Final Non-Precedential Decision Adopted: February 24, 1997
By: K. William Curtis
By order dated November 3, 1998, the Sacramento County Superior Court1 directed the Department of Personnel Administration (DPA) to accept appellant's application for a good cause exception to the untimely filing of her appeal in the above matter and to determine whether good cause exists to excuse the untimely appeal.
The matter was reopened and evidence and written argument submitted on the issue of good cause.
In lieu of an evidentiary hearing on good cause, Daniel S. Connolly, Attorney, California State Employees Association (CSEA), submitted a declaration, written exhibits and argument on behalf of appellant on December 16, 1998.
Blanca Breeze, Senior Tax Counsel, submitted declarations, written exhibits and argument on behalf of respondent, State Board of Equalization (BOE), on February 2, 1999.
The record was closed on February 5, 1999.
Evidence having been received and duly considered, the Administrative Law Judge makes the following findings of fact and Proposed Decision.
Respondent, BOE, automatically resigned appellant from her position as an Office Technician, BOE, effective close of business June 18, 1997, pursuant to Government Code section 19996.2, the automatic resignation statute. Appellant's appeal to DPA was late and was rejected as untimely by DPA.
Appellant successfully petitioned the Superior Court for a Writ of Mandate. The Superior Court ruled that service of process of the notice of automatic resignation upon appellant was sufficient and adequate. The court also determined that the time limitation set forth in Government Code section 19996.2 is directory, not mandatory, and the good cause exception set forth in Title 2 of the California Code of Regulations section (DPA Rule) 599.904 applies to appeals from automatic resignation. The court issued a Writ of Mandate commanding DPA to accept appellant's application for a good cause exception to the untimely filing of her reinstatement appeal and to determine whether good cause exists to excuse the untimely appeal. Accordingly, it is found that DPA has jurisdiction by statute and by order of court to make its determination as to good cause, pursuant to Government Code section 19996.2 and DPA Rule 599.904.
On December 2, 1997, DPA issued a decision finding the service of the notice of automatic resignation upon appellant was effected June 11, 1997; and the last day for her to file an appeal for reinstatement was June 30, 1997. Appellant filed her appeal on July 1, 1997; and it was one day late.
The parties agreed or stipulated that the delay was brief and the late filing did not prejudice respondent.
Appellant claims that she had good cause for the late filing because her representative committed "excusable error." Specifically, she claims he had a phone conversation with Labor Relations Officer (LRO) on June 21, 1997, and that during the conversation LRO made misrepresentations that BOE would likely return appellant to work and would set aside the date for filing an appeal until receipt of a decision from the Coleman Officer. Also, she claims that her representative did not file a timely appeal because he relied on those misrepresentations.
A. Declaration of Labor Relations Representative
A Labor Relations Representative, CSEA, submitted a declaration stating he represents appellant in her appeal; and that on June 17, 1997, he attended her Coleman hearing with her. The hearing was before the Deputy Director, Special Taxes Department, BOE. The LRR also stated the Deputy Director advised him at the hearing that he would contact him within 48 hours to advise him of the decision. After 48 hours he contacted the Deputy Director and the Deputy Director advised him that his supervisor was sick and assured him that if he was unable to get a hold of his supervisor the next day, he would contact the supervisor's manager and thereafter contact him and apprise him of his decision. On June 26, 1997, the LRR received a copy of the Coleman decision dated June 19, 1997. It was transmitted to him by inter office mail. The Deputy Director admitted he spoke with the LRR at the Coleman hearing but denied that they had any communications suggested by the LRR. He also denied that he spoke with the LRR after the Coleman hearing. (See Declaration of the Deputy Director below.)
The LRR also stated that on or about June 21, 1997, he called BOE's LRO, to discuss the status of the Coleman hearing; and during the conversation he was led to believe it was more likely than not that BOE would return appellant to work. He also stated he was led to believe that the date by which he had to file an appeal with DPA would be set aside until they found out the decision of the Coleman Officer. He contacted the LRO again on June 22, 1997 and got no response. The LRO denies any of these alleged contacts/communications ever took place. (See Declaration of the LRO below.)
On July 1, 1997, the LRR spoke with another Labor Relations Representative who advised him to file an appeal from automatic resignation with DPA immediately. He mailed it on that date.
B. Declaration of the Deputy Director
The Deputy Director submitted a declaration stating he was the Coleman Officer; and on June 17, 1997, the appellant and the LRR met with him for the Coleman hearing. He stated that during the hearing, he advised appellant and LRR that a DPA appeal must be filed within 15 days. He also stated that after evaluating the evidence presented at the Coleman hearing, he determined to recommend that the automatic resignation be sustained and advised his supervisor of that fact. He prepared a letter for his supervisor to sign. The letter was dated June 19, 1997. He stated he did not speak to the LRR after the hearing and he did not receive any calls from him. He stated, "At no time did I advise [name omitted] that if I was unable to reach my supervisor, I would contact the supervisor's manager and then contact [name omitted]." His supervisor reports directly to the Board and does not have a manager supervising his activities.
C. Declaration of the Labor Relations Officer
The LRO submitted a declaration stating he did not receive either a voice mail message or a telephone call from the LRR on or about June 21, 1997, nor did he receive a voice mail message or telephone call from the LRR on June 22, 1997. Those dates are Saturday and Sunday and not scheduled workdays. He also declared that upon his return to work on Monday, June 23, 1997, he did not have any voice mail messages from the LRR. Finally, the LRO declared he did not discuss appellant's automatic resignation with the LRR at "any time" nor did he make comments regarding it to him or anyone else. He did not discuss the Coleman hearing with Sanders or anyone else.
The notice of automatic resignation, which was received by appellant on June 12, 1997, provides in relevant part,
"Whether or not you respond to the appointing power, you still have a right to file a written appeal with the Department of Personnel Administration, 1515 "S" Street, North Building, Suite 400, Sacramento, California 95814, within fifteen (15) calendar days of the date of service of this notice. An appeal is deemed to be a request for reinstatement as set forth in the Government Code section 19996.2. If you file a timely appeal, the Department of Personnel Administration or its authorized representative shall hold a hearing within a reasonable time." (Bold added.)
A copy of the Coleman Decision letter, which was issued to appellant on June 19, 1997, and was received by the LRR on June 26, 1997, provides,
"I have reached the conclusion to sustain the action as served.
Please refer to the June 12, 1997, letter for specific information regarding your appeal rights." (Bold added.)
Appellant did not submit a declaration. There was no evidence as to her role, if any, in the failure to pursue a timely appeal.
Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with DPA. Section 19996.2 also provides in relevant part:
"A permanent or probationary employee may within 90 days of the effective date of such separation file a written request with the department for reinstatement; provided, that if the appointing power has notified the employee of his or her automatic resignation, any request for reinstatement must be made in writing and filed within 15 days of service of notice of separation."
DPA Rule 599.904 provides,
"Except as otherwise provided in the act or these regulations, every appeal shall be filed with the Department of Personnel Administration within 30 days after the appellant has been served with the notice, report or document from which the appeal is taken or, if there has been no such service and none is required, within 30 days after the event happened upon which the appeal is based. Upon good cause being shown, the Department of Personnel Administration or the Director may allow such an appeal to be filed within 30 days after the end of the period in which the appeal should have been filed."
The Court in Adams v. State of California determined that the time limit set forth in section 19996.2 is directory, not mandatory, and the good cause exception set forth in DPA Rule 599.904 applies to reinstatement appeals filed pursuant to section 19996.2.
Therefore, DPA must determine whether appellant had good cause for her failure to file a timely appeal. In determining whether there is good cause, the trier-of-fact must look to the circumstances surrounding the failure to act timely. The trier must also consider case law defining or demonstrating what constitutes "good cause."
In this case, appellant's explanation for her failure to act is not in the record. What is in the record is evidence that appellant was given written notice on June 11 and June 19, 1997, of the requirements for filing a timely appeal to DPA and that she was represented in her appeal by CSEA. Appellant's good cause claim rests on her CSEA representative's declaration that while acting on her behalf, he committed excusable error.
The court, in Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal. 3d 494, 500, held that good cause for excusing a late filed appeal may be found when the delay is short, no prejudice accrued to the other party if the appeal was heard and the error was excusable. Examples of excusable error are miscommunication by an employee and her union representative as to the date of receipt of a notice of dismissal (Civil Service Commission v. Velez (1993) 14 Cal. App. 4th 115; a breakdown in communication between an employee and her representative (Gonzales v. State Personnel Board (1977) 76 Cal.App. 3d 364); an appeal which is sent to the wrong office (Faulkner v. Public Employees Retirement System ( 1975)
47 Cal.App. 3d 731) or an appeal which is misdirected due to a misprinted address in the DPA appeal form (In re Appeal of Dorothy Monahan , a DPA decision issued in 1983).
To support his claims of excusable error by a representative, the LRR declared that he was provided misleading information by both the Coleman Officer and the Labor Relations Officer at BOE and that the communications misled him to believe that the period for filing an appeal was tolled.
Both Deputy Director and the LRO deny they ever communicated with the LRR in the manner suggested. Further, the Deputy Director points out that his alleged communications with the LRR were unlikely because his supervisor does not report to anyone but the Board. And similarly, the LRO points out that his alleged communications with the LRR were unlikely because they would have occurred on Saturday and Sunday, which are non-work days. Unlike the LRR, neither the LRO nor the Deputy Director has a personal interest or bias in this case.
From the above, it is concluded that the LRR recollection of the circumstances surrounding the late filing is unreliable and incredible. It is also concluded that the evidence does not demonstrate an excusable error in the nature of good cause. Accordingly, good cause does not exist to excuse appellant's untimely appeal to DPA; and DPA is without jurisdiction to hold a hearing on the merits, pursuant to Government Code section 19996.2.
* * * * *
WHEREFORE IT IS DETERMINED
that the appeal for reinstatement after automatic resignation filed by appellant on July 1, 1997, is untimely and not excused by good cause. Accordingly, the appeal is denied and the automatic resignation effective June 18, 1997, is sustained.
1. Adams v. State of California (1998) Sacramento Superior Court Case No. 98 CSO1642.