vs. ) CASE NO. 87-5611
BENNY O. TJIA, )
Respondent. )
Pursuant to written notice a formal hearing was held in before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 1-2, 1988, in Gainesville, Florida.
and Harry F. Chiles
For Respondent: Rodney W. Smith, Esquire
The Petitioner, the University of Florida (hereinafter referred to as the "University"), notified the Respondent, Benny O. Tjia, by letter dated December 9, 1987, that the University intended to suspend Dr. Tjia for one semester for being absent from the University without authorization. Dr. Tjia disputed the facts upon which the University was relying in support of its proposed action and requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes, in a letter to the University dated December 10, 1987. The request for hearing was filed with the Division of Administrative Hearings by letter from the University dated December 21, 1987.
At the formal hearing the Petitioner presented the testimony of John T. Woeste, Ph. D., Thomas J. Sheehan, Ph. D., Wayne B. Sherman, Ph. D., Dewayne L. Ingram, William J. Carpenter, Jr., Ph. D., James B. Barrett, Ph. D., and Catherine A. Longstreth, Ph. D. The Petitioner also presented the deposition testimony of Dr. Tjia.
Dr. Tjia did not call any witnesses or offer any exhibits.
The day before the formal hearing the parties filed a Prehearing Stipulation. The parties stipulated to certain facts in the Stipulation. Those facts have been included in the Findings of Fact portion of this Recommended Order.
The parties also stipulated to the admission of 31 exhibits which were marked as "Petitioner" exhibits and were accepted into evidence. The University offered six other exhibits. One of those exhibits was marked as Petitioner's exhibit 9 in substitution for a duplicate exhibit included within the 31 stipulated exhibits. The other five exhibits were marked as Petitioner's exhibits 32-36. The six additional exhibits were accepted into evidence.
The parties have filed proposed recommended orders. Dr. Tjia has indicated in his proposed recommended order that he does not intend to make proposed findings of fact. The University's proposed recommended order does contain proposed findings of fact. A ruling on each of the University's proposed finding of facts has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
Whether the Respondent, Benny O. Tjia, should be suspended from his position with the University for one semester and be required to reimburse the University for one working day?
Benny O. Tjia has been employed by the University since July 1, 1975.
Dr. Tjia has been employed as an Extension Floriculture Specialist in the Department of Ornamental Horticulture of the Institute of Food and Agricultural Sciences (hereinafter referred to as "IFAS"), of the University.
IFAS, including the Department of Ornamental Horticulture, provides teaching, research and extension services at the University.
Dr. Tjia is a tenured Associate Professor at the University with an appointment in the Department of Ornamental Horticulture.
Dr. Tjia's duties include the planning, developing and implementation of off-campus educational programs and the dissemination of research information to plant growers and the public in the area of floriculture. Dr. Tjia is the only Extension Floriculture Specialist working throughout the State of Florida.
The chairman of the Department of Ornamental Horticulture, and Dr. Tjia's immediate supervisor, is Dr. Thomas Sheehan. Dr. Sheehan's immediate supervisor is Dr. John T. Woeste, IFAS Dean for Extension.
On July 22, 1987, Dr. Tjia requested approval of leave with pay for the period October 12-27, 1987. The purpose of this leave was to participate as a speaker at a conference scheduled for October 15-17, 1987, and to participate in a post-conference seminar on October 22, 1987, at Massey University, New Zealand.
Dr. Sheehan, in a memorandum dated August 11, 1987, approved Dr. Tjia's request for leave with pay, but only for the period of October 13-24, 1987. Dr. Sheehan advised Dr. Tjia that any additional time off would have to be taken as annual leave. Dr. Sheehan further advised Dr. Tjia that he should inform Dr. Sheehan in advance of any future negotiations for proposed out-of-state or out- of-country travel in order to avoid any embarrassment to Dr. Tjia or the University if leave is not approved.
In late August, 1987, Dr. Tjia discussed with an Australian businessman the possibility of presenting a series of seminars in Australia from October 26, 1987, through November 10, 1987.
Dr. Tjia decided that be would request approval of leave without pay to attend the seminars in Australia. He realized, however, that he did not have sufficient annual leave to cover the period of time he planned to spend in Australia. Therefore, Dr. Tjia requested the payment of 2,000.00 as compensation for his participation in the Australian seminars, which he believed would reimburse him for the leave without pay he would have to take from the University.
During the first week of September, 1987, the Australian businessman and Dr. Tjia agreed that Dr. Tjia would participate in the seminars. Despite Dr. Sheehan's instructions to discuss out-of-county travel with him before accepting, Dr. Tjia did not inform Dr. Sheehan of, or obtain approval for, the Australian seminars before or after agreeing to participate.
On Friday October 9, 1987, Dr. Tjia left a request for annual leave for the period October 26, 1987, through November 2, 1987, with Dr. Sheehan's secretary Dr. Tjia did not indicate in his request that he intended to participate in seminars in Australia during this period of time. Instead, Dr. Tjia indicated that he intended to visit relatives.
On October 9, 1987, Dr. Tjia also left a request for leave without pay for the period November 3-13, 1987. Again, Dr. Tjia did not indicate in his request that he intended to participate in seminars in Australia during this period of time. Instead, Dr. Tjia indicated that he was requesting the leave for "personal reasons."
Dr. Tjia did not discuss or attempt to discuss his leave requests of October 9, 1987, with Dr. Sheehan.
When Dr. Sheehan received Dr. Tjia' leave requests on October 9, 1987, he attempted to contract Dr. Tjia to determine more information about Dr. Tjia's leave plans. Dr. Sheehan was unable to contact Dr. Tjia, however. After being informed that Dr. Tjia was running errands and would not return to this office on October 9, 1987, Dr. Sheehan wrote a memorandum to Dr. Tjia granting his request for annual leave on October 26, 1987, through November 2, 1987, and denying his request for leave without pay. A copy of this memorandum was left on Dr. Tjia's desk and in his University mail box and the original was mailed to Dr. Tjia's residence. Dr. Sheehan did not attempt to call Dr. Tjia.
Dr. Tjia left the University on October 9, 1987. He left Gainesville, Florida, on Saturday October 10, 1987. Dr. Tjia never informed Dr. Sheehan that he intended on leaving Gainesville on October 10, 1987, instead of October 13, 1987, the first day of his approved leave.
Dr. Tjia did not return to the University until November 16, 1987. Dr. Tjia was absent from the University without approval on October 12, 1987, and from November 3, 1987, through November 15, 1987.
Dr. Tjia did not submit his request for approval of his proposed absence without pay until the last minute and did not wait until he determined whether his absence had been approved because he did not believe that his request would be approved.
Dr. Tjia did not report to work on Monday, October 12, 1987. Dr. Tjia did not receive approval for his absence on October 12, 1987. October 12, 1987, was Columbus Day. Although Columbus Day is a Federal holiday, it is not a holiday for University personnel. Although Dr. Tjia was told by the department's administrative secretary that Columbus Day was a day, Dr. Tjia should have known that Columbus Day had not been a holiday for University personnel ever since his employment by the University in 1975. Additionally, Dr. Tjia was provided with a list of holidays in a memorandum which did not list Columbus Day as an authorized holiday. Dr. Tjia's testimony that he believed Columbus Day was a holiday is inconsistent with the fact that he requested approval of leave on July 22, 1987, for October 12, 1987.
On or about October 19, 1987, Dr. Sheehan realized that Dr. Tjia had not receive the memorandum disapproving Dr. Tjia's request for leave without pay before his departure on October 10, 1987. Therefore, Dr. Sheehan telephoned Dr. Tjia's host in New Zealand an left a message requesting that Dr. Tjia call him.
On October 21, 1987, Dr. Tjia telephoned Dr. Sheehan. Dr. Sheehan read his October 9, 1987, memorandum denying Dr. Tjia's request for leave without pay to Dr. Tjia over the telephone. Dr. Tjia was informed that he must return to the University on November 3, 1987 and that his failure to do so would constitute grounds for disciplinary action, including dismissal.
On October 29, 1987, Dr. Sheehan received a letter dated October 23, 1987, from Dr. Tjia. In this letter Dr. Tjia indicated that he would not return to the University on November 3, 1987, as instructed by Dr. Sheehan. Dr. Tjia indicated that he would not return because he believed that his cancellation of his commitments would cause embarrassment to himself and the University.
On October 30, 1987, Dr. Sheehan sent Dr. Tjia a mailgram, in care of Dr. Tjia's Australian host. Dr. Sheehan informed Dr. Tjia in the mailgram that his failure to report to the University a directed would constitute insubordination, neglect of his responsibilities to the University and a violation of the University's rules and regulations.
Dr. Sheehan also called the spouse of Dr. Tjia's Australian host twice and asked her to ask Dr. Tjia to call him.
Dr. Tjia received the information contained in Dr. Sheehan's mailgram of October 30, 1987, and Dr. Sheehan's request to call. Dr. Tjia did not call Dr. Sheehan, however, because he knew what Dr. Sheehan was trying to tell him.
Dr. Tjia returned to the University on November 16, 1987. Dr. Tjia knew that he would be disciplined for failing to return to the University on November 3, 1987.
Dr. Tjia did not visit relatives during the period of his annual leave as he indicated he planned to do in his request for annual leave.
On November 19, 1987, Dr. Sheehan delivered a letter to Dr. Tjia from Dr. Woeste dated November 16, 1987. In this letter Dr. Tjia was informed that the University intended to suspend him without pay for the Spring Semester of 1988 (January 4 - May 5, 1988). Dr. Tjia was also informed that he would be required to reimburse the University for his salary for October 12, 1987. Dr. Tjia was informed that these actions were being taken because of his absence from the University on October 12, 1987, and during the period of November 3-13, 1987, without approval. Dr. Tjia was also informed that his actions constituted insubordination and neglect of his responsibilities to the University. Finally, Dr. Tjia was informed that he had the right to respond to the letter in writing or he could request a meeting within ten days of receipt of the letter. Dr. Tjia did not respond to the letter.
By letter dated December 9, 1987, Dr. Woeste informed Dr. Tjia that the University had decided to take the actions outlined in the letter of November 16, 1987. Dr. Tjia was advised that he had the right to request a hearing pursuant to Section 120.57, Florida Statutes. Dr. Tjia requested a hearing pursuant to Section 120.57(1), Florida Statutes. The proposed action of the University was held in abeyance pending conclusion of the hearing.
During the period of Dr. Tjia's absence without authorization from November 3, 1987, through November 13, 1987, Dr. Tjia's duties and responsibilities as an employee of the University were not carried out by Dr. Tjia. As a full-time faculty member, Dr. Tjia was required to be present at the University to preform day-to-day responsibilities unless his absence was approved by the University. Dr. Tjia did not perform these duties.
Dr. Tjia received the University Faculty Handbook in January of 1984 and in the Fall of 1987. At page 24 of the 1987 Handbook it is provided:
A leave of absence without pay may be granted by the President when it is determined that the leave of absence is an important benefit to the faculty member and the University.
Pursuant to this provision, faculty members are required to provide sufficient information to demonstrate the benefit to the University and the faculty member of any leave without pay requested by a faculty member.
IFAS Internal Management Memorandum Number 6C1-6.30-1-11, which Dr. Tjia received, requires that University faculty members submit requests for leave without pay well in advance of the period of leave.
Dr. Tjia did not comply with the portion of the Handbook quoted, supra, by providing the University with sufficient information in his request for leave without pay of October 9, 1987, or otherwise, which demonstrated any benefit to the University. Dr. Tjia also did not comply with IFAS Internal Management Memorandum Number 6C1-6.30-1-11. Instead, Dr. Tjia waited until the day of his departure from the University and the day before his departure from
Gainesville before submitting his request for leave without pay. Dr. Tjia intentionally waited until October 9, 1987, to request leave without pay because he was afraid it would be denied.
No other employee of the Department of Ornamental Horticulture has requested leave without pay.
Leave without pay has not been approved by the University for faculty members who desire to engage in the type of activities Dr. Tjia engaged in while he was absent from the University without approval. Leave without pay has only been granted for short periods of time when an employee has been inadvertently unable to return to the University as planned. Leave without pay has not been granted under circumstances similar to those involved in this case.
Dr. Tjia, as a University faculty member, is charged with knowledge of the rules of the University and the Board of Regents. Dr. Tjia was aware, or should have been aware of the pertinent rules an regulations concerning leave and disciplinary matters. He also knew that he was in violation of those rules when he failed to return to the University on November 3, 1987, as directed by Dr. Sheehan. Dr. Tjia also knew that suspension was one of the penalties that could be imposed for neglect of duties or for insubordination.
The University has suspended faculty members for misconduct. The University has not suspended any faculty member under circumstances similar to this case but no faculty member has failed to return to the University when instructed to do so other than Dr. Tjia.
Dr. Tjia's failure to return to the University at the end of his annual leave on November 3, 1987, could have been treated by the University as a voluntary resignation pursuant to Rule 6C1-7.029(11), Florida Administrative Code. The University chose the lesser penalty of suspension to give Dr. Tjia an opportunity to remain with the University. The University chose suspension as the penalty in order to impress upon Dr. Tjia and other employees the seriousness of Dr. Tjia's offense, especially in light of his prior leave- related disciplinary problems.
Dr. Tjia has been reprimanded and suspended by the University in the past for leave-related violations at the University.
On August 30, 1984, Dr. Tjia received a written reprimand for absence from the University without approval.
On September 27, 1985, Dr. Tjia was suspended without pay for ten days for being absent from the University without approval and for misrepresentations to University officials.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
Section 240.227, Florida Statutes, authorizes the University to establish conditions of employment with the University. Pursuant to this authority, the University has adopted Rule 6C1-7.029, Florida Administrative Code. This Rule provides procedures to be followed by University faculty members in taking various types of leave, including annual and sick leave and
leave with and without pay. In particular, Rule 6C1-7.029(9), Florida Administrative Code, provides, in pertinent part, the following:
(9) Leave of Absence without Pay.
(a) A leave of absence without pay must be granted by the President or the President's designee when it is determined that the leave of absence is of important benefit to the faculty member and to the University.
[Emphasis added].
Consistent with Rule 6C1-7.029(9), Florida Administrative Code, IFAS internal Management Memorandum Number 6C1-6.30-1-11, requires that faculty members submit requests for absences without pay in advance of the period of leave. Additionally, Dr. Sheehan advised Dr. Tjia in his memorandum of August 11, 1987, that Dr. Tjia should discuss any future out country travel Dr. Sheehan before agreeing to such travel.
The evidence in this case proved that Dr. Tjia did not comply with the requirements of Dr. Sheehan's memorandum of August 11, 1987, IFAS Internal Management Memorandum Number 6C1-6.30-1-11 or Rule 6C1-7.029, Florida Administrative Code, with regard to his absence from the University on October 12, 1987, or during the period from November 3, 1987, through November 13, 1987. Dr. Tjia did not submit his request well in advance departure. Despite the fact that Dr. Tjia was planning his absence in August of 1987, he did not request approval of his absence until October 9, 1987, the day of his departure from the University and the day before his departure from Gainesville. Dr. Tjia also failed to obtain approval from the President of the University or his designee before departing. Instead, Dr. Tjia left Gainesville without making any effort to determine whether his request had been approved. Based upon the weight of the evidence in this case it is apparent that Dr. Tjia failed to mention the seminars he intended to attend in Australia failed to request approval of his absence until the last minute and failed to insure that his absence was approved before departing the University in blatant disregard of the University's requirements.
The University has the authority to terminate or suspend, with or without pay, the employment of any faculty member pursuant to Rule 6C1- 7.048(2)(a), Florida Administrative Code, "for just cause." The term's "just cause" are defined, i pertinent part, by Rule 6C1-7.048(1), Florida Administrative Code, as follows:
Just cause for termination suspension, and/or other disciplinary action imposed on a faculty member shall he defined as incompetence or misconduct, which shall include, but not be limited to, the following:
Neglect of duty or responsibilities which impairs teaching, research, or other normal and expected services to the University;
Failure to perform the terms of employment;
Willful violation of the rules and regulations of the Board of Regents and/or the University.
The evidence in this case proved that Dr. Tjia violated all of these provision of Rule 6C1-7.048(1), Florida Administrative Code. Dr. Tjia has only been charged wish neglect of duty and insubordination, however. See Sober v. School Board of Broward County, 06 So.2d 1105 (Fla. 4th DCA 1987).
Dr. Tjia's absence from the University on October 12, 1987, and from November 3-13, 1987, constituted neglect of Dr. Tjia's duty or responsibilities which impaired his normal and expected services to the University. Unless a faculty member is authorized to be absent from the University, the faculty member is expected and required to be present at the University to carry out his or her duties. As pointed out by the University, there is no requirement that the University actually prove that any specific tasks was not carried out in order to prove neglect. Faculty members are expected to be present whether they have specific tasks to carry out and if they fail to be present, they have neglected their duty. See Artis v. State, 350 So.2d 1170 (Fla. 4th DCA 1950); and School Board of Collier County v. Steele, 345 So.2d 1166 (Fla. 1st DCA 1977).
Dr. Tjia was required to be present at the University on October 12, 1987, and during the period of November 3, 1987, through November 13, 1987. His failure to be present or to obtain approval for his absence constitutes neglect of duty.
Insubordination is not specifically listed as incompetency or misconduct under Rule 6C1-7.048(1), Florida Administrative Code. Nor has the University pointed out which specific portion of Rule 6C1-7.048(1), Florida Administrative Code, it believes that insubordination comes under. It is concluded, however, that insubordination does constitute "misconduct" under Rule 6C1-7.048(1), Florida Administrative Code. Therefore, insubordination is "just cause" for the suspension of a faculty member.
It is also concluded that Dr. Tjia's actions in refusing to return to the University on November 3, 1987, as specifically directed by Dr. Sheehan and his failure to discuss out-of-country travel with Dr. Sheehan before committing to such travel as directed by Dr. Sheehan in is August 11, 1987, memorandum to Dr. Tjia constitutes insubordination. See McAllister v. Florida Career Service Commission, 353 So.2d 940 (Fla. 1st DCA 1980) ; and Muldrow v Board of Public Instruction of Duval County, 188 So.2d 414 (Fla. 1st DCA 1966).
Based upon the foregoing the University has proved that "just cause" "exists in this case pursuant to Rule 6C1-7.048(1), Florida Administrative Code, to terminate suspend with or without pay and/or take other disciplinary action against Dr. Tjia. The University, therefore, has the authority to suspend Dr. Tjia. The University has not cited any authority which specifically allows the University to require Dr. Tjia to pay back his salary for October 12, 1987.
Rule 6C1-7.048(1), Florida Administrative Code, however, authorizes the University to take "other disciplinary action" for just cause. Therefore, the University also has the authority to require that Dr. Tjia repay the University for his absence on October 12, 1987. The University has argued that this conclusion ends the matter; that the University has sole discretion to determine what disciplinary action to impose. Although this argument is generally correct, the University has overlooked the requirement of Section
120.57(1)(b)(9), Florida Statute, that Hearing Officers include a recommended penalty in Recommended Orders, if applicable. Therefore, it is appropriate to consider whether suspension of Dr. Tjia is warranted.
In light of Dr. Tjia's blatant disregard for the University's rules and regulations, his total disregard for the lawful orders of his immediate supervisor and the fact that this is the third time that the University has had to take action against Dr. Tjia for leave-related problems, it is concluded that the University's proposed suspension of Dr. Tjia for one semester and the requirement that he reimburse the University absence on October 12, 1987, is reasonable an appropriate.
Dr. Tjia has not argued that he is blameless in the matter. Nor has Dr. Tjia denied the facts of this case. Instead, Dr. Tjia has argued that the proposed disciplinary action of the University is unfair. Some of Dr. Tjia's arguments are discussed, infra.
First, Dr. Tjia has argued that Dr. Tjia's two previous leave-related disciplinary actions should not be considered in this case. No authority has been cited to support this argument. Nor is the argument persuasive. It would be unrealistic for the University to ignore Dr. Tjia's history of problems complying with the University's rules in determining the appropriate disciplinary action to be taken in this case.
Secondly, Dr. Tjia has argued that he had an appropriate purpose for being absent from the University. This argument misses the point. It is the function of the University to determine when its faculty members are to be excused from carrying out the normal everyday duties for which they were hired. That determination must be made before obligations are undertaken and it must be made by the University and not by Dr. Tjia.
Thirdly, Dr. Tjia has argued that he assumed that leave without pay would be casually approved as is annual leave. The weight of the evidence in this case does not support this position. Based upon the weight of the evidence, Dr. Tjia believed that his absence would not be approved. That is why he waited until the day of his departure from the University to submit his request. Additionally, even if Dr. Tjia did assume that his request for leave without pay would be casually approved, Dr. Tjia's assumption was not reasonable.
Fourthly, Dr. Tjia has argued that he was not aware of the requirements of the University Faculty Handbook. Dr. Tjia's ignorance of the University's requirements concerning the use of leave does not excuse his actions, especially in light of the leave problems which he had in the past at the University. Additionally, Dr. Tjia's actions in this case were taken, in part, in blatant disregard to instructions given to Dr. Tjia which he chose to ignore and not because of his lack of knowledge of the University's rules and regulations.
Fifthly, Dr. Tjia has argued that Dr. Sheehan should have tried to contact him at his home on the weekend of October 10-11, 1987, to inform him that his October 9, 1987, request for leave without pay had been disapproved. It was Dr. Tjia, however, who had the responsibility to insure that his request had been approved. Dr. Sheehan attempted to contact Dr. Tjia at his office, where he was supposed to be, on October 9, 1987. Dr. Sheehan also left a
memorandum denying the request for leave without pay at Dr. Tjia's office and in his University box and sent the original memorandum to Dr. Tjia's home in the
belief that Dr. Tjia would not be leaving Gainesville until October 13, 1987, the first day of his authorized absence. These actions by Dr. Sheehan where sufficient to meet any obligation of the University concerning Dr. Tjia's request for leave. It is Dr. Tjia who failed to meet his responsibility with regard to determining whether his October 9, 1987, request leave without pay had been approved.
Finally, Dr. Tjia has argued that the first time he learned there was a problem was when he was already in New Zealand. Therefore, Dr. Tjia argues that requesting that he return on such short notice from New Zealand was unreasonable. Dr. Tjia's argument ignores the fact that Dr. Tjia did not give Dr. Sheehan or anyone else at the University an opportunity to disapprove his request to be absent from the University after November 3, 1987, until after he had already made his plans and dived in New Zealand. Part of the reason why the University requires that leave without pay be approved ahead of time is to avoid this type of situation. Dr. Tjia, however, chose to ignore this requirement and took the chance that the University would not insist on his compliance with the University's rules. In short, Dr. Tjia chose to place himself in the position of being ordered to return from New Zealand and having to face the possibility of changing his plans at the last minute.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the University issue a Final Order requiring Dr. Tjia
reimburse the University within thirty days of the date of the Final Order for his absence from the University on October 12, 1987, and suspending Dr. Tjia from his position with the University without pay for one semester.
DONE and ENTERED this 13th day of December, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5611
The University has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
13 26, 28 and 36.
14 27.
15 26 and 28.
16 28.
17 29.
18 36 and 39.
19 40.
20 41.
21 30.
22 34-35.
23 37-38.
Marshall M. Criser, Jr. President
Isis Carbajal de Garcia Assistant General Counsel Office of the General Counsel University of Florida
Harry F. Chiles
Rodney W. Smith, Esquire Post Office Box 625 Alachua, Florida 32015
