STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND W. JOHNSTON, )

)

Petitioner, )

)

vs. )

) CASE NO. 87-1236 DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held before William R. Cave, the designated Hearing Officer of the Division of Administrative Hearings, on July 16, 1987, in Palatka, Florida. The issue for determination is whether, under the facts and circumstances of this case, Petitioner is deemed to have abandoned his position and resigned from the Career Service.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Ed Pantaleon, Esquire

Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303 BACKGROUND

By letter dated January 23, 1987, that was hand delivered on February 12, 1987, after the Petitioner failed to claim his certified mail from the post office, Respondent notified Petitioner that having been absent from work for three (3) consecutive days without authorized leave of absence he was considered to have abandoned his position with the Respondent and to have voluntarily resigned from the Career Service effective 5:00 p.m., January 16, 1987. By letter dated February 23, 1987, Petitioner requested a formal proceeding before the Department of Administration. By Order dated March 20, 1987, the Department of Administration accepted the Petitioner's petition for a formal hearing and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct such hearing. This cause was filed with the Division of Administrative Hearings on March 25, 1987.

On July 16, 1987, at the place and time scheduled for the formal hearing, Petitioner failed to appear. Efforts to locate the Petitioner and ascertain why he was not present produced no results. After waiting thirty (30) minutes, Respondent was allowed to proceed forward with its case.

The Respondent presented the testimony of Frank J. Alogna. Respondent's exhibits A-D were received into evidence.

Only the Respondent submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Petitioner was employed by Respondent and supervised by Frank J. Alogna, Park Manager at Ravine State Gardens at Palatka, Florida.

   
   

2. Petitioner signed an acknowledgment receipt indicating that: (a) he had received an Employee Handbook; (b) it was his responsibility to review the Handbook; and (c) he was to request clarification, if needed, from his supervisor.

   
   

3. Petitioner knew, or should have known, since the Handbook explained job abandonment, that unauthorized leave of absence could result in the loss of his job through abandonment.

   
   

4. Petitioner was absent without leave on January 14, 15, and 16, 1987. Respondent's regular days off were January 17 and 18, 1987. January 19, 1987 was a paid holiday. Respondent was absent without leave again on January 20 and 21, 1987. Petitioner's last day of work was January 11, 1987 since January 12 and 13, 1987 were Petitioner's regular days off. Respondent tried on several occasions to reach Petitioner, but was unable to do so. At 7:00 p.m. on January 21, 1987 Petitioner telephoned Alogna but had no satisfactory explanation for his unauthorized leave. During this telephonic conversation on January 21, 1987, Petitioner was informed by Alogna that he was considered to have abandoned his position and to have resigned from the Career Service. Respondent formally advised Petitioner of this decision by letter dated January 23, 1987 which was hand delivered to the Petitioner on February 12, 1987 after Petitioner failed to claim the letter sent by certified mail through the post office.

   
   

5. At no time relevant to this proceeding was any type of leave requested by Petitioner, or granted by Respondent.

   
   

6. Although Petitioner was notified by regular U.S Mail of the date, place, and time of the formal hearing, Petitioner failed to appear.

   
   

7. Petitioner lived approximately one (1) block from the entrance of Ravine State Gardens where he worked.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.

   
   

9. Rule 22A-7.10(2), Florida Administrative Code, provides in pertinent part:

   1. Abandonment of Position--

      1. 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. . . .

         
         

10. The evidence establishes that Petitioner, without authorized leave, was absent for three (3) consecutive workdays from his employment. Petitioner failed to establish any basis which would have excused, or authorized, his absence from work during the period in question.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a Final Order be entered deeming the Petitioner to have abandoned his position and to have resigned from the Career Service.

Respectfully submitted and entered this 10th day of September, 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1236

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

Petitioner did not submit any Proposed Findings of Fact or Conclusions of

Law.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1.-2. Adopted in Finding of Fact 4.

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 4.

3. Adopted in Finding of Fact 5.

4. Adopted in Finding of Fact 7.

5. Adopted in Finding of Fact 4.

6. Adopted in Finding of Fact 6.

7. Adopted in Finding of Fact 3.

COPIES FURNISHED:

Ed Pantaleon, Esquire Asst. Gen. Counsel

Dept. of Natural Resources 3900 Commonwealth Blvd.

Tallahassee, Florida 32303

Raymond W. Johnston Route 3., Box 4655

Palatka, Florida 32034

Pamela Miles, Esquire Dept. of Admin.

435 Carlton Bldg.

Tallahassee, Florida 32399-1550

Adis Vila, Secretary Dept. of Administration

435 Carlton Bldg.

Tallahassee, Florida 32399-1550

Augustus D. Aikens, Gen. Counsel Dept. of Admin.

435 Carlton Bldg.

Tallahassee, Florida 32399-1550

Tom Gardner, Executive Dir. Dept. of Natural Resources 3900 Commonwealth Bldg.

Tallahassee, Florida 32303

Docket for Case No: 87-001236

Orders for Case No: 87-001236