STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HIGHWAY SAFETY AND MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2154

)

JOHN E. WIMBERLY, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this above styled case was held in Bradenton, Florida, on October 8, 1986, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: R. W. Evans, Esquire

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32301

For Respondent: Robert A. Pell, Esquire

Florida Police Benevolent Association Post Office Box 11239

Tallahassee, Florida 32301 BACKGROUND AND PROCEDURAL MATTERS

On April 21, 1986, John E. Wimberly was informed by hand-delivery of a letter dated April 16, 1986, that he was deemed to have abandoned his position as a law enforcement officer with the Florida Highway Patrol.

A timely request for review was made to the Department of Administration and the case was forwarded to the Division of Administrative Hearings for a section 120.57 Florida Statutes hearing.

At the hearing the Department of Highway Safety and Motor Vehicles (Department) presented evidence through one witness and three exhibits. John E. Wimberly (Wimberly) testified in his own behalf and submitted no exhibits.

Both parties presented timely proposed recommended orders and the Department submitted written closing arguments.

These posthearing submittals have been carefully considered in the preparation of this order and specific rulings on each proposed finding of fact are found in the attached appendix.

ISSUE

The sole and limited issue in this case is whether John E. Wimberly "resigned" his position by abandonment as provided in Rule 22A-7.10(2)(a) Florida Administrative Code.

FINDINGS OF FACT

1. The following facts are established by the parties' Prehearing Stipulation dated October 3, 1986:

   
   

   1. The Respondent, John E. Wimberly, at all times material herein was employed as a trooper by the Florida Highway Patrol in Troop F, Manatee County Florida.

   2. The Respondent was assigned the following work shift:

      Friday, April 11, 1986: 7:00 p.m. 3:00 a.m.

      Saturday April 12, 1986: 3:00 p.m. 11:00 p.m.

      Sunday April 13, 1986: 3:00 p.m. 11:00 p.m.

      Monday April 14, 1986: 3:00 p.m. 11:00 p.m.

   3. The Respondent was involved in an automobile accident in Dade County, Florida, on April 10, 1986, while off duty. His brother, Willie Wimberly, and a third person, Felix Bush,

      were also in the vehicle.

   4. The Respondent was admitted to Palmetto hospital on April 10, 1986, and discharged on April 12, 1986, as a result of injuries sustained in the automobile accident. The Respondent underwent surgery performed on his right index finger for repair of a lacerated tendon.

   5. The Respondent's brother, Willie Wimberly, was admitted to Palmetto Hospital with injuries.

   6. The Respondent did not report for work on April 11, 12, 13, 14, and 15.

   7. The Respondent did not personally contact a supervisor or a duty officer of the Florida Highway Patrol to report his absence until approximately 11 30 p.m. on April 15, 1986.

   8. The State of Florida Personnel Rules and

      the provisions of the Florida Highway Patrol Policy Manual referenced in the Petitioner's Composite Exhibit #1 were in effect during the

      time period of April 10, 1986 through April 16, 1986.

   9. On July 23, 1985 and September 27, 1985

      the Respondent John E. Wimberly acknowledged receipt of the Florida Highway Patrol Forms and Procedures Manual and further acknowledged reading said manual and being afforded an opportunity to ask questions of a supervisor concerning any questions about the manual.

2. Sgt. Anderson from the Dade County troop of the Highway Patrol, who was investigating the accident told Trooper Wimberly in the hospital that he would contact Wimberly's immediate supervisor. Troop F in Bradenton was notified of Wimberly's accident at approximately 11:40 p.m. on Thursday, April 10, 1986. Petitioner's Exhibit #1 testimony of Wimberly). On Friday, April 11th, Major Paul Taylor, Troop F Commander, instructed his secretary to call the hospital to determine Trooper Wimberly's condition. Efforts to reach Wimberly were unsuccessful but the associate of the attending physician informed Major Taylor that the injuries were minor, that surgery was going to be done on Wimberly's finger and he would be released on Saturday, April 12th. (testimony of Taylor; Petitioner's Exhibit #1)

   
   

3. Trooper Wimberly was released from the hospital in Miami at 1:30 p.m. on the 12th. On the evening of that date, his supervisor, Sgt. Cheshire, began trying to reach him at his home in Bradenton. Similar efforts were made on Sunday and Monday. On Monday night Sgt. Cheshire was told by Trooper David L. McCarter, Jr. that Trooper Wimberly was still in Miami and would be in to see him (Sgt. Cheshire) Tuesday. Trooper McCarter had called Wimberly in Miami. (Petitioner's Exhibit #1 testimony of Wimberly) At no time during his absence from April 11th through 15th did Trooper Wimberly, or anyone on his behalf, request leave.

   
   

4. Wimberly's injuries in the accident consisted of a lacerated tendon in his right hand and a sprained ankle. He had a soft cast on his leg, and after surgery, a cast on his hand. He admits that he could have physically contacted his supervisors at Troop F but was concerned about his brother who had been seriously injured and after his own release, spent most of his time at the hospital. (testimony of Wimberly)

   
   

5. Relevant sections of the Florida Highway Patrol Policy Manual provide

   
   

   1. Reporting Late for Duty

      If, due to an illness or other circumstances, a member cannot report for duty

      at the assigned time but will be late, the member will contact his/her

      supervisor before the start of the shift to explain the situation and provide an estimated time of arrival.

      
      

   2. Failure to Report for Duty Due to Illness.

   Any member unable to report for duty due

   to illness or injury shall notify his or her immediate supervisor as soon as possible on the first day of absence. If possible, the member should provide at least a 2 hour notice to allow for a replacement to be obtained.

   . . .

   
   

   1. Absence Without Authorized Leave Florida Highway Patrol officers are expected to report for duty on their assigned shift except when prevented

      by injury, illness, or emergency situations. Any leave of absence with or without pay shall be approved prior

      to the leave period except when emergency situations prevent such action. If an employee takes unauthorized leave, the employee will be placed on leave without pay status.

      
      

   2. Abandonment of Position Any member who is absent without

   authorization for 3 consecutive work days shall be deemed to have abandoned the position and to have resigned from

   Career Service. Any member who separates under such circumstances shall not have the right to appeal to the Career Service Commission and is subject to all pro- cedures outlined in Section 22A7.10(2)

   of the Rules of the Career Service Commission.

   
   

   5.09.00 Sick Leave

   Members will be permitted to take sick leave only for instances of illness, injury or other reasons as specified in Section 22A-8.11 of the Personnel Rules of the Career Service System. The Department

   may, after three workdays of absence in any 30 calendar day period, require a medical certification of the member's illness before authorizing any additional use of sick leave credits by the member. Abuse of sick leave benefits by reporting off ill or injured when actually fit for duty will be grounds for disciplinary action. A member, while on sick leave for any reason, is expected to be at his or her residence, or to notify the

   immediate supervisor of any other location.

   (Petitioner's Exhibit #4)

   
   

   Trooper Wimberly was aware of the policy and has followed it in the past. (testimony of Wimberly)

   
   

6. The absence of law enforcement personnel affects the staffing of shifts and sometimes court appearances cannot be honored. The details of when and how long an individual will be absent are important to the effective functioning of the troop. (testimony of Taylor)

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding pursuant to Section 120.57(1), Florida Statutes.

   
   

8. Section 22A-7.010(2)(a) Florida Administrative Code provides:

   
   

   1. Abandonment of Position

      (a) 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 has Career Service status and 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 for a review of the facts in the case and a ruling as to whether the

      circumstances constitute abandonment of position.

      
      

9. The abandonment rule is not a disciplinary rule but rather puts employees on notice that certain actions or non- actions will be construed as a form of unwritten resignation. Cook v. Division of Personnel, Department of Administration, 356 So 2nd 356 (Fla 1st DCA 1978). In Hadley v. Department of Administration 411 So 2nd 184, 188 (Fla. Sup. Ct. 1982) the court stated:

   
   

   the state and public ...

   have an interest in replacing public employees that [sic] do not work.

   Rule 22A-7.10(2)(a) [renumbered as 22A-7.010(2)(a)] recognizes that interest and, by facilitating elimination of those who do

   not report to work for a certain time promotes it.

   
   

10. The material facts in this case are uncontroverted: Trooper Wimberly was involved in an emergency. The Highway Patrol was informed of that fact. However, even after he was able, he failed to request authorization for continued absence.

    
    

11. Leaves of absence in emergency situations are governed by the following rule of the career service system:

    
    

    1. Any leave of absence with or without pay shall be approved prior to the leave being taken except in the case of an emergency where the employee must be absent prior to receiving approval

       from proper authority for the absence.

       1. When prior approval cannot be obtained by the employee due to such emergencies the agency head shall take one of the following actions:

          1. Grant the employee leave with pay, provided the employee has sufficient accrued leave credits to cover the absence.

          2. Place the employee on leave without pay for the absence or

          3. If the absence is for 3 consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.

       2. 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.

    
    

    Rule 22A-8.02(5) Florida Administrative Code.

    
    

    Leave is not automatically authorized simply because there is an emergency which requires the employee to be absent from work. See Clara Penney v. Department of Insurance, Division of Administrative Hearings Case # 85-1530, (Recommended Order by Hearing Officer, Diane Grubbs dated December 26, 1985, adopted by Final Order dated January 31, 1986).

    
    

12. The Penney case, supra, includes a thorough discussion of the abandonment rule and other cases construing it. Mrs. Penney was incarcerated and was unable to contact her employer. Her husband requested leave on her behalf. The Agency never acted on the request but at the end of her incarceration notified Mrs. Penney that she was terminated via the abandonment rule. The only explanation for not considering the request was that Mrs. Penney had not made it personally although Mrs. Penney and her husband were not so informed. The Department of Administration overruled the Agency employer and required reinstatement.

    
    

13. Trooper Wimberly's circumstances differ from those of Mrs. Penney. Assuming that he was too incapacitated to contact his employer during his period of hospitalization he could have made the contact on Saturday afternoon after his release. Further, and more significantly, neither he nor anyone on his behalf requested leave. This is more than a mere technicality: his employer, particularly because of his law enforcement position, was entitled to know the details of his condition and the anticipated duration of his absence. Without this information it would be difficult to determine whether the leave should be authorized and effective planning to cover the employee's shifts with other personnel would be impaired.

    
    

14. The case cited by Respondent, University of South Florida v. Tucker,

    374 So 2nd 16 (Fla 2nd DCA 1979) is unpersuasive. While the facts in that opinion are sketchy it shows that both a friend and the employee called the employee's division within the seven day period of absence. Further, the injury which caused the absence occurred on the job. Tucker, p. 17.

    
    

15. More recent cases reveal an inclination by the courts and the Department of Administration to strictly apply the abandonment rule, even when the employee relies on the fact that his agency knows where he is. See Florida State University v. Brown, 436 So 2nd 287 (Fla 1st DCA 1983) and Department of Transportation v. F.D. Morgan (DOAH Case No. 84-4026, final order issued June

    21, 1985). The latter case held that an agency does not have an affirmative obligation to inform an absent employee that he is on unauthorized leave even when the agency knows where he is.

    
    

16. After deducting the time that Trooper Wimberly was hospitalized he still missed four full shifts of work without authorized leave and is deemed to have abandoned his position.

RECOMMENDATION

Based upon the foregoing, it is recommended that a final order be entered finding that Respondent was appropriately terminated for abandonment in accordance with Rule 22A-7.010(2)(a) Florida Administrative Code.

DONE AND ORDERED this 29th day of October 1986, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 29th day of October, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2154

The following constitute my specific rulings on the findings of fact submitted by the parties in this case.

Findings by Petitioner

1. through 5. Adopted in paragraph #1.

1. Adopted in paragraph #3.

2. Rejected as unnecessary.

3. Relevant portions of the policy manual are addressed in paragraph #4.

4. Adopted in paragraph #4.

5. and 11. Adopted in paragraph #1.

1. Rejected as irrelevant.

2. Rejected as unnecessary.

3. Adopted in general in paragraph #5.

4. The fact of termination is addressed in the Background portion of the Recommended Order.

Findings of Fact Proposed by Respondent

1. through 3. Adopted in paragraph #1.

4. and 5. Adopted in general in paragraph #2.

1. The period of hospitalization is addressed in paragraphs #1 and #2. Thursday night until early Saturday afternoon does not constitute three days.

2. Rejected as immaterial. Major Taylor also testified that he could have been assigned to other duties. The issue was not his ability to function as a trooper.

3. Addressed in part in paragraph #3 otherwise rejected as immaterial.

4. Adopted in paragraph #3.

5. Adopted in paragraph #2.

6. Adopted in paragraph #1 as to the date and time of trooper Wimberly's return; otherwise rejected as provided in paragraph 7 above.

7. Adopted in paragraph #4.

8. Rejected as immaterial. His subjective intent was inconsistent with his failure to seek authorized leave.

Ruling on Exceptions to Recommended Order Exceptions of Petitioner Department of Highway Safety and Motor Vehicles

Exceptions of Respondent Santiago Baez

1. 1 through 4 Rejected for the reasons set out in the Recommended Order in Conclusion of Law 7.

COPIES FURNISHED:

R. W. Evans, Esquire Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32301

John E. Wimberly

c/o Robert A. Pell, Esquire

Florida Police Benevolent Association Post Office Box 11239

Tallahassee Florida 32301

Docket for Case No: 86-002154

Orders for Case No: 86-002154