STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HIGHWAY SAFETY AND MOTOR VEHICLES, )

)

Petitioner, )

)

vs. )

) CASE NO. 89-3756

LAMICHAEL PROCTOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on October 4, 1989, in the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida, a formal hearing was held in this cause. Authority for the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Judson M. Chapman, Esquire

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0504

For Respondent: Lamichael Proctor, pro se

1233 Cross Creek Way Apartment A

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

At issue here is the question of whether Lamichael Proctor has abandoned his employment position with the State of Florida, Department of Highway Safety and Motor Vehicles as envisioned by Rule 22A-7.010(2)(a), Florida Administrative Code.

PRELIMINARY STATEMENT

This Recommended Order is being entered following a review of exhibits, five of which were submitted by Petitioner and two by Respondent, and in consideration of the testimony offered by Petitioner's witnesses, Jeanette Spooner, Senior Clerical Supervisor of the Bureau of Registration Services; Virginia Kirkland, Records Management Analyst with the Division of Motor Vehicles; and Jack Pelham, Chief of Registration Services with the Division of Motor Vehicles. Respondent's testimony has also been considered in his response to the assertion that he has abandoned his job position. The parties have presented proposed recommended orders which were filed with the Division of

Administrative Hearings on October 16, 1989. The proposed recommended orders have been reviewed and the fact finding suggested in those proposed recommended orders is spoken to in the Appendix to this Recommended Order.

At the commencement of the hearing Respondent acknowledged the request to withdraw as attorney filed by his former counsel Ben R. Patterson, Esquire, Patterson and Traynham, 215 Thomasville Road, Post Office Box 4289, Tallahassee, Florida 32315, and Mr. Patterson was allowed to withdraw.

FINDINGS OF FACT

1. On May 20, 1989, Respondent was employed as a radio teletype operator with the Bureau of Registration Services, Division of Motor Vehicles, a division of the State of Florida, Department of Highway Safety and Motor Vehicles. He had held that position for approximately four years and nine months. Respondent's duty shift was from 12:00 a.m. to 8:00 a.m. His days off were Thursday and Friday. He had held this shift assignment since 1987.

   
   

2. Respondent had another employment position at Florida State University, a day shift that ran from 8:00 a.m. to 5:00 p.m., Monday through Friday.

   
   

3. The equipment which Respondent operated for the Petitioner was linked to the Florida Department of Law Enforcement and was part of the Florida Criminal Information Center. Given this affiliation, it was necessary for the Respondent to maintain his qualification to operate the terminal. That qualification was through a certification process. To this end Respondent had undergone training on May 2 and 3, 1989, through the Florida Department of Law Enforcement, to include a test to ascertain his skills. He failed to pass that test. Thus, he was not certified.

   
   

4. As a consequence of Respondent's failure to obtain a satisfactory score on the certification examination to continue as a teletype operator on the Florida Criminal Information Center equipment, a letter was written from the Florida Department of Law Enforcement to Jeanette Spooner, Respondent's immediate supervisor. A copy of that correspondence may be found as Petitioner's Exhibit No. 1 admitted into evidence. Through the correspondence Patrick J. Doyle, Director, Division of Criminal Justice Information Systems for the Florida Department of Law Enforcement explained to Ms. Spooner that terminal operators who did not pass the examination, Respondent among them, could not continue operating the Florida Criminal Justice Information Center terminal until an minimum test score of 70 had been obtained. It was suggested in this correspondence that the arrangements be made to allow the operators who had failed to attend the next regularly scheduled training class. This letter is dated May 18, 1989.

   
   

5. Ms. Spooner, whose job title has been identified in the Preliminary Statement, works from 8:00 a.m. to 4:30 p.m., Monday through Friday. She is on call weekends and holidays and after hours by contact through a beeper system. As a consequence, she was not in attendance when Respondent arrived for his midnight shift on Saturday, May 20, 1989. The midnight shift has one operator on duty with a float person being available for relief. The float operator also is available to work days. The primary operator on the midnight shift on May 20, 1989 would ordinarily have been the Respondent.

   
   

6. Given that Ms. Spooner was not at work when Respondent arrived for his next duty shift beyond the notification that he had failed the certification examination, other arrangements were made by the Petitioner to confront this

   dilemma. These arrangements were made through a conversation between Mr. Pelham, whose job title with the Petitioner is identified in the Preliminary Statement, and a Ken Wilson who is a personnel official within the Petitioner's Department. Wilson devised a set of options that could be made available to the Respondent in view of his inability to function in his normal position of radio teletype operator. Those options may be found in Petitioner's Exhibit No. 2 admitted into evidence. They were:

   
   

   1. Transfer to day shift (8:00 a.m. 4:30 p.m.) and work in class other than teletype.

   2. Take annual leave and comp. leave until after next class by FDLE on July 13th and 14th 1989.

   3. Take leave of absence until FCICV test is passed.

   4. Transfer into another position of like

      pay grade either day shift or night shift.

      
      

      The options were then given from Pelham to Spooner, with a copy prepared to be provided to the Respondent along with a copy of the May 18, 1989 letter from Mr. Doyle.

      
      

7. Spooner spoke to the Respondent on the telephone at 12:15 a.m. on May 20, 1989, after Respondent had clocked in for his duty shift at 12:03 a.m. on that date. In the course of this conversation, Spooner told Respondent that he could not operate the terminal and she discussed the options that had been prepared by Mr. Wilson in some depth. She also briefly spoke to Respondent about what the letter of May 18, 1989 said. The circumstance of trying to identify an alternative placement for the Respondent was one in which no equivalent position to radio teletype operator was found within the Bureau that Respondent was employed by.

   
   

8. Through the conversation on May 20, 1989, Respondent was told that he needed to go home and read the options and make a decision about which option he wanted. This remark was made because Respondent had asked for a day or so to think about the situation. Ms. Spooner allowed Respondent to take annual leave for May 20 and 21, 1989 and up through May 22, 1989, if need be. On that latter date Respondent was to contact Mr. Pelham and Ms. Kirkland, whose position with the Petitioner's department has been set forth in the Preliminary Statement.

   Ms. Spooner was not going to be available on May 22, 1989, so she made the arrangements for the Respondent to contact Pelham and Kirkland on that date to explain his choice of the option that he preferred. May 22, 1989, was the first work day that the Respondent could be in contact with Pelham and Kirkland whose duty days did not include the weekend. The Respondent's duty shift was left to the replacement teletype operator.

   
   

9. Ms. Spooner did not hear from the Respondent from May 20, 1989 through May 30, 1989. She did talk to him on May 31, 1989, between 10:00 a.m. and 11:00

   a.m. Respondent appeared at the offices of the Petitioner to pick up his check. Ms. Spooner asked Respondent to wait a moment while she went to get Ms.

   Kirkland and told Respondent Ms. Kirkland needed to speak to him. When she got to Ms. Kirkland's office, Ms. Kirkland was on the telephone and Ms. Spooner waited for that conversation to be concluded before going back to speak to the Respondent. This took between 5 and 10 minutes. When she arrived back at her office, the Respondent had departed. He left a note for her, a copy of which

   may be found as Petitioner's Exhibit No. 4 in which he says: "Mrs. S I had to leave I'm sorry!!! I'll contact you today from the office." Respondent did not call her back as his note envisioned.

   
   

10. To be absent from his duty assignment it was necessary for Respondent to contact Ms. Spooner in advance and if he were not going to be able to meet one of his shift requirements he had to give four hours notice to obtain a substitute operator. Respondent never asked Ms. Spooner for leave of any kind following the discussion of May 20, 1989.

    
    

11. On May 22, 1989, Ms. Spooner had spoken to Ms. Kirkland by telephone and Ms. Spooner relayed the details of her conversation with the Respondent which took place on May 20, 1989.

    
    

12. Around 10:00 a.m. on May 22, 1989, Kirkland, Pelham and Respondent met in Pelham's office to discuss Respondent's employment situation. In that discussion the May 18, 1989 letter was discussed and it was made clear to the Respondent that he could not be left in his position as radio teletype operator at present and that he could not return to that assignment until another class of instruction had been conducted in July, 1989. Respondent was told that he could do day clerical work somewhere within the Bureau that he was employed by with the same pay status that he had. It was emphasized that the teletype operation had to be covered, taken to mean by a certified employee. Respondent asked if he could work night clerical and was told that there were no night clerical positions available. Respondent mentioned the fact of his day time employment at Florida State University. Respondent was told that he could take annual leave, compensatory leave or a leave of absence until he went back to his position as teletype operator. The possibility was discussed of a transfer to a like pay position other than a clerical position and the existence of a vacancy in the tag office was discussed. This was a Senior Clerk position of the same pay grade as Respondent's current position. Respondent said that he would have to think about the situation and get with his supervisor at Florida State University. In the discussion of May 22, 1989, Respondent indicated that he did not like the option of working a morning job because it caused problems with his Florida State University position. Although his supervisors with the Petitioner were not sure of the details, it was remarked that the Respondent might consider a position with a Bureau within the Florida Highway Patrol, to which Respondent shook his head. Mr. Pelham told Respondent that he should think about his options the rest of the day and that he should contact Ms. Kirkland that day about the option the Respondent favored. The Respondent said it may take a little time to make the choice. Ms. Kirkland told Respondent that he should make sure to call her on May 22, 1989, or the first thing the following day and let her know his decision, because the Department would expect him to start in the morning at a new position if that were his choice. Respondent's claim that a deadline for decision was not given is rejected. Respondent stated that "If I have a problem I'll get back with you I'll let you hear from me." When the discussion was being held on May 22, 1989, Respondent had the options form and a copy of the letter of May 18, 1989, and he left the conference room with those items. This meeting lasted for approximately 30 to 45 minutes. During the course of that meeting Respondent did not ask for any form of leave or otherwise express his preference at any time contrary to his assertion that he had asked Ms. Spooner to calculate his annual and compensatory leave balances.

    
    

13. Neither Ms. Kirkland nor Mr. Pelham heard from the Respondent between May 23 and May 30, 1989.

14. Respondent did not report to a day shift, which shift would have had a work cycle of Monday through Friday with the weekends off, nor did he return to his duties as a teletype operator which had days off on Thursday and Friday. If he had elected to do the day shift work his duty days beyond the May 22, 1989 meeting would have been May 23-26, 1989, and May 29-31, 1989. The night shift would have been duty days on May 23 and 24, 1989 and May 27 - May 31, 1989.

    
    

15. When Respondent did not confirm his choice of options, Mr. Pelham tried to make telephone contact with him at 9:30 a.m., 11:00 a.m., and 3:00 p.m. on May 26, 1989, at his employment at Florida State University and left messages on each occasion. Respondent did not return those calls.

    
    

16. Had Respondent elected to go to a day shift position that change would have been placed in writing. No election having been made, it has not confirmed in writing.

    
    

17. When the agency did not hear from the Respondent about his choice, it took action on May 30, 1989 noticing the Respondent of its intent to find that he had abandoned his position. The abandonment letter was dated May 30, 1989. It sets forth that the work days that Respondent did not attend were May 23-26, 1989. It contemplates the day schedule. As described before, whether Respondent is seen as having continued to operate on a night schedule or to have moved over to a day schedule, both being choices that he remained silent about, he still failed to appear at his duty assignment for more than three consecutive days.

    
    

18. After dispatching the letter of abandonment on May 30, 1989, Respondent made known his intent to appeal the decision of the Petitioner. This point of view was expressed on June 7, 1989.

    
    

    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. Respondent made a timely request for hearing on the Petitioner's claim that he had abandoned his career service position.

    
    

21. Rule 22A-7.010(2)a, Florida Administrative Code, states:

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. An employee who has Career Service status and separates under such circumstances shall not have the right of appeal to the Public Employees Relations Commission; however, any such employee shall have the right to petition the department for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

In this instance, whether one regards the Respondent as having continued in his employment on a night shift or day shift, Respondent was absent without authorization for more than three consecutive work days and under these facts is seen to have intended to abandon his job position within the meaning of this rule.

RECOMMENDATION

Based upon the findings of facts, conclusions of law, it is, RECOMMENDED:

That a Final Order be entered which fines that Lamichael Proctor has abandoned his position as a radio teletype operator with the State of Florida, Department of Highway Safety and Motor Vehicles.

DONE and ENTERED this 9th day of November, 1989, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 9th day of November, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3756

The following discussion is given concerning the proposed facts of the parties.

Petitioner's Facts

Petitioner's facts are subordinate to the facts found in the recommended order.

Respondents's Facts

Paragraphs 1 and 2 are subordinate to the facts found.

The first sentence to Paragraph 3 is subordinate to facts found. The remaining sentences in Paragraph 3 are contrary to facts found.

Paragraph 4 is subordinate to facts found with the

exception that Petitioner's Exhibit No. 2 admitted into evidence in its fourth option discussed not only a night shift transfer but a day shift transfer as well.

Paragraph 5 is confusing in its second sentence where it suggests that the Respondent resumed his work shift on Saturday following a Thursday and Friday off, which would correspond to Thursday and Friday being May 25 and 26, 1989 and Saturday being May 27, 1989. If this is truly the contention of the Respondent, it is an erroneous statement because Respondent did not report for work on Saturday, May 27, 1989. Where it is suggested in this paragraph that the

Respondent was not scheduled to work on Thursday, May 25 and Friday, May 26, 1989, that assumes a night shift. If he was seen as working a day shift those days should have been the days that he should have been in attendance at his employment. In any event, under the interpretation that he was a day employee or night employee he has abandoned his job position.

COPIES FURNISHED:

Judson M. Chapman, Esquire Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0504

Lamichael Proctor 1233 Cross Creek Way Apartment A

Tallahassee, Florida 32301

Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0504

Enoch J. Whitney, Esquire Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0504

Larry D. Scott, Esquire Department of Administration Carlton Building

Tallahassee, Florida 32399-1550

Aletta Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 89-003756

Orders for Case No: 89-003756