Final Non-Precedential Decision Adopted: February 9, 2005

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 1:00 p.m. on February 1, 2005, at Riverside, California.

Appellant was present and represented himself.

Blanch Sherer, Director, Human Resources, Patton State Hospital represented the Department of Mental Health (DMH), respondent.

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

Respondent automatically resigned appellant effective November 22, 2004, for being absent without approved leave from November 2 through November 9, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on November 29, 2004. The appeal complies with the procedural requirements of Government Code section 19996.2.

Appellant argued he should be reinstated because he is currently enrolled in a treatment program for his alcoholism problem and he is making substantial changes in his life. He argued he values his past position with the State and he took steps to obtain leave during his absence. He argued he is ready, able, and willing to return to work.

Appellant was incarcerated from November 1 through November 20, 2004. He was incarcerated because he was arrested in the winter of 2003 for driving under the influence of alcohol and after his arrest he battered emergency personnel. He was convicted of driving under the influence of alcohol and of a misdemeanor charge for battering. He was sentenced to perform 30 days of community service on weekends. He was also ordered to attend an alcohol rehabilitation program.

Appellant did not report to perform the 30 days of community service. He also did not immediately enroll in the court ordered rehabilitation program. The court issued a warrant for appellant’s arrest.

After he was served with the arrest warrant, appellant began serving his weekend community service time on August 13, 2004. He testified custody personnel told him he had fulfilled his sentence after he had completed only ten days of community service.

Appellant testified he voluntarily appeared before a judge on November 1, 2004, and told the judge that he had performed ten days of community service, but understood he still had to perform an additional 20 days to complete his sentence. Appellant testified the judge could not find a record that he had completed any community service time and immediately remanded him to custody for 20 days. Appellant did not appeal his incarceration or his sentence. Appellant did not present any record of any time that he performed community service.

Appellant argued that he took steps to obtain leave. He testified he arranged for his mother to call his supervisor because he was only able to place collect calls which he believed respondent would not accept. His mother called his supervisor and left a message. When his mother called his supervisor a second time, the supervisor told appellant’s mother appellant personally had to call. When appellant called respondent about a week later, respondent informed appellant he had already been automatically resigned.

Appellant testified he participated in a Kaiser Permanente Chemical Dependency Recovery Program. As of January 2005 appellant also began treatment in the court ordered Clearview First Offender DUI Program. He also testified he now regularly attends church.

 

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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 he had a valid excuse for being absent, whether he had a valid reason for not obtaining leave and whether he 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 he had a valid excuse for his absence and failure to obtain leave and that he is currently able to return to work.

Appellant failed to prove he had a satisfactory reason for being absent from work. In this case, appellant engaged in misconduct which resulted in his being arrested, charged and convicted of criminal activity. His illegal conduct in 2003 followed by his continued irresponsible conduct in 2004 led to his incarceration. Such activity does not excuse his absence.

Appellant also failed to prove he had a satisfactory reason for not obtaining leave. A State department has the discretion to decide when to grant authorized leave consistent with acceptable policies and procedures set forth in any bargaining agreement. There was no evidence that respondent acted inconsistent with such policies and procedures. There was no evidence to indicate or imply respondent treated appellant in a discriminatory or disparate manner from other employees or that it otherwise acted in an unreasonable manner.

Appellant is ready, able, and willing to return to work.

 

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that the appeal for reinstatement after automatic resignation effective November 22, 2004, is denied.