Final Non-Precedential Decision Adopted: July 25, 2001

By: Howard Schwartz, DPA Chief Counsel

This matter was heard before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 11:00 a.m. on July 19, 2001, at Riverside, California.

Appellant was present and was represented by Terrie Beidleman, Staff Legal Counsel, California Correctional Peace Officers Association (CCPOA).

Vikki Thompson, 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.

Appellant submitted a written resignation from her position as Correctional Officer on May 30, 2001. On May 30, 2001, respondent sent a letter to appellant accepting her resignation effective that date. On June 28, 2001, CCPOA filed a petition (appeal) to set aside her resignation. The appeal complies with the procedural requirements of Government Code section 19996.1.

Appellant seeks reinstatement on all grounds permitted at law.

In April 2001 and again on May 30, 2001, appellant was subjected to two investigatory interviews regarding her alleged “overfamiliarity” with an inmate and/or his family. At the conclusion of the second investigatory interview, appellant and the investigator conducting the interview went to the office of the Employee Relations Officer (ERO) for the purpose of signing paperwork to place appellant upon administrative leave, consistent with Government Code section 19574.5.1

The Local President for CCPOA met appellant at the ERO’s Office. The Local President asked to speak privately with appellant when she arrived. Appellant and the Local President met privately. After the meeting, appellant and the Local President returned to the ERO’s Office. At that point, appellant placed her badge and identification card on the table and told the ERO she wanted to resign her position.

The ERO’s secretary gave appellant a piece of paper. She used it to execute a written resignation addressed to the Warden. The resignation stated in its entirety, “I [name omitted] hereby resign my duties as a Correctional Officer.” Appellant dated the resignation (May 30, 2001) and signed it before presenting it to the ERO.

Both appellant and the ERO testified that no one, other than the Local President, suggested she resign and no one representing respondent suggested she resign. The only reason she went to the ERO’s Office was to sign the administrative leave paperwork. Appellant also testified she chose to proffer her resignation because her representative told her that was what she should do. She understood that if she did not resign she might be dismissed for overfamiliarity.

As a consequence of her resignation, respondent did not issue appellant the paperwork placing her on administrative leave. Also, the investigation was not completed and appellant was not served with any adverse action. Instead, on May 30, 2001, respondent prepared and mailed to appellant a written acceptance of her voluntary resignation

Appellant testified that sometime after she resigned, she changed her mind. She went through her employee handbook and called a former Correctional Officer who had become an attorney. She asked his advice as to how to overturn her resignation. He directed her to contact CCPOA Headquarters in West Sacramento.

Appellant contacted CCPOA, and CCPOA filed a petition to set aside her resignation.

 

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Appellant seeks to set aside her resignation on the basis that she acted under stress when she resigned from State service. In effect, appellant contends that the circumstances surrounding her resignation hindered her ability to make a free, voluntary and binding decision. Appellant also claims that signing the resignation was a “mistake” because she was under the misimpression after speaking with a union representative, that she had no other choice but to resign.

Government Code section 19996.1 provides that an employee who has resigned from a civil service position has the right to file a petition for reinstatement with DPA. DPA may grant reinstatement only if the employee proves that the resignation 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 employee.

The clear language of the statute requires the trier-of-fact to look to the act 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.

“Mistake” is generally defined in Black’s Law Dictionary (Abridged Sixth Edition, 1991) at page 693, as follows.

“Some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence. A state of mind not in accord with reality. A mistake exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence.”

In seeking reinstatement, an appellant has the burden of proof and the burden of going forward in the appeal hearing.

The evidence presented established that appellant was upset by the investigatory interviews being conducted relating to charges of overfamiliarity between herself and an inmate at the facility. The evidence also established that appellant was aware that she could face termination if she did not resign her position. The evidence did not prove that anyone in authority suggested that appellant resign or otherwise influenced her decision to resign. (The only person whom she relied upon for advice was her union representative, who was not acting on behalf of CDC at all.) Appellant regrets following her representative’s advice to resign. However, her regret does not constitute duress, fraud, or undue influence by respondent or its representatives.

Further, appellant clearly was aware of the consequences of her resignation at the time she exercised her right to resign. She could resign (which would end the investigation and free her from the risk of being dismissed for misconduct) or she could be placed on administrative leave pending further investigation of the charges against her. While neither choice was attractive, appellant clearly knew the choices and did not mistakenly resign. Therefore, it is concluded that her execution of a resignation on May 30, 2001, was a free, voluntary and binding act, and the resignation should not be rescinded.

 

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that the petition to set aside resignation effective May 30, 2001, is denied.

 

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1. Section 19574.5 provides in relevant part: “Pending investigation by the appointing power of accusations against an employee involving misappropriation of public funds or property, drug addiction, mistreatment of persons in the state institution, immorality or acts which would constitute a felony or a misdemeanor involving moral turpitude, the appointing power may order the employee on leave of absence for not to exceed 15 days . . .”