Findings Of Fact Petitioner was employed by Respondent as a Public Assistance Specialist I at the Riviera Beach Food Stamp Office. When he commenced his employment with Respondent on February 7, 1985, he signed a statement acknowledging receipt of the Department's Employee Handbook and acknowledging his personal responsibility to review the contents thereof. That Handbook provides, in part, as follows: If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. According to Petitioner's annual employment evaluation covering the appraisal period from August 1, 1985, to June 30, 1986, his attendance during that period had been a problem. On June 13, 1986, he was counseled regarding the regulations governing leave and the requirement that he notify the Department when he was going to be absent. He was also warned that more severe disciplinary action could result from his continued behavior. The first ten days of each month are unusually busy at the Food Stamp Office. The first business day following the long Fourth of July weekend in 1986 was Monday, the 7th. During the first hour of business, the switchboard at the Food Stamp Office was not functioning properly it did not ring although the lights on it lit up to reflect incoming calls. By 9:00 a.m., the switchboard had been repaired. On July 7-9, 1986, Petitioner did not report for work. He had not requested leave, and he did not contact Respondent to advise that he would not be coming to work on any of those days. He was, therefore, absent for three consecutive days without authorization. In defense of his failure to report to work and his failure to notify his supervisor that he would not be reporting for work, Petitioner maintains that he was unable to advise Respondent regarding his intentions since his absence was caused by an illness he contracted over the Fourth of July weekend and which rendered him totally incapacitated. He maintains he also suffered a minor epileptic seizure at 7:00 a.m. on Monday, July 7. Although the parties stipulated that Petitioner is epileptic, Petitioner did not visit a doctor or go to a hospital or emergency room facility as a result of that alleged seizure. Petitioner further maintains that he was unable to notify Respondent of his illness because his telephone was not working, throughout the three days in question. He relies for corroboration of that testimony on the testimony of his close friend James M. Dudick. Mr. Dudick's deposition testimony contradicts Petitioner's contention in that Dudick testified that Petitioner's telephone allowed outgoing calls but not incoming calls. Further, Dudick personally repaired Petitioner's telephone on July 7th or 8th and returned the repaired telephone to Petitioner no later than the morning of July 9th. Additionally, Dudick left his own operative telephone at Petitioner's residence on two separate occasions during the three days in question. Yet, Petitioner made no attempt to use Dudick's working telephone to contact Respondent regarding his absence. Petitioner's only attempt at notifying Respondent of his absence from work occurred when he walked 4 or 5 blocks to a public pay telephone at noon on Monday, July 7, the same day on which he was allegedly incapacitated due to his illness and his 7:00 a.m. minor epileptic seizure. When he received no answer, he ceased all attempts to notify Respondent. One other indirect attempt to notify Respondent was made by Dudick on either July 8 or 9. Dudick was unable to contact Respondent's supervisor and may have left one message. The testimony of Respondent's witnesses is clear that no message was received although inquiries were made of all employees if any message had been received. The person who allegedly received the message is unknown since the switchboard operator Judith French had also failed to report to work on the days in question and was at home with Petitioner. Further, there was no testimony as to the contents of any message left by Dudick or any instructions given to Dudick regarding the message he was to deliver since Petitioner testified he was in the bedroom while Dudick and French discussed Dudick calling but French testified she was in the bedroom and that Petitioner and Dudick made those arrangements. After the close of business of July 9, two of Respondent's employees out of personal concern went to the home of Petitioner and Judith French. Petitioner did not mention any physical problem he was having but simply advised the one employee to whom he spoke that he had already lost his job, apparently referring to his three consecutive days of unauthorized absence. Petitioner offered no believable explanation for his failure to notify Respondent of his absence for three consecutive working days.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner abandoned his position of employment with the Respondent and resigned from the Career Service. DONE and ORDERED this 26th day of March, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3276 Petitioner's unnumbered proposed findings of fact have been numbered by the undersigned and are ruled upon as follows: Rejected as not constituting a finding of fact. Adopted. Adopted. Rejected as not being supported by credible evidence. Rejected as not being supported by credible evidence. Adopted. Rejected as not being supported by credible evidence. Rejected as being subordinate. Rejected as not being supported by credible evidence. Rejected as not being supported by credible evidence. Rejected as being contrary to the evidence. Respondent's proposed findings of fact are ruled upon as follows: Adopted. Rejected as not constituting a finding of fact. Rejected as not constituting a finding of fact. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. COPIES FURNISHED: Gary S. Israel, Esquire 230 Royal Palm Way Suite 424 Palm Beach, Florida 33480 K. Stuart Goldberg, Esquire 111 Georgia Avenue West Palm Beach, Florida 33401 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Appeal For This Case THIS FINAL ORDER CONSTITUTES FINAL AGENCY ACTION UNDER CHAPTER 120, FLORIDA STATUTES. A PARTY WHO IS ADVERSELY AFFECTED BY FINAL AGENCY ACTION IS ENTITLED TO JUDICIAL REVIEW IN ACCORDANCE WITH SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(B)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS FINAL AGENCY ACTION, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK WITHIN THIRTY (30) CALENDAR DAYS AFTER THE DATE THIS FINAL AGENCY ACTION IS FILED WITH THE AGENCY CLERK (SEE NOTICE OF FILING AND SERVICE BELOW). THE ADDRESS OF THE AGENCY CLERK IS: AGENCY CLERK DEPARTMENT OF ECONOMIC OPPORTUNITY 107 EAST MADISON STREET, CALDWELL BUILDING, MSC 110 TALLAHASSEE, FLORIDA 32399-4128 FAX NUMBER 850-921-3230 Email: James.Bellflower@deo.myflorida.com A DOCUMENT IS FILED WHEN IT IS RECEIVED BY THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST ALSO BE FILED WITH THE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. FINAL ORDER NO. DEO-13-117 AN ADVERSELY AFFECTED PARTY WAIVES THE RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH BOTH THE DEPARTMENT’S AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. NOTICE OF FILING AND SERVICE I HEREBY CERTIFY that the above Final Order was filed with the Department’s undersigned designated Agency Clerk and that true, and correct copies were furnished to the persons listed below in the manner described on the day of November, 2013. i“ W ‘ Ccateausd ames W. Bellflower, Agency Clerk Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, FL 32399-4128 By U.S. Mail: Mr. Alan R. Friend 7600 Sun Island Drive South, No. 505 South Pasadena, FL 33707-4484 David J. Ottinger, Esq. GrayRobinson, P.A. 401 East Jackson Street, Suite 2700 Tampa, FL 33602-5841 Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as my observation of the demeanor of the witnesses who observed and/or participated in each of the four episodes, the following facts are found: At all times material to the charges herein, respondent DeSantis was an on-duty Clearwater Police Department. officer, holding the rank of patrol sergeant. The respondent had been employed by the Clearwater Police Department since March 14, 1977. He was certified by the Criminal Justice Standards and Training Commission on July 7, 1977, and was issued Certificate Number 02-18239. THE ANDERSON INCIDENT At approximately 8:00 p.m. on October 27, 1984, a radio dispatch was transmitted to Clearwater police officers advising that there was an armed black male in the area who had threatened that he was either going to get some money or someone would be hurt. Respondent observed a suspect, later identified as Harold Anderson, in front of a laundromat where three or four people were sitting in chairs. Respondent drove up to the laundromat, and observed Mr. Anderson walk inside. A woman and a child were inside the front area of the laundromat. Respondent followed Anderson into the laundromat and Anderson proceeded to walk the back area, keeping his back to the respondent. Assuming that Anderson had a gun in his hand and fearing a possible hostage situation with the woman and child, respondent drew his service revolver and informed Anderson that he was under arrest. With pistol drawn and facing Anderson's back, respondent made two attempts within the laundromat to take Anderson into custody. During the second attempt and while respondent's gun was placed on Anderson's spine, a struggle ensued near the front doorway. The struggle caused both the respondent and Anderson to fall, with Anderson on the bottom, upon the hood of a car parked outside the entryway to the laundromat. Sometime during the struggle, respondent was attempting to place his service revolver under Anderson's chin. Instead, the barrel of respondent's pistol went into Anderson's mouth, where it remained for between 20 and 40 seconds, causing Anderson to make choking and gagging sounds. Respondent's pistol was removed from Anderson's mouth after Anderson was handcuffed with the assistance of two other police officers. A loaded handgun was retrieved from the waistband of Anderson's trousers. Officer Kettel arrived on the scene as respondent and Anderson were struggling at the doorway of the laundromat. He observed that Anderson was resisting arrest and that respondent was attempting to calm Anderson down and to retrieve his gun. He recalled that respondent's pistol went into Anderson's mouth as they both landed on the car hood. Officer Watson was the third police officer to arrive. He did not observe the struggle between respondent and Anderson prior to the two reaching the hood of the parked car. When Watson arrived at the scene, Anderson was lying on his back on the car hood and respondent was holding a pistol in Anderson's mouth. Watson's testimony was conflicting as to the exact point in time that Anderson ceased to struggle and the point in time that the pistol was removed from his mouth. Until the point in time that Anderson was handcuffed and his loaded gun retrieved from him, respondent was in fear for his life. He admits that the barrel of his service revolver went into Anderson's mouth, but states that this was unintentional and that he could not remove it without endangering himself until he received assistance from other officers in subduing Anderson. The testimony of two civilian eyewitnesses to this incident was somewhat conflicting as to when the gun went into Anderson's mouth, when Anderson ceased resisting his arrest, and when the gun was removed from Anderson's mouth. There was no evidence that Mr. Anderson was injured as a result of respondent's revolver being inside his mouth. THE HEYWOOD INCIDENT On November 3, 1984, three police officers responded to a radio dispatch concerning an individual who had returned to a Maas Brothers department store armed with sticks and bricks after previously having had an altercation with the security guard there. The individual was Steve Heywood, a 19 year old black male, who had testified that he had returned to Maas Brothers "to defend himself" because the security guard had broken his necklace approximately one-half hour earlier in the evening. When respondent drove into the Maas Brothers parking lot, he observed five or six people standing near the doorway and saw Heywood, dressed only in shorts and tennis shoes, throw some bricks and sticks in a bush. Respondent got out of his cruiser and Heywood started walking away from him. Respondent told Heywood to "freeze" and to "hit the ground." Heywood took three or four more steps, then turned around quickly. At that point, respondent drew his service revolver. Heywood put his hands out or up, started pleading that he had done nothing and went down to the ground on his stomach, with his hands visible. Respondent then approached Heywood with his gun still pointing at him, put his knee on Heywood's back, and placed the barrel of his service revolver next to Heywood's head where it remained for a period of about 30 seconds until another officer handcuffed Heywood. While Heywood appeared excited or upset during this process, he did not fight or struggle. THE TRUBY INCIDENT On October 5, 1984, respondent and Reserve Officer Karen Jackson were dispatched to investigate a report of a fight at an apartment complex. Soon after the officers arrived, Paul Truty began creating a disturbance in the parking lot by shouting abusive and threatening remarks at a victim of a prior sexual abuse, her family and the police officers. Detective Margaret Jewett was also dispatched to the scene to assist the sexual a~use victim. When Truby refused to stop yelling obscenities and inciting the crowd, respondent told him he was under arrest. Truty then began to walk backwards away from the respondent. Respondent pounded his nightstick on the ground three or four times, demanding that Truby return, and Truby then turned and started walking between two apartment buildings. Respondent and Detective Jewett followed Truby a short distance and apprehended him. The respondent pushed Truby against a wall and Jewett placed handcuffs on Truby, securing his hands behind his back. The respondent and Detective Jewett each took one of Truby's arms and escorted him approximately fifty yards back to the respondent's police car. During the walk back to the car, Truby did not resist or struggle and was cooperative and submissive. From this point, there is conflicting evidence between respondent's recollection of events and the recollections of Reserve Officer Jackson and Detective Jewett. Respondent states that Truby was highly intoxicated at the time of his arrest and that he had to use his nightstick to keep Truby's spine stiff and steer him while they were walking back to the patrol car. Respondent explains that Truby stumbled near the car due to the presence of some concrete tire stops adjacent to the passenger side of the cruiser. Detective Jewett and Officer Jackson recall that respondent positioned his police baton parallel to Truby's spine and under his handcuffed hands. As Truby was beginning to enter the police cruiser, respondent intentionally pulled up on the lower end of the nightstick near the handcuffs, thus causing TruLy to stumble and fall off balance. According to these witnesses, respondent then made a sarcastic remark about Truby falling and subsequently pulled Truby up with the nightstick and placed him in the car. Detective Jewett stated that Truby may have been intoxicated. THE VONDERAU INCIDENT On the evening of October 5, 1984, Officer David Watson was dispatched to investigate a report of a domestic disturbance in a residential neighborhood. Officer Green was dispatched as a back-up officer. Upon arrival at the scene, the officers spoke to a very upset woman who told them that her son had done extensive damage to her home and had threatened her. The interior of the woman's home was in shambles. A neighbor led the son, later identified as John Vonderau, to the area of the street where the officers were. He was wearing no shirt and the officers believed he had been drinking. Vonderau exhibited bizzare behavior, marked bye dramatic swings of mood from calm and lethargic to aggressively pacing the street with clenched fists. Officer Watson was concerned that Vonderau could become violent, but he was unsure of his legal right to arrest him since no crime had been committed in Watson's presence. He considered taking Vonderau to a detoxification center or effecting an involuntary commitment to a treatment facility for the mentally ill, pursuant to the Baker Act. Being unsure of the legal ramifications of doing so, Watson radioed respondent, who was his superior on duty that evening, and asked him to come to the scene to advise on the proper course of action. Before respondent arrived, Officer Desrosiers drove by and Officer Watson requested that he stay because Vonderau appeared to be getting more agitated. When respondent and Reserve Officer Jackson arrived on the scene, Officers Watson, Green and Desrosiers were standing in the street in a loose circle around Vonderau, who was pacing back and forth. Officer Watson advised respondent that Vonderau had made death threats to his mother and had completely ramshackled her house. A decision was made that the officers would take Vonderau into custody as a Baker Act patient. When respondent and Watson began to approach Vonderau, he brushed against respondent's shoulder and then assumed a martial arts/karate-type stance, and said, "You'd better get your clubs out. You're going to need them." The officers all took out their police batons, and Vonderau continued to make karate- type motions. Officer Desrosiers was talking on his radio when Vonderau swung at him. Respondent thought Vonderau struck Desrosiers, but no contact was made. Vonderau also approached Officers Watson and Green in an aggressive fashion. When he turned away from Officer Watson, Watson struck Vonderau's leg with his police baton. Vonderau then ceased his crouched stance, stood erect, put his hands in the air and said, "You got me." Officer Watson then ordered Vonderau to get down on the ground. After hesitating momentarily, Vonderau then assumed a push-up position, facing the street and suspending himself with his feet and hands. Immediately after Officer Watson ordered Vonderau to lie flat on the street, the respondent struck a very hard blow with his police baton across Vonderau's shoulders, causing a welt. Vonderau then went immediately to the ground. Once Vonderau was down flat on the street, at least three of the officers quickly moved to securely hold him down and handcuff his hands behind his back. The fourth officer walked over to the police vehicle to retrieve a set of "flex cuffs" to place around Vonderau's legs. At some point, respondent drew his service revolver and, after Vonderau was down and was being handcuffed by the other officers, respondent held his gun to the back of Vonderau's neck behind his ear, while pushing his nightstick against Vonderau's neck. Vonderau had ceased resisting and being aggressive from the time he went flat on his stomach to the street. Respondent held the gun to Vonderau's neck or head for approximately thirty seconds, angrily telling him that if he moved, respondent would "blow his head off." After Vonderau was hand and leg cuffed, he was taken to the police station by Officers Watson and Desrosiers. The testimony is somewhat conflicting as to the exact point in time that respondent withdrew his service revolver from his holster. Respondent states, and the other officers present admit the possibility, that his pistol was drawn when Vonderau first assumed his karate-type stance and began swinging at the other officers. He further states that he thereafter attempted to place his pistol back in its holster, but, because his holster lining was torn, he had to hold it there. However, on cross- examination, respondent admitted that he intentionally placed his gun next to Vonderau's head because he felt he and the other officers were in jeopardy. Respondent felt that the placing of his service revolver against Vonderau's neck was effective in calming him down. All officers on the scene believed that Vonderau possessed knowledge of a martial art and that he was dangerous. However, officers Watson, Green, Desrosiers and Jackson agreed that Vonderau ceased to resist completely once he was flat on the ground on his stomach.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT: Respondent Joseph DeSantis be dismissed as an employee of the Clearwater Police Department for utilizing excessive force during the arrests of Steve Heywood and John Vonderau, and that the Administrative Complaint filed by the Criminal Justice Standards and Training Commission be DISMISSED. Respectfully submitted and entered this 20th day of April, 1987. DIANE D. TREMOR Hearing Officer The Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488 9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of April, 1987. COPIES FURNISHED: Louis Kwall, Esq. 133 N. Ft. Harrison Avenue Clearwater, FL 33516| Margot Pequignot, Esq. P.O. Box 1669 Clearwater, FL 3351 Robert G. Walker, Jr., Esq. P.O. Box 4748 Clearwater, FL 33516 Miles A. Lance, Esq. P.O. Box 4748 Clearwater, FL 33516 Joseph S. White, Esq. Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 APPENDIX The proposed findings of fact submitted by each of the parties have been carefully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner, CJSTC 22. The evidence is unclear as to the number of officers holding Vonderau down. 40, 41 and 43. Rejected; not established by competent, substantial evidence. Rejected; not established by competent, substantial evidence. First sentence rejected; contrary to the evidence. 55. Rejected, contrary to the evidence. Petitioner, City of Clearwater (NOTE: Many of the City's proposed findings of fact constitute recitations or summaries of an individual's testimony. The following rejections of the proposed factual findings does not indicate that the cited witness did not so testify, but that said testimony was not sufficient, in light of other testimony, to support a factual finding.) 8(b) Rejected. 8(f) Rejected. 8(i)(2) Rejected, as contrary to the evidence. 8(i)(5) Rejected, as contrary to the evidence. 8(i)(6) Rejected, as contrary to the evidence. 8(i)(7) Rejected, as constituting a legal conclusion as opposed to a factual finding. 9(i) McKenna was accepted as an expert in the area of law enforcement standards. 9(k)(5) Rejected as a factual finding. 10(d)(l) Rejected, not established by competent, substantial evidence. 10(d)(3) Rejected, not established by competent, substantial evidence. 10(g)(3) & (i) Rejected, not established by competent, substantial evidence. Respondent (NOTE: Many of respondent's proposed factual findings constitute verbatim recitations of testimony. These are improper findings of fact and are rejected as such.) page 6, first Rejected, as contrary to the sentence of last evidence. paragraph page 24, second Rejected, not supported by full paragraph competent evidence. page 27, first Rejected, as contrary to the paragraph evidence. page 28A, last Rejected as irrelevant and paragraph immaterial to the issues in dispute. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA, DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH Case Nos. 85-3698 86-0889 JOSEPH R. DESANTIS, CJSTC Case No. L-1703 Certificate Number: 02-18239 Respondent. /
The Issue Whether the petitioner abandoned her position and resigned from the Career Service System under the circumstances of this case.
Findings Of Fact Petitioner was employed as a permanent full-time employee in the Bureau of Workers' Compensation within the Division of Risk Management in the Department of Insurance. Her job title was Secretary Specialist. Her immediate supervisor was Lawrence Sharp, Chief of the Bureau. However, on February 6, 1985, Mr. Sharp was on annual leave, and Ms. Peggy Veigas was the acting supervisor. On February 6, 1985, Petitioner took two hours of authorized leave from work from 8 a.m. to 10 a.m., in order to attend a Leon County Court hearing on charges of cashing bad checks. The checks had been repaid in advance of the hearing: however, petitioner was immediately adjudicated guilty of writing bad checks, sentenced to 12 days in jail, and taken into custody. Petitioner was due to return to work at 10:00 a.m., but was unable to do so because of circumstances beyond her control. She was taken directly from her court appearance to the Leon County Jail. However, prior to being transported to the jail, she was able to ask her husband, who had accompanied her to court, to call her employer and ask for emergency leave to cover the 12 days she would be serving her sentence. Mr. Penney called petitioner's office at about 2 p.m. on February 6, 1985, and in the absence of Mr. Sharp the call was referred to Ms. Veigas, the acting supervisor. Mr. Penney explained that Mrs. Penney would not be at work for the next eight to ten days and requested emergency leave for that period of time. Mr. Penney was very vague about the nature of the emergency and Mrs. Penney's whereabouts. He did not explain that Mrs. Penney was in jail because he felt it would be embarrassing to Mrs. Penney. Ms. Veigas stated that emergency leave could be granted but she would have to talk to Mrs. Penney. She told Mr. Penney to have Mrs. Penney call her. Mr. Penney stated that Mrs. Penney could not call in and implied that Mrs. Penney was out of town. Ms. Veigas explained that Mrs. Penney needed to call her as soon as she could get to a phone and, if necessary, for her to call collect. Mr. Penney interpreted Mrs. Veigas' statement, that she could grant the leave but Mrs. Penney would have to call as soon as possible, as meaning that the leave was approved and that Mrs. Penney had to call work as soon as she was able to do so. However, in making the statement, Mrs. Veigas meant only that there was a possibility that leave would be granted and Mrs. Penney needed to call and explain the nature of the emergency. The subsequent actions of both Mr. Penney and Mrs. Veigas were consistent with their respective conceptions of the conversation. That afternoon, after the telephone call, Ms. Veigas went to the personnel office and discussed the matter with Ms. Cooper. Ms. Veigas wanted to find out how she should handle the request for leave and whether she should wait for Mr. Sharp to return from his vacation. Mr. Yohner, the Chief of Personnel Management, was consulted, and he stated that when Mrs. Penney called, Ms. Veigas would have to determine whether she would approve the leave or not. Ms. Veigas was told by Ms. Cooper to wait until Ms. Veigas heard from Mrs. Penney "so we would know whether it was an illness or whatever it was." (T-47) However, the nature of the emergency was determined without the necessity of a call from Mrs. Penney. Within a short period of time after the call from Mr. Penney, Ms. Veigas mentioned the request for emergency leave to Ms. Benefield. Ms. Benefield told Ms. Grissom about the call from Mr. Penney, and the two speculated that Mrs. Penney might be in jail. They were aware that Mrs. Penney had financial problems. While Ms. Grissom stood by, Ms. Benefield telephoned the jail and was told that Mrs. Penney was in jail for passing bad checks. They immediately communicated the information to Ms. Veigas, and the three of them, along with a woman named Edna, discussed the situation for about five or ten minutes. Ms. Veigas then conveyed the information to Mr. Yohner, Ms. Cooper and Mr. Beardon, the Director of the Division of Risk Management, who had previously been informed of the call from Mr. Penney. The following day Mr. Sharp returned to work and was informed of the entire situation. Mr. Sharp discussed the matter with Mr. Beardon. Mr. Beardon had his assistant call the State Attorney's Office to verify that Mrs. Penney was in jail. Thus, by the end of the workday on February 7, 1985, Mrs. Penney's co-workers, her immediate supervisor, the Chief of Personnel Management, and the Director of the Division of Risk Management were all aware that Mrs. Penney, through her husband, had requested emergency leave, and they were all aware that the emergency leave had been requested due to Mrs. Penney's incarceration. On either February 6th or 7th, Mr. Yohner notified Mr. Gresham, the Director of the Division of Administration and Mr. Yohner's supervisor, that a possible abandonment of position situation existed. Mr. Gresham was not informed that petitioner had requested emergency leave. On Friday, February 8th, or on the following Monday, Mr. Sharp called a friend of his in the Department of Administration, Don Bradley, to gain advice on application of the rule relating to abandonment of position. He was told that when someone missed three days of work without having authorization, it was the same thing as resigning and required termination. Mr. Sharp relayed the information to Mr. Beardon. Mr. Sharp did not consider petitioner's leave request and did not know whether he had the authority to approve the leave since at least a portion of the leave requested would have been without pay.2 After three days expired and Mrs. Penney had neither reported for work nor called the office, Mr. Beardon contacted Mr. Yohner to discuss the situation. He also discussed the situation with his superior in the Department. Though Mr. Beardon was aware that Mrs. Penney had requested leave through her husband and was aware that she was absent from work only because she had no choice, Mr. Beardon did not consider her request for leave. His reason was that Mrs. Penney did not personally request the leave. He did not consider the possibility that Mrs. Penney was not able to call in person. Mr. Beardon felt that a call from Mrs. Penney was necessary to find out "all of the pertinent facts and why the request was needed." However, it is apparent that Mr. Beardon already knew why the requested leave was needed and had already discovered the pertinent facts. Nevertheless, Mr. Beardon determined that, under the abandonment rule,3 petitioner had abandoned her job and her employment should be terminated. He recommended that the personnel office proceed with the action in accordance with the rule. Mr. Yohner informed Mr. Gresham of Mr. Bearden's recommendation that petitioner be terminated from the Career Service via the abandonment rule. A letter was prepared for Mr. Gresham's signature, notifying Petitioner of her termination from the Career Service. Mr. Gresham signed the letter and mailed it to petitioner at her home address. By the letter dated February 11, 1985, and then by an amended letter dated February 12, 1985, petitioner was notified that she had been absent without authorized leave for three consecutive days, and therefore she was deemed to have abandoned her position pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, and to have resigned from the Career Service. Meanwhile, Mr. Penney was under the impression that the emergency leave had been granted. He was able to speak with his wife for the first time on February 9, 1985, and the first question petitioner asked her husband was whether the leave had been granted. He told her that it had been, and she displayed visible signs of relief at the knowledge. Petitioner's husband also told her that she should call Ms. Veigas at her earliest opportunity. Mrs. Penney made diligent attempts to contact her employer both before and after she spoke with her husband on February 9, 1985. On each day of her incarceration she made written requests to the Captain at the jail for permission to use the telephone to call her employer. However, she received no response. In accordance with jail policy, which allowed one phone call per week at a set time, she was permitted use of the telephone on only one occasion, on February 11, 1985 at about 11 p.m. in the evening. Mrs. Penney's sentence was reduced by Judge McClamma and she was released from jail on February 14, 1985. She received the termination letter that evening when she got home. The next morning she called Mr. Yohner and stated that she wanted to return to work. Mr. Yohner informed her that she was no longer an employee of the Department. Mrs. Penney's position was advertised on February 19th and readvertised on March 4, 1985. Sometime after March 4, 1985, a replacement was hired. Although the workers compensation bureau had a very heavy case load, Mrs. Penney's work performance had been satisfactory. Indeed, she had been promoted to the position of Secretary Specialist from her previous position of Clerk-Typist III with the bureau. Petitioner had no intent to abandon her position in the Career Service, and she had no intent to resign her position. The Department had actual knowledge of the petitioner's whereabouts during her absence from work, and had actual knowledge that she intended to return to work as soon as she could. Further, the Department was aware that petitioner had requested leave to cover the period of time she would be gone. However, instead of taking action on the request, one way or the other, the Department left the request in limbo. A decision was never made to approve or disapprove the request. The only explanation given for not considering the request was that Mrs. Penney had not made it personally. However, it is quite clear that at the time of Mr. Penney's call the Department considered the call a legitimate request for leave from Mrs. Penney even though the call was not made by her. Ms. Veigas did not tell Mr. Penney that the leave could not be granted because Mrs. Penney had not called in person. Indeed, the first thing Ms. Veigas did after the telephone call was go to the personnel office to find out how she should "process the request". The only reason that the Department wanted to talk to Mrs. Penney personally, prior to determining whether leave should be granted, was to discover the nature of the emergency. Although Mr. Penney explained that there was an emergency, that Mrs. Penney was unable to call, and that leave was being requested to cover the period of time that Mrs. Penney would be unable to work, he was very vague about the nature of the emergency. The Department understandably wanted to know the reason for the request before deciding to grant leave. However, once the Department discovered Mrs. Penney's circumstances, it was in a position to make an informed decision on the leave request, and there was no rational basis for its failure to do so. Although the granting of leave is discretionary, the discretion must be exercised. Apparently, the Department officials believed that Mrs. Penney's absence from work for three consecutive days mandated termination notwithstanding the pending request for leave. Because the Department failed to take any action on the leave request, Mrs. Penney was never notified that her request for leave had been denied. Upon consideration of the facts and circumstances of this case, it must be concluded that Mrs. Penney did not abandon her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented by this case do not constitute abandonment of position as contemplated by Rule 22A-7.10(2)(a) and directing that the petitioner be reinstated to her former position as of February 15, 1985. DONE and ENTERED this ;26th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of December, 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Petitioner was employed by Respondent and supervised by Frank J. Alogna, Park Manager at Ravine State Gardens at Palatka, Florida. Petitioner signed an acknowledgment receipt indicating that: (a) he had received an Employee Handbook; (b) it was his responsibility to review the Handbook; and (c) he was to request clarification, if needed, from his supervisor. Petitioner knew, or should have known, since the Handbook explained job abandonment, that unauthorized leave of absence could result in the loss of his job through abandonment. Petitioner was absent without leave on January 14, 15, and 16, 1987. Respondent's regular days off were January 17 and 18, 1987. January 19, 1987 was a paid holiday. Respondent was absent without leave again on January 20 and 21, 1987. Petitioner's last day of work was January 11, 1987 since January 12 and 13, 1987 were Petitioner's regular days off. Respondent tried on several occasions to reach Petitioner, but was unable to do so. At 7:00 p.m. on January 21, 1987 Petitioner telephoned Alogna but had no satisfactory explanation for his unauthorized leave. During this telephonic conversation on January 21, 1987, Petitioner was informed by Alogna that he was considered to have abandoned his position and to have resigned from the Career Service. Respondent formally advised Petitioner of this decision by letter dated January 23, 1987 which was hand delivered to the Petitioner on February 12, 1987 after Petitioner failed to claim the letter sent by certified mail through the post office. At no time relevant to this proceeding was any type of leave requested by Petitioner, or granted by Respondent. Although Petitioner was notified by regular U.S Mail of the date, place, and time of the formal hearing, Petitioner failed to appear. Petitioner lived approximately one (1) block from the entrance of Ravine State Gardens where he worked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a Final Order be entered deeming the Petitioner to have abandoned his position and to have resigned from the Career Service. Respectfully submitted and entered this 10th day of September, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1236 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner did not submit any Proposed Findings of Fact or Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 1. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 3. COPIES FURNISHED: Ed Pantaleon, Esquire Asst. Gen. Counsel Dept. of Natural Resources 3900 Commonwealth Blvd. Tallahassee, Florida 32303 Raymond W. Johnston Route 3., Box 4655 Palatka, Florida 32034 Pamela Miles, Esquire Dept. of Admin. 435 Carlton Bldg. Tallahassee, Florida 32399-1550 Adis Vila, Secretary Dept. of Administration 435 Carlton Bldg. Tallahassee, Florida 32399-1550 Augustus D. Aikens, Gen. Counsel Dept. of Admin. 435 Carlton Bldg. Tallahassee, Florida 32399-1550 Tom Gardner, Executive Dir. Dept. of Natural Resources 3900 Commonwealth Bldg. Tallahassee, Florida 32303
Findings Of Fact Petitioner, Judith A. French (French), was employed full time by Respondent, Department of Health and Rehabilitative Services (Department), as a switchboard operator in Riveria Beach, Florida. On three consecutive workdays, to wit: July 7- 9, 1986, French was absent from her employment without authorized leave. By certified letter dated July 10, 1986, the Department advised French that her absence from work since July 7, 1986, was unauthorized and that, pursuant to Rule 22A-7.10(2), Florida Administrative Code, she was deemed to have abandoned her position and resigned from the Career Service. The letter further advised French of her right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. French timely petitioned the Department of Administration for review. On August 13, 1986, the Department of Administration accepted French's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing. At hearing, French asserted that her absence was occasioned by a sudden and severe illness she contracted over the fourth of July weekend, which illness she averred rendered her totally incapacitated and unable to contact her employer the week of July 7, 1986. French offered no proof, however, of the cause or nature of her illness but merely testified that she was incapacitated, subject to profuse vomiting, and admitted to a hospital on July 14, 1906, where she was treated for a lack of potassium. While unable to do so personally, French contended that efforts were made on her behalf to advise the Department of her illness. According to Lester Smith (Smith), French's live-in-boyfriend and co-worker at the Department's Riviera Beach office, he made on attempt to call French's supervisor at noon, July 7, 1986, but no one answered the Department's telephone. Smith asserted that his efforts to contact the Department on July 1986, were frustrated by an epileptic seizure he suffered that morning, and the fact that he had to use a pay phone since their phone was out-of-order. Smith did not contend that he was incapacitated by his seizure of July 7, 1986, and offered no further excuse for his failure to notify the Department that he and French would be absent that day. On July 8, 1986, according to French and Smith, their friend Mr. Dudick offered to call the Department concerning their absence, and subsequently advised them that he had been unable to reach their supervisor but had left word with the Department that French and Smith were ill and their telephone out-of- order. Mr. Dudick did not testify at hearing, and there is no record of any such call having been received by the Department. On July 9, 1986, no effort was made to notify the Department that French would be absent from work. The proof established that French's absence from her employment on July 7-9, 1986, was not authorized, and that the Department was not notified that she would be absent due to illness. Consequently, on no less than three consecutive business days her employer was left without the benefit of her services or the notice needed to secure a replacement to perform her duties. While French may have been ill, she offered no proof that would excuse her failure to promptly notify her employer of her incapacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a final order finding that Petitioner, Judith A. French, abandoned her position and resigned from the Career Service. DONE AND ENTERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 10th day of November, 1986 APPENDIX The Department's proposed findings of fact are addressed as follows Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraphs 2-7. COPIES FURNISHED: Judith A. French 2815 Broadway, Apartment #1 West Palm Beach, Florida 33407 K. Stuart Goldberg, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Donald C. Geeck was employed the City of Clearwater Utilities Department as a Customer Service Supervisor on September 26, 1983, and had been so employed since October, 1981. Prior thereto he was employed by the Clearwater Police Department. On September 26, 1983, around 8:00 a.m. Geeck called the Utilities office to report he had overslept and would be in shortly. His workday started around 8:30 a.m. and he would have been a few minutes late. When he had not arrived by 10:00 a.m., Tamera Denman, a Customer Service Representative supervised by Geeck, called Geeck to find out if he had gone back to sleep. Geeck answered the phone and told Denman he was not feeling well and would probably not be in. Around 12:15 p.m. Geeck called the office to advise he would not be in that day (Monday) and maybe not on Tuesday, September 27, 1983. Fred Lewis is Assistant Account Supervisor in the Clearwater Utilities Department and the immediate supervisor of Geeck. Lewis has been employed by the City for some 28 years. Lewis was not satisfied with Geeck's performance of duty since the latter was transferred to the Utilities Department and had counseled Geeck several times. At Geeck's annual evaluation defects in Oeeck's performance were pointed out by Lewis in a meeting of Geeck, Lewis, and Mehring, Utilities Accounts Supervisor. Lewis smelled alcohol on Geeck's breath on several occasions in the office and this, plus frequent use of sick leave, led Lewis to conclude Geeck had a drinking problem. Robert Brumback is Assistant Director, Utilities Department, Clearwater, and the supervisor of Mehring. He had smelled alcohol on Geeck's breath once in the office and had cautioned Geeck that Customer Service Representatives had to be careful of their appearance, as they were in daily contact with customers. When Lewis returned from lunch around 12:30 p.m., September 26, he was advised of Geeck's recent call that he would not be in that day, and maybe not the following day. Lewis was aware of the other phone calls that had been made that morning. Around 12:45 p.m. Lewis dialed Geeck's number to inquire about his condition but received no answer after waiting for the phone to ring seven times. Shortly thereafter Lewis and Brumback went out on a high bill complaint and, before leaving, Lewis informed Brumback of Geeck's absence; of the phone calls during which Geeck stated he wasn't feeling well and would not come to work that day and maybe not the next day; of his phone call to Geeck's residence and no answer; of the fact that similar incidents had occurred in the past; and that he suspected Geeck's claim of sickness was spurious and the result of Geeck's drinking problem. He requested Brumback stop by the Eagle's Club, a private club frequented by Geeck, on their return to the office. Brumback agreed, and in route back to the office they pulled into the Eagle's Club parking lot where Geeck's car was seen. Brumback and Lewis went to the door but could not get in without a member's card. After a short wait a member came out and Lewis stepped into the doorway, from where he saw Geeck at the bar. Geeck also saw Lewis and came to the door. He then saw Brumback and came outside. When Geeck approached Brumback, he said words to the effect "I must be in a lot of trouble. I'm supposed to be home sick and you found me here drinking and rolling quarters." When asked if he had a drinking problem, Geeck replied "I guess I do." Brumback told Geeck to report to his office the following day. Brumback and Lewis then departed and returned to the office. Geeck's version of the events of September 26 coincide with those above-recited; however, Geeck contends he mentioned he was not feeling well only on the phone call made to him at 10:00 a.m. by Denman. When he called in at 8:00 a.m., he intended to come to work but went back to sleep until he was awakened by Denman's phone call at 10:00 a.m. Shortly after he called Lewis' office at 12:30 p.m., he received a call from the manager of the Eagle's Club that he needed the checkbook and some change. Geeck is secretary of the Eagle's Club, had the checkbook and the only key to the vending machine. Geeck drove the five minutes from his home to the Eagle's Club, took checks to the manager, and opened the vending machines. When he sat at the bar to roll quarters, the bartender placed a drink in front of him. He had taken only a couple of sips when he saw Lewis at the door and came out and then saw Brumback. He definitely recalled saying I guess you caught me; I'm supposed to be home sick, or words to that effect. Geeck further testified that on the evening of September 25 (Sunday) he had called Bingo but did not feel well, left the Bingo hall early, and returned home around 8:30 p.m. No explanation was offered why, if he went to bed at 8:30 p.m., he would oversleep the following morning and go back to sleep after calling the office to advise he had overslept and would be in shortly. Respondent presented evidence that Lewis was unsatisfied with Geeck's performance of duty and with his suspected drinking problem and wanted to get rid of Geeck as an employee under his direct supervision. However, the evidence was unrebutted that Brumback was the one who made the determination to, and did, recommend Respondent's dismissal. Brumback testified that when Geeck called in (or was called) and stated he was not feeling well and would not come to work on September 26, he considered Geeck to be on sick leave. When he subsequently found Geeck at the Eagle's Club working and having a drink, he concluded that Geeck had falsified the report of his sickness and thereby knowingly made a false claim or misrepresentation in order to obtain sickness benefits. Geeck was the supervisor of eight Customer Service Representatives and, as supervisor, Brumback expected Geeck to set a good example and not falsify a report. For this reason he, and he alone, recommended dismissal. The policy of the Utilities Department is to consider people on sick leave when they call in to say they are sick, and filling out the paperwork to document this time is accomplished after the employee returns to work. In Geeck's situation, he had neither sick leave nor annual leave remaining to which he could charge his absence on September 26. That day would, perforce, be a day for which he could not be paid. His absence would be excusable if he was sick.
