STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0179

)

DENNIS FOX, )

)

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 March 22, 1984, at Tampa, Florida.

APPEARANCES

For Petitioner: Amelia Park, Esquire

Department of Health and Rehabilitative Services

4000 West Buffalo Avenue Tampa, Florida 33614

For Respondent: Dennis Fox, pro se

8608 Tangle Vine Lane Apartment Number 106

Tampa, Florida 33614

By Amended Petition dated September 16, 1983, Dennis Fox, Respondent herein, requested a review of the determination by the Department of Health and Rehabilitative Services, Petitioner herein, that he abandoned his career service protected position with DHRS by being absent for three consecutive days without authority.

Proceedings were initiated by scheduling a hearing in Tallahassee with the Secretary of the Department of Administration as Hearing Officer. Petitioner then filed a Motion for Change of Venue to Tampa where all witnesses and Respondent are located, and requested the appointment of a Hearing Officer from the Division of Administrative Hearings. The case was then forwarded to the Division of Administrative Hearings for assignment of a Hearing Officer, and the hearing was held as noted above.

Although Fox petitioned for the hearing, the designation of the parties as Petitioner and Respondent was changed to DHRS and Fox, respectively, to clearly establish the burden of proof is upon DHRS to establish the grounds for the disciplinary action taken against Fox. At the hearing Petitioner called two witnesses, Respondent called one witness, and five exhibits were admitted into evidence.

FINDINGS OF FACT

1. At the time Respondent was advised that DHRS was processing his resignation from his position as Social and Rehabilitative Services Counselor II, effective August 31, 1983 (Exhibit 1), Fox had been employed by DHRS for some 12 years. This was termed a "voluntary" resignation by reason of abandonment of position.

   
   

2. Fox had been on leave without pay from August 12, 1983, through August 19, 1983 (Exhibit 4). On Monday, August 22, a woman called Fox's supervisor and told him that Fox was in Miami, his sister had been involved in an automobile accident, and he would not be in to work. On August 24 Fox called his supervisor, Gilbertson, to advise that he was still with his sister but would be back to work by noon on Friday, August 26. During this period, Monday through Friday, Fox was placed on family sick leave. At noon on Friday Fox had exhausted all his sick leave.

   
   

3. Fox did not report to work until September 2, 1983, at which time he was given a copy of Exhibit 1, the original of which had been sent to his residence by certified mail. Fox gave no explanation for his absence but took the copy of the letter given him and left abruptly. He was not asked to explain his absence, nor did he offer any such explanation.

   
   

4. Fox had earlier had differences with his supervisor, Gilbertson, over what Gilbertson considered excessive use of sick leave by Fox.

   
   

5. Fox presented no evidence regarding his period of unauthorized absence from August 26 until he returned September 2. The one witness he called had frequently used sick leave without incurring the displeasure of Gilbertson. However, this witness in the recent past has had his gallbladder removed, hemorrhoid problems, and hepatitis; and had given no reason for anyone to suspect he was abusing the use of sick leave.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Rule 22A-7.10(2)(a), Florida Administrative Code, provides:

   
   

   An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service. An employee who separates under such circumstances shall not have the right of appeal to the Career Service Commission; however, any such employee shall have the right to petition the Department of Administration for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

8. Respondent was in an unauthorized absence status from noon Friday, August 26, 1983, until 8:00 a.m. on Friday, September 2, 1983, a period of four and one-half workdays. He provided no reason for this absence upon his return nor at this hearing.

   
   

9. From the foregoing, it is concluded that Dennis Fox was absent without authority for four and one-half consecutive workdays between noon August 26 and 5:00 p.m., September 1, 1983, and, pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, abandoned his position. It is

RECOMMENDED the action of Petitioner in taking Fox's absence without authority as an abandonment of his Career Service position be approved.

ENTERED this 30th day of March, 1984, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1984.

COPIES FURNISHED:

Amelia Park, Esquire Department of Health and

Rehabilitative Services

W. T. Edwards Facility 4000 West Buffalo Avenue Tampa, Florida 33614

Dennis C. Fox

8608 Tangle Vine Lane Apartment #106

Tampa, Florida 33614

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Nevin G. Smith, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301

Docket for Case No: 84-000179

Orders for Case No: 84-000179