The Issue Whether the petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact 2. On April 14, 1983, petitioner received a copy of the "Employee Handbook" published by the Department of Transportation. Job abandonment is explained in the Employee Handbook as follows: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current policy. The petitioner was absent without authorized leave on April 13, 14 and 15, 1987. Petitioner did not appear for work on those days and did not call the office to explain or report his absence. On April 16, 1987, petitioner called the office at approximately 8:00 a.m. to say that no one had come to pick him up. A fellow employee sometimes furnishes petitioner's transportation. By the time petitioner called in to work, he had been absent three consecutive days without authorization. Petitioner had previously been warned about his absenteeism. On March 17, 1987, petitioner was placed on unauthorized leave without pay due to his failure to report to work or notify his supervisor. On March 18, petitioner was sent a letter notifying him that he had to report by March 24, 1987, or he would be dismissed. Thus, petitioner was well aware that he had to notify his supervisor of any absences.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Transportation and finding that Fred P. Noble abandoned his position and resigned from the Career Service. DONE AND ENTERED this 28th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 28th day of December, 1987. COPIES FURNISHED: Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450 Mr. Fred P. Noble 2516 Queen Street South St. Petersburg, Florida 33705 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether the Petitioner was absent from work without authorization for three consecutive workdays so that she is deemed to have abandoned her position and to have resigned as a Career Service employee.
Findings Of Fact Petitioner Viola D. Cooper began her employment with Respondent Department of Health and Rehabilitative Services on October 19, 1987. She held the position of Support Service Aide at the Landmark Learning Center in Opa Locka, Florida. When she was hired, she was given a copy of the Department's Employee Handbook which contains attendance and leave policies. She signed a receipt for the handbook which acknowledged that she understood it was her responsibility to review the handbook in detail. On several occasions, Petitioner was counseled by her immediate supervisor regarding the proper procedures to follow when Petitioner would be late reporting to work and when Petitioner wanted to use some of the leave time available to her. Additionally, on August 8, 1988, Petitioner received a written reprimand from her supervisor for being absent from work without authorized leave. That written reprimand recited that Petitioner was scheduled to work on July 5, 1988, and that she failed to come to work and failed to call. She was, accordingly, assessed eight hours of leave without pay for that particular day and was advised that a future violation of absence without authorized leave would result in disciplinary action ranging from a 10-day suspension to dismissal. She was further reminded in that written reprimand that she was required to request leave when she was going to take time off from work. On May 3, 1989, Petitioner advised her then supervisor Barbara Butler that she intended to take off some time to visit her sick mother, that she did not know exactly when she would be doing that, and that she did not know how long she would be gone. She told Butler she did not want to use any of her annual leave (vacation) time available to her; instead, she wished to take leave without pay so as to not use her annual leave time for that purpose. Her supervisor again advised her as to the proper procedures and further advised her that if she wished to take leave without pay such a request must be presented in writing in advance to Edward Dixon, the Food Service Director at Landmark. Petitioner understood the instructions given to her by Butler. She advised Butler that she would attempt to finish working the rest of that week but that if she found out that she needed to go even in the middle of the night, she would do so. Petitioner worked May 4 and May 5, 1989. During the time period of May 3 when Butler advised her to follow the proper procedures and informed her, once again, as to what the proper procedures were, through May 5, her last day of work, Petitioner submitted no request for leave to her supervisor and made no request of Dixon for authorized leave without pay. Petitioner was not scheduled to work on May 6 and 7, a Saturday and a Sunday. From Monday, May 8, 1989, through Thursday, May 11, 1989, Petitioner failed to report to work. Petitioner had not requested that she be permitted to take leave from her work assignment, and no authorization had been given to her by anyone to not report for work on those days. Butler advised Dixon that Petitioner had stated that she might be taking time off to visit her mother, and Dixon's subsequent attempt to contact Petitioner to ascertain why she had failed to report to work for four consecutive days was unsuccessful. By certified letter dated May 11, 1989, Dixon and Ulysses Davis, Superintendent at Landmark Learning Center, advised Petitioner that she had not called in or reported to work on May 8 through May 11 and, therefore, she had abandoned her position and was deemed to have resigned from the Career Service. They further advised Petitioner that her resignation would be effective on the date she received the letter or on the date that they received the undelivered letter directed to her. Petitioner received that letter on May 19, 1989. Between May 8, 1989, and May 19, 1989, Petitioner had made no contact with anyone at Landmark Learning Center. By May 19, 1989, Petitioner had been absent without leave for 10 consecutive workdays. On May 19, Petitioner appeared at Landmark Learning Center to pick up her pay check. Although she went to the food service area while she was at Landmark, she did not speak to Butler, Dixon, or anyone else regarding her lengthy unauthorized absence or her failure to request leave in advance of failing to appear for work. Similarly, she failed to speak to anyone in Landmark's personnel office regarding her failure to request leave time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner was absent without authorized leave for three consecutive workdays and is therefore deemed to have abandoned her position and to have resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of December, 1989. LINDA M. RIGOT 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 19th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3538 Petitioner's proposed findings of fact contained in her paragraphs numbered 1-3 have been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 1-4, and 7 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the evidence in this cause. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting recitation of the testimony. COPIES FURNISHED: Elizabeth Judd-Edwards Assistant Regional Director 2171 Northwest 22nd Court Miami, Florida 33142 Julie Waldman and Caridad Planas, Esquire 401 Northwest 2nd Avenue 5-424 Miami, Florida 33128 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Senior Clerk for Respondent. At sometime prior to December 19, 1988, Petitioner purchased a nonrefundable airline ticket departing on December 23, 1988, and returning on December 30, 1988. Thereafter, Petitioner requested 40 hours of annual leave for the workdays of December 23, 1988, and December 27-30, 1988 and requested her personal holiday for the workday of December 28, 1988. On December 19, 1988, Petitioner was informed that she had 21.2 hours of available annual leave and was granted 16 of those hours for the workdays of December 23, 1988, and December 27, 1988. Petitioner's request to take her personal holiday on December 28, 1988 was denied, as was her request for annual leave for the period of December 28-30, 1988 denied. Upon being advised that a portion of her leave request had been denied, Petitioner told her supervisor about the airline ticket and that she "could not afford to lose my investment of my air-fare." Her supervisor, in turn, advised Petitioner that if she were absent December 28-30, 1988 she would be deemed to have abandoned her position. Notwithstanding such knowledge, Petitioner was absent from work without authorized leave for the three consecutive workdays of December 28-30, 1988.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned her position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June 1989. JANE C. HAYMAN 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 5th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1185 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. Not pertinent nor necessary to result reached. Addressed in paragraph 4. Addressed in paragraph 3. Not supported by competent and substantial evidence. Not pertinent nor necessary to result reached. Not pertinent nor necessary to result reached. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraph 5. Addressed in paragraph 4. Not pertinent nor necessary to result reached. Not pertinent nor necessary to result reached. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ms. Nancy M. Morrison 1925 Coolidge Hollywood, Florida 33020 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issues raised in this case are those set forth in a petition of May 18, 1987, in which the Petitioner, Richard Herring, challenged former Rule 22SM- 3.007, Florida Administrative Code, which became effective on May 29, 1986, and the amendment to that rule which had an effective date of February 1, 1987. In particular, Petitioner believes that the rule in its prior and existing forms exceeded the authority of the enabling legislation which is stated to underlie the promulgation. Petitioner contends that the rule in the prior and present form is arbitrary and capricious. Petitioner claims that the rule in its terms establishes penalties not authorized by the legislature. Petitioner believes that material changes were made to the rule following public hearing which were not supported or noticed or required by statute. Finally, Petitioner argues that the economic impact statements associated with the prior version of the rule and the February 1, 1987, version are not adequate, in that they do not apprise the Petitioner or others similarly situated of the negative implications of the rule. Exhibits and witnesses Richard Herring testified in his own behalf and called as witnesses Pam Hill and Vivian Pyle. In furtherance of his claims he submitted Petitioner's Exhibits 1-29, 32-39 and 42-45 which were received into evidence. Respondent offered Don Bradley as a witness in defense of this action.
Findings Of Fact On July 30, 1984, Richard Herring became a member of the Senior Management Service Personnel System within the State of Florida. He was recognized as a member of Senior Management from that day until March 2, 1987, the date he voluntarily left that system. During that time he served as Deputy Director of Developmental Services within the State of Florida, Department of Health and Rehabilitative Services (HRS). In confirmation of his elevation to the status of Senior Management employee, correspondence of August 3, 1984, was sent to the Petitioner over signature of Vivian Pyle, Central Personnel Officer for HRS. A copy of that letter may be found as Petitioner's Exhibit 2 admitted into evidence. As had been explained in his recruitment, the letter reminded the Petitioner that any future annual leave which he accumulated in excess of 480 hours effective as of the anniversary date of his employment would be converted to sick leave on an hour for hour basis. It further stated that at the point of separation from Senior Management Service, Herring, as an appointee to that system, would be paid for unused annual leave, not to exceed 480 hours. The rule provision pertaining to annual leave in effect at the time of Petitioner's acceptance into Senior Management Service was Rule 22SM-1.12(3), Florida Administrative Code. That rule became effective on March 16, 1981. A copy of the rule may be found as Petitioner's Exhibit 1 admitted into evidence. The rule in the aforementioned subpart stated: (3) A Senior Management appointee shall be paid for unused annual leave upon separation, not to exceed 480 hours; all other Senior Management benefits shall cease. Payment for sick leave may be made when permitted by Section 110.122, Florida Statutes. The Department of Administration determined to revise the existing rules pertaining to Senior Management Service. To this end, on February 21, 1986, Respondent gave notice of its proposed rule changes. This notification was given in the Florida Administrative Weekly. A copy of the notice, together with the full text of the proposed rule as contemplated in the notice, may be found as Petitioner's Exhibits 4 and 5 submitted into evidence. The notification states that the change calls for the repeal of existing Rules 22SM- 1.01 through 22SM-1.14, Florida Administrative Code, and the contemporaneous adoption of Rules 22SM-3.001 through 3.011, Florida Administrative Code. This meant that the Respondent had in mind the repeal of the aforementioned Rule 22SM-1.12(3), Florida Administrative Code. The stated purpose of these changes was ". . . to provide a more clearly defined rule structure for the Senior Management Service and to allow for 1985 statutory revisions." The statement of economic impact of the rule was that it would be limited only to the administrative cost of promulgation of the new rules. As noticed, the proposed Rule 22SM-3.007 at Section (6) stated: Upon appointment to a Senior Management position of a person moving from a position in state government outside the Senior Management Service, any leave accrued and unused by the person in the prior position shall be subject to the following: Special compensatory leave credits shall be paid for in cash prior to appointment to the Senior Management Service. Regular compensatory leave shall not be transferred into the Senior Management Service. Annual leave shall be retained and be credited to the employee's account for use by the employee with approval of the agency head pursuant to Section 22SM-3.007(3) or paid for on termination from state government. Termination from state government shall mean that the person is not on any state payroll for at least thirty-one (31) calendar days following separation from the Senior Management Service. Sick leave not paid for shall be retained and be used or be subject to terminal payment in accordance with Subsection (4) above. Subsection (6)(c) to proposed Rule 22SM-3.007 as it speaks to the payment previously earned for annual leave upon termination from state government pertains to new employees who would be appointed to Senior Management positions following the effective date of the rule. It does not contemplate the question of payment of annual leave for those persons who had been appointed to Senior Management Service prior to the effective date of the proposed rule. In fact, the overall Chapter 22SM-3 as proposed did not speak to the question of payment of unused annual leave accrued by those existing employees when they left Senior Management. Conversely, Subsection (4) to this proposed rule spoke to the matter of payment for sick leave for employees who were in Senior Management before the effective date of the proposal, a counterpart to Subsection (6)(d) dealing with employees who would come after the effective date of the proposed rule. The statement of the summary of the rule changes contemplated by the notice of February 21, 1986, may be found in a copy of the summary, Petitioner's Exhibit 6 admitted into evidence. In that summary it indicated: . . . The rule sets certain requirements agencies must conform to in the areas of appointments, performance evaluations, attendance and leave for employees appointed to positions in the Service. Agencies are required to maintain personnel files and records which shall be subject to post audit review by the Department of Administration. Under the statement of economic impact in the summary dealing with cost or benefits to persons directly affected, it was stated: It is estimated that the leave benefits will benefit Senior Management Service employees, but calculation of the amount is not feasible, since such depends upon salary and individual leave utilization patterns. . . . A public hearing was held on the proposed Chapter 22SM-3. The hearing date was March 7, 1986. In the summary of the hearing and changes, a copy of which may be found as part of Petitioner's Exhibit 7 admitted into evidence, it is noted that the State of Florida, Department of Insurance, recommended that the payment be made for excess annual leave when an employee leaves Senior Management Service and moves to another service. That change was not adopted. The executive summary of the proposed Rules 22SM-3, found as part of Petitioner's Exhibit 7 admitted into evidence identified the fact of the replacement of Chapter 22SM-1 with proposed Chapter 22SM-3 and the fact that any changes to the noticed version of the rule of February 21, 1986, were said to represent only minor technical changes recommended by the Joint Administrative Procedures Committee. It was stated that no changes were made as a result of the public hearing held on March 7, 1986. This is taken to mean that there were no substantive changes made in that the summary of the public hearing and changes did identify certain modifications to the proposal that were recommended and adopted following the public hearing session. None of those changes that resulted from the public hearing spoke to proposed Rule 22SM-3.007. On May 6, 1986, Glenn W. Robertson, Jr., Secretary to the Administration Commission, wrote to Gilda H. Lambert, Secretary, Department of Administration, to advise her that on that date the Administration Commission had approved with amendment the request to repeal existing Rules 22SM-1.01 through 1.14, Florida Administrative Code, and to adopt proposed Rules 22SM- 3.001 through 3.011. A copy of that correspondence may be found as Petitioner's Exhibit 8, together with the statement of the executive summary identifying the proposed permanent rule amendments which were contemplated by the Administration Commission. Within the statement of amendments promoted by the Administration Commission was an amendment to proposed Rule 22SM- 3.007(6)(c), which stated: (6)(c) Annual leave shall be retained and credited to the employee's account for use by the employee with approval of the agency head pursuant to Section 22SM-3.007 or if the employee is transferring to Career Service, up to 240 hours of Annual leave will be transferred. Any Annual leave balance after the 240 transfer will be paid for except that the amount accrued (sic) since the employee's last anniversary will be paid for on a prorated basis in accordance with the appropriate accrual rate for Career Service. Annual leave will be paid for on termination from state government. Termination from state government --. This change to proposed Rule 22SM-3.007(6)(c) was at the instigation of the Commissioner of Agriculture in the language. . . . or if the employee is transferring to Career Service, up to 240 hours of Annual leave will be transferred. Any Annual leave balance after the 240 transfer will be paid for except that the amount accrued (sic) since the employee's last anniversary will be paid for on a prorated basis in accordance Service. Annual leave will be paid for on termination from state government. This was not the choice of the Department of Administration in terms of the substance or placement of this language. Ultimately, the language set forth in the amendments to the proposed Rule 22SM-3.007(6)(c) as found in Petitioner's Exhibit 8 made their way into the final version of the rule. The language prompted by the Agriculture Commissioner had not been contemplated by the language noticed when the rule was proposed on February 21, 1986, nor was it the product of public comment in the public hearing of March 6, 1986, or based upon remarks received from the APA committee or material received by the proposing agency within 21 days of notice of the proposed rule. The language was never noticed in the Florida Administrative Weekly. In May 1986, upon an unspecified date, certification was given from the Department of Administration to the Secretary of State confirming the adoption of Rules 22SM-3.001 through 22SM-3.011, Florida Administrative Code. The effective date of this adoption was May 29, 1986. A copy of that certification to the Department of State may be found as Petitioner's Exhibit 9. A copy of the summary of changes by the Administration Commission in its May 6, 1986 meeting setting out the suggested language of the Agriculture Commissioner on the topic of Rule 22SM-3.007(6)(c), Florida Administrative Code, may be found in Petitioner's Exhibit 10. This item, as well as the language from Subsection (6)(c) and which was sent to the Secretary of State's office and became the final version of that rule subsection, included an additional sentence which stated, "Termination from state government shall mean that the person is not on any state payroll for at least thirty-one (31) calendar days following separation from Senior Management Service," and which had not been set out completely in the executive summary sent to Secretary Lambert on May 6, 1986, found as Petitioner's Exhibit 8 admitted into evidence. This most recently quoted language is, however, the same language as found in the last sentence of Subsection (6)(c) to the notice of that matter given on February 21, 1986. In the final analysis, the changes suggested by the Commissioner of Agriculture were a part of the Administration Commission's deliberations. The final summary of the rules amendments which was filed with the Secretary of State on May 9, 1986, did not depart from the initial summary of the rules amendments pertaining to the replacement of Rules 22SM-1.01 through 22SM-1.14 with Rules 22SM-3.001 through 22SM-3.011. The statement of economic impact remained the same as well. A copy of the summary of the rules amendments and the final statement of economic impact may be found as Petitioner's Exhibit 11 admitted into evidence. The final version of proposed Rule 22SM-3.007(6)(c), which was enacted, was no more specific on the subject of payment of annual leave credits upon termination of an employee who had been appointed to Senior Management Service prior to the effective date of the rule than was the version of that provision noticed on February 21, 1986. When Subsection (6)(c) is read in the context of the overall Section (6), the language describes that experience pertaining to persons appointed to Senior Management following the effective date of the rule and their leave credits brought with them. It does not describe those who were already employees in the Senior Management system before the effective date of the rule and their annual leave credits or annual leave credits earned by new employees upon admission to the Senior Management Service. This circumstance, taken together with the repeal of the previous Rule 22SM- 1.12(3), Florida Administrative Code, means that the question of the payment for annual leave hours upon the termination from Senior Management Service after May 29, 1986, for those who had been appointed to Senior Management Service before that date was unresolved by rules of the Department of Administration beyond May 29, 1986, as was the matter of how to deal with hours earned by the new members who came into the Senior Management Service. This circumstance would remain until the passage of an amendment to Rule 22SM-3.007, Florida Administrative Code, effective February 1, 1987. Petitioner challenged Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, by petition of May 18, 1987. In that same petition, he challenged Rule 22SM-3.007, Florida Administrative Code, effective February 1, 1987. All accumulated annual leave for which Petitioner claims entitlement to payment had been accumulated prior to February 1, 1987. As forecast, Respondent determined to amend certain rules within Chapter 22SM-3, Florida Administrative Code, to include Rule 22SM-3.007, Florida Administrative Code. To this end, on October 17, 1986, Respondent gave notice in the Florida Administrative Weekly of its intention. The summary given by the notice of October 17, 1986, stated: The rule amendments provide for clarification of the designation of positions to be included in the Senior Management Service, provide for the transfer of leave between services, provide for the accrual of 240 hours of annual leave and 120 hours of sick leave each year, and provide for membership in the Senior Management Service class of the Florida Retirement System. The comments on economic impact found in the notice were to the effect: The executive agencies will be required to expend approximately $11,628 in the aggregate to implement the provisions of this rule. The overall purpose and effect of the rules changes was explained as being implementation of provisions made by the 1986 Legislature, as to Part IV, Chapter 110, Florida Statutes. See Petitioner's Exhibit 13/14 admitted into evidence. In this amendment to Rule 22SM-3.007, Section (6) in existing language becomes Section (10) in the new language. Subsection (6)(c) in the existing language is modified at Subsection (10)(c) by referring to employees as members and deleting the language beginning with " . . or if the employee is transferring . . ." to the end of that Subsection (6)(c). There are added Sections (5) and (6) in the proposed rule which address the circumstance of annual leave credit for persons who were in Senior Management Service at the point the prospective effective date of the rule noticed on October 17, 1986, as well as annual leave credits earned by employees who became members after the effective date of the amendment to the rule. This is a new addition not found in Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, which was silent on the treatment of annual leave credits for persons who had been in Senior Management Service before May 29, 1986, and the leave credits yet to be earned by those who became members after that date. For Petitioner's purposes, in this challenge, the proposal to add Sections (5) and (6) was tacit recognition of the fact that in the provisions set forth in Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, the question of payment for annual leave upon termination of employees who had been hired before the effective date of that rule was not addressed. The language of the proposed amendment to Rule 22SM- 3.007 at Section as noticed on October 17, 1986, indicated: Upon transfer of a Senior Management Service member to a position in state government outside the Senior Management Service, annual leave credits shall be retained and shall be calculated and credit as follows: All annual leave credits accrued on the member's last anniversary date shall be prorated at the rate of 20 hours monthly or 9.230 hours biweekly for each period worked thereafter. If the member is transferring to the Career Service, up to 240 hours of annual leave will be transferred and any annual leave balance in excess of 240 hours shall be paid for in cash. Subsection (5)(b) in the proposed amendment spoke to the transfer of 240 if the employee transferred to Career Service, and payment for excess balance over 240 hours earned while Senior Management employees for all that class of employees regardless of their point of employment in the same way Subsection (6)(c) of the May 29, 1986, rule spoke to those matters of payment for annual leave brought with them related to employees who would become members of the Senior Management Service on May 29, 1986, and subsequently. A second category of payment for annual leave was described in the proposed rule noticed on October 17, 1986, Rule 22SM-3.007(6), which stated: Annual leave will be paid for upon termination from state government. Termination from state government shall mean that the person is not on any state payroll for at least thirty-one (31) calendar days following separation from the Senior Management Service. This statement pertained to those employees who were members of the Senior Management Service prior to the enactment of the proposed rule and those who would become members and earn credits after the enactment. None of the provisions in the proposed amendments advertised on October 17, 1986, dealt specifically with transfer of or payment for annual leave credits for persons who were not leaving state government, not going to Career Service, but leaving the Senior Management Service to go into other positions within state government over which the Department of Administration had no control as to personnel matters. Effective March 3, 1987, Petitioner transferred to such an organization, namely, the State Legislature. The proposed amendment to Rule 22SM-3.007 noticed October 17, 1986, at Section (3) increased the credit for annual leave and sick leave from 176 hours to 240 hours and 104 hours to 120 hours, respectively. It is couched in terms of giving these benefits upon the appointment and on the anniversary date of appointment to the Senior Management Service. At the commencement of the steps taken to amend Rule 22SM-3.007, Florida Administrative Code, the overall summary of the amendments spoke in terms of the provision for transfer of leave between the personnel services, and the increase in accrued leave to 240 hours of annual leave and 120 hours of sick leave and the provision of membership in the Senior Management Service class of the Florida Retirement System. The statement of the economic impact indicated that the executive agencies would be required to expend approximately $11,628 in the aggregate to implement this rule. The statement of costs or benefits to persons directly affected was said to be: It is estimated that the leave benefits will benefit Senior Management Service members, but calculation of the amount is not feasible, since such depends upon salary and individual leave utilization patterns. This comprehensive statement of the summary of rules and the economic impact statement may be found as Petitioner's Exhibit 15 admitted into evidence. A public hearing was scheduled for November 7, 1986, and was held in the Larson Building auditorium, Tallahassee, Florida. This was the sole public hearing held to consider the amendments contemplated by the October 17, 1986, notice. By letter of November 5, 1986, a copy of which may be found as Petitioner's Exhibit 16 admitted into evidence, James J. Parry, Director of the Office of Human Resources, State University System of Florida, made mention of his concerns about the proposed amendments. In particular, he was concerned that the higher annual leave and sick leave credits provided in the Senior Management Service and the ability to convert those to sick leave presented potential liability to the State University System when hiring individuals who had been members of the Senior Management Service. He urged change in the language of proposed Rule 22SM-3.007(5) which would make it clear that the annual leave credits had to be transferred from Senior Management Service to the receiving employer according to that governmental body's personnel plan, if unaffiliated with the Department of Administration. Furthermore, he suggested that if the annual leave had been converted to sick leave while the employee was with Senior Management Service, upon the affiliation of the employee with the State University System there was a potential of passing along the cost of payment of that unused sick leave upon the termination of that employee's affiliation with the State University System or other governmental employer. He pointed out his belief that the economic impact statement in the proposed rule amendment only spoke to the increase in annual leave credit when in fact there would be an increase in sick leave credit as well. This references the economic impact statement at paragraph 1 to Petitioner's Exhibit 15 where mention is made of the cost incurred to an agency for annual leave accrual rates without mention of concomitant increases in cost for sick leave credits. Parry, by his November 5, 1986, remarks set out in the Petitioner's Exhibit 16, did not reference any specific concern about whether the agency for whom a Senior Manager had worked prior to transfer to the State University System would be liable for payment of annual leave hours accrued prior to transfer. Don Bradley, Chief of the Bureau of Classification and Pay, Department of Administration, received the November 5, 1986, Parry letter on November 6, 1986, a day before the public hearing. (Bradley is the principal author of the version of Rule 22SM-3.007, Florida Administrative Code, under consideration.) That letter was introduced into the record of the public hearing. Bradley recalls that Parry's concern as expressed in the letter and at the point of the public hearing revolved around the fact that the State University System would not allow accumulation of annual leave credit as high in total hours as was allowed by the Senior Management Service. Parry, according to Bradley, wanted to see a revision to the rule amendment which specifically stated that any transferred hours from Senior Management Service to the State University System be in accordance with the personnel rules on annual leave credits utilized by the State University System. Parry is not reported to have expressed an interest at the public hearing on the question of the employing agency of an employee within the Senior Management Service needing to pay for unused annual leave credits prior to transfer of the employee into the State University System, per se. Bradley recalls that there was a related discussion on who would pay for annual leave the State University System did not accept in an effort by Parry to clarify that his organization would not be responsible for payment. The proposed amendments to existing Rule 22SM-3.007 were presented to the Administration Commission. This was done by transmittal to the Office of Planning and Budget of the Governor's Office and from there to the Cabinet Aides to members of the Administration Commission. This submission occurred a week prior to the Cabinet meeting at which the Administration Commission considered the question of the amendments. As set out in Petitioner's Exhibit 17 containing a memorandum from the Department of Administration Secretary, Gilda H. Lambert, dated November 25, 1986, reference is made to the Cabinet Aides' consideration of proposed amendments to 22SM-3.007, described in that document as 22SM-1.007 and changes brought about in this session. That meeting of Cabinet Aides took place on the morning of November 25, 1986, causing certain revisions to be made to the proposed rules on Senior Management Service. It is unclear how the notice was given of the Cabinet Aides' meeting at which point Mr. Bradley and Mr. Parry discussed changes to the proposed amendment to Rule 22SM-3.007, Florida Administrative Code. In any event, it does not appear that Petitioner would have been apprised of this session. Among those items addressed by Secretary Lambert was a description of what was referred to there as 22SM-1.007 on attendance and leave at Section (5) on page 8 wherein she says that the revision was made to: Clarify that upon transfer to a position in state government outside the Senior Management Service, unused annual leave credits shall not be paid for and may be transferred subject to the rules governing the system into which the member is transferring. Within Petitioner's Exhibit 17 is the exact nature of Section (5) with the revision being employed. The new language is underlined in this rendition of the version of Section (5) after the Cabinet Aides' meeting. Upon transfer of a Senior Management Service member to a position in state government outside the Senior Management Service, annual leave credits shall not be paid for and may be transferred subject to the rules governing the system into which the member is transferring. All annual leave credits accrued on the member's last anniversary date shall be prorated at the rate of 20 hours monthly or 9.230 hours biweekly for each pay period or portion thereof, worked subsequent to the member's last anniversary date. As can be seen by this action, Subsection (5)(b) was deleted. These changes were not noticed by publication in the Florida Administrative Weekly. Mr. Bradley describes the underlined changes alluded to in the preceding paragraph as a product of ongoing negotiations between him and Mr. Parry which took place at the point of the Cabinet Aides' meeting dealing with the proposed amendment to Rule 22SM-3.007(5), Florida Administrative Code. In the response to the Parry concerns, Mr. Bradley did not feel that it was necessary to change the proposed language put out in the notice of October 17, 1986, pertaining to Rule 22SM-3.007(5) dealing with transfer of hours to a personnel system not administered by the Department of Administration, in that the receiving employers outside DOA controls were not obligated to receive annual credits above what was called for in their personnel systems. Nonetheless, he acquiesced in the inclusion of language in Section (5) arrived at in the Cabinet Aides meeting which made this point abundantly clear. It is that aspect of the change dealing with the transfer of annual leave credit subject to the rules of the governing system into which the member would be transferring that is seen to address Parry's concerns. The portion of the changes that deal with the unwillingness to pay for annual leave credits unless the employee is leaving Senior Management Service to go out of state government as contemplated by Section (6) may be seen as a related matter, in that the nonpayment of annual leave could cause the entire amount of those credits to be transferred over to the State University System or the Legislature to which Petitioner made his transfer. Nevertheless, Parry's emphasis was to make certain that the State University System not have to accept more annual leave credit than it would allow its employees to carry at any given point in time. The fact of nonpayment increases the potential liability for payment of unused annual leave on the part of a receiving agency. This reality does not comport with Parry's contribution before and at the point of public hearing in protecting his organization. His secondary concern expressed at the public hearing about not paying for excess annual leave his agency would not accept coincides with the idea that he wished to minimize the financial exposure of the State University System. This auxiliary position is not tantamount to advocacy which called for the abolishment of all payment for annual leave upon transfer. Finally, this last expression on the topic of payment for unused annual leave left at point of transfer does not give rise to the notion that it was sufficiently debated to notice interested parties that a rule would be enacted that disallowed payment for annual leave upon transfer to any state agency from Senior Management Service. The changes that came about in Section (5) by the Bradley/Parry discussion at the Cabinet Aides' meeting brought forth the additional penalty to the employee in Senior Management Service that annual leave credit would not be paid for in the future. This expression was contrary to the repealed Rule 22SM- 1.12(3), Florida Administrative Code, in effect prior to May 29, 1986, which allowed payment for annual leave upon any transfer, overturned the silence on this point in Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, and set aside the less restrictive statement on payment for annual leave in Section (5) as advertised on October 17, 1986. On balance, the addition of the language following the Cabinet Aides' meeting in which it is stated that annual leave credits shall not be paid for in transfer to other state government employment is seen to be a product of the thinking of the Department of Administration, not sufficiently foreseen by actions in the public hearing on November 7, 1986, not duly noticed in the Florida Administrative Weekly and not based upon remarks received from the APA committee or material received by the proposing agency within 21 days of the October 17, 1986 notice. The summary of the hearing on November 7, 1986, pertaining to the proposed amendment to the rule describes the participation on the question of proposed Rule 22SM-3.007 of other agencies in state government, as well as Mr. Parry from the State University System. A copy of that summary of hearing and changes may be found as Petitioner's Exhibit 20 admitted into evidence. The statement of changes found within that exhibit included the elimination of the payment of annual leave in excess of 240 hours if an employee transfers to another position in state government outside of the Selected Exempt Service. This is taken to mean transfer of a Senior Management Service employee to Career Service as described in Subsection (5)(c) noticed on October 17, 1986. It does not speak to the absolute prohibition of payment for annual leave hours accrued prior to transfer from Senior Management Service to any receiving governmental agency. On December 30, 1986, the amendments to Rule 22SM- 3.007 were filed with the Secretary of State. A copy of that filing may be found as Petitioner's Exhibit 19 admitted into evidence. Those amendments to Rule 22SM-3.007, to include the changes at Section (5) disallowing payment for annual leave credits upon transfer to another state government agency from Senior Management Service are included. In accordance with the final language of the rule, there is set forth a summary of the rule amendments which may be found as part of Petitioner's Exhibit 21. It states: The rule amendments provide for clarification of the designation of positions to be included in the Senior Management Service, provide for the transfer of leave between services, provide for the accrual of 240 hours of annual leave and 120 hours of sick leave each year, and provide for membership in the Senior Management Service class of the Florida Retirement System. The statement of justification for the amendments was that the changes were made to implement 1986 legislation of Part IV, Chapter 110, Florida Statutes. The economic impact statement found within Petitioner's Exhibit 21 said that the aggregate cost to the executive agencies was $11,628. It stated that the number of position descriptions that were involved would be approximately four hundred. On January 31, 1987, there were 1370+ positions in Senior Management Service before the new rule provisions were placed in effect. On February 1, 1987, as a result of the implementation of the 1986 amendment to Chapter 110, Florida Statutes, there were left approximately three hundred fifty Senior Managers. Within the economic impact statement as finally established for the amendments effective February 1, 1987, it is said: It is estimated that the leave benefits will benefit Senior Management Service members, but calculation of the amount is not feasible, since such depends upon salary and individual leave utilization patterns. Mr. Bradley, author of Chapter 22SM-3, Florida Administrative Code, effective May 29, 1986, and the amendment to those provisions as printed out on February 1, 1987, said that the Department of Administration had in mind the creation of a Senior Management Service system to try to retain Senior Managers. This included the idea of the discontinuation of payment to Senior Managers except under circumstances where they left state government. He had in mind limiting the idea of automatic payment when a Senior Management Service employee went to the Legislature or the State University System or the court system. To his way of thinking, this would encourage the senior management to remain with the employing agency. As described before, his desired outcome is not achieved until such point as the last version of Rule 22SM-3.007(5), Florida Administrative Code, effective February 1, 1987, came into effect. This was an arrangement without due notice and without regard for the hardship created by the imposition of the nonpayment for transfer rule, unless it can be said that the increase in annual leave credit and sick leave credit contemplated by the February 1, 1987, version of Rule 22SM-3.007, Florida Administrative Code, is seen as an offset. It cannot be so regarded for persons such as the Petitioner who gained very little profit from the increase in annual leave and sick leave hours while losing a substantial number of annual leave credits when he left HRS to go to the Legislature. Petitioner had been made aware sometime in December 1986, of the language of the proposed amendment noticed on October 17, 1986, pertaining to Rule 22SM-3.007. The language discussing the purpose and impact of the proposed amendments would not have given rise to any concerns on his part about the changes that were eventually brought forth in the final version of the rule effective February 1, 1987. On December 10, 1986, Petitioner had an annual leave balance of approximately 536 hours. He used some leave around the Christmas holidays and reduced that, having in mind his belief that only 480 hours could be carried forward into the new year. He felt that he was being threatened in his position as a Senior Manager at HRS, given the fact that a number of Senior Managers were being replaced in that organization in late 1986. By cashing in an amount approaching 500 hours of annual leave, he expected to be paid an amount approximating $10,000, which might assist him in his change in job positions. On April 23, 1987, having not received word on his request for payment of annual leave for Senior Management Service, Petitioner wrote to the Secretary of the Department of Administration to ascertain the outcome of his request for payment. The Secretary was and is Adis Vila. At the same time he wrote to Vivian Pyle, HRS personnel official, making the same request. He expressed concern in his correspondence on the subject of an excessive amount of leave balance being shown by his present employer, the Florida Legislature. Copies of the correspondence to those two individuals may be found as Petitioner's Exhibits 26 and 27 admitted into evidence. By way of response, as noted in Petitioner's Exhibit 28 admitted into evidence, Ms. Pyle answers his inquiry and cites to the fact that Rule 22SM- 3.007(5), Florida Administrative Code, effective February 5, 1987, does not allow for the payment of annual leave upon transfer into the State Legislature system. In correspondence of that same date from Secretary Vila, a copy of which may be found as Petitioner's Exhibit 29 admitted into evidence, the Department of Administration makes reference to the fact that the May 29, 1986, Sections 22SM- 3.007(5) and (6), Florida Administrative Code, indicated that the annual leave should be transferred subject to the rules governing the system where the employee was transferred and that accrued annual leave would be paid only upon termination from state government. The rule referred to in the correspondence does not contemplate persons who had been employed before the rule became effective transferring annual leave to the State Legislature from Senior Management or being paid for that annual leave. Moreover, at the time of his transfer, the applicable version of the rule was the February 1, 1987, statement which specifically disallowed payment for annual leave in any circumstance other than leaving state government. Although an interpretation may be given that the Department of Administration believes that the version of Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, controls the question of the entitlement of Petitioner to payment for annual leave upon his termination from Senior Management Service on March 2, 1987, that interpretation is not an appropriate one. That version of the rule was amended on February 1, 1987, and by such amendment the language of the May 29, 1986, rule was superseded, regardless of the construction given the May 29, 1986, version of the rule. Consequently, the resolution of the Petitioner's claim to entitlement for payment for annual leave credits accrued must necessarily be resolved under the terms of the rule effective February 1, 1987, if controlled by rule. Based upon computer printout information about Senior Management Service employees who were in the program as of February 1, 1987, a copy of which may be found as Petitioner's Exhibit 32 admitted into evidence, Petitioner made calculations as to the value of accumulated annual leave for those employees if they were paid by the Department of Administration at that juncture. That value was in excess of $1.9 million. The calculation made by the Petitioner concerning the amount of potential money Senior Managers would have been entitled to upon transfer does not take into account the possibility of reduced payments in transfer to Career Service under the terms of Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986. Obviously, under that version of the rule and the version of February 1, 1987, termination from state government would allow for the payment of all outstanding annual leave. Petitioner's Exhibit 34 admitted into evidence is a copy of the employee handbook in effect at the time that Petitioner took his position with the Florida Legislature. It establishes that the employee may only carry 360 hours of annual leave forward into January 1 of an ensuing year. Hours above that are converted into sick leave. The sick leave credits are not paid in full if the Petitioner leaves state government after working in the Florida House of Representatives. The value of those sick leave hours would be 1/4 of all hours not to exceed 480 hours. When Petitioner left HRS, he asked to be paid for all but approximately 24 hours accumulated annual leave. It was determined subsequently that this meant that 432 hours were being requested for payment. Instead, HRS transferred 432 hours of annual leave to the Florida House of Representatives. The beginning balance of annual leave hours with the Florida House of Representatives was limited to 360 hours with the balance of 72 hours being subject to conversion to sick leave. The conversion of 72 hours of annual leave to sick leave upon the date of employment with the Florida House of Representatives was further exacerbated by the fact that 476.15 hours of sick leave was also sent over. The significance of this was that with the addition of 3.85 sick leave hours, he would reach the maximum number of allowable sick leave hours to be maintained at any given point by an employee of the Legislature. That amount of hours would have been added in the first month in that 8 hours and 40 minutes of sick are obtained for each month of employment by an employee of the Florida House of Representatives. Consequently, not only had 72 of his hours been disallowed as annual leave credit hours but also 68.15 hours within that 72 hours would have no value, in that 476.15 hours had been transferred as sick leave hours, leaving only 3.85 hours to be converted to sick leave from the 72 annual leave hours. Finally, throughout the 1987 year, Petitioner would earn annual leave credits and compensatory leave credits with the Florida House of Representatives, creating a potential loss in annual leave hours at the conclusion of the calendar year 1987 based upon the maximum number of hours having been transferred into the Florida House of Representatives personnel system upon his hiring and the influence of additional hours added to that total. In the payment for sick leave and annual leave as a member of the Legislature, Petitioner would receive a reduced hourly rate compared to the Senior Management position which Petitioner held with HRS, evidencing further economic disadvantage imposed by disallowing the Petitioner's request for payment for the annual leave upon transfer from HRS to the Florida House of Representatives. To further explain, when Petitioner transferred to the Florida House of Representatives, he took an $8,640 pay cut. Again, payment for the claimed hours of annual leave would have been somewhere approximating $10,000, which would have offset the dire consequences of the salary reduction when changing from HRS to the Florida House of Representatives. Petitioner never sought to present evidence or argument concerning Rule 22SM-3.007, Florida Administrative Code, effective May 29, 1986, and the amendment to that rule effective February 1, 1987. Prior to this case, he did not participate in the public hearing which was conducted concerning those matters.
The Issue Whether Michael J. Rodgers abandoned his position and resigned from the career service within the contemplation of Rule 22A-7.010(2), Florida Administrative Code?
Findings Of Fact V. G. "Jerry" Collins, a DOT maintenance engineer for 14 years, was Michael Rodgers' supervisor in June of 1987, when DOT employed the latter as a highway maintenance technician II at its Perry yard. While recovering from a job-related injury, Mr. Rodgers had been assigned to pump gas there. After Mr. Rodgers began work for DOT, he was furnished a copy of DOT's employee handbook. DOT's Exhibit No. 6. On page 12, the handbook states: If, for any reason, you are going to be late or absent when prior approval has not been obtained, you must notify your immediate supervisor within one hour of your regular authorized starting time. This will allow the Department to effectively schedule your work assignments on a daily basis. When you call in, you should give the reason(s) for your absence, type of leave requested and date and time you expect to report back to work. If you are unable to report back to work on the date and time given contact your supervisor, again, to explain why and request an extension of leave as needed. If you fail to contact your supervisor or other authorized person, within the first hour of absence, you will be placed on unauthorized leave of absence without pay for the entire period of time absent from work. If there were extenuating circumstances to keep you from making such contact, this will be taken into consideration at a later time. If you do not indicate on the first day of absence that you will be absent more than one day, then call in on each successive day to report your absence. Failure to provide such notice will result in your being charged unauthorized leave without pay for all days absent where proper notification is not given. DOT's Exhibit No. 4. On page 43, the handbook discusses the abandonment rule: JOB ABANDONMENT After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. DOT's Exhibit No. 3. Mr. Rodgers signed a form acknowledging receipt of the handbook on December 16, 1983. DOT's Exhibit No. 5. At about four on the afternoon of Monday, June 22, 1987, Mr. Collins asked Mr. Rodgers when his next doctor's appointment was. Mr. Rodgers replied, "I need to see him tomorrow." (T. 35) He did not "state that it would be for illness" (T. 53) or specify the reason for the visit. (T. 74) Believing Mr. Rodgers had an appointment to see his doctor the following day, Mr. Collins said, "That's fine, when you come back to work bring a doctor's certificate." (T. 17) But the leave Mr. Collins authorized Mr. Rodgers to take was "not a leave of absence for illness." (T. 53) On Tuesday, June 23, 1987, A DOT employee marked Mr. Rodgers absent for the day on "authorized leave" (T. 18) without pay. Mr. Rodgers, who lives about 60 miles from Perry, travelled to Dr. Hauser's office in Old Town on Tuesday morning "to sit down and talk with him about some information [he] needed," (T. 36-37) concerning an automobile accident's forensic sequelae. He was told to return later that day, because the doctor could not see him immediately. Although he returned at noon, and on four different occasions that afternoon, the doctor gave other patients priority. Mr. Rodgers then telephoned DOT's Perry yard, and "gave the secretary . . . the message that [he] was unable to see the doctor and . . . would still need to be off . . . to attempt to see him again on Wednesday the 24th." (T. 24, 38) When Mr. Collins learned of Mr. Rodgers' conversation with the secretary, he asked William S. Clark to telephone Dr. Hauser's office, at the Tri-County Medical Center. Betty in Dr. Hauser's office told Mr. Clark that, although Mr. Rodgers had in fact visited the office, he had no appointment. On Wednesday morning, DOT's attendance records were marked to reflect that Mr. Rodgers was absent on authorized leave without pay, although Mr. Collins testified that leave never was authorized for that day. (T. 19, 80) Later Wednesday, Mr. Collins, under the impression that Mr. Rodgers "had lied about going to the doctor for a doctor's appointment," (T. 82) ordered that the attendance records for Tuesday and Wednesday be altered to show that Mr. Rodgers' leave was not authorized on those days. (T. 19, 80, 82) On the afternoon of Wednesday the 24th, Mr. Rodgers, who had inquired at the office about Dr. Hauser's availability on two occasions earlier in the day, saw Dr. Hauser, discussed effects of the automobile accident, and made an appointment for the following day to have his back examined. (T. 38) On Thursday, the 25th, he kept the appointment, and obtained a slip of paper attesting the fact. But, in Mr. Collins' view, Mr. Rodgers' employment had ended before he saw the doctor that day: "He was considered to have abandoned his position by 9:00 a.m. Thursday morning since he had not called in [after Tuesday afternoon.]" (T. 79) When Mr. Rodgers returned to work on Friday, June 26, 1987, Mr. Collins read, then returned, the note from the doctor, informed Mr. Rodgers of the changes in the attendance records, and advised him that his employment had terminated.
Recommendation It is, accordingly, RECOMMENDED: That DOT reinstate Michael J. Rodgers as a highway maintenance technician II at its Perry yard, with back pay since June 26, 1987. DONE and ENTERED this 27th day of May, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 27th day of May, 1988. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Aaron A. Green, Esquire P. O. Box 1265 Gainesville, Florida 32602 Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue A notice dated July 2, 1996 and an administrative complaint dated September 30, 1996, charge Respondent with willful neglect of duty. The issue for disposition is whether he committed this violation and if so, whether he should be terminated as a member of the instructional staff of the Palm Beach County School Board.
Findings Of Fact Respondent, Walter Auerbach, has been employed as a classroom teacher with the Palm Beach County school district since the 1976-77 school year and is employed pursuant to a continuing contract from which he may be discharged only in accordance with the terms of section 231.36, Florida Statutes. (Stipulation of the parties) Respondent was administratively placed in the district’s Department of Information Management in the 1994-95 school year pending resolution of allegations of misconduct brought by a female student. He was transferred to the district’s textbook/library media service office for the 1995-96 school year. (Stipulation of the parties) The reassignment was by agreement between Respondent’s representative, Clarence Gunn, Associate Executive Director of the Palm Beach County Classroom Teachers’ Association (CTA) and district staff. In December 1994, Respondent entered into a deferred prosecution agreement in the criminal case related to the student’s allegations. An investigation and proceedings by Professional Practices Services continued, however, and any disposition of that proceeding is not a matter of record here. Respondent satisfied the terms of his deferred prosecution agreement in December 1995. Jane Terwillegar was Respondent’s supervisor in the district’s library media services department. His duties were primarily computer searches for bibliographic records. When he came to work Respondent did his assignments, worked quietly and left; there were no concerns about his performance. However, he attended only sporadically in the fall of 1995, and starting in January 1996 he attended very rarely. At one point Ms. Terwillegar said something to him about showing up to earn his money, but he responded that he had a great deal of sick leave. By early 1996, Respondent had depleted all of his sick leave, but continued to be absent far more than he attended. Vernon Crawford is the district’s director of multimedia services and is Jane Terwillegar’s immediate supervisor. Because of budget cuts in his department, Mr. Crawford has a standing request for assistance from employees with available time. He is happy to take on individuals placed on special or temporary assignment by Dr. Walter Pierce, assistant superintendent for personnel relations. The understanding that he has with the personnel department is that the individuals are assigned on a temporary or day-to-day basis. Mr. Crawford does not question why the individual is assigned and he usually asks his staff not to question the circumstances. From time to time, Ms. Terwillegar advised Mr. Crawford that Respondent was absent; and after the first part of 1996, when the absences were increasing, Mr. Crawford sought the guidance of Dr. Pierce’s office in addressing the problem with Respondent. On the advice of Paul LaChance, an administrative assistant for employee relations, Mr. Crawford sent this letter to Respondent on April 17, 1996: Dear Mr. Auerbach: Since your interim assignment to the Department of Multimedia Services on August 15, 1995, you have taken one hundred twenty five (125) days of sick leave without medical documentation. You have not requested nor received approval for short term or long term leave of absence. Consequently, I am directing you to provide Jane Terwillegar, Specialist for Library/Media Support and your assigned supervisor, with a written, signed statement from your doctor documenting the necessity of your sick leave as well as a date when s/he projects you able to return to work. Your failure to provide this information within ten (10) days of receipt of this letter may result in my recommending disciplinary action for violation of proper reporting procedures and use of sick leave as outlined in School Board Policy 3.80, Leaves of Absence, and leave provisions contained in Article V, Section A.2 and Section B.1(f), and any other pertinent provision of the Agreement between the School Board of Palm Beach County and the Classroom Teachers Association. (Respondent’s exhibit 1) Respondent took the letter to his representative, Mr. Gunn, who told him to take a doctor’s statement to his supervisor, so that he could work out the appropriate leave based on the doctor’s determination. In response, Respondent turned in to Jane Terwillegar a statement from his chiropractor, Dr. Brian Soroka, dated April 26, 1996 stating: This is to certify that Walter Auerbach has recovered sufficiently to be able to return to regular work. Restrictions: none. (Petitioner’s exhibit 1) Instead of returning to work, Respondent continued his practice of calling in every morning early and leaving a message on the office answering machine. Jonathan Leahy, an employee in the Library/Media Services Department at the McKesson Building answered the phone when Respondent called in after 8:00 a.m., but most frequently he took Respondent’s messages from the answering machine. Starting in mid-April, at Mr. Crawford’s instruction, he wrote the messages down, verbatim. The messages were typically brief: “I’m not going to make it today”; or “I’m under the weather”; or, on a couple of occasions, Respondent said that he needed to meet with his lawyer. Between April 16 and June 14, 1996, Respondent was absent forty-two work days. Meanwhile, on May 7, 1996, Mr. Crawford sent another letter to Respondent: Dear Mr. Auerbach: Yesterday, May 6, 1996, Jane Terwillegar, your assigned supervisor, brought me a work release form from the Family Chiropractic Center, dated April 26, 1996, that you were able to return to regular work duty with no restrictions. Be advised that your actions to date remain in noncompliance with my April 17, 1996 letter to you. Further, even though the Family Chiropractic Center cleared you on April 26, 1996, to return to work, you have not done so and have remained continuously absent. At this point, I am directing you to provide me with the information I directed you in my April 17, 1996 letter to provide me: medical verification from your attending physician as to the specific reason(s) and need for your continual absenteeism. Such documentation is to be provided to Jane Terwillegar or to my office within five (5) working days from your receipt of this letter. Failure to provide this information may result in my recommending disciplinary action outlined in my April 17, 1996, letter which you received and signed for on April 18, 1996. (Petitioner’s exhibit 3) There was no response by Respondent to the May 7th letter and a meeting was convened on June 14, 1996 with Respondent, Mr. Gunn, Mr. LaChance and Mr. Crawford. Respondent was given another opportunity to present a physician’s statement justifying his absences. Respondent returned to Dr. Soroka and obtained this statement dated June 18, 1996: Mr. Auerbach has been treating in this office for low back pain and stress related complaints. He treats on a supportive care basis as his symptoms necessitate. On occasion, he is unable to work due to the severity of his symptoms. (Respondent’s exhibit 3) On July 2, 1996, the superintendent, Dr. Kowal, notified Respondent of her recommendation that he be terminated for willful neglect of duties based on his excessive use of sick leave without approved leave and his failure to return to duty after being released by his doctor. There are leave forms indicating that Respondent’s sick leave was “approved”. These forms are ordinarily turned in when an employee returns from an illness. Many of the forms were not completed or signed by Respondent, but rather were signed by someone else, when he never returned during a pay period and the forms needed to go to the payroll office. The leave forms are marked “approved”. Mr. Crawford approved the leave because Respondent called in and because Respondent was only a temporarily-assigned employee. Nevertheless, after the early part of 1996 when the absences increased in frequency, Mr. Crawford appropriately sought advice of the personnel office and he followed that advice regarding a physician’s statement to justify Respondent’s absences. Dr. Soroka was the only medical professional treating Respondent during the relevant period. Based on Respondent’s complaints to him, Dr. Soroka performed chiropractic adjustments to relieve muscle strains and irritations to his nervous system. Nothing in Dr. Soroka’s records indicated that Respondent was incapable of working and he never told Respondent to not return to work. Respondent contends that his absences were justified by the stress that he was suffering from his legal problems. He was the caregiver for aged and ailing parents; and he also suffered from anxiety attacks, headaches and lower back pain. Respondent’s contract with the district was for 196 days in the 1995/96 school year. Of those 196 days, he was absent approximately 167 days. The Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, July 1, 1995 - June 30, 1997, governs Respondent’s employment during the relevant period. Paid leave is available for illness of an employee and the employee’s family. All absences from duty must be covered by leave applications which are duly authorized. Leave for sickness or other emergencies will be deemed granted in advance if prompt report is made to the proper authority. When misuse of sick leave is suspected, the superintendent may investigate and require verification of illness. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Section A). When employees have used all accumulated leave, but are still qualified for sick leave, they are entitled to sick leave without pay. Except in emergency situations, short or long-term leaves of absences without pay must be approved in advance. As with paid leave, leave for sickness or other emergencies may be deemed granted in advance if prompt report is made to the proper authority. An eligible employee may be granted family medical leave under procedures described in the collective bargaining agreement. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Sections C and D) Respondent did not request leave in advance for his own illness or for that of his parents or for his meetings or depositions related to his pending professional practices case. Instead, he apparently relied on the automatic approval process described above when he called in day after day, for weeks at a time. By April it was entirely appropriate for his supervisor and her superiors to require that he provide some evidence of his need for leave. He failed to comply with two requests for that evidence. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) ...[e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations. (Respondent’s exhibit 2, Collective Bargaining Agreement, Section M)
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?
Findings Of Fact Petitioner was employed by the Department of Corrections as a Correctional Officer I in the Food Service Department at the Union Correctional Institution. Prior to his termination, Petitioner had been employed by the Department of Corrections for approximately four years. Petitioner's immediate supervisor was Mr. Norman Hedding, Food Service Director II at Union Correctional Institution. Sometime in April or May, 1987, Petitioner filled out a request for leave, requesting three weeks annual leave to be taken in July, 1987. The request for leave was placed on Mr. Hedding's desk. Mr. Hedding told Petitioner he would see what he could do and mentioned that other officers needed to take vacation time or they would forfeit the time. However, no other officer asked to take leave during the same period of time requested by Petitioner. On various occasions during May, June and July, Petitioner asked Wanda Phillips, Mr. Hedding's assistant, whether his leave had been approved. Ms. Phillips told him she had not heard anything. During one of the conversations with Ms. Phillips, Petitioner told her that he had purchased round-trip airline tickets to California. Petitioner and Mr. Hedding did not speak about the leave request until the Petitioner's last day at work prior to having two scheduled days off and then starting the 3-week period for which leave time had been requested. During this conversation, the Petitioner informed Mr. Hedding that he had confirmed round-trip tickets to California and his grandson had surgery scheduled for the time period in question. The testimony is conflicting as to what was said during this conversation. Mr. Hedding testified that he told Petitioner that the leave was not authorized. Petitioner testified that Mr. Hedding told him that the leave "had not been approved yet." Based on the testimony given at the hearing and the actions of Petitioner after his conversation with Mr. Hedding, I find that Petitioner was never told in unequivocal and clear terms that his leave had been disapproved. Petitioner assumed his leave would be approved and, before leaving work on his last day, he filled out pay slips in advance so that his payroll records would be accurate and told people at the office that he was going on vacation. Petitioner remained in town for the next four days, without reporting for work, and left for California. On August 6, 1987, upon his return from California, Petitioner received a certified letter from Mr. Hicks, an Assistant Superintendent II at Union Correctional Institution, informing Petitioner that he had been deemed to have abandoned his position and resigned from the Career Service System. Petitioner then spoke with Mr. Ellis, the Superintendent at Union Correctional Institution, who told Petitioner he needed to talk with Mr. Hedding about getting his job back. Petitioner told Mr. Hedding he had not intended to abandon his position. The next day Mr. Hedding told Petitioner he would not take him back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented in this case do not constitute abandonment as contemplated by Rule 22A-7.10(2)(a), Florida Administrative Code, and directing that Petitioner be reinstated to his former position as of July 20, 1987. DONE and ORDERED this 25th day of February, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3828 The parties submitted-proposed findings of fact, which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Petitioner's posthearing filing is a document titled "Petitioner's Argument and Citation of Law." The first three paragraphs consist of factual information and will be considered as proposed findings of fact. Petitioner's proposed findings are generally accepted, as modified in the Findings of Fact to conform to the testimony and evidence presented at hearing. Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and RO Paragraph Accepted. RO 1. Accepted, as modified to reflect approximate dates. RO 2, 3. Rejected. Mr. Hedding assumed this to be the case. Accepted, generally as modified. RO 4. Accepted, generally. RO 5. Accepted, as modified to reflect approximate dates. RO 6. Accepted, as modified. RO 6, 7. First sentence accepted. RO 9. Second sentence rejected as irrelevant. Accepted, generally. RO 10. Rejected as irrelevant. COPIES FURNISHED: Rodney W. Smith, Esquire Louis A. Vargas, Esquire 409 North East First Street General Counsel Post Office Box 628 Department of Corrections Alachua, Florida 32615 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Perri M. King, Esquire Assistant General Counsel Richard Dugger, Secretary Department of Corrections Department of Corrections 1311 Winewood Boulevard 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Tallahassee, Florida 32399-2500 Adis Vila, Secretary 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact On July 8, 1986, Respondent, Department of Health and Rehabilitative Services, sent Petitioner, Shirley Johnson, a letter to confirm her separation from employment as a Human Services Worker II in Pierce Cottage, Unit II, Facility IV, at the Gulf Coast Center in Ft. Myers. At the time, Johnson was a permanent employee of HRS. Her job at Pierce Cottage was to help care for 29 severely profoundly mentally retarded persons. On or about May 6, 1986, HRS' Gulf Coast Center instituted new policies for applying for authorization for leave from work. /1 No longer would Petitioner and fellow employees be required to notify their immediate supervisor, Twila Bevins, of their absence or tardiness. Instead, the employees are responsible only to notify the group shift supervisor on duty at Pierce Cottage. The employee only advises the group shift supervisor of the employee's intent to apply for authorization for leave and the amount and time the leave would be taken. The group shift supervisor does not approve leave. Authorization for leave must be obtained directly from the immediate supervisor, Twila Bevins, by explaining the reasons for the leave request which would entitle the employee to authorization for leave. Application for authorization for leave can be made either before or after the group shift supervisor is notified. However, no leave can be authorized for an employee who did not personally give notification of anticipated absence unless the employee is incapacitated. Petitioner is a mother of six. She also cares for her father, who has heart disease, and for her mother, who is overweight and has limited mobility. After a separation she has been reconciled with her husband, who, after being out of work, is now employed and contributes to the support of the family. On July 2, 1986, Petitioner and her immediate supervisor agreed that Petitioner would have July 3 and 4 off, but would work from 6:30 A.M. to 2:30 P.M. on July 5. Petitioner also was scheduled to work on July 6, 7 and 8, 1986. During the early morning hours of Saturday, July 5, between approximately 1:00 A.M. and 4:30 A.M., Petitioner's father had a heart attack and Petitioner and her husband went with him to the hospital and stayed there while he was being cared for. When they returned home at approximately 4:30 A.M., they were told by Petitioner's mother that Petitioner's brother was in jail in Ocala and that she was very concerned about her son. At her mother's request, Petitioner and her husband agreed to drive to Ocala to bail her brother out of jail. When they arrived in Ocala, Petitioner's husband, who was driving when they arrived in Ocala, was arrested for driving with a license under suspension and was himself put in jail. Petitioner herself then had to drive back to Ft. Myers to get money to bail her husband out of jail, drive back to Ocala to bail him out, and drive her husband back to Ft. Myers, a drive of a total of approximately 600 miles. Petitioner did not work and did not call in to work on Saturday, July 5. She was absent without authorized leave. On Sunday, July 6, 1986, Petitioner called into work at 6:30 A.M. to explain to the shift supervisor why she had been absent the previous day, and to notify him that she would not be in until approximately 10:00 A.M. However, tired from her ordeal the previous day and developing a severe headache, Petitioner did not work on Sunday, July 6. She called in later in the morning and spoke to one of the women working in Pierce Cottage but did not speak to the group shift supervisor. She was again absent without authorized leave. On the following morning, Monday, July 7, 1986, Petitioner called in at 6:25 A.M. to tell the group shift supervisor she would be late getting in to work. However, her headache got worse, and the pain traveled down to her neck and down one side of her body. The pain was so severe that she was crying uncontrollably. Although she still told her husband that she wanted to go to work to avoid any disciplinary problems, he talked her into letting him telephone Pierce Cottage to say that she would not be able to work on July 7. At approximately 6:45 A.M., her husband telephoned the group shift supervisor and told him that Petitioner would not be at work at all that day because of her physical condition. On Tuesday, July 8, 1986, Petitioner still was in approximately the same physical condition. At approximately 7:00 A.M., her husband telephoned the group shift supervisor at Pierce Cottage, reported her physical condition, and reported that Petitioner would not be in to work on July 8. Petitioner's husband also reported that Petitioner would probably have to see a doctor that day. Petitioner did indeed go to the Lee County Health Department on July 8, 1986, to be seen for her physical condition. Petitioner went to the Lee County Health Department because she and her husband could not afford to pay a private doctor. When Petitioner arrived at the Health Department at approximately 2:00 P.M., there was no doctor available to see her. She left at approximately 3:00 P.M. with a note confirming the she had been at the Health Department between 2:00 and 3:00 P.M., and that she needed a follow-up appointment. Although Petitioner still was suffering from a severe headache on Wednesday, July 9, 1986, she went to work, turning in her note from the Health Department. However, upon arriving, she was advised of HRS' July 8 letter confirming her separation from her employment. After reciting the grounds upon which HRS had taken the position that Petitioner should be deemed to have abandoned her position, the letter stated: "In the event it was not your intention to resign from employment, you are instructed to immediately contact me and provide a reasonable and acceptable explanation for your unauthorized absence from your employment." Petitioner was absent without authorized leave on July 5 and 6, 1986. Petitioner was not incapacitated from telephoning her group shift supervisor on July 7 and July 8, 1986. However, under the circumstances, it was reasonable for her to have her husband telephone for her. She did not intend to abandon her position. As of July 2, 1986, Petitioner had 27 hours of annual leave and 8 hours of compensatory time in her accumulative leave records and available for use July 5 - 8, 1986. She also would earn an additional 5 hours of annual leave and 4 hours of sick leave by July 10, 1986. This would have been enough to cover her absences and permit her to be paid during her absences if authorized and approved.
Recommendation Based upon the foregoing Findings of Fact' and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order granting the petition in this case and ruling that the circumstances of this case do not constitute an abandonment of Petitioner's position. RECOMMENDED this 3rd day of November, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 3rd day of November, 1986.
