DocketNumber： S004129
Citation Numbers： 805 P.2d 300, 52 Cal. 3d 1102, 278 Cal. Rptr. 346, 91 Daily Journal DAR 2323, 6 I.E.R. Cas. (BNA) 365, 91 Cal. Daily Op. Serv. 1400, 1991 Cal. LEXIS 983
Judges： Kennard, Broussard, Arabian
Filed Date： 2/25/1991
Status： Precedential
Modified Date： 11/2/2024
Opinion
The abstract words of the due process clause of the United States Constitution have engendered many controversies; but it is beyond dispute that the government may not deprive an individual of life, liberty, or property without notice and opportunity to respond, in a manner “appropriate to the nature of the case.” (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 [94 L.Ed. 865, 872-873, 70 S.Ct. 652].)
The due process issue we address here is what procedural safeguards, if any, the state must afford a permanent civil service employee when it exercises its statutory authority to treat the employee’s unexcused absence from state employment for five consecutive working days as an “automatic resignation.” The statutory authority in question is provided by subdivision (a) of Government Code
We base our resolution of this issue on our analyses of the AWOL statute itself and of pertinent decisions of the United States Supreme Court, and on our assessments of the employee’s private interest in retaining employment and of the public’s interest in promptly removing from the state payroll those employees who are absent without leave. We conclude that before the state invokes the AWOL statute, due process requires that it provide the employee with notice and an opportunity to respond. But because a constructive resignation under the AWOL statute differs significantly from a dismissal for cause, we also conclude that due process does not require that the employee be given a postseverance evidentiary hearing.
Background
On April 18, 1984, Stanley Coleman, Jr., who had been employed by the State of California as a telecommunications assistant in the Department of General Services for approximately one and one-half years, became ill and fainted after an argument with his supervisor. The next day, Coleman sought medical treatment.
For the next two months, Coleman received nonindustrial disability benefits (§ 19878 et seq.). On June 15, 1984, the Employment Development Department (EDD) terminated the benefits; Coleman, however, did not return to work.
On July 3, 1984, Coleman told his supervisor over the telephone that he had received EDO’s notice of termination of benefits, that he thought it was a mistake, and that he would discuss the matter with EDD. On July 18, 1984, when Coleman still had not returned to work, his supervisor tried to reach him by telephone, without success. The next day, the Department of General Services notified Coleman in writing that under section 19996.2(a)
Coleman requested reinstatement. Section 19996.2(a) allows reinstatement if the employee gives “a satisfactory explanation” for the unapproved absence and there is an administrative finding that the employee “is ready, able, and willing to resume the discharge of the duties of his or her position.” At the administrative hearing on his reinstatement request, Coleman testified that he had not gone back to work because he thought he would continue to receive disability benefits.
The hearing officer denied Coleman’s request for reinstatement. He rejected Coleman’s version of the facts, finding that Coleman did not have a valid excuse for not returning to work and that Coleman had failed to make the requisite showing he was “ready, able, and willing” to resume his duties. The Department of Personnel Administration (hereafter Department) adopted that ruling.
Coleman filed a petition for administrative mandamus in superior court. He challenged on due process grounds the constitutionality of the AWOL statute’s “automatic resignation” provision, and sought reversal of the Department’s order denying him reinstatement, asserting that the order was unsupported by the weight of the evidence. The superior court rejected the claims, and denied the petition.
Coleman sought review in the Court of Appeal, which affirmed the judgment of the superior court. The Court of Appeal rejected Coleman’s procedural due process challenge to the AWOL statute, holding that due process does not require the state to provide an employee with notice or an opportunity to be heard before treating the employee’s unauthorized absence for five consecutive working days as an implied or constructive resignation. We granted Coleman’s petition for review.
Discussion
A. Section 19996.2(a)
Relying on Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532 [84 L.Ed.2d 494, 105 S.Ct. 1487] and Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, Coleman contends that an “automatic resignation” under section 19996.2(a), based on an unauthorized absence of five consecutive working days, is no different from, and thus requires the same procedural protections as, a dismissal for cause. A brief overview of the relevant
Section 19996.2(a), the AWOL statute, provides that an employee’s “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.”
As mentioned earlier, section 19996.2(a) allows for reinstatement. A grant of reinstatement, however, does not set aside the resignation. Rather, a reinstated employee is restored to his or her former position with the same rights of tenure and seniority, but is not entitled to any salary “for the period of his or her absence or separation or for any portion thereof.” (§ 19996.2(a); compare § 19996.1, subd. (a) [providing that a resignation obtained under duress is to be “set aside” and permitting an award of back wages].)
The AWOL statute on its face does not provide for notice or an opportunity for the employee to be heard before the deemed resignation takes eifect, nor does it provide for any hearing at which the state must prove the facts underlying the constructive resignation. Coleman contends that the lack of these procedural protections violates due process and is therefore unconstitutional. As he notes, an employee dismissed for cause is constitutionally entitled to these protections. (See Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 215; Kirkpatrick v. Civil Service Com. (1978) 77 Cal.App.3d 940, 945 [144 Cal.Rptr. 51].)
The Fourteenth Amendment to the United States Constitution “places procedural constraints on the actions of government that work a deprivation of interests enjoying the stature of ‘property’ within the meaning of the Due Process Clause.” (Memphis Light, Gas & Water Div. v. Craft (1978) 436 U.S. 1, 9 [56 L.Ed.2d 30, 38-39, 98 S.Ct. 1554]; accord Cleveland Board of Education v. Loudermill, supra, 470 U.S. 532, 538 [84 L.Ed.2d 494, 501]; Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 276 [146 Cal.Rptr. 208, 578 P.2d 925].) The California Constitution contains a similar provision. (Cal. Const., art. I, § 7, subd. (a); Garfinkle v. Superior Court, supra, at p. 281.)
Property interests that are subject to due process protections are not created by the federal Constitution. “Rather, they are created, and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .” (Board of Regents v. Roth (1972) 408 U.S. 564, 577 [33 L.Ed.2d 548, 560-561, 92 S.Ct. 2701]; Paul v. Davis (1976) 424 U.S. 693, 709 [47 L.Ed.2d 405, 418-419, 96 S.Ct. 1155].) California’s statutory scheme regulating employment in civil service “confers upon an individual who achieves the status of ‘permanent employee’ a property interest in the continuation of his [or her] employment which is protected by due process.” (Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 206.)
Only those actions that may fairly be attributed to the state, however, are subject to due process protections. (Shelley v. Kraemer (1948) 334 U.S. 1, 13 [92 L.Ed. 1161, 1180-1181, 68 S.Ct. 836, 3 A.L.R.2d 441]; Garfinkle v. Superior Court, supra, 21 Cal.3d 268, 281-282; Martin v. Heady (1980) 103 Cal.App.3d 580, 586 [163 Cal.Rptr. 117].) Accordingly, constructive resignation under the AWOL statute implicates procedural due process only if, in invoking the statute, the state acts to effect a property deprivation. (Board of Regents v. Roth, supra, 408 U.S. 564, 570, fn. 7 [33 L.Ed.2d 548, 556], citing Bell v. Burson (1971) 402 U.S. 535, 542 [29 L.Ed.2d 90, 96, 91 S.Ct. 1586]; Garfinkle v. Superior Court, supra, at pp. 281-282.)
In this case, the Court of Appeal upheld the constitutionality of the AWOL statute’s “automatic resignation” provision. It reasoned that, upon occurrence of the conditions specified in the statute, Coleman’s vested property interest in state employment ceased to exist as a result of his own conduct. Two earlier cases from the same appellate district (Willson v. State Personnel Bd. (1980) 113 Cal.App.3d 312 [169 Cal.Rptr. 823]; Armistead v.
Other courts, however, have equated resignation under the AWOL statute with a dismissal for cause, and thus would require the full panoply of procedural protections applicable to such dismissals. (See Phillips v. State Personnel Bd. (1986) 184 Cal.App.3d 651, 658 [229 Cal.Rptr. 502]; Zike v. State Personnel Bd., supra, 145 Cal.App.3d 817, 823-824; see also Curia v. Civil Service Com. (1981) 126 Cal.App.3d 994, 1008-1009 [179 Cal Rptr. 476]; see also Allen v. Department of Personnel Administration (1987) 193 Cal.App.3d 355, 361 [238 Cal.Rptr. 317].)
A determination of what process is due here depends upon whether the separation from state employment effected by the AWOL statute’s “automatic resignation” provision is a deprivation of property by the state, or whether it is merely a lapse of an interest in property upon the occurrence of conditions specified in the statute. Three decisions of the United States Supreme Court assist in our resolution of this issue. They are Cleveland Board of Education v. Loudermill, supra, 470 U.S. 532 (hereafter Loudermill); Texaco, Inc. v. Short (1982) 454 U.S. 516 [70 L.Ed.2d 738, 102 S.Ct. 781] (hereafter Texaco); and United States v. Locke (1985) 471 U.S. 84 [85 L.Ed.2d 64, 105 S.Ct. 1785] (hereafter Locke).
In Loudermill, the high court considered the due process implications of the summary dismissals of two Ohio civil service employees, Loudermill and Donnelly, who under Ohio law held their positions during “ ‘good behavior and efficient service’ ” and could be dismissed only for “ ‘misfeasance, malfeasance, or nonfeasance in office.’ ” (470 U.S. at pp. 538-539 [84 L.Ed.2d at p. 501].) Loudermill, a security guard, was terminated for falsely stating on his job application that he had never been convicted of a felony, while Donnelly, a bus mechanic, was dismissed for failing an eye examination. (Id. at pp. 535-536 [84 L.Ed.2d at pp. 499-500].) Ohio law provided only for a posttermination hearing. (Id. at p. 545 [84 L.Ed.2d at p. 506].) The United States Supreme Court concluded that, as tenured civil service employees with property interests in continued employment, Loudermill and Donnelly were constitutionally entitled to notice and an opportunity to respond before they were discharged, as well as to the posttermination administrative procedure provided under Ohio law. (Id. at pp. 547-548 [84 L.Ed.2d at pp. 507-508].) The court held that Ohio’s failure to afford pretermination protections deprived the discharged employees of due process of law. (Ibid. [84 L.Ed.2d at pp. 507-508].)
In so holding, the high court rejected the contention made by one of the employing agencies that there was no due process violation because the
The Loudermill court disagreed. Repudiating the plurality position in Arnett v. Kennedy, supra, 416 U.S. 134, the high court said: “The right to due process ‘is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.’ ” (Loudermill, supra, 470 U.S. 532, 541 [84 L.Ed.2d 494, 503].)
Thus, under Loudermill, the government cannot limit a public employee’s right to due process simply by providing a statutory scheme that sets forth specific procedures for a termination proceeding when those procedures fall short of federal constitutional requirements.
Unlike the Ohio statutory scheme considered in Loudermill, the AWOL statute at issue here does not prescribe any procedures that the state must follow before it can terminate an employee. The AWOL statute merely defines when an unauthorized absence constitutes an “automatic resignation.”
As explained previously, a property right in public employment is a creation of state law. (Board of Regents v. Roth, supra, 408 U.S. 564, 577 [33 L.Ed.2d 548, 560-561].) The statutory terms that define a particular right to employment determine its dimensions and scope. (Id. at p. 578 [33 L.Ed.2d at pp. 561-562].) Here, those terms provide for permanent separation from state employment in either of two ways: resignation or removal for cause. (§ 19996.)
By resigning, the employee relinquishes entitlement to state employment. (See, e.g., Bidwell v. State of California ex rel. Dept. of Youth Authority, supra, 164 Cal.App.3d 213; § 19996.1.) Through manifestation of the intent to resign, the employee “has voluntarily surrendered the property interest upon whose existence the procedural rights depend.” (Stone v. University of Maryland Medical System (4th Cir. 1988) 855 F.2d 167, 174, fn. 7.) In that situation, the state does not act to deprive the employee of property and therefore it has no duty to afford the employee any procedural protections either before or after the resignation takes effect. (Ibid.)
Under the AWOL statute, when an employee is absent without leave for five consecutive working days, it is the employee who severs the employment relationship, not the state. Because the statute provides for the automatic extinguishment of a property interest upon the occurrence of conditions within the exclusive control of the holder of that interest, it resembles statutes addressed in two other decisions of the United States Supreme Court.
In both Texaco, supra, 454 U.S. 516, and Locke, supra, 471 U.S. 84, the United States Supreme Court upheld the constitutionality of statutes providing for the automatic extinguishment of a vested property right upon satisfaction of certain statutory conditions. Although both cases involved property interests in mineral rights, rather than property interests in employment rights, the decisions are pertinent here because they concerned statutes providing, as here, for the automatic cessation of a vested property right upon the occurrence of statutorily specified conditions.
Texaco involved an Indiana statute that automatically extinguished mineral interests after twenty years unless the holder of the interest undertook one of three steps to assert continuing dominion over the property. Upon failure to perform any one of these acts, the mineral interest lapsed and reverted to the surface owner. The statute did not require notice to the mineral owner before the statutory lapse. (Texaco, supra, 454 U.S. at pp. 518, 520 [70 L.Ed.2d at pp. 743-745].)
In affirming the state’s right to enact legislation that conditioned the retention of a vested property right on some affirmative act, the United States Supreme Court said in Texaco: “Through its Dormant Mineral Interests Act. . . the State has declared that this property interest is of less than
Although the statute in Texaco did not require notice to the holder of the mineral interest of the impending lapse of those interests, the United States Supreme Court held there was no violation of due process because the holder was deemed to have knowledge of the law. (Texaco, supra, 454 U.S. 516, 533 [70 L.Ed.2d 738, 753-754].) The court distinguished the “self-executing feature of the statute,” which caused the mineral interest to lapse upon the mineral owner’s failure to perform one of three specified acts, from a “subsequent judicial determination” in a quiet title action to determine conclusively that the mineral interest had reverted to the surface owner, noting that in the latter case the right to notice and a hearing was undisputed. (Texaco, supra, 454 U.S. 516, 533-536 [70 L.Ed.2d 738, 753-756], citing Mullane v. Central Hanover Tr. Co., supra, 339 U.S. 306, 314 [94 L.Ed. 865, 873].)
Three years later, in Locke, supra, 471 U.S. 84, the high court rejected a constitutional challenge to a federal statute that deemed the failure by a mining claimant to comply with annual filing requirements to “conclusively” establish abandonment of the mining claim. (Id. at p. 89 [85 L.Ed.2d at pp. 72-73].) The court determined that individualized notice of the filing deadline to claim holders was unnecessary. The court reasoned that the statute’s three-year grace period provided sufficient time for individuals to learn about the law, and therefore there was no violation of procedural due process. (Id. at pp. 108-110 [85 L.Ed.2d at pp. 84-85].) The court did note that on “adjudicative” issues that were subject to dispute—for instance, whether the requisite filings actually had been made—the statute did provide for notice and hearing. (Id. at p. 109, fn. 17 [85 L.Ed.2d at p. 85].)
In this case, the Department relies on Texaco and Locke in arguing that under the AWOL statute a civil service employee’s property interest in government employment simply lapses upon the occurrence of the specified statutory conditions (absence for five consecutive working days and without leave) and that because the lapse is automatic as the result of its self-executing nature, the extinguishment of the employee’s property interest does not violate due process.
Coleman, on the other hand, contends that Loudermill controls his case and that the constructive resignation provision of the AWOL statute is
The issue thus is whether under Loudermill (supra, 470 U.S. 532) the “automatic resignation” provision of the AWOL statute at issue here is an impermissible legislative limitation of procedural protections, or whether, as in Texaco, it is a self-executing lapse of a property interest upon the owner’s failure to perform a “reasonable condition[] that indicate[s] a present intention to retain the interest.” (Texaco, supra, 454 U.S. 516, 526 [70 L.Ed.2d 738, 749].)
As we have seen, under Loudermill the procedures used to dismiss a public employee must comport with federal constitutional requirements. (Loudermill, supra, 470 U.S. at p. 541 [84 L.Ed.2d at p. 503].) It is the state, however, that defines the substantive nature of the property interest (Board of Regents v. Roth, supra, 408 U.S. at p. 577 [33 L.Ed.2d at pp. 560-561]), including conditions for its lapse (Texaco, supra, 454 U.S. 516, 526 [70 L.Ed.2d 738, 749]). As the high court observed in Texaco, “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.” (Texaco, supra, at p. 526 [70 L.Ed.2d at pp. 748-749].)
Here, under the AWOL statute the employee’s property right, that is, the right to continued government employment, ends upon the occurrence of the conditions specified in the statute. In this respect, the AWOL statute resembles the “automatic lapse” statutes that the United States Supreme Court considered in Texaco and Locke, which provided for the extinguishment of mineral interests or mining claims upon the holders’ failure to perform some affirmative act to retain those interests or claims.
Unlike the statutes in Texaco and Locke, however, the AWOL statute is not self-executing. Although the AWOL statute defines an unauthorized absence of five consecutive working days as an “automatic resignation,” the decision whether to invoke the statute’s resignation provision rests with the state. Therefore, the absence without leave becomes an automatic or constructive resignation only if the state decides to invoke the statute.
In addition, before it can invoke the AWOL statute, the state must make factual determinations; whether the employee has resigned under the AWOL 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.
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 Texaco (supra, 454 U.S. 516) and Locke (supra, 471 U.S. 84). 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 statutes considered in Texaco and Locke. 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.
The remaining question is what process is due. “[N]ot all situations calling for procedural safeguards call for the same kind of procedure.” (Morrissey v. Brewer (1974) 408 U.S. 471, 481 [33 L.Ed.2d 484, 494, 92 S.Ct. 2593].)
The nature of the property deprivation itself determines what procedural protections the federal Constitution requires. (Mathews v. Eldridge (1976) 424 U.S. 319, 334-335 [47 L.Ed.2d 18, 32-36, 96 S.Ct. 893].) A resolution of what constitutional protections are appropriate in a particular context de
In the discussion that follows, we shall examine each of these three factors, noting in particular the similarities and dissimilarities between a resignation under the AWOL statute and a discharge for cause. From this examination, we shall conclude that, as in the case of a discharge for cause (see Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 215), the state must, before treating an employee’s unexcused absence as a resignation under the AWOL statute, give notice to the employee of the facts supporting resignation and an opportunity to respond. But we shall also conclude that, unlike an employee who is discharged for cause (see Kirkpatrick v. Civil Service Com., supra, 77 Cal.App.3d 940, 945; § 19578; see also Skelly v. State Personnel Bd., supra, at p. 203, fn. 17), an employee who has been determined to have resigned under the AWOL statute does not have a due process right to a postseverance evidentiary hearing at which the state must prove the facts supporting the determination of resignation.
In a resignation under the AWOL statute, the private interest is the tenured or permanent employee’s vested right to the continuation of state employment, the very same interest at stake in a discharge for cause. Because the private interest in both instances is the same, some Courts of Appeal have held that the state must provide the same procedural protections to an employee who is deemed to have constructively resigned under the AWOL statute as are required when it institutes a dismissal for cause. (Phillips v. State Personnel Bd., supra, 184 Cal.App.3d 651, 660; Zike v. State Personnel Bd., supra, 145 Cal.App.3d 817, 823; Harris v. State Personnel Bd. (1985) 170 Cal.App.3d 639, 645-646 [216 Cal.Rptr. 274]; see also Allen v. Department of Personnel Administration, supra, 193 Cal.App.3d 355, 361.) These courts have failed to recognize that although the private interest is the same in the two situations, the manner in which it is affected differs substantially.
When loss of the vested right to continued state employment results from a disciplinary dismissal, the attendant stigma of the discharge may threaten the affected employee’s future livelihood. For instance, a disciplinary dis
While a disciplinary dismissal for “inexcusable absence without leave” (§ 19572) facially resembles the basis underlying a constructive resignation under the AWOL statute (§ 19996.2(a)), there is an important difference. Unlike a disciplinary discharge, resignation from state employment does not seriously damage an employee’s standing and associations in the community, nor does it foreclose other employment opportunities. (See Paul v. Davis, supra, 424 U.S. 693, 709-710 [47 L.Ed.2d 405, 418-419], citing Board of Regents v. Roth, supra, 408 U.S. 564, 573 [33 L.Ed.2d 548, 558-559].) A resignation, therefore, carries no stigma.
In addition, a resignation under the AWOL statute “does not jeopardize any rights or privileges of the employee except those pertaining to the position from which he or she resigns.” (§ 19996.1.) As the Department acknowledged at oral argument, such a resignation does not affect entitlement to payment for accrued vacation time or retention of vested pension rights.
There is one other significant distinction between a dismissal for disciplinary reasons and a constructive resignation under the AWOL statute: the manner in which it affects an employee’s right to future state employment. An employee who has been discharged for cause can thereafter be disqualified from taking a civil service examination. (§ 18935, subd. (h).) By con
These marked differences between a resignation under the AWOL statute and a disciplinary dismissal militate against imposing identical procedural protections in each instance. (See Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 563, fn. 6 [150 Cal.Rptr. 129, 586 P.2d 162] [although the loss of the property right may be the same, dissimilarities in the reason for that loss dictate against establishing “ ‘inflexible procedures universally applicable to every imaginable situation’ ”], quoting Board of Curators, Univ. of Mo. v. Horowitz (1978) 435 U.S. 78, 86 [55 L.Ed.2d 124, 132-133, 98 S.Ct. 948] [the significant difference between a student’s removal from a public college for academic failure and removal for violation of a school rule with its attendant overtones of misconduct “calls for far less stringent procedural requirements in the case of an academic dismissal”].)
We now consider the second factor of the test enunciated in Mathews v. Eldridge, supra, 424 U.S. 319, 335 [47 L.Ed.2d 18, 33-34]: the risk of erroneous deprivation of the private interest through the procedures used. Previously, we noted that before invoking the AWOL statute, the state need only determine whether the employee had been absent for five consecutive working days and whether that absence had been without leave. These relatively simple determinations generally can be made from personnel records. In sharp contrast, a disciplinary discharge often involves complex facts and may require a sensitive evaluation of the nature and seriousness of the misconduct and whether it warrants the grave sanction of dismissal.
In addition to notice, the employee must have an opportunity to challenge the state’s factual determinations before an “impartial and disinterested” decision maker (Marshall v. Jerrico (1980) 446 U.S. 238, 242 [64 L.Ed.2d 182, 188, 100 S.Ct. 1610]). This will satisfy the “two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process.” (Ibid. [64 L.Ed.2d 182, 188]; see also Mackey v. Montrym (1979) 443 U.S. 1, 13 [61 L.Ed.2d 321, 331, 99 S.Ct. 2612] [“the Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectible ‘property’ . . . interest be so comprehensive as to preclude any possibility of error”].)
Finally, we consider the third factor of the test in Mathews v. Eldridge, supra, 424 U.S. 319, 335 [47 L.Ed.2d 18, 33-34]: the government’s interest. The state has an interest in promptly removing from the state payroll those employees who have been absent without leave for five consecutive working days in order to make jobs available and to maximize its productive workforce. But the state also “shares the employee’s interest in avoiding . . . erroneous decisions.” (Loudermill, supra, 470 U.S. 532, 544 [84 L.Ed.2d 494, 505].) To require the state to give an employee prior notice and an opportunity to respond within a few days places no undue administrative or financial burden on the state. As noted earlier, before invoking the AWOL statute, the state necessarily had to determine that the absence was for the statutorily specified period and was without leave. Once the state has made these preliminary determinations, the requirements of written notice to the employee and an opportunity for a prompt response impose little additional burden on the state.
For the reasons discussed above, we conclude that before the state can treat a permanent or tenured employee’s unexcused absence for five consecutive working days as a constructive resignation under the AWOL 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 AWOL statute. If the employee challenges the accuracy of the state’s factual basis, the state must, as soon as practicable, give the employee
This conclusion differs from that reached in the two concurring and dissenting opinions, one of which would impose all of the procedural protections available in a disciplinary dismissal, while the other would provide no procedural protections whatsoever. Our holding, on the other hand, both implements the legislative mandate that the conduct specified in the AWOL statute constitutes a resignation by the employee, and protects against factually unwarranted invocations of the statute.
We now turn to Coleman’s contention that the AWOL statute’s lack of procedural protections renders it void and unenforceable. 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. (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 403 [134 Cal.Rptr. 206, 556 P.2d 306].) In this case, as discussed earlier, those requirements are notice to the employee and an opportunity for the employee to respond before the separation from state service takes effect. After the employee has been given a chance to challenge the state’s factual determinations before an impartial and disinterested decision maker, and the facts support the state’s findings, the automatic resignation can properly take effect.
Coleman also argues that, because his employment relationship was severed without the necessary procedural protections, he is entitled to reinstatement. Not so.
In Kristal v. State Personnel Bd. (1975) 50 Cal.App.3d 230 [123 Cal.Rptr. 512], which involved a discharge for cause, the Court of Appeal held that the failure to provide the employee with pretermination notice and an opportunity to be heard did not entitle the employee to reinstatement. The
Here, although the state did not give Coleman prior notice or an opportunity to present his version of the facts until the reinstatement hearing, which occurred after the statutory resignation had taken effect, the only prejudice to Coleman was the denial of his right to those procedural protections before the severance of employment took effect. Coleman’s unauthorized absence from work for more than a month amply supports the state’s decision to invoke the “automatic resignation” provision of section 19996.2(a). Therefore, he is not entitled to reinstatement.
Nor does Coleman’s separation from state service under the AWOL statute without notice and an opportunity to respond warrant an award of back wages. In this regard, we distinguish this case from our decision in Barber v. State Personnel Bd., supra, 18 Cal.3d at pages 402-403.
In Barber v. State Personnel Bd., supra, 18 Cal.3d at page 403, we held that the state violated due process when it discharged an employee for disciplinary reasons without prior notice or an opportunity to respond. As a result, we determined that the employee was entitled to back wages from the date of dismissal until the date the State Personnel Board, after an evidentiary hearing, upheld the discharge. But the employee had worked until being discharged, and presumably would have continued to do so had he not been discharged, and thus had lost salary as a result of the due process violation. Here, 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. He therefore is not entitled to an award of back salary.
C. Coleman’s Additional Contentions
Coleman contends that the AWOL statute violates substantive due process. We disagree.
Here, the AWOL statute’s constructive resignation provision relates to a proper legislative goal. By linking a civil service employee’s right to continued public employment to the state’s legitimate expectation that the employee appear for work as scheduled, the statute furthers the basic premise of any employment relationship. Moreover, Coleman has not demonstrated that the legislation is unreasonable, arbitrary, or capricious in treating an absence for five consecutive working days as a resignation from state employment. Therefore, we reject Coleman’s substantive due process challenge to the AWOL statute.
Coleman also argues that in treating his unauthorized absence as a resignation from employment under the AWOL statute, the state violated his constitutional right to equal protection by its failure to afford those procedural rights that apply to a disciplinary dismissal under section 19572, based on an “inexcusable absence without leave.” For reasons that follow, we reject this contention.
The constitutional guarantee of equal protection compels like treatment for persons similarly situated. (People v. Marshall (1990) 50 Cal.3d 907, 945 [269 Cal.Rptr. 269, 790 P.2d 676]; In re Eric J. (1979) 25 Cal.3d 522, 531 [159 Cal.Rptr. 317, 601 P.2d 549]; Gray v. Whitmore, supra, 17 Cal.App.3d 1, 21.) As explained previously, because a resignation and a dismissal for cause have different impacts on a civil service employee’s right to future public employment, persons who are deemed to have resigned under the AWOL statute and individuals who are discharged for misconduct are not similarly situated. Consequently, there is no equal protection violation.
Finally, Coleman asks us to hold that the Department’s denial of reinstatement must be reviewed under the independent judgment test. Decisions of the State Personnel Board, an agency of constitutional authority (Skelly v. State Personnel Bd., supra, 15 Cal.3d 194, 217, fn. 31), are reviewed only to determine whether substantial evidence supports the determination, even when vested rights are involved. )Ibid.; Strumsky v.
Disposition
The judgment of the Court of Appeal is affirmed. Each party shall bear its own costs.
Lucas, C. J., Mosk, J., and Panelli, J., concurred. Eagleson, J.,
Unless indicated otherwise, all further statutory references are to the Government Code.
That section 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 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 for 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, [fl] An employee so reinstated shall not be paid salary for the period of his or her absence or separation or for any portion thereof.”
This section, enacted in 1981, replaced former section 19503, which since 1945 had provided that a state employee’s absence from work without leave for a specified period was an automatic resignation. The only significant difference between present section 19996.2 and former section 19503 is that under the present section the Department, rather than the State Personnel Board, has jurisdiction over requests for reinstatement.
Justice Broussard’s concurring and dissenting opinion maintains that the AWOL statute’s provision for “automatic resignation” suffers from the same constitutional defect as the Ohio statutory scheme considered in Loudermill, namely, providing insufficient procedural safeguards for effecting a deprivation of property. To support this position, the opinion characterizes the AWOL statute as partly substantive and partly procedural, claiming that the substantive aspect of the statute makes a five-day unexcused absence “grounds for termination,” while the deficient procedural aspect is found in the “deemed” resignation. (Cone, and dis. opn. of Broussard, J., post, at pp. 1129-1130.) But this characterization of the AWOL statute treats resignation under the statute as indistinguishable from a dismissal for cause, in plain disregard of the contrary provisions of section 19996, which expressly distinguish between the two means of ending public employment.
Section 19572 sets forth the grounds for discipline, including dismissal. Among them are fraud in securing appointment, incompetency, inefficiency, inexcusable neglect of duty, insubordination, dishonesty, drunkenness on duty, intemperance, addiction to the use of controlled substances, inexcusable absence without leave, conviction of a crime of moral turpitude, immorality, discourteous treatment of the public or other employees, improper political activity, willful disobedience, misuse of state property, and unlawful discrimination. (Italics are added to indicate the statutory grounds used in the illustrations in the text.)
Contrary to the suggestion in Justice Broussard’s concurring and dissenting opinion, the Department has not conceded the necessity for a postseparation evidentiary hearing. (Cone, and dis. opn. of Broussard, J., post, at pp. 1132-1133) It has merely adopted a procedure whereby at the commencement of the reinstatement hearing it proves the facts supporting constructive resignation. (See Curia v. Civil Service Com., supra, 126 Cal.App.3d 994, 1008.) The Department suggests that this provides an adequate protection for the employee and obviates the need for notice and an opportunity for the employee to be heard before separation from state employment. For the reasons stated in the text, we do not agree.
Statements in the following cases inconsistent with this holding are disapproved: Allen v. Department of Personnel Administration, supra, 193 Cal.App.3d 355; Phillips v. State Personnel Bd., supra, 184 Cal.App.3d 651; Harris v. State Personnel Bd., supra, 170 Cal.App.3d 639; Goggin v. State Personnel Bd., supra, 156 Cal.App.3d 96; Zike v. State Personnel Bd., supra, 145 Cal.App.3d 817; Curia v. Civil Service Com., supra, 126 Cal.App.3d 994; Armistead v. State Personnel Bd., supra, 124 Cal.App.3d 61; and Willson v. State Personnel Bd., supra, 113 Cal.App.3d 312.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
The absence here was voluntary. Thus, our constitutional analysis and holding pertain only to an unauthorized voluntary absence.