The Issue The issue in this case involves a consideration of whether the Petitioner has abandoned his job position with the Respondent as described in Rule 22A- 7.010, Florida Administrative Code.
Findings Of Fact In the relevant time period which is associated with this case, Petitioner was employed by the Department of Revenue as an Appraiser II in the Jacksonville, Florida, office of the Northeast Region, Bureau of Field Appraisals, Division of Ad Valorem Tax. He worked with the Respondent agency beginning April 1980 until his dismissal from the agency on December 17, 1986, based upon the theory that he had allegedly abandoned his job within the meaning of Rule 22A-7.010(2)(a), Florida Administrative Code. During his employment Petitioner operated out of his home, which was in Palm Coast, Florida. Douglas Drozd, an employee of the Respondent agency, was sent to the Jacksonville office of the Bureau of Field Appraisals, Division of Ad Valorem Tax to serve as a temporary Appraiser Supervisor for that office. This assignment occurred on October 6, 1986. On October 21, 1986, Albert Johnson, the former Appraiser Supervisor with the Jacksonville office, left that position. Following the departure of Johnson, Drozd became the permanent Appraiser Supervisor for the Jacksonville office. From October 6, 1986, through November 18, 1986, Drozd acted in the capacity as the immediate supervisor of the Petitioner. Beyond that date, Robert Worley, an Appraiser II in the Jacksonville office, took over the position of Appraiser Supervisor in the subject regional office. Worley served in the capacity of supervisor from November 19, 1986, until December 22, 1986, when he returned to his duties as Appraiser II. While Worley was serving as Appraiser Supervisor, Drozd took over the function of Property Appraiser, Duval County, Florida. On December 22, 1986, Drozd returned to his duties as Appraiser Supervisor for Respondent's Jacksonville office. On November 17, 1986, Petitioner asked the permission of his supervisor, Drozd, to take annual leave for days in December 1986. This request was not made in writing and was not responded to in writing. Although Rule 22A- 8.002(4), Florida Administrative Code, contemplates that leave shall be requested in writing, it gas the custom and practice of the Respondent agency for oral requests for annual leave to be made and approved orally. At the time of the conversation on November 17, 1986, between the Petitioner and Drozd concerning the request for annual leave, Drozd initially granted that request without any reservations or contingencies being applied to the permission given. Subsequently, on that same day, Drozd told Richards that he expected that all "field work" assigned to the Petitioner should be completed before leave was taken. This arrangement included work being done on vacant parcels of property as well as improved parcels. More particularly, "field work" includes: Completion of neighborhood analysis form Dr-549 Completion of structural elements form Dr-551 Measurements of all improvements Notes pertaining to subject property (condition of property, any unusual circumstances) Sketching and traversing (perimeter measurements for calculating square footage) Pictures Completion of factual change of physical characteristics forms. Worley was unaware on November 17, 1986, of the arrangement between Drozd and the Petitioner concerning conditions placed upon the permission for the Petitioner to take leave as set forth by Drozd. Petitioner's work assignment involved 180 parcels. Effective December 12, 1986, 27 parcels had "field work" which was incomplete, according to his flow chart of that date. Effective that date, Petitioner had turned in field folders for 88 of the 180 parcels. He kept 92 field folders for the remaining parcels. Thus, his supervisor was unable to verify whether Petitioner had completed his "field work" as summarized in his flow chart submitted on December 12, 1986. According to Petitioner's account set forth in his flow chart of December 12, 1986, which is part of Petitioner's Exhibit R submitted by the Respondent and admitted into evidence, the 27 parcels pertained to vacant land. Petitioner further conceded that other minor problems existed concerning the completeness of the "field work" pertaining to the improved parcels reported in his flow chart. Prior to Petitioner's departure from the Jacksonville office on December 12, 1986, Worley, who was then serving as the Appraiser Supervisor, did not have a detailed knowledge of the flow chart submitted by the Petitioner on that date. Worley had reviewed some of the Petitioner's files and noted shortcomings in the work; however, on balance, Worley took no issue with Petitioner's work progress. Worley acquiesced in the Petitioner's departure on the afternoon of December 12, 1986, as a prelude to the commencement of Petitioner's annual leave on December 15, 1986 This acquiescence was by a verbal expression to the effect that the Petitioner should have a nice holiday. By contrast, on December 12, 1986, Drozd became aware, upon examination of Petitioner's flow chart, that certain parcels had not been completed in terms of "field work." Drozd's observations about Petitioner's flow chart became significant when Worley and Drozd spoke to supervisors in Tallahassee, Florida, on the afternoon of December 12, 1986, in the person of Ben Faulk, Chief of the Bureau of Field Operations in the Respondent agency, and Eugene White, who was the Deputy Director of the Division of Ad Valorem Tax for that organization. In actuality, there were two conversations, and in the latter conversation Drozd participated in a discussion in which Faulk, White and Drozd determined that Petitioner should not be allowed to proceed with annual leave based upon his failure to comply with the contingency which Drozd had established on November 17, 1986, pertaining to Petitioner's wish to take annual leave, the contingency being completion of "field work." The latter conversation between Worley, Drozd, White and Faulk took place following Petitioner's departure from the Jacksonville office. At the time this conversation was held, Drozd was not a member of the Respondent agency. On the other hand, Faulk and White were appropriate officials within the Respondent agency with power to make determinations concerning the annual leave of a subordinate employee, in this instance, the Petitioner. Worley was also a proper source of policy in she management chain. It was decided that Worley should try to telephone the Petitioner and forestall the use of the annual leave by Petitioner. Emphasis is placed upon the fact that Faulk and White felt that this denial of Petitioner's annual leave based upon Petitioner's failure to meet a contingency concerning his "field work" was an appropriate disposition of the case. Around 6:00 p.m., Worley was able to reach Petitioner by telephone while Petitioner was at his daughter's home, preparing to leave for a trip to Washington, D.C. In placing the telephone call to Petitioner, Worley did not favor the revocation of leave opportunity. Nonetheless, he did revoke the leave while acting as supervisor for the Northeast Region, at the behest of Drozd and upon authority of Faulk and White. In the conversation with Petitioner on December 12, 1986, by telephone, Worley told Petitioner that his leave had been revoked and that Petitioner should report to his job assignment at 8:00 a.m. on Monday, December 15, 1986, or be considered on unauthorized leave. Further, it was explained to Petitioner that he would be considered to have abandoned his job position if he had not returned to work by 5:00 p.m. on Wednesday, December 17, 1986. These remarks by Worley were not equivocal, and Petitioner understood the significance of those instructions and the implications of his failure to attend his duties on the dates described. This understanding of the explanation of unauthorized leave and potential abandonment of his job position was held by the Petitioner at the point of the conversation at approximately 6:00 p.m. on December 12, 1986. Instead of reporting to work on December 15, 1986, at 8:00 a.m., Respondent absented himself from his job assignment on that date and on December 16 and 17, 1986. For those three consecutive days in which Respondent did not attend his job, his nonattendance was without authorization to take any form of leave and in the face of having been advised that he was in the posture of unauthorized leave. The days that Petitioner was missing from his job were work days. Petitioner's choice to go forward with his vacation plans and ignore the instruction of his supervisor concerning returning to his job position was made knowingly, with volition, with intent and showed willful disregard of a legitimate order of a superior. Petitioner had decided that since he had longstanding plans for taking annual leave in Washington, D.C., and given the fact that his wife was already there awaiting the arrival of the Petitioner and his daughter, he would go forward with his plan on the expectation that someone in his employment system would not allow a conclusion to be drawn that he had abandoned his job position. In furtherance of the assertion that the Petitioner would be considered to have abandoned his job position if he didn't return before the conclusion of the work day on December 17, 1986, a memorandum was sent to the Petitioner at his residence on December 15, 1986. A copy of that memorandum may be found as Respondent's Exhibit Q admitted into evidence. Petitioner did not become aware of this memorandum until returning from his vacation. When he returned, he signed for service of correspondence of December 18, 1986, which constituted the Respondent agency's notice of claimed abandonment and notice of rights to administrative hearing to contest that claim. A copy of that notification may be found as part of the Respondent's Exhibit M admitted into evidence, together with the return receipt signed by the Petitioner on December 29, 1986. A timely petition requesting consideration of the agency's claims of abandonment was filed by the Petitioner on January 5, 1987.
Findings Of Fact Based on the evidence received at the final hearing, I make the following findings of fact. The Petitioner, Patricia Fountain, was employed by the Department of Health and Rehabilitative Services as a Direct Services Aide working with the District Four Children, Youth, and Families (CYF) Services. For some time prior to July 24, 1987, the Petitioner was under medical treatment and had been absent from work on one form or another of approved leave. On July 24, 1987, the Petitioner's physician released her from medical treatment to return to light duty. The physician's release was subsequently amended to effect the Petitioner's release to return to work on July 27, 1987. The Petitioner's supervisor, in consultation with the Petitioner's physician, arranged a schedule of light duty work for the Petitioner to perform during the week beginning July 27, 1987. On July 27, 1987, the Petitioner reported to work as scheduled and submitted a written statement from a physical therapist to the effect that it would be in the Petitioner's best interest to have a leave of absence from work. The Petitioner was advised that the statement from the physical therapist was insufficient, and that the Petitioner would be expected to perform her duties. On July 28, 1987, the Petitioner resubmitted the statement from the physical therapist with some additional information added to the statement. On that same day, the Petitioner left a written request for leave without pay on the program administrator's desk and, without anyone's knowledge, left work without authorization. The Petitioner did not thereafter return to work. Her request for leave without pay was never approved. The Petitioner's supervisor made several unsuccessful efforts to have the Petitioner attend a conference to discuss her unauthorized absence. On August 4, 1987, the Petitioner was contacted at home and served written notice that her absence was unauthorized and that she was expected to return to work on August 5, 1987. The Petitioner did not report to work on August 5, 6, or 7, 1987, nor did she report thereafter. The Petitioner did not contact her supervisor on August 5, 6, or 7, 1987, to explain her absence. A letter was mailed to the Petitioner advising her that by reason of her failure to report to work on August 5, 6, and 7, 1987, she was deemed to have abandoned her position and to have resigned from the Career Service, effective 5:00 p.m. on August 7, 1987. During August of 1987, the Petitioner did not have any sick leave or annual leave balance.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Patricia Fountain, was properly terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED this 17th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 17th day of June, 1988. COPIES FURNISHED: Assistant District Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32231-0083 Ms. Patricia Fountain 2533 Wilmot Avenue Jacksonville, Florida 32218 Pamela Miles, Esquire Assistant General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
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 Respondent was employed by the Brevard County School District on January 15, 1990, as a Secretary III, Classified. She was assigned as secretary to Margaret Lewis, Director of Vocational Education. Classified employees are distinguished from certified employees who are teachers or administrators who hold teaching certificates. Respondent's duties included typing, handling and filing documents and correspondence, keeping budget and payroll records, copying and receiving incoming phone calls to the Department of Vocational Education. For approximately six months, Respondent and her supervisor had a good working relationship. Both were new to the Brevard County School District, and Margaret Lewis felt that together they could make positive changes in the unit. Respondent's personnel evaluation dated March 15, 1990, rates her in the "exceptional high" range in every category, with the highest possible rating being given in the categories, "work attitude," "cooperativeness," "personal appearance" and "tardiness." Something happened in the summer of 1990 around the time that the unit was moving from its office in Rockledge to the new district building in the Brevard County Governmental Center at Viera. The relationship between the two women rapidly deteriorated, a phenomenon observed by co-workers and the assistant superintendents, including Margaret Lewis' supervisor, Daniel Scheuerer. The circumstances were confusing, even to Jerry Copeland, Assistant Superintendent of Personnel Services. None could pinpoint the cause of the rift, although both Ms. Cooper and Ms. Lewis offered their own theories. Ms. Cooper described her supervisor arriving at work one morning crying and upset over some domestic situation. She went into Ms. Lewis' office with her and urged her to go home. Ms. Lewis eventually did leave and was gone for several days. Upon her return, Ms. Cooper felt that Ms. Lewis was very cool toward her and began communicating with her through notes or through messages to other staff. Ms. Lewis believes Ms. Cooper's work attitude changed radically after she was passed over for a secretarial position in the School Board attorney's office. On two occasions, Ms. Cooper approached Abraham Collinsworth, the Superintendent, with concerns she had about Margaret Lewis. Mr. Collinsworth referred the matter back to Dr. Scheuerer, Ms. Lewis' supervisor and the Assistant Superintendent for Instructional Services. Dr. Scheuerer told the superintendent that he had a very disruptive situation with loud conversations and people not feeling good about each other. During the several months period, July through September 1990, Dr. Scheuerer met with the women individually and together. Ms. Cooper complained that Ms. Lewis required her to make too many copies of things, that she communicated with her through yellow stickers, "post-it" notes, and that she, Ms. Lewis, would not tell her where she was going. Dr. Scheuerer counselled Ms. Cooper to adapt to her supervisor's way of doing things and also made suggestions to Ms. Lewis of ways to improve communications, for example, allowing her secretary to keep the calendar. The meeting he had with both women together was very unpleasant. It was obvious that there was a lot of hostility and animosity, tension and stress between the two. Generally, however, Ms. Lewis conducted herself in a professional manner. Ms. Cooper kept a tape recorder that she used to play subliminal tapes. Ms. Lewis felt that she was using the tape recorder to tape their conversations. Ms. Lewis felt that Ms. Cooper spent an inordinate amount of time away from her desk and abused break periods. Ms. Cooper said that she was making deliveries or copying. Ms. Lewis begin writing notes of their confrontations in order to avoid getting emotionally involved. This seemed to inflame Ms. Cooper. Ms. Cooper's reaction to direction was often either a sullen shrug or a verbal retort. Ms. Cooper felt Ms. Lewis gave her conflicting or serial requests. She also kept notes of their interactions. Early on the morning of October 8, 1990, several employees in the area of Ms. Cooper's and Ms. Lewis' office overheard a verbal confrontation between the two. Ms. Cooper had her voice raised and when Ms. Lewis asked her not to talk so loud, she replied she wanted everyone to hear. It was obvious to Daniel Scheuerer, who also overheard part of the confrontation, that Ms. Cooper was the one doing the yelling. On October 9, 1990, Ms. Lewis gave Ms. Cooper the following written reprimand: This is a formal letter of reprimand as a result of your unacceptable behavior on the morning of October 8, 1990. It is being issued as a result of your intentional (you stated that you wanted to be heard by everyone when I asked you to lower your voice) vociferous and disruptive shouting at me in your work area and the disrespect which you displayed toward me as your supervisor after I had made reasonable requests. This type of behavior is unacceptable, disturbing and disruptive to the work effort of the department and the entire area. This is to inform you that any similar outburst of this matter will result in your immediate termination. CC: Personnel File (Petitioner's exhibit No. 5) Sometime around the end of September, or early October, Karen Denbo, the district Equal Employment Opportunity Officer, had a secretarial position open that would have been a lateral transfer (same level, same pay) for Janice Cooper. She applied, and Dr. Scheuerer asked Ms. Denbo to interview Ms. Cooper. Ms. Denbo asked if he was telling her to hire Ms. Cooper. Dr. Scheuerer was given the impression by both Ms. Cooper and Ms. Denbo that they had misgivings about Ms. Cooper performing in a position requiring a lot of technical filings for which there would be no training. Ms. Cooper was not offered the transfer and no other efforts were made to find Ms. Cooper alternative employment. On October 26, 1990, Ms. Lewis gave Janice Cooper a memorandum titled "Job Expectations." It informed her that her supervisor had concerns regarding job performance, relationships with other employees, work attitude and failure to follow administrative directives. It directed her to take specified times for break and it stated she must be accurate, careful, effective and courteous. It stated that her performance was not satisfactory and warned that "failure to make necessary adjustments will result in additional disciplinary action." (Petitioner's exhibit No. 6) On November 1, 1990, near the end of the work week, Ms. Lewis needed some coping done and could not find Janice Cooper. She filled out a copy request form and put Ms. Cooper's name as the contact person. Ms. Cooper returned and Ms. Lewis asked if the form was completed properly. Ms. Cooper looked at it and then replied, "It if says what you want it to say, then its alright." After Ms. Lewis returned to her office, Ms. Cooper followed her in and said if she was going to use her name she needed to get her permission first. As Ms. Lewis began writing down Ms. Cooper's comments, Ms. Cooper reached across the desk, knocking off pencils and paper, and tore the paper out of her hand. Ms. Lewis reached for the phone and asked Dr. Scheuerer to come immediately. Ms. Cooper left and did not return until November 5th, after the weekend. In the meantime, Ms. Lewis met with Dr. Scheuerer; the Assistant Superintendent of Personnel, Jerry Copeland; and the Labor Relations Director, Bob Barrett. Upon Ms. Cooper's return to work, Ms. Lewis called her in to her office. Bob Barrett was also present. She was given this letter: November 5, 1990 Ms. Janice Cooper, Secretary Vocational Education Department Dear Ms. Cooper: This is to inform you that your employment with the School Board of Brevard County is terminated effective immediately, November 5, 1990. The reason for this termination is your unsatisfactory performance. You have been counseled and warned on several occasions regarding the need to improve your performance. On October 26, 1990, you were provided a memorandum which outlined your responsibilities and gave you direction for improving your performance. You were notified that your performance was unsatisfactory and that your failure to make the necessary adjustments would bring additional disciplinary action. Since October 26, 1990, your performance has continued to deteriorate to the point that your unwillingness to make the effort required to function as a Secretary III necessitates this action. Prior to your departure from the work site today, you should turn in any keys or other such School Board material which was issued to you to uses in your job. Sincerely, Margaret Lewis Director, Vocational Education (Respondent's Exhibit No. 2) (emphasis in original) When asked if she had anything to say, Ms. Cooper made no response and refused to acknowledge receipt of the letter. She was directed to collect her personal items and to leave the office. With guidance from the State Department of Education, the Brevard County School District has a policy of discipline of all employees which it calls, "NEAT." The acronym stands for the right to "Notice," followed by "Explanation," followed by "Assistance," within a reasonable "Time." If the deficiencies are not corrected at the end of this process, the employee may be terminated. The School Board's adopted rule 6Gx5-7.05, provides in pertinent part: Suspension/Dismissal. A certificated employee may be suspended or dismissed at any time during the work year pursuant to provisions set forth in Florida Statute 230.33(7)(h), 231.36(4)(6) and the Rules of the Educational Practices Commission. A classified employee may be dismissed for cause. The immediate supervisor shall suspend the employee and notify him/her in writing of the recommendation for dismissal, stating the cause. Termination Date. The effective date of any termination of employment or suspension shall be the last day on which the employee works. (Respondent's Exhibit No. 1) In addition to the above, the School Board's administrative staff acknowledge an employee's right to a pre-termination process that gives her an opportunity to explain why she should not be terminated. The record in this proceeding establishes that Janice Cooper was insubordinate on several occasions. She yelled at her supervisor, disrupting the workplace; she refused to follow instructions or was insolent; and finally, she virtually assaulted her supervisor when she grabbed the paper and tore it up. There is little specific evidence, however, of her poor job performance. Her only evaluation during the ten months of her employment was exceptionally positive. The "Job Expectations" memorandum was provided four days before the incident leading to Ms. Cooper's separation, which incident was plainly insubordination or misconduct, but not "poor job performance." The administrative staff make no apparent distinction between "termination" and "suspension" as both are separations from employment; and they do not view Ms. Lewis' letter, therefore, as a violation of the policy described in paragraph 18 above. Practically, there is no distinction, as no separation is final until the Board takes its action. In the meantime, the employee is no longer on the payroll. In Ms. Cooper's case, the time off of the payroll has been two years, most of which time has been the result of circumstances beyond the control of the School Board. Neither before, nor immediately after her termination by Margaret Lewis, was Janice Cooper offered reasonable opportunity to explain why she should not be terminated. She was given the letter and asked if she had a response. The letter states that termination is a fait accompli. She did not respond, and was told to leave. No evidence was presented as to the need to take immediate action. Both the district and Ms. Cooper could have benefited from a brief cooling off period; the district, by taking the time to draft a letter reflecting the proper cause for its action; and Ms. Cooper, by having an opportunity to reflect on her employment jeopardy and to prepare a response. The district presented evidence sufficient to support a finding of cause to terminate Ms. Cooper. It did not, however, prove that the cause was "poor performance." For that reason, and because the employee was not offered a reasonable opportunity to respond, the termination procedure was fatally flawed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Brevard County enter its final order reinstating Janice Cooper to full back pay and benefits from November 9, 1990, until and including October 7, 1992, and approving her termination effective October 7, 1992. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January 1993. MARY CLARK 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 20th day of January 1993. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in Paragraph 1. Adopted in Paragraph 3. Adopted in Paragraph 4. Adopted in substance in Paragraph 7. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 8. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 11. With the exception of the October 26, 1990 memo, the facts proposed here are rejected as unsupported by the weight of evidence. Poor performance was not proven, nor was it proven that Respondent was taping conversations, rather than playing her own "subliminal tapes." Adopted in substance in Paragraph 14. Adopted in substance in Paragraph 16. Rejected as irrelevant and immaterial. Moreover, there was some mention of a grievance, but no evidence of what this process was or whether it was actually filed and withdrawn. Adopted in Paragraph 17. Rejected as contrary to the weight of evidence, as to unsatisfactory job performance, which is distinguished, according to the School Board's witness, from "insubordination" or misconduct. (Transcript, p. 70-71) Rejected as contrary to the weight of evidence. Respondent's Proposed Findings Adopted in Paragraph 1. Adopted in substance in Paragraph 16. Adopted in Paragraph 18. 4-8. Rejected as argument or conclusions, or summary of testimony rather than discrete findings of fact. Some of those arguments and conclusions have been adopted in the conclusions of law herein. COPIES FURNISHED: Harold T. Bistline, Esquire Building E 1970 Michigan Avenue Cocoa, Florida 32922 F. Michael Driscoll, Esquire Suite 58 3815 North Highway One Cocoa, Florida 32926 Abraham L. Collinsworth, Superintendent Brevard County School Board 2700 St. Johns Street Melbourne, Florida 32940-6699 Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issues are whether Petitioner received a salary overpayment from Respondent for leave usage to which he was not entitled, as set forth in correspondence dated April 26, 2013; and, if so, whether Respondent is entitled to a repayment for the salary overpayment made to Petitioner.
Findings Of Fact Petitioner, Bruce Deterding, was an employee of the Department of Health, having served as an executive director of a medical practice board, making him a Select Exempt Service (SES) employee. Petitioner entered into a settlement agreement with the Department on December 19, 2012. The agreement required Petitioner to resign his position with the Department effective February 28, 2013, and included the following conditions: Petitioner's last day in the office would be December 18, 2012, one day preceding the signed settlement agreement; and Petitioner was required to utilize 384 hours of accrued annual leave beginning on December 19, 2012, and ending on February 27, 2013. Petitioner did not participate in the preparation of the settlement agreement, but agreed to its terms by his signature. The agreement was signed by the Division of Medical Quality Assurance Director Lucy C. Gee on behalf of the Department. From December 19, 2012, through February 28, 2013, Petitioner performed as obligated under the agreement. The Department paid Petitioner for the 384 hours of leave as required by the agreement. Petitioner relied on the Department's representations that he would be able to purchase his former military service time from the State Retirement System and retire with 30 years of state service on the resignation date set forth in the agreement. Petitioner demonstrated through a screen shot of his personnel records in the "PeopleFirst" system that he had an available balance of 428 hours of annual leave at the time he entered into the settlement agreement with the Department. The Department's employee verified through PeopleFirst that sufficient hours of leave were available prior to presenting the settlement agreement offering to pay 384 hours of leave to Petitioner. The Department notified Petitioner by a letter dated April 26, 2013, that he had received salary overpayments. Specifically, the letter stated that two payments in the amounts of $1,262.48 and $1,717.56, dated February 22, 2013, and March 8, 2013, respectively, had been erroneously made to him. Petitioner, as an SES employee, received 176 hours of annual leave on his leave accrual anniversary date of July 1 each year. In 2010, Petitioner received an annual leave accrual of 176 hours on June 18, 2010, and a second annual leave accrual on July 1, 2010. On April 26, 2013, Petitioner had a telephone conversation with Meshelle Bradford, one of the Department's payroll employees, concerning potential salary overpayments. During that conversation, Petitioner acknowledged he had received the two salary accruals totaling 352 hours on June 18 and July 1, 2010. Petitioner testified that he assumed he was the beneficiary of an "extraordinarily good hire date" which entitled him to receive leave on his former (from his previous state employment) and new leave accrual dates. The Department conducted a payroll and leave audit after the date of Petitioner's resignation and separation from the agency. The audit revealed that Petitioner had been overpaid for annual leave hours that he had accrued in 2010 by mistake. Petitioner had been paid for annual leave he used in February 2013, when he had exhausted all of his accrued leave. During the two-week pay period of February 1 through 14, 2013, Petitioner received pay for 58.5 hours of leave he did not have available, and for the two-week pay period of February 15 through 28, 2013, Petitioner received pay for 80 hours of leave he did not have available, resulting from the double accrual of leave in June and July 2010. The Department's position is that Petitioner should have been in leave without pay status for the 58.5 and 80 hours of leave for which he was paid in February 2013. The calculated overpayment for the unavailable leave is $2,980.04. The Department seeks reimbursement from Petitioner for that amount. Petitioner disputes that he owes any amount due to the fact he entered into a settlement agreement that delineated the payments to be made by the Department to him as a condition of his resignation. The Department's Agency Attendance and Leave Policy, in section VI.D.3, states: "It is the employee's responsibility to maintain an accurate accounting of their leave balances."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health requiring Petitioner to repay the overpayment of salary in the amount of $2,980.04. DONE AND ENTERED this 5th day of December, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2013. COPIES FURNISHED: Mark John Henderson, Esquire Department of Health 2585 Merchants Row, Room 110J Tallahassee, Florida 32399 Bruce Milton Deterding 4841 Old Bainbridge Road Tallahassee, Florida 32303 Althea Gaines, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John H. Armstrong, M.D., F.A.C.S. State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact Brian Clancy was employed by the Department of Transportation in a survey crew and had been so employed since before April 19, 1983, until he was deemed to have resigned from his position by abandonment on July 7, 1986. In March or April, 1986, Petitioner discussed with his immediate supervisor on the survey crew, Ray Fletcher, the possibility of him taking leave in July to go to New York in time for the Statue of Liberty celebration July 4, 1986. Fletcher advised Petitioner that by that time he would have accrued enough leave to take ten days off. Petitioner interpreted that as approval for leave. On June 30, 1986, Petitioner did not report to work and his absence was reported by his supervisor as were his subsequent absences on July 1, 2 and 3, 1986. On July 3, 1986, James Lott, District Location Surveyor, sent a memo to his supervisor stating that Clancy had been absent from the position for three consecutive days and requested he be terminated by reason of abandonment. By letter dated July 7, 1986 (Exhibit 4) the Deputy Assistant Secretary - District One advised Clancy that he was deemed to have resigned his position by reason of abandonment and of his right to a Chapter 120, Florida Statutes, hearing. At no time did Petitioner request leave-in writing nor was he ever granted leave in writing. Other than his discussions with Fletcher in April or May regarding taking leave in July did Petitioner say anything else about his leave and Fletcher has no recollection that any specific time period for this leave was discussed. Petitioner contends that he never intended to abandon his position and thought that his discussions with Fletcher constituted approval of his leave request. By acknowledgment dated April 19, 1983 (Exhibit 2), Petitioner acknowledged receipt of Employee Handbook (Exhibit 1). Petitioner further contends that each time he took leave prior to June 30, 1986, his supervisor had the leave request prepared for him and brought it to Petitioner to sign, and that Petitioner never went to the office to initiate the paperwork. Petitioner did not testify that he ever departed on leave without having written approval prior to June 30, 1986.
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, under the facts and circumstances of this case, petitioner is deemed to have abandoned his position and resigned from the Career Service.
Findings Of Fact Mr. Willie L. Claridy was an employee of the Department of Transportation for 2 or 3 years and was under the immediate supervision of Daniel E. Skinner at the Sarasota Maintenance Office for approximately a year, including March and early April of 1984. On or about Monday, March 26, 1984, while in the outside shop area at his place of employment, Mr. Claridy mentioned taking a vacation to some fellow employees. He said he was going home to a family reunion. The employees moved into the office area, and the conversation continued. Mr. Skinner, who was petitioner's supervisor, Mr. Campbell, Mr. Claridy, and two others were present in the office. During the conversation in the office, Mr. Claridy stated that he was going to take a vacation; however, he never specifically asked for leave, he was not told that he could have leave, and no specific dates were mentioned. 1/ Although Mr. Skinner could not recall the discussion regarding Mr. Claridy's vacation, he admitted that it could have taken place. However, Mr. Claridy never signed a leave slip requesting leave, and Mr. Skinner never signed a leave slip approving leave. Nevertheless, Mr. Claridy did not report for work on April 2nd, 3rd, 4th, or 5th, 1984, and did not contact his office during that time. The Employee Handbook, received by Mr. Claridy on April 20, 1983, clearly states that an employee must obtain the approval of his supervisor before taking leave. Neither the handbook nor the memorandum to employees of January 1982 states that prior approval must be in writing, although the language in the handbook implies that it should be. However, Mr. Claridy was fully aware of the procedure that he needed to follow in requesting leave. On two earlier occasions when Mr. Claridy had wanted time off he had submitted leave slips and received approval from his supervisor prior to his absences from work. Mr. Claridy's stated reason for not submitting a leave slip in this case in advance of his absence is neither accurate nor credible. He testified that he thought he might get called back to work during the course of his leave time due to a shortage of mechanics, and, if this occurred and he had submitted the leave slip, he would not have gotten paid for his time. 2/ However, the evidence at the hearing indicated that Mr. Claridy did not plan to be and was not in town during his absence from work, and therefore could not have been called into work. 3/ Further, Mr. Claridy stated that they might need him because they were short of help but also testified that "[w]e were caught up with all our work." Finally Mr. Claridy's return to work during a period of time when he was on authorized leave would not have adversely affected his pay or his annual leave time, and Mr. Claridy would have discovered this had he made any inquiries. Mr. Skinner did not approve Mr. Claridy's leave time nor did he inform Mr. Claridy that he could submit a leave slip after his vacation. Consequently Mr. Claridy's absence from work on April 2nd, 3rd, 4th, and 5th was unauthorized. Mr. Claridy had received the Employee Handbook and the memorandum of January 1982 which informed him that three consecutive absences without authorized leave would result in termination of employment. Mr. Claridy was properly informed by certified letter dated April 5, 1984, that having failed to report for work during the period in question and having failed to take action to notify his supervisor of the reasons for the absence he was deemed to have abandoned his position and resigned from the Career Service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Department of Transportation in deeming the petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. DONE and ENTERED this 18th day of December, 1985, 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 18th day of December, 1985.
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent's employment should be terminated "for being absent without approved leave," as recommended in the Superintendent of Schools of the School District of Palm Beach County's Petition for Involuntary Resignation.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the School District. Systemwide testing programs in the School District are coordinated by the School District's Department of Research, Evaluation, and Accountability (DREA). At all times material to the instant case, Marc Baron headed DREA. DREA operates a test distribution center. Cherie Boone is now, and was at all times material to the instant case, in charge of the DREA test distribution center. Ms. Boone supervises four employees. As their supervisor, she is "responsible for [among other things, their] time and attendance." Respondent is employed as a materials handling technician with the School District. At all times material to the instant case, he was assigned to work in the DREA test distribution center under the direct supervision of Ms. Boone. As a materials handling technician employed by the School District, Respondent is a member of a collective bargaining unit represented by the National Conference of Firemen & Oilers, Local 1227 (NCF&O) and, at all times material to the instant case, has been covered by a collective bargaining agreement between the School District and NCF&O (NCF&O Contract). Article 7 of the NCF&O Contract discusses "employees['] contractual rights." It provides as follows: SECTION 1. Probationary Employees All newly hired or rehired employees may be subject to a probationary period of ninety (90) workdays. Employees who have not completed such period of employment may be discharged without recourse. Probationary employees shall not be eligible for any type of leave except accrued sick leave, annual leave, or short term unpaid leave (due to illness) not to exceed five (5) days. SECTION 2. Permanent Employees Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the NFC&O Contract addresses the subject of "[m]anagement [r]ights." It provides as follows: NCF&O and its members recognize the responsibility of the District to operate and manage its affairs in all respects in accordance with its responsibilities as established by law and as delegated by the State Board of Education; and the powers of authority which the District has not officially agreed to share by this agreement, are retained by the District. It is the right of the District to determine unilaterally the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organization and operations. It is also the right of the District to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons, provided, however, that the exercise of such rights shall not preclude employees or their representatives from raising grievances, should decisions on the above matters have the practical consequences of violating the terms and conditions of this agreement in force. The District has the sole authority to determine the purpose and mission and the amount of the budget to be adopted by the School Board. The District and NCF&O agree that the District has and retains unaltered, its legal right to select, assign, reassign, or relocate any of its employees, and to carry out its mission under the law and State Board of Education Regulations, unless otherwise specifically enumerated herein. Except to the extent it has been done prior to May 26, 1998, no bargaining unit work which would result in the loss of jobs by members of the bargaining unit, shall be contracted out without prior consultation with the Union. It is understood that changes under this Article may not be arbitrary and capricious, and it is agreed that the District has those rights which are enumerated within Florida Statute 447; however, nothing herein shall relieve the parties of their ability to request impact bargaining. Among the "rules and procedures" that the School District, through the School Board, has established in exercising its "[m]anagement [r]ights" are School Board Directive 3.27 and School Board Policy 6Gx50-3.80, which provide, in pertinent part, as follows: School Board Directive 3.27 * * * Resignations. If employees desire to be released from their employment contract the following procedures are to be followed: * * * c. When employees do not report for duty for three (3) consecutive days without notifying their supervisor, the principal/department head will initiate a certified letter to the employee stating that their resignations will be recommended to the School Board at its next regularly scheduled meeting. * * * Suspension/Termination. The Principal/Department Head may recommend to the Assistant Superintendent for Personnel Relations disciplinary action against an employee if the employee commits one or more of the following offenses, including but not limited to: * * * b. Willful absence from duty without leave in violation of Section 231.44, Florida Statutes.[2] * * * Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement. * * * 6. When a recommendation for suspension and termination is made, the procedures listed in School Board Policy 3.27 shall be followed. * * * School Board Policy 6Gx50-3.80 A leave of absence is permission granted by the Board, or allowed under its adopted policies, for an employee to be absent from duty for specified periods of time with the right of returning to employment on the expiration of the leave. All absences of School Board employees from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance by the School Board and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. No leave except military leave shall be granted for a period greater than one (1) year. A new leave application may be filed and granted at the expiration of leave, but automatic renewals of leave shall not be allowed. Leave may be with or without pay and provided by law, rules of the State Board of Education, School Board policy, and negotiated contracts. If the terms of the collective bargaining agreement differ from this Policy, the language of the employee's agreement will take precedence. The following types of leave are available for School District employees: Leave for personal reasons Annual leave for 12-month personnel Sick leave Catastrophic leave Injury or illness in-line-of-duty leave Sabbatical leave Temporary military leave Regular military service leave Professional leave and extended professional leave Charter school leave Voluntary/extended military leave Leave of absence for the purpose of campaigning for political office Personal leave including maternity/ recovery and child care Paid Leaves * * * c. Sick Leave * * * iv. An employee requiring more than thirty (30) working days of paid leave for recovery may be required to submit medical evidence at reasonable intervals supporting the need for additional leave. * * * Sick leave claims shall be honored as submitted by the employee for personal illness, as well as illness or death of father, mother, brother, sister, husband, wife, child or other close relative or member of the employee's own household. Sick leave without pay may be granted for employees who have used all accumulated sick leave, but who would otherwise qualify for sick leave. The Superintendent may require a doctor's statement of verification of illness. A request to the Superintendent for a verification of claim may be initiated by the principal or supervisor. * * * Unpaid Leaves * * * e. Personal Leave -- An employee requesting short-term or long-term personal leave shall make written application to the supervisor, stating reasons for such leave. The Board shall satisfy itself in terms of the need of the requested leave. Personal leave may be used to extend a leave of absence due to sickness when that sickness has extended beyond all compensable leave for the duration of up to one (1) calendar year when supported by doctor's statements verifying the necessity of the extended leave. An employee requesting return to duty who has served efficiently and exhibited those qualities called for in the position held prior to such leave will be given every consideration for reemployment provided the conditions of employment have been met and the request is supported by a doctor's statement certifying that his physical condition is satisfactory to return to normal duties. * * * Article 17 of the NCF&O Contract, as noted in Article 7 of the contract, deals with the "[d]iscipline of [e]mployees." It provides as follows: Without the consent of the employee and the Union, 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. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee’s personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except 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 Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee’s personnel file and shall not be used to the further detriment of the employee, unless there is another reasonably related act by that same employee within a twenty-four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee’s personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension without pay shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee’s personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable laws. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Article 18 of the NCF&O Contract describes the grievance procedure available to bargaining unit members who allege a "misapplication or misinterpretation of the agreement." The described procedure consists of an "informal level" and four formal "levels," the final one being "arbitration before an impartial arbitrator, using the Federal Mediation and Conciliation Services." Pursuant to Section 4B. of Article 18, "if NCF&O decides to withdraw its support of an alleged grievance, the individual may continue to process the claim on his/her own, so long as all costs are borne by that individual"; however, according to Section 4E. of Article 18, "[a]grievance, once [actually] withdrawn, may not be reopened without the mutual written agreement between the [School District] and [the] NCF&O." "[L]eave [w]ithout [p]ay" is the subject of Article 25 of the NCF&O Contract, which provides as follows: SECTION 1. Personal Leave of Absence Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent. An employee granted an unpaid leave of absence shall be returned to his/her former classification if the leave is less than ninety (90) days, notwithstanding the layoff provisions contained in this agreement. An employee granted a leave of absence and who wishes to return before the leave period has expired, may submit a request to return to the principal/department head. An employee granted a leave of absence in excess of ninety (90) days will be permitted to return to work provided there is an opening in the same job classification in the work unit. If the former position is not available, the employee, upon written request, shall be listed as an eligible applicant for a period of six (6) months. Group Life and Hospitalization Insurance coverage may be continued for a period equal to the authorized leave of absence, provided full premium payments, including the Board's payment, are kept current by the employee. SECTION 2. Return from Leave Failure to return to work at the expiration of approved leave shall be considered as absence without leave and grounds for dismissal.[3] This section should be subject to extenuating circumstances preventing timely return, as determined by the Superintendent.4 Section 2 of Article 35 of NCF&O Contract protects employees from "[h]arassment." It provides as follows: No employee shall be subjected to or be part of: Unwelcome sexual advances, requests for sexual favors, offensive, lewd or suggestive comments. Also includes the creation of a hostile, intimidating, or offensive work environment. Verbal or physical abuse is submitted to by an employee. An adverse decision is made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. Verbal or physical abuse. An adverse decision shall not be made against an employee after such abuse is rejected. Racial/ethnic slurs, jokes, or other inappropriate conduct. There came a time when Respondent claimed, in a Level One grievance filed under the NCF&O Contract, that he was a victim, at the hands of Ms. Boone, of the "[h]arassment" proscribed by Section 2 of Article 35 of the contract. The grievance was filed (with the support of NCF&O) on or about April 8, 2004, several weeks following an incident in which Ms. Boone "yell[ed]" at Respondent for returning "a little bit late[]" from a delivery run. It contained the following "[g]rievance [s]tatement" and description of the "[r]elief [s]ought": Grievance Statement: (Include Date of Occurrence) Mr. Ellis fe[e]ls that he is working in a hostile work environment. He had meeting with the Dept. Head to express his feelings. On March 31, the employee was issued a written reprimand when there has never been any discipline for the employee. Relief Sought: The reprimand is withdrawn from all personnel files. All intimidation of the employee to cease immediately. Ms. Boone, on behalf of the School District, responded to the grievance by providing Respondent with the following written "disposition": After careful consideration of all available information, it has been determined that there has not been a violation, misapplication, or misinterpretation of the collective bargaining procedures. The grievance was not pursued beyond Level One. Since March 16, 2004, Respondent had not been reporting to work, notwithstanding that he had not received authorization to be absent. On or about April 5, 2004, Respondent submitted a request for leave of absence without pay for the period from April 5, 2004, to July 5, 2004. The type of leave without pay he requested was personal leave. By letter dated April 8, 2004, Mr. Baron advised Respondent that Respondent's request was being denied. In his letter, Mr. Baron wrote: You were absent without approved leave on April 5, 2004, April 6, 2004, and April 8, 2004. On Monday, April 5, 2004, you reported your intended absences and requested personal leave of absence starting April 5, 2004 through July 5, 2004. Pursuant to Article 25, Section 1, of the Agreement between The School District of Palm Beach County and National Conference of Firem[e]n & Oilers, "Personal leave of absence as described herein is leave without pay and may be requested by a member of the bargaining unit for purely personal reasons. A member of the bargaining unit may request short-term personal leave of absence within the school or department to which the employee is assigned. Personal leave as described herein shall be requested through the principal or department head for his/her approval and subsequently approved by the Superintendent." Your request for personal unpaid leave is denied. You are directed to return to work on Monday, April 12, 2004. Continued unapproved absences will result in further disciplinary action up to and including termination. Respondent did not return to work on April 12, 2004, as directed. The matter of Respondent's unauthorized absences was then "turn[ed] . . . over to [the School District's] personnel [office]" to "deal with." The personnel office decided to ask the School Board to terminate Respondent's employment for his having been absent without authorization. Before the School Board took any action, Respondent submitted another request for leave of absence without pay. The type of leave without pay he requested this time was sick leave. On the request form, Respondent indicated that he wanted the leave period to begin on April 16, 2004, "but there was no end date" written in anywhere on the form. Without an "end date," the form could not be processed. Sherry Kleinman, a School District analyst assigned to the personnel office (whose job duties include processing "all the leaves of absence for School [District] employees"), telephoned Respondent and "asked him what end date he wanted" her to place on the form for him. During their telephone conversation, Ms. Kleinman and Respondent "agreed upon" a May 17, 2004, "end date." Ms. Kleinman inserted this "end date" in the appropriate space on the form and then completed processing Respondent's leave request. Respondent was granted leave without pay for the period starting April 16, 2004, and ending May 17, 2004. Moreover, the personnel office "pulled" its recommendation that the School Board terminate Respondent for his having been absent without authorization. Respondent did not report to work at any time following the expiration of his authorized leave on May 17, 2004, nor did he seek an extension of this leave. There has been no showing made that there were extenuating circumstances present preventing Respondent's timely return to work; nor has it been shown that the issue of whether such extenuating circumstances existed has ever been presented to the Superintendent for determination. Personnel office staff attempted to reach Respondent by telephone to encourage him to seek an extension of the authorized leave that had expired. These efforts were unsuccessful. Upon being advised of the situation by Ms. Kleinman, NCF&O business agent Carolyn Killings, who had helped Respondent in filing his "[h]arassment" grievance, offered to try to contact Respondent, but she too was unable to "reach him." By letter dated June 14, 2004, Ernie Camerino, the assistant director of the personnel office, advised Respondent of the following: You were recently notified by your supervisor of your failure to return to work. As a result of such action, Personnel is currently processing your involuntary resignation from employment with the School District. Please be advised that I will recommend at the July 21, 2004 meeting of the School Board of Palm Beach County, Florida, your involuntary resignation. Subsequent to the July 21, 2004 Board meeting you will have fifteen (15) days to file an appeal under Section 120.[6]8, Florida Statutes. Unless a timely request for an administrative hearing (DOAH) is made within fifteen (15) days stated herein pursuant to Section 120.569 and 120.57, Florida Statutes the District will consider this matter closed. This action is taken in accordance with Section 1001.42 and 1001.51, Florida Statutes. Failure to timely request an administrative hearing shall waive all rights to request a DOAH hearing on such matters and shall be subject only to appeal rights under Section 120.[6]8, Florida Statutes. You have a choice of filing a grievance or requesting a hearing before the Division of Administrative Hearings (DOAH). Questions regarding the appeals process should be referred to the District's Legal Department. If you find this letter inconsistent with the action taken above, you may contact Mr. Camerino immediately at . . . to resolve this matter prior to School Board Action. By letter dated July 8, 2004, Respondent informed the School District's legal department that he was "requesting an appeal" of Mr. Camerino's "involuntary resignation" recommendation. On August 23, 2004, the same day the Superintendent filed his Petition for Involuntary Resignation recommending that the School Board terminate Respondent's employment, the School District referred Respondent's appeal to DOAH.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order terminating Respondent's employment based on his failure to return to work following the expiration of his leave without pay on May 17, 2004. DONE AND ENTERED this 14th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2005.
