On Friday, June 18, 1998, appellant was served with a Notice of Adverse Action of Dismissal based upon inappropriate use of State computers. Prior to service of the notice, CYA conducted an investigation of appellant. The investigation began in December 1997 and ended shortly before preparation of the notice. Appellant was aware of the investigation and the conduct which led to it. He did not dispute the misconduct but he expected a penalty which was less than a dismissal when the notice was served.
On Monday, June 22, 1998, appellant requested a Skelly1 hearing to dispute the penalty in the notice. The Deputy Director, Institutions and Camps Branch conducted the hearing on Tuesday, June 23, 1998. The Deputy Director and appellant had not met or spoken before the meeting. They did not communicate after the hearing.
Appellant and the Deputy Director’s perceptions of what went on at the Skelly hearing differed substantially.
Appellant testified that they discussed appellant resigning instead of being dismissed and that the Deputy Director told him it was better to resign than to be dismissed. He also testified that the Deputy Director told him if he resigned, the adverse action would simply go away; and that if he applied for other jobs, he would not have to tell anyone why he resigned. He testified that he pointed out item 5(b) on the State application form to the Deputy Director. (That item requires an individual to answer the following question: “Have you ever resigned from or quit a position while under investigation or after being informed discipline would be taken against you, or during an appeal from a disciplinary action?”) The question in item 59(b) is new and, according to appellant, the Deputy Director was not familiar with it.
Appellant also testified the Deputy Director told him that the State Personnel Board (SPB) upholds 99% of dismissal actions taken by CYA and that other departments might not consider his misconduct as harshly as CYA.
At the end of the Skelly hearing, appellant claimed he said, “then the option is to resign or be dismissed” and the Deputy Director responded, “yeah, yeah.”
The Deputy Director testified he and appellant must have been at different Skelly hearings. He testified, “I didn’t ask or suggest he resign. I allowed him to present his case. He denied discussing resignation with appellant. He denied discussing item 5(b) on the State application form. He denied advising appellant that SPB upholds 99 % of CYA’s dismissal actions or stating that other departments might look at his misconduct less harshly.
Both appellant and the Deputy Director agreed that at the end of the Skelly hearing the Deputy Director advised appellant that he was going to recommend CYA move forwards with appellant’s dismissal from State service.
After the Skelly hearing, appellant spoke by telephone with his former supervisor. He told his former supervisor he was contemplating resigning before the dismissal became effective on Friday, June 26, 1998. Both appellant and the former supervisor testified the former supervisor did not provide advice to appellant on whether he should resign. He just listened. The former supervisor recalled appellant was depressed and had not yet decided whether to actually resign, but that he indicated he was thinking about other State employment.
Appellant went to the office of the SPB after the Skelly hearing. He asked about SPB’s policy regarding reinstatement. He was given a pamphlet which stated, “If you resign you have reinstatement rights. If dismissed, you have no reinstatement rights.”
Appellant testified he planned to seek other employment in State service. He had not done so during the six-month investigation because he did not think he would actually be dismissed for his misconduct. (He thought he would get a 30-day suspension.) He checked with the Department of Corrections about a job after he was served with the notice of adverse action. He testified he thought he was going to work at CDC pretty quickly so he needed reinstatement rights.
He also testified he knew about item 5(b) and he understood it meant he would have to provide an explanation regarding his resignation on item 12 of any State application he completed.
He testified he spoke with his wife about it and it was “pretty black and white.” He also testified that, relying upon SPB’s publications and the information provided at the Skelly hearing by the Deputy Director (which included that the Deputy Director would recommend that CYA go forward with a dismissal), he decided it was better to resign than be dismissed. It “made sense to” him.
Appellant submitted his written resignation to CYA the day before the adverse action became effective, thereby mooting the action. By resigning he effectively prevented CYA from dismissing him for cause.
He testified he was "pretty depressed at the time" and “did not see much else to do. He also testified, “I wish I didn’t do it.” He speculated that SPB only upholds approximately 50-60% of actions brought by departments and that if he was able to challenge the dismissal, he could get SPB to reduce the penalty to a 30-day suspension.