Final Non-Precedential Decision Adopted: May 30, 2004

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on May 17, 2004, at Avenal, California.

Appellant was present and was represented by John Murillo, Labor Relations Representative, Union of American Physicians & Dentists (UAPD).

Steven McNeal, Staff Counsel, represented the California Department of Corrections (CDC), respondent.

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

On February 20, 2004, respondent notified appellant that effective December 31, 2003, he was being automatically resigned for being absent without approved leave from January 5, 2004 through January 12, 2004. Appellant filed a request (appeal) for reinstatement after automatic resignation on February 25, 2004. The appeal complies with the procedural requirements of Government Code section 19996.2.

A hearing was originally scheduled for April 5, 2004. It was continued to May 17, 2004, based on good cause at appellant’s request.

Appellant filed his written appeal for reinstatement with DPA claiming the automatic resignation should be set aside because he was not properly served with the notice by certified mail as required by Government Code section 18575. There was no evidence at hearing regarding this allegation. It is therefore deemed waived and dismissed.

Appellant argued at hearing that he had a valid reason for being absent and a valid reason for not seeking additional leave on January 5 and 6, 2004, because he had previously obtained leave for these days and because he had taken all steps he believed was necessary to obtain such leave. Appellant also contended he was ready, able, and willing to return to work.

Appellant was arrested in the summer of 2003. He immediately reported this arrest to the Chief Medical Officer at ASP and to his immediate supervisor the Chief Dental Officer. He had a jury trial from December 2 through December 8, 2003. He was convicted of two felony counts for violation of Penal Code section 115, procuring or offering false or forged instrument for record. Appellant contends he was wrongly convicted and he has appealed.

The sentencing hearing was held on January 5, 2004. Appellant was sentenced to 90 days in the San Diego County jail, five years probation, and fines totaling $1,200. He was taken into custody on January 5, 2004.

Between the time he was arrested in 2003 and prior to his sentencing on January 5, 2004, appellant discussed his litigation and family problems with his supervisor. In December 2003, appellant asked his supervisor for leave on January 5 and 6, 2004, and possibly January 7, 2004. The supervisor specifically granted appellant leave on January 5 and 6, 2004 knowing that appellant needed this time to address his pending litigation problems. Although the record is void of evidence reflecting specifically what type of leave appellant used to cover these absences and whether or not he was paid for these days, the supervisor testified that he never granted administrative time off. The supervisor testified he believed administrative time off could only be granted by the Chief Medical Officer. The supervisor also testified that he would have granted appellant any time off appellant would have requested whether appellant had existing leave balances or not. He further testified he never denied appellant any requested leave because he believed appellant was a good employee. There was no evidence that the supervisor did not have the authority to grant appellant’s request for leave, if it was other than administrative time off.

Appellant was regularly scheduled to work four days a week. Friday was his regular day off. During the period of January 5 through January 12, 2004, appellant was expected to be at work on January 7, 8 and 12, 2004. Appellant’s incarceration based on his felony convictions is not a valid reason for being absent on January 7, 8 and 12, 2004.

Appellant was not expected to be at work on January 5, 6 and 9, 2004. Appellant’s pre-authorized leave and normally scheduled day off are a valid reason for his absence on January 5, 6 and 9, 2004. Hence, appellant had a valid reason for being absent on three of the six days he was charged with being absent without leave.

Appellant argued he took steps to obtain leave and that he believed he had obtained permission to be absent from work on at least January 5 and 6, 2004. He admitted he did not receive approval to be absent on any other days he was incarcerated.

Appellant discussed his litigation and family problems with his supervisor prior to January 5, 2004. He obtained permission to be absent on January 5 and 6, 2004, to address such problems.

Appellant’s wife contacted his supervisor on either January 5 or 6, 2004, and informed him that appellant had been sentenced to 90 days of incarceration and that he was in custody. The supervisor did not revoke his prior leave authorization. However, he also did not approve additional leave for appellant. The supervisor told appellant’s wife that he had spoken to personnel in Sacramento and he believed that appellant’s situation would not result in appellant’s dismissal. The supervisor also told appellant’s wife to contact ASP’s Employee Relations Officer (ERO). Appellant’s wife did this and she also faxed information to ASP regarding appellant’s incarceration. She subsequently called the supervisor weekly regarding appellant’s work status.

On January 5, 2004, the supervisor called the Acting Regional Administrator for the Health and Community Services Division (HCSD)’s Central Region. The supervisor explained appellant’s situation and asked that appellant be granted administrative time off for the period he was incarcerated. The Acting Regional Administrator told the supervisor to provide written specifics regarding the situation. The Acting Regional Administrator expected the supervisor to provide this information that day. Based on his past experience with various institutions, the Acting Regional Administrator believed that employees convicted of a felony were no longer able to be employed by CDC. At some point, he contacted CDC headquarters personnel who told him that employees who are absent from work and incarcerated based on felony convictions are automatically resigned because they are considered absent without leave.

After his conversation with his supervisor on January 5, 2004, the Acting Regional Administrator consulted a medical officer and the Acting Chief of Field Operations for HCSD. The Acting Regional Administrator, medical officer, and Acting Chief of Field Operations held a conference call with ASP’s ERO. The ERO informed the Acting Regional Administrator, medical officer, and Acting Chief of Field Operations that ASP was initiating appellant’s automatic resignation. The HCSD concurred with that action on January 5, 2004. The Acting Regional Administrator was unaware the supervisor had approved leave for appellant on January 5 and 6, 2004. No further leave of any type was granted to appellant for days he was unable to report to work because he was incarcerated.

On January 8, 2004, the Acting Regional Administrator received a copy of a memorandum the supervisor sent to ASP’s Chief Medical Officer outlining appellant’s status. The Acting Regional Administrator attempted to contact the supervisor on that day to inform him that appellant was being automatically resigned. However, the supervisor was unavailable.

On January 14, 2004, the Acting Regional Administrator received a memorandum requesting 90 days of administrative time off for appellant from ASP’s CMO. The Acting Regional Administrator believed the automatic resignation was already in progress. The Acting Regional Administrator apparently did not respond to the January 14, 2004, memorandum.

By January 27, 2004, medical officer had assumed the position as Regional Administrator, Central Health Care, HCSD. On this date, the Regional Administrator sent appellant an “AWOL Warning Letter.” Appellant was ordered to contact ASP’s ERO by close of business February 2, 2004, or he would be considered absent without leave effective close of business December 31, 2003. There was no evidence appellant contacted the ERO as instructed.

On February 3, 2004, the Regional Administrator notified appellant he was being automatically resigned for being absent without approved leave for five consecutive working days from January 5, 2004 through January 12, 2004. He further informed him “incarceration does not constitute an approved leave and is therefore not an appropriate excuse for being unavailable for reporting to your job....”

Appellant testified he was ready, able, and willing to return to his position. Respondent argued appellant is unable to return to work at CDC because he is now a convicted felon and Title 15 of the California Code of Regulations (CCR) prevents him from being a CDC employee.

 

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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.

In this case, appellant proved by a preponderance of the evidence he had a valid excuse for being absent on January 5 and 6, 2004, because his supervisor approved this leave knowing that appellant was going to use this time in connection with his litigation problems and knowing that he was in fact incarcerated for at least part of this approved leave time. Appellant also proved he had a valid reason for being absent from work on January 9, 2004, because it was his regular day off and he was not normally expected to report to work on this day.

Appellant also proved by a preponderance of the evidence that he had a valid reason for not obtaining additional leave for January 5, 6, and 9, 2004, because he believed he was already excused from work and no further action on his part was required to obtain leave for these dates. While the appointing authority has the discretion to approve or not approve leave, once informed leave approval has been given by a supervisor who has the authority to grant such leave, the approval cannot be retroactively, automatically invalided by other personnel who may not have granted leave if they had been aware of the circumstances at the time the leave was approved. Appellant did not attempt to conceal his situation in order to obtain leave. If the approving supervisor inappropriately disregarded well-known policies or otherwise knowingly exceeded his authority, it is the supervisor, not the appellant, who should bear the responsibility.

This is not to say that incarceration is a valid reason for not reporting to work or that respondent cannot exercise its discretion to deny leave under such circumstances. In this case, however, respondent cannot arbitrarily, retroactively invalidate appellant’s approved leave in order to justify automatic resignation pursuant to Government Code section 19666.2.

Appellant also proved by a preponderance of the evidence he is ready, able, and willing to return to work. He has fulfilled his incarceration sentence. Although CDC argued appellant is unable to be employed by CDC because he is now a convicted felon, the ALJ was unable to find, and respondent did not provide, any statutory or regulatory authority that supports the allegation that non-peace officers are precluded from such employment.

Although appellant requested reinstatement with back pay, Government Code section 19996.2 provides that an appellant dismissed under the automatic resignation statute and subsequently reinstated “shall not be paid for the period of his or her absence or separation or for any portion thereof.”

 

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that the appeal for reinstatement after automatic resignation effective December 31, 2004, is granted. Respondent is to return appellant to work without back pay within three weeks of receipt of this decision and order.