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.”
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.