Coleman v. Department of Personnel Administration

In Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, a state employee did not return to work after his leave for a nonindustrial disability had expired. The state sent him a notice that his absence had been deemed an "automatic resignation" under the terms of Government Code section 19996.2, subdivision (a) (AWOL statute). Government Code section 19996.2, subdivision (a), states in pertinent part: "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." The employee argued the AWOL statute was invalid because it did not provide him notice or an opportunity to be heard before the deemed resignation took place and it did not provide for any hearing at which the state was required to prove the facts underlying the constructive resignation. The court recognized that in some circumstances, the state may employ a scheme which deprives a person of a property right without any notice or opportunity to be heard. (Coleman, supra, 52 Cal.3d at pp. 1116-1117.) In particular, the court discussed mining statutes under which mineral rights automatically expire unless the owner meets certain conditions. (Ibid.) The court noted that the statutes had been upheld because they did not require any factual determinations by the state, but were instead self-executing and because the property owners were presumed to know their responsibilities under the mining respective laws. (Ibid.) The court, however, found that the mining cases did not control consideration of the AWOL statute. Rather, in finding that an employee subject to automatic resignation was entitled to some procedural protection, the court focused on the fact that before the AWOL statute could take effect the state actually had to decide to enforce it and had to determine that in fact the employee had been absent without leave. (Coleman, supra, 52 Cal.3d at pp. 1117-1118.) "Because of the need for the state to make factual determinations before it can invoke the AWOL statute, and because of its discretion in invoking the statute, there is state involvement. In this respect, the severing of the property interest under the AWOL statute differs from the automatic lapse of property interests under the statutes considered in the mining cases . There, the mining interests or mineral claims lapsed automatically upon the failure of the holders to perform certain conditions specified in the statutes. Here, on the other hand, the final determination of whether there is a resignation depends on decisions by the state. This factor, coupled with the direct impact that loss of employment has on an individual's livelihood and ability to meet the needs of basic sustenance, distinguishes the AWOL statute from the mining statutes. This distinction compels some meaningful mechanism of procedural protections before the state, as an employer, may treat a permanent or tenured employee's unauthorized absence as a resignation under the AWOL statute." (Coleman, supra, 52 Cal.3d at p 1118.) The Court concluded that--the terms of the statute notwithstanding--the employer actually exercised discretion in invoking the five-day absence statute: the state had waited "over a month" before treating Coleman's absence as a resignation. (Coleman, supra, 52 Cal.3d at p. 1118.) Because the employer exercised discretion in invoking the statute (ibid.) and because there might be factual issues requiring resolution (id. at p. 1121), and because of "the direct impact that loss of employment has on an individual's livelihood and ability to meet the need of basic sustenance" (id. at p. 1118), the court required a minimal level of due process protection before "the resignation goes in to effect." (Id. at p. 1122.) The court held that due process required the employer to "give notice to the employee of the facts supporting resignation and an opportunity to respond." (Id. at p. 1119.) The employee is not entitled to a "postseverance evidentiary hearing at which the state must prove the facts supporting the determination of resignation." (Ibid.) The California Supreme Court discussed the procedural protections that due process accords a public employee facing a discharge under Government Code section 19996.2, subdivision (a), which states that an employee's unauthorized five-day absence from work is an "'automatic resignation.'" Although the statute defines the absence as an "automatic resignation," the court reasoned that no absence becomes an actual resignation until "the state decides to invoke the statute." (Coleman, supra, 52 Cal.3d at p. 1117.) Subdivision (a) of Government Code section 19996.2 provides: "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." The court stated: "Before the state can invoke the statute, the state must make factual determinations; whether the employee has resigned under the statute turns on the presence of the factual prerequisites for statutory resignation, namely, an absence that is for five consecutive working days and is without leave." (Id. at p. 1118.) The court thus distinguished between the factual basis for an automatic resignation, and the state's decision to assert that the requisite factual basis existed for an automatic resignation. (Id. at pp. 1118-1123.) The court concluded: "Before the state can treat an . . . employee's unexcused absence . . . as a constructive resignation under the statute, it must give the employee written notice of the action contemplated. The notice must advise the employee of the facts supporting the state's invocation of the statute. If the employee challenges the accuracy of the state's factual basis, the state must, as soon as practicable, give the employee an opportunity to present his or her version of the facts. To assure 'the appearance and reality of fairness' in the decisionmaking process and to protect against a potential misuse of the statute, such an informal hearing must be before a neutral fact finder. Once the state has provided notice and an opportunity to respond, neither the federal nor the state Constitution requires anything more." (Coleman, supra, 52 Cal.3d at pp. 1122-1123.) In so concluding, the court rejected the contention that Government Code section 19996.2, subdivision (a), is constitutionally infirm because it does not expressly accord these protections to employees. (Coleman, supra, 52 Cal.3d at p. 1123.) The court stated: "When, as here, the 'constitutional weakness' lies primarily in 'what the statute has omitted, not in its express terms,' the statute may properly be invoked so long as due process requirements are met." (Ibid.) The Court concluded that an employee who was deemed to have resigned after an extended absence without leave was not entitled to backpay because "Coleman had not been reporting to work, and gave no indication he intended to return to work, when the state determined that he had resigned under the AWOL statute. Because he was not working, he lost no wages from the state's failure to give him prior notice or an opportunity to respond." (Id. at p. 1124.) The Coleman Court contrasted its facts to those in Barber v. State Personnel Board (1976) 18 Cal.3d 395, where "the employee had worked until being discharged, and presumably would have continued to do so." (Coleman, at p. 1124.)