STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. W. JOINES, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 77-837

   ) DEPARTMENT OF HIGHWAY SAFETY AND ) MOTOR VEHICLES, FLORIDA HIGHWAY ) PATROL and CAREER SERVICE )

   COMMISSION, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   This case was heard on October 19, 1977 at 9:00 a.m. in the County Commission Chambers of the Clay County Courthouse, Green Cove Springs, Florida by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case is the Career Service Commission appeal filed by J. W. Joines of his suspension for 16 hours by the Florida Highway Patrol. This case was referred to the Division of Administrative Hearings by the Career Service Commission to conduct a formal hearing pursuant to Chapter 120, F.S.

   
   

   The agency presented testimony concerning three incidents in which Joines was over 30 minutes late reporting for duty. It also produced testimony concerning Joines having taken an unauthorized two hour break. All these events took place within a five month period. It was for the last incident of lateness that Joines was suspended having been charged with neglect of his duty by failing to report to work on time. Joines argued that the action taken against him was for lateness or tardiness, and that the guidelines for disciplinary action adopted by the Florida Highway Patrol require four incidents of tardiness within two months before suspending an employee. Joines points out that this did not occur, and argued that the action be set aside because it failed to comply with the guidelines. The issue presented is whether Joines' conduct constituted neglect of duty.

   
   

   APPEARANCES

   
   

   For Petitioner: J. W. Joines

   In his own behalf

   
   

   For Respondent: Enoch J. Whitney, Esquire

   
   

   FINDINGS OF FACT

   
   

   1. J. W. Joines is an employee of the Division of Highway Safety and Motor Vehicles, Florida Highway Patrol. Joines has permanent Career Service status in his position, and filed a timely appeal of the disciplinary action taken against him.

   2. Joines was 45 minutes late for work on October 7, 1976 having been awakened by the local police at his supervisor's request. He was 30 minutes late reporting to work on November 27, 1976. On December 25, 1976 he took an unauthorized two hour break in his duty tour. Joines was orally counseled for the first incident, received an oral reprimand for the second incident, and a written reprimand for the third incident.

      
      

   3. On March 13, 1977, Joines was 34 minutes late reporting for work. Joines received a 16 hours suspension for neglect of duty for this incident.

      
      

      CONCLUSIONS OF LAW

   4. The letter of disciplinary action suspending Joines states: "This suspension is based upon your violation

      of Personnel Rules and Regulations and the Florida Highway Patrol Manual, General Order 43, page 4, Negligence, as a result,, of your failure to report to duty on time."

      
      

   5. The rules and regulations also address the offense of tardiness or lateness. The disciplinary guidelines provide for suspension when an employee is late four times in two months. Joines argues that this is the offense with which he should have been charged and he had not been late four times in two months.

      
      

   6. The issue presented is whether, given the facts, Joines was guilty of neglect of his duty. This raises the question of what constitutes "tardiness" and what constitutes "neglect," and when, if ever, does tardiness become neglect.

      
      

   7. The answer is clearly one of degree. Joines was late 34 minutes on the occasion he was suspended. This was the last of three incidents in which Joines had been at least 30 minutes late reporting for duty. Joines had also taken an unauthorized break of two hours while on duty. He had received increasingly stringent disciplinary action.

      
      

   8. Given the amount of time Joines was late, 34 minutes, and the preceding events which indicated a pattern of behavior, Joines conduct constitutes negligence as opposed to tardiness. Tardiness refers to lesser periods of lateness, which are minor in scope. Neglect of duty or negligence is habitually being careless in one's approach to duty. The incident for which Joines was disciplined in addition to the preceding course of conduct indicates Joines was habitually careless in approaching his duty. The agency's charge was appropriate, and its action taken for good cause.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency's action was for good cause and should be sustained.

DONE and ENTERED this 8th day of November, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1977.

COPIES FURNISHED:

Enoch J. Whitney, Esquire Dept. of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32301

J. W. Joines

690 Nelson Drive

Orange Park, Florida 32073

Ms. Dorothy Roberts Appeals Coordinator

Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 77-000837

Orders for Case No: 77-000837