Zike

This appeal challenges the constitutionality of the “automatic resignation” statute, former Government Code section 19503. That statute provides in pertinent part that “Absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, ...”

Plaintiff is a state employee whose employment was terminated pursuant to section 19503. He was eventually reinstated, but in accordance with the statute he was denied back pay for the period of his separation. Section 19503 declared that an employee reinstated “shall not be paid salary for the period of his absence or separation or any portion thereof.”

Plaintiff petitioned for a writ of mandate seeking to compel the State Personnel Board to set aside its decision to deny back salary. The trial court denied the petition. Plaintiff now appeals.

Statement of Facts

The plaintiff has been employed by the State of California since 1972. He holds the classification of counselor, Department of Education Special Schools and is employed at the California School for the Deaf as a counselor for children with hearing disorders. As part of his duties as a counselor,…