Judges: ROBERT T. BENTON, II
Agency: Department of Management Services
Latest Update: Mar. 09, 1978
Summary: Petitioner found guilty of violating rule of written application for compensatory leave but should be reimbursed for time he was suspended and reprimanded instead.
77-2077.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KENNETH BOWE, )
)
Petitioner, )
)
vs. ) CASE NO. 77-2077
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in West Palm Beach, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on February 9, 1978.
APPEARANCES
The parties were represented by counsel:
For Petitioner: Mr. J. Wayne Jennings, Esquire
2871 Forth-Fifth Street
Gifford, Florida 32960
For Respondent: Mr. K.C. Collette, Esquire
Forum 3, Suite 800
1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
Orally on June 1, 1977, and by letter dated June 8, 1977, Mr. Earl Stout advised petitioner, on behalf of respondent, of a 29 calendar day suspension from his job as youth counselor II, effective June 2, 1977. Petitioner perfected an appeal from this action, which resulted in the hearing on February 9, 1978.
FINDINGS OF FACT
Respondent employs petitioner as a youth counselor II in Ft. Pierce, Florida. Petitioner attained permanent career service status in May of 1972. In addition to "carrying a normal caseload," i.e., supervising 85 to 88 youngsters in the customary fashion, petitioner met four times weekly with children who had been referred by courts or school authorities for intensive counseling. These groups counseling sessions began at six o'clock in the evening and lasted from one to one and a half hours. John B. Romano became petitioner's immediate supervisor on March 18, 1977. With the acquiescence of
Mr. Romano's immediate predecessor, Ben Robinson, petitioner ordinarily reported for work between half past nine and half past ten in the morning.
The week Mr. Romano started as petitioner's supervisor, he noticed that petitioner arrived for work between half past nine and ten in the morning. When he spoke to petitioner about this, petitioner told him of an accommodation that had been reached with Mr. Robinson, on account of petitioner's staying at work late to conduct group counseling. Mr. Romano told petitioner that he should report for work at half past eight in the morning, until a youth counselor's vacancy that then existed in the office could be filled. Subsequently, on at least one occasion before May 31, 1977, Mr. Romano spoke to petitioner about being late for work. On May 31, 1977, by which time another counselor had been hired, petitioner reported for work at approximately half past ten. On June 7, 1977, after petitioner had been suspended, Mr. Romano issued a written reprimand to petitioner, characterizing petitioner's arrival at half past ten on May 31, 1977, as "an insubordinate offense." Respondent's exhibit No. 5.
One Harry Greene told Earl Stout, a service network manager for respondent and Mr. Romano's superior, that a boy whom petitioner had supervised had accused petitioner in open court of selling drugs and smoking marijuana. Messrs. Greene, Stout and Romano visited the facility at which petitioner's accuser was incarcerated and interrogated him. On May 13, 1977, a Friday, Mr. Romano told petitioner to meet him at nine o'clock the following Monday, but did not explain why.
Present at the meeting on May 16, 1977, were petitioner, Mr. Romano, Mr. Greene and Mr. Stout. Petitioner was told of the accusations against him, but the accuser's identity was withheld. Mr. Stout gave petitioner the choice of resigning his position or taking annual leave for the duration of a formal investigation. Petitioner refused to resign. Mr. Stout instructed petitioner to tell no one that he had been asked to take leave or that he would be the subject of an investigation. When petitioner left this meeting he promptly told his fellow youth counselors that the had been suspended. For this petitioner received a written reprimand dated June 7, 1977. Respondent's exhibit No. 6. Petitioner subsequently availed himself of grievance procedures to raise the question whether he should have been permitted to take administrative leave instead of annual leave; and it was decided that he was entitled to take administrative leave.
On June 8, 1977, Earl Stout wrote petitioner a letter which began "On June 1, you were advised by me that effective June 2, you were being suspended for insubordinate acts . . . ." This letter was sent to petitioner by certified mail. Mr. Stout testified without contradiction that blanket authority had been delegated to him to suspend employees under him.
CONCLUSIONS OF LAW
A career service employee like petitioner may be suspended for just cause, which is defined by rule to include insubordination. Rule 22A-7.10(6) and (7)(b), F.A.C. Petitioner's refusal to comply with Mr. Romano's direct order to change the time sheet constituted insubordination.
With respect to the question of the severity of the penalty, "the agency has sole discretion . . . ." Florida A & M University v. Lewis, 327 So. 2d 862 (Fla. 1st DCA 1976).
RECOMMENDATION
Upon consideration of the foregoing, it is RECOMMENDED:
That the suspension be upheld.
DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Mr. J. Wayne Jennings, Esq. 2871 Forth-Fifth Street
Gifford, Florida 32960
Mr. K.C. Collette, Esquire Forum 3, Suite 800
1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KENNETH BOWE, )
)
Petitioner, )
)
vs. ) CASE NO. 77-2077
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in West Palm Beach, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on June 21, 1978.
For Petitioner: Kenneth Bowe, propria persona. For Respondent: K. C. Collette, Esquire
Forum 3, Suite 800
1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
By letter dated September 30, 1977, Mr. Earl Stout gave petitioner formal notice, on behalf of respondent, of a 30 calendar day suspension from his job as youth counselor II, effective September 28, 1977. As grounds for the action, the letter alleged that petitioner "on September 27, 1977, without the prior knowledge or authorization of [his] supervisor . . . went on leave" and that, on the same date, petitioner's "supervisor received four Vouchers For Reimbursement of Travel Expenses submitted by [petitioner] dating back to April of 1977."
FINDINGS OF FACT
Respondent employed petitioner as a youth counselor II in Fort Pierce, Florida. At all pertinent times, petitioner (who has since resigned) enjoyed career service status.
Early on the morning of September 27, 1977, petitioner arrived at his office in Fort Pierce. Not finding John Romano, his immediate supervisor, he telephoned Mr. Romano's home but did not reach Mr. Romano. Petitioner then left the office for his own home from which, between eight and quarter past, he telephoned the office and spoke to Mr. Romano's secretary. He asked her to relay to Mr. Romano his request to take compensatory leave that morning, telling her he could be reached at home if his taking leave would not be satisfactory. When Mr. Romano got the message petitioner had left with the secretary, he telephoned petitioner's house but got no answer. Mr. Romano then drove to petitioner's house where he found petitioner holding a paint brush. Mr. Romano asked petitioner to come to work that afternoon and petitioner did so.
In the past, with at least one exception, petitioner had made written application in advance for compensatory leave, in accordance with a formal policy he was aware required this of employees of respondent's office of youth services. On August 29, 1977, petitioner called Mr. Romano's office and left word with Carolyn Dodge that he wanted to take compensatory leave that morning. He asked her to tell Mr. Romano and gave her a telephone number where he could be reached if Mr. Romano disapproved. He heard nothing from Mr. Romano and did take four hours of compensatory leave on the morning of August 29, 1977, which he indicated on a leave and attendance record he later submitted to Mr. Romano. Petitioner's exhibit No. 1. Mr. Romano signed this form, certifying its accuracy. He also placed his initials on the form near the entry for August 29, 1977.
After petitioner reached the office on September 17, 1977, he submitted travel vouchers seeking reimbursement for expenses incurred in performing his duties going back as far as April of 1977. This was not in keeping with a long standing practice pursuant to which respondent" employees submitted travel vouchers monthly. Submitting travel vouchers monthly makes it possible to
obtain current information about how actual travel expenses compare with monies budgeted for that purpose. No question as to the accuracy of the travel vouchers submitted by petitioner has ever arisen, and he was reimbursed for the amounts claimed in the vouchers, even though some of the expenses had been incurred in the preceding fiscal year.
According to respondent's "Employee Rules of Conduct and Guidelines for Disciplinary Action," respondent's exhibit No. 4, appropriate disciplinary action for a first occurrence of absence without authorized leave is an oral or written reprimand. Appropriate disciplinary action for a first occurrence of willful violation of rules, regulations or policies, according to the same source, is a written reprimand or a suspension for up to 30 days.
CONCLUSIONS OF LAW
As is provided by Rule 22A-10.05(1), Florida Administrative Code, petitioner, who has attained permanent status in accordance with Rule 22A-7.04, Florida Administrative Code, has a right to appeal his suspension to the Career Service Commission. Pursuant to Section 110.061, Florida Statutes (1977), respondent has the burden to establish sufficient cause for suspending petitioner.
Under former law, with respect to the question of severity of the penalty, "The agency ha[d] sole discretion . . " Florida A & M University v. Lewis, 327 So.2d 862 (Fla. 1st DCA 1976). As long as there was just cause for disciplinary action, it was not for the Division of Administrative Hearings or the Career Service Commission to pass on the severity of the action taken. Id. By enacting Chapter 77-370, Laws of Florida, however, the Legislature provided that the Commission "may, in its discretion, reduce a dismissal to a suspension
. . ." Section 110.061(3)(b), Florida Statutes (1977), or "[reduce the period of a suspension." Section 110.061(3)(c), Florida Statutes (1977). From this, it may be inferred that the Legislature conferred general authority on the Commission to reduce penalties (although no authority to increase penalties was conferred).
While petitioner's late submission of travel vouchers created real administrative difficulties for respondent, the evidence did not establish that it constituted willful violation of a rule, regulation or policy. On the other hand, petitioner's conceded noncompliance with the formal policy requiring prior written application for compensatory leave does constitute cause for disciplinary action. Petitioner's offense is mitigated, however, by the fact that he had taken leave in this manner before with the apparent acquiescence of Mr. Romano.
RECOMMENDATION
Upon consideration of the foregoing, it is RECOMMENDED:
That respondent pay petitioner the money he would have earned if he had been permitted to work on September 28, 1977, and during the 30 calendar days following, and issue a written reprimand to petitioner instead.
DONE and ENTERED this 21st day of July, 1978, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings
530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1978.
COPIES FURNISHED:
Kenneth Howe
703 North 17th Street
Ft. Pierce, Florida 33450
K. C. Collette, Esquire Forum 3, Suite 800
1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
Mrs. Dorothy Roberts Appeals Coordinator
Room 530, Carlton Building Tallahassee, Florida 32304
Art Adams, Director Department of HRS
1317 Winewood Boulevard
Room 216
Tallahassee, Florida 32301
Conley M. Kennison
State Personnel Director Room 530, Carlton Building Tallahassee, Florida 32304
Docket for Case No: 77-002077
Orders for Case No: 77-002077
| Issue Date |
Document |
Summary |
|
Mar. 09, 1978 |
Recommended Order
|
Petitioner found guilty of violating rule of written application for compensatory leave but should be reimbursed for time he was suspended and reprimanded instead.
|
