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DPA Case Number 03-Q-0079 - Petition To Set Aside Resignation

Final Non-Precedential Decision Adopted: January 26, 2004
By: Gloria Moore Andrews, Chief Deputy Director


This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on December 8, 2003, at Corcoran, California.
Appellant was present and was represented by Allan Ernest Junker, Attorney at Law.
John Denvir, Staff Counsel, represented the Department of Corrections (CDC), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Appellant submitted a written resignation from his position as Correctional Officer with CDC on June 27, 2003. Appellant filed a petition (appeal) to set aside his resignation on July 18, 2003. The appeal complies with the procedural requirements of Government Code section 19996.1.


Appellant alleges his resignation should be set aside because it was given under duress and by mistake.


Two undercover Fresno County Sheriff’s Detectives individually observed appellant masturbating in a public place on three separate occasions on September 25, 2002. These observations occurred in two different public restrooms in a public park where children were present. On these three occasions, appellant masturbated with the intent of being seen by the detective and he indicated he was willing to engage in personal interaction with the detective by either grabbing the detective’s “crotch area” or motioning the detective to come over to him. Appellant admitted he engaged in this conduct. He testified that he did not believe this conduct was illegal.
Appellant was arrested at his home on October 1, 2002. His family was present at the time of his arrest. His arrest was reported and pictured on television. He was charged with violation of Penal Code section 647(a), engaging in lewd conduct; Penal Code section 647(b), soliciting lewd conduct; and Penal Code section 314, indecent exposure. Appellant pled not guilty. Shortly after his arrest in October, appellant hired a criminal lawyer to defend him.
Appellant reported his arrest to respondent. Respondent conducted an investigation. Appellant was interviewed by CDC investigators on March 25, 2003.1 Prior to this interview, he consulted with his criminal attorney. She advised him to seek other representation for employment matters. In the investigative interview, appellant admitted his conduct.
On April 11 appellant was served with a notice of adverse action that dismissed him from his correctional officer position effective close of business June 27. The dismissal was based on charges of violation of Government Code section 19572 subsections (k) Conviction of a felony or a misdemeanor involving moral turpitude; (m) Discourteous treatment of the public or other employees; and (t) Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the appointing authority or the person’s employment.
When appellant received the notice of adverse action, he again consulted his criminal attorney. The attorney advised him to seek representation from his union or from an employment attorney. Appellant contacted CCPOA. A CCPOA Senior Representative was assigned to assist him.
Appellant requested a meeting (“Skelly hearing”) with CDC prior to the effective date of the adverse action. The Skelly hearing was conducted on June 20.
Prior to the hearing, appellant met with the Senior Representative on at least two occasions. The Senior Representative and appellant discussed the likelihood of appellant’s being able to keep a job with respondent. According to appellant, the Senior Representative told him of at least one instance where a correctional officer in a similar circumstance had been retained by CDC in a different job. The Senior Representative advised appellant that he believed appellant’s best chance to retain a position with CDC would be at the Skelly hearing. The appellant testified the Senior Representative advised him to express remorse and to tell respondent that he was participating in counseling. Appellant testified the Senior Representative also advised him that based on his research of cases similar to appellant’s case, he believed that appellant “would have a hard time prevailing” in a hearing before the State Personnel Board (SPB). According to appellant, he and the Senior Representative never discussed the merits of appellant’s pending criminal charges. The Senior Representative was not called to testify.
Sometime after the Skelly hearing and prior to the effective date of the adverse action, appellant received notice that his dismissal from CDC was being upheld without modification. He again contacted the Senior Representative. Appellant testified the Senior Representative told him that at this point, he would “be better off resigning.” The Senior Representative explained to appellant that if he resigned, his personnel record would be clean because “there would be no charges going to SPB” and CDC would not be able to give the reason why he was dismissed.
Based on his conversations with the Senior Representative, his belief that SPB may uphold his dismissal, and his desire to keep an unblemished personnel record, appellant decided to resign. He submitted his written resignation effective June 27.


A few days after submitting his resignation, appellant began having regrets. He talked to his criminal attorney. According to appellant, his criminal attorney advised him “he had a right to fight” and that “they” violated his rights. Appellant’s criminal attorney was not called to testify.

Appellant’s criminal attorney referred appellant to his present employment law attorney. Appellant consulted with his attorney in July. According to appellant, his attorney advised him of legal rights he previously didn’t know he had. On July 18, the attorney filed an appeal with DPA to set aside appellant’s resignation. Appellant alleged two grounds for appeal. He alleged he was forced to resign rather than dispute the adverse action dismissing him. He also alleged he had been legally misinformed. He asserted that at the time of his request to set aside his resignation he believed that the adverse action was based on “a fundamental misunderstanding of the law as well as prejudicial and unconstitutional bias on the basis of sexual orientation.”

At the time of hearing, a motion to dismiss the criminal charge based on unconstitutional prosecution was pending in Fresno County Superior Court.

The DPA hearing was originally set for October 8. At appellant’s request the matter was continued to December 8.

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Government Code section 19996.1 provides that:

“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, unless a petition to set aside is filed with the department [Personnel Administration] within 30 days after the last date upon which services to the state are rendered or the date the resignation is tendered to the appointing power whichever is later.”

The clear language of the statute requires the trier-of-fact to look to the actions of the appellant at the point of resignation to determine if that act was for any reason not free, voluntary and binding. An appellant bears the burden of persuasion and proof in requesting to set aside a resignation and to mandatorily return to State service.

Appellant seeks to set aside his resignation on the basis that it was given under duress, by mistake, and was otherwise not free and voluntary.

Civil Code section 1567 provides that an apparent consent is not "free" when obtained through duress, menace, fraud, undue influence, or mistake. Duress or menace supposes some unlawful action by a party that causes the other party to consent by fear. Odorizzi v. Bloomfield School District (1966) 246 Cal.App.2d 123, 128.

The evidence clearly establishes that respondent did not engage in any unlawful action that caused appellant to consent by fear. Respondent lawfully brought an adverse action against appellant based on his admitted conduct. (See Government Code sections 19571, 19572, and 19574.) There is no evidence that respondent attempted to induce appellant’s resignation in any way. There is no evidence that respondent conspired with CCPOA to influence appellant to resign. Therefore, appellant’s claim that he resigned under duress is without merit.

“Mistake” is generally defined in Black’s Law Dictionary (Abridged Sixth Edition, 1991) at page 693, as follows:

“Some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence. A state of mind not in accord with reality. A mistake exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence.”

California Civil Code section 1576 and following similarly describes “mistake” as either a mistake of fact or a mistake of law in the context of contractual agreements between parties. In this case appellant alleges he was ignorant and uninformed about the law and therefore mistaken regarding the potential success of an appeal before the SPB.

Section 1576 defines a “mistake of law” as:

“.. .a mistake ... only when it arises from:

1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or,

2. A misapprehension of the law by one party, of which the others are aware at the time of contracting but which they do not rectify.”

While the act of resignation is not tantamount to a contract, the Civil Code definitions are helpful in determining whether an appellant freely consents to the act of resignation, and will be allowed to rescind the resignation.

Dealing first with the general definition, it is concluded that appellant failed to establish by a preponderance of the evidence that he unintentionally resigned because he was under some erroneous conviction of law or fact. Appellant testified that he relied upon and considered advice given to him by his CCPOA representative based on that representative’s research of similar cases before the SPB. There was no evidence that appellant’s CCPOA representative’s research or advice was flawed or inaccurate. The evidence shows appellant knowingly and purposefully weighed his potential success of appeal before SPB. He decided he did not want to risk having a blemished personnel record if the SPB upheld the adverse action. Therefore, he decided to resign. He did not resign unintentionally because of an erroneous conviction of law or fact required under the general definition of “mistake.”

Appellant also failed to prove that his resignation was a mistake under the statutory definition. There was no evidence that all parties made some mistake as to the law. Appellant failed to prove that his newly acquired legal defense theory based on discrimination would result in an automatic reversal of the adverse action and his subsequent reinstatement by the SPB. Appellant also failed to prove that respondent was aware of any misapprehension of the law at the time it brought the adverse action.

Therefore, appellant failed to prove by a preponderance of the evidence that he was legally misinformed about the likelihood of his success before the SPB under either the general or statutory definition. The fact that appellant has now reassessed his potential risk of success before the SPB based on a new legal theory does not make his previous resignation a mistake.

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that the petition to set aside resignation effective June 27, 2003, is denied.
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1. All references are to the year 2003 unless otherwise indicated.
  Updated: 5/22/2012
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