A few days after submitting his resignation, appellant began having regrets. He talked to his criminal attorney. According to appellant, his criminal attorney advised him “he had a right to fight” and that “they” violated his rights. Appellant’s criminal attorney was not called to testify.
Appellant’s criminal attorney referred appellant to his present employment law attorney. Appellant consulted with his attorney in July. According to appellant, his attorney advised him of legal rights he previously didn’t know he had. On July 18, the attorney filed an appeal with DPA to set aside appellant’s resignation. Appellant alleged two grounds for appeal. He alleged he was forced to resign rather than dispute the adverse action dismissing him. He also alleged he had been legally misinformed. He asserted that at the time of his request to set aside his resignation he believed that the adverse action was based on “a fundamental misunderstanding of the law as well as prejudicial and unconstitutional bias on the basis of sexual orientation.”
At the time of hearing, a motion to dismiss the criminal charge based on unconstitutional prosecution was pending in Fresno County Superior Court.
The DPA hearing was originally set for October 8. At appellant’s request the matter was continued to December 8.
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. An appellant bears the burden of persuasion and proof in requesting to set aside a resignation and to mandatorily return to State service.
Appellant seeks to set aside his resignation on the basis that it was given under duress, by mistake, and was otherwise not free and voluntary.
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.
The evidence clearly establishes that respondent did not engage in any unlawful action that caused appellant to consent by fear. Respondent lawfully brought an adverse action against appellant based on his admitted conduct. (See Government Code sections 19571, 19572, and 19574.) There is no evidence that respondent attempted to induce appellant’s resignation in any way. There is no evidence that respondent conspired with CCPOA to influence appellant to resign. Therefore, appellant’s claim that he resigned under duress is without merit.
“Mistake” is generally defined in Black’s Law Dictionary (Abridged Sixth Edition, 1991) at page 693, as follows:
“Some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence. A state of mind not in accord with reality. A mistake exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence.”
California Civil Code section 1576 and following similarly describes “mistake” as either a mistake of fact or a mistake of law in the context of contractual agreements between parties. In this case appellant alleges he was ignorant and uninformed about the law and therefore mistaken regarding the potential success of an appeal before the SPB.
Section 1576 defines a “mistake of law” as:
“.. .a mistake ... only when it arises from:
1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or,
2. A misapprehension of the law by one party, of which the others are aware at the time of contracting but which they do not rectify.”
While the act of resignation is not tantamount to a contract, the Civil Code definitions are helpful in determining whether an appellant freely consents to the act of resignation, and will be allowed to rescind the resignation.
Dealing first with the general definition, it is concluded that appellant failed to establish by a preponderance of the evidence that he unintentionally resigned because he was under some erroneous conviction of law or fact. Appellant testified that he relied upon and considered advice given to him by his CCPOA representative based on that representative’s research of similar cases before the SPB. There was no evidence that appellant’s CCPOA representative’s research or advice was flawed or inaccurate. The evidence shows appellant knowingly and purposefully weighed his potential success of appeal before SPB. He decided he did not want to risk having a blemished personnel record if the SPB upheld the adverse action. Therefore, he decided to resign. He did not resign unintentionally because of an erroneous conviction of law or fact required under the general definition of “mistake.”
Appellant also failed to prove that his resignation was a mistake under the statutory definition. There was no evidence that all parties made some mistake as to the law. Appellant failed to prove that his newly acquired legal defense theory based on discrimination would result in an automatic reversal of the adverse action and his subsequent reinstatement by the SPB. Appellant also failed to prove that respondent was aware of any misapprehension of the law at the time it brought the adverse action.
Therefore, appellant failed to prove by a preponderance of the evidence that he was legally misinformed about the likelihood of his success before the SPB under either the general or statutory definition. The fact that appellant has now reassessed his potential risk of success before the SPB based on a new legal theory does not make his previous resignation a mistake.