I respectfully dissent:
Early in the recited chronology of events appellant presented a satisfactory excuse for his absence without leave to the State Personnel Board. He was eventually reinstated to his position as of October 17, 1979, a date certain for establishing possible fringe benefits. His further entitlement to back wages is the only remaining issue.
For the reasons stated in the majority opinion I agree that it was unnecessary for appellant to file a formal claim against the State (Gov. Code, §§ 810-996.6, inclusive) for the relief sought. The trial court should not have sustained a demurrer to appellant’s petition on that sole ground.
However, I believe the petition was properly dismissed with prejudice under the mandate of Education Code section 89541.
To award appellant 17 months of claimed back wages the majority would find section 89541 unconstitutional as failing to provide an employee with minimal procedural due process prior to his dismissal. Yet, the parties have neither raised nor briefed the issue of the statute’s constitutionality. “[W]e do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.” (Johnson v. Alexis (1983) 143 Cal.App.3d 82, 85 [191 Cal.Rptr. 529], quoting People v. Williams (1976) 16 Cal.3d 663, 667 [128 Cal.Rptr. 888, 547 P.2d 1000].)
Even assuming it is proper to address the procedural due process aspects of section 89541, I do not reach the majority’s conclusion.
*647Education Code section 89541 is virtually identical to Government Code section 19996.2, subdivision (a) (formerly Gov. Code, § 19503). The constitutionality of Government Code section 19503 was upheld in Willson v. State Personnel Bd. (1980) 113 Cal.App.3d 312 [169 Cal.Rptr. 823]. In ruling against the AWOL employee, the Willson court held that he had not been denied constitutional due process guarantees since it was his own act of remaining absent without leave that severed the employment relationship, and there was no abuse of discretion by the State Personnel Board since punishment is mandated by the statute and allows for no discretion.
Zike v. State Personnel Bd. (1983) 145 Cal.App.3d 817 [193 Cal.Rptr. 766], upon which the majority heavily relies, involved facts distinguishable from those of the instant case. In Zike, there was a bona fide factual dispute as to whether the employee, a school counselor, was actually absent without leave due to a pattern over several years of excused late returns from summer recesses, as well as conversations between the employee and other school officials which he might reasonably have interpreted as acquiescence in his tardiness.
The Zike court opined that under those circumstances—where a factual dispute regarding the authority for absence was presented—the harshness of Government Code section 19503 should not have been applied, and suggested that the case should have been initiated as an adverse action pursuant to the punitive provisions of Government Code section 19572, subdivision (j). (Zike v. State Personnel Bd., supra, 145 Cal.App.3d at p. 824.) “[W]e think the use of Government Code section 19503 should be strictly confined to those situations where the absence without leave is admitted [citations] or those situations where the employer reasonably believes an abandonment has occurred. [Citation.]” (Zike v. State Personnel Bd., supra, 145 Cal.App.3d at p. 824; italics added.)
Thus, the Zike court impliedly upheld the provisions of Government Code section 19503 should either of the foregoing conditions exist.
In the case at bar, Mr. Harris has at all times conceded that his absence was without leave. I find no basis in law or fact to expand upon the narrow interpretation of Government Code section 19503 made by the Zike court to scuttle Education Code section 89541.
I would affirm the order.
A petition for a rehearing was denied August 21, 1985. Arguelles, J., was of the opinion that the petition should be granted. Respondent’s petition for review by the Supreme Court was denied October 24, 1985. Lucas, J., was of the opinion that the petition should be granted.