Final Non-Precedential Decision Adopted: September 13, 2000
By: Howard Schwartz, DPA Chief Counsel
DECISION
This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on July 17, 2000, at Riverside, California.
Appellant was present and was represented by Michael D. Hersh, Attorney, California State Employees Association (CSEA).
David E. Paulsen, Senior Staff Counsel, represented Employment Development Department (EDD), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
Respondent automatically resigned appellant effective close of business May 2, 2000, for being absent without approved leave from May 3 through May 9, 2000. She filed a request (appeal) for reinstatement after automatic resignation on May 22, 2000. The appeal complies with the procedural requirements of Government Code section 19996.2.
II - CAUSE FOR APPEAL
By letter dated May 10, 2000, respondent notified appellant that effective May 22, 2000, she would be considered to have automatically resigned retroactive to May 2, 2000. Thereafter, appellant filed a request for reinstatement with DPA claiming she had a satisfactory reason for being absent and not having obtained leave for May 3 through May 9, 2000. Appellant also claimed she is currently ready, able and willing to return to work.
III - REASON FOR BEING ABSENT
Appellant was incarcerated from May 2 through May 14, 2000, as the result of six (6) contempt convictions stemming from a marital dissolution action initiated by her ex-husband. The circumstances, which led to the conviction, involved numerous court appearances for both appellant and her ex-husband. A brief summary is set out below.
Appellant and her ex-husband were married on March 12, 1988, and separated October 7, 1994. On November 2, 1994, her ex-husband filed for dissolution of the marriage; and on February 1, 1995, a child was born. A judgment of dissolution was granted on April 24, 1996, with the court reserving jurisdiction over all other issues including legal custody, visitation, child support, spousal support and the division of property.
Several court proceedings ensued regarding the reserved issues. On February 4, 1998, the court conducted a trial on some of the reserved issues. Appellant did not appear, nor did her counsel. Appellant’s ex-husband testified at the hearing and a judgment was entered March 16, 1998 (the 1998 Judgment). The 1998 Judgment affected a prior judgment on certain reserved issues involving the legal custody of the minor child, visitation and child support.
Appellant was twice found in contempt for failure to comply with the terms of the 1998 Judgment. On or about May 1998 at the initiation of her ex-husband, she was charged with five counts of contempt. In 1999 appellant was convicted of four of the five contempt charges. She was directed to perform community service and, as a result, missed time from work. In 1999 again at the initiation of her ex-husband, she was charged with seven counts of contempt and on April 28, 2000, found guilty of six of the charges. On May 2, 2000, she was sentenced to 30 days in jail. She actually was required to serve jail time from May 2 to May 14, 2000.
Appellant challenged the underlying judgment which led to the contempt convictions—in effect collaterally attacking both sets of contempt charges. She challenged the 1998 Judgment because neither she nor her counsel had been present at the trial and because it was inconsistent with a restraining order regarding custody and visitation which was later issued against her ex-husband. Appellant’s challenge was unsuccessful in the Superior Court of Los Angeles. However, on May 30, 2000, the Court of Appeal of California, Second Appellate District, reversed the lower court and set aside the 1998 Judgment. (An order of remittitur issued on August 8, 2000.) Appellant is in the process of seeking to set aside the contempt convictions through the Superior Court since the underlying judgment has been declared invalid by the Court of Appeal.
Appellant claims she has a satisfactory excuse for being absent between March 3 and March 9, 2000, because she was unjustly incarcerated based upon the invalid 1998 Judgment.
At the hearing, the parties stipulated (through counsel) that the order or judgment for which appellant was held in contempt was the 1998 Judgment. Based upon the stipulation the actual judgment was not placed in the record.
Also, the ALJ officially noticed the appellate decision in Hock v. Hock (May 30, 2000)
96 Cal.Rptr.2d 546, 2000 Cal.App. LEXIS 418.
IV - REASON FOR NOT OBTAINING LEAVE
On February 22, 1999, appellant was verbally counseled; and on March 17, 1999, she received a written warning advising her that respondent would not tolerate further absence due to the “personal situation between herself and the court system.” She was advised further such conduct might lead to adverse action.
Despite the prior warning and because of her concern for her young child, appellant felt compelled to plead not guilty to the second set of contempt charges. She believed that the 1998 Judgment was or should have been invalid. Consequently, with the assistance of counsel she determined she would accept the punishment and challenge the underlying judgment through the court system. Appellant’s only other option would have been to acknowledge culpability and pay fines, which she considered morally wrong. Appellant maintained her position at great personal risk, including the loss of her employment.
After appellant was convicted on April 28, 2000, she consulted with her attorney. She was left with the misimpression that when she was sentenced she would be able to request community service in lieu of jail time. Also, after she was convicted but before she was sentenced, appellant went back to the office and spoke with her Supervisor about the contempt convictions. She verbally requested leave of one month to clear up the whole litigatory mess created by the marital dissolution. Her Supervisor directed her to put her request in writing. Appellant prepared a written request for one month of personal leave (from May 1 through May 31, 2000) but did not submit it at that time.
On May 2, 2000, appellant went back to court for sentencing. The Commissioner denied her request to perform community service. He sentenced her to five days in jail for each count and turned over temporary custody of her son to her ex-husband.
Appellant called her workplace from the holding cell. She was unable to reach her Supervisor because the Supervisor was not in the office. She spoke with the crew leader. She told the crew leader she was in jail for longer than she expected. She advised the crew leader she would call back to speak with the Supervisor when she was able. Appellant also had a friend deliver the written request for 30-days’ leave to the Supervisor.
Appellant made every effort to keep her Supervisor apprised of her situation while she was incarcerated. She was given few opportunities to call from jail because of isolation, lockdown problems and the need to call collect. However, she was able to call collect twice and speak with her Supervisor.
Appellant was not required to serve the full 30 days. She was released on Mother’s Day, Sunday, May 14, 2000. When she got home, she found two letters from her Office Manager. The first was a written denial of her leave request dated May 8, 2000. The second was a Notice of Automatic Resignation dated May 10, 2000. The letter indicated she had been automatically resigned for being absent without approved leave from May 3 through May 9, 2000. On Monday, May 15, she called her Supervisor regarding the letters. Her supervisor told her to call the Office Manager. When she called the Office Manager she was told to appeal to DPA because she had been automatically resigned.
Appellant attended a Coleman hearing on or about May 18, 2000. Respondent determined that it would not withdraw the Notice of Automatic Resignation. At that time, the Court of Appeal had not yet determined that the underlying 1998 Judgment was invalid. The appellate decision did not issue until May 30, 2000.
V - READY, ABLE AND WILLING
The parties, through counsel, stipulated appellant is ready, able and willing to return to work.
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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ 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 DPA. 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 regards 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.
Many State employees have been automatically resigned for being absent without approved leave because they are incarcerated for five or more days. For a number of years, both DPA and the State Personnel Board (SPB)1 have relied on the former SPB (non-precedential) decision in Frank C. Santiago (1995) SPB Case No. 35488, to determine whether or not to reinstate an employee who is absent from work due to incarceration. That decision states in relevant part,
“incarceration is not a satisfactory reason for being absent without leave unless the circumstances are beyond the control of the employee, such as arrest without just cause or innocence.”
In this case, appellant’s counsel argues that appellant had a satisfactory excuse for being absent because she was unjustly convicted of violating an invalid judgment.
Respondent’s counsel submitted closing argument that states in part,
“The appellant suggest[s] that the decision of the Court of Appeal in Hock v. Gordon-Hock which reversed one of the judgments in her divorce provides her with an excuse for her absence. The evidence was that she was in contempt because of visitation and custody issues with the minor child. The child custody and visitation judgment was not under appeal and was not the subject of the appellate decision. Appellant submitted no evidence that the contempt conviction has been reversed or nullified.”
This argument misstates stipulated facts on the record. At the hearing appellant’s counsel proffered a copy of the 1998 Judgment. In lieu of taking the document into evidence, the parties stipulated on the record as follows:
“The March 16, 1998 judgment was for custody and visitation rights and that is the particular judgment that at some time thereafter she (appellant) was found in violation of or in contempt of.”
The law regarding contempt is somewhat complicated in California because of California Code of Civil Procedure section 1222, which provides that a contempt order is “final and conclusive.” As a result, contempt citations may only be challenged by extraordinary writs or collateral actions relating to the underlying order/judgment. See People v. Gonzalez (1996)
12 Cal.4th 804, 816 for a summary of the law of contempt. California law, however, consistently has held that,
“a violation of an order issued in excess of a Superior Court’s jurisdiction cannot produce a valid judgment of contempt.” In re Berry (1968) 68 Cal.2d 137, 65 Cal.Rptr. 273.
and
“It is axiomatic that an order of contempt cannot stand if the underlying order is invalid.” Davidson v. Superior Court of Fresno County (1999)
70 Cal.App.4th 514, 522; In re Misener (1985) 38 Cal.3d 543, 558; and In re Rose Blaze (1969) 271 Cal.App.2d 210.
In the alternative, respondent’s counsel argued that even if the contempt conviction was reversed it would not change the fact that at the time she committed the contempt, there was a valid and binding judgment which she violated.
This argument is inconsistent with existing law. The Court addressed the issue in Davidson v. the Superior Court of Fresno County at 530. In that case the Appellate Court stated that,
“Since at least 1930, the ‘modern view’ has been that the doctrine of law of the case should not be adhered to when its application results in a manifestly unjust decision...[W]here the controlling rules of law have been altered or clarified in the interval between the first and second appeal and adherence to the previous decision would result in defeating a just cause, it has been held that the court will not hesitate to reconsider its prior determination [Citations omitted].”
The court went on to grant a writ vacating an order finding petitioners in contempt of a 1987 stipulated order which had been previously approved by the court. Following is the court’s reasoning,
“Although we had previously held the 1987 stipulated order to be valid, under the clarification in the law ... it is clear the 1987 stipulated order is invalid. Since the validity of the contempt finding is dependent on the viability of the 1987 stipulated order, the procedural doctrine of the law of the case must bow to the substantive rights of petitioners, especially given the quasi-criminal nature of the matter [Citations omitted] “
The court cited People v. Gonzalez at 816-817 for the proposition that “a contempt order cannot stand if the underlying order is invalid.” It, thereafter, annulled a judgment of contempt and accompanying orders and at the same time directed the Superior Court to vacate a 1987 stipulation order.
Consistent with State law and for the reasons set forth above, it is concluded appellant proved by the preponderance of the evidence that she had a satisfactory reason for being absent between May 3 through May 9, 2000, which was that she was unjustly incarcerated.
Appellant’s counsel also argued that appellant made every reasonable effort to obtain leave and keep her employer informed of her status. Therefore, she had a satisfactory reason for not having obtained leave.
According to the record made, respondent did not deny that appellant properly made a request for leave and kept her employer informed of her status. Respondent refused appellant leave solely because she was incarcerated and respondent determined that her contempt convictions were a discredit to her employment. Respondent’s position was set forth in the March 17, 1999, warning, referenced at page 3 above.
It is concluded that appellant proved by the preponderance of the evidence that she had a satisfactory explanation for not having obtained leave because her conviction was unjust.2
The parties stipulated that appellant is ready, able and willing to return to work. Accordingly, appellant should be reinstated to her position as an EPR and permitted to work her usual hours in that position.
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WHEREFORE IT IS DETERMINED
that the appeal of reinstatement after automatic resignation from the position of EPR at EDD effective May 2, 2000, is granted. Appellant should be reinstated without back pay no later than the commencement of the next pay period.
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FOOTNOTES
1. SPB handles hearings on requests for reinstatement for employees of the California State University System pursuant to Government Code section 89541.
2. This decision is not intended to imply that EDD acted inappropriately in denying leave. Circumstances have changed sufficiently since the court declared the 1998 Judgment invalid, to conclude appellant now has a satisfactory explanation as to why she was not granted leave.
