Coleman v. DEPARTMENT OF PERSONNEL ADMININISTRATION

ARABIAN, J., Concurring and Dissenting.

I concur in the majority holding that due process is not offended by enabling the state conclusively to deem an unauthorized five-day absence to be an employee-initiated severance of employment. I must respectfully dissent, however, from the conclusion that either the federal or state Constitution requires individualized notice and an opportunity for the resigned employee to respond prior to invocation of Government Code section 19996.2, subdivision (a). 1 I am unconvinced, as was the Court of Appeal below, that these requirements *1137 will significantly reduce the possibility of an erroneous application of the statute.

“ ‘What is due process depends on circumstances. It varies with the subject matter and the necessities of the situation. [Citation.] Its content is a function of many variables, including the nature of the right affected . . . and the availability of prompt remedial measures.’ ” (Thorn v. Superior Court (1970) 1 Cal.3d 666, 673 [ 83 Cal.Rptr. 600 , 464 P.2d 56 ]; see Morrissey v. Brewer (1972) 408 U.S. 471, 481 [ 33 L.Ed.2d 484, 494 , 92 S.Ct. 2593 ].) In my view, the statutory scheme, including existing administrative grievance and review procedures, adequately protects a state employee’s interests when his or her unexcused absence is deemed an automatic resignation. To mandate that further process is due exceeds any justifiable constitutional expectations.

Among the “many variables” relevant to this situation are the substantiality of the state’s interest and the reasonable implementation thereof. However commendable in the abstract the view that “every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment” (Board of Regents v. Roth (1972) 408 U.S. 564, 588 [ 33 L.Ed.2d 548, 567 , 92 S.Ct. 2701 ], dis. opn. of Marshall, J.), the reality is we are living in an era of reduced expectations to which government employment has fallen a perennial victim. The State of California employs thousands of individuals to perform a multitude of vital functions and must do so each year with an ever-dwindling budget. 2 These fiscal constraints require the maximization of all available resources, including the productivity of its work force.

Section 19996.2(a) constitutes an appropriate legislative effort to assist the state in implementing its mandate to maintain the orderly operation of government. It is eminently rational and reasonable to construe an unapproved five-day absence to be a resignation by conduct equivalent in effect to a resignation by written or verbal communication. 3 Whether by abandonment or express withdrawal, such separation from service is, by definition, employee initiated. I find no basis in logic or constitutional imperative for *1138 requiring preseparation notice and opportunity to be heard when it assumes the form designated by section 19996.2(a).

Support for this conclusion derives as well from the essential nature of the statute itself, which delineates the substance of the property interest at issue, not the procedure for its acquisition, retention, or termination. (See Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 538 [ 84 L.Ed.2d 494, 501 , 105 S.Ct. 1487 ] [“Property interests . . . ‘are created and their dimensions are defined by ... an independent source such as state law . . . .’ [Citations.]”].) Even if the state has created an interest in continued employment (see § 19996; Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206 [ 124 Cal.Rptr. 14 , 539 P.2d 774 ]), it has concomitantly conditioned it on the employee’s continued conformance to specified, objectively ascertainable terms. 4 (See Texaco, Inc. v. Short (1982) 454 U.S. 516, 526 [ 70 L.Ed.2d 738, 748-749 , 102 S.Ct. 781 ].)

Authority to define a property interest according to state law necessarily contemplates the ability to restrict or qualify it as the Legislature reasonably deems appropriate to its purpose. (Texaco, Inc. v. Short, supra, 454 U.S. at p. 526 [70 L.Ed.2d at pp. 748-749]; see also, e.g., Mackey v. Montrym (1979) 443 U.S. 1 [ 61 L.Ed.2d 321 , 99 S.Ct. 2612 ] [state may summarily suspend driver’s license for refusal to take breath-analysis test]; Oregon State Penitentiary v. Hammer (1977) 434 U.S. 945 [ 54 L.Ed.2d 306 , 98 S.Ct. 469 ] [judgment vacated and remanded for reconsideration in light of Dixon v. Love (1977) 431 U.S. 105 [ 52 L.Ed.2d 172 , 97 S.Ct. 1723 ], after state court reversed termination of tenured employee discharged without pretermination hearing]; Dixon v. Love, supra, 431 U.S. 105 [state may automatically suspend or revoke driver’s license after specified number of traffic violations]; Weinberger v. Salfi (1975) 422 U.S. 749 [ 45 L.Ed.2d 522 , 95 S.Ct. 2457 ] [minimum duration of marriage may be condition precedent to widow’s and stepchildren’s entitlement to Social Security benefits].) Moreover, whether some other means of addressing the problem would have been “wiser or more practical” is not an appropriate judicial inquiry in evaluating this kind of legislative enactment, i.e., one which does not implicate fundamental rights or create invidious classifications. (Usery v. Turner Elkhorn Mining Co. (1976) 428 U.S. 1, 18-19 [ 49 L.Ed.2d 752, 767-769 , 96 S.Ct. 2882 ].)

The majority commensurately conclude section 19996.2(a) satisfies substantive imperatives. Nevertheless, they would traverse these legislative pre *1139 rogatives and judicially impose an additional complement of procedural due process. Prior notice and hearing, however, are neither the sine qua non nor a universal mandate of constitutionally adequate procedure. (See Dixon v. Love, supra, 431 U.S. at p. 115 [52 L.Ed.2d at pp. 181-182]; Mathews v. Eldridge (1976) 424 U.S. 319 [ 47 L.Ed.2d 18 , 96 S.Ct. 893 ]; see also United States v. Locke (1985) 471 U.S. 84, 108-109 [ 85 L.Ed.2d 64, 84-86 , 105 S.Ct. 1785 ]; Texaco, Inc. v. Short, supra, 454 U.S. at pp. 533-535 [70 L.Ed.2d at pp. 753-755]; see also Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 564 [ 150 Cal.Rptr. 129 , 586 P.2d 162 ]; Willson v. State Personnel Bd. (1980) 113 Cal.App.3d 312, 315-317 [ 169 Cal.Rptr. 823 ].)

In this case, the statute itself sufficiently alerts state employees that their employer has the authority to deem an unauthorized five-day absence an automatic resignation. I see no reason not to hold these individuals to the same expectation regarding the terms of their employment as a property owner “charged with knowledge of relevant statutory provisions affecting the control or disposition of such property.” (Texaco, Inc. v. Short, supra, 454 U.S. at p. 532 [ 70 L.Ed.2d at p. 752 ], fn. omitted; see also Atkins v. Parker (1985) 472 U.S. 115, 131 [ 86 L.Ed.2d 81, 94 , 105 S.Ct. 2520 ] [“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.”].) This law has served the state in one form or another since 1945 and may justifiably constitute a fixture of public employment. (See also Phillips v. State Personnel Bd. (1986) 184 Cal.App.3d 651 [ 229 Cal.Rptr. 502 ] [similar provision in Ed. Code, § 89541, as well as state university employee’s collective bargaining agreement]; Curia v. Civil Service Com. (1981) 126 Cal.App.3d 994 [ 179 Cal.Rptr. 476 ] [similar county civil service rule]; Baker v. Wadsworth (1970) 6 Cal.App.3d 253 [ 85 Cal.Rptr. 880 ] [similar local civil service rule].) No further notice should be necessary.

Available statutory and administrative review procedures also afford constitutionally adequate opportunity to be heard. The California Code of Regulations expressly provides for both formal and informal leaves of absence, detailing the conditions and circumstances under which they are to be granted. 5 (Cal. Code Regs., tit. 2, § 599.781 et seq.) If a request for leave otherwise within the scope of these provisions is denied, California Code of *1140 Regulations title 2, section 599.859, sets forth a grievance procedure for the purpose of resolving “a dispute of one or more employees involving the application or interpretation of a statute, regulation, policy or practice which falls under the jurisdiction of the department.”

Thus, an employee is both able to determine whether a particular leave request can be authorized and protest an assertedly improper denial of that request, all before the automatic resignation provisions of section 19996.2(a) become operative. Only the employee’s failure to pursue proper administrative adjudication of his or her claim creates the possibility of an unauthorized leave and the risk of a deemed resignation. In addition, both the California Code of Regulations and the statute itself provide for a postseparation hearing at which the employee may explain the circumstances of the absence and challenge the automatic resignation or accept it and seek reinstatement.

In my estimation, this range of procedures suffices “to minimize the risk of erroneous decisions [citations] . . . .” (Mackey v. Montrym, supra, 443 U.S. at p. 13 [ 61 L.Ed.2d at p. 331 ].) The majority conclude otherwise based upon a misidentification of the “erroneous decision” against which they seek to interpose due process protections. The state may invoke section 19996.2(a) only upon confirming the employee’s unauthorized absence for the designated period. As in Mackey v. Montrym, supra, the relevant determination rests on “objective facts either within the personal knowledge of an impartial government official or readily ascertainable by him.” ( 443 U.S. at p. 13 [ 61 L.Ed.2d at p. 331 ].) This is not a discretionary assessment subject to arbitrary application; nothing in the statute itself nor on the record before us suggests to the contrary.

The possibility that authorization may have been improperly withheld is an antecedent and collateral question, which can and should be resolved by the employee through available administrative procedures before an absence exceeds five days. Furthermore, through either the postseparation hearing expressly afforded by section 19996.2(a) or the administrative appeal process, an employee may establish a mistaken understanding as to authorization upon which to premise a claim of estoppel or waiver (and presumably avoid the interim loss of pay). (See United States v. Locke, supra, 471 U.S. at pp. 110-112 [85 L.Ed.2d at pp. 86-88], cone. opn. of O’Connor, J; see also Zike v. State Personnel Bd. (1983) 145 Cal.App.3d 817 [ 193 Cal.Rptr. 766 ].) However, such contentions are as well collateral to the objective determination of whether the record on its face shows facts supporting a deemed automatic resignation. (Cf. Mackey v. Montrym, supra, 443 U.S. at pp. 14-15 [61 L.Ed.2d at pp. 332-333] [rejecting driver’s attempt to avoid automatic suspension of license for refusal to take breath-analysis test because constitutional objection was based on independent question of law].)

*1141 In taking favorable measure of this statute’s constitutional integrity, I am persuaded by the following observations of the United States Supreme Court: “[T]he Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectible ‘property’ or ‘liberty’ interest be so comprehensive as to preclude any possibility of error. The Due Process Clause simply does not mandate that all governmental decisionmaking comply with standards that assure perfect, error-free determinations. [Citation.]” (Mackey v. Montrym, supra, 443 U.S. at p. 13 [ 61 L.Ed.2d at p. 331 ].) “[E]ven when disputes as to the historical facts do arise, we are not persuaded that the risk of error inherent in the statute’s initial reliance on the representations of the reporting officer is so substantial in itself as to require that the Commonwealth stay its hand pending the outcome of any evidentiary hearing necessary to resolve questions of credibility or conflicts in the evidence.” (Id., at p. 15 [ 61 L.Ed.2d at p. 333 ].)

As this case illustrates, the invocation of section 19996.2(a) depends upon a determination of objectively verifiable historical facts. The undisputed record establishes that employee Coleman, a technician with one and one-half years’ state service, made no attempt to obtain leave authorization following the termination of his nonindustrial disability benefits. After a full month, the state deemed his unexcused absence from work an automatic resignation. Coleman was denied reinstatement when he failed to substantiate at his postseparation hearing that he had a valid reason for not returning or that he was “ready, able, and willing” to resume his duties. On these facts, the majority find a misstep in the minuet of management. I do not.

All further statutory references are to the Government Code unless otherwise specified. For convenience, Government Code section 19996.2, subdivision (a), will be referred to as section 19996.2(a).

In fiscal 1989-1990, the State of California employed an estimated 260,434 persons in various capacities. (Cal. Statistical Abstract (1990) table C-5, p. 23.)

When viewed from this perspective, the statute clearly draws a reasoned distinction between this type of situation and one in which an employee would be subject to discipline for chronic absenteeism (§ 19572, subd. (j)): Unauthorized absence for a full work week raises a logical inference the individual has abandoned his or her employment, whereas absence even for a longer total time but fewer consecutive days may not. Moreover, the import of the statutory scheme is that a separation from state employment pursuant to section 19996.2(a) is not a termination for cause because the Legislature has chosen to define it as a type of resignation, which I conclude is within its constitutional prerogative and authority. (See fn. 4, post.)

The definitional function of section 19996.2(a) serves to complement and give dimension to the language of section 19996, which in part states: “The tenure of every permanent employee holding a position is during good behavior. Any such employee may be . . . permanently separated through resignation or removal for cause . . . .”

For example, California Code of Regulations, title 2, section 599.785, provides: “Informal Leave of Absence (Dock), [fl] The appointing power may grant an informal leave of absence without pay for a period not to exceed 11 working days in a 22-day pay period or 10 working days in a 21-day pay period or 11 consecutive working days between pay periods. A holiday is counted as a working day. The appointing power shall not grant paid absences to break the continuity of a leave of absence without pay.”