JAMES NOONE, APPELLANT,
v.
FLORIDA DEPARTMENT OF CORRECTIONS AND PUBLIC EMPLOYEES RELATIONS COMMISSION, APPELLEES
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James Noone appealed his dismissal from the Department of Corrections through PERC, but the hearing officer recommended dismissal when Noone failed to appear at the evidentiary hearing, despite his attorney's appearance. The First District Court of Appeal reversed, finding PERC prematurely dismissed the appeal without sufficient information to determine whether Noone's failure to appear was beyond his control.
PERC prematurely dismissed Noone's appeal without providing him an evidentiary hearing to determine whether his failure to appear resulted from circumstances beyond his control. An employee's exception stating lack of notice provides insufficient information for PERC to conclude the employee was at fault for failing to maintain contact with counsel, requiring an evidentiary hearing before dismissal. The court did not reach the rule-promulgation issue since the employee appeared through counsel.
[1] An employee's failure to appear at a scheduled hearing, when represented by counsel, may warrant dismissal if the failure is not due to circumstances beyond the employee'…
[2] An employee is generally bound by the knowledge of and responsible for staying in contact with their attorney.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“PERC will afford a new hearing to an employee who has failed to appear at a hearing due to circumstances beyond his or her control”
Establishes PERC's standard for allowing relief when employee fails to appear at hearing
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Join FLexlaw to unlock all legal intelligenceNoone was dismissed from his job with the Department of Corrections and filed a career-service appeal with PERC. PERC served notice of hearing on coun…
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ERVIN, J.
Appellant, James Noone, appeals from an order of the Public Employees Relations Commission, contending that PERC erred in dismissing his career-service appeal as a sanction for failure to appear at his scheduled evidentiary hearing, that the policy of dismissal for failure to appear as stated in PERC’s notice of hearing should have been promulgated by rule, and that PERC abused its discretion by dismissing the appeal for failure to appear. We conclude that PERC prematurely dismissed Noone’s appeal, and reverse and remand for an evidentiary hearing. Noone was dismissed from his job with the Department of Corrections and filed an appeal with PERC, which served a notice on counsel for each party setting the case for hearing. Noone’s attorney appeared at the hearing, but Noone did not, although counsel announced she had mailed the notice to him. After the hearing officer waited an hour for Noone, and his attorney stated that she would not proceed without her client because he was her only witness, the hearing officer recommended that PERC dismiss the appeal.
Noone excepted, stating that he did not receive the notice:
The Employee has advised counsel that he was unaware that the hearing was scheduled to take place on November 17, 1998. Therefore, the Employee respectfully seeks an Order from this Commission rescheduling the evidentiary hearing in this case because he did not receive his copy of the notice of hearing.
PERC rejected Noone’s exceptions and affirmed the dismissal, concluding that employees are bound by the knowledge of, and are responsible for staying in contact with, their attorneys. Although PERC will afford a new hearing to an employee who has failed to appear at a hearing due to circumstances beyond his or her control, PERC concluded that Noone’s failure to appear was not the result of circumstance beyond his control.
In Bush v. Department of Corrections, 8 F.C.S.R. ¶ 184 (1993), and Patterson v. Department of Corrections, 8 F.C.S.R. ¶ 148 (1993), PERC affirmed the dismissal of career-service appeals when the employees’ attorneys appeared at their scheduled hearings, but the employees did not, claiming they did not receive the notice. In each case, PERC stated: “It is axiomatic that employees and their designated representatives have a duty to remain in contact with each other,” and that an employee’s unexplained' failure to remain in contact with his or her attorney or designated representative does not constitute a circumstance beyond his or her control. Bush, 8 F.C.S.R. at 640; Patterson, 8 F.C.S.R. at 480.
We conclude, however, that Noone’s exception did not provide sufficient information from which PERC could conclude that Noone was at fault for failing to keep in contact with his attorney. Noone should be given such opportunity at an evidentiary hearing before the hearing officer. The statement in PERC’s notice of hearing, which warns that an employee who fails to appear is subject to a recommended order of dismissal, would be at issue in a case where neither the employee nor his or her counsel (or qualified representative) appeared. Noone did appear through his attorney, who chose not to go forward with the appeal because she had no evidence to present. Hence, we do not reach the issue of whether the statement needed to be promulgated by rule.
REVERSED and REMANDED.
LAWRENCE and PADOVANO, JJ., CONCUR.