Judges: K. N. AYERS
Agency: Office of the Governor
Latest Update: Jan. 05, 1987
Summary: Absent three days without leave constitutes abandonment of position
86-2893.PDFSTATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
BRIAN P. CLANCY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-2893
) STATE OF 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 November 4, 1986, and December 18, 1986, at Bartow, Florida.
APPEARANCES
For Petitioner: Brian P. Clancy, pro se
680 Azalea Avenue
Bartow, Florida 33830
For Respondent: Vernon L. Whittier, Jr., Esquire
Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
By letter dated July 7, 1986, the Department of Transportation, Respondent, advised Brian P. Clancy, Petitioner, that by virtue of having been absent from his position without authority since June 30, 1986, he was deemed to have resigned his position in the Career Service by abandoning his position. By letter dated July 22, 1986, Clancy requested a hearing to contest this determination. The file was forwarded to the Division of Administrative Hearings and the case was scheduled for hearing.
On September 23, 1986, a Second Amended Notice of Hearing was issued rescheduling the hearing from 3:00 P.M., November 5, 1986, to 3:00 P.M., November 4, 1986. At the November 4 hearing, Petitioner was not present, no one could be reached at Petitioner's telephone number, Respondent was directed to present its case, and Respondent thereafter called four witnesses and 6 exhibits were admitted into evidence.
This Hearing Officer held additional hearings in Bartow on November 5, 1986, and upon completion of those hearings, I was advised that Clancy had appeared for his hearing. I then spoke to Clancy who stated he had not received the Notice of Hearing rescheduling the hearing from November 5 to November 4.
Petitioner was then told to submit to me a letter stating that he had not received the Second Amended Notice of Hearing and requesting an opportunity to present his case.
Anticipating receipt of this letter, the Hearing Officer directed the attorney for Respondent to send Petitioner a copy of the transcript of the November 4 hearing and have Clancy advise if he wanted to cross-examine any or all of those witnesses. By letter dated November 24, 1986, Clancy was sent a copy of this transcript and told that any witnesses he wanted to cross-examine would be available for questioning on December 8, 1986. A copy of Clancy's response to this letter was not provided to the Hearing Officer but the attorney for Respondent advised the Hearing Officer informally that Clancy wanted to cross-examine only one of those witnesses, Ray Fletcher, Petitioner's immediate supervisor. Upon receipt of this information, the Hearing Officer requested Respondent's attorney to advise Petitioner that he had never requested a second hearing as the Hearing Officer directed him to do and that, unless such a request was received prior to the date set for this second hearing, no such hearing would be held.
By letter dated 12/14/86, Clancy requested such a hearing explaining his failure to request another hearing was due to him being furnished a copy of the transcript by reason of which he "assumed the wheels of justice were rolling along - regardless of this letter." Accordingly, on December 18, 1986, Petitioner cross-examined Ray Fletcher and testified on his own behalf.
There is no real dispute regarding the facts in this case. Proposed findings submitted by Respondent are accepted.
FINDINGS OF FACT
Brian Clancy was employed by the Department of Transportation in a survey crew and had been so employed since before April 19, 1983, until he was deemed to have resigned from his position by abandonment on July 7, 1986.
In March or April, 1986, Petitioner discussed with his immediate supervisor on the survey crew, Ray Fletcher, the possibility of him taking leave in July to go to New York in time for the Statue of Liberty celebration July 4, 1986. Fletcher advised Petitioner that by that time he would have accrued enough leave to take ten days off. Petitioner interpreted that as approval for leave.
On June 30, 1986, Petitioner did not report to work and his absence was reported by his supervisor as were his subsequent absences on July 1, 2 and 3, 1986. On July 3, 1986, James Lott, District Location Surveyor, sent a memo to his supervisor stating that Clancy had been absent from the position for three consecutive days and requested he be terminated by reason of abandonment. By letter dated July 7, 1986 (Exhibit 4) the Deputy Assistant Secretary - District One advised Clancy that he was deemed to have resigned his position by reason of abandonment and of his right to a Chapter 120, Florida Statutes, hearing.
At no time did Petitioner request leave-in writing nor was he ever granted leave in writing. Other than his discussions with Fletcher in April or May regarding taking leave in July did Petitioner say anything else about his leave and Fletcher has no recollection that any specific time period for this leave was discussed.
Petitioner contends that he never intended to abandon his position and thought that his discussions with Fletcher constituted approval of his leave request.
By acknowledgment dated April 19, 1983 (Exhibit 2), Petitioner acknowledged receipt of Employee Handbook (Exhibit 1). Petitioner further contends that each time he took leave prior to June 30, 1986, his supervisor had the leave request prepared for him and brought it to Petitioner to sign, and that Petitioner never went to the office to initiate the paperwork. Petitioner did not testify that he ever departed on leave without having written approval prior to June 30, 1986.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 22A-7.010, Florida Administrative code, provides in pertinent part:
(2) Abandonment of Position
(a) An employee who is absent without authorized leave of absence for three consecutive days shall be deemed to have abandoned the position and to have resigned from the Career Service. An employee who has career service status and 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 for a review of the facts in the case and a ruling as to whether the circumstances constitutes an abandonment of position.
The abandonment rule is not a disciplinary rule but rather puts employees on notice that certain actions or non- actions will be construed as a form of unwritten resignation. Cook vs. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978). In Hadley vs. Department of Administration, 411 So.2d 184 (Fla. 1st DCA 1982) the Court stated:
The state and public . . . have an interest in replacing public employees that [sic] do not work. Rule 22A-7.10(2)(a) recognizes that interest and, by facilitating elimina- tion of those who do not report to work for a certain time, promotes it.
Petitioner readily acknowledged that he never submitted a written request for leave nor did he receive any written approval for leave. Although he had been employed by Respondent for some four years and was granted leave on numerous prior occasions, he claims that he was unaware that leave approval need be given in writing. In support of this position Petitioner cites the Employee Handbook (Exhibit 1). His #reliance thereon is not well placed. That publication provides at P. 21:
Annual leave credit is expected to be used for yearly vacations. However, you may request annual leave for other purposes. Get your supervisor's approval before taking leave. If an emergency
develops, tell your supervisor of the emergency and ask verbal approval to use annual leave. When you return to work, complete the leave request form, as appropriate.
While the above-quoted directive does not explicitly state that leave requests must be in writing such a requirement is clearly implied from the exception in case of an emergency. Even then, the employee is directed to complete the leave request form as soon as he returns after the emergency leave.
Petitioner's contention that he did not intend to abandon his position is probably true. However, the rule here involved does not provide for a subjective determination of Petitioner's intent. Instead, it applies a purely objective standard. The act alone determines the consequences. By taking off on annual leave without receiving formal approval Petitioner was absent without authorized leave and he remained so absent for more than 3 days. He thereby resigned from his position in the Career Service.
From the foregoing it is concluded that Brian P. Clancy failed to report to work on June 30, 1986 and remained absent from his workplace without authority until on or about July 11, 1986, and thereby resigned from his position by abandonment. It is
RECOMMENDED that the Petition of Brian P. Clancy for reinstatement to his former position with the Department of Transportation be dismissed.
ENTERED this 5th day of January, 1987, in 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 5th day of January, 1987.
COPIES FURNISHED:
Brian P. Clancy 650 Azalea Place
Bartow, Florida 33830
Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building
650 Suwannee Street
Tallahassee, Florida 32301
Thomas Drawdy Secretary
Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Gilda H. Lambert Secretary
Department of Administration Carlton Building Tallahassee, Florida 32301
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
BRIAN P. CLANCY
Petitioner,
vs. DOA Case No. AB-86-16
DOAH Case No. 86-2893
DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER
This matter is before the Department of Administration for entry of a final order.
The Recommended Order herein with percent entered on January 5, 1987, by K.
Ayers, Hearing Officer. The record in this case, including' the exhibits introduced into evidence at the hearing and transcript of the proceedings, has been reviewed. Neither party having filed exceptions to the recommended order, and all matters of record in this cause, it is hereby ORDERED that:
The Findings of Fact contained in the Recommended Order (Exhibit "A", attached hereto) are adopted as Findings of Fact of the Department of Administration.
The Department of Administration makes the following additional findings of fact: Petitioner was employed by Respondent for four years. On all previous occasions when Petitioner requested leave, his supervisor initiated the required paperwork. (Transcript 12-18-86, page 19, lines 1-16.)
Petitioner's uncontroverted testimony was that:
"...they'd get it filled out and then they'd bring it out to the truck and we would sign it. That's the way it was." (Trans. page 19, lines 6-8.)
Ray Pletcher had been Petitioner's supervisor only since January, 1986, and had not previously acted on any request for leave made by Petitioner. (Transcript 11-4-86, page 20, lines 21-25; Transcript 12-18-86, page 19 lines 9-11.) One prior leave request form and approval (Exhibit 5) was received in evidence, but neither the exhibit nor the testimony regarding it indicated who initiated the paperwork or how it was completed. (Transcript 11-4-86, page 17, line 11 through page 18, line 5.)
The Department of Administration rejects the conclusions of law in the recommended order and makes the following conclusions of law:
Section 22A-7.010, Florida Administrative Code, provides:
(2) Abandonment of Position
(a) An employee who is absent without authorized leave of absence for 3 consecu- tive deemed to have abandoned the position and to have resigned from the Career Service. An employee who has career service
status and 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 for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.
The rule creates a presumption that an employee who is absent without authorized leave for three days has resigned his position. That presumption, however, is rebuttable. Clara Penny v. Department of Insurance, Case No. 85- 1530 (D.O.A. January 31,1986). A review of the facts may reveal that the circumstances do not constitute abandonment of position.
Implied in the recommended order is the conclusion that Petitioner should have known that requests for and approval of leave must be in writing. The Employee's Handbook. provides (Exhibit 1, page 21):
Annual leave credit is expected to be used for yearly vacations. However, you
may request annual leave for other purposes. Get your supervisors approval to use before taking leave. If an emergency develops, tell your supervisor of the emergency and ask verbal approval to use annual leave.
When you return to work, complete the leave request form, as appropriate.
The inference that approval of annual leave must be in writing is reasonable, but not especially clear.
More important is the past practice of the agency regarding Petitioner's leave requests. On all prior occasions, the paperwork was initiated by Petitioner's supervisors, and it was necessary only for Petitioner to sign what was presented to him. When Petitioner discussed his request for leave with his supervisor in March or April, 1986, he had done oil that he believed was required of him. The supervisor, however, did not feel he had approved leave because his approval was contingent on submission by Petitioner of a formal written request. The subsequent actions of the supervisor and Petitioner were consistent with their respective interpretations of the conversation.
The hearing officer found that Petitioner interpreted his supervisor's statements as approval for leave, and we conclude that Petitioner's reliance on that discussion was reasonable, based upon his past experience with the agency. This is not a question of whether Petitioner intended to abandon his position. Rule 22A-7.010 does not provide for a subjective determination of Petitioner's intent. However, Petitioner reasonably believed his leave was authorized, and his reasonable belief was based upon the past practices of his supervisors within the employing agency.
Under the circumstances presented here, Petitioner did not abandon his position and should be reinstated to his position.
ORDER
Based upon the foregoing findings of fact and conclusions of law it is ORDERED that the action of the Department of Transportation in deeming
Brian P. Clancy to have abandoned his position of employment and to have resigned from the Career Service is REVERSED AND OVERRULED. The Petitioner shall be reinstated effective as of July 3, 1980, and shall receive all monies and benefits which he would have received if he had not been deemed to have abandoned his position, less any earnings from employment or unemployment compensation petitioner may have received from the date of his separation from the agency until his reinstatement.
This Order constitutes final agency action. Judicial review of this proceeding may be instituted by filing a Notice of Appeal in the First or Second District Court of Appeal pursuant to Section 120.68, Florida Statutes. Such notice must be filed the District Court of Appeal within thirty (30) calendar days of the date this Order is filed in the official records of the Department of Administration, as indicated in the Certificate of Clerk below, or further review of this action will be barred.
DONE AND ORDERED in Tallahassee, Florida, this 17th day of March, 1987.
GILDA H. LAMBERT, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32301 (904) 488-4116
Certificate of Clerk:
Filed in the official records of the Department of Administration this 18th day of March, 1987.
Clerk
COPIES FURNISHED:
K.N. Ayers, Hearing Officer Division of Administrative Hearings
101 Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32301
Brian P. Clancy 650 Azalea Place
Bartow, Florida 33830
Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Pamela Miles
Assistant General Counsel Department of Administration
438 Carlton Building Tallahassee, Florida 32301
Docket for Case No: 86-002893
Orders for Case No: 86-002893
