertence, excusable neglect, or surprise of an attorney or party.”

Appellant did not articulate any of these. He contended respondent had a duty to notify him of a right to appeal his involuntary non-geographic transfer and that he filed his appeal as soon as he learned of his right to do so. However, appellant did not provide any statute, regulation, or case law to support his assertion that respondent had a duty to inform him of his right to appeal an involuntary non-geographic transfer. And, it is well established that ignorance of a law is “no excuse for a violation thereof.” (People v. Hagen (1998) 19 Cal.4th 652, 674.)

Furthermore, the evidence presented by the appellant indicates he was involved with an ACSS representative in this issue as early as May 18, 2006 well within the period for filing a timely appeal. He therefore was not without resources by which he could have and should have ascertained his rights and timely filed his appeal.

Appellant did not establish good cause sufficient to excuse his late filing of his appeal of his involuntary non-geographic transfer.

 

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that the protest of involuntary nongeographic transfer is hereby denied.

 

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1. Appellant admitted he was notified he was being transferred on May 11, 2006 in his August 18, 2006 correspondence to DPA.

2. Appellant’s transfer did not require he change his residence and therefore the transfer will be referenced as a “non-geographic transfer.”