STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM L. RICHARDS, JR., )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 87-0221

) DOA CASE NO. AB-87-01 STATE OF FLORIDA, DEPARTMENT )

OF REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and on May 5, 1987, a formal hearing was conducted in this case in accordance with Section 120.57(1), Florida Statutes. The location of the hearing was Jacksonville, Florida. Charles C. Adams was the hearing officer. This recommended order is being entered following the receipt and review of proposed recommended orders offered by the parties. The fact finding set forth in those proposals has been utilized to some extent. On those occasions where the fact proposals have been rejected, the explanation for their rejection is set forth in an appendix to this recommended order.

APPEARANCES

FOR PETITIONER: S. Perry Penland, Jr., Esquire

1113 Blackstone Building

Jacksonville, Florida 32202

FOR RESPONDENT: Stephen J. Keller, Esquire

Florida Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668

ISSUE

The issue in this case involves a consideration of whether the Petitioner has abandoned his job position with the Respondent as described in Rule 22A- 7.010, Florida Administrative Code.

FINDINGS OF FACT

1. In the relevant time period which is associated with this case, Petitioner was employed by the Department of Revenue as an Appraiser II in the Jacksonville, Florida, office of the Northeast Region, Bureau of Field Appraisals, Division of Ad Valorem Tax. He worked with the Respondent agency beginning April 1980 until his dismissal from the agency on December 17, 1986, based upon the theory that he had allegedly abandoned his job within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code. During his employment Petitioner operated out of his home, which was in Palm Coast, Florida.

2. Douglas Drozd, an employee of the Respondent agency, was sent to the Jacksonville office of the Bureau of Field Appraisals, Division of Ad Valorem Tax to serve as a temporary Appraiser Supervisor for that office. This assignment occurred on October 6, 1986. On October 21, 1986, Albert Johnson, the former Appraiser Supervisor with the Jacksonville office, left that position.

   
   

3. Following the departure of Johnson, Drozd became the permanent Appraiser Supervisor for the Jacksonville office.

   
   

4. From October 6, 1986, through November 18, 1986, Drozd acted in the capacity as the immediate supervisor of the Petitioner. Beyond that date, Robert Worley, an Appraiser II in the Jacksonville office, took over the position of Appraiser Supervisor in the subject regional office. Worley served in the capacity of supervisor from November 19, 1986, until December 22, 1986, when he returned to his duties as Appraiser II. While Worley was serving as Appraiser Supervisor, Drozd took over the function of Property Appraiser, Duval County, Florida. On December 22, 1986, Drozd returned to his duties as Appraiser Supervisor for Respondent's Jacksonville office.

   
   

5. On November 17, 1986, Petitioner asked the permission of his supervisor, Drozd, to take annual leave for days in December 1986. This request was not made in writing and was not responded to in writing. Although Rule 22A- 8.002(4), Florida Administrative Code, contemplates that leave shall be requested in writing, it gas the custom and practice of the Respondent agency for oral requests for annual leave to be made and approved orally.

   
   

6. At the time of the conversation on November 17, 1986, between the Petitioner and Drozd concerning the request for annual leave, Drozd initially granted that request without any reservations or contingencies being applied to the permission given. Subsequently, on that same day, Drozd told Richards that he expected that all "field work" assigned to the Petitioner should be completed before leave was taken. This arrangement included work being done on vacant parcels of property as well as improved parcels. More particularly, "field work" includes:

   
   

   1. Completion of neighborhood analysis form Dr-549

   2. Completion of structural elements form Dr-551

   3. Measurements of all improvements

   4. Notes pertaining to subject property (condition of property, any unusual circumstances)

   5. Sketching and traversing (perimeter measurements for calculating square footage)

   6. Pictures

   7. Completion of factual change of physical characteristics forms.

      
      

7. Worley was unaware on November 17, 1986, of the arrangement between Drozd and the Petitioner concerning conditions placed upon the permission for the Petitioner to take leave as set forth by Drozd.

   
   

8. Petitioner's work assignment involved 180 parcels. Effective December 12, 1986, 27 parcels had "field work" which was incomplete, according to his flow chart of that date. Effective that date, Petitioner had turned in field

   folders for 88 of the 180 parcels. He kept 92 field folders for the remaining parcels. Thus, his supervisor was unable to verify whether Petitioner had completed his "field work" as summarized in his flow chart submitted on December 12, 1986.

   
   

9. According to Petitioner's account set forth in his flow chart of December 12, 1986, which is part of Petitioner's Exhibit R submitted by the Respondent and admitted into evidence, the 27 parcels pertained to vacant land. Petitioner further conceded that other minor problems existed concerning the completeness of the "field work" pertaining to the improved parcels reported in his flow chart.

   
   

10. Prior to Petitioner's departure from the Jacksonville office on December 12, 1986, Worley, who was then serving as the Appraiser Supervisor, did not have a detailed knowledge of the flow chart submitted by the Petitioner on that date. Worley had reviewed some of the Petitioner's files and noted shortcomings in the work; however, on balance, Worley took no issue with Petitioner's work progress. Worley acquiesced in the Petitioner's departure on the afternoon of December 12, 1986, as a prelude to the commencement of Petitioner's annual leave on December 15, 1986 This acquiescence was by a verbal expression to the effect that the Petitioner should have a nice holiday.

    
    

11. By contrast, on December 12, 1986, Drozd became aware, upon examination of Petitioner's flow chart, that certain parcels had not been completed in terms of "field work."

    
    

12. Drozd's observations about Petitioner's flow chart became significant when Worley and Drozd spoke to supervisors in Tallahassee, Florida, on the afternoon of December 12, 1986, in the person of Ben Faulk, Chief of the Bureau of Field Operations in the Respondent agency, and Eugene White, who was the Deputy Director of the Division of Ad Valorem Tax for that organization. In actuality, there were two conversations, and in the latter conversation Drozd participated in a discussion in which Faulk, White and Drozd determined that Petitioner should not be allowed to proceed with annual leave based upon his failure to comply with the contingency which Drozd had established on November 17, 1986, pertaining to Petitioner's wish to take annual leave, the contingency being completion of "field work." The latter conversation between Worley, Drozd, White and Faulk took place following Petitioner's departure from the Jacksonville office. At the time this conversation was held, Drozd was not a member of the Respondent agency. On the other hand, Faulk and White were appropriate officials within the Respondent agency with power to make determinations concerning the annual leave of a subordinate employee, in this instance, the Petitioner. Worley was also a proper source of policy in she management chain. It was decided that Worley should try to telephone the Petitioner and forestall the use of the annual leave by Petitioner. Emphasis is placed upon the fact that Faulk and White felt that this denial of Petitioner's annual leave based upon Petitioner's failure to meet a contingency concerning his "field work" was an appropriate disposition of the case.

    
    

13. Around 6:00 p.m., Worley was able to reach Petitioner by telephone while Petitioner was at his daughter's home, preparing to leave for a trip to Washington, D.C.

    
    

14. In placing the telephone call to Petitioner, Worley did not favor the revocation of leave opportunity. Nonetheless, he did revoke the leave while acting as supervisor for the Northeast Region, at the behest of Drozd and upon authority of Faulk and White. In the conversation with Petitioner on December

    12, 1986, by telephone, Worley told Petitioner that his leave had been revoked and that Petitioner should report to his job assignment at 8:00 a.m. on Monday, December 15, 1986, or be considered on unauthorized leave. Further, it was explained to Petitioner that he would be considered to have abandoned his job position if he had not returned to work by 5:00 p.m. on Wednesday, December 17, 1986. These remarks by Worley were not equivocal, and Petitioner understood the significance of those instructions and the implications of his failure to attend his duties on the dates described. This understanding of the explanation of unauthorized leave and potential abandonment of his job position was held by the Petitioner at the point of the conversation at approximately 6:00 p.m. on December 12, 1986.

    
    

15. Instead of reporting to work on December 15, 1986, at 8:00 a.m., Respondent absented himself from his job assignment on that date and on December

    16 and 17, 1986. For those three consecutive days in which Respondent did not attend his job, his nonattendance was without authorization to take any form of leave and in the face of having been advised that he was in the posture of unauthorized leave. The days that Petitioner was missing from his job were work days. Petitioner's choice to go forward with his vacation plans and ignore the instruction of his supervisor concerning returning to his job position was made knowingly, with volition, with intent and showed willful disregard of a legitimate order of a superior. Petitioner had decided that since he had longstanding plans for taking annual leave in Washington, D.C., and given the fact that his wife was already there awaiting the arrival of the Petitioner and his daughter, he would go forward with his plan on the expectation that someone in his employment system would not allow a conclusion to be drawn that he had abandoned his job position.

    
    

16. In furtherance of the assertion that the Petitioner would be considered to have abandoned his job position if he didn't return before the conclusion of the work day on December 17, 1986, a memorandum was sent to the Petitioner at his residence on December 15, 1986. A copy of that memorandum may be found as Respondent's Exhibit Q admitted into evidence. Petitioner did not become aware of this memorandum until returning from his vacation.

    
    

17. When he returned, he signed for service of correspondence of December 18, 1986, which constituted the Respondent agency's notice of claimed abandonment and notice of rights to administrative hearing to contest that claim. A copy of that notification may be found as part of the Respondent's Exhibit M admitted into evidence, together with the return receipt signed by the Petitioner on December 29, 1986.

    
    

18. A timely petition requesting consideration of the agency's claims of abandonment was filed by the Petitioner on January 5, 1987.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

20. The Respondent agency noticed the Petitioner of its intent to dismiss the Petitioner based upon a claim that Petitioner abandoned his job position with Career Service. Rule 22A-7.010(2)(a), Florida Administrative Code, states in part:

    
    

    An employee who is absent without authorized leave of absence for 3 consecutive work days shall be deemed to have abandoned the position and to have resigned from the Career Service....

    
    

21. Petitioner was absent for three work days, December 15, 16 and 17, 1986, without authorization from his employer. Therefore, he has abandoned his job position.

    
    

22. Although the Petitioner and the Respondent supervisors did not follow the dictates of Rule 22A-8.002(4), Florida Administrative Code, concerning the need to request leave in writing and for the agency to make known its position concerning that request in writing, the custom of the agency being to allow oral requests and oral responses to those requests is an acceptable alternative in this instance. In this connection, while it may be said that the Petitioner had been granted initial permission to take the leave commencing December 15, before that leave could be consummated, Petitioner was properly advised that the permission was withdrawn. Further, he was informed that if he chose to ignore those instructions, the consequences would be that the employer would consider that Petitioner had abandoned his job position after 3 consecutive days of absenteeism. As an employee of the agency, even while exercising leave opportunity, Petitioner was subject to the legitimate demands of his employment, and having chosen to ignore these controls, suffers the consequences.

Based upon a full consideration of the facts and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which holds that the Petitioner has abandoned his Career Service position as Appraiser II within the State of Florida, Department of Revenue.

DONE AND ENTERED this 2nd day of June, 1987, at Tallahassee, Florida.

CHARLES C. ADAMS

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 2nd day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0221

The proposed facts submitted by the parties have been utilized except in the following instances:

Petitioner's facts

Paragraph 2, last phrase, not necessary facts to be found in resolving the issues in dispute.

Paragraphs 3 and 4, rejected as unpersuasive facts. Paragraph 5, subordinate to facts found.

Paragraph 6, rejected as unpersuasive facts. Paragraphs 7, 8 and 9, subordinate to facts found.

Paragraphs 10, 11, 12, 13, 14, 15, 16 and 17, not necessary facts to be found in resolving the issues in dispute.

Paragraphs 18, 19, 20 and 21, with the exception of the last sentence of paragraph 21, subordinate to facts found.

The last sentence of paragraph 21, rejected as unpersuasive facts. The first two sentences of paragraph 23, subordinate to facts found.

The last sentence of paragraph 23, not necessary facts to be found in resolving the issues in dispute.

Paragraph 24, rejected as unpersuasive facts. Paragraphs 25 and 26, subordinate to facts found.

Respondent's facts

Paragraph 2, subordinate to facts found.

Paragraph 4, first sentence, subordinate to facts found.

Paragraph 4, second sentence, not necessary facts to be found in resolving the issues in dispute.

Paragraph 6, not necessary facts to be found in resolving the issues in dispute.

Paragraph 7, next to last sentence, recitation of testimony. Paragraphs 8, subordinate to facts found.

Paragraph 9, not necessary facts to be found in resolving the issues in dispute.

Paragraph 12, first and second sentences, not necessary facts to be found in resolving the issues in dispute.

Paragraph 12, last sentence, recitation of testimony. Paragraph 13, the last two sentences of paragraph 14,

paragraph 15, and the first sentence of paragraph 16, not necessary facts to be found in resolving the issues in dispute.

All other sentences within paragraph 16, subordinate to facts found.

Paragraph 17, not necessary facts to be found in resolving the issues in dispute.

The last sentence of paragraph 18, not necessary facts to be found in resolving the issues in dispute.

Paragraph 19, recitation of testimony.

Paragraph 21 is not in keeping with the evidence admitted in the course of the hearing.

Paragraph 22, first sentence, subordinate to facts found.

Paragraph 22, second sentence, not necessary facts to be found in resolving the issues in dispute.

Paragraph 22, third sentence, is legal argument. Paragraph 22, last sentence, recitation of testimony. Paragraph 23, first sentence, subordinate to facts found.

Paragraph 23, second sentence, not necessary facts to be found in resolving the issues in dispute.

Paragraph 24, first two sentences, recitation of testimony.

Paragraph 24, last sentence, not necessary facts to be found in resolving the issues in dispute.

Paragraphs 25, 26 and 27, subordinate to facts found. Paragraph 28 constitutes conclusions of law.

COPIES FURNISHED:

S. Perry Penland, Jr., Esquire 1113 Blackstone Building Jacksonville, Florida 32202

Stephen J. Keller, Esquire Florida Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Randy Miller, Executive Director Department of Revenue

102 Carlton Building Tallahassee, Florida 32399-0100

Pamela Miles, Assistant General Counsel Department of Administration

530 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 87-000221

Orders for Case No: 87-000221