STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. HELEN COOK, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 77-411RX

   )

   DIVISION OF PERSONNEL, ) DEPARTMENT OF ADMINISTRATION, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   The Petitioner, E. Helen Cook, has initiated this proceeding under Section 120.56, F.S., requesting an administrative determination of a rule of the Division of Personnel, Department of Administration.

   
   

   APPEARANCES

   
   

   For Petitioner: Jerry G. Traynham, Esquire

   1215 Thomasville Road

   Tallahassee, Florida 32303

   
   

   For Respondent: Mary Clark, Esquire

   Room 530, Carlton Building Tallahassee, Florida 32304

   
   

   1. The rule in question, 22A-7.10B, F.A.C., provides that any employee of the State who incurs an unexplained absence for three consecutive work days shall be deemed to have abandoned the position and to have resigned from the Career Service. The rule denies such employees the right to appeal to the Career Service Commission but gives such employees the right to petition the State Personnel Director for a determination of the facts in each case and a ruling as to whether they justify a finding of abandonment of position. A hearing on this petition was held before the undersigned on March 24, 1977 at Tallahassee, Florida.

      
      

   2. The Petitioner contends that the above rule is in conflict with Section 110.60, F.S., which guarantees each employee of the Career Service who has permanent status hearings before the Career Service Commission for all suspensions, reductions of pay, transfers, layoffs, demotions and dismissals. The Petitioner contends that by denying Career Service employees the right to appeal their terminations to the Career Service Commission violates the above statutory section and is therefore invalid.

      
      

   3. Chapter 110, F.S., gives the Division of Personnel the authority to adopt a plethora of rules regulating the entire subject of state employee administration. It can be stated at the outset that the rule in question does not go beyond this delegation of legislative authority. The rule, therefore is not invalid for reasons of being unauthorized use of rule making power.

   4. The Petitioner had been a Career Service employee of the Department of Transportation and had been notified by that agency that because of such certain facts she was considered to have abandoned her position and was no longer an employee of that agency. The Department of Transportation notified the Petitioner by letter dated March 17, 1976, that she had abandoned her position and thereafter the Petitioner was stricken from the rolls of employees of the Department of Transportation. From that day forward she received no salary from the State, accrued no annual leave and received no benefits from the State retirement system. In short, all actions that would normally take place when an employee resigns or is terminated were affected in the case of Petitioner. Thereafter, State Personnel Director held a hearing under the authority of the rule in question concerning the facts surrounding the Department of Transportation's decision that the Petitioner abandoned her position under the rule in question. Following the hearing the State Personnel Director issued a finding that the Petitioner had in fact abandoned her position and should be considered no longer an employee of the Department of Transportation.

      
      

   5. The above facts are not in dispute. The parties disagree however as to whether they constitute termination of the employee on behalf of the Department of Transportation. The Respondent, Division of Personnel, through its director, Mr. Conley Kennison, testified that an abandonment of a position under the rule in question is considered tantamount to a resignation of an employee.

      
      

   6. The issue therefore becomes whether under the rule in question Career Service employees are denied a statutory right to appeal to the Career Service Commission where it has been determined they have abandoned their position. If so then the rule must be invalid for no administrative rule can validly conflict with State statute law. State v. Atlantic Coast Line R. Co., 47 59. 969; Louisville and N.R. Co. v. Railroad Commissioners, 58 So.543; State ex rel. Railroad Commissioners v. Florida East Coast R. Co., 59 So.385; Atlantic Coast Line R. Co. v. State, 143 So.255; Grissom v. Van Orsdel, 137 So.2d 246; De Thorn v. Beck, 280 So.2d 448.

      
      

   7. It is clear that the Petitioner is substantially affected by the rule in question inasmuch as it was used as the authority for a final decision that she was no longer employed by the Department of Transportation. Section 120.56, F.S., states:

      
      

      "(1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground:

      1. That the rule is an invalid exercise of validly delegated legislative authority."

         
         

   8. The petition filed in this proceeding maintains that the rule in question is invalid for the following reasons:

      
      

      1. It denies Career Service employees rights under Section 110.60, F.S.;

      2. It denies Career Service employees the right to appeal to the Career Service Commission "on the mere assertion by an agency that the

         separation was an abandonment and not a dismissal."

      3. The rule provides for the involuntary termination of employees in the Career Service absent cause for termination; and

      4. The rule conclusively presumes the presence of cause for termination and denies the employee of the right to have cause determined by the Career Service Commission.

         
         

   9. The central issue in this administrative determination is an analysis of what type of action is required when an employee abandons a position with the Career Service. It should be noted that this administrative determination does not involve a question of whether the Petitioner actually abandoned her position or whether the State Personnel Director is applying Rule 22A-7.10B in a fair and uniform manner. Those are questions which would have to be raised on a direct appeal of the decision of the State Personnel Director under Section 120.68, F.S.

      
      

   10. When an employee voluntarily resigns from a Career Service position the nature of the term resignation involves some voluntary and conscious act on the part of the employee notifying the employer of the intention to cease employment. Such an act is vocalized by the employee, either orally or in writing, stating the employee's intention to cease that relationship.

       
       

   11. Each agency may adopt policies or rules to require employees to submit letters of resignation, however employees cannot be forced to submit letters of resignation and it may happen that an employee decides to terminate their employment by simply not showing up for work. The agency must at some time make a decision to cease paying that employee a salary and other benefits which normally accrue to Career Service employees. In this case, such a decision was made that the Petitioner had abandoned her position and it is presumed the decision on the part of the State Personnel Director was final action which could have been reviewed in the courts of this state. See Section 120.68, F.S. See also State of Florida ex rel. Department of General Services v. Ben C. Willis, Fla. Supreme Ct. Case No. DD-104 (March 29, 1977).

       
       

   12. Where an employee abandons his or her position the action on the part of the agency in terminating that employee is merely to strike the employee's name from whatever rolls and to cease paying salary, social security, retirement benefits, etc. Such action is not initiated by the agency, but by the employee in deciding to abandon the position. In such a situation the agency is not terminating an employee for cause as contemplated in Section 110.60, F.S., therefore, the statutory requirements for appeals to the Career Service Commission are not applicable to those circumstances. The procedures set up by Rule 22A-7.10, F.A.C., are not inconsistent with that statute and furthermore are consistent with the requirements of Section 120.57, F.S. Although the Petitioner does not raise the issue that the rule in question conflicts with Chapter 120, F.S. it is clear that the rule contemplates a determination of the employee's substantial interest. However, since it is the agency head as defined by Section 120.52(3), F.S., who holds the hearing to determine whether the employee truly has abandoned the position, it is clear that the rule on its face is not in conflict with the Administrative Procedure Act, Section 120.57(2), F.S. Neither does the rule conflict with Chapter 110, F.S. An abandonment must be considered tantamount to the voluntarily resignation of an employee's position. The only difference between an abandonment and a resignation would be the statement of intention on the part of the employee. In the case of a resignation, the employee verbalizes the intention. In the case of an abandonment, the employee's actions communicate her intention to the agency. Since actions may be more ambiguous than the spoken word, it is only fair that the rule in question sets up a proceeding whereby the employee may challenge the agency's interpretation of the employee's, actions.

   13. In other words, the employee is given a right to a hearing before the State Personnel Director as to whether her actions should have been interpreted as an abandonment. As mentioned above, the decision of the State Personnel Director would be reviewable under Section 120.68, F.S. However, whether the State Personnel Director's decisions are correct or subject to challenge is not the issue in this determination of the rule's validity. The procedures set up in Rule 22A-7.10B are fair and not in conflict with statute law. The implied presumption in that rule, i.e., that an abandonment constitutes a resignation on the part of the employee, is sensible and inherently correct. Since the Florida Statutes do not grant Career Service employees the right to hearings in cases of resignations it must be decided that the rule in question is valid. Therefore, the petition seeking the administrative determination of Rule 22A-7.10B is DENIED.

DONE and ORDERED this 12th day of April, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, DIRECTOR

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 12th day April, 1977.

COPIES FURNISHED:

Mary Clark, Esquire Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304

Jerry G. Traynham, Esquire 1215 Thomasville Road

Tallahassee, Florida 32303

Conley Kennison

State Personnel Director Division of Personnel

530 Carlton Building Tallahassee, Florida 32304

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32304

Liz Cloud Department of State

403 East Gaines Street Tallahassee, Florida 32302

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JANUARY TERM, A.D. 1978.

E. HELEN COOK, NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

Petitioner, PETITION AND DISPOSITION THEREOF IF FILED.

vs.

CASE NO. GG-32

DIVISION OF PERSONNEL, DOAH CASE NO. 77-411RX DEPARTMENT OF ADMINISTRATION,

Respondent.

/ Opinion filed March 10, 1978.

A Petition for Review of an Order of the Department of Administration. Jerry G. Traynham, Ben R. Patterson Law Offices, for Petitioner.

Mary Clark, For Respondent. Mills, acting Chief Judge.

Petitioner seeks review of a final order determining that Florida Administrative Code Rule 22A-7.10B is a valid rule enacted by the Division of Personnel, and does not conflict with the provisions of Chapter 110, Florida Statutes (1975). The issue here is whether Rule 22A-7.10H is a valid exercise of delegated legislative authority.

The Rule provides that an employee within the Career Service who is absent without authorized leave of absence from work for three consecutive days shall he deemed to have abandoned and by providing for the hearing of appeals by persons other than the Career Service Commission.

The Division has broad rulemaking powers in connection with personnel matters. In accordance with the mandates of Section 110.022, the Division established Rule 22A-7.10 describing personnel actions designated "separations". A resignation is one form of separation under this Rule. Resignations may be written or nonwritten as provided in Rule 22A-7.10B. Employees who resign in

Docket for Case No: 77-000411RX

Orders for Case No: 77-000411RX