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DPA Case Number 98-T-0138 - Petition to Set Aside Resignation

Final Non-Precedential Decision Adopted: February 16, 1999
By: K. William Curtis


This matter was heard before Mary C. Bowman, Administrative Law Judge, Department of Personnel Administration (DPA) at 9:00 a.m. on October 8, 1998, and January 20, 1999, at Sacramento, California. A second day of hearing was originally scheduled for December 1, 1998, but was continued at the request of appellant’s counsel for good cause shown.
Appellant was present and was represented by Raymond A. Mills, his attorney.
Respondent, Department of the Youth Authority (CYA), was represented by Karen Kilpatrick, Hearing Specialist, CYA.
Evidence having been received and duly considered, the Administrative Law Judge makes the following findings of fact and Proposed Decision.


Appellant resigned from his position as Construction Supervisor II with CYA on June 25, 1998. On July 24, 1998, he filed a petition (appeal) to set aside his resignation with CYA. CYA forwarded the appeal to DPA for a hearing. The appeal complies with Government Code section 19996.1.


Appellant filed his appeal in writing. It stated he was appealing because he felt he did not have enough correct information to make the decision to resign at the time he resigned.


On Friday, June 18, 1998, appellant was served with a Notice of Adverse Action of Dismissal based upon inappropriate use of State computers. Prior to service of the notice, CYA conducted an investigation of appellant. The investigation began in December 1997 and ended shortly before preparation of the notice. Appellant was aware of the investigation and the conduct which led to it. He did not dispute the misconduct but he expected a penalty which was less than a dismissal when the notice was served.

On Monday, June 22, 1998, appellant requested a Skelly1 hearing to dispute the penalty in the notice. The Deputy Director, Institutions and Camps Branch conducted the hearing on Tuesday, June 23, 1998. The Deputy Director and appellant had not met or spoken before the meeting. They did not communicate after the hearing.

Appellant and the Deputy Director’s perceptions of what went on at the Skelly hearing differed substantially.

Appellant testified that they discussed appellant resigning instead of being dismissed and that the Deputy Director told him it was better to resign than to be dismissed. He also testified that the Deputy Director told him if he resigned, the adverse action would simply go away; and that if he applied for other jobs, he would not have to tell anyone why he resigned. He testified that he pointed out item 5(b) on the State application form to the Deputy Director. (That item requires an individual to answer the following question: “Have you ever resigned from or quit a position while under investigation or after being informed discipline would be taken against you, or during an appeal from a disciplinary action?”) The question in item 59(b) is new and, according to appellant, the Deputy Director was not familiar with it.

Appellant also testified the Deputy Director told him that the State Personnel Board (SPB) upholds 99% of dismissal actions taken by CYA and that other departments might not consider his misconduct as harshly as CYA.

At the end of the Skelly hearing, appellant claimed he said, “then the option is to resign or be dismissed” and the Deputy Director responded, “yeah, yeah.”

The Deputy Director testified he and appellant must have been at different Skelly hearings. He testified, “I didn’t ask or suggest he resign. I allowed him to present his case. He denied discussing resignation with appellant. He denied discussing item 5(b) on the State application form. He denied advising appellant that SPB upholds 99 % of CYA’s dismissal actions or stating that other departments might look at his misconduct less harshly.

Both appellant and the Deputy Director agreed that at the end of the Skelly hearing the Deputy Director advised appellant that he was going to recommend CYA move forwards with appellant’s dismissal from State service.

After the Skelly hearing, appellant spoke by telephone with his former supervisor. He told his former supervisor he was contemplating resigning before the dismissal became effective on Friday, June 26, 1998. Both appellant and the former supervisor testified the former supervisor did not provide advice to appellant on whether he should resign. He just listened. The former supervisor recalled appellant was depressed and had not yet decided whether to actually resign, but that he indicated he was thinking about other State employment.

Appellant went to the office of the SPB after the Skelly hearing. He asked about SPB’s policy regarding reinstatement. He was given a pamphlet which stated, “If you resign you have reinstatement rights. If dismissed, you have no reinstatement rights.”

Appellant testified he planned to seek other employment in State service. He had not done so during the six-month investigation because he did not think he would actually be dismissed for his misconduct. (He thought he would get a 30-day suspension.) He checked with the Department of Corrections about a job after he was served with the notice of adverse action. He testified he thought he was going to work at CDC pretty quickly so he needed reinstatement rights.

He also testified he knew about item 5(b) and he understood it meant he would have to provide an explanation regarding his resignation on item 12 of any State application he completed.

He testified he spoke with his wife about it and it was “pretty black and white.” He also testified that, relying upon SPB’s publications and the information provided at the Skelly hearing by the Deputy Director (which included that the Deputy Director would recommend that CYA go forward with a dismissal), he decided it was better to resign than be dismissed. It “made sense to” him.

Appellant submitted his written resignation to CYA the day before the adverse action became effective, thereby mooting the action. By resigning he effectively prevented CYA from dismissing him for cause.

He testified he was "pretty depressed at the time" and “did not see much else to do. He also testified, “I wish I didn’t do it.” He speculated that SPB only upholds approximately 50-60% of actions brought by departments and that if he was able to challenge the dismissal, he could get SPB to reduce the penalty to a 30-day suspension.


Appellant testified that during the first 28 days following his resignation, he thought he would get work in a few days. Then it started to hit home. He thought he’d done the wrong thing—he thinks he would have fared better at the SPB.
Appellant has submitted numerous applications for jobs (public and private) and has had all negative results. The job he applied for at CDC was not offered to him. He believes that if he could withdraw the resignation, accept the dismissal and appeal it to SPB he would be “a lot more successful.”
Basically, appellant is of the opinion that he made a bad bargain and has “buyer’s remorse.”
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Appellant seeks to set aside his resignation on the ground that he did not have sufficient information to make an informed decision at the time he executed his resignation. Appellant contends that the circumstances surrounding his resignation hindered his ability to make a free, voluntary and binding decision.
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.
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. Undue influence involves the taking of an unfair advantage of another. Id. at 132, citing Civil Code section 1575.
In this case the evidence does not support appellant’s claim that his resignation was anything other than a free, voluntary and binding act.
The facts demonstrate appellant was faced with a difficult choice—he could allow the dismissal to be effective and pursue his appeal rights before SPB or he could submit a resignation prior to the effective date of the dismissal and stop the dismissal. The first course of action would have resulted in either a permanent dismissal from State service without reinstatement rights, or a reduced penalty.2 The second course of action would have secured for him a resignation from State service and permissive reinstatement rights. Appellant considered both courses of action and weighed the pros and cons—including the requirement that he reveal the circumstances surrounding his resignation on any State application.
There was no evidence to suggest respondent or its representatives subjected him to duress, menace or undue influence. There was also no evidence that he mistakenly resigned, since he was fully aware of the consequences of his act of submitting a written resignation the day before the dismissal became effective.
Appellant has not claimed fraud.
Even if the Deputy Director advised appellant that it is better to resign that be dismissed, that information generally is correct and does not constitute an unlawful action by respondent. Further, even if appellant and the Deputy Director speculated about his chances before SPB, it was speculation and nothing more. Appellant clearly independently researched his decision with a visit to SPB and by talking to other individuals including his wife and former supervisor. He acknowledged his supervisor did not talk to him about or suggest he resign rather than be dismissed.
Accordingly, it is concluded appellant’s appeal should be denied since his decision to submit the resignation was free and voluntary and consequently a binding act.
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that the petition to set aside resignation effective June 25, 1998, is denied.
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1. See Skelly v. SPB (1975) 15 Cal.3d 194.
2. Appellant has acknowledged he engaged in the misconduct charged and expected some penalty.
  Updated: 5/22/2012
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