vs. ) CASE NO. 90-2047
Respondent. )
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 9, 1990, in Tallahassee, Florida.
For Respondent: G. Steven Pfeiffer, General Counsel
Barbara Jo Finer, Senior Attorney Department of Community Affairs 2740 Centerview Drive
Whether Oscar Crowell abandoned his career service employment with the Department of Community Affairs pursuant to Rule 22A-7.010, Florida Statutes?
By letter dated February 15, 1990, the Secretary of the Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), informed the Petitioner, Oscar Crowell, that he was deemed to have abandoned his position of employment with the Department pursuant to Rule 22A-7.010, Florida Administrative Code. On March 9, 1990, Mr. Crowell filed a letter dated March 6, 1990, with the Department of Administration contesting the Department's determination and requesting a review of the Department's action. On March 29, 1990, the Secretary of the Department of Administration issued an Order Accepting Petition and Assignment to the Division of Administrative Hearings.
Mr. Crowell's letter of March 6, 1990, and the Department of Administration's Order were filed with the Division of Administrative Hearings on April 2, 1990.
At the formal hearing Mr. Crowell testified on his own behalf and presented the testimony of Rossie McGollie, Ralph Monroe, Edward L. Williams and Letha Miller. Mr. Crowell offered four exhibits. Exhibit 4 was rejected.
The Department presented the testimony of Wanda A. Jones, Mark Helms, Mark Anthony Nixon, Mr. Crowell, Russell Kennedy, Sharon Smith and Randall Kelly.
Mr. Helms was accepted as an expert in personnel management. The Department offered nineteen exhibits. All were accepted into evidence except DCA 14. A ruling on DCA 14 was reserved. DCA 14 is hereby accepted into evidence.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact 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.
The Department is an agency of the executive branch of the State of Florida.
Mr. Crowell, prior to February, 1990, was employed as a career service employee of the Department for approximately 19 years. Mr. Crowell has worked for the State of Florida for approximately 24 years.
Immediately prior to and during part of February, 1990, Mr. Crowell was employed as a Community Assistance Consultant with the Department's Community Development Block Grant Program (hereinafter referred to as the "Grant Program").
Wanda A. Jones, Planning Manager of the Grant Program, was Mr. Crowell's immediate supervisor at all times relevant to this proceeding.
The Department has incorporated the provisions of Rule 22A-8.011, Florida Administrative Code, governing the use of leave, in the Department's Policies and Procedures No. 1109.01. Pursuant to Policies and Procedures No. 1109.01, Department employees are required to notify their supervisor of any illness and obtain approval of the use of annual leave.
Mr. Crowell was counseled by Ms. Jones in January or February, 1989, concerning his failure to obtain authorization for use of sick leave each day that Mr. Crowell was sick. Ms. Jones also explained this requirement at two or three staff meetings. Mr. Crowell was aware of the Department's requirements concerning the use of leave.
Mr. Crowell was required to travel as a part of his employment. Mr. Crowell traveled an average of two times per month.
Mr. Crowell submitted an Authorization to Incur Travel Expense dated December 7, 1989 (hereinafter referred to as the "December 7, 1989, Request"), to the Department requesting authorization to travel on State business on December 13, 14 and 15, 1989. The December 7, 1989, Request was approved by the Department.
Mr. Crowell indicated in the December 7, 1989, Request that "[p]ersonal car will be used for entire trip."
Mr. Crowell did not own a motor vehicle during the period of time at issue in this proceeding. Mr. Crowell intended to rent an automobile, pay the rental charges himself and claim reimbursement only for mileage incurred in travel on State business.
Mr. Crowell had been issued a Budget Rent-A-Car (hereinafter referred to as "Budget"), credit card by the Department on October 6, 1989. Mr. Crowell signed a Department form at the time the Budget credit card was issued acknowledging the following:
that on the date above I received the above-described credit card;
that I, by my signature hereon have acknowledged that I understand all policies
and procedures governing the use of said card; and
that I have been advised that abuse of the use of this card may result in dismissal from employment with this Department and possible prosecution under the laws of Florida.
On December 13, 1989, Mr. Crowell rented an automobile from Budget. Mr. Crowell was given a Lincoln Town Car (hereinafter referred to as the "Lincoln") because of the unavailability of a smaller automobile. Mr. Crowell signed a rental agreement (hereinafter referred to as the "Rental Agreement") for the Lincoln indicating that the rental fees were to be charged to the Department through the Budget credit card issued by the Department to Mr. Crowell.
Pursuant to the Rental Agreement, Mr. Crowell was to rent the Lincoln for approximately three weeks, turning it in on January 3, 1990. The Rental Agreement listed the costs of renting the Lincoln for an hour, a day, a week or a month.
Mr. Crowell submitted a Voucher for Reimbursement of Traveling Expenses dated December 19, 1989, to the Department for authorized travel on December 12-15, 1989. Mr. Crowell indicated that a "[p]ersonal car was used for entire trip" and he claimed reimbursement of $107.00 for mileage driven.
During early January, 1990, Mr. Crowell went to a Budget office with the intent of returning the Lincoln he had rented on December 13, 1989. Mr. Crowell was told that he owed close to $600.00. Mr. Crowell had thought that he would owe approximately $375.00 and, therefore, had not brought enough money to pay the total rental charge. Mr. Crowell left without paying the rental charge or returning the Lincoln.
On December 28, 1990, Mr. Crowell submitted three separate Authorization to Incur Travel Expense forms to the Department seeking approval of travel for State business in January and February, 1990. On the three forms "pov" was noted. Mr. Crowell used "pov" as an abbreviation for "privately owned vehicle."
Mr. Crowell submitted a Voucher for Reimbursement of Traveling Expenses to the Department for two authorized trips for January, 1990. Mr. Crowell indicated that a "pov was used" on one of the vouchers and he claimed reimbursement for mileage driven on both forms.
Mr. Crowell used the Lincoln he had rented on December 13, 1989, for the January, 1990, trips he was reimbursed for.
Sometime during January, 1990, the Tallahassee branch manager of Budget, Russell Kennedy, became concerned that Mr. Crowell was late returning the Lincoln. Therefore, Mr. Kennedy contacted Mr. Crowell and inquired about when he intended to return the Lincoln. Mr. Crowell indicated that he would return the Lincoln on February 1, 1990.
On January 30, 1990, the Department's personnel director, Mark Helms, was informed by the Director of the Housing and Community Development Division, the Division in which Mr. Crowell was employed, that he had been notified that Mr. Crowell had rented the Lincoln with his Department-issued credit card and that the Lincoln had not been returned or paid for. Mr. Helms contacted Mr. Kennedy. Mr. Kennedy informed Mr. Helms that Budget considered the Department to be liable for the rental of the Lincoln. Mr. Kennedy indicated that Mr. Crowell had agreed to return the Lincoln on February 1, 1990.
Mr. Crowell did not return the Lincoln on February 1, 1990.
Mr. Helms spoke with Mr. Kennedy on Monday, February 5, 1990, and was informed that Mr. Crowell had not returned the Lincoln. Mr. Helms informed the Division Director.
On February 5, 1990, Ms. Jones was told by the Division Director to meet with Mr. Crowell and instruct him to resolve the problem he had created by renting the Lincoln with the Department-issued Budget credit card. Ms. Jones met with Mr. Crowell at approximately 3:00 p.m., Monday, February 5, 1990.
Ms. Jones informed Mr. Crowell that the Department was concerned that he had rented the Lincoln using the Budget credit card issued to him by the Department because of the Department's potential liability for the rental. Ms. Jones informed Mr. Crowell that he had to resolve the problem he had created with Budget immediately. She suggested that, although she could not tell him how to use his leave time, he should consider taking time to take care of the matter. Mr. Crowell left the meeting and returned shortly thereafter with his time sheet. Mr. Crowell requested that Ms. Jones approve annual leave from 3:30
p.m. to 5:00 p.m., February 5, 1990, and all day Tuesday, February 6, 1990. Ms. Jones approved Mr. Crowell's request.
Mr. Crowell left work at approximately 3:30 p.m., February 5, 1990. Mr. Crowell did not return to work on February 6, 1990.
On Wednesday, February 7, 1990, and Thursday, February 8, 1990, Mr. Crowell spoke by telephone to an employee of the Department that worked in another section and got the employee to leave a "Post-It" note on his door both days indicating "O.C./SL". Mr. Crowell did not report to work on February 7 or 8, 1990. Ms. Jones treated Mr. Crowell as having used sick leave for these two days.
On February 8, 1990, Ms. Jones sent a letter to Mr. Crowell informing him that his failure to resolve the matter with Budget was a serious disciplinary matter. Ms. Jones did not attempt to telephone Mr. Crowell because he did not have a telephone. Ms. Jones did, however, telephone Cheryl Jamison, whom Ms. Jones believed to be Mr. Crowell's daughter-in-law. Ms. Jones left a message on an answering machine to have Mr. Crowell call her immediately.
On Friday, February 9, 1990, and Monday, February 12, 1990, through Thursday, February 15, 1990, Mr. Crowell did not come to work, call in sick or otherwise inform the Department of the reason for his absence or obtain approval for his absence. Mr. Crowell has not returned to work at the Department since February 5, 1990.
At the formal hearing Mr. Crowell testified that he did not inform Ms. Jones that he would not be at work on February 9, 1990, or thereafter because she had instructed him to not come back until he resolved the problem with Budget over the rental of the Lincoln. This testimony is inconsistent with Ms. Jones' testimony and Mr. Crowell's actions on February 5, 1990, and February 7 and 8, 1990. If Mr. Crowell had in fact been instructed not to return until he resolved the Budget problem and that he did not have to worry about following established procedures for absences, Mr. Crowell would not have gotten approval for annual leave for February 5 and 6, 1990, or informed the Department that he would not be at work on February 7 and 8, 1990, because he was sick.
On February 12, 1990, Ms. Jones telephoned and spoke with Nathan Crowell, Mr. Crowell's son. Ms. Jones indicated that she needed to speak with Mr. Crowell. She was told that Mr. Crowell had been told that she was trying to contact him.
Mr. Crowell received the letter sent by Ms. Jones on February 8, 1990. Mr. Crowell was also aware that Ms. Jones had called his son's telephone number attempting to get in touch with him. Mr. Crowell made no effort, however, to respond to Ms. Jones.
The Division Director was informed by Ms. Jones on February 15, 1990, that Mr. Crowell had been absent for five days without authorization. The same day Mr. Helms received a memorandum from the Division Director recommending that Mr. Crowell be treated as having abandoned his employment with the Department. Mr. Helms prepared a letter for the Secretary's signature informing Mr. Crowell that the Department was treating Mr. Crowell that he had abandoned his position.
At the time that the Department decided to treat Mr. Crowell as having abandoned his position, the Department was aware of efforts by Budget to contact Mr. Crowell and obtain a return of the Lincoln. Budget had sent a certified letter to Mr. Crowell on February 7, 1990, informing Mr. Crowell that criminal charges would be brought against him if he did not return the Lincoln. The return receipt was returned on February 13, 1990, signed by Mr. Crowell. Mr. Crowell still did not return the Lincoln. Mr. Kennedy had also driven by Mr. Crowell's residence several times during early February, 1990, looking for the Lincoln. The Lincoln was not found.
The letter from the Secretary was sent to Mr. Crowell by certified mail, return receipt requested, on February 15, 1990. Mr. Crowell received the letter on February 22, 1990.
Mr. Crowell returned the Lincoln to Budget on Sunday, February 18, 1990. Mr. Crowell did not pay for the rental of the Lincoln at that time.
On February 27, 1990, Mr. Crowell telephoned Mr. Helms. This was his first contact with the Department since February 5, 1990. Mr. Crowell did not indicate that he had not abandoned his position or offer any explanation. Mr. Crowell merely asked Mr. Helms about continued insurance coverage and the payment for his accrued sick and annual leave.
Mr. Crowell sent a letter to the Department of Administration dated March 6, 1990, contesting the Department's determination that he had abandoned his employment.
On March 7, 1990, Mr. Crowell met with Mr. Helms and Barbara Jo Finer, a Department Senior Attorney. Mr. Crowell discussed payment of the Budget rental charges he had incurred with the payment he was to receive for his unused annual leave as a result of his termination of employment.
Budget was paid the rental charges incurred by Mr. Crowell for use of the Lincoln on April 16, 1990. Budget was paid $1,734.03 of Mr. Crowell's payment from the State of Florida for his unused leave.
In addition to the inconsistencies in Mr. Crowell's testimony described in Finding of Fact 29, Mr. Crowell evidenced a lack of credibility while testifying on two other matters. First, Mr. Crowell testified at the formal hearing that he did not receive a telephone call from a representative of Budget. This testimony is contrary to Mr. Crowell's testimony during his deposition taken on June 18, 1990. Secondly, Mr. Crowell testified that he was not notified that his deposition was available to read until 5:00 p.m., Thursday, July 5, 1990. This testimony was contradicted by the office manager of Accurate Stenotype Reporters, the firm which had the deposition prepared.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).
Mr. Crowell has been treated as having abandoned his employment with the Department because of his failure to report to work on three consecutive work days. The Department treated Mr. Crowell as having abandoned his employment pursuant to the authority of Rule 22A-7.010(2)(a), Florida Administrative Code, which provides, in pertinent part:
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.
Rule 22A-7.010, Florida Administrative Code, was adopted pursuant to Section 110.217(6), Florida Statutes.
Mr. Crowell did not dispute the fact that he was absent from work from approximately 3:30 p.m., Monday, February 5, 1990, through Thursday, February 15, 1990. Mr. Crowell argued, however, that his absence was authorized. The evidence failed to support this argument.
Department Procedure 1109.1 governs the manner in which an employee of the Department may take an authorized absence from his or her employment. Among other types of absences not relevant to this proceeding, Department Procedure 1109.1 allows employees to use accrued annual leave only after obtaining approval prior to the time the annual leave is taken. Employees may use accrued sick leave "in accordance with Chapter 22A-8.011 of the Career Service System Rules." Pursuant to Rule 22A-8.011, Florida Administrative Code, employees are required to notify their supervisor of any absence due to illness, injury of exposure to contagious disease.
Mr. Crowell's absence on February 5 and 6, 1990, was authorized. He requested and received approval to use annual leave for his absence on those days. His absence on February 7 and 8, 1990, was also proper. Although he did not speak directly to his immediate supervisor and obtain authorization for the use of sick leave on those days, he did report his absence and the Department treated him as having been absent on sick leave. Mr. Crowell's absence on February 9, 12, 13, 14, and 15, 1990, however, was unauthorized. Mr. Crowell did not obtain permission to take annual leave on those days. Mr. Crowell also did not report to this supervisor that he was ill on those days. Finally, Mr. Crowell did not otherwise obtain authorization for his absence on February 9, 12, 13, 14, or 15, 1990. Accordingly, Mr. Crowell was absent without authorization for more than three consecutive days.
Based upon the foregoing, the Department was authorized by Rule 22A- 7.010, Florida Administrative Code, to deem Mr. Crowell to have abandoned his position with the Department. The presumption created by Rule 22A-7.010, Florida Administrative Code, is a rebuttable one. To overcome the presumption of Rule 22A-7.010, Florida Administrative Code, an employee must prove that there was some reasonable basis for the employee's failure to obtain authorization for his or her absence. See Tomlinson v. Department of Health and Rehabilitative Services, 558 So. 2d 62 (Fla. 2d DCA 1990). In the instant case Mr. Crowell suggested that his absence was authorized and, indeed, required by his immediate supervisor. The weight of the evidence failed to prove Mr. Crowell's assertion. The only evidence in support of Mr. Crowell's position was his own testimony. That testimony was contradicted by the testimony of his immediate supervisor, Mr. Crowell's actions in obtaining authorization for his absence on February 5, 6, 7 and 8, 1990, and the lack of credibility of Mr. Crowell's testimony. Unlike the employee in Tomlinson, Mr. Crowell failed to prove there was a reasonable basis for his failure to obtain authorization for his absence.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order
concluding that Oscar Crowell abandoned his position of employment with the Department and dismissing the petition in this case with prejudice.
DONE and ENTERED this 28th day of September, 1990, in Tallahassee, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1990.
The parties have 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.
Mr. Crowell's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1st Paragraph 32.
2nd Paragraph Hereby accepted.
3rd Paragraph Not supported by the weight of the evidence.
1st paragraph Not supported by the weight of the evidence. 2nd paragraph Not supported by the weight of the evidence.
3rd paragraph The first sentence is hereby accepted. The rest of the proposed findings of fact are not supported by the weight of the evidence.
4th paragraph 2. Except for the first sentence, these proposed findings of fact are not supported by the weight of the evidence.
5th paragraph This paragraph is Mr. Crowell's recommendation and not a finding of fact.
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 2, 27 and 32.
2 1-2.
3 4.
4 3.
5 7.
6 Hereby accepted. 7 5.
8 6.
9 Hereby accepted. 10 12, 23-24.
11 24.
16 30.
17-18 28.
19 31.
20 Hereby accepted. 21 36.
22 32 and 34.
29 12.
30 20.
31 23.
32 33.
33-34 33.
35 12, 14, 17-18 and 35.
36 Hereby accepted.
37-44 and 47 Mr. Crowell did make the statements referred to in these proposed findings of fact and they are not consistent. As the trier of fact, I do not find that Mr. Crowell's credibility was called into question by these inconsistencies.
45-46 40.
G. Steven Pfeiffer General Counsel Barbara Jo Finer Senior Attorney
Augustus D. Aikens, Jr. General Counsel
Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive
