Final Non-Precedential Decision Adopted: May 1, 2003
By: Howard Schwartz, DPA Chief Counsel
DECISION
This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at approximately 10:30 a.m. on April 9, 2003, at Riverside, California.
Appellant was present and was represented by Richard A. Levine, Attorney.
Thomas M. Scheerer, Deputy Attorney General, Department of Justice represented the California Department of the Highway Patrol (CHP), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
Appellant submitted a written resignation from his position as California Highway Patrol Officer on January 21, 2003. On February 14, 2003, appellant filed a petition (appeal) to set aside his resignation with CHP. The appeal complies with the procedural requirements of Government Code section 19996.1.
II - CAUSE FOR APPEAL
Appellant claims his resignation should be set aside because it was given or obtained by reason of duress and undue influence and that it was not freely and voluntarily given.
III - CIRCUMSTANCES SURROUNDING RESIGNATION
Appellant was placed on paid administrative time off (ATO) in October 2002. On October 24, 2002, he participated in an administrative interrogation regarding allegations that he falsified 15 of his daily time reports. He participated in a second administrative interrogation on November 6, 2002, after respondent found additional time reports it believed had been falsified by appellant. During the investigations, appellant admitted he had falsified his time reports.
Appellant received a “Preliminary Notice of Adverse Action” dated November 6, 2002. This Notice detailed the specific incidents involved and the administrative charges that were being pursued. It indicated appellant had been found to have engaged in misconduct “without excuse or justification.” The Notice informed appellant, “Your willingness to defraud the Department calls into question your honesty and your ability to successfully discharge the duties of a California Highway Patrol Officer. Dishonesty and criminal misconduct on the part of peace officers cannot and will not be tolerated by this Department.” The Notice also informed appellant that he would be afforded the opportunity to respond to the charges alleged and that he would be entitled to a reasonable amount of State time to prepare his response when a Final Notice of Adverse Action was issued. Appellant was aware that respondent was pursuing both criminal and administrative actions.
On January 16, 2003, respondent informed appellant that the Final Notice of Adverse Action was prepared and that he had to pick it up by January 21, 2003.
On January 20, 2003, appellant called a Sergeant at the Central Los Angeles area CHP office. The Sergeant had been the assistant interrogator during the October 24, 2002 administrative interrogation. Appellant told the Sergeant he was considering resigning. Appellant asked the Sergeant what he should do. The Sergeant told appellant he could not advise him what was best for him to do. The Sergeant told appellant he should talk to other people, including his wife, before making a decision to resign. Appellant questioned the Sergeant about the effects of a resignation and his reinstatement possibilities. The Sergeant told appellant that if he resigned from the CHP, he could not come back. Appellant told the Sergeant he wanted to hand his resignation to him because he respected him.
Appellant went to the Central Los Angeles area CHP office on January 21, 2003. When the Sergeant appeared, appellant handed him his resignation. The resignation read in relevant part:
“Effective 1700 hrs. on 01-21-2003, I voluntarily resign my position with this department. My California Association of Highway Patrolman representative has advised me the department is willing to reflect my resignation as ‘Resignation – Personal Reasons.’ Assuming the notation appears in my personnel file, I submit my resignation.”
IV - CIRCUMSTANCES FOLLOWING RESIGNATION
After delivering his resignation to the Sergeant on January 21, 2003, appellant spoke with CHP Central Los Angeles Officers. The Captain gave appellant a memorandum outlining appellant’s reinstatement rights after resignation. The memorandum outlines the Department’s policy with regard to possible reinstatement. It advised appellant in relevant part, “The Department has the right to accept or deny any request for reinstatement within three years from the date of your separation. Reinstatement during that period is solely at the discretion of the Commissioner and is normally granted only when the applicant has an above average prior record, or when the separation involved extenuating circumstances, ....” Appellant signed this memorandum. He also completed a Separation/Disposition of CALPERS Contributions” form. Respondent accepted appellant’s resignation on January 21, 2003. Appellant was never served with the Final Notice of Adverse Action. Appellant stayed at the CHP office for several hours that day talking with his colleagues and turning in his equipment.
On January 30, 2003, appellant wrote a letter to the CHP Commissioner expressing his remorse in making the decision to resign and asking for a meeting to explain “his side of the story.” He also wrote to the CHP Southern Division Chief again expressing his remorse and his desire to pursue a solution that was something less than dismissal or resignation.
He submitted his petition to DPA to set aside his resignation on or about February 14, 2003.
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Appellant seeks to set aside his resignation on the ground that he acted under duress when he resigned from State service. He argued that he had no time to fully consider the effect of the resignation on his career and that he consulted only adversarial sources in attempting to make an informed decision. In effect, appellant contends that the circumstances surrounding his resignation hindered his ability to make a free, voluntary and binding decision.
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 instance, appellant failed to prove that respondent committed any illegal acts or that anyone at the CHP engaged in conduct that influenced his decision to resign rather than face dismissal. The evidence shows that appellant consulted with his union representative during the course of the investigations and during the period he was making his decision to resign. Appellant failed to prove that the Sergeant or anyone else unduly influenced him to resign.
Appellant clearly was aware of the consequence of his resignation at the time he exercised his right to resign instead of being dismissed. He chose a course of action which he now regrets. Accordingly, it is concluded that his resignation was without duress, or undue influence and was free, voluntary and binding and should not be rescinded.
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WHEREFORE IT IS DETERMINED
that the petition to set aside resignation effective January 21, 2003, is denied.
