Final Non-Precedential Decision Adopted: June 15, 1998
By: K. William Curtis, DPA Chief Counsel
DECISION
This matter was heard before Mary C. Bowman, Hearing Officer, Department of Personnel Administration (DPA) at San Diego, California, at 2:00 p.m. on May 21, 1998.
Appellant was present and was represented by Ebernezer Stamps, Labor Relations Representative, California State Employees Association (CSEA).
Peggy A. Dalton, Staff Counsel, represented the Department of Parks and Recreation (DPR), respondent.
Evidence having been received and duly considered, the Hearing Officer makes the following findings of fact and Proposed Decision.
I - JURISDICTION
Appellant was automatically resigned effective August 6, 1997, and filed a request for reinstatement after automatic resignation on August 30, 1997. The request for reinstatement complies with Government Code section 19996.2.
DPA transmitted the matter to the State Personnel Board (SPB) on September 15, 1998, along with a request that an SPB Administrative Law Judge hear the matter. On March 5, after inquiring as to the status of the matter, DPA concluded that the request to SPB had been lost in the mail. Accordingly, the file was reassembled at DPA and the matter set for hearing before a DPA Hearing Officer.
II - CAUSE FOR APPEAL
Respondent notified appellant in writing on or about August 19, 1997, that effective September 2, 1997, he would be considered to have automatically (AWOL) resigned August 6, 1997, based upon his unapproved absence from August 7 through August 15, 1997. Thereafter, appellant filed his request for reinstatement with DPA claiming he had a reasonable excuse for being absent and not obtaining leave and that he was ready, able and willing to return to work.
III - REASON FOR BEING ABSENT
Appellant was absent from work from August 7 through August 15, 1998, because he was incarcerated for 30 days commencing August 7, 1998, after conviction of a crime.
IV - REASON FOR NOT OBTAINING A LEAVE OF ABSENCE
Appellant met with his supervisor and lead person on July 24, 1998, and requested a leave of absence to do jail time instead of work furlough as his penalty for criminal misconduct. Appellant was denied leave because DPR does not grant leaves for incarceration in jail.
V - READY, ABLE AND WILLING
Appellant is currently ready, able and willing to return to work.
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE HEARING OFFICER MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Government Code section 19996.2 provides an automatically separated employee with the right to file a request for reinstatement with the Department of Personnel Administration. Section 19996.2 also provides:
“Reinstatement may be granted only if the employee makes a satisfactory explanation to the department [DPA] as to the cause of his or her absence and his or her failure to obtain leave therefor, and the department finds that he or she is ready, able, and willing to resume the discharge of the duties of his or her position or, if not, that he or she has obtained the consent of his or her appointing power to a leave of absence to commence upon reinstatement.”
Pursuant to Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, the Court held that an employee terminated under the automatic resignation provision of section 19996.2, has a right to a hearing to examine whether he/she had a valid excuse for being absent, whether he/she had a valid reason for not obtaining leave and whether he/she is ready, able, and willing to return to work. DPA is not charged with examining whether the appointing power acted properly with regard to the actual termination. Further, appellant has the burden of proof in these matters and must prove by a preponderance of the evidence the he/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.
In this case appellant did not have a valid excuse for being absent and did not have a valid excuse for not obtaining leave. He is currently ready, able and willing to return to work.
Accordingly, appellant’s appeal should be denied. Appellant retains permissive reinstatement rights.
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WHEREFORE IT IS DETERMINED
that the appeal for reinstatement after automatic resignation effective August 6, 1997, is denied.
