Final Non-Precedential Decision Adopted: July 3, 2003

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on June 26, 2003, at Sacramento, California.

Appellant was present and was represented by Brian Caldeira, Labor Relations Representative, California State Employees Association (CSEA).

Neil Robertson, Tax Counsel, represented the Franchise Tax Board (FTB), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

Respondent automatically resigned appellant effective May 6, 2003, for being absent without approved leave from April 21 through April 25, 2003. CSEA filed a request (appeal) for reinstatement after automatic resignation on May 6, 2003.1 The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant contended she should be reinstated because she requested leave for the relevant period and she received her normal salary for the five days she is charged with being absent without leave. Appellant argued that being paid for these days constituted a “de facto” approval of leave. She also testified she is ready, able, and willing to return to work because the terms of her current home detention allow her to work.

It was uncontested that appellant was in the Sacramento County jail during the period of April 21 through April 25. Appellant testified she had been incarcerated based on violation of the terms of her probation.

On March 21, appellant entered into an agreement with respondent which allowed her to work in a court approved Work Furlough/Home Detention Program. As part of that agreement, appellant was advised: “If you violate any of the terms and special conditions of probation contained in your Order or Probation set forth by the Probation Department, you will immediately [sic] dismissed from employment with the Franchise Tax Board, without regard to any action or findings of the Probation Department.”

Appellant was incarcerated because she violated the conditions of her probation. At some date before April 21, a friend visited appellant at the Sacramento County jail. Appellant asked her friend to call her supervisor. Appellant could not recall the details of her conversation with her friend, but she testified she told her friend to let her supervisor know she was unavailable for work and to ask her supervisor for leave.

Appellant’s friend called her supervisor twice on April 21. Both times she requested a leave of absence. She first left a message and then spoke with appellant’s supervisor personally. During the second conversation appellant’s friend told the supervisor appellant would be back to work on Tuesday, April 29. Appellant’s friend did not tell the supervisor appellant was incarcerated. The supervisor did not tell appellant’s friend that he would or would not grant appellant a leave of absence.

On Tuesday, April 22, the supervisor received a message from the probation officer working with FTB on appellant’s work furlough program. The probation officer told appellant’s supervisor that appellant had been incarcerated.

On April 28, respondent prepared a “Notice of AWOL Separation.” On this same day, appellant called her supervisor around 11:00 a.m. The supervisor told her not to come to work because she was on administrative leave. Appellant thought she was on paid administrative leave.

Appellant attempted to report to work on April 29. When the supervisor saw her in the office, he asked her if she had gotten the notice of automatic separation. When appellant indicated she had not gotten the notice, the supervisor gave her a copy. Appellant apparently then left the office.

FTB completed appellant’s attendance report for the month of April. It recorded appellant’s absence for April 21 through April 25 as “A”, “Absence without Leave (AWOL) (19996.2 or 19572)”. The absence report showed “L” “Informal Leave granted” on April 28, 29, and 30. It also noted “Effective 4/30/03 ee terminated.” The supervisor signed this attendance report. Appellant received her full salary for the month of April. Her pay warrant was automatically deposited into her bank account. As of the date of the hearing, she had not received notice that she had been overpaid for this period. Appellant contended the attendance report and the fact that appellant was paid for the time she was charged with being absent without leave indicates that appellant’s absence was approved.

Respondent argued it did not grant appellant leave for these days because incarceration is not a valid reason for being absent. It also argued that appellant was paid in error. Respondent testified that when appellant was absent without leave, it was too late in the month to adjust appellant’s pay warrant. A Personnel Management Consultant for FTB testified that she notified the “roster unit” that it should set up an accounts receivable to collect the salary overpayment.

It was uncontested that appellant is ready, able, and willing to come to work.

 

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Government Code section 19996.2 provides an automatically separated employee with the right to file an appeal 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 she had a valid excuse for being absent, whether 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 that she had a valid excuse for her absence and failure to obtain leave and that she is currently able to return to work.

Appellant failed to prove she had a satisfactory explanation for being absent from work. Appellant was off work because she engaged in misconduct which resulted in her failure to comply with terms of her probation and which resulted in her subsequent incarceration and absence from work. Such activity does not excuse appellant’s absence. This is consistent with respondent’s March 21 written policy in which appellant was advised that violation of the conditions of her probation would not be tolerated.

Because DPA’s jurisdiction is limited to reinstatement after automatic resignation, DPA makes no finding regarding appellant’s argument concerning respondent’s alleged de facto approval of leave. This argument addresses the threshold issue of whether or not respondent should have taken the action, i.e. was appellant absent without leave, rather than if she should be reinstated based on valid reasons for absence and for not obtaining leave in the first instance.

Based on her uncontested testimony, appellant is ready, able, and willing to return to work.

For the reasons set forth above, it is concluded appellant’s appeal should be denied.

 

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that the appeal for reinstatement after automatic resignation effective May 6, 2003, is denied.

 

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1. All dates are 2003 unless otherwise indicated.