STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDI J. BURLESON, )

)

Petitioner, )

)

vs. ) CASE NO. 82-625

)

FLORIDA PAROLE AND )

PROBATION COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on June 10, 1982, in Tallahassee, Florida. The following appearances were entered: the Petitioner, Judi J. Burleson, appeared on her own behalf; Earl H. Archer, Tallahassee, Florida, appeared on behalf of the Florida Parole and Probation Commission; and David V. Kerns, Tallahassee, Florida, appeared on behalf of the Department of Administration.

By letter dated October 15, 1980, the Florida Parole and Probation Commission ("Commission" hereafter) formally advised the Petitioner that she had been deemed to have abandoned her position with the Commission, and that she had a right to petition the Department of Administration regarding the matter. By letter dated October 24, 1980, Petitioner requested a hearing before the Department of Administration. By letter dated February 27, 1981, the Department advised Petitioner that it lacked jurisdiction over the matter. Petitioner pursued an appeal to the Florida First District Court of Appeal. The Court concluded that Petitioner had not been given a fair opportunity to contest the Department's decision regarding lack of jurisdiction, and remanded the matter for further proceedings. Burleson v. Department of Administration, 410 So.2d

581 (1 DCA Fla. 1982). The Department thereafter forwarded the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing.

The final hearing was scheduled by notice dated April 7, 1982, to be conducted as set out above. The Commission filed two Motions to Dismiss which were denied by Order entered June 7, 1982. The Order denying the Motions to Dismiss is hereby incorporated into this Recommended Order in accordance with Rule 28-5.205, Florida Administrative Code. At the hearing, the Petitioner testified as a witness on her own behalf and called the following additional witnesses: George R. Dillard, Jr., the Commission's Personnel Manager; Gene Burleson, the Petitioner's husband; Cecilia Roberts, a personal friend of the Petitioner; Barbara Ann Cox, a co-employee of the Petitioner; Barbara A. Greadington, the Chairperson of the Commission; Harry P. Dodd, the Commission's Revocation Administrator; and Rolf Johnsen, a Parole Officer employed with the Florida Department of Corrections, who was previously employed as a Revocation Specialist with the Commission. The Commission called the following witnesses: Bobby Paulk, the Commission's Administrative Services Director; George Dillard; Harry Dodd; Maurice Crockett, a Commissioner employed with the Parole and

Probation Commission; and Barbara A. Greadington. The Department of Administration called Nevin Smith, the Department's Secretary, as its only witness. Petitioner's Exhibits 1 through 15, Parole and Probation Commission Exhibits 1 through 4, and Department of Administration Exhibit 1 were offered into evidence and received.

The Petitioner and the Commission have submitted proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they have been expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as contrary to the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The issues in this proceeding are whether the Petitioner abandoned an employment position with the Florida Parole and Probation Commission, and whether she was properly separated from employment with the Commission based upon abandonment. Petitioner contends that her failure to report for work with the Commission did not constitute an abandonment because the Commission's offer of employment was presented in such a manner as to make it impossible for the Petitioner to appear for work. The Commission contends that the Petitioner failed to report for work with the Commission for three consecutive workdays, that her failure to report was not authorized, and that she therefore abandoned her position with the Commission.

FINDINGS OF FACT

1. Prior to 1980, Petitioner had been employed with the Florida Parole and Probation Commission at its Pensacola office as a Parole Agent. Her employment was terminated, and she pursued a proceeding before the Florida Career Service Commission. The Career Service Commission ordered that the Parole and Probation Commission reinstate her to her former position and that she receive back pay and benefits. The Petitioner had moved to Tallahassee, and the Commission sought to accommodate her by offering her a position in Tallahassee. There were no immediate vacancies. The Petitioner was offered a position as Administrative Assistant to the Chairperson of the Commission. The position was at a lower pay grade than Petitioner had been in, and she declined the position. The Commission considered itself to be under an obligation to place Petitioner in a position similar to the one she had held previously.

   
   

2. The 1980 session of the Florida Legislature authorized ten new positions to the Commission. Although the effective date of the authorization was July 1, 1980, the positions were only funded to commence in October, 1980, and to run through the remainder of the fiscal year. The Commission concluded that an emergency existed for filling two of the authorized positions. The Commission decided to take steps to fill a "Parole Examiner I" position and, a "Revocation Specialist" position immediately, rather than to wait until October

1. In order to accommodate the immediate filling of those positions, the filling of other newly authorized positions would be delayed until subsequent to October.

   
   

   1. The Commission advertised for the Parole Examiner I and Revocation Specialist, positions by Job Opportunity Announcements dated July 7, 1980. The application deadline was July 18, 1980. These were the first professional level vacancies that the Commission had had in its staff other than the Administrative Assistant position since the time that the Career Service Commission ordered

      that Petitioner be reinstated. Commission personnel commenced to interview qualified applicants after July 18. At some point, consideration was given to offering one or both of the positions to the Petitioner. Commission personnel contacted Petitioner on July 28, 1980, and offered her the Parole Examiner I position. Petitioner was also advised that she could be considered for the Revocation Specialist position, which was at a higher pay grade than the position that Petitioner previously held. A letter confirming this was sent by the Commission to the Petitioner. The letter was dated July 28, 1980. By letter dated August 1, Petitioner stated that she would like to be considered for the Revocation Specialist position. On Wednesday, August 6, 1980, the Commission's Personnel Manager advised Petitioner that she was being offered the Revocation Specialist position and that she would be expected to report to her supervisor the following Monday, August 11, 1980, at 8:00 A.M. A letter confirming the offer and the conditions, dated August 6, 1980, was delivered to Petitioner by hand delivery on August 7. These letters formally confirmed conversations that had taken place among Petitioner and various employees of the Commission.

      
      

   2. On August 8, 1980, the Petitioner contacted the Commission's Personnel Manager and expressed a desire to take annual leave so that she could report to work in the new position subsequent to August 11. The Personnel Manager informed Petitioner that she would need to make her leave request directly to Harry P. Dodd, the Commission's Revocation Administrator, who would be Petitioner's supervisor. The Petitioner was able to contact Mr. Dodd in Starke, Florida, where he was performing Commission duties. She initially indicated that she would like to take two weeks' annual leave commencing on August 11. During the conversation, she scaled this request down to three days. Mr. Dodd was unclear as to the extent of his authority to grant or deny the leave request. He contacted the Commission's Personnel Manager and legal counsel and was advised that the decision of whether to grant or deny the leave request should be made by Mr. Dodd as a management decision. Mr. Dodd concluded that the leave request should be denied, and he contacted the Petitioner by telephone and advised her of that. Petitioner did not at that time advise Mr. Dodd that she would not report for work on August 11. By letter dated August 8, 1980, Petitioner advised the Chairperson of the Commission that she would not be able to report on August 11. She did not state her intentions to report at any future date. Petitioner did not report for work on August 11, 12, or 13, 1980. By letter dated August 13, the Commission advised Petitioner that it regarded her failure to report on August 11 as a refusal of the position. Thereafter, by letter dated October 15, 1980, the Commission advised Petitioner that if she were considered an employee rather than a prospective employee in view of the Career Service Commission's reinstatement order, that she had been absent without authorized leave for three days, and deemed to have abandoned her position. She was advised of her right to seek review of that decision through a petition to the Department of Administration. Petitioner filed such a petition, and this proceeding ensued.

      
      

   3. During July and August, 1980, the petitioner was employed on a part- time basis with the Federal Public Defender's Office in Tallahassee. Petitioner did not take any steps to advise anyone at her office as to the possibility of her accepting a position with the Parole and Probation Commission. While Petitioner testified that it would have been appropriate for her to give at least two weeks' notice before leaving the Federal Public Defender's Office, it does not appear from the evidence that her failure to give such notice would have unduly burdened her employer. Furthermore, if Petitioner had immediately advised her employer when she became aware that she may obtain full-time employment with the Commission, adequate notice could have been given.

      Petitioner and her husband had planned a vacation for August 11 and 12, 1980. While reporting to work on August 11 would have frustrated those plans, it does not appear that Petitioner would have incurred any significant expense or unhappiness from frustration of the vacation plans other than disappointment.

      It would have been difficult for the Petitioner to make arrangements for day care for her children in order to report for full-time employment with the Commission on August 11. It does not appear that those difficulties were insurmountable, however, and Petitioner could, albeit with difficulty, have made such arrangements. It was not impossible for the Petitioner to report for work with the Commission on August 11, 1980.

      
      

   4. The Commission's Revocations Section was severely understaffed during the summer of 1980. Legislation had been enacted which dramatically increased the number of parole revocations, and the Commission's staff had not been increased to handle the increase. During July and August, the Revocations Section had a severe backlog. It is for this reason that the Commission decided to take immediate steps to fill a newly authorized Revocation Specialist position. In addition to the increased workload and backlog, the Revocations Section had some peculiar personnel difficulties which increased the need to immediately fill the newly authorized position. One of the Revocation Specialists was seriously ill and frequently absent. Another was scheduled for military leave, which was not discretionary. Mr. Dodd had made plans to be on annual leave which could not be changed because he was using the leave to close a real estate transaction. In view of these difficulties, Mr. Dodd's refusal to grant the Petitioner's annual leave request was justified. It does not appear that the refusal of the leave request was made on any basis other than a sound management decision.

      
      

   5. After the Petitioner failed to report for work by August 13, the Commission took immediate steps to fill the Revocation Specialist position. While there were unexplained delays in accomplishing that, the position was filled effective August 26, 1980.

      
      

   6. There is no evidence from which it could be concluded that the Commission's offer of the Revocation Specialist position to the Petitioner was other than a bona fide offer. There is no evidence from which it could be concluded that any of the persons involved in offering the position to Petitioner felt any ill will toward her. The denial of the Petitioner's request that she not be required to report on August 11, as she had been directed, was based on a sound management decision. There is no evidence from which it could be concluded that the denial was generated by any ill feeling toward Petitioner or any desire that she not take the position. Taking the position on such short notice undoubtedly would have caused the Petitioner some inconvenience in leaving the position that she had held with the Federal Public Defender's Office and arranging child care. The frustration of vacation plans would have been disappointing. These factors do not, however, justify the Petitioner's failure to report as directed, nor could it be concluded that it was impossible for the Petitioner to report as directed.

      
      

   7. In view of the fact that the petitioner was offered the Revocation Specialist position in order that the Commission could comply with its responsibility to reinstate the Petitioner and the fact that the Petitioner was receiving back pay from the Commission, the Petitioner should be viewed as having been employed by the Commission. Her failure to report for work for three consecutive days as she had been directed to do constitutes an abandonment of her position with the Commission.

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes; Burleson v. Department of Administration, 410 So.2d 581 (1 DCA Fla. 1982).

      
      

   9. In its Motion to Dismiss, the Commission contended that the Petitioner did not timely petition for review to the Department of Administration. This contention is without merit. By letter dated August 13, 1980, the Commission advised Petitioner that it viewed her failure to report for work as a refusal of the Revocation Specialist position. It was not until October 15, 1980, that the Commission advised Petitioner that it considered her failure to appear as an abandonment and notified her of her right to seek review with the Department of Administration. Petitioner sought review from the October 15 letter in a timely manner.

      
      

   10. The Commission contended that the Petitioner has no right to a hearing based upon Hadley v. Department of Administration, 411 So.2d 184 (Fla. 1982).

       In Hadley, the Supreme Court of Florida held that constitutional due process principles do not require a "judicial model" in determining the issue of whether a state employee has abandoned his position. The Court in Hadley did not consider whether the Administrative Procedure Act, Chapter 120, Florida Statutes, applies to proceedings in which abandonment is considered. That is the issue that the First District Court of Appeal addressed in Burleson v.

       Department of Administration, supra, and answered affirmatively.

       
       

   11. Department of Administration Rule 22A-7.10(2)(a) provides:

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. An employee who separates under such circumstances shall not have the right of appeal to the Career Service Commission; however, any such employee shall have the right to petition the Department of Administration for review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

"Abandonment of position" is defined at Department of Administration Rule 22A- 14.01(1) as: "The unauthorized absence of an employee from the employee's position for 3 consecutive workdays." Petitioner was an employee of the Parole and Probation Commission on August 11, 1980, by virtue of Career Service Commission rulings that she was entitled to reinstatement and back pay. The Petitioner's failure to appear for work as directed on August 11, 12, and 13, 1980, constitutes unauthorized absence from her employment with the Parole and Probation Commission. Since the Petitioner was absent without authorization for three consecutive workdays, she abandoned her position with the Parole and Probation Commission effective at the end of the workday on August 13, 1980.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Department of Administration holding that the Petitioner abandoned her position with the Florida Parole and Probation Commission effective at the end of the workday on August 13, 1980, and that her appeal to the Department of Administration be dismissed.

RECOMMENDED this 19th day of July, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1982.

COPIES FURNISHED:

Mrs. Judi J. Burleson 2631 Bantry Bay Drive

Tallahassee, Florida 32308

Earl H. Archer, Esquire Assistant General Counsel Florida Parole and Probation

Commission

1309 Winewood Blvd., Bldg. 6

Tallahassee, Florida 32301

Mr. Nevin G. Smith Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Daniel C. Brown, Esquire General Counsel

Department of Administration

530 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 82-000625

Orders for Case No: 82-000625