STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. MURRAY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3885

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held before William R. Cave, the designated Hearing Officer of the Division of Administrative Hearings, on November 3, 1987, in Tallahassee, Florida. The issue for determination is whether, under the facts and circumstances of this case, Petitioner is deemed to have abandoned his position and resigned from the Career Service.

APPEARANCES

For Petitioner: Marc E. Taps, Esquire

Legal Services of North Florida, Inc. 822 North Monroe Street

Tallahassee, Florida 32301

For Respondent: Charles G. Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

BACKGROUND

By letter dated August 21, 1987, Respondent notified Petitioner that having been absent from work for three (3) consecutive days without authorized leave of absence he was considered to have abandoned his position with the Respondent and to have voluntarily resigned from the Career Service effective 6:00 p.m., August 20, 1987. By an undated letter received by the Department of Administration on August 26, 1987, Petitioner requested a formal proceeding before the Department of Administration. By Order dated August 28, 1987, the Department of Administration accepted the Petitioner's petition for a formal hearing and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct such hearing. This cause was filed with the Division of Administrative Hearings on September 1, 1987.

At the hearing Petitioner filed an ore tenus Motion to Dismiss alleging the unconstitutionality of Rule 22A-7.010, Florida Administrative Code. The motion was denied.

Respondent presented the testimony of Wilson Yawn. Respondent's Exhibits 1-4 were received into evidence. Petitioner did not present any testimony or documentary evidence.

The parties waived filing of Proposed Findings of Fact and Conclusions of

Law.

FINDINGS OF FACT

1. Upon consideration of the oral and documentary evidence adduced at the

   hearing, the following relevant facts are found:

   
   

2. At all times material to this proceeding, Petitioner was employed by Respondent and supervised by Wilson Yawn, Maintenance Engineer, Chipley, Florida.

   
   

3. On April 15, 1985, Petitioner signed an acknowledgment receipt indicating that: (a) he had received an Employee Handbook; (b) it was his responsibility to review the Handbook; and (c) he was to request clarification, if needed, from his supervisor.

   
   

4. Petitioner knew, or should have known, since the Handbook explained job abandonment, that unauthorized leave of absence could result in the loss of his job through abandonment.

   
   

5. Petitioner was absent from work without authorized leave on August 17, 18, 19, and 20, 1987.

   
   

6. At no time relevant to this proceeding was any type of leave requested by Petitioner, or granted by Respondent.

   
   

7. Petitioner was formally advised by certified letter dated August 21, 1987 that Respondent considered him to have abandoned his job and to have resigned from the Career Service.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Rule 22A-7.010(2), Florida Administrative Code, provides in pertinent part:

   
   

   1. Abandonment of Position--

      1. 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. . . .

         
         

10. The evidence establishes that Petitioner, without authorized leave, was absent for three (3) consecutive workdays from his employment. Petitioner failed to establish any basis which would have excused, or authorized, his absence from work during the period in question.

11. Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a Final Order be entered deeming the Petitioner to have abandoned his position and to have resigned from the Career Service.

Respectfully submitted and entered this 5th day of November, 1987, 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 5th day of November, 1987.

COPIES FURNISHED:

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Pamela Miles, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Marc E. Taps, Esquire

Legal Services of North Florida, Inc. 822 North Monroe Street

Tallahassee, Florida 32301

Charles G. Gardner, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

Robert J. Murray 2729 Lake Henrietta Tallahassee, Florida

Docket for Case No: 87-003885

Orders for Case No: 87-003885