vs. ) CASE NO. 77-460
Respondent. )
This case was heard on August 31, 1977, in the County Commission Chambers, Suwannee County Courthouse, Live Oak, Florida, at 9:30 A.M. before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The issue presented in this case was whether the disciplinary action of a ten day suspension taken against Glen Sullivan on the grounds stated in the disciplinary letter dated January 1 1977, was for good cause. The disciplinary letter alleged that Glen Sullivan had been insubordinate by failing to perform assigned duties as an on-call intake counselor.
For Respondent: J. E. Hodges, Esquire
Glen Sullivan is a Career Service employee with permanent status as a Youth Counselor II who was employed at the time in question in the Live Oak office of the Division of Youth Services in Suwannee County, Florida.
In the summer of 1976 the Legislature of the State of Florida directed that the Department of Health and Rehabilitative Services adopt what was termed "single-intake counseling." This required that all juveniles being placed in the care of the Division of Youth Services be processed by a single subunit of that agency.
Plans were instituted to create a new class of position to augment this legislative directive by the creation of a job position designated "Single Intake Counselor." The process of creating this new position was commenced by
the submission of the appropriate documentation to the Department of Administration, Division of Personnel, in accordance with the applicable rules and regulations. The State Personnel Director as head of the Division of Personnel, Department of Administration, has sole authority to approve the creation of positions.
In July, 1976, in order to comply with the legislative directive, Linwood Colson, Direct Services Supervisor of District III, developed plans which he presented to Teadie Tunsill, Service Network Manager for Region or Service Network I within District III of the Department of Health and Rehabilitative Services. This plan called for designated individuals already in existing positions to undertake single intake counseling and function as Single Intake Counselors. These individuals were to be assisted by other Youth Counselors as required. This plan was approved by Teadie Tunsill.
Subsequently in July, 1976, Linwood Colson advised the various Youth Counselors in Network or Region I that this plan would be implemented. A Youth Counselor III in Live Oak, Florida, was designated as the individual responsible for single intake counseling, and all other Youth Counselors in Live Oak were directed by Linwood Colson to assist in this process as required. Special cross training sessions were organized and individuals concerned were notified to attend the sessions by a memorandum from Linwood Colson dated July 19, 1976.
After training, in late summer or early fall, Glen Sullivan, Vic McDonald, Mike DeVane, and Tonia Gardner, working in the Live Oak area, were assigned single intake counseling duties during off duty hours. Phyllis Rosier, acting Supervisor, began preparing on call duty rosters for the Youth Counselor's concern.
December 17, 1976, Glen Sullivan notified Linwood Colson by phone that he (Sullivan) felt that it was outside the duties of his job description and classification to perform these intake duties and that he would not perform them in the future. Colson advised Sullivan that he should take the matter up with Phyllis Rosier, his supervisor, and present his position in writing. Sullivan did this in a memorandum to Rosier dated the same day he spoke with Colson. See Exhibit 4.
On December 22, 1976, Phyllis Rosier sent a memorandum to Linwood Colson regarding Sullivan's memorandum. See Exhibit 13. Rosier's memorandum outlined that Sullivan had stated to her that he would not perform single intake duties on call and his refusal to do so created scheduling problems for her.
The memorandum further stated that in assigning Sullivan to these duties she was following instructions given to her by Linwood Colson and Teadie Tunsill, and therefore she did not feel she personally had the authority to exempt Sullivan from these duties. She requested Colson to resolve this issue.
These events led to a meeting on December 29, 1976, between Glen Sullivan; Phyllis Sarra, the Employee Relations Specialist for District III; and John Roberts, Assistant District Personnel Officer. This meeting was to clarify and explain to Sullivan that he would be required to carry out his assigned duties as an on-call intake counselor, and that if he refused to do so, he would be disciplined. The thrust of the agency's position stated in the letter of Richard Dilliard, Subdistrict Administrator, to Sullivan dated December 30, 1976. See Exhibit 8 and its attachments. This letter also states that Phyllis Rosier had been directed to assign Sullivan on-call duty for the dates January 4 through 9, 1976.
Sullivan responded to Dilliard by letter date January 4, 1976, (see Exhibit 12) which sets out Sullivan's position and argument for asserting that he was not and could not be required to do intake counseling.
The positions of Youth Counselor II and Youth Counselor III were exempt from any wage and hour limitations as set out in the personnel regulations all times involved in his case.
On January 9, 1977, Mallory Daniels, the jailor on duty in Hamilton County, received a juvenile for intake to youth services and attempted to contact the Youth Counselor on duty as indicated by the roster prepared by Phyllis Rosier. Daniels could not reach Sullivan at. the telephone number listed for Sullivan. Therefore, following existing operating procedures, Daniels contacted Beryl Mayo, Chief Jailor at Suwannee County. Mayo was asked to locate Sullivan and had him call Daniels in Hamilton County. It was the procedure for the Youth Counselor on duty to leave a telephone number at which he or she could be reached if the Youth Counselor was away from his or her regular telephone number with the Suwannee County jail. Mayo again attempted to call Sullivan at his home because Sullivan had not let another number with the Suwannee County Sheriff's Department and Mayo received no answer. However, Mayo indicated in his testimony that it was not unusual for him to have problems reaching individuals by phone in the Live Oak area. He stated that frequently the phones indicated to the caller that the phone was ringing at the number called but that the phone called would not ring. Mayo stated that it was the practice in the Suwannee County Sheriff's Department because of frequent telephone malfunctions to back up urgent calls to its personnel by dispatching a radio car to the individual's home. Mayo advised Daniels that he had been unsuccessful in attempting to contact Sullivan, and Daniels called Phyllis Rosier in accordance with existing operating procedures.
Rosier made arrangements for DePree to handle the intake of the juvenile, and the following day recommended disciplinary action be taken against Sullivan. Rosier did not call Sullivan and no one ever questioned Sullivan, prior to or after taking disciplinary action, as to whether he was on duty on the night in question.
The agency has filed a pleading styled "Recommended Order". This pleading has been read by the Hearing Officer and it contains no proposed findings of fact.
CONCLUSIONS OF LAW
As a permanent Career Service employee, Glen Sullivan may appeal his suspension to the Career Service Commission. In a Career Service appeal, the burden of proof is upon the agency to show that they had good cause to take disciplinary action against the employee.
Glen Sullivan's position was that he was not required to perform on- call intake duties because this was outside his job duties as presented in the position questionnaire for the position which he held. Rule 22A-1.02, Florida Administrative Code, controls the creation and establishment of positions within the Career Service. Chapter 22L of the Florida Administrative Code had not been adopted when the events of this case occurred in 1976 and 1977. Rule 22A- 1.03(4) , Florida Administrative Code, requires the State Personnel Director to prove the initial creation and reclassification of positions within the Career Service. Rule 22A-1.05, Florida Administrative Code, requires that position questionnaires be prepared on each position. These position questionnaires are
the official record of what the duties of the job are for classification purposes. The duties as stated in the position questionnaire are not a contract of employment between an employee and his employer.
Employees are hired to fill a given position, and they should be assigned duties and responsibilities outlined in the job description. However, the employer may assign the employee any duties which the employer designates, as long as these duties are not illegal, immoral, or constitute an unreasonable hazard to the employee's health and safety. It is contrary to the Personnel Rules and Regulations for an employer to assign an employee duties which are a gross departure from the duties and responsibilities stated in the employee's job description. The Division of Personnel, Department of Administration, conducts periodic audits of positions to determine whether the duties actually performed are those stated in the job description. The inappropriate assignment of duties is subject to audit criticism, and the individuals responsible for the misassignment of duties to employees are subject to corrective action. However, the employee may not refuse to perform the duties assigned by his superior except, where as indicated above, these duties would be illegal, immoral or unduly hazardous to the employee's health or safety. The employer may reasonably point out or note for the record his or her opposition to performing the duties for protection against criticism or disciplinary action.
In the instant case, there is no evidence that the on call duty was illegal, immoral, or hazardous. Although Sullivan was within his right to draw his superior's attention to what Sullivan felt was an assignment to duties outside the scope of his position and to note for the record his opposition to the assignment of these duties for his own protection, Sullivan was not justified to refuse to perform the duties.
Although the testimony of Beryl Mayo indicated that there were at times problems with the telephone system, the representations by Glen Sullivan that he would not perform the on-call duty together with the fact that Sullivan could not be contacted at his home raises a reasonable inference that Sullivan was not available for duty on January 9, 1977. Sullivan did not present any evidence to the contrary. By failing to perform duties assigned by his superior, Sullivan was "insubordinate."
The fact that the agency, while attempting to advise Sullivan that he would be required to perform the duties enumerated in the position questionnaire for the position which he held, misadvised him by providing him a position questionnaire for a different city, county and district, was raised as a matter in mitigation. However this cannot be considered in mitigation because the authority to assign duties to an employee is inherent in the employer and is not restricted by the duties and responsibilities enumerated in the position questionnaire.
The Appellant raised the issue of denial of due process resulting from his superior's failure to confront him with the alleged misconduct prior to disciplinary action being taken. This argument is based upon the principles stated in several cases decided by the United States. Supreme Court. Application of these principles is dependent upon the specific factual situation presented in a case. The requirement for a predisciplinary action hearing or confrontation is dependent upon the nature of the disciplinary action contemplated. Considering the suspension of a student from school for a substantial number of days, the U.S. Supreme Court determined that it placed the child in serious jeopardy of successfully completing the years work, and therefore, a predisciplinary confrontation was required. In another case, the
Court determined that an employee whose employment was terminated was similarly entitled to a pre-disciplinary action hearing or confrontation. The criteria for the necessity of a predisciplinary hearing or confrontation appears to be whether the action contemplated is of such a severe nature that the individual would be irreparably harmed even if the allegations were resolved in his favor at a subsequent evidentiary hearing providing full procedural due process.
The Career Service Commission Rules and Regulations would permit restitution of back pay and attorney's fees in the Commission's discretion when the Commission resolves the allegations in favor of the employee. The employee can be made relatively whole upon final resolution of the case when the initial penalty is not so severe that it would obviously be irreparable.
In the instant case the suspension of Glen Sullivan was for a period of ten days, or two working weeks without pay. Loss of two weeks salary closely approaches an irreparable harm which would activate the requirement for a predisciplinary action hearing or confrontation. However, in the instant case, considering the classification of Glen Sullivan, his suspension for a period of two weeks falls short of the irreparable harm required to activate the requirement for a predisciplinary action hearing or confrontation.
Considering the evidence presented and the arguments on the law, the action taken against Glen Sullivan was for good cause.
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the disciplinary action was for good cause and should be sustained by the Career Service Commission.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
J. E. Hodges, Esquire Department of Health and
Rehabilitative Services 2002 N. W. 13th Street Gainesville, Florida 32601
