Judges: WILLIAM R. CAVE
Agency: Department of Management Services
Latest Update: May 21, 1990
Summary: Based on Department of Transporation (DOT) past action, the Respondent had not abandoned his position with DOT.
84-4026STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 84-4026
)
F. D. MORGAN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above-styled case on January 25, 1985 in Jasper, Florida.
This case was originally improperly styled. The style is now corrected to read Florida Department of Transportation (DOT) v.
F.D. Morgan. Petitioner DOT proceeded first and was charged with the initial burden of proof.
APPEARANCES
For Petitioner: Charles G. Gardner, Esquire
Department of Transportation
Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301
For Respondent: Donald K. Hudson, Esquire
Post Office Box 948 Jasper, Florida 32052
By letter of October 4, 1984 petitioner informed respondent he had abandoned his position by unexcused absence pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code. Respondent petitioned for a formal hearing to the Department of Administration by letter signed by Donald K. Hudson, attorney for respondent, dated October 15, 1984 to which he attached Petitioner's October 4, 1984 letter. The Department of Administration, after assigning a hearing officer and setting the matter for hearing, cancelled the hearing and referred the case to the Division of Administrative Hearings for a formal hearing.
Accordingly, the issue for determination is whether or not respondent abandoned his position and resigned from the Career Service System under the circumstances of this case.
Petitioner presented the testimony of Sylvia Julene Cress, Raymond O. Humphreys, Maxie Dell Markham and Walter Henry Skinner,
III. Respondent Morgan did not testify but presented the testimony of Charles Thompkins. Petitioner's Exhibits 1 through
13 were admitted into evidence. Respondent's Exhibit 1 for identification only was not tendered into evidence and was withdrawn.
The parties submitted post hearing Proposed Findings of Fact and Conclusions of Law pursuant to Section 12O.57(1)(b)(4), Florida Statutes (Supp. 1984). A ruling on each proposed finding of fact has been made either directly or indirectly in this recommended order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:
Respondent has been a permanent full-time employee of petitioner's for over 22 years and at the time of the alleged abandonment was employed as a Engineer Technician III in petitioner's Second District and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code.
Walter Henry Skinner, III, is the District Engineer, Second District, with offices in Lake City, Florida, covering a 16 county area over northeast Florida. In this instance, directly below Mr. Skinner in the chain of command is Raymond O. Humphreys, Resident Construction Engineer. His is a supervising position as contract administrator for road and bridge contracts let by the petitioner to private contracting firms for construction of roads and bridges within 9 counties of the second district. Respondent has worked within Mr. Humphreys' jurisdiction since March, 1976. The record is not clear, but apparently there is at least one other supervisor between Mr. Humphreys and respondent, the position of survey crew chief.
Respondent was granted leave of absence without pay on Humphreys' recommendation on May 1, 1983 through July 12, 1983 (Petitioner's Exhibit 9); October 3, 1983 through April 2, 1983 (Petitioner's Exhibit No. 8); and again on April 3, 1984 for 6 months (Petitioner's Exhibit No. 4). Respondent returned to work
before the end of this 6 months leave of absence without pay. The record does not reflect when respondent returned to work but apparently he returned to work sometime after his release from the Hamilton County Jail on July 9, 1984. The record shows that respondent was working on September 21, 1984 (Petitioner's Exhibit No. 3).
Respondent was granted 4 hours annual leave on September 24, 1984, 8 hours of annual leave on September 25, 1984 and 8 hours annual leave on September 26, 1984. On September 27, 1984 petitioner placed respondent on unauthorized leave of absence without pay. On September 27, 1984 petitioner was advised by Roger Tanner, respondent's probation officer, that respondent had bean incarcerated in the Hamilton County Jail on September 26, 1984. Petitioner knew that respondent had 78.2 hours of accrued annual leave and 524.0 hours of accrued sick leave. Petitioner did not notify respondent that he had been placed on unauthorized leave without pay on September 27, 1984 until October 4, 1984 when petitioner delivered to respondent a letter from Skinner advising him that he had abandoned his position with the petitioner.
Respondent had been incarcerated in the Hamilton County Jail on: (1) April 22, 1983 to July 5, 1983; (2) July 23, 1983;
(3) August 11, 1983 to August 12, 1983; (4) September 22, 1983 to July 9, 1984; and (5) September 26, 1984 to October 6, 1984.
The evidence reflects that respondent had a "drinking problem" of which petitioner was aware but did very little "counseling" with respondent in this regard.
On October 1, 1984 Mr. Markham, Humphreys Resident Office Manager, contacted Judge John Peach's office and was informed by his secretary, after she discussed the matter with Judge Peach, that respondent's "problem would be resolved in a few days" or at least "by the weekend."
Respondent worked with a survey crew taking final measurements and checking work in the field completed by the contractors. Respondent was assigned to this survey crew by Humphreys because respondent did not have a valid driver's license.
Walter H. Skinner had been delegated authority to take this type action against respondent by Mr. Pappas, Secretary of the Department of Transportation and such delegation was in effect at all times material herein.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
It is alleged that respondent failed to report to his work station on September 27, 1984, September 28, 1984, October 1, 1984, October 2, 1984, and October 3, 1984, and also failed to request leave for this period of time. Therefore, respondent was placed on unauthorized leave on September 27, 28, 1984, October 1, 2, 3, 1984 and at the end of the workday on October 3, 1984 was considered by petitioner as having abandoned his position and to have resigned from the Career Service pursuant to rule 22A- 7.10(2)(a), Florida Administrative Code. The pertinent portion of Rule 22A-7.1O(2)(a), Florida Administrative Code is quoted below:
"(2) Abandonment of position
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 form the Career Services . . ."
The respondent takes the position that his reliance on petitioner's action; both past and present; caused him to be "lulled" into thinking that matters would be "handled" in this instance as matters had been "handled" in the past and that he would be allowed to continue on leave until his "problem" was resolved. Petitioner's actions which respondent contends he relied on were: (1) belatedly granting authorized leave without pay to respondent under similar circumstances in the past; (2) the granting of annual leave for 2.5 days immediately prior to putting respondent on unauthorized leave on September 27, 1984; and (3) the failure of petitioner to notify respondent in writing or otherwise of the denial of any further leave, even though petitioner knew of respondent's whereabouts. And under the circumstances, after over 22 years of continuous service the respondent had no intention of abandoning his position.
Respondent's point is well taken.
Pursuant to Rule 22A-8.O2, Florida Administrative Code, the petitioner is given the authority to grant or deny any request for leave of absence with or without pay. However, this
authority should not be arbitrarily exercised, and there should be a valid reason for denying a leave request, particularly when the employee has accrued leave credits.
Although the rule requires that the granting of a leave of absence "shall be in writing," the record is clear that
petitioner did not in every instance require leave requests or approvals to be in written form. Here, there was no valid reason not to grant authorized leave of absence. Although petitioner alleges the need for this position to be filled, the petitioner's past action supported by the record does not support petitioner's allegation.
The petitioner contends that respondent did not make any request, verbally or written, after September 26, 1984 and therefore, was placed on unauthorized leave beginning September 27, 1984. The record is clear that respondent did not call in and request leave after September 27, 1984. But what is not clear from the record is whether or not respondent, or whoever called in, prior to September 27, 1984 made a blanket request for leave to cover the period of time of respondent's anticipated absence. The record is also clear that petitioner placed respondent on unauthorized leave of absence on September 27, 1984 after being advised by Roger Tanner of respondent's incarceration in the Hamilton County Jail and did not notify respondent of such action until October 4, 1984 when Humphreys and Markham delivered Skinner's letter to respondent in jail advising him that petitioner considered him as having abandoned his position.
Implicit in the authority granted by rule to deny a request for a leave of absence with or without pay and place employee on unauthorized leave of absence or to place an employee on unauthorized leave of absence where there is no request for leave of absence is the responsibility to notify the employee of such action when his whereabouts are known. Otherwise, how can an employee be expected to correct a situation that may result in loss of employment through abandonment.
Under the circumstances of this case, the respondent's reliance on petitioner's actions to assume or to think that matters would be handled in this situation as it had in the past was justified. Particularly, and this is most critical, considering petitioner's failure to timely notify respondent of petitioner's action of placing respondent on unauthorized leave of absence. Under these circumstances it cannot be said that respondent abandoned his position.
In finding that respondent did not abandon his position, I am not unmindful of petitioner's alleged need of a "warm body" to fill this position and perform the work required of the position. However, neither am I unmindful of the fact that petitioner, on its own volition, authorized leave of absence without pay to respondent for extended periods during 1983 and 1984 for reasons, although not totally clear in the record, related to respondent's "drinking problem" with very little counseling of respondent by the petitioner. Nor, am I unmindful
of the fact, though not controlling in any manner, that respondent has given the petitioner over 22 years of continuous service with no evidence of unsatisfactory performance.
RECOMMENDATION
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that it be found that respondent did not abandon his position and resign from the Career Service as contemplated under Rules 22A-7.1O(2)(a) and 22A-8.O2, Florida Administrative Code and that respondent be reinstated to his position of Engineer Technician III as of September 27, 1984.
DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985.
COPIES FURNISHED:
Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301
Donald K. Hudson, Esquire Post Office Box 948 Jasper, Florida 32052
Daniel C. Brown Esquire General Counsel
Department of Administration
435 Carlton Building Tallahassee, Florida 32301
Paul A. Pappas Secretary
Department of Transportation Hayden Burns Building Tallahassee, Florida 32301
A. J. Spalla General Counsel
562 Hayden Burns Building Tallahassee, Florida 32301
Gilda Lambert, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 84-4026
D. MORGAN,
Respondent.
/
FINAL ORDER
This matter is before the Department of Administration for entry of a final order in the above-referenced matter.
The Florida Department of Transportation (DOT) has filed exceptions to the Recommended Order. The record in this case, including the transcript of proceedings before the Hearing Officer
and exhibits introduced into evidence at the hearing have been reviewed. Based thereon, the Department of Administration makes the following rulings on DOT's exceptions to the Hearing Officer's Recommended Order:
RULINGS ON EXCEPTIONS
With respect to Exception 1, DOT's exception is overruled. The Hearing Officer was entitled to assign such weight to the evidence on counseling as he deemed appropriate and, as fact finder, to interpret that evidence.
With respect to Exception 2, the Department of Administration finds and holds that said exception is well taken. There is no competent substantial evidence in this record, including the transcript of proceedings before the Hearing Officer and the exhibits introduced at said hearing, which would support the finding of fact, mixed conclusion of fact and law, or conclusion of law that F.D. Morgan relied on past actions of DOT. Nor is there any evidence in the record that would support a finding of fact, mixed conclusion of fact and law, or conclusion of law regarding the state of mind of F.D. Morgan being "lulled" into thinking that matters would be "handled" and that he would be allowed to continue his leave until his "problem" was resolved. The agency therefore rejects such finding of fact, mixed conclusion of fact and law, or conclusion of law contained in the second full paragraph on page 5 of the Recommended Order in this case.
With respect to DOT's Exception 3, the Department of Administration holds that said exception is well taken and rejects the following conclusion of law contained at pages 6 and 7 of the Recommended Order:
Implicit in the authority granted by rule to deny a request for leave of absence with or without pay and place the employee on unauthorized leave of absence or to place
an employee on unauthorized leave of absence where there is no request for leave of absence it is the responsibility to notify the employee of such action when his whereabouts are known.
No rule cited by the Hearing Officer or by the parties places such an affirmative burden upon an employer of a Career Service employee. Such a policy, requiring the affirmative seeking out of an employee in order to notify him that he is on unauthorized leave, is adverse to sound management practice and the best interest of the State of Florida. The evidence in this case indicates that F.D. Morgan received a copy of the DOT Employees
Handbook which clearly notified all employees of their duty to obtain authorization for leave prior to taking it and notice that further unauthorized leaves of absence would not be tolerated by DOT.
Exception 4 submitted by DOT is well taken.
FINDINGS OF FACT
Respondent has been a permanent full-time employee of Petitioner's for over 22 years and at the time of the alleged abandonment was employed as an Engineer Technician III in Petitioner's Second District and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code.
Walter Henry Skinner, III, is the District Engineer, Second District, with offices in Lake City, Florida, covering a 16 county area over northeast Florida. In this instance, directly below Mr. Skinner in the chain of command is Raymond O. Humphreys, Resident Construction Engineer. His is a supervising position as contract administrator for road and bridge contracts let by the Petitioner to private contracting firms for construction of roads and bridges within 9 counties of the second district. Respondent has worked within Mr. Humphrey's jurisdiction since March, 1976. The record is not clear, but apparently there is at least one other supervisor between Mr. Humphreys and Respondent, the position of survey crew chief.
Respondent was granted leave of absence without pay on Humphreys' recommendation on May 1, 1983 through July 12, 1983 (Petitioner's Exhibit 9); October 3, 1983 through April 2, 1983 (Petitioner's Exhibit No. 8); and again on April 3, 1984 for 6 months (Petitioner's Exhibit No. 4). Respondent returned to work before the end of this 6 months leave of absence without pay. The record does not reflect when Respondent returned to work but apparently he returned to work sometime after his release from the Hamilton County Jail on July 9, 1984. The record shows that Respondent was working on September 21, 1984 (Petitioner's Exhibit No. 3).
Respondent was granted 4 hours annual leave on September 24, 1984, 8 hours of annual leave on September 5, 1984 and 8 hours annual leave on September 26, 1984. On September 27, 1984 Petitioner placed Respondent on unauthorized leave of absence without pay. On September 27, 1984 Petitioner was advised by Roger Tanner, Respondent's probation officer, that Respondent had been incarcerated in the Hamilton County Jail on September 26, 1984. Petitioner knew that Respondent had 78.2 hours of accrued annual leave and 524.0 hours of accrued sick leave. Petitioner did not notify Respondent that he had been placed on unauthorized
leave without pay on September 27, 1984 until October 4, 1984 when Petitioner delivered to Respondent a letter from Skinner advising him that he had abandoned his position with the Petitioner.
Respondent had been incarcerated in the Hamilton County Jail on: (1) April 22, 1983 to July 5, 1983; (2) July 23, 1983;
(3) August 11, 1983 to August 12, 1983; (4) September 22, 1983 to July 9, 1984; and (5) September 26, 1984 to October 6, 1984.
The evidence reflects that Respondent had a "drinking problem" of which Petitioner was aware but did very little "counseling" with Respondent in this regard.
On October 1, 1984, Mr. Markham, Humphreys' Resident Office Manager, contacted Judge John Peach's office and was informed by his secretary, after she discussed the matter with Judge Peach, that Respondent's "problem would be resolved in a few days" or at least "by the weekend."
Respondent worked with a survey crew taking final measurements and checking work in the field completed by the contractors. Respondent was assigned to this survey crew by Humphreys because Respondent did not have a valid driver's license.
Walker H. Skinner had been delegated authority to take this type action against Respondent by Mr. Pappas, Secretary of the Department of Transportation and such delegation was in effect at all times material herein
CONCLUSIONS OF LAW
The Department of Administration has jurisdiction over the parties and subject matter of these proceedings.
Since F.D. Morgan was not at his work station at any time during October 1, 2, or 3, 1984, and did not obtain authorized leave for those absences, he was properly placed on unauthorized leave of absence during each of those days.
Respondent was placed on unauthorized leave of absence for September 27, 28, 1984, October 1, 2, 3, 1984 and at the end of the work day on October 3, 1984 was properly considered by DOT to have abandoned his position and resigned from the Career Service pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code.
DOT was under no obligation to affirmatively seek out
F.D. Morgan and advise him that he was on unauthorized leave of absence during those days.
There is no competent substantial evidence in the record to support F.D. Morgan's contention that he relied on DOT's past actions and was lulled into thinking that his unauthorized leave of absence would be handled and that he would be granted leave until his problem was resolved and he could report for work.
DOT's action in deeming the Petitioner to have abandoned his position is in full accord with Rule 22A-8.02(5), Florida Administrative Code.
Based on the findings of fact and conclusions of law it is ORDERED that the action of DOT in deeming F.D. Morgan to have abandoned his position and resigned from the Career Service is correct, in conformity with pertinent Career Service rules and regulations, and is hereby sustained and approved.
So Ordered in Tallahassee, Florida this 21st day of June, 1985.
GILDA H. LAMBERT
Secretary of Administration Department of Administration
435 Carlton Building Tallahassee, Florida 32301
Certificate of Clerk
FILED in the official records of the Department of Administration this 21st day of June, 1985.
COPIES FURNISHED: Donald K. Hudson, Esquire Post Office Box 948
Charles G. Gardner, Esquire Jasper, Florida 32052 Department of Transportation
Haydon Burns Building, M.S. 58 William R. Cave Tallahassee, Florida 32301 Hearing Officer, DOAH
2009 Apalachee Parkway
Tallahassee, Florida 32301
Docket for Case No: 84-004026
Orders for Case No: 84-004026
| Issue Date |
Document |
Summary |
|
Jun. 21, 1985 |
Agency Final Order
|
|
|
May 17, 1985 |
Recommended Order
|
Based on Department of Transporation (DOT) past action, the Respondent had not abandoned his position with DOT.
|
