Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that: Respondent Department of Health and Rehabilitative Services enter a final order correcting the annual leave account of Robert J. Braun by reducing his annual leave balance by 125 hours in accordance with its 1983 audit of the account. RECOMMENDED this 21st day of January, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of January, 1985.
Findings Of Fact The employee herein, the Petitioner, is employed by DEP as a park ranger. DEP is an agency of the State of Florida. The Petitioner failed to report for work after June 10, 1995. He apparently had some health problem or complaint and was on sick leave for a time. October of 1995 was the first month that he was on leave without pay. He was on leave without pay when he was terminated, which occurred on November 27, 1995. The Petitioner was not receiving workers compensation benefits between his last day of work on June 10, 1995 and the termination date of November 27, 1995. His monthly rate of pay was $1,627.23. He was paid $1,627.62 in gross wages for 176 hours on November 30, 1995. He received $1,319.18 in net wages for November of 1995. The Petitioner was entitled to $71.74 in wages for 10.75 hours for November of 1995. DEP calculated the amount of overpayment by offsetting the wages issued to him in November of 1995 by the amount he was actually entitled to receive for that month for the 10.75 hours. Thereafter, on December 12, 1995, DEP notified the Petitioner, by certified mail, return receipt requested, that he had been overpaid $1,247.44 in net wages for November of 1995. That return receipt reflected that the Petitioner received that letter on December 15, 1995. The Petitioner failed to refund the money to DEP during the 1995 tax year and as yet, has still not refunded the money. Because the money was not refunded during the 1995 tax year, the Petitioner also owes DEP an additional $163.87, which was withheld for taxes on the payment or overpayment in question. Thus, DEP overpaid the Petitioner a total of $1,411.31 in wages for November of 1995.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent, Department of Environmental Protection, enter a Final Order finding that the employee, the Petitioner, Eugene Breeze, owes $1,411.31 for a salary overpayment received by him in November of 1995. DONE AND ENTERED this 1st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996. COPIES FURNISHED: Mr. Eugene Breeze 1110 Florida Avenue Lynn Haven, Florida 32444 Melease Jackson, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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 At all times material to the issue of abandonment in these proceedings, Petitioner Bynoe was a Career Service Employee, and was employed by the Department of Corrections at Hendry Correctional Institution in Immokalee, Florida, as a Correctional Officer I. In February 1989, the Petitioner submitted a written request for annual leave from June 9, 1989 to June 17, 1989. The leave was approved by the Petitioner's supervisor, Captain Jody Davis. June 6, 1989, Petitioner Bynoe was informed by Captain Davis that he did not have enough hours of annual leave accrued to cover the vacation period which was to begin on June 9, 1989. The prior written approval to the Petitioner for annual leave was revoked as the previously anticipated hours of accrued annual leave did not exist. The Petitioner had only eight hours of annual leave accrued at the time the approval of annual leave was revoked by Captain Davis. In an attempt to accommodate the Petitioner, who had already scheduled vacation plans, Captain Davis told him that the work schedule could be rearranged to allow Petitioner Bynoe to have five days off in a row from June 7, 1989 through June 11, 1989. This work schedule would give Petitioner Bynoe his regular days off of June 7th and 8th. His regularly scheduled days off of June 14th and 15th could be moved to June 9th and 10th, and the eight hours of annual leave available to Petitioner could be used on June 11th. Thus, Petitioner could have time off from work, and Captain Davis could act within his supervisory authority with regard to his approval of leave requests from the Petitioner, who was under his direct supervision. During the discussion between the Petitioner and Captain Davis, the Petitioner requested that he be allowed to take the full vacation period previously scheduled, and that the time from June 12, 1989 through June 17, 1989, be granted as leave without pay. Captain Davis informed Petitioner Bynoe that he did not have the authority to approve such a request, and that such an approval would have to come from someone higher in command. Although the two men ended their conversation with the clear intention to discuss the matter later during the work period on June 6, 1989, they were unable to discuss the matter again on that date. After the Petitioner completed work on June 6, 1989, he left for South Carolina as he had originally planned. On June 9, 1989, Petitioner telephoned Colonel Page at Hendry Correctional Institute. As Colonel Page was on leave, the call was transferred to the personnel manager, Mr. Dick Vollmer. During the conversation, the decision made by Captain Davis to revoke the Petitioner's leave from June 12, 1989 to June 17, 1989, was discussed. Captain Davis' decision was not modified by Mr. Vollmer or anyone else at the correctional institution. The Petitioner did not return to work on June 12, 1989. No additional contact with the institution was initiated by Petitioner until June 19, 1989, when he informed Captain Davis that he was to begin jury duty on that date. The Petitioner was absent from work without an authorized leave of absence on his scheduled work days of June 12, 1989 through June 18, 1989. Captain Davis expected the Petitioner back to work on June 12, 1989. Petitioner Bynoe was scheduled to work from June 12, 1989 to June 20, 1989. The Petitioner did not report to work nor did he contact anyone at the institution until June 19, 1989, when he began jury duty on that date. The Petitioner was absent from work without an authorized leave of absence on his scheduled work days of June 12, 1989 through June 18, 1989.
Recommendation Based upon the evidence, it is RECOMMENDED: That the Secretary of the Department of Administration issue a Final Order finding that Petitioner Bynoe abandoned his position and resigned from the Career Service System. DONE and ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1990. APPENDIX TO RECOMMENDED Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #2. Rejected. Contrary to fact. Accept that Captain Davis spoke with Petitioner. See HO #3 - HO #6. Reject the finding that Captain Davis had not informed the Petitioner that his previously approved leave request had been rescinded. Contrary to fact. See HO #3. Accepted. See HO #6. Accepted. See HO #7 and HO #8. Rejected. Contrary to fact. See HO #8. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. Rejected. This testimony not believed by the Hearing Officer. Accepted. Accepted. Rejected. Irrelevant. Rejected. Contrary to fact. This testimony was not believed by the Hearing Officer. 19.-27. Rejected. Immaterial to these proceedings. Also, Daugherty's testimony was not believed by the Hearing Officer, and was rejected in full. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. Accepted. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #3. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #8. Rejected. Irrelevant. Accepted. Accepted. See HO #9. Accepted. See HO #9. Accepted. See preliminary statement. COPIES FURNISHED: Joan Stewart, Esquire Florida Police Benevolent Association, Inc. Post Office Box 11239 Tallahassee, Florida 32302 Perri M. King, Esquire Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue Whether the Respondent was overpaid in the amount of $129.29 while he was employed by the Department of Health and Rehabilitative Services.
Findings Of Fact Respondent Dunn was initially employed in a Career Service position by the State of Florida on December 14, 1984. He remained in that position until August 7, 1986, when he separated from state government. On April 13, 1987, the Respondent accepted a position within the Career Service System with the Petitioner, Department of Health and Rehabilitative Services. The position was paid through a biweekly payroll system. The earning of annual leave and sick leave credits was also accounted for on a biweekly basis. Due to his eight-month break in service, Respondent was not entitled to credit for the previous state service when his annual leave earnings were credited to his leave account during his first year with the Department. On April 3, 1988, Respondent was continuously employed by the Petitioner for one full year. Within the Career Service System, this date is referred to as a career service employee's continuous creditable service date. When a reemployed career service worker completes continuous employment for one year following the date of his reemployment, he is entitled to credit all previous state service when eligibility for higher annual leave credits is computed by the employing agency and credited to his leave account. After five years of continuous and creditable service, a career service employee earns a higher rate of annual leave hours during a biweekly period. The number of annual leave hours earned and credited changes from four hours biweekly to five hours biweekly. Respondent Dunn became eligible for the five hour annual leave credit during the biweekly pay period that began on August 3, 1990. Respondent's supervisor mistakenly began crediting him with annual leave at the rate of five hours each biweekly pay period starting with the pay period beginning December 8, 1989. If Respondent had not had a break in continuous service, the supervisor's calculations as to annual leave hour credits would have been correct. His leave was calculated on continuous service instead of continuous and creditable service, as required by the Personnel Rules and Regulations of the Career Service System. Petitioner and Respondent relied upon the records maintained by the supervisor to determine how much annual leave the Respondent had accumulated and when he would be able to take such leave. During the biweekly pay period of August 3, 1990 through August 16, 1990, Respondent used thirty-six hours of annual leave under the mistaken belief that he was entitled to use that many hours of leave during that pay period. Permission to take this leave was given by his supervisor. If the leave had been properly calculated during the time period from December 12, 1989 to August 2, 1990, Respondent's total accumulated annual leave would have been only twenty-two hours. Respondent received a paycheck during this time period that give him credit for thirty-six hours of annual leave. This resulted in a salary overpayment of $129.29 as fourteen of those annual leave hours were not earned. The agency's calculation error as to Respondent's accumulated annual leave and the subsequent salary overpayment were discovered by Petitioner during the routine annual leave audit conducted when Respondent moved from his Career Service position with Petitioner to a Career Service position with the Department of Environmental Regulation. The amount of salary overpayment was reviewed and confirmed by the Division of Banking and Finance, Bureau of State payrolls once it was discovered by Petitioner. Action was taken by the Petitioner to correct the overpayment on January 2, 1992. This was within the two year period immediately following the date of payment. The salary overpayment to Respondent was the result of an administrative or clerical oversight. Petitioner's attempt to recover the funds was neither a disciplinary action nor an attempt to punish Respondent for moving to another agency. Respondent conducted himself lawfully during his employment with Petitioner in all matters relating to annual leave. The blame for the error in the calculation of accumulated annual leave should not be imputed to Respondent.
Recommendation Based upon the foregoing, it is recommended Respondent Dunn should refund $129.29 to the Petitioner for the salary overpayment that occurred in the biweekly pay period that began on August 3, 1990. RECOMMENDED this 23rd day of June, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 23rd day of June, 1992. COPIES FURNISHED: JACK E FARLEY ESQ HRS - DISTRICT VI LEGAL OFFICE 4000 W DR MARTIN LUTHER KING JR BLVD TAMPA FL 33614 WILLIAM DUNN 9717 FOX HOLLOW RD TAMPA FL 33647 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner was employed by Respondent beginning in 1985 and, at all times material hereto, was supervised by Dr. Frank A. Coliazzi. Petitioner had been made aware of the rules and policy of the Respondent in regard to unauthorized leave of absence. Specifically, Petitioner was counselled in this regard on March 26, 1986, by Dr. Frank A. Colliazzi for his unauthorized leave of absence on March 25, 1986. Petitioner knew, or should have known, that un-authorized leave of absences could result in disciplinary action or the loss of employment through abandonment. Prior to April 14, 1986, Petitioner had a history of unauthorized leave of absences. In fact, Petitioner was absent without authorized leave on April 9 & 11, 1986, after being counselled as late as March 26, 1986 in this regard. Petitioner was absent without authorized leave on April 14, 15 & 16, 1986. Petitioner appeared briefly at the work place on April 15, 1986 but did not go to work and left immediately when requested to work by Dr. Colliazzi, with a promise to return to work the next morning, April 16; 1986, at 8:00 a.m. The Petitioner did not request a leave of absence at this time and did not return to work on April 16, 1986 as promised. Respondent's certified letter of April 16, 1986, informing Petitioner that Respondent considered him to have abandoned his position because of his three (3) consecutive days of unauthorized leave was not received by Petitioner until April 24, 1986 due to Petitioner's failure to notify Respondent of his change of address. However, Petitioner was made aware of the letter and its contents by Maxine Fields on April 21, 1986. Petitioner's failure to return to work on April 17 & 18, 1986, lends support to Respondent's contention that Petitioner had abandoned his job since Petitioner was not aware of Respondent's position on his abandonment until April 21, 1986. At no time relevant to this proceeding was leave requested by Petitioner or granted by Respondent. Although Petitioner received notice of the hearings, he failed to appear at either one and present evidence in rebuttal to Respondent's position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law recited herein, it is, RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Respondent in deeming the Petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. RESPECTFULLY ENTERED and SUBMITTED this 25th day of November, 1986 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 25th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2604 The following constitutes my specific rulings pursuant to Section 120.59(1), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by Respondent: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 4. 4. Adopted in Finding of Fact 5 & 8. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 7. 7. Adopted in Finding of Fact 6 & 7. 8. Adopted in Finding of Fact 9. COPIES FURNISHED: Judy Waldman, Esquire General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 Barbara Wingo, Esquire Associate General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611 James H. Foster 3216 Lancastor Lane Tampa, Florida 33619 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Gilda Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
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 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 Whether the Petitioner received a salary overpayment from the Respondent for leave usage to which she was not entitled, as set forth in amended correspondence dated October 2, 2009, and, if so, the amount of any overpayment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Ms. Anderson was employed by the Department as a full- time Career Service employee until her separation on August 11, 2009. She had one year and four months' service with the State of Florida. As an employee of the Department, Ms. Anderson was paid biweekly. Based on her years of service, Ms. Anderson accrued four hours of annual leave and four hours of sick leave each biweekly pay period. Ms. Anderson used the People First System to complete her timesheets, request approval of leave, and review her leave balances. At issue is the amount of annual and sick leave used by Ms. Anderson during the pay period beginning February 6, 2009 and ending February 19, 2009. Ms. Anderson entered her time in the computerized People First timesheet as follows: February 6, 2009 8 hours' worked February 9, 2009 8 hours' sick leave February 10, 2009 8 hours' sick leave February 11, 2009 3.25 hours' sick leave 4.75 hours' annual leave February 12, 2009 8 hours' personal holiday February 13, 2009 8 hours' annual leave February 16, 2009 7.25 hours' annual leave February 17, 2009 8 hours' worked February 18, 2009 8.75 hours' worked February 19, 2009 4 hours' sick leave 4 hours' annual leave The Pay Period Overview in the People First System for the pertinent time period reflected the following: Beginning balance 2/06/09: 0 hours' annual leave 0 hours' sick leave 0 hours' personal holiday Accrual 2/19/09: 4 hours' annual leave 4 hours' sick leave 0 hours' personal holiday Used N/A : (24.00) hours' annual leave (23.25) hours' sick leave 0 hours' personal holiday Ending Balance 2/19/09: 0 hours' annual leave 0 hours' sick leave 0 hours' personal holiday The Department's Policies and Procedures for Attendance and Leave provides in pertinent part: III. Standards and Procedures * * * Annual Leave Method of Earning Annual Leave * * * Bureau of Personnel 1. Annual leave earned during any period shall be credited to the employee on the last day of that pay period or, in the case of separation, on the last day the employee is on the payroll. * * * Use of Earned Annual Leave Employee 1. Use of annual leave shall not be authorized prior to the time it is earned and credited and shall only be used with the prior approval of the proper authority. * * * Sick Leave Method of Earning Sick Leave * * * Employee * * * 4. Sick leave earned during any pay period shall be credited to the employee on the last day of that pay period, or in the case of separation, on the last day the employee is on the payroll. * * * Use of Earned Sick Leave Employee 1. Use of sick leave shall not be authorized prior to the time it is earned and credited to the employee and shall only be used with the approval of the proper authority. The Department keeps an official record of an employee's leave balances and accruals for each pay period, and it conducts audits of an employee's leave upon separation. The Department performed an audit of Ms. Anderson's leave and created an Employee Leave Record setting out annual and sick leave earned and used by Ms. Anderson up to her date of separation in August 2009. The audit revealed that Ms. Anderson had 20 hours of annual leave and 19.25 of sick leave available as of January 6, 2009, and that she accrued 4 hours of annual leave and 4 hours of sick leave on February 19, 2009, which could be used beginning February 20, 2009. As shown on the People's First timesheet prepared by Ms. Anderson and set out above, Ms. Anderson used 24 hours of annual leave and 23.25 hours of sick leave during the pay period beginning February 6, 2009, and ending February 19, 2009. Ms. Anderson, therefore, used four hours of annual leave and four hours of sick leave to which she was not entitled during the pay period extending from February 6, 2009, to February 19, 2009, and she was paid for these hours in the salary warrant issued February 27, 2009. In calculating the amount of the salary overpayment to Ms. Anderson, the Department made allowance for the one hour's annual leave balance Ms. Anderson had when she separated from the Department. The Department, therefore, calculated the salary overpayment based on seven non-compensable hours, and the balance owed by Ms. Anderson to the Department for the salary overpayment is $66.65.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order requiring Lillian Anderson to remit to the Department of Juvenile Justice the amount of $66.65. DONE AND ENTERED this 19th day of February, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 19th day of February, 2010. COPIES FURNISHED: Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399 Lillian Anderson 3617 Carambola Circle North Coconut, Florida 33066 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact The Petitioner, John C. Scott, has been a Career Service employee with the Department of Transportation for approximately ten years, assigned to the Centerline Maintenance Office in Pompano Beach, Florida. During all times material to these proceedings, Petitioner's immediate supervisor was Allen Thomas. Robert Lucas, Highway Maintenance Supervisor in charge of the District III Centerline Crew, is the Petitioner's second-level supervisor. Thomas and Lucas are the only individuals at the Centerline Maintenance Office authorized to approve leave for Petitioner. On May 23, 1987, the Petitioner was arrested for D.U.I. and placed in jail for fifteen days. After the Petitioner was arrested, he called his mother and asked her to inform his supervisor at work that he had some personal business to attend to and would need annual leave. On May 26, 1987, the Petitioner failed to report to work and had not previously requested leave from any of his supervisors. On the morning of May 26, 1987, Ms. Scott, the Petitioner's mother, called Mr. Lucas and told him that her son would need a couple of days off from work because of personal business. Mr. Lucas informed Mrs. Scott that annual leave could not be authorized over the telephone for personal business but that leave could be granted for an emergency situation. Ms. Scott reiterated that the Petitioner had some personal business to take care of. Mr. Lucas advised her that annual leave could not be authorized over the telephone under those circumstances. On June 1, 1987, Mr. Lucas was informed by Mr. Oshesky, the District Personnel Supervisor, that Petitioner's attorney had called and told him that Petitioner was in jail. The Petitioner was absent from work on May 26, 27, 28, and June 1, 2, 3, and 4, 1987. May 29, 30 and 31, 1987 were non-work days for Petitioner. At the time, the Petitioner's work week consisted of four ten hour days from 7:30 a.m. to 5:30 p.m. The last day that Petitioner actually reported for work was Wednesday, May 20, 1987. However, on Thursday, May 21, 1987, the Petitioner was absent from work on authorized annual leave, May 22-24, 1987, were non-work days and on Monday, May 25, 1987, the Petitioner was absent from work due to an official holiday (8 hours) and authorized annual leave (2 hours). On June 5, 1987, the Respondent advised Petitioner by certified mail, return receipt requested, that he was being terminated effective May 20, 1987, (Petitioner's last day at work) for abandonment of his position. The Petitioner's absence from work and involvement with civilian authorities were related to an admitted alcohol problem. Since the Petitioner was released from jail, he has participated in a twenty-day in-patient substance abuse program at John F. Kennedy Hospital and is presently involved with a Fort Lauderdale after-care program. The Petitioner had been provided with a Department of Transportation Employee Handbook by his employers. The Handbook outlined the requirements for annual leave and leave of absences without pay. The Handbook provides in part as follows: Annual Leave - Get your supervisor's approval before taking leave. If an emergency develops, tell your supervisor of the emergency and ask verbal approval to use annual leave. When you return to work complete the leave request form, as appropriate. Leaves of Absence Without Pay - Upon request, you may be granted leave without pay ... for a period not to exceed twelve calendar months.
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 the Petitioner, John C. Scott, has abandoned his Career Service position with the Department of Transportation. DONE and ORDERED this 16th day of October, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON 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 16th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2750 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 to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in substance in Finding of Fact 3. Partially adopted in substance in Findings of Fact 5 and 6. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 3, 5, and 6. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 11. Adopted in Findings of Fact 7 and 9. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Hon. Kaye N. Henderson Department of Transportation Secretary Room 562 Burns Building Department of Transportation Tallahassee, Florida 32399-0450 605 Suwannee Street Tallahassee, Florida 32399-0458 Patrick J. Curry, Esquire Attn: Eleanor F. Turner, 200 Southeast Sixth Street M.S. 58 Suite 200 Ft. Lauderdale, Florida 32301 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III, Esquire 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Bldg. Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
