STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL A. DOUB, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3532

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

In lieu of the formal administrative hearing scheduled for September 19, 1989, before Veronica E. Donnelly, a duly designated Hearing Officer for the Division of Administrative Hearings, the parties agreed to file a stipulation of facts, along with legal argument in support of the parties' respective positions.

APPEARANCES

For Petitioner: Gene "Hal" Johnson, Esquire

300 East Brevard Street Tallahassee, Florida 32301

For Respondent: Perri King, Esquire

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUES

Whether the Petitioner abandoned his position with the Department of Corrections in the Career Service System when he was absent for three consecutive workdays in June 1989.

PRELIMINARY STATEMENT

By letter dated June 15, 1989, the Petitioner, Michael A. Doub (hereinafter Doub) requested a formal administrative hearing to determine whether he abandoned his position with the Career Service System when he failed to appear for work for three consecutive workdays in June 1989.

Pursuant to agreement, the parties submitted a joint stipulation of facts with two exhibits on November 7, 1989, in lieu of an evidentiary proceeding.

The facts below are adopted by the Hearing Officer from the stipulation. Legal memoranda in support of the parties' respective positions were timely filed by November 14, 1989.

FINDINGS OF FACT

1. Michael A. Doub was employed as a correctional officer I at DeSoto Correctional Institution, Department of Corrections. He held this position from October 3, 1986 until he was determined to have abandoned his position on June 8, 1989. During this period, Doub's work performance had been rated at the "achieves standards" level. Doub had in excess of twenty (20) days of accumulated leave credits available for use at the time of his separation from employment with the Department.

   
   

2. On June 4, 1989, Officer Doub was arrested by the Hardee County Sheriff's Department on the charge of sexual battery. Doub was taken to the Hardee County Jail where he was confined until he could post appropriate bail. Doub was scheduled to work from 8:00 a.m. to 4:00 p.m. on June 4, 1989.

   
   

3. On June 4, 1989, DeSoto Correctional Institution, specifically Lieutenant James Jacobs, was notified by Sergeant J. Krell of the Hardee County Sheriff's Department of Doub's arrest, the charges pending against him and his confinement at the Hardee County Hail pending the posting of appropriate bail. Lieutenant Jacobs is Officer Doub's immediate supervisor. This contact was not initiated at Officer's Doub's request.

   
   

4. Officer Doub was aware the Sheriff's Department had notified the Institution of his whereabouts and situation. Doub did not contact the Institution in order to specifically request that he be granted leave pending his release from jail.

   
   

5. On June 12, 1989, Officer Doub was released from the Hardee County Jail after posting bail. On the same date, he received the letter of abandonment from DeSoto Correctional Institution.

   
   

6. On June 12, 1989, Officer Doub contacted DeSoto Correctional Institution seeking permission to return to work. This requested [sic] was denied based on the letter of abandonment. Thereafter, Doub filed a request for review of the decision of the Institution finding him to have abandoned his position.

   
   

7. The criminal charge of sexual battery pending against Officer Doub was withdrawn by the State Attorney of the Tenth Judicial Circuit, in and for Hardee County, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Essentially, this case involves the determination of whether the pretrial incarceration of a career service employee may be considered as abandonment of a job position within the Career Service System when a) the employee's supervisor is aware of the pretrial incarceration prior to the beginning of the first workday after arrest, and b) the employee has been made aware by his jailers that his supervisor knows he is in jail until he is able to gain pretrial release.

   
   

10. In most instances, when a career service employee is absent without authorized leave for three consecutive workdays, the employee is deemed to have abandoned his position and to have resigned from the Career Service System. As

    the employing agency in this case did not authorize Respondent's leave, the letter of abandonment from DeSoto Correctional Institution was properly issued. However, the facts presented by Petitioner Doub have rebutted the underlying presumption that abandonment occurred on June 8, 1989.

    
    

11. When Petitioner Doub was arrested and taken into custody on June 4, 1989, he lost the ability to control his own physical whereabouts. He was financially unable to post the initial bond, and probable cause for the arrest had not yet been reviewed for sufficiency by a magistrate. Under such circumstances, failure to appear for work on June 4, 1989 was not an act of abandonment. The employer was aware of his impending absence on this date and the reasons for his failure to report to work. On this date, the Petitioner did not "undertake to abandon his position of employment." Brewer v. Department of Corrections, 531 So.2d 978 (Fla. 1st DCA 1988).

    
    

12. Because Petitioner's failure to appear at work on June 4, 1989 was considered as one of the three consecutive workdays necessary for abandonment to occur, the requirements of Rule 22A- 7.010(2), Florida Administrative Code were not met under the particular circumstances of this case.

    
    

13. Ordinarily, an employer can decide whether an employee is to receive authorized or unauthorized leave based upon personnel rules and regulations. On the morning of June 4, 1989, judicial review of Petitioner's arrest for a probable cause determination had not yet occurred. The employer lacked sufficient information to make a determination as to authorized or unauthorized leave until after a probable cause determination was made.

    
    

14. Petitioner's failure to contact his employer regarding his absence from duty on June 7 and June 8, 1989, were indicative of an intention to abandon his position within the Career Service System. The employer was not required to inform Petitioner Doub that he needed to request leave. Pretrial incarceration does not relieve an employee of his responsibility to inform an employer of his whereabouts and his desire to return to work.

    
    

15. However, the fact that a sheriff's deputy initially informed Petitioner's employer of the incarceration, along with the conveyance of this information to Petitioner on June 4, 1989, control the outcome of this case regarding the factual issue of abandonment on June 4, 1989. The facts were resolved in favor of the employee.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That the Petitioner be reinstated as a Correctional Officer I, as he did not abandon his position within the Career Service System for three consecutive workdays.

DONE and ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989.

COPIES FURNISHED:

Gene "Hal" Johnson, Esquire

300 East Brevard Street Tallahassee, Florida 32301

Perri King, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Ms. Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT IF ADMINISTRATION

MICHAEL A. DOUB,

Petitioner,

Respondent.

/

FINAL ORDER

This matter is before me for the entry of a Final Order. Petitioner requested an administrative review of the Department of Correction's declaration that he abandoned his position when he failed to appear for work for three consecutive days in June, 1989. The matter was submitted to a Hearing Officer from the Division of Administrative Hearings and a Recommended Order was rendered November 29, 1989. The facts are not in dispute. The stipulation of facts, the exhibits attached to that stipulation, and the Findings of Fact in the Recommended Order are hereby adopted as the Findings of Fact of this agency. They are summarized here.

Petitioner was employed as a correction officer by the Department of Corrections when on June 4, 1989 he was arrested by the Hardee County Sheriff's Department. He had been scheduled to work from 8:00 a.m. until 4:00 p.m. on that day, but because of the arrest, he was confined in the Hardee County Jail until he could post bail. When he was jailed, Petitioner's immediate supervisor was notified by the Sheriff's office of Petitioner's arrest, of the charges pending against him, and of his confinement at the Hardee County Jail.

Petitioner was aware that the Sheriff's department had notified his employer of his whereabouts and of his situation. He did nothing further to contact his employer until his release from jail on June 12, 1989, the same day that he received notice from his employer declaring that he had abandoned his position. Petitioner contacted his employer that same day seeking permission to return to work. Permission was denied based upon the declaration of abandonment.

Petitioner appealed that decision and this administrative litigation followed.

The Department of Administration is responsible for carrying out the legislative mandate to establish a uniform system of personnel management for state employees. All agencies are required to operate within the rules promulgated by this department. Sec. 110.201(2), Florida Statutes. With regard to separations from state employment, Rule 22A-7.010(1), F.A.C. provides that: "an employee who resigns should present the reasons therefor in writing to the agency." It is recognized, however, that not all employees do so. Some

employees simply leave without explanation and do not return. To provide for that contingency this Department promulgated Rule 22A-7.010(2), F.A.C., which provides:

1. 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.

This rule creates the presumption that by doing so, an employee who simply doesn't appear for work for at least three consecutive work days evidences a desire to terminate his employment relationship with his public employer without giving his reasons for doing so in writing. The courts have found such a rule to be both sensible and inherently correct. Cook vs. Division of Personnel Department of Administration, 356 So.2d 356 (1st DCA Fla. 1978)

Implicit within the concept of abandonment, however, is the idea that the employee voluntarily leaves his employment or that he is so careless in failing to notify his employer of his situation that the employer has no choice but to believe that the employee intended to abandon his employment. When that occurs, Rule 22A-7.010(2)(b), F.A.C. requires that notification be given to the employee in writing that his agency believes he has abandoned his position.

Detailed instructions are included within the rule as to the means of delivery of that notice, the content of that notice, and the records which must be kept to verify that the employee was notified. If abandonment of position were to become an accomplished fact merely upon the absence of an employee without further inquiry, then these provisions of the rule would be unnecessary. They are not. That they exist is a clear statement by this agency that the presumption that an employee has abandoned his position is a rebuttable one.

The conduct of the employee and his intent are, therefore, proper subjects for inquiry.

Human experience teaches that a request for leave cannot always be made in advance and approved before the leave must be taken. In contemplation of such situations Rule 22A-8.002(5) provides:

(5) 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.

The Department of Corrections chose the third option. But in declaring the abandonment only a rebuttable presumption is raised.

In this case, even though the charges brought against the employee which caused his initial incarceration were dropped and no prosecution was instituted, Petitioner's guilt or innocence of the charges brought against him is not dispositive of this case and indeed is not really relevant to this inquiry.

Directly relevant however, is the stipulation between the parties that Petitioner knew that his employer had been notified of his whereabouts and of the circumstances of his incarceration. There is no evidence in the record before me that Petitioner voluntarily extended his incarceration. It must be assumed, in the absence of such evidence, that Petitioner freed himself as soon as he was able to do so, and that soon thereafter he called his employer. Both occurred on June 12, 1989.

It was only upon his release from jail that Petitioner learned that the Department of Corrections had terminated his employment. On that same day he sought permission to return to work and when that was denied, he filed this appeal. These actions are inconsistent with those of one who wants to distance himself from his employer by resigning.

In an administrative proceeding, the burden of proof is upon the party asserting the affirmative of the issue. In this case the burden is upon the Department of Corrections to prove that Petitioner's actions are tantamount to a resignation. I conclude that as a matter of law, the agency failed to sustain that burden.

This case is to be distinguished from Florida State University v. Brown,

436 So.2d 287 (1d Fla. 1983) in which it was clearly demonstrated that the employee there knew the appropriate procedure to be used in obtaining approved leave and knew that the initial leave granted to him was for a finite period of time. Brown was in jail for four (4) months and had adequate time and opportunity to recontact his employer. Here, however, the parties have stipulated that Doub did not have access to a telephone during his eight (8) day confinement and could not, therefore, have contacted his employer before his release. Upon his release, Doub did contact his employer promptly.

Likewise this case is clearly distinguishable upon its facts from Clara Penny v. Department of Insurance, DOA Case No. Ab-85-6, DOAH Case No. 85-1530, Final Order rendered January 31, 1986. Penny was concerned with the import of a conversation between the employee's supervisor and the employee's husband and not, as here, whether Petitioner had the ability to contact her employer.

Although Penny is not controlling here it is interesting to note that Penny, also incarcerated unexpectedly, did not have access to a telephone during normal business hours. In Penny, as here, we found that Petitioner's actions were not tantamount to a resignation.

Based upon the foregoing, it is hereby ORDERED that the Department of Correction's declaration that Petitioner has abandoned his position is hereby REVERSED. Petitioner shall be given approved leave for the period between June 4, 1989 and June 12, 1989.

It is further ORDERED that Petitioner shall be reinstated effective as of June 4, 1989 and shall receive all monies and benefits which he would have received if he had not been deemed to have abandoned his position, less any earnings from employment or unemployment compensation Petitioner may have received from the date of his arrest until his reinstatement.

The Department of Corrections has filed two exceptions to the Recommended Order. The first exception is to the Hearing Officer's reasoning and not to a fact found by her. It is, therefore rejected as argument. The second points out that Petitioner did not request approved leave during the term of his incarceration. But neither did the stipulated facts reveal that Petitioner was able to do so. In the absence of such proof I cannot assume that Petitioner had the means but not the desire to communicate with his employer. The second exception is therefore rejected as not supported by the record.

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. JUDICIAL REVIEW OF THIS PROCEEDING MAY BE INSTITUTED BY FILING A NOTICE OF APPEAL IN THE FIRST OR FOURTH DISTRICT COURT OF APPEAL LOCATED IN TALLAHASSEE AND WEST PALM BEACH, RESPECTIVELY, PURSUANT TO SECTION 120.68, FLORIDA STATUTES. SUCH NOTICE MUST BE FILED WITH THE DISTRICT COURT OF APPEAL WITHIN THIRTY (30) CALENDAR DAYS OF THE DATE THIS ORDER IS FILED IN THE OFFICIAL RECORDS OF THE DEPARTMENT OF ADMINISTRATION, AS INDICATED IN THE CERTIFICATE OF CLERK BELOW, OR FURTHER REVIEW OF THIS ACTION WILL BE BARRED.

DONE AND ORDERED in Tallahassee, Florida, this 19th day of February, 1990.

ALETTA L. SHUTES, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-4116

CERTIFICATE OF CLERK:

Filed in the official records of the Department of Administration this 22nd day of February, 1989.

Deputy Clerk

COPIES FURNISHED TO:

Veronica E. Donnelly, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Gene "Hal" Johnson, Esquire

300 East Brevard Street Tallahassee, Florida 32301

Perri King, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

William A. Frieder, Esquire Department of Administration Office of the General Counsel

438 Carlton Building Tallahassee, Florida 32399-1550

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DEPARTMENT OF CORRECTIONS, NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

v. CASE NO. 90-834

DOAH CASE NO. 89-3532

MICHAEL A. DOUB,

Appellee.

/ Opinion filed December 11, 1990.

An appeal from an order of the Department of Administration. Perri M. King, Tallahassee, for Appellant.

Gene "Hal" Johnson, Tallahassee, for Appellee.

PER CURIAM.

The Department of Corrections (DOC) appeals a final order of the Department of Administration which ordered the reinstatement of appellee as a correctional officer. We affirm.

On June 4, 1989, appellee was arrested. He was scheduled to work at his job at DeSoto Correctional Institution on the day of his arrest. The parties stipulated that appellee's supervisor was notified on June 4th of appellee's arrest. Eight days later, appellee posted bond and was released from jail.

Sometime thereafter, the charge against appellee was dropped.

On the day of his release, June 12, 1989, appellee contacted DOC about returning to work; DOC, however, had already sent notice to appellee that he was deemed to have abandoned his employment by virtue of a consecutive three day absence without permission. Appellee received that notice on the 8th, and thereafter requested a hearing.

In lieu of an evidentiary proceeding, the parties executed a stipulation of facts, and each submitted a memorandum of law. The hearing officer for the Department of Administrative Hearings accepted the stipulation of facts and found, as a matter of law, that the facts rebutted the presumption that appellee intended to abandon his position. Accordingly, the hearing officer recommended that appellee be reinstated in his position.

DOC took exception to the recommended order, arguing that while appellee was unable to control his whereabouts due to his arrest and while DOC did know the whereabouts of its employee, appellee nevertheless was obliged to inform DOC of his absence and to seek authorization for it. DOC cited as authority for that argument, Florida State University v. Brown, 436 So.2d 287 (Fla. 1st DCA 1983).

The Department of Administration (DOA) accepted the findings made in the recommended order and agreed that DOC had failed to sustain its burden of proving abandonment. In so ruling, DOA stated: "Human experience teaches us that a request for leave cannot always be made in advance and approved before the leave must be taken." DOA distinguished Florida State University v. Brown, supra, from the instant case.

We agree that Brown is distinguishable from the case before us. In that case, an employee at Florida State University (FSU) was arrested and put in county jail on November 2, 1981. A personnel officer from FSU visited the employee in jail on the following day and advised the employee to request a leave of absence. The employee did make such a request and was given a twenty day leave of absence. The employee failed to post bond, and so he could not report to work when his leave expired. He did not contact FSU to seek additional leave. On November 30, FSU sent the employee notice that he had lost his position due to his unauthorized absence. Notice was sent via certified mail which was returned unclaimed. On March 1, 1982, the day after the employee was released from prison, he contacted FSU, for the first time since November 3, 1981, about returning to work. The Secretary of Administration considered the case and found that because FSU had initially undertaken a ministerial role at the time of arrest by advising the employee about the need to request leave, it was incumbent upon FSU to keep the employee advised of his leave status. On review, this court rejected the application of equitable estoppel principles and found FSU was not obligated to excuse the employee's failure to request an extended period of leave.

The facts in Brown did not rebut the presumption embodied in Rule 22A- 7.010(1), Florida Administrative Code, that an employee who is absent without leave for three consecutive work days has abandoned his position. However, given the facts of the instant case, the hearing officer and the Secretary of the Department of Administration found the presumption was rebutted. We cannot say on the record before us that the DOA Secretary erred in concluding the appellee did not intend by his conduct to abandon his job. Nor do we believe that DOA's final order must be reversed because of the reference to a stipulation of fact which did not actually exist. The DOA Secretary had stated that the parties stipulated that appellee had no access to a telephone during his eight day incarceration; no such stipulation was in fact made. The Secretary accepted the hearing officer's findings of fact which did not include any reference to appellee's inability to use the telephone. Further, it is evident that the Secretary gave little weight to this supposed fact because the Secretary, in summarizing the evidence to support her conclusion that DOC failed to sustain its burden of proving appellee's actions were tantamount to a resignation, made no mention of this supposed stipulated fact.

Accordingly, the Department's order reinstating appellee is AFFIRMED. SHIVERS, C.J., SMITH and NIMMONS, JJ., CONCUR.

Docket for Case No: 89-003532

Orders for Case No: 89-003532