STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES D. REEVES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2596

) STATE OF FLORIDA, DEPARTMENT ) OR AGRICULTURE AND CONSUMER ) SERVICES )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on August 25, 1986, in Orlando, Florida.

APPEARANCES

For Petitioner: James D. Reeves, pro se

1455 90th Avenue, Lot 114 Vero Beach, Florida 32960

For Respondent: Frank A. Graham, Jr., Esquire

Department of Agriculture and Consumer Services

Room 512, Mayo Building Tallahassee, Florida 32301

PRELIMINARY STATEMENT

The issue raised by these proceedings is whether the circumstances surrounding Petitioner's absence from his employment with Respondent for a period of three consecutive working days constitute abandonment of his position and resignation from the Career Service pursuant to Rule 22-A- 7.10(2), F.A.C.

At final hearing the Petitioner testified on his own behalf, and his exhibits 1-5 and 8 were received into evidence. Respondent called Charles E. Knight and Charles A. Mann, Jr. as witnesses, and its exhibits 1-3 were received into evidence.

The transcript of hearing was filed September 15, 1986, and the parties were granted leave through September 25, 1986, within which to file proposed findings of fact and conclusions of law. No proposed findings were filed on behalf of either party.

FINDINGS OF FACT

1. The Petitioner, James D. Reeves (Reeves), was employed full time by Respondent, Department of Agriculture and Consumer Services (Department), as an Inspector I in Vero Beach, Florida.

   
   

2. On February 3, 1986, Reeves met with Mr. Charles E. Knight, Director of the Department's Division of Fruit and Vegetable Inspection. Recognizing that Reeves was suffering severe emotional problems, Mr. Knight authorized him to take sick leave to visit his family physician in Wrens, Georgia. Regarding the duration of that leave, Mr. Knight testified:

   
   

   I told Mr. Reeves as soon as he got

   into Georgia, he needed to see his doctor, if he had to go there and sit and wait all day and be the last person to see him, because he needed to follow the personnel rules and regulations, and he needed to get a doctor's excuse signed, if he was going to be off for any extended period of time.

   I told him I'd like to see him back at work within ten days, if he could get back to work by then. But I told him we would abide by whatever the doctor said, if he signed a written excuse, and he got his papers in.

   I also told him that he needed to stay

   in contact with me or the personnel office....

   
   

3. Reeves executed an application for sick leave effective February 4, 1986, with an open return date. On February 4, 1986, while enroute to Wrens, Georgia, his automobile broke down on I-95 near Savannah, Georgia. By February 10, 1986 the necessary repairs, including a rebuilt engine, had been competed on his automobile, and Reeves was able to resume his journey.

   
   

4. On February 12, 1986, Reeves was finally able to see his physician, who prepared a "written excuse" that provided:

   
   

   Mr. Dixon Reeves was seen by me today in the office. He related his work history and present employment situation to me. Mr.

   Reeves admits to and is obviously under a great deal of stress concerning this issue. From the standpoint of mental well being, it is inadvisable for him to return to the cannery. I also understand that from the physical standpoint, he had to consult a podiatrist after working in the cannery for a number of years.

   Mr. Reeves is currently under my care for treatment of anxiety that the present circumstances have created. It is my opinion that a return to his former position in the cannery would worsen his condition and is therefore medically contraindicated.

   Please feel free t contact me if you need any further information.

   On February 13, or 14, 1986, Reeves forwarded a copy of his doctor's excuse, as well as a copy of the towing bill and repair bill for his car, to the Department's personnel office. These documents were sent to the Department without benefit of a cover letter and were the first contact the Department received from Reeves after his departure.

   
   

5. By certified letter of February 19, 1986, the Department advised Reeves that his absence from work on February 10-12, 1986, was unauthorized and that, pursuant to Rule 22A-7.010(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Reeves of his right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment.

   
   

6. Reeves timely petitioned the Department of Administration for review. On May 15, 1986, the Department accepted Reeves petition and on July 18, 1986 requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing.

   
   

7. While it certainly would have been better practice for Reeve's to have kept his employer informed of the problems he encountered on his journey and the delays occasioned to his return, it cannot be concluded from this record that Reeve's absences of February 10-12, 1986 were unauthorized or that he abandoned his position. While somewhat open ended, Reeves' leave was at least authorized through February 13, 1986.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

9. Rule 22A-7.10(2), F.A.C., provides in pertinent part: Abandonment of Position--

   1. An employee who is absent without

      authorized leave of absence for 3 consecutive workdays shall be deemed to have resigned form the Career Service.

      
      

10. The evidence establishes that Reeves' absence of February 10-12, 1986 was authorized, and that he did not intend to abandon his position or resign from the Career Service.

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administrative enter a final order that

Petitioner, James D. Reeves, did not abandon his position or resign from the Career Service.

DONE and ENTERED this 22nd day of October, 1986, at Tallahassee, Florida.

WILLIAM J. KENDRICK

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 22nd day of October, 1986.

COPIES FURNISHED:

James D. Reeves

1455 90th Avenue, Lot 114 Vero Beach, Florida 32960

James D. Reeves

P. O. Box 276 Dearing, Georgia 30808

Frank Graham, Jr., Esquire Department of Agriculture

and Consumer Services Room 512, Mayo Building Tallahassee, Florida 32301

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 86-002596

Orders for Case No: 86-002596