STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERNARD CANNING, )

)

Petitioner, )

)

vs. ) CASE NO. 77-829

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division Of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled case on July 19, 1977 at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Bernard J. Canning

17390 Southwest 85th Avenue Miami, Florida 33157

For Respondent: Philip Bennett, Esquire

Staff Attorney

Department of Transportation Haydon Burns Building Tallahassee, Florida

ISSUE

By Appeal filed March 29, 1977 Bernard J. Canning, Petitioner, appeals the three-day suspension from duty without pay awarded to him March 16, 1977 for disobedience of an order.

Three witnesses were called by Respondent, Petitioner testified in his own behalf, and three exhibits were offered into evidence. The objection to Exhibit

2 on the grounds it was irrelevant was sustained. Exhibits 1 and 3 were admitted.

FINDINGS OF FACT

1. On March 30, 1976 Bernard J. Canning, Appraiser I, District 4, Department of Transportation, wrote a memo (Exhibit 1) to his immediate supervisor, Mr. Duffie, relating to Canning's qualifications as an appraiser. Therein he indicated dissatisfaction with simple appraisal assignments which he had received and requested an interview for the purpose of demonstrating that he was qualified for more complex appraisal assignments. Whether or not this interview occurred was not disclosed at the hearing. However, if the interview

   took place, which it presumably did, Canning was apparently not fully satisfied with the outcome.

   
   

2. On 3/7/77 Canning'requested a conference with Mr. Fowler, District Engineer, 4th District, Department of Transportation, and during this meeting presented a typed memo in the nature of a complaint (Exhibit 3) to Mr. Fowler. Therein he referred to his earlier memo to Mr. Duffie and indicated reprisals had been taken against him because of the memo. These reprisals consisted of reassigning Canning's appraisals to other appraisers.

   
   

3. Shortly after his meeting with Canning, Fowler directed W. A. Maier, District 4 Right-of-Way Administrator, to prepare an early reply to each charge made by Canning in Exhibit 3, including those contained in the March 30, 1976 memo (Exhibit l).

   
   

4. Unable to locate a copy of Exhibit 1 in his files, Maier requested Canning's immediate supervisor, Chester Bricko, to ask Canning for a copy. This occurred on Friday, March 11, 1976 and when Bricko asked Canning for a copy the latter advised that it was at his home. Bricko reported this information to Maier who told Bricko to tell Canning to bring in the memo on Monday. This message was relayed to Canning.

   
   

5. On Monday, March 14, Bricko asked Canning for the memo but Canning declined to give it to him. When Maier was so advised he told Bricko to have Canning report to his office. Upon Canning's arrival with Bricko, Maier requested Canning to give him a copy of Exhibit 1. This Canning declined to do unless the request was in writing. Maier then told Canning that he was giving him a direct order to produce the memo and that refusal to do so would be disobedience of a direct order. Canning again refused to produce the memo without first receiving a demand for its production in writing.

   
   

6. During this episode Canning was loud and excited. His conduct and action was described as insufferable by his superiors.

   
   

7. Testifying in his own behalf Canning acknowledged that he had refused to surrender the copy of Exhibit 1 unless he received a written request to do so. Although the memo was prepared by Canning during his duty hours on DOT stationery and typewriter Canning considered the copy he had retained as his personal property and, therefore he did not have to surrender same. A copy of the memo was found in the office files later that day, or the following day. On March 16, 1977, after reviewing the Administrative Procedures established for such disciplinary action, Maier advised Canning that he was suspended for three days commencing at 9:00 A.M. on March 15, 1977.

   
   

8. A copy of the suspension letter dated March 15, 1977 was mailed to Canning at his home and is contained in the file forwarded with Canning's appeal.

   
   

   CONCLUSIONS OF LAW

   
   

9. Rule 22A-7.lO(7)(b) F.A.C. authorizes suspension from duty without pay for a period not to exceed 30 calendar days in any calendar year. Grounds for such disciplinary action include insubordination.

   
   

10. Here the request for the production of Exhibit 1 was a reasonable and paper request made to Canning. Contrary to Canning's legal interpretation of his property rights in the memo, the memo was not personal property which none

    of Canning's supervisors had any right to see. Even if the copy of Exhibit 1 could be considered to belong to Canning he could nevertheless be required to produce same as it related to his duties and actions he had taken with respect to his official duties.

    
    

11. Petitioner's contention that he was entitled to have the request or order to produce Exhibit 1 reduced to writing before he had an obligation to comply is also misplaced. If every supervisor had to give all instructions in writing before obtaining compliance state government would most certainly grind to a complete halt.

    
    

12. From the foregoing it is concluded that Maier gave a lawful order to Canning to produce a copy of a memorandum the latter had prepared in connection with his official duties and that Canning disobeyed this order. This constitutes insubordination for which a punishment of suspension without pay for a period of not to exceed 36 calendar days is authorized. The three-day suspension here awarded is well within that limit.

    
    

13. Full discretion to determine disciplinary action to be taken against an employee of a state agency is vested in the state agency with the sole limitation being the disciplinary action is taken for just cause. Department of Administration v. Hunter, 323 So.2d 24 (Fla. App. 1975). Here, just cause for the penalty assessed was shown. It is therefore,

RECOMMENDED,

that the appeal be dismissed.

DONE and ENTERED this 26th day of July, 1977, in Tallahassee, Florida.

K. N AYERS Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1977.

COPIES FURNISHED:

Phillip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Mr. Bernard J. Canning 17390 Southwest 85th Avenue Miami, Florida 33157

Mrs. Dorothy Roberts Career Service Commission Appeals Coordinator

Department of Administration Carlton Building Tallahassee, Florida 32304

District Engineer

Department of Transportation Fourth District Headquarters 780 Southwest 24th Street Ft. Lauderdale, Florida

Docket for Case No: 77-000829

Orders for Case No: 77-000829