DPA Case Number 05-J-0022 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: May 5, 2005

By: Michael T. Navarro, Director

Appellant seeks reinstatement to her former position of Senior Laboratory Assistant at respondent, Department of Health Services’ (DHS), Richmond, California facility. On January 19, 2005, appellant was served written notice that the DHS intended to treat her absence without leave (AWOL) from January 11, 2005 through January 19, 2005 as an automatic resignation pursuant to Government Code section 19996.2. The written notice advised appellant she was scheduled for an informal hearing (“Coleman Hearing”) before a neutral fact finder to present reasons why she should not be automatically resigned on January 31, 2005.1 It also advised her as follows: “Whether or not you request an informal hearing or respond in writing, you have the right to file a written appeal with the Department of Personnel Administration (DPA), at 1515 “S” Street, North Building, Suite 400, Sacramento, CA 95814-7243, within fifteen (15) calendar days of the effective date of this notice. The effective date of service is five (5) calendar days from the date as ascertained by the postmark. ....”

The Service Employees International Union (SEIU)2 filed a written request (appeal) for appellant’s reinstatement on February 10.

Government Code section 19996.2 requires that a request for reinstatement be filed within fifteen (15) days of the service of the notice of separation. Appellant’s appeal is untimely because it was filed two (2) days after service of the notice. Allowing five days for mailing (See Code of Civil Procedure section 1013), appellant’s filing would have been timely if postmarked on or before February 8. California Code of Regulations, Title 2, section 599.904 allows DPA to accept a late filing within thirty (30) days of the day the appeal should have been filed based on good cause.

Appellant requests that her late filing be excused because the delay was short; there would be no prejudice to the respondent if the late filing were accepted; and she had good cause for late filing. She contended that the representative “mistakenly assumed” that a Coleman hearing, like a “Skelly Hearing” in disciplinary proceedings handled by the State Personnel Board (SPB), precedes the effective date of an AWOL separation and that he would have time to file the appeal after the Coleman hearing. Appellant also alleged that an “extremely high” workload also contributed to the late filing.

 

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Appellant filed a late appeal for reinstatement after automatic resignation. The appeal was approximately two days late.

Appellant claimed good cause for late filing. There are three basic factors that are considered when examining whether late filed appeal should be allowed: (1) length of delay; (2) whether prejudice accrues to the other party if the appeal is heard; and (3) the actual cause of the delay.

No specific length of delay has been established, but any delay must be “brief” or “de minimus.” Reported cases have found “good cause” where the delays ranged from three to six days. (Gonzales v. State Personnel Board (1977) 76 Cal.App.3d 364 – six days; Faulkner v. Public Employees Retirement System (1975) 47 Cal.App.3d 731 – 4 days; Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal.3d 494 – three days.) Appellant cites a 1983 DPA decision, In the Matter of the Appeal by Dorothy Monahan, April 18, 1983 (Monahan), for the proposition that the length of a delay is the paramount factor in determining the acceptance of a late filed appeal. Appellant’s reliance on this case provides minimal support for her argument. DPA has not designated decisions as “precedential” (Government Code section 11425.60) and therefore, such decisions do not mandate subsequent reliance. In addition, late filing was granted in the Monahan decision based on a defective address label which sent the otherwise timely appeal to the wrong address. Such is not the situation in this case. Furthermore, and most persuasive, is the fact that DPA could find no California court cases to support the Monahan dicta stating that acceptance of a late filed appeal is decided or heavily weighted based only on the length of the delay. If the length of the delay was the paramount factor in accepting a late filing, analysis of other factors considered by the courts would, in many instances, be an ancillary exercise of minimal, if any, value. Nonetheless, the delay in filing in this case was two days. Appellant’s delay was brief and de minimus.

There is no evidence in this case that appellant’s failure to timely appeal immediately and specifically prejudiced respondent or that respondent would be required to effect any further reorganization than it would if the appeal were timely filed and appellant would prevail. Rather, respondent argues more generally that the time limits set forth in the statute should be a “bright line” and that DHS would be prejudiced if DPA adopted a policy of routinely accepting late filed appeals based on the length of the delay. Appellant’s argument is speculative and overbroad. DPA has adopted a regulation permitting late filed appeals based on good cause. (DPA Rule 599.904.) DPA makes determinations on a case-by-case basis applying all the applicable factors. One of those factors requires a finding of prejudice to the opposing party if the appeal is allowed. Respondent has failed to prove that permitting this appellant’s late filing would be prejudicial to the DHS.

The final prong of the analysis requires the appellant to demonstrate “good cause” for late filing. In determining what factors constitute good cause sufficient to justify a late appeal, courts generally look to the California Code of Civil Procedure (CCP) section 473, which provides relief for a “mistake, inadvertence, excusable neglect or surprise of an attorney or party.” Appellant claimed mistake of law and inadvertence on the part of her representative.

What constitutes a mistake of law excusable under CCP Section 473 is not well settled and there appears to be no exact test for determination of the issue. The cases generally agree that the determining factor to justify a late filing is “the reasonableness of the misconception and the justifiability of lack of determination of the correct law” (Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1563). Where the court has found the alleged mistake of law is the result of general ignorance of the law or lack of knowledge of the rules (Brooks v. Johnson (1898) 122 Cal. 569), or unjustifiable negligence in the discovery or research of the law, (Security Truck Line v. City of Monterey (1953) 117 Cal.App.2d 441; Shearman v. Jorgensen (1895) 106 Cal. 483), relief will normally be denied. (Fidelity Federal Savings and Loan Association of Glendale v. Carl Long (1959) 175 Cal.App.2d 149, 154.). However, In this case, the mistake of law and negligence in the research of the law was compounded by the representative’s workload.

Beginning January 20, appellant’s representative was instructed to give his highest priority to a “Pension Campaign.” The representative read and received the notice of automatic resignation on January 27. Between January 25 and February 10, appellant’s labor representative worked 115 hours. He was required to simultaneously visit various worksites, obtain worker signatures, act as an executive board member of the staff union, advise on design decisions on an office move from Alameda to Oakland, share representational responsibility for a Labor Relations Representative who was on an extended medical leave, and continue to handle his own representational cases. The increased strain of the representative’s work load coupled with his inexperience justifies his failure to recall the instructions in the Notice of Automatic Resignation and his failure to further research the automatic resignation statute. (See Gonzales v. State Personnel Board, supra, 76 Cal.App.3d 364 where good cause for late filing was found when the attorney was laboring under the workload strain of criminal proceedings.)

While the labor representative’s minimum experience with the automatic resignation process on its own would not represent good cause sufficient to justify late filing, this lack of experience combined with his added workload represent inadvertence and a mistake of law under the circumstances of this case. The de minimus two day delay, lack of prejudice to respondent, and the actual cause of the delay are a sufficient basis on which to accept appellant’s late filed appeal. “[A] reasonable reconciliation between the rights of the employee and the employer requires that, where good cause is shown for a brief delay and no prejudice to the employer is shown, relief from the default should be given.” (Gonzales v. State Personnel Board, supra, 76 Cal.App.3d 364, 367.)

 

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that the appeal for reinstatement after automatic resignation from the position of Senior Laboratory Assistant effective January 10, 2005 is accepted. A Notice of Time and Place of Hearing will be forthcoming.

 

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1. All dates are 2005 unless otherwise indicated.

2. At the time of filing, SEIU was known as the California State Employees Association.