Final Non-Precedential Decision Adopted: November 1, 2000
By: Howard Schwartz, DPA Chief Counsel
This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on October 19, 2000, at Sacramento, California.
Appellant was present and was represented by Lisa Jackson, Attorney at Law, Law Office of Richard J. Davis.
Kaye Krumenacker, Senior Staff Counsel, represented Department Of Motor Vehicles (DMV), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
Effective September 1, 2000, respondent automatically resigned appellant retroactive to August 4, 2000, for being absent without approved leave from August 7, through August 30, 2000. On September 11, 2000, the Law Office of Richard J. Davis filed a request (appeal) for reinstatement after automatic resignation with DPA. The notice and appeal comply with the procedural requirements of Government Code section 19996.2.
Appellant’s counsel argued that Government Code section 19996.2 is unconstitutional because it violates due process. The California Supreme Court addressed this issue fully in its landmark decision Coleman v. DPA (1991) 52 Cal.3d 1102. The California Supreme Court found that automatic resignation does not constitute a “disciplinary discharge” and the safeguards in the current process, which include pre-termination notice and an opportunity to respond, satisfy procedural due process. Further, Coleman held that the statute satisfies substantive due process because it reasonably relates to a proper legislative goal. 1
Appellant was arrested at approximately 7:30 a.m. on the morning of August 7, 2000, and was detained in the Yolo County jail. Appellant made several attempts to contact her supervisor to advise her of her status and to request leave. However, she was only allowed to make collect calls; and no one at DMV accepted her collect calls. Appellant was automatically resigned before she was released from jail.
On the morning of August 7, 2000, appellant’s supervisor received a call from an unidentified man who stated appellant would not be at work that day because her diabetes had flared up.
Later that day, the supervisor took a call from a representative of the Law Office of Richard J. Davis (representative). The representative told the supervisor that appellant had been wrongfully arrested based upon a miscommunication between appellant and her fian©’s family. She represented that the matter would be sorted out in a few days and appellant would be back at work.
The representative inquired as to appellant’s leave balance and requested that she be allowed to use her leave credits, if any, to cover her time off of work.
The supervisor told the representative that she doubted that appellant had any remaining leave because of the time she had been off work. At most she suggested appellant might have two and one-half days leave credits. She agreed to check appellant’s leave balances with the Personnel Office and to allow appellant to use any accrued vacation leave. The representative agreed to send a fax that day, which would provide a written request for leave. 3
That same day the supervisor contacted the Personnel Office and was advised appellant had 12 hours vacation leave and 8 hours sick leave.4 The Personnel Office also advised the supervisor that it was the practice of DMV to not approve vacation leave usage for persons who were absent because they were incarcerated.
The representative did not submit a faxed request for the leave, as discussed. However, on or about August 16, 2000, the supervisor received a letter from the representative confirming that appellant was incarcerated and wished to use her existing leave credits. The letter also requested appellant be continued on an unpaid leave of absence after her leave credits were exhausted.
The supervisor sent a letter back to the representative the same day she received the representative’s letter. In it she apologized for stating appellant would be allowed to use her accrued leave credits to cover time in jail. She also denied any unpaid leave usage and noted she had not received any communication from appellant since her arrest.
Appellant’s counsel and appellant’s counsel’s secretary claimed that on August 7, the supervisor had agreed “to work with them” in handling the leave issue and they relied upon those representations in not getting their client early release on bail. They issued two letters (one on August 7 and another on August 16) to that effect. In fact, they did not obtain bail and release until September 7, 2000, long after the supervisor advised them appellant would not be granted leave. Also, the supervisor testified she never discussed unpaid leave with the representative on August 7. She did not have authority to grant appellant leave in excess of the accrued leave credits. She also testified she emphasized to the representative on August 7 that appellant had little, if any, leave credits to use.
Appellant testified that she is ready, willing and able to return to work, pending the trial in the criminal matter. However, she is currently on bail and has been bound over for trial in January 2001. Respondent agreed that appellant is currently ready, willing and able to return to work, unless or until prosecution and sentencing.
Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with the DPA. Section 19996.2 also provides:
“Reinstatement may be granted only if the employee makes a satisfactory explanation to the department [DPA] as to the cause of his or her absence and his or her failure to obtain leave therefor, and the department finds that he or she is ready, able, and willing to resume the discharge of the duties of his or her position or, if not, that he or she has obtained the consent of his or her appointing power to a leave of absence to commence upon reinstatement.”
In Coleman v. DPA, the Court held that while an employee terminated under the automatic resignation provision of section 19996.2 has a right to a hearing to examine whether she had a valid excuse for being absent, whether she had a valid reason for not obtaining leave and whether she is ready, able, and willing to return to work, DPA is not charged with examining whether the appointing power acted properly with regards to the actual termination. 5 Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence that she had a valid excuse for absence and failure to obtain leave and that she is currently able to return to work.
In this case appellant has not proved by the preponderance of the evidence that she had a satisfactory reason for being absent. She has not established that she was arrested without just cause or that her arrest was the result of involuntary conduct on her part. She also has not established that she is innocent of the charges. The current evidence is to the contrary.
By appellant’s own admission and by representations of counsel she had a preliminary hearing/bail hearing and has been bound over for trial in January 2001 based upon a complaint of elder abuse in the nature of embezzlement or theft. Consistent with statute,6 it is presumed that the magistrate has determined that there is sufficient cause to believe that she is guilty of the criminal offense(s) charged. Consequently, the present state of the evidence before the court does not support that she is innocent or that she was involuntarily incarcerated.
Appellant has provided a satisfactory reason for not having approved leave for eight (8) hours on August 7 and for four (4) hours on August 8. Her supervisor granted her use of her vacation leave credits by representations made to her counsel’s office on August 7, 2000, knowing full well that she was in jail. After the leave was used, the supervisor retroactively attempted to withdraw her approval. For that reason, appellant should not be considered on unapproved leave for that period.
Appellant has failed to prove that she had a satisfactory reason for being denied leave for the remainder of the period (August 8 through August 30) and that period exceeds the statutorily required five (5) working days for automatic resignation. Appellant did not have a right to and the supervisor had no authority to grant appellant use of sick leave credits for anything other than sick leave for that period. Further, neither the supervisor nor the Personnel Office approved the request that appellant be placed on an unpaid leave of absence after her vacation leave credits were exhausted.
Even though appellant made efforts through counsel to notify her employer that she was absent due to incarceration and wished to have an unpaid leave of absence, respondent was not required to grant it for the purpose identified.
On August 26, 2000, the ALJ received a letter from appellant’s counsel stating in part,
“I believe that someone needs to advise Department of Motor Vehicles that this policy is so far outside the realm of law that they surely risk significant attorney’s fees to our firm if we are forced to proceed to a Writ of Mandate to enforce the law and the State Constitution. The Respondents should not underestimate our ability or our resolve.”
The policy to which counsel is referring is respondent’s practice of denying use of vacation leave to employees who are incarcerated. It is noted that many State employees have been automatically resigned for being absent without approved leave because they are incarcerated for five or more days. For a number of years, both DPA and SPB have relied upon the former SPB non-precedential decision in Frank C. Santiago (1995) SPB Case No. 35488, to determine whether or not to reinstate an employee who is absent from work due to incarceration. That decision states in relevant part:
“incarceration is not a satisfactory reason for being absent without leave unless the circumstances are beyond the control of the employee, such as arrest without just cause or innocence.”
An employing agency should not be required to approve leave without pay for employees incarcerated for public offenses.
Respondent does not dispute that appellant is currently ready, able and willing to return to work.
For the reasons set forth above, it is concluded appellant is not entitled to mandatory reinstatement at this time because she has not met her burden of proof and her burden of persuasion in establishing a satisfactory explanation for being absent without approved leave for the requisite period.
Appellant’s counsel argued that appellant has been “automatically discharged” without due process. As set forth at Section I, page 2 and in Footnote 5 at page 5 above, appellant’s procedural and substantive due process rights have not been violated by respondent invoking the automatic resignation provisions of Government Code section 19996.2. Appellant has not been “discharged;” appellant has been automatically resigned, based upon her failure to be present at work and failure to obtain approved leave. Appellant retains permissive reinstatement rights to her former classification. In addition, appellant may consider a writ of mandate to seek mandatory reinstatement should the charges be dropped or appellant be found not guilty of criminal misconduct.7
1. “By linking a civil service employee's rights to continued public employment to the state’s legitimate expectation that the employee appear for work as scheduled, the statute furthers the basic premise of any employment relationship.” Coleman v. DPA at 1107.
2. Penal Code section 368.
3. The Bargaining Agreement between the State and the California State Employees Association (Bargaining Unit 4) requires that requests for vacation leave be made in writing and be responded to in writing. (Article 8.1)
4. The bargaining agreement does not allow for the use of sick leave for other than illness, injury, disease or a dental, medical or eye examination. (Article 8.2)
5. “An employee who has been determined to have resigned under the AWOL statute does not have a due process right to a post-severance evidentiary hearing at which the State must prove facts supporting the determination of resignation.” Coleman v. DPA 52 Cal.3d at 1119.
6. Section 872 (a) of the California Penal Code provides as follows: “If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty, the magistrate shall make or endorse on the complaint an order, signed by him or her to the following effect: ‘It appearing to me that the offense in the within complaint mentioned (or any offense, according to the fact, stating generally the nature thereof) has been committed, and that there is sufficient cause to believe that the within named A.B. is guilty, I order that he or she be held to answer to the same.’”
7. At the time of the hearing, the ALJ recommended that the parties take the matter off calendar until after appellant has the opportunity to defend herself in the criminal matter and obtain a resolution of that matter. Respondent agreed. Appellant, after consultation with counsel, declined. Had the matter been taken off calendar, appellant would have had the additional opportunity to seek mandatory reinstatement through DPA if the charges were dropped or if she was found not guilty of criminal misconduct.