Stanley COLEMAN, Jr., Plaintiff and Appellant, v. DEPARTMENT OF PERSONNEL ADMINISTRATION, Defendant and Respondent, DEPARTMENT OF GENERAL SERVICES, Real Party in Interest and Respondent.
Government Code section 19996.2 provides that a state employee's “[a]bsence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service as of the last date on which the employee worked.” The statute does not require actual notice to the employee before the automatic resignation takes effect but does afford a postseparation procedure whereby an employee so terminated may apply to the Department of Personnel Administration (DPA) for reinstatement. If the employee gives a satisfactory explanation of his absence, reinstatement may be granted but a reinstated employee is not entitled to back pay. In this appeal we shall reject the contention that application of this statutory provision to plaintiff violated his rights under the United States and California Constitutions.1
Plaintiff was employed as a permanent, full-time telecommunications assistant by real party in interest, Department of General Services (Department). On July 19, 1984, Department served plaintiff with written notice advising him that he had been separated from his position for being absent without leave for five consecutive working days.
Plaintiff filed an administrative appeal. An evidentiary hearing was held before an administrative law judge whose decision denying reinstatement was ultimately adopted by DPA.
Plaintiff then filed a petition for a writ of administrative mandate in superior court. (Code Civ.Proc., § 1094.5.) After a hearing, the court found the automatic resignation statute constitutional on its face and as applied to plaintiff, and the administrative decision denying plaintiff reinstatement supported by the weight of the evidence.2 Plaintiff appeals from the judgment denying the petition.
The superior court properly exercised its independent judgment on the weight of the evidence. Unlike the State Personnel Board, which derives its adjudicative powers from the Constitution (see Washington v. State Personnel Bd. (1981) 127 Cal.App.3d 636, 639–640, 179 Cal.Rptr. 637), the DPA is an administrative body created by statute. (See Gov.Code, § 19815 et seq.) Since permanent employment in the civil service is a valuable property right for purposes of procedural due process (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 207–208, 124 Cal.Rptr. 14, 539 P.2d 774), the property interest at stake here is sufficiently vital to call forth the “independent judgment” rule in the mandamus proceeding. (See Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396, 188 Cal.Rptr. 891, 657 P.2d 383; Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 779–780, 163 Cal.Rptr. 619, 608 P.2d 707; Thomas v. California Emp. Stab. Com. (1952) 39 Cal.2d 501, 504, 247 P.2d 561; Code Civ.Proc., § 1094.5, subds. (b), (c), and (e).)
Our function as a reviewing court, however, is limited to errors of law, and we must uphold the trial court's factual findings if supported by substantial, credible, and competent evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10, 93 Cal.Rptr. 234, 481 P.2d 242; Agnone v. Hansen (1974) 41 Cal.App.3d 524, 527, 116 Cal.Rptr. 122.) To the extent that the evidence adduced at the administrative hearing is reasonably susceptible to two or more conflicting inferences, we may not substitute our own deductions for those of the trial court. (Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72, 64 Cal.Rptr. 785, 435 P.2d 553; Hall v. Bureau of Employment Agencies (1976) 64 Cal.App.3d 482, 495, 138 Cal.Rptr. 725.) Since there was no statement of decision by the trial court (CT 37), all findings necessary to support the judgment will be implied if warranted by the evidence. (Code Civ.Proc., § 632; see also Hall, supra, at p. 496, 138 Cal.Rptr. 725.)
We set forth the remaining facts essential to a review of the issues tendered on appeal. Plaintiff last worked for Department on April 18, 1984. On that date, he had fainting spells and was admitted to the hospital for tests. After consulting several doctors, he began receiving nonindustrial disability insurance (NDI) benefits. (See Gov.Code, §§ 19878 to 19885.)
The Employment Development Department (EDD) terminated plaintiff's NDI benefits as of June 15, 1984, and released him for return to light-duty work. Department was so notified. On July 3, 1984, plaintiff telephoned his supervisor and stated he was attending college and his release for duty was a mistake. Plaintiff assured his supervisor he would check on his leave status and report back as soon as possible.
Plaintiff made no further attempt to contact his employer. On July 18, 1984, plaintiff's supervisor tried unsuccessfully to reach plaintiff by phone. On July 19, more than five working days after July 3, Department mailed plaintiff a letter notifying him of his separation from state employment pursuant to Government Code section 19996.2 (all further statutory references to sections of an undesignated code are to the Government Code). Between July 3 and July 19, 1984, light-duty work was available to plaintiff.
Before reaching plaintiff's constitutional challenge, we must resolve the parties' disagreement over the proper construction of the statute. Plaintiff contends section 19996.2 applies only in situations where the employee actually intends to resign, the employer reasonably believes the employee “intends” to resign, and there is no factual dispute as to whether an abandonment has occurred. Not only does plaintiff's construction take great liberty with dicta appearing in court of appeal decisions, it ignores the plain language of the statute.
In ascertaining the meaning of statutory language, the controlling principle is the intent of the Legislature. (See 58 Cal.Jur.3d, Statutes, §§ 82, 83, pp. 430–433.) The first consideration is the natural and ordinary meaning of the words used. If the language is clear and unambiguous, there is no need for construction or resort to extraneous interpretive aids. (See West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 850, 226 Cal.Rptr. 132, 718 P.2d 119; Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148; People v. Belleci (1979) 24 Cal.3d 879, 884, 157 Cal.Rptr. 503, 598 P.2d 473.)
Here, the plain language of section 19996.2 will not accept the gloss with which plaintiff would embellish it. The statute says: “Absence without leave ․ for five consecutive working days is an automatic resignation․” The resignation is thus complete upon the occurrence of express and objectively verifiable conditions. Intent is subjective. It is at best difficult to ascertain and sometimes undiscernable even in an adjudicative setting. Engrafting a subjective intent requirement onto the statute would defeat the clear legislative purpose and there would be nothing automatic about the statute. This conclusion is consistent with the recent decision in United States v. Locke (1985) 471 U.S. 84, 105 S.Ct. 1785, 85 L.Ed.2d 64 which involved a similar problem of statutory construction. There the court considered a federal statute which “conclusively” extinguished, without prior notice, the unpatented mining claims of claimants who failed to comply with annual filing requirements. (Id. at p. 100, 105 S.Ct. at p. 1795–96, 85 L.Ed.2d at p. 70.) Rejecting an interpretation that the claimant must have a specific intent to abandon prior to extinguishment, the court stated: “If the failure to file merely shifts the burden to the claimant to prove he intends to keep the claim, nothing ‘conclusive’ is achieved by [the statute]․ [¶] Specific evidence of intent to abandon is simply made irrelevant by [the statute]; the failure to file on time, in and of itself, causes a claim to be lost. [Citation.]” (471 U.S. at pp. 100–101, 105 S.Ct. at pp. 1796, 85 L.Ed.2d at pp. 79–80.)
Curia v. Civil Service Com. (1981) 126 Cal.App.3d 994, 179 Cal.Rptr. 476 does not support plaintiff's attempt to interpolate intent into the statute. Curia involved the appeal of a county employee who was terminated for unauthorized absence under a county ordinance textually similar to section 19996.2. The employee disputed that her absence was in fact without leave so as to invoke the ordinance. The hearing officer placed the burden of showing authorized absence on the employee. The appellate court reversed, holding the employer bore the initial burden of proving the summary procedure of the ordinance was properly invoked; once the county showed the absence was without leave, the burden shifted to the employee to show adequate justification entitling her to reinstatement. (Id. at p. 1009, 179 Cal.Rptr. 476.) The court did not reach the employee's claim she had “no intention of resigning.” (Id. at pp. 1006, 1009, 179 Cal.Rptr. 476.)
Zike v. State Personnel Bd. (1983) 145 Cal.App.3d 817, 193 Cal.Rptr. 766 lends only the weakest support to plaintiff's position. In Zike, plaintiff's employer separated him from state employment under former section 19503, the predecessor to section 19996.2.3 Plaintiff appealed and was restored to his employment by the State Personnel Board which decided that his employer was estopped from applying section 19503 to plaintiff because on past occasions the employer had condoned similar absences of plaintiff without objection. (Id. at p. 821, 193 Cal.Rptr. 766.) However, the Board denied plaintiff's request for back pay. Plaintiff sought and was denied a writ of mandate in the superior court solely on the issue of back pay. The employer did not challenge the decision of the Board that section 19503 was not applicable to plaintiff and it became the law of the case. This was the posture of the case when the appellate court reviewed the trial court's denial of the plaintiff's mandate petition seeking back pay. Although the case at this point had nothing to do with the automatic resignation statute, the appellate court felt constrained to deliver this commendatory dicta: “Because of the obvious harshness of the automatic resignation statute and the absence of procedural due process protections therein [citation], we think the use of Government Code section 19503 should be strictly confined to those situations where the absence without leave is admitted [citations] or those situations where the employer reasonably believes an abandonment has occurred.” (Id., at p. 823–824, 193 Cal.Rptr. 766, fns. omitted.)
Although less restrictive than the construction plaintiff would have us adopt, the Zike dicta would engraft limitations on the statute which are not supported by its plain language. At times the courts will sacrifice a literal reading of a statute to avoid constitutional difficulties. (See In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142; People v. Smith (1983) 34 Cal.3d 251, 259, 193 Cal.Rptr. 692, 667 P.2d 149.) We do not believe a judicial redraft of section 19996.2 is necessary to save its constitutionality. To the constitutional issues we now turn.
We begin by reviewing the “substantive” constitutionality of the legislation. Plaintiff attacks the automatic resignation statute as being so arbitrary, unreasonable, and unduly harsh in its operation that it runs afoul of both substantive due process and equal protection of the laws. Viewed from either perspective, the inquiry essentially is the same: Does the state have the power constitutionally to provide that its permanent employees will be separated from employment on account of absence without leave for five consecutive working days? (See generally, 2 Rotunda, Nowak & Young, Treatise on Constitutional Law: Substance and Procedure (1986) §§ 14.6, 14.7, pp. 12–13, 22–23.)
Permanent public employment in a given job, while a “vested” right for purposes of certain procedural safeguards, is not so “fundamental” a right in and of itself as to trigger “strict scrutiny” review of the substance of the legislation. (See Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal.3d at p. 396, 188 Cal.Rptr. 891, 657 P.2d 383; Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 83, 177 Cal.Rptr. 566, 634 P.2d 917.) Nothing in the Constitution requires that the government justify by a compelling state interest the nonretention of employees who remain free to seek other jobs. The courts heighten their independent review in an employment context only where additional constitutional guarantees, suspect classifications, or fundamental rights are implicated. (See Cooperrider v. Civil Service Com. (1979) 97 Cal.App.3d 495, 504, 158 Cal.Rptr. 801, and Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17, 95 Cal.Rptr. 329, 485 P.2d 529.) No additional constitutionally protected interest is present here.
For equal protection purposes (see Gray v. Whitmore (1971) 17 Cal.App.3d 1, 21, 94 Cal.Rptr. 904), plaintiff characterizes employees who resign pursuant to the automatic provision of section 19996.2 as similarly situated to employees who suffer “adverse” actions pursuant to section 19570 et seq., governing termination for cause. However, there is a significant difference between disciplinary or punitive actions initiated against an employee for “cause” (§§ 19570 to 19588) and a section 19996.2 resignation resulting from the employee's own failure to obtain approved leave. In the latter situation, no “stigma” or other disability seriously impairs the individual's freedom to pursue a lawful occupation and to take advantage of other employment opportunities. (See Board of Regents v. Roth (1972) 408 U.S. 564, 573–575, 92 S.Ct. 2701, 2707–08, 33 L.Ed.2d 548, 559–560.)
Separation from state service by automatic resignation falls under an entirely different statutory scheme than disciplinary actions and is administered by a different agency—the DPA as opposed to the State Personnel Board. Disciplinary action, once sustained, remains a part of the employee's permanent work history, whereas an automatic resignation has no such damaging effect on the employee's future employment opportunities with the state, much less with any other employer. The State Personnel Board has statutory authority to consider prior punitive actions against an employee in assessing discipline (§ 19582, subd. (d)), and an employee dismissed for cause from state service usually is disqualified from taking subsequent civil service examinations (§ 18935, subd. (h); Cal.Admin.Code, tit. 2, § 211). On the other hand, an employee who resigns under section 19996.2 is eligible for reinstatement for an indefinite period. (§ 19140.) In fact, a “resignation ․ does not jeopardize any rights and privileges of the employee except those pertaining to the position from which he or she resigns.” (§ 19996.1.)
Without support in the record, plaintiff asserts that his resignation was recorded as a “resignation with fault” on his official employment record. He cites Zike where that label did appear in the personnel file of the employee. (Supra, 145 Cal.App.3d at p. 821, 193 Cal.Rptr. 766.) But Zike in no way suggests that the recorded entry was the legislatively authorized consequence of automatic resignation and we are aware of no such provision. In short, the mere fact of separation from public service does not infringe upon a liberty interest of constitutional magnitude. (See Williams v. Department of Water & Power (1982) 130 Cal.App.3d 677, 684–685, 181 Cal.Rptr. 868.)
Hence the rational basis, not the strict scrutiny, standard applies. Section 19996.2 may be invalidated as an arbitrary and capricious legislative measure only if it bears no reasonable or substantial relationship to a legitimate governmental end. (Gray v. Whitmore, supra, 17 Cal.App.3d at p. 22, 94 Cal.Rptr. 904; Goggin v. State Personnel Bd. (1984) 156 Cal.App.3d 96, 107, 202 Cal.Rptr. 587; and generally Williamson v. Lee Optical of Okla. (1955) 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563.) “Even with respect to vested property rights, a legislature generally has the power to impose new regulatory constraints on the way in which those rights are used, or to condition their continued retention on performance of certain affirmative duties. As long as the constraint or duty imposed is a reasonable restriction designed to further legitimate legislative objectives, the legislature acts within its powers in imposing such new constraints or duties.” (Locke, supra, 471 U.S. at p. 104, 105 S.Ct. at p. 1797, 85 L.Ed.2d at p. 82.)
Texaco, Inc. v. Short (1982) 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 addressed the constitutionality of an Indiana statute extinguishing unused mineral interests after 20 years unless the mineral owner “takes any one of three steps to establish his continuing interest in the property.” (Id., at p. 529, 102 S.Ct. at p. 792, 70 L.Ed.2d at p. 751.) These steps were actual production by the claimant or by another from whom the claimant collected rents or royalties, payment of taxes, or filing a written statement of claim in the county recorder's office. The statute did not require any specific notice be given to a mineral owner prior to a statutory lapse. However, it did provide that a surface owner to whom a mineral estate had reverted under the statute might give notice that the mineral interest had lapsed. The Supreme Court found that each of the actions statutorily required to avoid an abandonment furthered a legitimate state goal: “Certainly the State may encourage owners of mineral interests to develop the potential of those interests; similarly, the fiscal interest in collecting property taxes is manifest. The requirement that a mineral owner file a public statement of claim furthers both of these goals by facilitating the identification and location of mineral owners, from whom developers may acquire operating rights and from whom the county may collect taxes.” (Texaco, supra, 454 U.S. at p. 529, 102 S.Ct. at p. 792, 70 L.Ed.2d at p. 751.) The court upheld the substance of the legislation in no uncertain terms: “We have no doubt that, just as a State may create a property interest that is entitled to constitutional protection, the State has the power to condition the permanent retention of that property right on the performance of reasonable conditions that indicate a present intention to retain the interest.” (Id., at p. 526, 102 S.Ct. at p. 790, 70 L.Ed.2d at pp. 748–749.)
In United States v. Locke, supra, the Supreme Court again embraced the Texaco approach in rejecting a constitutional attack upon a federal statute which, without prior notice, conclusively extinguished unpatented mining claims of claimants who failed to comply with annual filing requirements. The goals underlying the annual filing requirement—“to rid federal lands of stale mining claims and to provide for centralized collection by federal land managers of comprehensive and up-to-date information on the status of recorded but unpatented mining claims”—were legitimate. (Locke, supra, 471 U.S. at p. 105–106, 105 S.Ct. at p. 1798, 85 L.Ed.2d at p. 83.) In addition, the statute was a “reasonable, if severe, means of furthering these goals.” Loss of their claims by failure to file provided a powerful motivation to claimants to comply with the filing requirements, while automatic invalidation for noncompliance enabled federal land managers to know with certainty whether a claim was currently valid. (Ibid.) Finally, the restriction attached to the continued retention of a mining claim imposed the most minimal of burdens on claimants in that “they must simply file a paper once a year indicating that ․ they intend to hold the claim.” (Ibid.; fn. omitted.)
While the property right at issue here obviously differs from mineral interests, the mode of analysis remains the same. In the capacity of an employer, the state has a legitimate and substantial economic and administrative interest in knowing with relative certainty whether and when it may fill the vacant positions of those employees who voluntarily absent themselves for long periods of time. (See Willson v. State Personnel Bd. (1980) 113 Cal.App.3d 312, 317, 169 Cal.Rptr. 823, cert. den. (1981) 454 U.S. 806, 102 S.Ct. 79, 70 L.Ed.2d 75.) As this court indicated in Willson (at p. 318, 169 Cal.Rptr. 823), providing for the automatic resignation of an employee who chooses not to keep in touch for five consecutive working days serves these personnel objectives in an expeditious and rational way. (Accord, Goggin v. State Personnel Bd., supra, 156 Cal.App.3d at p. 108, 202 Cal.Rptr. 587; compare Cleveland Bd. of Educ. v. Loudermill (1985) 470 U.S. 532, 535–536, 105 S.Ct. 1487, 1489–90, 84 L.Ed.2d 494, 499.) Modern-day means of communication provide employees ample opportunity within the statutory time limit to obtain the requisite leave or return to work. An employer has the right minimally to expect that an employee will either fulfill basic work obligations or explain to the employer why he cannot. On the face of the statute, there is no reason to believe that an employer will act arbitrarily in withholding leave to otherwise eligible employees. (Cf. Zike, supra, 145 Cal.App.3d at p. 821, 193 Cal.Rptr. 766.) We conclude, it is not unreasonable for the Legislature to condition a permanent employee's right to continued public employment on compliance with a narrowly defined obligation which imposes at worst only a minor burden on the employee but yields an important benefit to the state.
There remain for consideration the procedural aspects of section 19996.2. “In altering substantive rights through enactment of rules of general applicability, a legislature generally provides constitutionally adequate process simply by enacting the statute, publishing it, and, to the extent the statute regulates private conduct, affording those within the statute's reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements.” (Locke, supra, 471 U.S. at p. 108, 105 S.Ct. at p. 1800, 85 L.Ed.2d at p. 84, citing Texaco, supra, 454 U.S. at p. 532, 102 S.Ct. at p. 793, 70 L.Ed.2d at pp. 752–753.) As stated in Texaco: “It is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property.” (Id., at p. 532, 102 S.Ct. at p. 793, 70 L.Ed.2d at p. 752, fn. omitted.)
Section 19996.2 is a rule of general applicability in that it uniformly affects all public employees who fail to take affirmative steps to avoid its application. Since the statute has been on the books in virtually the same form for years, plaintiff has no basis for claiming he had inadequate opportunity to acquaint himself with its provisions. As in Texaco, “We refuse to displace hastily the judgment of the [L]egislature and to conclude that a legitimate exercise of state legislative power is [facially] invalid because citizens might not have been aware of the requirements of the law.” (Id., at p. 533, 102 S.Ct. at p. 794, 70 L.Ed.2d at p. 753, fn. omitted.)
Although plaintiff is presumed to have known that his absence without leave for five consecutive working days would be deemed by statute to constitute a resignation, the question remains whether the constitution requires notice and a hearing before the statute may take effect. We believe that the answer lies in the distinction between the “self-executing feature of the statute and a subsequent judicial determination” that a particular resignation did in fact occur. (See Id., at p. 533, 102 S.Ct. at p. 794, 70 L.Ed.2d at pp. 753–754.)
The statute does not expressly require notice of an impending separation but no property interest in employment is lost unless and until an employee brings himself within the statute by his own conduct. If an employee later disputes the allegation that his absence was without leave, that issue may be resolved despite lack of notice. Before it is conclusively determined that an automatic resignation has in fact occurred, the full panoply of procedural protections must be provided including notice reasonably calculated under the circumstances to reach the employee and an opportunity to be heard. (See Id., at p. 534, 102 S.Ct. at p. 794, 70 L.Ed.2d at p. 754.)
The government employer has the burden of proof in establishing the factual basis for applicability of the statute. (See Curia, supra, 126 Cal.App.3d at p. 1009, 179 Cal.Rptr. 476, discussed ante.) If the employer fails to sustain that burden, the conclusion necessarily follows that it acted improvidently in applying the automatic resignation statute. The matter is then indistinguishable from an ordinary disciplinary proceeding in which no grounds for discharge are shown and the employee is entitled to reinstatement and an award of back pay for the period of wrongful termination. (See Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774; Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 402, 134 Cal.Rptr. 206, 556 P.2d 306.) The prospect of an award of back pay is a strong motivation for the employer not to rely on section 19996.2 arbitrarily or capriciously.
On the other hand, if the employer sustains its burden of showing the absence was without leave, the post-separation procedures specified by section 19996.2 apply, shifting the burden of proof to the employee. “Reinstatement may be granted only if the employee makes a satisfactory explanation to the [DPA] as to the cause of his or her absence and his or her failure to obtain leave therefor, and the [DPA] 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.” (§ 19996.2.) Since reinstatement in this latter situation is a matter of administrative grace, the employee is not entitled to “․ be paid salary for the period of his or her absence or separation․” (§ 19996.2.)
The lack of specific notice prior to the effective date of separation does not render unconstitutional the self-executing feature of section 19996.2. As we stated in Willson, and reaffirm here, the statute itself gives “fair notice of exactly when, why and how an employee constructively resigns his position․” (Willson, supra, 113 Cal.App.3d at p. 317, 169 Cal.Rptr. 823; see also Armistead v. State Personnel Bd. (1981) 124 Cal.App.3d 61, 65, 177 Cal.Rptr. 7; accord, Escondido Imports, Inc. v. Department of Motor Vehicles (1983) 145 Cal.App.3d 834, 840, 193 Cal.Rptr. 772.) “The entire structure of our democratic government rests on the premise that the individual citizen is capable of informing himself about the particular policies that affect his destiny.” (Atkins v. Parker (1985) 472 U.S. 115, 132, 105 S.Ct. 2520, 2531, 86 L.Ed.2d 81, 94.) The Legislature therefore can presume that a state employee will inform himself of such important matters generally as job security and specifically of the precise conduct on his part which will automatically cause a severance of the employment relationship. Hence, like a statute of limitations, the statutory rule may operate without actual advance notice. (See Texaco, supra, 454 U.S. at pp. 536–537, 102 S.Ct. at pp. 796, 70 L.Ed.2d at pp. 755–756.)
Individual pre-separation notice is another way by which the constructive resignation provision could be administered at least in those cases where the employer is able to contact the absent employee. “But in the regulation of private property rights, the Constitution offers the courts no warrant to inquire into whether some other scheme might be more rational or desirable than the one chosen by [the Legislature]; as long as the legislative scheme is a rational way of reaching [the Legislature's] objectives, the efficacy of alternative routes is for [the Legislature] alone to consider.” (Locke, supra, 471 U.S. at p. 109, 105 S.Ct. at p. 1800, 85 L.Ed.2d at p. 85, emphasis in original.)
The automatic resignation statute affects an employee who contests its application only when the employer has proven the employee's self-abdicating conduct. Thereafter, burdening the employee to show justification for reinstatement and foreclosing him from back pay for the period of unauthorized absence does not affront principles of due process. Once the circumstances giving rise to an automatic resignation are adjudicated, the employee has no constitutional entitlement to any more process than that which the statute provides.
Plaintiff places great reliance on the decision in Cleveland Bd. of Educ. v. Loudermill, supra, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494. Loudermill reaffirmed earlier decisions indicating that due process minimally requires individual notice and an opportunity to respond before a public employee may be statutorily discharged for cause. (Id., at p. 542, 105 S.Ct. at p. 1493, 84 L.Ed.2d at p. 503.) In so holding, the Loudermill court observed: “While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job.” (Id., at p. 543, 105 S.Ct. at p. 1494, 84 L.Ed.2d at p. 504; emphasis added.)
With regard to disciplinary actions taken against permanent civil service employees, the concerns addressed in Loudermill have long been resolved in California by decisional law, statutes, and regulations. A decade ago the Supreme Court held in Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, that due process of law as guaranteed by both the United States and California Constitutions required written notice of the proposed discipline, the reasons therefor, and an opportunity to respond either orally or in writing prior to the effective date of the disciplinary action. (See also Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 150 Cal.Rptr. 129, 586 P.2d 162, applying Skelly in a discipline context short of dismissal.) The Skelly holding was later adopted as an administrative regulation. (Cal.Admin.Code, tit. 2, § 61, requiring at minimum five calendar days notice of disciplinary action.)
In our view Loudermill and Skelly do not apply to a nondisciplinary separation pursuant to section 19996.2. Texaco, Inc. v. Short, supra, makes clear that due process does not demand Loudermill-type, pre-termination processes where constitutionally adequate notice and opportunity to respond are built into the language of the statute itself. Texaco expressly distinguishes the line of cases which require individual notice and hearing before certain property interests can be terminated or impaired. (Supra, 454 U.S. at pp. 536–537, 102 S.Ct. at pp. 796, 70 L.Ed.2d at pp. 755–756.) Section 19996.2 meets all the standards laid down in Texaco for dispensing with prefatory actual notice.
In contrast to the narrow scope of the constructive resignation provision, the causes for which an employee may be removed or otherwise disciplined for cause in a punitive action pursuant to section 19570 et seq. are broadly defined. (§ 19572.) As we said in Willson: “This lack of specific definition and the resulting infinite variety of factual situations which may justify removal or discipline obviously give rise to problems of notice and essential fairness to an employee.” (Supra, 113 Cal.App.3d at p. 315, 169 Cal.Rptr. 823.) It is in this context that the courts insist upon the necessity of preremoval safeguards. (See id., at pp. 315–316, 169 Cal.Rptr. 823.)
Plaintiff relies on decisions criticizing Willson, wherein we upheld the constitutionality of the automatic resignation statute. But once the Texaco distinction between that which is self executing and that which must be resolved factually is recognized, the appellate-level conflict tends to evaporate.
In Willson, a permanent civil service employee who conceded five days absence without leave within the meaning of former section 19503 was automatically separated from his employment. Reinstatement was denied following a post-separation administrative hearing. Observing that the risk of erroneous deprivation was minimal in view of the clarity of the conduct proscribed by the statute, we stated: “․ conduct giving rise to automatic resignation is rarely, if ever, susceptible to factual dispute.” That dictum soon proved to be overly broad. (Supra, 113 Cal.App.3d at p. 317, 169 Cal.Rptr. 823.)
What we had described as a rare factual dispute was soon presented in Curia (supra, 126 Cal.App.3d 994, 179 Cal.Rptr. 476) where the employee did dispute the allegation of unauthorized absence. Although the court in Curia expressed misgivings about the expansive dictum in Willson, the decision simply held that constitutional due process requires the employer to bear the initial burden in the post-separation hearing to show an implied resignation by virtue of unauthorized absence. Our interpretation of section 19996.2 is entirely consistent with that conclusion. Zike (supra, 145 Cal.App.3d 817, 193 Cal.Rptr. 766) also involved a controversy over an employee's leave status. That controversy was conclusively decided at the administrative level in favor of the employee and the only issue before the appellate court was the employee's entitlement to back pay. The holding of the court awarding back pay fully accords with our interpretation of section 19996.2.
In Goggin v. State Personnel Bd., supra, 156 Cal.App.3d 105, 202 Cal.Rptr. 587, the court found that former section 19503 was constitutionally applied to a permanent employee where the employer “․ reasonably believed he had abandoned his job” and, though the employee disputed his absence without leave, the factual dispute was resolved adversely to the employee in an administrative hearing before the State Personnel Board. That conclusion does not conflict with our decision today.
Phillips v. State Personnel Bd. (1986) 184 Cal.App.3d 651, 229 Cal.Rptr. 502, a case from this court, involved an employee of a state university who was terminated pursuant to an automatic resignation provision in his collective bargaining agreement which for present purposes is textually indistinguishable from section 19996.2. Although the employee contested his automatic resignation, he was denied an administrative hearing. (At pp. 654–655, 229 Cal.Rptr. 502.) The Phillips court, concluding the employee had been unconstitutionally deprived of his employment without due process, ordered the trial court to issue a writ of mandate compelling the State Personnel Board to hear the matter. (Id., at pp. 660–661, 229 Cal.Rptr. 502.) The court stated: “At a minimum, prior to termination, the employee must be provided with notice of the intent to terminate, a statement of the reasons therefor and with some opportunity to respond either orally or in writing followed by a full posttermination hearing.” (Id., at p. 660, 229 Cal.Rptr. 502.) Despite its broad language, Phillips is distinguishable because it dealt with a contract provision rather than a statute which itself gives constitutionally adequate notice. Furthermore in Phillips the employee had been denied a hearing, posttermination or otherwise.
Harris v. State Personnel Bd. (1985) 170 Cal.App.3d 639, 216 Cal.Rptr. 274 stands alone as a decision irreconcilable with Willson. In Harris, a state university employee was deemed automatically to have resigned pursuant to Education Code section 89541, which is virtually identical in language to section 19996.2. In a post-separation hearing, the State Personnel Board granted reinstatement without back pay after finding the employee had a satisfactory explanation for his absence without leave. (Id., at p. 642, 216 Cal.Rptr. 274.) The appellate court remanded with directions that the Board reconsider the back pay request, holding that the failure to provide the employee with notice and opportunity to respond prior to separation “․ resulted in the deprivation of a fundamental property right․” (Id., at p. 645, 216 Cal.Rptr. 274.) This holding applied regardless of whether the employee served at the will of his employer (Id., at p. 644, 216 Cal.Rptr. 274) and even though he at all times conceded his absence was without leave (see dissenting opinion of Arguelles, J., at p. 647, 216 Cal.Rptr. 274). In our view, Harris is utterly lacking in persuasive force because no property interest subject to constitutional protection is created by employment “․ at the pleasure of the appointing authority.” (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 782–783, 97 Cal.Rptr. 657, 489 P.2d 537; see also Board of Regents v. Roth, supra, 408 U.S. at pp. 576–578, 92 S.Ct. at pp. 2708–09, 33 L.Ed.2d at pp. 560–561; cf. Williams v. County of Los Angeles (1978) 22 Cal.3d 731, 736, 150 Cal.Rptr. 475, 586 P.2d 956; Williams v. Department of Water & Power, supra, 130 Cal.App.3d at p. 682, 181 Cal.Rptr. 868.)
We conclude that the procedure contemplated by section 19996.2 satisfies procedural due process and was constitutionally applied to plaintiff. He was served with notice that he was terminated because he had been absent without leave for five consecutive days pursuant to the statute. On the basis of evidence presented by the employer, those facts were found true in a timely post-separation proceeding and were independently affirmed by the trial court. Substantial evidence in the administrative record supports that factual determination.
The judgment denying the petition for a writ of mandate is affirmed.
1. As pertinent here, Government Code section 19996.2 reads: “(a) Absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked. [¶] A permanent or probationary employee may within 90 days of the effective date of such separation, file a written request with the department for reinstatement; provided, that if the appointing power has notified the employee of his or her automatic resignation, any request for reinstatement must be made in writing and filed within 15 days of the service of notice of separation. Service of notice shall be made as provided in Section 18575 and is complete on mailing. Reinstatement may be granted only if the employee makes a satisfactory explanation to the department 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. [¶] An employee so reinstated shall not be paid salary for the period of his or her absence or separation or for any portion thereof.”“Department” as used in section 19996.2 means the Department of Personnel Administration. (Gov.Code, § 19815, subd. (a).) In this opinion we refer to the Department of Personnel Administration as the “DPA” and the Department of General Services, plaintiff's immediate employer, as the “Department.”
2. In his reply brief, plaintiff requests that the appellate record be augmented to include a reporter's transcript of the trial court's “lengthy oral opinion.” The request is denied as untimely. (People v. Preslie (1977) 70 Cal.App.3d 486, 490–492, 138 Cal.Rptr. 828.)
3. The only significant difference between former section 19503, now repealed, and recodified section 19996.2 is the transfer of jurisdiction over requests for reinstatement from the State Personnel Board to the DPA.
PUGLIA, Presiding Justice.
EVANS and BLEASE, JJ., concur.