Roe v. State Personnel Bd.

• Decision Date: 22 July 2004
• Docket Number: No. A098067.,No. A098624.,A098067.,A098624.
• Citation: Roe v. State Personnel Bd., 16 Cal.Rptr.3d 207, 120 Cal.App.4th 1029 (Cal. App. 2004)
• Court: California Court of Appeals
• Parties: Robert ROE, Plaintiff and Respondent, v. STATE PERSONNEL BOARD, Defendant, Department of Justice, Real Party in Interest and Appellant. Robert Roe, Plaintiff And Appellant, v. State Personnel Board, Defendant, Department of Justice, Real Party in Interest and Respondent.

16 Cal.Rptr.3d 207

120 Cal.App.4th 1029

Robert ROE, Plaintiff and Respondent, v.STATE PERSONNEL BOARD, Defendant,Department of Justice, Real Party in Interest and Appellant.

Robert Roe, Plaintiff And Appellant, v.State Personnel Board, Defendant,Department of Justice, Real Party in Interest and Respondent.

No. A098067.

No. A098624.

Court of Appeal, First District, Division 5.

July 22, 2004. Certified for Partial Publication.^*

As Modified on Denial of Rehearing August 20, 2004.

Bill Lockyer, Attorney General, Pamela Smith-Steward, Chief Assistant Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Lyn Harlan and Karen L. Donald, Deputy Attorneys General, for Defendant, Real Party in Interest and Appellant and for Real Party in Interest and Respondent.

Patton Wolan & Boxer, Roger W. Patton, Oakland; Steven B. Bassoff, Sacramento; Garfinkle Law Office, Maria J. Garfinkle, Gary Garfinkle, Lafayette, for Plaintiff and Respondent and for Plaintiff and Appellant.

GEMELLO, J.

Does a state employee's resignation following his termination without due process cut off his remedies for the procedurally improper termination?If not, to what backpay is the employee entitled due to the procedurally improper termination?Is the employee entitled to reinstatement, or must the matter be remanded to the State Personnel Board(Personnel Board or Board) for a determination of the merits of the employer's charges of misconduct?

In this case, we conclude that the Personnel Board erred in determining that Deputy Attorney GeneralRobert Roe, who was terminated without due process, resigned effective September 24, 1992, and in limiting Roe's backpay award accordingly.Roe is entitled to backpay through May 5, 1999, the date of the Personnel Board's decision after hearings on the merits of the Department of Justice's charges against Roe.In an unpublished portion of this decision we conclude that this matter must be remanded to the Personnel Board to determine whether there was good cause to terminate Roe based on the evidence already heard.

FACTUAL AND PROCEDURAL BACKGROUND

On August 25, 1992, the Department of Justice mailed Robert Roe a notice of adverse action¹ dismissing him for cause from his position as a Deputy Attorney General effective August 31, 1992.The Department charged Roe with dishonesty, willful disobedience, misuse of state property, and general failure of qualifications and good behavior.The charges stemmed from Roe's alleged unauthorized removal of two computer printers from the offices of the Attorney General.

Roe's Letter of Resignation

On August 31, Roe's counsel, Roger Patton, met with Assistant Attorney GeneralGeorge Williamson, the Department Skelly officer,² and proposed various resolutions short of dismissal; he told Williamson that the Department had not given Roe adequate notice of termination.During the subsequent few weeks, Patton suggested resolutions involving Roe resigning at a later date.Williamson was not receptive.Patton and Williamson scheduled the Skelly hearing for September 24 at 2:00 p.m. Patton testified that Williamson warned him on September 23 that for Roe to avoid discipline he would have to submit his resignation by the 24th.Williamson testified that he did not recall such a conversation, but his testimony was discredited by the Personnel Board.

On September 24, 1992, at 11:14 a.m., about three hours before the scheduled Skelly hearing, Patton faxed Williamson a letter of resignation signed by Roe, which stated "I hereby resign from my position as a deputy attorney general effective today at 5:00 p.m."Patton's cover letter stated in part, "Enclosed is [Roe's] letter of resignation from his position as Deputy Attorney General.Our understanding is that this terminates the employment relationship and any pending disciplinary proceeding.[Citation.]"The Department never responded.In November, when Roe asked his union representative to inquire about his backpay and benefits, he learned for the first time that the Department took the position that he was terminated on August 31, 1992.

Personnel Board Proceedings

On December 23, 1992, the Department filed an amended notice of adverse action with the Personnel Board, changing the effective date of the adverse action from August 31 to September 24, 1992.Roe filed an answer to the amended notice, asserting that he resigned September 24 pursuant to an agreement with the Department.In response, the Department tried to withdraw its amended notice, on the new theory that the Board was without jurisdiction because Roe's termination had actually become final on September 14, twenty days after service of the original notice.³The Personnel Board adopted the administrative law judge's (ALJ) proposed decision, which concluded that the Board did not have jurisdiction to consider the matter because Roe had not timely appealed his termination.

First Writ of Mandate Proceedings

Roe petitioned for a writ of mandate directing the Department to vacate the August 31, 1992, dismissal and reinstate him.The superior court granted the petition and found (1) that the Personnel Board erred in denying jurisdiction; and (2) that Roe had been terminated without due process.The court directed the Department to set aside the dismissal and to reinstate him.

On appeal, this court concluded that the Personnel Board had jurisdiction to decide Roe's appeal on the merits.(Roe v. State Personnel Board(1998)A075617(Roe I).)The superior court had reached the same conclusion and to that extent we affirmed the superior court judgment.This court also concluded that the superior court erred by deciding the question of whether Roe was denied pretermination due process instead of remanding to the Personnel Board for further proceedings and to that extent reversed the lower court judgment.We directed the superior court to enter a new judgment granting the petition for writ of mandate and remanding the matter to the Personnel Board with instructions to hear Roe's appeal.⁴

On remand, an ALJ for the Personnel Board conducted hearings and admitted evidence regarding the underlying claims of misconduct, Roe's termination, and subsequent events.In its proposed decision, the ALJ found that the August 31 termination was invalid because Roe was not provided adequate notice and that Roe resigned effective September 24.The proposed decision awarded Roe backpay for the period September 1 through 24, 1992.The Personnel Board adopted the proposed decision at its meeting on May 4 and 5, 1999.

Second Writ of Mandate Proceedings

Roe filed another petition for writ of mandate challenging the finding that he resigned effective September 24 and the resulting award of limited backpay.The superior court granted the petition on December 4, 2001.The court rejected the Personnel Board's conclusion that Roe's resignation was effective, reasoning that as of the date of Roe's resignation, the Department itself maintained the position that Roe had been terminated on August 31.The Personnel Board's "determination that Roe resigned his position effective September 24, 1992, is not supported by substantial evidence since, as of the time of the purported resignation, [the Department was] of the belief that Roe's employment had been terminated on August 31, 1992."

On March 1, 2002, the superior court issued a writ of mandate directing the Personnel Board to vacate its decision and "enter a new order reinstating Roe, and awarding Roe backpay, with interest, and benefits, for the period September 1, 1992 through April 30, 1999, less interim wages earned.(SeeBarber v. State Personnel Board(1976)18 Cal.3d 395, 403, 134 Cal. Rptr. 206, 556 P.2d 306[Barber];Kempland v. Regents of the University of California(1984)155 Cal.App.3d 644, 651, 202 Cal.Rptr. 275[`Kempland'].)Said writ of mandate shall also direct that [the Personnel Board] retain jurisdiction and provide Roe requisite preremoval due process.(Kempland, supra,155 Cal.App.3d at 651-652, 202 Cal.Rptr. 275.)"

Both parties appeal.The Department assigns error to the superior court issuance of the writ directing the State Personnel Board to order the reinstatement of Roe with backpay from September 1, 1992, through April 30, 1999.The Department argues that Roe resigned effective September 24, 1992, and is not entitled to reinstatement or backpay after that date.Roe cross-appeals, contending that his entitlement to backpay continued after April 30, 1999, the date of the ALJ's proposed decision.⁵

DISCUSSION

I.Standard of Review^**

II.Roe's Resignation Following His Termination Did Not Extinguish His Right to Backpay For The Department's Violation of Due Process

The first question we address is whether Roe's resignation following his termination without due process extinguished his right to backpay for the illegal termination.The Personnel Board answered this question in the affirmative by concluding that because Roe resigned on September 24, 1992, he is not entitled to backpay after that date.The superior court vacated that portion of the Board's determination as not supported by substantial evidence "since, as of the time of the purported resignation, [the Department was] of the belief that Roe's employment had been terminated on August 31, 1992."

The Department contends that the superior court erred because the evidence plainly demonstrates that Roe resigned effective September 24, 1992.That is beside the point.There is no factual dispute that on September 24 Roe faxed a resignation letter to the Department's Skelly officer, effective that same day.⁶The issue before us is whether the Personnel Board erred in concluding that Roe's resignation cuts off an award of backpay after September 24 for the due process violation.This is a question of law which we review de novo.(Bostean v. Los Angeles Unified School Dist.(1988), 63 Cal.App.4th 95, 107, 73 Cal.Rptr.2d 523(Bostean)....