Final Non-Precedential Decision Adopted: April 10, 2006
By: Michael T. Navarro, Director
DECISION
This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on January 9, 2006, at Tehachapi, California. The record remained open until February 15, 2006 to permit the filing of briefs.
Appellant was present at the hearing and was represented by Ina A. Arnold, Senior Hearing Representative, California Correctional Peace Officers Association (CCPOA).
Hazel Bergtholdt, Staff Counsel/Vertical Advocate, represented the California Department of Corrections and Rehabilitation (CDCR), 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 Correctional Officer with CDCR on August 16, 2005. On September 14, 2005, CCPOA filed a petition (appeal) on appellant’s behalf to set aside his resignation with CDCR.1 The appeal complies with the procedural requirements of Government Code section 19996.1.
II - CAUSE FOR APPEAL
Appellant argued his resignation must be set aside because it was given under duress and undue influence. He contended respondent unlawfully denied him proper representation as required under Government Code section 3303 (i)2; Title 2, California Code of Regulations (DPA Rule) 599.964 (b), and Section 9.13 and Appendix Item #6 of the Memorandum of Understanding (MOU)3 between the State of California and the CCPOA in effect for July 1, 2001 through July 2, 2006.
He further alleged respondent violated Government Code section 3303 (e) by questioning appellant without a representative present.
Appellant also argued his resignation must be set aside because respondent was obligated to use other procedures such as fitness for duty or putting the appellant on Administrative Time Off (ATO) to consider and implement a “just cause” disciplinary action under Government Code section 19572 rather than separating appellant from his employment through an unlawful resignation.
III - RELEVANT STATUTES, REGULATIONS, AND MOU SECTIONS
Government Code
Section 3303
“(e) The public safety officer under interrogation shall not be subjected to offensive language or threatened with punitive action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action. No promise of reward shall be made as an inducement to answering any question. The employer shall not cause the public safety officer under interrogation to be subjected to visits by the press or news media without his or her express consent nor shall his or her home address or photograph be given to the press or news media without his or her express consent.
. . . .
“(i) Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation. The representative shall not be a person subject to the same investigation. The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation for noncriminal matters.
This section shall not apply to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer, nor shall this section apply to an investigation concerned solely and directly with alleged criminal activities.”
Section 19571
“In conformity with this article and the board [State Personnel Board] rule, adverse action may be taken against any employee, or person whose name appears on any employment list for any cause for discipline specified in this article.”
Section 19572
“Each of the following constitutes cause for discipline of an employee, or person whose name appears on any employment list:
. . . .
(i) Addiction to the use of controlled substances.
(j) Inexcusable absence without leave
. . . .
(t) Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the appointing authority or the person’s employment.
DPA Rules 599.960
“General Policy
(a) It is the purpose of this article to help ensure that the State workplace is free from the effects of drug and alcohol abuse. These provisions shall be in addition to and shall not be construed as a required prerequisite to or as replacing, limiting or setting standards for any other types of provisions available under law to serve this purpose, including employee assistance, adverse action and medical examination.
(b) Consistent with Government Code Section 19572 and Governor's Executive Order D-58-86, no State employee who is on duty or on standby for duty shall.
(1) Use, possess, or be under the influence of illegal or unauthorized drugs or other illegal mind-altering substances; or
(2) Use or be under the influence of alcohol to any extent that would impede the employee's ability to perform his or her duties safely and effectively.
(c) Employees serving in sensitive positions shall be subject to drug and alcohol testing, hereinafter referred to as substance testing, as provided in this Article when there is reasonable suspicion that the employee has violated subsection (b). In addition, when such an employee has already been found in violation of subsection (b) through the adverse action or medical examination processes under the Civil Service Act (Government Code Section 19253.5; Government Code Sections 19570-19593), as a result of substance testing under this article, or by the employee's own admission, the employee may be required to submit to periodic substance testing as a condition of remaining in or returning to State employment. Unless otherwise provided in the settlement of an adverse action the period for this testing shall not exceed one year.
(d) No employee shall perform duties which, because of drugs taken under a legal prescription, the employee cannot perform without posing a threat to the health or safety of the employee or others. Employees whose job performance is so restricted may be subject to reassignment, medical examination or other actions specified by applicable statutes and regulations.
(e) To protect the public and ensure the safety and security of its correctional institutions, the State must ensure that its peace officers do not use illegal drugs, or misuse prescription drugs, unauthorized or other illegal mind altering substances under any circumstances, and are not under the influence of alcohol while on the job. Consistent with a peace officer's sworn oath to uphold the laws of the State of California, all excluded and exempt State employees who are peace officers under Part 2, Title 3, Chapter 4.5, Section 830.2(d) and Section 830.5 of the Penal Code, will be subject to random drug and alcohol testing pursuant to this article.
(f) For purposes of this Article, an excluded State employee is an employee as defined in Section 3527(b) of the Government Code; an exempt State employee is an officer or employee of the executive branch of government who is not a member of the civil service.”
599.964
“Employee Rights
Employees suspected of violating the policy prescribed in section 599.960 shall be entitled to representation during any interrogative interviews with the affected employee that could lead to a decision by the appointing power to take adverse action against the employee, regardless of whether these interviews occur before or after the sample is taken. Employees shall also be entitled to representation in any discussions with the Medical Review Officer that occur under section 599.965.”
MOU Sections
“9.13
The parties have met and conferred over the State’s substance abuse policy set forth in DPA Rules 599.960 through 599.966 and hereby agree to the following:
. . . .
D. Employee Rights. (Ref. DPA Rule 599.964)
1. In additional to the rights specified in DPA Rule 599.964, employees shall be entitled to representation during the sample collection process. A representative shall in no way interfere with the sample collection process. CCPOA will provide timely representation upon request.
. . . .
4. Should an employee be found to have tested positive for a substance, and adverse action is taken against said employee, his/her appeal and remedies should be through the SPB appeal process and not through the grievance arbitration sections of the MOU.”
IV - CIRCUMSTANCES SURROUNDING RESIGNATION
Prior to June 2004 appellant received an adverse action and a Letter of Instruction. On June 25, 2004, appellant met with CCI’s Employee Relations Officer (ERO). He confided he was experiencing personal problems and had a substance abuse problem. Appellant told the ERO he was seeking assistance through the Employee Assistance Program (EAP). The ERO told appellant his conduct including his attendance would be closely monitored. The ERO also recommended appellant seek treatment programs through not only the EAP, but also his Health Care Provider.
Between June 2004 and August 2005, appellant received a second adverse action. Appellant began to tell his co-workers he believed the institution and his supervisors were “out to get him.”
On August 16, 2005 at approximately 3:30 p.m., the ERO asked appellant to come to his office to discuss allegations that appellant had been absent without leave, sleeping on duty, and leaving his assigned post without permission. The ERO wanted to discuss the allegations with the appellant because he had heard the appellant felt he was being treated unfairly.
The ERO and appellant began to talk about appellant’s work performance. The appellant asked questions about the relevant work situations, spoke clearly, and he responded rationally to questions regarding his work duties and functions.
During the conversation, the ERO noticed appellant’s skin was flush, his pupils were dilated, and his speech was “thick”. The ERO also noted the appellant was having trouble sitting still and was acting “nervous”. Appellant testified the ERO began asking him a series of questions about his appearance. Appellant testified the ERO asked him to stick out his tongue and grabbed his wrist to take his pulse. At some point, the appellant told the ERO he had last used drugs four days earlier. The ERO denied he asked appellant questions about his appearance and he denied he asked appellant to stick out his tongue and that he grabbed appellant’s wrists.
The ERO told the appellant he believed the appellant was under the influence of illegal substances and he was going to ask medical staff to examine him. The ERO also told the appellant he may be ordered to submit to a reasonable suspicion drug test. The ERO began making telephone calls. He called for medical staff and he called the Investigative Services Unit (ISU). A registered nurse (RN) came to the ERO’s office and a Captain, Lieutenant, and a Sergeant from the ISU responded. The Lieutenant and Sergeant remained in the outer portion of the ERO’s office area until the appellant was walked off the premises. The Captain, however, left in ERO’s office.4
The ERO asked appellant if he wanted a representative present. According to the appellant, the appellant asked for a specific Lieutenant. Also according to the appellant, the ERO told him the Lieutenant was not available, but they were trying to find another representative. In contrast, the ERO testified the appellant said he didn’t know anyone he wanted to represent him. The ERO then called the Watch Commander to see if a Chief Job Steward could be located. A radio call subsequently went out which asked any CCPOA Representative to call the ERO’s office. A Sergeant, a certified job steward for 18 years who was the Vice President for supervisory members of BU 6 (“Vice President” or “appellant’s representative”) responded by calling the ERO. The ERO told the Vice President he had an officer they suspected was” under the influence” who needed a representative. The Vice President attempted to call two other CCPOA rank and file representatives but could not contact them. The Vice President subsequently learned the identity of the appellant and realized he knew him because he had been an observer in another representation situation with the appellant a month earlier. Before coming to the ERO’s office, the Vice President asked the ERO to ask the appellant if the appellant would accept him as a representative. The Vice President heard the ERO ask the appellant, and the Vice President heard the appellant say he would accept the Vice President as his representative. When the Vice President came to the ERO office to represent the appellant, the Vice President personally asked the appellant if he would accept him as his representative. The appellant indicated the Vice President was “Okay” to act as his representative. The Vice President was not the representative appellant asserts he had originally requested.5
The RN tested the appellant. The appellant, his representative, and the ERO were in the ERO’s inner office as the RN performed the tests. The RN checked appellant’s pulse, reactions, and balance and examined appellant’s eyes. She did not perform a complete field sobriety test. When the tests were completed, the RN, ERO and the appellant’s representative left the room. The RN informed the ERO and appellant’s representative she believed the appellant was under the influence because his pulse was elevated.
The ERO told the appellant he was going to be sent for drug testing and that ISU personnel would drive him to the test site. According to the appellant, the ERO at some point also said something to the effect, “We’re sending you down for a drug test and if there is [sic] even trace amounts, we’re going to seek termination and refer you to the DA.” The ERO denies making this statement. Appellant’s representative did not hear the ERO say this. No other witness other than the appellant testified to hearing the ERO make this statement.
Appellant’s representative testified he asked to speak with the appellant privately. The ERO stepped out of the inner office. According to the testimony of various witnesses, the appellant and his representative met privately for 15 to 30 minutes. The appellant’s representative testified they “spoke freely” during this time. The representative asked appellant if there was any way he could pass the drug test. Appellant told his representative he didn’t believe he could pass the test and that he had already reported to the ERO he had used drugs approximately four days before. The representative discussed appellant’s options with him: appellant could refuse to take the test and be subject to adverse action; appellant could take the test and take the chance that nothing showed up; or, appellant’s drug use could be approached as a medical issue. The appellant responded that his drug use had already been approached as a medical issue. Appellant told his representative something to the effect that “it was over,” “this was his life,” “they got me,” and that he was going to “be a man about it.” Appellant’s representative also testified that appellant said he wanted to resign “if they would let him.” Appellant’s representative reported appellant said he was “tired of being watched and it was not him anymore.” The representative watched appellant draft his resignation. Appellant asked the representative what he should put in the resignation. The representative told him to put “what was in his heart.” The representative asked the appellant if he was sure this is what he wanted to do and the appellant replied that it was. The representative testified the appellant did not ask leave the ERO’s office and the appellant did not appear to need a break.
According to an ISU Sergeant who remained in the ERO’s outer office area, the appellant and his representative spoke in the ERO’s inner office and ERO went in and out of the office intermittently. The ERO testified he observed the appellant writing. The appellant told the ERO he was going to resign. The ERO came out of his office and informed the two ISU personnel in the outer area that appellant had just admitted to using methamphetamine approximately four days prior. The ERO returned to the inner office. After drafting the resignation, the appellant submitted it to the ERO.
Appellant’s version of his representative’s involvement in his resignation differs from that presented by the ISU Sergeant, the Vice President, and the ERO. Appellant denied he spoke privately with his representative and he denied he was the one who originally suggested he would resign. He testified his representative was merely an observer. He further testified his representative heard the ERO tell appellant that respondent was going to seek termination and refer him to the DA if there were even trace amounts of drugs in his system. Appellant testified his representative asked him in the presence of the ERO, “well is there anything you know how to do, do you have another trade.” He also testified his representative also stated, “the best thing you can do at this point is resign. You’re having trouble in your life and you don’t need this either.” Appellant testified he decided to resign based, among other things, his representative’s suggestion to resign. He contended the ERO handed him the paper on which to write his resignation and denied him the opportunity to use the restroom before he submitted his resignation.
V - CIRCUMSTANCES FOLLOWING RESIGNATION
After appellant submitted his resignation on August 16, an ISU Investigative Sergeant collected his badge and identification card. He escorted appellant on institution grounds to collect his personal belongings. Appellant’s representative drove him home.
On or about September 9, 2005, appellant memorialized his version of what occurred on August 16, 2005. He contacted CCPOA. CCPOA filed the instant appeal of appellant’s automatic resignation on September 14, 2005.
* * * * *
PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
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.
In seeking reinstatement, an appellant has the burden of proof and the burden of going forward in the appeal hearing.
Appellant claims his resignation must be set aside because he was under the influence of drugs and lacked the capacity to freely tender his resignation. He also argues the resignation must be set aside because it was obtained through duress and undue influence.
Appellant’s argument that his resignation must be voided because he lacked the capacity to freely tender the resignation is without merit. Neither party presented any evidence that appellant was irrational nor that he exhibited behavior that indicated he was not mentally competent or mentally functioning appropriately at the time of his resignation. The appellant engaged in conversation with the ERO regarding his work and the allegations against him. According to appellant’s own testimony, he was able to rationally respond to questions the ERO allegedly asked him. Appellant’s representative testified appellant was able to converse freely with him. Appellant also rationally conversed with the ISU Sergeant as he was escorted off the premises. Neither the ERO, the Vice President, the RN, nor the ISU Sergeant reported hearing or observing any irregular behavior that demonstrated appellant was mentally irrational or incompetent. While appellant may have exhibited physical symptoms of drug use, the evidence presented indicates appellant had the mental capacity to freely and voluntarily tender his resignation.
6
Appellant’s claim that his resignation must be set aside because it was obtained through duress is also without merit. Duress supposes some unlawful action by a party that causes the other party to consent by fear. Duress consists in unlawful confinement of another’s person, or relatives, or property which causes him to consent to a transaction through fear (Civil Code 1569). The only potential confinement that relates to this case is appellant’s assertion he was not allowed to leave the ERO’s office to go to the restroom. This testimony is not credible. The ERO denies appellant asked to leave the office. Appellant’s union representative whom appellant alleged was present when he made this request denies hearing such a request. The union representative also indicated the appellant did not ask him to leave the office or otherwise ask for a break. The representative’s testimony is credited over that of appellant. Unlike the appellant who has an inherent self interest in the outcome of the case, the representative’s future effectiveness hinges on his ability to successfully represent employees and support their positions. As part of his success, the representative must maintain a reputation of trust and integrity with both the employee and the employer. Perjured testimony would undermine the trust of both these groups and severely damage his 18-year career as a union steward. It is highly unlikely the Vice President would place himself in that situation.
Although menace was not pleaded in this case, duress is often used interchangeably with menace. In California menace is technically a threat of duress or a threat of injury to the person, property or character of another. (Odorizzi v. Bloomfield School District (1966) 246 Cal.App.2d 123, 128 citing Civ. Code 1570.) However, menace, like duress, was also not involved in this case. Appellant’s testimony that the ERO told him that if his drug test showed any trace of drugs, he was going to be reported to the DA was not credible. According to appellant’s written version of the August 16, 2005 incident, his representative and the ISU personnel were in the ERO’s area when the statement was made. The ERO denied making such a statement. Neither the appellant’s representative nor the ISU Sergeant heard any such statement. These witnesses are credited over the appellant who has an inherent self interest in having his resignation set aside. Furthermore, even if appellant had proven the ERO made such a statement, this would not constitute duress or menace. The action or threat in duress or menace must be unlawful, and a threat to take legal action is not unlawful unless the party making the threat knows the falsity of his claim. (Id. 128.) There was no evidence the ERO knew appellant would not be referred to the DA.
Appellant’s argument that he was subjected to undue influence is also rejected. Undue influence involves “taking an unfair advantage of another’s weakness of mind, or ... taking a grossly oppressive and unfair advantage of another’s necessities or distress.” (Id. 130, citing Civil Code 1575.) “In essence undue influence involves the use of excessive pressure to persuade one vulnerable to such pressure, pressure applied by a dominant subject to a serviette object. In combination, the elements of undue susceptibility in the serviette person and excessive pressure by the dominating person make the latter’s influence undue, for it results in the apparent will of the serviette person being in fact the will of the dominant person.” (Id. 131.) “Undue susceptibility may consist of total weakness of mind which leaves a person entirely without understanding; or, a lesser weakness which destroys the capacity of a person to make a contract even though he is not totally incapacitated.” (Id. 131 citing Civ. Code 38, Civ. Code 39; and Peterson v. Ellebrecht, 205 Cal.App. 2d 718, 721-722.)
Appellant failed to prove either the Vice President or the respondent pressured him to resign. Appellant specifically accepted the Vice President as his representative on two separate occasions. It was the Vice President who gave appellant the option of resigning. The appellant did not report to the Vice President and there was no evidence the Vice President had any authoritative position over appellant at any time. There was no reliable evidence the Vice President did anything more than provide appellant with his options, one of which was to resign.
The ERO and ISU personnel did not suggest that the appellant resign or speak to him about resignation prior to appellant’s declaration he was going to resign. The ERO ordered appellant to take a drug test. The ISU were in the area to transport appellant to take the drug test. Any pressure or coercion appellant felt was a result of the dilemma in which he placed himself. He felt pressure because he received a lawful order to take a drug test. The pressure was a result of his knowing he would not be able to pass the test.
Appellant was fully aware of the consequences of his resignation at the time he resigned. He could resign (which would release him from an obligation to take the drug test, free him from potential legal or disciplinary action as a result of his failure to pass the test, and avoid embarrassment for his father who worked at the institution) or he could take the drug test, fail the test, and be subject to the consequences consistent with such failure. Appellant clearly knew his choices and voluntarily chose to avoid the pressure and the potential consequences of a failed drug test.
All other arguments tendered by appellant are dismissed. Violations of POBAR are within the original jurisdiction of the courts. (Upland Police Officers Association v. City of Upland (supra) 111 Cal.App.4th 1294.) The respondent has no obligation to allow an employee to rescind a lawfully tendered resignation simply because the resignation releases respondent from any further due process obligations it may have had in another forum if the employee had not resigned.
Therefore, it is concluded that appellant’s execution of a resignation on August 16, 2005 was a free, voluntary and binding act and the resignation should not be rescinded.
* * * * *
WHEREFORE IT IS DETERMINED
that the petition to set aside his resignation from the position Correctional Officer effective August 16, 2005, is denied.
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FOOTNOTES
1. All dates are 2005 unless otherwise indicated.
2. Government Code section 3303 is part of the Peace Officers Procedural Bill of Rights Act (POBAR) which includes Government Code sections 3303 through 3312.
3. Appendix Item #6—“Addendum to Section 9.13” reiterates and incorporates DPA Rules found in Title 2, Article 29, relating to substance abuse.
4. The ERO’s office area consists of an outer space where the ERO’s secretary sits and a smaller inner area which is used by the ERO as a private office. There are glass windows on at least one side of the ERO’s office area.
5. Neither Sergeants nor Lieutenants are considered “rank and file” members of BU 6. The appellant as a correctional officer is a rank and file member. It was uncontested that a Sergeant or a Lieutenant could have acted as appellant’s representative consistent with Government Code section 3301 (i).
6. See Walton v. Bank of California (1963) 218 Cal.App.2d 527; Patin v. Tersip (1948) 89 Cal.App.2d 135; and Larson v. King (1931) 211 Cal. 495 where the courts considered the actions and testimony of observant witnesses in deciding that contracting individuals, although physically affected, were nonetheless mentally competent and able to execute a contract.
