STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS J. CARPENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3826

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on November 13, 1991 in Sarasota, Florida.

APPEARANCES

For Petitioner: Susan E. Vacca,

Qualified Representative Department of Health and Rehabilitative Services

P.O. Box 1415

Punta Gorda, Florida 33951-1415

For Respondent: Thomas J. Carpenter

1669 Flamingo Blvd.

Bradenton, Florida 34207 STATEMENT OF THE ISSUE

Whether the Petitioner, Thomas J. Carpenter abandoned his career service position with Respondent, Department of Health and Rehabilitative Services as alleged in the Respondent's letter of May 15, 1991.

PRELIMINARY STATEMENT

On May 15, 1991 the Respondent, Department of Health and Rehabilitative Services (Department) advised the Petitioner that having been absent from work for three consecutive days without authorized leave of absence it was assumed that Petitioner had abandoned his position and to have resigned from career service. Additionally, the letter advised the Petitioner of his right to appeal this decision to State Personnel Director. By letter dated June 6, 1991 addressed to the State Personnel Director, the Petitioner requested a review of his case. On June 20, 1991 the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings and forwarded the petition to the Division of Administrative Hearings for a hearing to determine whether the Petitioner had abandoned his position and is properly deemed to have resigned from the career

service. The matter was scheduled to be heard on September 3, 1991. Shortly before the matter was to be heard, Anthony N. DeLuccia, Jr., the Department's District Eight District Legal Counsel, advised the undersigned that a settlement had been reached which would obviate the need for a hearing, and verbally requested a continuance. Based on DeLuccia's assurance that a settlement had been reached, a continuance was granted and the hearing cancelled with the understanding that a written motion setting forth the grounds would be forthcoming. No motion was ever filed, and on September 11, 1991 an Order of Continuance and Status Report was entered requiring the parties to file a status report no later than September 26, 1991. Petitioner filed a status report indicating that a settlement had been attempted but was unsuccessful in that although the Department had receded from its position of abandonment and reinstated him, it had not given him back pay. The Department did not file a status report. This matter was again scheduled for hearing on November 13, 1991. On November 12, 1991 DeLuccia's office verbally requested a continuance which was denied, and the matter proceeded to hearing on November 13, 1991. At the time scheduled for hearing, DeLuccia did not appear, and inquiry by the undersigned revealed that he was in Tallahassee, Florida and had made no arrangements for anyone else to cover the hearing. Eventually, arrangements were made to have a Department employee, Susan Vacca, to appear as a qualified representative, and the hearing was continued until 11:30 a.m. to allow her time to travel from Punta Gorda to Sarasota.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Vickie L. Carpenter. Petitioner's exhibits 1 through 3 were received into evidence. Susan Vacca testified on behalf of the Respondent.

Respondent did not offer any documentary evidence into the record. However, the Department was allowed additional time to late file any written record it may have had concerning any agreement between the Department and the Petitioner.

The Department verbally advised the undersigned on November 15, 1991 that it had no written evidence of the agreement.

Since the Department had not made any arrangements to preserve the record, the Sarasota County Government furnished a tape recorder and tape to preserve the record. The tape of this proceeding is being forwarded to the Department of Administration along with the exhibits and Recommended Order. The parties did not file any proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, the Petitioner was an employee of the state of Florida employed by the Department.

   
   

2. On May 10, 1991 the Petitioner was arrested and placed in isolation without any outside contact except in the evenings by phone.

   
   

3. By letter dated May 15, 1991, mailed to Petitioner's home address, the Department advised Petitioner that having been absence from work for three consecutive days without authorized leave of absence the Department assumed that the Petitioner had abandoned his position and resigned from career services. Additionally, this letter advised the Petitioner that he had 20 calendar days from receipt of the notice to petition the State Personnel Director for a review of the facts to determine if the circumstances constituted abandonment of position. The return receipt for this letter appears to be signed by Vickie

   Carpenter but does not indicate the date it was signed by her. A copy of this same letter was mailed by the Department to the Petitioner at the jail but no return receipt was ever received by the Department. However, the Petitioner testified at having received the letter around May 23, 1991.

   
   

4. On May 23, 1991 the Respondent was released from jail and was available for work beginning on May 24, 1991. However, the Department had already terminated the Petitioner based on abandonment of position.

   
   

5. By letter dated June 6, 1991 the Petitioner requested the State Personnel Director to review his case.

   
   

6. By letter dated June 12, 1991 and received by Petitioner on June 14, 1991, the Department again advised Petitioner that the Department assumed that he had abandoned his position and again outlined the review process.

   
   

7. On June 20, 1991 the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings.

   
   

8. By letter dated August 27, 1991 the Department advised Petitioner that it was withdrawing the action of abandonment of position, and that he was reinstated to his position effective August 30, 1991. However, by letter dated August 29, 1991 the Department advised Petitioner that he was to report for work on September 3, 1991 rather than August 30, 1991, and that he was to report to Ft. Myers rather than to his old job in Punta Gorda. Additionally, Mark M. Geisler, Subdistrict Administrator, the author of the letter, advised the Petitioner that since the issue of back pay had been discussed with DeLuccia it was best for Petitioner to contact him in that regard. Petitioner was reinstated by the Department on September 3, 1991.

   
   

9. Petitioner did not at any time agree to forego any back pay in order for the Department to reinstate him.

   
   

10. The Petitioner has never received any back pay for the period beginning Friday, May 24, 1991 (the day he was able and ready to return to work) through Monday, September 2, 1991 (the day before Petitioner returned to work).

    
    

11. Petitioner's wife, Vickie L. Carpenter was, at all times material to this proceeding, employed by the state of Florida, and because she and Petitioner both were employed by the state of Florida their health insurance was furnished by the state of Florida at no cost to them. Upon the Department terminating the Petitioner his wife was required to pay for her health insurance until Petitioner was reinstated on September 3, 1991.

    
    

12. Petitioner was unable to report to work during the period from May 10, 1991 through May 23, 1991, inclusive, due to being incarcerated, and was on unauthorized leave of absence during this period. Therefore, Petitioner is not entitled to any back pay for this period, and so stipulated at the hearing. However, Petitioner is entitled to receive back pay for the period from May 24, 1991 through September 2, 1991, inclusive.

    
    

13. There is sufficient competent substantial evidence to establish that the Department was aware of Petitioner's incarceration and that it was not Petitioner's intent to abandon his position with the Department.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.570(1), Florida Statutes.

    
    

15. Rule 22A-7.010(2)(a), Florida Statutes, provides as follows:

    
    

    (2) Abandonment of Position.

    (a) An employee who is absent without authorized leave of absence of 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 to appeal to the Public Employees Relation 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.

    
    

16. The evidence clearly establishes that the Petitioner was absent from work without any authorized leave of absence for three consecutive workdays creating the presumption that he had abandoned his position with the Department and to have resigned from career service. This presumption, however, is a rebuttable, not a conclusive, one, which may be overcome by proof that the Petitioner did not intend by his conduct to relinquish his career service position. Department of Corrections v. Doub, 571 So.2d 535 (1 DCA Fla. 1990); DeSilva v. Department of Transportation, 564 So.2d 216 (4 DCA Fla. 1990); Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62 (2 DCA Fla. 1990).

    
    

17. Petitioner has presented such proof to overcome this presumption in the instant case. In fact, prior to the hearing the Department had made a decision that Petitioner's action did not constitute abandonment, and reinstated him. However, the Department failed to address the issue of back pay. Petitioner is entitled to the reinstatement of his career position with back pay. See, Desilva v. Department of Transportation, 564 So.2d 216 (4 DCA Fla. 1990).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That the Department of Administration enter a Final Order (1) confirming the action of the Department that Petitioner did not abandon his position with the Department, and (2) reimbursing Petitioner for back pay for the period from May 24, 1991 through September 2, 1991, inclusive, and for any other benefit that Petitioner was entitled to during this period, including, but not limited to, health insurance benefits.

DONE and ENTERED this 12th day of December, 1991, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1991.

COPIES FURNISHED:

Thomas J. Carpenter 1669 Flamingo Blvd.

Bradenton, FL 34207

Susan E. Vacca, Qualified Representative Department of Health and Rehabilitative Services

P.O. Box 1415

Punta Gorda, FL 33951-1415

Augustus D. Aikens, General Counsel Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

John A. Pieno, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Robert B. Williams, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Anthony N. DeLuccia, Esquire Department of Health and

Rehabilitative Services

P.O. Box 06085

Fort Myers, FL 33906

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-003826

Orders for Case No: 91-003826