State of California

  M E M O R A N D U M

  REFERENCE CODE:
  98-020

  DATE:
  May 14, 1998

  TO:
  Employee Relations Officers
  Personnel Officers

  FROM:
  Department of Personnel Administration
  Legal Division

  SUBJECT:
  Preseverance Hearings for Permanent Intermittent Employees 
  Automatically Separated After Three Waivers

  CONTACT:
  Joan E. Branin, Labor Relations Counsel
  (916) 324-0512 CALNET: 454-0512
  OFFICE VISION: JEBRANIN@DPA.CA.GOV
  INTERNET: JEBRANIN@DPA.CA.GOV


  This memorandum is to advise State agencies that a 
  Sacramento Superior Court Judge recently ruled that whenever 
  an appointing power invokes the Department of Personnel 
  Administration (DPA) waiver rule to automatically separate a 
  permanent-intermittent (PI) employee, it is required to 
  provide the employee with "notice and an opportunity to 
  respond" to the appointing power.
  
  The DPA waiver rule is found at Title 2, California Code of 
  Regulations, section 599.828.  It provides in relevant part,
  
  "...An intermittent employee who 
  waives three requests by the employing 
  department to report to work may be 
  automatically separated from the 
  intermittent appointment, provided that 
  no waiver shall be counted if the 
  employee was unable to come to work due 
  to illness or other good reason (i.e., a 
  reason that is acceptable to the 
  appointing power)."
  
  Pursuant to the judge's ruling and consistent with the law, 
  DPA is advising agencies when they automatically separate PI 
  employees who had waived three requests to report for duty, 
  the agencies should provide written notice and an 
  opportunity to respond before the employee is actually 
  separated.  See Coleman v. Department of Personnel 
  Administration (1991) 52 Cal.3d 1102, 1119, for consistency.
  
  Following is a recommended procedure for effectuating an 
  automatic separation of a PI employee consistent with the 
  waiver rule and Coleman v. Department of Personnel 
  Administration.
  
  1.Separation Notice.  The appointing power should send a 
  written notice of the decision to separate the 
  employee to the employee's address, which is on file 
  with the appointing power.  The notice should contain 
  the facts upon which the appointing power relies; 
  i.e., the notice should state the dates of the three 
  waivers and why excuses offered by the employee, if 
  any, are unacceptable.  The appointing power should 
  prepare a Proof of Service by Mail or a Proof of 
  Personal Service for the notice.  A copy of the proof 
  of service should be sent to the employee being 
  separated.
  
  The notice should also contain information regarding 
  the opportunity for a preseverance hearing, the time 
  frames for obtaining the preseverance hearing, and the 
  name of the person to contact for the preseverance 
  hearing.  The employee should be given five working 
  days within which to respond.
  
  The notice should contain information regarding the 
  right to appeal the separation to DPA within thirty 
  days of receipt of the notice.  (Any appeal to DPA 
  must be in writing and sent to the DPA Hearing 
  Division by the employee or his or her 
  representative.)
  
  2.Preseverance (Coleman) Hearing.  The preseverance 
  hearing may be informal.  However, it should be 
  conducted by an impartial and disinterested 
  representative of the appointing power who has 
  authority to recommend that the separation be revoked.  
  It is recommended that the Coleman officer selected be 
  someone who was not involved in the initial decision 
  to separate the employee.  The Coleman officer should 
  weigh whether the employee actually waived three 
  requests to work and whether the employee had good 
  reasons for the waivers.  Any response from the 
  Coleman officer to the employee should be mailed or 
  personally served along with a proof of service.
  
  3.Appeal to DPA.  If the separation is sustained and the 
  employee timely appeals to DPA, DPA will conduct a 
  hearing to determine whether the employee should be 
  reinstated to his/her former position.
  
   
  Prior to invoking the three-waiver rule, the appointing 
  power should review the applicable Collective Bargaining 
  Agreement (CBA) to determine whether it contains provisions 
  at variance with the recommendations in this memorandum.  As 
  of April 7, 1998, no CBA changes the procedure described in 
  this memorandum.  The Unit 6 CBA contains language on how 
  waivers are counted.
  
  (Note:  A PI employee may also be separated automatically 
  after one year of non-work, pursuant to State Personnel 
  Board (SPB) Rule 448.  Prior to separating PI employees, 
  agencies should review that rule.)
  
  You may contact Joan Branin, Labor Relations Counsel, DPA, 
  at (916) 325-0512 if you have any questions regarding this 
  PML Memorandum.
  
  
  
  K. William Curtis
  Chief Counsel