Final Non-Precedential Decision Adopted: December 4, 1998
By: K. William Curtis, DPA Chief Counsel
This matter was heard before Mary C. Bowman, Hearing Officer, Department of Personnel Administration (DPA), at 11:00 a.m. on December 3, 1998, at Avenal, California.
Appellant was present and was represented by Fred Wasilewski, Labor Relations Representative, California Correctional Peace Officers Association (CCPOA).
Vickie L. Brewer, Staff Counsel represented the, Department of Corrections (CDC), respondent.
Evidence having been received and duly considered, the Hearing Officer makes the following findings of fact and Proposed Decision.
On September 30, 1998, CCPOA filed a petition (appeal) to set aside appellant’s resignation. The appeal complied with the procedural requirements of Government Code section 19996.1.
Appellant submitted a written resignation on September 22, 1998. On September 30, 1998, her appeal was filed. Appellant claims that her resignation was given or obtained by mistake, fraud, and undue influence and was otherwise not her free and voluntary act.
On September 21, 1998, appellant went to the Employee Relations Office at Avenal State Prison with a handwritten document which read as follows:
“September 21, 1998
TO: Warden [Name Omitted] (Interim)
FROM: [Appellant] Correctional Officer
As of today September 21, 1998, I am resigning my position as Correctional Peace Officer.
At the bottom of the document she placed her badge number, identification number, address and telephone number.
The secretary to the Employee Relations Officer (ERO) told appellant the ERO was not at work that day but advised her to go to Human Resources and pick up a form which must be completed to muster out at CDC.
Appellant got the form and took it to the Personnel Assignment Captain to be signed. He asked her to wait 24 hours before actually submitting her resignation. She waited and came back the next day. He went with her to the ERO’s. The Captain spoke briefly with the ERO. Then appellant went into the ERO’s Office.
While appellant was in the office she tendered the resignation to the ERO. He advised her it would be accepted by the Warden but would be considered to have been submitted under unfavorable circumstances because there was an adverse action pending against her. (Appellant was aware there was an adverse action pending.)
Appellant testified that she was served with the notice of adverse action of dismissal before she actually tendered her resignation and that after she tendered her resignation, the ERO told her to change the effective date to September 22, 1998, in order to accrue another day towards retirement. Her testimony was inconsistent with that of the ERO.
The ERO testified that an investigation and recommendation to discipline appellant had been submitted to the Warden for approval months before appellant tendered the resignation. The Warden approved the discipline and recommended a penalty of dismissal. A package including a notice of adverse action of dismissal was submitted to CDC Headquarters for final approval. The week before appellant tendered her resignation, CDC Headquarters notified the ERO’s office that it approved the dismissal action.
The ERO further testified that he was off work the week prior and Monday, September 21, 1998. When he returned on September 22, 1998, he dated the notice of adverse action and obtained the Warden’s signature on the document.
Although appellant claimed that the ERO served her with the adverse action before she handed him the resignation papers, the ERO insisted she tendered the resignation before he served her with the adverse action. When she did so, he advised her that it would be accepted but would be considered to have been submitted under “unfavorable circumstances” because of a pending adverse action. (Appellant was aware of the pending action.)
The ERO testified that appellant told him she intended to fight the adverse action when it was served. He responded that he would not serve it because her resignation was effective the prior day (September 21, 1998). He also told her that the only way he could serve her with the notice was if her resignation was effective September 22, 1998 [or later]. (Resignations are considered effective close of business on the date designated.) Appellant then changed the date of the resignation to September 22, 1998; and the ERO served her with a copy of the notice.
Appellant’s version of the events was not credible. The ERO had no reason to suggest appellant change a resignation to obtain one day of retirement credit because she only had two years of service and was not vested in the retirement system. Appellant could not identify any reason why the ERO would provide false testimony. The ERO’s version was contextually consistent. It was legally consistent since a respondent department is without authority to serve a notice of adverse action on a non-employee. Further, the ERO had no personal interest in which day appellant selected to resign.
Appellant claimed that both the Captain and the ERO acted inappropriately first in refusing to accept the resignation when tendered on September 21, 1998, and second by advising her the date should be changed to September 22, 1998. She acknowledged that she was not ordered to change the date.
Appellant also claimed that she was forced to resign because she had been denied a leave of absence for family problems. However, she acknowledged that the leave was denied for lack of proper documentation and the ERO had nothing to do with the leave request.
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Government Code section 19996.1 provides as follows:
“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...”
The clear language of the statute requires the Hearing Officer to look to the actions of the appellant at the time the appellant resigned to determine if that act was for any reason not free and voluntary. Civil Code section 1567 provides than an apparent consent is not “free” when obtained through duress, menace, fraud, undue influence or mistake.
Appellant failed to prove that she did not intend to resign or mistakenly resigned. In fact, the evidence is to the contrary. She was given 24 hours to reconsider her decision before the resignation was actually accepted.
Appellant also failed to prove that anyone in authority at CDC acted inappropriately in accepting her resignation. She was not ordered to change the date of the resignation. The ERO credibly testified that when he advised her that he could not serve an adverse action on a resigned employee, she took the opportunity to change the effective date of the resignation in order to force service of the adverse action. (Appellant was apparently unaware that an adverse action is not effective until five days after service and in her case the resignation would moot the action.) In other words, whether she resigned September 21 or 22, 1998, the effect upon the adverse action remained the same.
In this case it is also concluded from the evidence submitted that appellant is seeking to overturn her resignation so that she can challenge the adverse action of dismissal. Appellant clearly regrets that she resigned while an adverse action was pending because it removes from her the opportunity to challenge CDC’s action. Such regrets do not constitute mistake, fraud, undue influence or another reason that made it less than a free, binding and voluntary act.
Employees in State service frequently resign while adverse action is pending or in the five-day period following service and prior to the effective date of the adverse action. In either situation, the adverse action is mooted by the resignation. The employee is then considered to have resigned under unfavorable circumstances.
An employee facing an adverse action of dismissal who does not resign has the opportunity to appeal the adverse action to the State Personnel Board and, if successful, obtain reinstatement to State service. See Government Code section 19572 et seq.
Appellant gave up those rights when she resigned. She cannot bootstrap herself into an appeal in another forum by claiming mistake, fraud, undue influence or other reasons that her act of resignation was not free and voluntary.
Based upon the evidence submitted and the failure of proof, the resignation is considered the free, voluntary and binding act of appellant.
that the petition to set aside resignation effective September 22, 1998, is denied.