STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2048

)

JERRY O. BRYAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Crestview, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on October 1, 1990. The Division of Administrative Hearings received the hearing transcript on October 5, 1990.

On October 12, 1990, petitioner filed agency's proposed findings of fact and conclusions of law. Inasmuch as the parties stipulated to most of the facts, no appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

605 Suwannee Street

Tallahassee, Florida 32399-0458 For Respondent: Pro Se

PRELIMINARY STATEMENT

On January 23, 1990, DOT's H.E. Prescott wrote respondent Jerry O. Bryan "advis[ing him] that [he was] hereby removed from [his] position as Engineering Technician III, Crestview Construction Office and the Department of Transportation payroll effective at the close of business ... January 22, 1990," because he had been absent three consecutive days:

You have been absent without authorized leave since noon, Tuesday, January 16, 1990. You advised your superior you were to report to the Federal Marshall ... [on] January 16, 1990 ...

In accordance with Chapter 22A-7.10(2),

F.A.C. ... an employee who is absent

without authorized leave of absence for three

(3) consecutive workdays shall be deemed to have abandoned his/her position and to have resigned from Career Service.

By letter to the Secretary of the Department of Administration dated February 8, 1990, respondent "request[ed] a review of the facts," which the Department of Administration treated as a request for formal administrative proceedings and forwarded to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989).

FINDINGS OF FACT

1. Respondent Jerry O. Bryan began working for the State Road Department in 1968. In 1983, he started his most recent assignment with the agency, now called the Florida Department of Transportation, as an engineering technician III, in a career service position.

   
   

2. An employee handbook respondent was furnished in 1983 had this to say about "JOB ABANDONMENT":

   
   

   After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy.

   
   

   Petitioner's Exhibit No. 1, at page 43. Perhaps with this in mind, respondent requested leave without pay when he learned he faced six months' incarceration, as a result of his criminal conviction for cultivating marijuana on federal property.

   
   

3. Respondent's supervisor, Robert Edward Minchin, Jr. denied his request for leave without pay, in accordance with a DOT policy against granting leave to DOT employees who are incarcerated. Mr. Bryan did not request annual leave, although some 220 hours' entitlement had accumulated.

   
   

4. Asked whether he would have granted Mr. Bryan's leave request absent "a policy of not authorizing leave while someone was incarcerated," Mr. Minchin answered in the negative, saying Mr. Bryan "was going to be needed during ... [the time] he would be out. T.22.

   
   

5. At no time did petitioner ever take disciplinary action against respondent, who received satisfactory or higher job performance ratings, the whole time he worked for petitioner.

   
   

6. Aware that Mr. Bryan did not desire or intend to resign, relinquish or abandon his career service position, Mr. Minchin took steps to remove him from the payroll solely on grounds that he was absent without authorized leave for three consecutive workdays.

   
   

   CONCLUSIONS OF LAW

   
   

7. Since the Department of Administration referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).

8. Petitioner relies exclusively on Rule 22A-8.002(5)(b), Florida Administrative Code, which provides:

   
   

   If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the agency head shall place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays shall consider the employee to have abandoned the position and resigned from the Career Service.

   
   

   Petitioner maintains that "Bryan's intent and desire to return to work for the Agency after his incarceration is irrelevant." Agency's Proposed Findings of Fact and Conclusions of Law, p. 3.

   
   

9. Conceding respondent had no desire or intention to abandon or resign his position, petitioner rests its entire case on the proposition that three days' unauthorized absence gives rise to an irrebuttable presumption of abandonment. But the weight of authority supports the view that the presumption is rebuttable. Desilva v. Department of Transportation, 15 FLW D1809 (Fla. 4th DCA; July 11. 1990); Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62 (Fla. 2nd DCA 1990); Michael J. Rodgers v. Department of Transportation, No. AB-87-20 (DOA; Aug. 9, 1988); Clara M. Penney v. Department of Insurance, No. 85-1530 (DOA; Jan. 31, 1986). Contra, Florida State University v. Brown, 436 So.2d 287 (Fla. 1st DCA 1983).

   
   

10. In upholding Rule 22A-7.10B, as another part of the abandonment rule was then numbered, against the challenge that it was a stratagem to deprive covered employees of a hearing to which they were entitled before the Career Service Commission, the court in Cook v. Division of Personnel, Department of Administration, 356 So.2d 356 (Fla. 1st DCA 1978) pointed out that no such hearing was available to an employee who submitted a written resignation and stated:

    
    

    While some employees go through the formal process of submitting a resignation in writing, others leave abruptly or simply fail to show up for work. There must be some point at which the Division may be able to say that the employee is not returning, process the paper work and refill the vacant position. Rule 22A-7.10B puts all Career Service employees on notice that absence without authorized leave for three consecutive days is tantamount to a formal resignation. The particular time period is less significant than the principle which provides for some term of absence being construed as a resignation.

    
    

    At 358. But here DOT had much more than an unexplained absence to construe in a principled way. In informing his employer of his impending, involuntary absence, respondent made clear he had no intention to resign. "Once [the employee] prove[s] to the hearing officer that he did not abandon his job, DOA

    [i]s obligated to reject [the employer]'s determination of separation by voluntary abandonment." Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62, 67 (Fla. 2nd DCA 1990).

    
    

11. Involuntary absence without leave may well afford adequate grounds for dismissing a career service employee, or taking other disciplinary action against him. When the consequences of an employee's criminal act render him unavailable, somebody else must fill in, if work is to go forward. But, under Section 447.207(8)(10), Florida Statutes (1989), as amended after the decision in the Brown case, the Public Employees Relations Commission has exclusive jurisdiction over dismissals, suspensions and reprimands of career service employees who have attained permanent status, including any disciplinary action for "inability to perform assigned duties or ... conviction of any crime involving moral turpitude." Section 110.227(1), Florida Statutes (1989).

    
    

12. "The reasonable scheme established by the abandonment rule is done considerable violence in circumstances where an employer knows that the absence is not caused by an intent to resign, but uses the rule as a basis of taking action ... against an employee to separate him from the Career Service. See Section 110.203(22), Florida Statutes." Michael J. Rodgers v. Department of Transportation, No. AB-87-20 (DOA; August 9, 1988).

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner reinstate respondent and award back pay, but without prejudice to instituting any appropriate proceedings before the Public Employees Relations Commission.

DONE and ENTERED this 27th day of November, 1990, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1990.

COPIES FURNISHED:

Jerry O. Bryan Federal Prison Camp Post Office Box 600

Eglin AFB, Florida 32542-7606

William A. Frieder, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Robert Scanlon, Esquire Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0458

Augustus D. Aikens, Jr., General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-002048

Orders for Case No: 90-002048