STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2048

)

RICHARD A. JUDSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing on the respondent's Career Service Commission appeal was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 9:00 A.M. on March 29, 1977, in Room

417 of the Broward County Courthouse, Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: William Park, Esquire

4000 West Buffalo Avenue Tampa, Florida 33614

For Respondent: Freemon A. Mark, Esquire

1577 North Dixie Highway Post Office Box 1991

Pompano Beach, Florida 33061 FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Since July of 1974, respondent Richard A. Judson has been employed with the petitioner, Division of Youth Services, as a Child Care Worker I at the Pompano Juvenile Detention Center. This facility houses court-paroled detainees under the age of eighteen who pose a threat to themselves or the community or who might flee from the court's jurisdiction prior to a hearing. The employees of the Center work one of three different shifts, each shift having a supervisor and a "lead man."

   
   

2. On the evening of May 27, 1976, respondent Judson was assigned to the "B" shift. The acting supervisor of said shift, Ms. Rosie Evans, looked for her "lead man," Morris McCray, at some time between 8:35 and 8:57 P.M. Someone told her that he was on a break. At about 8:57 P.M., McCray and respondent Judson walked up to Ms. Evans and told her that they had been on break together. At that time, Ms. Evans orally reprimanded them and told McCray that he, as "lead man," should not go on break with other employees. As far as she was concerned, the oral reprimand was sufficient disciplinary action for this incident. It was

   Ms. Evans' understanding and practice that while she was acting as a supervisor and happened to be away from the floor, male employees should go to the "lead man" for permission to break or otherwise leave their work station. It was the impression of both Ms. Evans and Mr. McCray that if Ms. Evans was not available, Mr. McCray had the authority to give permission to leave the floor to other employees. Mr. Denny Abbott, the youth services program supervisor for District 10, believed that the authority of a supervisor to give permission to an employee to leave the floor could be delegated to the "lead man." Mr. Sammy McCormick, the assistant supervisor of the Pompano Detention Center, felt that it was not the function of the "lead man" to give permission to leave. It was his opinion that if an employee wants a break and the supervisor is not available, he should wait until the supervisor returns.

   
   

3. As noted above, Ms. Evans did not feel that the May 27th incident warranted any action other than an oral reprimand, and that reprimand was directed primarily to McCray. She therefore did not report the incident to any of her superiors. A few days later, Mr. Joe Alonzo, then supervisor of the Pompano Detention Center, called Ms. Evans at her home to discuss the incident with her. After some investigation into the matter, Mr. Alonzo instructed Assistant Superintendent McCormick to prepare a written letter of reprimand to respondent Judson. By a memorandum dated June 22, 1976, respondent was reprimanded for leaving the floor without permission. (Exhibit No. 1.)

   
   

4. Morris McCray testified that on May 27, 1976, when he went on break with respondent, there was a sufficient number of employees on the floor. He felt that he had the authority to give male employees permission to leave the floor.

   
   

5. In October of 1974, respondent received a complete copy of the "Employee Rules of Conduct and Guidelines for Disciplinary Action" for employees of the Division of Youth Services. This document contains a list of certain offenses and work deficiencies to be used in administering an effective disciplinary program. Item 18 on said list is "leaving the assigned work station without authorization," for which the penalty for the first occurrence is "written reprimand, up to 30 days suspension or dismissal." At staff meetings, employees were orally instructed that they must receive permission before leaving the floor.

   
   

6. On the evening of July 12, 1976, a detainee who appeared to be high on drugs was admitted to the Center. Respondent was at that time assigned to the late "C" shift supervised by Ms. Myrtle Berry (now Ms. Myrtle Morris). Ms. Berry explained the detainee's condition to respondent and instructed him to post himself at the door and to watch the detainee closely. Respondent apparently had dealt with this detainee on a previous occasion. Respondent told another employee to sit by the door, but she did not do it and respondent had knowledge of this. At the hearing, respondent testified that he understood Ms. Berry's instructions to be that she would like "someone" to sit by the door. He did not immediately understand that she wanted him to do so. Instead of stationing himself at the door of the detainee, who was sleeping, respondent sat at a desk some 35 to 50 feet away. Respondent did look in the window of the detainee's door on several occasions. When Ms. Berry returned to the floor some minutes later, she found respondent sitting at the desk watching television.

She told respondent to go back to the detainee's room, but respondent refused. After a few minutes, Ms. Berry asked respondent to come and speak to her. When he refused, Ms. Berry asked him for his keys and he again refused to give them to her. Ms. Berry then reported the incident to Mr. McCormick.

1. After an investigation into the incident, respondent was informed of the suspension in dispute herein. By a letter dated August 2, 1976, under the signature of Robert P. Kelley, District Administrator, respondent was officially notified that he was being suspended for a period of thirty days effective July 31, 1976. This suspension was based upon violations of the employee Rules of Conduct -- specifically Item 18, leaving his assigned work station without authority (the May 27th incident); item 26, insubordination (the July 12th incident); and item 28, "committing any of the above offenses while supervising children."

   
   

2. In the August 2, 1976 letter, respondent was informed of his right as a permanent employee in the Career Service to appeal the suspension. Respondent timely informed the State Personnel Director of his desire to appeal the suspension to the Career Service Commission and the matter was referred to the Division of Administrative Hearings for hearing. The undersigned Hearing Officer was duly designated to conduct the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

3. An employee who has permanent status in the Career Service may only be suspended for cause and in accordance with established rules and procedures. Florida Statutes 110.061; Florida Administrative Code Rule 22A-7.10. The determination of whether or not an employee is to be suspended and the length of said suspension period lies within the sole discretion of the employing agency, subject only to the limitation that the disciplinary action be for good cause. State Department of Pollution Control v. State Career Service Commission and Shane H. Hummel, 320 So.2d 846 (Fla. App. 1st 1975); State Department of Administration, etc v. Hunter, 323 So.2d 24 (Fla. App. 1st 1975). The employing agency has the burden of presenting evidence to support the basis of the charges against the employee being disciplined. Fla. Dept. of Health and Rehabilitative Services v. Career Service Commission and Raya E. Tew 289 So.2d 412 (Fla. App. 4th 1974); Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. App. 3rd 1976). Thus, the sole issue in this case is whether the thirty day suspension of respondent was for just cause and in accordance with established rules and regulations.

   
   

4. Petitioner's own rules of conduct for employees list the offenses with which respondent was charged; to wit: leaving the assigned work station without authorization, insubordination and committing these offenses while supervising children. The disciplinary action authorized for each of such offenses is, for the first offense, "written reprimand, up to 30 days suspension or dismissal." For the second occurrence, the authorized penalty is dismissal. Thus, if the agency carried its burden of proof to establish a basis for any of the three charges against respondent, the disciplinary action taken against him was for good cause and was within the guidelines established for such action.

   
   

5. After considering all of the evidence presented by the agency with respect to the first charge, the undersigned concludes that good cause for disciplinary action has not been shown. As noted above, the only written rule prohibiting such conduct states "leaving the assigned work station without authorization." With the exception of one witness, all witnesses, including a shift acting supervisor, a "lead man" and the District Youth Services Program Supervisor, felt that the authority to give permission to leave the work station could be delegated by the shift supervisor to the lead man or lead worker.

   While the Assistant Superintendent of the Pompano Center felt that only the supervisor could give such permission, he also testified that the primary concern of the lead worker is the best interest of the children. This would

   appear to be the intended function and concern of all child care workers, and does not negate the practice or advisability of a delegation of authority when the supervisor is unavailable. Since respondent Judson went on break with lead worker Morris McCray, it is obvious that he had permission to leave his work station. It was the practice of male employees to go to Mr. McCray for permission to go on break in Ms. Evans' absence. With this evidence, the undersigned can find no just cause to sustain the charge of respondent's leaving his assigned work station without authorization.

   
   

6. However, this conclusion with respect to the first charge does not negate the disciplinary action taken by petitioner if the other charges are supported. As noted above, the range of disciplinary action for a first occurrence of insubordination includes a thirty day suspension.

   
   

7. The agency has clearly proven its charge of insubordination against respondent. The evidence illustrates that respondent was justifiably given a directive by his immediate supervisor and that he chose, for one reason or another, to disregard that directive. Even if respondent reasonably believed that Ms. Berry had instructed him to be sure that someone was stationed by the drugged detainee's door, he admitted that the person to when he so assigned that duty did not do so. It would then have become his responsibility and duty to assure that he or another worker posted himself at the door pursuant to his supervisor's instructions. The latter events of this incident further aggravated the circumstances and created a potential for a dangerous situation, though the evidence showed that none occurred. In conclusion, the undersigned finds that respondent's conduct in this regard provided just cause for a charge of insubordination. The thirty day suspension without pay imposed upon respondent was within the guidelines for standards of disciplinary action and was justified by the facts of this case.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that:

1. The Career Service Commission find that there was no just cause for the written reprimand concerning the charge of "leaving the assigned work station without authorization," and expunge said written reprimand from respondent's personnel file; and

   
   

2. The Commission affirm the thirty day suspension without pay for insubordination and committing this offense while supervising children.

Respectfully submitted and entered this 15th day of April, 1977, in Tallahassee, Florida.

COPIES FURNISHED:

William Park, Esquire 4000 West Buffalo Avenue Tampa, Florida 33614

Freemon A. Mark, Esquire 1577 North Dixie Highway Post Office Box 1991

Pompano Beach, Florida 33061

Mrs. Dorothy Roberts Appeals Coordinator

Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304

Mr. Conley M. Kennison State Personnel Director Room 530, Carlton Building Tallahassee, Florida 32304

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1977.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA CAREER SERVICE COMMISSION

RICHARD JUDSON,

Petitioner,

vs. CASE NO. 76-2048

DOCKET NO. 76-199

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, YOUTH SERVICES PROGRAM OFFICE,

Respondent.

/

FINAL ORDER

Chairman Catherine W. Chapin and Members Clare C. Leiby and Edwin G. Fraser Participating.

This cause came on to be considered by the Career Service Commission on May 11, 1977, in Tallahassee, Florida, after proper notice to all parties. Upon consideration of the Recommended Order of the Hearing Officer and the file on this appeal, the Career Service Commission hereby adopts and incorporates by reference the findings of fact and conclusions of law set forth in the Recommended Order dated April 15, 1977, by Hearing Officer Diane D. Tremor, sustaining the Agency, copy of which is attached hereto and made a part hereof by reference. Accordingly, it is

ORDERED that the Recommended Order of the Hearing Officer, dated April 15, 1977, be, and the same is, hereby adopted by this Commission and incorporated herein by reference, except as to Point 1 in the Recommendation, over which this Commission nor the Hearing Officer has any jurisdiction. It is further

ORDERED that the action of the Agency suspending the Appellant be, and the same is, hereby sustained.

DONE AND ORDERED this 10th day of June, A.D., 1977.

CATHERINE W. CHAPIN, Chairman

Career Service Commissioner

CERTIFICATE OF SERVICE

I hereby certify that copy of the foregoing Order was furnished by certified U.S. mail, return receipt requested, to Mr. Freemon A. Mark, Attorney

at Law, Post Office Box 1991, Pompano Beach, Florida 33061, and Mr. William Park, Attorney, Department of Health and Rehabilitative Services, 4000 West Buffalo Avenue, Tampa, Florida 33614, and by regular U.S. mail to Ms. Diane D. Tremor, Hearing Officer, Room 530, Carlton Building, Tallahassee, Florida 32304, this 15th day of June, A.D., 1977.

CAREER SERVICE COMMISSION

BY: Susan Turnbull

Docket for Case No: 76-002048

Orders for Case No: 76-002048