STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIRZA NAVAID BAIG, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0797

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 13, 1988, at Tallahassee, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

FOR PETITIONER: Mirza Navaid Baig, pro se

425 Jefferson Avenue

Staten Island, New York 10306

FOR RESPONDENT: Rosa H. Carson, Esquire

Deputy General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

In a letter dated November 2, 1987, the Petitioner requested a formal administrative hearing to contest the determination that he has abandoned his career service position with the Department of Corrections.

During the hearing, the Respondent called one witness and submitted twenty- three exhibits which were admitted into evidence. Because of telephone difficulties, the, testimony of three witnesses was submitted by the Respondent after the hearing. The Petitioner was given the opportunity to cross examine these witnesses in written form by September 15, 1988.

The Petitioner submitted one exhibit and testified in his own behalf. He did not submit any additional written testimony after the hearing.

A transcript of the hearing was not ordered. The Petitioner waived his right to submit proposed findings of fact and the thirty-day time requirement for the filing of the Recommended Order. Specific rulings on the proposed findings of fact submitted by the Respondent are in the Appendix hereto.

ISSUE

Whether the Petitioner abandoned his position or resigned from the Career Service System.

FINDINGS OF FACT

1. The Petitioner received an approved education leave of absence without pay from his Career Service position at Hendry Correctional Institution from August 29, 1986, until May 15, 1987. The purpose of the leave was to allow the Petitioner to obtain a master's degree in library science through a government sponsored, professional training grant program.

   
   

2. As a condition of the grant program, the Petitioner agreed to return to Hendry Correctional Institution following the completion of his degree. The anticipated completion date was May 15, 1987. If there was no vacancy on staff at that time, the Petitioner agreed to accept employment first in another state correctional institution library in Florida. If no vacancies were located in state correctional institutions, the Department of State, Division of Library Information Services, would assist him in finding suitable employment in other Florida libraries.

   
   

3. On May 5, 1987, and June 26, 1987, the personnel manager at Hendry Correctional Institution wrote to the Petitioner to inquire whether he intended to return to the institution. The Petitioner did not reply to the inquiries.

   
   

4. On June 30, 1987, the personnel manager at another correctional institution in Florida wrote to the Petitioner and offered him employment as a Librarian II. The Petitioner counteroffered with a conditional acceptance of employment if he could begin work on September 1, 1987. The personnel manager wrote to the Petitioner to determine why the counteroffer was made. The Petitioner had no further contact with the institution.

   
   

5. Upon completion of the master's degree course work, the Petitioner wrote to various persons involved in the grant administration and attempted to demand unilateral changes in the terms and conditions of the agreement which would inure to his benefit. All of these attempts to change the terms of the contract were unsuccessful.

   
   

6. The Petitioner accepted employment in another state sometime between May 1987 and September 27, 1987, the date he wrote to Respondent about his new job. The letter was received by the Bureau of Personnel on October 15, 1987. In the same letter, the Petitioner acknowledged that he had breached the terms of the professional training grant program. He offered to repay the grant by making monthly installments of $50.00 toward the outstanding balance.

   
   

7. On October 21, 1987, Hendry Correctional Institution sent the Petitioner a letter which stated he had been deemed to have abandoned his position at the institution and resigned from the Career Service system effective October 21, 1987.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Section 120.57(1) and Rule 22A-6.010(2)(a), Florida Administrative Code.

   
   

9. This case revolves around the determination of the factual issue of whether the Petitioner abandoned his Career Service position by failing to return to work at Hendry Correctional Institution in May 1987.

10. Section 22A-8.016(2)(a), Florida Administrative Code, allows a Career Service System employee to obtain leave without pay for a period not to exceed twelve calendar months. The Respondent was granted leave by Hendry Correctional Institution which expired on May 15, 1987. The institution made a number of written inquiries to the Petitioner to learn if he intended to return to his job. None of these inquiries were answered by the Petitioner.

    
    

11. When an employee is absent without authorized leave of absence for three consecutive workdays, he is deemed to have abandoned the position and to have resigned from the Career Service. Rule 22A-7.010(2), F.A.C.

    
    

12. In addition to the administrative rules which govern the employer- employee relationship under the Career Service System, the parties in this case had a written agreement concerning the Petitioner's leave of absence. The Petitioner agreed to pursue his master's degree at Atlanta University for no more than a one-year period, which was to begin September of 1986.

    
    

13. Even if the Petitioner did not complete his degree in May of 1987, the last possible day upon which leave could be extended by contract was September 30, 1987. This deadline is consistent with the administrative rules limiting the leave to twelve months as the Petitioner took some annual leave when he left his position on August 28, 1986. However, leave was not extended, and the last mutually agreed upon leave date was May 15, 1987.

    
    

14. On September 27, 1987, the Respondent copied Benjamin Groomes, the Petitioner's employer, with a letter which stated that the Respondent had taken another job. The Department of Corrections, Bureau of Personnel, received the letter on October 15, 1987.

    
    

15. This letter appears to comply with the requirements of Rule 22A- 07.010(1), Florida Administrative Code, which provides in pertinent part, "Resignation. An employee who resigns should present the reasons there for in writing to the agency . . ." The Petitioner had accepted other employment and did not plan to return to Florida.

    
    

16. As the Petitioner's written resignation was submitted to the Respondent before the Respondent deemed the job position abandoned, the Petitioner's personnel records should reflect that he separated from employment by resignation as opposed to job abandonment

Based upon the foregoing, it is RECOMMENDED:

That the Petitioner's personnel records be amended to show that he resigned in writing from employment as a librarian for Hendry Correctional Institution effective October 15, 1987. The Petitioner never returned to work from his approved education leave of absence which expired on May 15, 1987.

DONE AND ENTERED this 4th day of November, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY,

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 4th day of November, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-0797

Respondent's proposed findings of fact are addressed as follows:

1. Rejected. Irrelevant to this proceeding.

2. Rejected. Irrelevant to this proceeding.

3. Accepted. See H. O. #6.

4. Rejected. Irrelevant to this proceeding.

5. Accepted. See H. O. #7.

6. Accepted.

7. Rejected. Conclusion of law, not a factual determinaton.

COPIES FURNISHED:

Rosa H. Carson, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Mirza Navaid Baig

425 Jefferson Avenue

Staten Island, New York 10306

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 88-000797

Orders for Case No: 88-000797