STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES COLLINS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2050

)

DEPARTMENT OF OFFENDER ) REHABILITATION; CAREER SERVICE ) COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in the above styled cause on February 3, 1977, in Room 104, Collins Building, Tallahassee, Florida, at 10:00 A.M.

APPEARANCES

For Petitioner: Jerry Traynham, Esquire

1215 Thomasville Road

Tallahassee, Florida 32303

For Respondent: Raymond W. Gearey, Esquire

Room 300, Building 5

1311 Winewood Boulevard

Tallahassee, Florida 32301 ISSUE

Whether the Department of Offender Rehabilitation should have suspended the Petitioner James Collins.

FINDINGS OF FACT

1. James W. Collins was suspended without pay for thirty (30) days effective February 9, 1976, having been charged with conduct unbecoming a public employee and willful violation of rules, regulations, directives or policy statements governing behavior of employees of the Department of Offender Rehabilitation and Sumter Correctional Institution. Specifically, he was charged with being intoxicated on institutional grounds and creating a disturbance by profane and abusive language directed toward other employees, loud and repeated knocking on the doors of other employees' rooms in the Bachelor Officer's Quarters during the night of February 5, 1976, and the early morning hours of February 6, 1976. Petitioner denied that he was intoxicated and requested an administrative hearing.

   
   

2. Petitioner James W. Collins lived in the Bachelor Officer's Quarters of Sumter Correctional Institution of the State of Florida in the month of February, 1976. Beer was available and allowed after working hours and

   employees were allowed to consume beer and other refreshments after working hours. The Petitioner consumed approximately three (3) beers after five o'clock on February 5, 1976. He went to his room after 8:00 P.M. and later knocked on the doors of various persons who were also employed by the Department of Offender Rehabilitation and who lived in the Bachelor Officer's Quarters. He then went to the Administration Building. He appeared in an unstable condition and returned again to the BOQ Building and knocked on the door of a fellow employee asking for change. Later, in the early morning hours of February 6 about 2:30 A.M., Collins again left his room and was making noise either emptying trash or rummaging through the trash cans in the parking lot where he again met the officer in charge.

   
   

3. Petitioner had consumed beer on the night in question after hours which was allowed by the institution. The fact that he knocked on the doors of various other persons, entered the lounge area in the Administration Building and later was in the parking lot emptying trash or rummaging through the cans is not conclusive that the Petitioner was in fact intoxicated even though alcohol or beer odor could be detected on his person.

   
   

4. The Petitioner is a diabetic and his actions were consistent on the night in question with one who is suffering from this disease or one who is intoxicated. His contention that he was seeking change from his friends to use in a drink or candy machine or to acquire sugar to relieve him from his diabetic condition is consistent with the actions of a person seeking relief from the effect of the disease. There is no proof that the Petitioner James Collins was in fact intoxicated.

   
   

5. The fact that Petitioner suffered diabetes and accepted employment in a sensitive area like the Sumter Correctional Institution should require him to protect his employment and his physical condition and refrain from the use of alcohol. He should keep within his quarters a sufficient amount of treatment such as sweets for his condition and keep sufficient change on hand in order not to burden others with his deficiencies. The failure to protect himself against his actions which resulted in the disturbing of a number of employees during the night in question shows the Petitioner to be remiss in his obligation toward his job, himself and others.

   
   

6. A certified letter with return receipt requested was addressed and sent to the Petitioner Collins at his abode in the Sumter Correctional Institution's BOQ, Room 312, Bushnell, Florida 33513. The letter of suspension was sent pursuant to Rule 22A-1.05, Florida Administrative Code. Petitioner had been orally informed of his suspension and the time of his suspension and the length of it at the meeting with his superintendent. The fact that the certified letter was sent to a mailbox in Bushnell which merely put into writing information the Petitioner already had did not deprive him of any of his rights. It was the mailbox at which Petitioner received his mail and the fact that the institution has his Tallahassee address did not require it to send his letter of suspension, about the facts of which he was fully informed, to the Tallahassee address.

   
   

   CONCLUSIONS OF LAW

   
   

7. Chapter 110.061, Suspensions, dismissals, reductions in pay, demotions, layoffs, and transfers, Florida Statutes, provides:

   
   

   "(1) Any employee who has permanent status in the career service may only be terminated

   for cause by the agency or officer by whom he is employed.

   (2)(a) The department shall establish rules and procedures for the suspension, reduction in pay, transfer, layoff, demotion and dismissal of employees in the career service for cause and for the investigation and hearing of appeals by the Career Service Commission on such actions.

   1. Written notice of such appeal shall be filed with the commission within 20 days from the date on which notice of suspension, reduction in pay, transfer, layoff, demotion or dismissal is mailed to the employee. All notices to the employee shall be in writing sent by certified mail with return receipt requested.

   2. The commission shall, within 30 days after hearing such appeal, make its finding and decision, copies of which shall be transmitted to the employee, the employing agency concerned, and the department.

      1. The Career Service Commission may order the reinstatement of an employee, with or without backpay, which order shall be conclusive on the agency or officer concerned. The order may include an amount, to be determined by the commission and paid by the agency, for reasonable attorney's fees, witness fees, and other out-of-pocket expenses incurred during the prosecution of an appeal against an agency in which the commission sustains the employee. The action of the commission shall be in writing and shall be served on the parties to such appeal either

         in person or by mail.

      2. The exercise by the Career Service Commission of the powers, duties, and functions prescribed by this section shall be reviewable only by the judiciary on the grounds that:

         1. The commission did not afford a fair and equitable hearing.

         2. The decision of the commission was

            not in accordance with existing statutes or rules and regulations thereunder.

         3. The decision of the commission was not based on substantial evidence."

      
      

8. Rule 22A-7.10 Separations., Florida Administrative Code, provides in part:

   
   

   "(6) Suspensions.

   (b) An agency head may suspend any employee for any of the reasons listed in Section

   22A-7.10(7)(b), or for any just cause, for a period not to exceed 30 calendar days in

   any calendar year. Upon request of the agency head, the State personnel Director may approve an extension of the suspension for a period not to exceed an additional

   60 calendar days. If court action is pending, the State Personnel Director may approve

   an additional extension of a suspension when requested by the agency head.

   
   

   (7) Dismissals

   (b) An agency head may dismiss employee for just cause. Just cause shall include,

   but not be limited to, negligent inefficiency, or inability to perform assigned duties; insubordination; willful violation of

   the provisions of these or agency rules

   and regulations; conduct unbecoming a public employee, misconduct, habitual drunkenness, or conviction of any crime involving moral turpitude."

   
   

9. Rule 22A-10.03 Disciplinary Actions., Florida Administrative Code, provides in part:

   
   

   "(4) Each agency's program for handling disciplinary problems shall provide for the following types of disciplinary actions:

   1. Oral Reprimand

   2. Written Reprimand

   3. Change in Assignment

   4. Reduction in Pay

   5. Demotion

   6. Suspension

   7. Discharge"

   
   

10. The Department of Offender Rehabilitation has the authority to suspend an employee for conduct unbecoming a public employee and willful violation of rules, regulations and directives. The actions of the Petitioner Collins, although suspicious, are also consistent with actions of those who are suffering from a diabetic condition. There is insufficient evidence to show Petitioner was intoxicated. If in fact the Petitioner was seeking to borrow money from the other employees and going through the trash cans to find sugar to treat his physical condition, he would not be displaying conduct unbecoming a public employee or willful violation of the rules and regulations by being intoxicated. His actions, however, in drinking beer and causing a disturbance in the night time subject him to censure for putting himself into the position to cause such inconveniences to other employees and the inmates of the institution where he is employed.

RECOMMENDATION

Withdraw the penalty of suspension without pay and substitute a written reprimand.

DONE and ORDERED this 11th day of April1 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Raymond W. Gearey, Esquire Room 300, Building 5

1311 Winewood Boulevard

Tallahassee, Florida 32301

Jerry Traynham, Esquire 1215 Thomasville Road

Tallahassee, Florida 32303

================================================================= AGENCY FINAL ORDER

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

BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA

IN THE APPEAL OF

JAMES COLLINS DOAH NO. 76-2050 DOCKET NO. 76-56

AGAINST SUSPENSION

BY THE DEPARTMENT OF OFFENDER REHABILITATION

/

OPINION AND ORDER

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

This cause came on to be heard by the Career Service Commission on May 11, 1977, in Tallahassee, Florida. The Commission has considered the Recommended Order by Hearing Officer Delphene C. Strickland and the record of this appeal. The Commission hereby accepts, adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order, dated April 11, 1977. The

Commission must reject, however, the Conclusion of Law and Recommended Penalty and submits the following conclusions.

While the Hearing Officer did not conclusively find that Collins was intoxicated, the facts presented do support the Agency's charge of conduct unbecoming a public employee. The Hearing Officer concluded that the Petitioner was guilty of this general charge, based on the evidence brought out at the hearing, and recommended altering the suspension to a written reprimand.

Inasmuch as the designated Hearing Officer is vested only with such authority as the Commission possesses, the Hearing Officer's recommendation to alter the penalty is impermissible.

The Agency's disciplinary action of a 30-day suspension being within its authority was supported by the evidence and as set forth in the Hearing Officer's Findings of Fact.

Wherefore, it is

ORDERED that the action of the Agency be, and the same is, hereby sustained. It is further

ORDERED that the Motion for Reconsideration having been considered, the same is hereby denied.

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

CATHERINE W. CHAPIN, Chairman

Career Service Commission

CERTIFICATE OF SERVICE

I hereby certify that copy of the foregoing Order was furnished by certified U.S. mail, return receipt requested, to Mr. Jerry G. Traynham, Attorney at Law, 1215 Thomasville Road, Tallahassee, Florida 32303, and Mr. Raymond Gearey, General Counsel, Department of Offender Rehabilitation, 1311 Winewood Boulevard, Tallahassee, Florida 32301, and by regular U.S. mail to Mrs. Delphene C. Strickland, Hearing Officer, Room 530, Carlton Building, Tallahassee, Florida 32304, this 23rd day of June, A.D., 1977.

CAREER SERVICE COMMISSION

BY: Susan Turnbull

Docket for Case No: 76-002050

Orders for Case No: 76-002050