DPA Case Number 02-Z-0020 - Petition To Set Aside Resignation

Final Non-Precedential Decision Adopted: June 28, 2002

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:30 p.m. on June 13, 2002, at Riverside, California.

Appellant was present and was represented by James Jones, Labor Relations Representative, California State Employees Association (CSEA).

Charlene Lopez, Senior Staff Counsel, Supervisor, represented the Department of Social Services (DSS), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

Appellant submitted a written resignation on January 31, 2002. On February 27, 2002, a representative filed a petition (appeal) on behalf of appellant to set aside his resignation. On March 4, 2002, DPA’s Labor Relations Division received a second notice of appeal from CSEA on appellant’s behalf. The second notice was received in DPA’s Statutory Appeals Unit on March 5, 2002. The appeal complies with the procedural requirements of Government Code section 19996.1.

The hearing was originally scheduled for May 23, 2002. It was continued at appellant’s request and subsequently heard on June 13, 2002.

Appellant contends that respondent failed to inform him in a timely manner that the Hatch Act prohibited him from campaigning for an elective public office while being employed in his State position. As a result he seeks reinstatement on the basis of duress, undue influence, and that his resignation was otherwise not given freely and voluntarily.

The Hatch Political Activity Act (Hatch Act) 5 U.S.C. §§1501-1508 (2002) is a federal act that prohibits certain State employees from running for elective office (5 U.S.C. §1502 (a)(3)). State employees covered by the Act are those whose principal employment is in connection with an activity that is financed in whole or in part by loans or grants made by the United States or a Federal agency (5 U.S.C. § 1501(4)). It is uncontested that appellant held a position that was subject to the provisions of the Hatch Act.

Being a candidate for an elective public office is a per se violation of the Act (5 U.S.C. §1502(a)(3)), Alexander v. Merit System Protection Board, 165 F 3d 474, 483 (6th Cir. 1999).

The Office of the Special Counsel investigates potentially prohibited conduct and reports violations to the Merit System Protection Board (MSPB) (5 U.S.C. §1504). The MSPB enforces the provisions of the Hatch Act (5 U.S.C. §§1505, 1506).

In cases where an employee has violated the act, the MSPB may order the State agency to terminate the offending employee (5 U.S. C. §1505). If the State agency does not terminate the employee within 30 days, the MSPB “shall” order the appropriate federal funding agency “to withhold from its loans or grants to the State agency ... an amount equal to two years pay at the rate the ... employee was receiving at the time of violation.” The offending employee may not be re-appointed to a federally funded position for 18 months following his removal (5 U.S.C. §1506).

The Hatch Act’s limitation on the political activities of State employees has been constitutionally upheld (see Delphi Lee v. Civil Service Commission of Los Angeles County (1982) 129 Cal.App.3d 9, pp. 7-9).

The Hatch Act is consistent with California law. Government Code section 3203 prohibits restrictions on political activities of State employees except “as necessary to meet requirements of federal law as it pertains to a particular employee or employees.”

Appellant started to consider running for the California State Assembly as the representative for the 58th assembly district in March or April 2001. He discussed his plans with three co-workers in DSS’ Administrative Division and with four or five of his co-workers in the Los Angeles West office. In September 2001, he approached his second level Supervisor about obtaining leave. Appellant testified that he told his second level Supervisor that he was planning to run for office. He testified that she told him that because of workload issues, she would approve the leave if he was handling fewer than 125 cases. The second level Supervisor gave Appellant a May 11, 1998, memo explaining the guidelines for requests for vacations of 30 days or more.1

In October 2001, appellant applied for a part-time schedule for the period of January 14, 2002, through January 25, 2002. He also requested vacation for the period of January 28, 2002, through March 8, 2002. He testified that he submitted the vacation request to his immediate supervisor. He testified that she referred him to his second level Supervisor because she was “uncomfortable” approving the leave time. There is no evidence that appellant told his immediate supervisor why he wanted to take vacation. The second level Supervisor approved the part-time schedule and the vacation on November 9, 2001.

Appellant believed that the second level Supervisor would convey his plan to run for office to upper level management. The second level Supervisor did tell the Branch Chief in DSS’s Los Angeles West Office that appellant was “running for some type of office.” The second level Supervisor did not provide the Branch Chief with specific information. The Branch Chief told the second level Supervisor to get more details about appellant’s political plans and to get “clarification through personnel.” The second level Supervisor never provided the Branch Chief with additional information or clarification.

Appellant filed the necessary documents to officially enter the race for the State Assembly in the middle of November 2001. He did not contact his department’s Personnel Bureau, or the U. S. Office of the Special Counsel or any other source to discuss his candidacy. He did not file an Incompatible Activities Statement.

Appellant worked a part-time schedule from January 14, 2002, through January 25, 2002. He began his leave of absence on January 28, 2002.

At the end of January or beginning of February 2002, respondent’s representative from DSS contacted an attorney in the Hatch Act section of the Prosecution and Investigation Unit of the United States Office of the Special Counsel. Respondent’s representative explained the duties of appellant’s position, that the position was federally funded, and that the employee was running for an elective political office. Based on the information provided, the attorney advised respondent that the employee was in violation of the Hatch Act. She also told respondent that to comply with the Hatch Act, the employee must either resign or withdraw his candidacy. The attorney testified that if the employee were allowed to remain in his federally funded position while running for political office, the Office of the Special Counsel would notify the State agency that they had 30 days to remove the employee. If the State agency did not comply, the Office of the Special Counsel would file a complaint with the MSPB seeking the appropriate remedies under the Act against both the employee and the State agency.

On January 28, 2002, the Branch Chief received a telephone call from respondent’s Assistant Deputy Director for the DAPD. He informed the Branch Chief that the appellant was campaigning for a political office. The ADD told the Branch Chief to contact appellant and ask him if he wanted to pursue his political career or if he wanted to return to work. At some point, the Branch Chief also received legal advice from DSS’ Legal Department. The Branch Chief attempted to contact appellant that afternoon. She was unable to contact him because the telephone number listed in his personnel file had been disconnected.

The next day, January 29, 2002, the Branch Chief called a second telephone number that she found in the personnel file. This second number belonged to appellant’s mother. Appellant’s mother gave the Branch Chief the correct telephone number for the appellant. The Branch Chief called appellant. She asked him if he was running for political office and what office he was seeking. She explained that he was in violation of the Hatch Act. She told him that he had two options. He could either resign or he could withdraw as a candidate for the State Assembly. Appellant told the Branch Chief he needed to think about his options and that he wanted to consult with his campaign manager and a legal representative. The Branch Chief faxed appellant a copy of an abbreviated version of the Hatch Act.

Appellant called the Branch Chief later that day. He asked for more information about coming back to work if he resigned and continued to campaign. The Branch Chief explained that appellant had permissive reinstatement rights and that he would have to go through the selection process. She also told him that there was a hiring freeze in place.

The appellant and the Branch Chief spoke again on January 30, 2002. During that conversation, he indicated to the Branch Chief that he might be coming back to work. The Branch Chief advised appellant he needed to contact her by 4:00 p.m. that day with his decision. The Branch Chief faxed appellant a letter memorializing their January 30 discussion. After receiving the fax, appellant faxed a letter to the Branch Chief accusing her of terminating his employment. He wrote:

“I received the fax that you have sent to me. And, I understand that you have terminated my employment with Dept. of Social Services. As a Proud Patriotic American, I must continue with my calling to run for Assembly member of the 58th Assembly District. With the main purpose of giving back to my community the hope and gifts from God that were given to me. As, I have already contacted legal counsel, please do what you must and send any correspondence to my home address. Unfortunately, we have to part on your terms.

In closing, I have accepted your letter as the formal termination letter and will be contacting legal advice [sic] for wrongful termination.”

Later that day DSS’ Labor Relations Representative (LRR) contacted the Branch Chief. The LRR told the Branch Chief that an attorney for the CSEA had contacted her on appellant’s behalf and asked that appellant be given an extension of time to decide whether he wanted to resign or continue his campaign. The deadline for appellant’s response was extended to noon on January 31, 2002.

On January 31, 2002, appellant and the Branch Chief once again spoke about appellant’s options. Later that day appellant faxed a second letter to the Branch Chief that stated in relevant part:

“I understand the options that you have provided to me this morning. That includes being terminated or ceasing political activity and being able to retain our employee/employer relationship.

Instead of ceasing political activity, I have decided that I am formally voluntary [sic] resigning due to being forced under duress. Violations of the constitution appear to be in question. [Sic] such as right to associate.

As a Proud Patriotic American, I must continue with my calling to run for Assembly member of the 58th Assembly District.”

Appellant testified that when he tendered this resignation, he felt “pushed in a corner to abandon over $20,000.” He testified that he “felt the department was being callous” and that “he was in a situation that was unfair.” He further testified that if he had known he was in violation of the Hatch Act early on, he would have withdrawn from the campaign and he would not have invested the $20,000. At the time he was told his candidacy was a violation of the Hatch Act, he felt he could not abandon his investment.

After receiving appellant’s resignation letter on January 31, 2002, the Branch Chief faxed appellant a letter accepting his voluntary resignation. She also confirmed with appellant that he had made this decision after consulting with his legal representative.

On or about February 4, 2002, the DSS posted a job announcement in the Los Angeles West Branch for a full-time permanent position in appellant’s classification. The announcement was not sent to appellant nor was he advised of the freeze exemption.

Appellant did not apply for any position in the Los Angeles North or West Branches after his resignation. He contends that this is because of the Branch Chief’s attitude toward him. Appellant did apply for disability retirement.

The election for the State Assembly was held on March 6, 2002. Appellant obtained 13% of the votes cast and was eliminated from contention for the Assembly seat.

In the Spring of 2002, Los Angeles West DAPD staff found an employee orientation binder in the office space that had been previously occupied by appellant. This binder is given to employees who attend new employee orientation classes. All new employees are required to attend an orientation class.

The binder contained a copy of respondent’s Incompatible Activities Policy Statement. Page 11 of this statement advises the reader: “Political activities for state employees and officers are covered under the “Hatch Act” and applicable state statutes. For more information regarding specific political activities, please contact the Personnel Bureau at [telephone number] or CALNET [number] or TTY [number].”

The binder contained notes in appellant’s handwriting.

Appellant denies ever seeing this information. He also denies seeing an October 2, 2000 memo to all staff that discussed the Hatch Act prohibitions and potential penalties and advises employees to check with the Personnel Bureau if clarification is needed.

 

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Appellant seeks to set aside his resignation on the basis that he acted under duress and undue influence when he resigned from State service. He contends that the circumstances surrounding his resignation hindered his ability to make a free, voluntary, and binding decision. Appellant claims that he acted under stress that was caused by DSS’ failure to inform him of the Hatch Act prohibitions prior to the time he invested time and money in his political campaign.

Government Code section 19996.1 provides that:

“No resignation shall be set aside on the ground that it was given or obtained pursuant to or by reason of mistake, fraud, duress, undue influence or that for any other reason it was not the free, voluntary and binding act of the person resigning, unless a petition to set aside is filed with the department [Personnel Administration] within 30 days after the last date upon which services to the state are rendered or the date the resignation is tendered to the appointing power whichever is later.”

The clear language of the statute requires the trier-of-fact to look to the actions of the appellant at the point of resignation to determine if that act was for any reason not free, voluntary and binding.

Civil Code section 1567 provides that an apparent consent is not "free" when obtained through duress, menace, fraud, undue influence, or mistake. Duress or menace supposes some unlawful action by a party that causes the other party to consent by fear (Odorizzi v. Bloomfield School District (1966) 246 Cal.App.2d 123, 128). Undue influence involves the taking of an unfair advantage of another Id. at 132, citing Civil Code section 1575.

In seeking reinstatement, an appellant has the burden of proof and the burden of going forward in the appeal hearing.

In this case there is no evidence to support appellant’s claim that respondent imposed duress or undue influence upon him in order to obtain his resignation. Respondent acted properly and in accordance with the law by requesting that appellant either resign or withdraw from the political campaign. Respondent based its request on the prelusions of the Hatch Act and the underlying potential for loss of Federal funds unless it took steps to comply with the Act. Respondent had a responsibility and obligation to the public to protect its funding.

Although appellant complains that respondent did not notify him of the Hatch Act limitations before he began his campaign, the Act does not require the employer to notify the employee of its provisions. In addition, there is no evidence that appellant took affirmative steps to personally notify the appropriate DSS staff that he had officially entered the race and become a bonafide candidate for the State Assembly. There is also no evidence that appellant made any effort to investigate potential conflicts prior to embarking on his campaign. Appellant takes no responsibility for his own actions.

Further, respondent did not discharge appellant outright. It gave him a choice. Although appellant was not happy with his choice—resign or withdraw from the campaign, the evidence shows that he consulted with his campaign manager and legal counsel before making an informed decision. He resigned in order to take full advantage of the $20,000 he invested in his campaign and to fulfill what he felt was his “patriot duty.” Now that his political aspirations and his $20,000 have vanished, he has buyer’s remorse. Accordingly, the resignation should not be set aside.

 

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that the petition to set aside resignation effective January 31, 2002, is denied.

 

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1. The testimony was unclear why appellant did not go to his immediate supervisor to ask about leave. Neither appellant’s first or second level supervisors were called to testify.