Zike v. State Personnel Bd.

• Decision Date: 10 August 1983
• Citation: 145 Cal.App.3d 817,193 Cal.Rptr. 766
• Court: California Court of Appeals Court of Appeals
• Parties: , 12 Ed. Law Rep. 846 Philip ZIKE, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent. Wilson RILES, as Superintendent of Public Instruction, etc., Real Party in Interest and Respondent. A015409.

Page 766

193 Cal.Rptr. 766

145 Cal.App.3d 817, 12 Ed. Law Rep. 846

Philip ZIKE, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent Wilson RILES, as Superintendent of Public Instruction, etc., Real Party in Interest and Respondent.

A015409.

Court of Appeal, First District, Division 1, California.

Aug. 10, 1983.

Bernard L. Allamano, Philip E. Callis, California State Employees' Ass'n, Oakland, for plaintiff and appellant.

George Deukmejian, Former Atty. Gen., John Van De Kamp, Atty. Gen., Matthew P. Boyle, Deputy Atty. Gen., for respondents.

WEINSTEIN, Associate Justice Pro Tem. ^*

This appeal challenges the constitutionality of the "automatic resignation" statute, former Government Code section 19503. That statute provides in pertinent part that "Absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, ..."

Plaintiff is a state employee whose employment was terminated pursuant to section 19503. He was eventually reinstated, but in accordance with the statute he was denied back pay for the period of his separation. Section 19503 declared that an employee reinstated "shall not be paid salary for the period of his absence or separation or any portion thereof."

Plaintiff petitioned for a writ of mandate seeking to compel the State Personnel Board to set aside its decision to deny back salary. ¹ The trial court denied the petition. Plaintiff now appeals.

STATEMENT OF FACTS

The plaintiff has been employed by the State of California since 1972. He holds the classification of Counselor, Department of Education Special Schools and is employed at the California School for the Deaf as a counselor for children with hearing disorders. As part of his duties as a counselor, plaintiff is required to report to work during the last week of August to prepare and train along with other staff counselors for commencement of the school's fall semester in September.

In 1975, plaintiff reported to school late due to travel in Greece. In 1977, plaintiff again reported to work a few days late due to a delay in his travels in Colorado. In 1978, plaintiff was once again late in reporting for the training period preceding the fall semester, this time due to a delay caused by a family reunion in Florida. On each of these occasions, plaintiff notified his employer, by postcard, that he would be late. In each instance, the employer accepted this form of notification and approved the additional leave retroactively. Plaintiff was never disciplined nor reprimanded for this practice of returning late from summer vacation.

During May of 1979, employees of the school were given oral notification that the return date for that year would be August 27. On July 21, 1979, plaintiff was married and departed for a honeymoon in Italy. At the wedding reception, prior to his departure, plaintiff informed his nominal supervisor, Wesley Roberts, that he would probably not return to the school until September 20. Roberts encouraged plaintiff to take the additional time, although he lacked authority to grant such leave, and suggested that plaintiff send the administration a postcard notification of his absence. Additionally, on July 13, 1979, plaintiff had advised two employees in the school's personnel office that he did not expect to return in August. One of these employees was the school's personnel assistant, but neither employee had authority to grant leaves of absence.

On September 5, 1979, plaintiff's supervisors received a postcard stating that, due to unforeseen circumstances, plaintiff would not return to work until September 11, 1979. Plaintiff arrived at San Francisco Airport on September 10, 1979. He was met by a fellow employee who informed plaintiff that his supervisors considered plaintiff's employment to be terminated. Plaintiff returned to the school on September 11, but was prevented from going to work. He was later informed by letter dated September 21 that he had been terminated pursuant to Government Code section 19503. The termination was reflected on plaintiff's personnel record as a resignation with fault. Plaintiff filed an appeal with

                the State Personnel Board requesting a hearing at the "earliest convenience."   Although Zike prosecuted his appeal diligently, a hearing was not held until five months later on February 11, 1980.  The hearing officer ordered plaintiff restored to his position effective May 5, 1980.  Although noting that plaintiff had abused the leave of absence procedures, the hearing officer held that the school was estopped from applying section 19503 to plaintiff when it had previously accepted his method of notification without comment.  On April 30, 1980, the State Personnel Board adopted the hearing officer's decision.  Plaintiff was denied his salary (about $10,000) for the entire period between his termination and reinstatement
                

DISCUSSION

Government Code section 19503 ² provides that an employee's five-day absence without leave is an automatic resignation. The absence is deemed an abandonment of the job, evidencing an intent to resign. (See Baker v. Wadsworth (1970) 6 Cal.App.3d 253, 263, 85 Cal.Rptr. 880.) The statute provides for reinstatement if the employee gives a satisfactory explanation of his absence to the State Personnel Board. Any employee so reinstated, however, is not entitled to back pay. ³ Thus, even where an employee's absence is ultimately found to be excusable and the employee is reinstated, the employee is in effect punished by the mandatory denial of his back salary.

Plaintiff challenges the constitutionality of section 19503, contending that the statute violates his rights to substantive and procedural due process and equal protection of the laws. Defendant, on the other hand, argues that no violation of due process has occurred and that the constitutionality of section 19503 has been upheld by earlier decisions. (Willson v. State Personnel Board (1980) 113 Cal.App.3d 312, 169 Cal.Rptr. 823, app. dism., 454 U.S. 806, 102 S.Ct. 79, 70 L.Ed.2d 75; Baker v. Wadsworth, supra, 6 Cal.App.3d 253, 265, 85 Cal.Rptr. 880.)

Government Code Section 19503 As Applied To Plaintiff Zike Was Unconstitutional Since It Violated His Rights to Procedural Due Process

Due process protections must be accorded to the valuable property right of a state employee to continue in his position. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774). On the other hand, the government employer has a legitimate interest in expeditious removal of employees who are absent without leave. (Id., at p. 213, 124 Cal.Rptr. 14, 539 P.2d 774.)

The Skelly court observed that in balancing the competing interests involved to determine whether a particular procedure permitting a taking of property without a prior hearing satisfies due process, the court should consider "whether predeprivation safeguards minimize the risk of error in the initial taking decision, whether the surrounding circumstances necessitate quick action, whether the postdeprivation hearing is sufficiently prompt, whether the interim loss incurred by the person affected is substantial, and whether such person will be entitled to adequate compensation in the event the deprivation of his property interest proves to have been wrongful." (Skelly, supra, 15 Cal.3d 194 at p. 209, 124 Cal.Rptr. 14, 539 P.2d 774).

Considering all of the factors above and for the reasons stated below, we conclude that the application of the automatic resignation statute (section 19503) to plaintiff Zike violated procedural due process by failing to provide adequate preremoval safeguards as required by Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, and the California Constitution, article 1, sections 7 and 15. ⁴

A review of the administrative record in this case reveals that plaintiff never intended to resign his teaching position which he had held for seven years. Furthermore, the school authorities had no reason to believe he was voluntarily resigning. The record is clear that Zike informed the authorities of his intention to return to school late, on September 11, 1979, after his honeymoon rather than on August 27 when he was scheduled to report for work.

A disputed factual issue surrounding Zike's absence was presented: whether the school authorities by their handling of his request for honeymoon leave and by acquiescing in his previous late arrivals for school years 1975, 1977 and 1978 had authorized his absence in September 1979. The crux of the dispute was whether Zike's absence was an "absence without leave."

Under these circumstances--where a factual dispute regarding the authority for absence is presented--we think Government Code section 19503 should not have been applied. Invoking the summary procedures of the automatic resignation statute in such a situation violated the procedural due process guarantees of Skelly. (Cf. Curia v. Civil Service Com. (1981) 126 Cal.App.3d 994, 996, 179 Cal.Rptr. 476. ⁵ )

Because of the obvious harshness of the automatic resignation statute ⁶ and the absence of procedural due process protections therein (Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774), we think the use of Government Code section 19503 should be strictly confined to those situations where the absence without leave is admitted ⁷ (Willson v State Personnel Bd., supra, 113 Cal.App.3d 312, 314, 169 Cal.Rptr. 823; Baker v. Wadsworth, supra, 6 Cal.App.3d 253, 85 Cal.Rptr. 880) or those situations where the employer reasonably believes an abandonment has occurred. (Cf., Curia v. Civil Service Com., supra, 126 Cal.App.3d 994, 179 Cal.Rptr. 476.)

Of course the employer is not without a remedy when faced with an absent employee. An inexcusable absence is a ground for discipline. (Gov.Code, § 19572, subd. (j).) Discipline can include the entire spectrum...