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DPA Case Number 99-A-0086 - Reinstatement After Automatic Resignation

Final Non-Precedential Decision Adopted: November 8, 1999
By: K. William Curtis, DPA Chief Counsel


This matter was heard before Mary C. Bowman, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 11:30 a.m. on September 28, 1999, at Riverside, California. The record remained open through close of business October 29, 1999, for appellant’s counsel to submit evidence regarding appellant’s incarceration. The record also remained open for the representatives to submit written closing argument.
Appellant was present and was represented by Dennis F. Moss, Attorney for Professional Engineers in California Government (PECG).
Jeanell M. Bradley, Associate Personnel Analyst, represented the Department of Transportation (Caltrans), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Appellant was automatically resigned effective close of business July 1, 1999. He filed a request (appeal) for reinstatement after automatic resignation on July 21, 1999. The appeal complies with the procedural requirements of Government Code section 19996.2.
The matter was originally set for hearing on September 27, 1999. The hearing date was amended to September 28, 1999. Closing briefs were received timely. The record remained open approximately three weeks after the hearing to allow appellant’s representative time to submit court records relating to appellant’s incarceration. The records were not obtained and submitted.


Respondent notified appellant in writing on or about July 12, 1999, that effective July 22, 1999, he would be considered to have automatically (AWOL) resigned effective close of business July 1, 1999, based upon his absence without approved leave from July 2 through July 12, 1999. Thereafter, appellant filed his appeal with DPA through his union on “all grounds permitted by law or rule.”


The parties agreed that on July 1, 1999, appellant was arrested and charged with failing to comply with conditions of bail, which were set the prior month.1 Appellant was in jail from July 1 through July 15, 1999, which included July 2 through July 12, 1999, the period for which he was absent without approved leave.
It is found that appellant was absent because he was incarcerated in the county jail.


The parties also agreed that after appellant was incarcerated on July 1, 1999, he made efforts through his wife to secure a six-month leave of absence for the period of his potential incarceration. Respondent denied the request for a leave of absence because the leave was not requested in advance and because Caltrans has a policy of denying vacation time for incarceration.
Appellant testified that he was involuntarily incarcerated on July 1, 1999, and that he did not violate the conditions of bail, as alleged. He further testified that at his bail hearing on July 15, 1999, the Superior Court Judge presiding told him there was “no evidence to back up the accusation of paging” and released him. Respondent objected to the ALJ relying upon appellant’s testimony as to what the Superior Court Judge told appellant because the testimony constituted uncorroborated hearsay. It is found that the testimony did constitute hearsay, was self-serving, and not corroborated by reliable evidence.
Respondent’s Senior Transportation Engineer testified that he met with appellant on June 30, 1999, and advised him that future incidents of incarceration might result in adverse action or automatic resignation. He also testified that respondent’s policy regarding employee incarceration was that regardless of the circumstances surrounding the incarceration, an absence of five days or more caused by incarceration should be viewed as abandonment of the job. Senior Transportation Engineer’s testimony was substantiated by a memorandum to appellant dated June 30, 1999, and the Supervisor’s Guide to Employee Conduct & Discipline reissued by Caltrans in April 1998.
It is found that respondent used its discretionary authority to deny appellant approved leave for July 2 through July 12, 1999.


The parties agreed that appellant is currently ready, able and willing to return to work.
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Government Code section 19996.2 provides an automatically separated employee with the right to file a request 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/she had a valid excuse for being absent, whether he/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 the he/she had a valid excuse for his/her absence and failure to obtain leave and that he/she is currently able to return to work.
In this case appellant was absent from work because he was incarcerated for crimes against the State and his alleged failure to comply with terms of bail set for him by the San Bernardino County Judge on or about June 25, 1999. Appellant’s statement that the Judge told him there was no evidence of a bail violation was inadmissible hearsay. In addition, appellant was allowed sufficient time to provide credible documentary evidence (court records) as to the circumstances of his second incarceration and an additional three weeks were set aside in order for him to obtain that documentation. Appellant did not submit the evidence. Accordingly, the testimony is disregarded. It is concluded that appellant failed to present a reasonable explanation for his absence between July 2 and July 12, 1999.
Also, in this case, appellant asked for a six-month leave of absence, which was considered an untimely request by Caltrans. (The request was made after appellant had been absent a number of days without approved leave.) Respondent considered the reason for which the leave was requested—which was to serve jail time—and exercised its discretion to deny the leave. Consequently, it is concluded appellant did not prove he had a satisfactory explanation for not obtaining leave.
It is concluded appellant is currently ready, able and willing to return to work.
For the reasons set forth above, the appeal should be denied.
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that the appeal for reinstatement after automatic resignation effective close of business July 1, 1999, is denied.
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1. Appellant was arrested and incarcerated between June 17 and June 25, 1999, in the San Bernardino County Jail for criminal misconduct. He was placed on bail and released. The bail was revoked for allegedly paging a female he had been charged with stalking.
  Updated: 5/22/2012
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