STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORVIL OWNBY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-261

) DEPARTMENT OF TRANSPORTATION and ) CAREER SERVICE COMMISSION, )

)

Respondent. )

) ROSCO HOMER CLEAVENGER, )

)

Petitioner, )

)

vs. ) CASE NO. 77-447

) DEPARTMENT OF TRANSPORTATION and ) CAREER SERVICE COMMISSION, )

)

Respondent. )

) JOE FRANCIS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-448

) DEPARTMENT OF TRANSPORTATION and ) CAREER SERVICE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

The above-styled cases were consolidated for hearing and heard in the Conference Room of the Department of Transportation Building, 780 SW 24th Street, Ft. Lauderdale, Florida, at 1:00 p.m. on October 27, 1977, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. These cases were referred to the Division of Administrative Hearings by the Career Service Commission to conduct the formal hearing. The issue is whether the reduction in pay of the appellants was for good cause.

APPEARANCES

For Petitioner: Ronald A. Silver, Esquire

(Orvil Ownby) Suite 204, 2020 Northeast 163rd Street

North Miami Beach, Florida 33162

For Respondent: Phillip S. Bennett, Esquire

Haydon Burns Building Tallahassee, Florida 32304

For Themselves: Rosco Homer Cleavenger and

Joe Francis

FINDINGS OF FACT

1. Joe Francis, Orvil Ownby, and Roscoe Cleavenger are all permanent Career Service Commission employees with appeal rights to the Career Service Commission.

   
   

2. The appellants each filed a timely appeal of their reduction in pay by the Department of Transportation with the Career Service Commission.

   
   

3. The parties stipulated to the following facts:

   
   

   1. The reduction of the pay of the appellants was not a disciplinary

      action.

      
      

   2. Under protest, some employees have paid back money allegedly

      overpaid, and other employees are in the process of paying back money allegedly overpaid.

      
      

   3. The performance of all the affected employees was rated as satisfactory or above, and no basis existed for any reduction in pay due to unsatisfactory performance.

      
      

   4. All the affected employees initially had their pay reduced to the "current" maximum salary. Thereafter, those employees who did not elect to pay the money back in a lump sum had their pay reduced by a fixed amount to repay monies allegedly overpaid, or alternatively, the employees have made similar monthly payments by personal check to the State under protest.

      
      

   5. Exhibits A through E were admitted into the record together with the entire personnel file of each appellant.

      
      

4. In 1972, Jay McGlon, then State Personnel Director, authorized employees in the classes of Maintenance Foreman II to be changed from pay class

   16 to pay class 17. Similar authorization was given to change Sign Erector Foreman from pay class 16 to pay class 17. Pay class 17 had a pay range of

   $544.62 to $744.72. This adjustment in pay class was effective November 16, 1972, pursuant to McGlon's letter of authorization. See Exhibit A.

   
   

5. In the instant case, the affected employees were being paid a geographical pay differential. When their pay was increased by the difference between the minimum salary of the class of which they had been a member and the minimum salary of the class to which they were raised, their adjusted pay, together with the geographical pay differential, exceeded the maximum pay range of the new class.

6. On October 30, 1975, Conley Kennison, McGlon's successor as State Personnel Director, wrote David Ferguson, personnel officer of the Department of Transportation. This letter was in response to Ferguson's letter of May 23, 1975, requesting retroactive approval of a $16.00 biweekly pay adjustment, effective November 16, 1972, for all Dade County employees in the classes of Highway Maintenance Foreman II and Sign Erector Foreman II. In this letter, Kennison cites that the pay increases were not in accordance with the final implementation instructions. However, from the text of this letter, it is unclear whether the instructions referred to relate to the salary increases or the geographical pay differentials discussed in the letter. Kennison, in this letter, denies the request made by Ferguson and directs that steps be initiated to recover the overpayments to employees. Two weeks were given for the Department of Transportation to inform Kennison the method by which the overpayments would be recovered and the amounts owed by individual employees to which overpayment had allegedly been made. It was determined that Cleavenger owed $971.74, Francis owed $821.30, and Ownby $600.01. The Department of Transportation reduced the pay of the affected employees by $16.00 per pay period in order to recover the amount of the overpayment. This reduction occurred effective the first pay period following December 5, 1975.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Career Service Commission is granted authority to review any reduction in the rate of pay of a Career Service Employee pursuant to the provisions of Section 110.061, Florida Statutes, and Rule 22A-2.10, Florida Administrative Code. The Appellants had their pay rate reduced, therefore, the Career Service Commission has authority to review the action to determine if it were taken for good cause.

   
   

8. Rule 22-A-2.24, F.A.C., empowers the State Personnel Director to determine what corrective actions shall be taken to correct violations of Chapter 2 of the Personnel Rules. The agency is required by this rule to correct the violation, regardless of whether the action was intentional or an oversight.

   
   

9. The letter of the State Personnel Director, dated October 30, 1975, directing the agency to take action to recover the amount of the overpayment does not state the specific rule violated. In paragraph two of this letter there is an indication that the adjustment of pay to employees who were already receiving competitive geographic pay differentials was not in accordance with the final implementation instructions. From the text of the letter, it is unclear whether the instructions referred to related to the pay grade adjustments or to the geographical pay differentials. In paragraph four of this letter there is an indication that no authority was granted to implement pay adjustments in an amount equal to the difference between the differential approved and the statewide minimum for pay grade 17 for employees in the classes of Highway Maintenance Foreman II and Sign Erector Foreman in Dade, Broward, and Palm Beach Counties.

   
   

10. A review of Chapter 22A-2, F.A.C., does not reveal any procedures for upward pay increases when competitive geographic pay differentials are in effect. No specific rule is cited as having been violated in the State Personnel Director's letter of October 30, 1975. At hearing, the agency did not cite any additional authority which had been violated. Rule 22A-2.22, F.A.C., provides that upward adjustments in pay will be effective on the date specified

    by the State Personnel Director when a pay class is increased. McGlon authorized this increase and it was paid.

    
    

11. The provisions of Rule 22A-2.24, F.A.C., provide that the State Personnel Director shall determine the corrective actions to be taken and notify the head of the agency accordingly when it is determined that the agency has violated any part of Chapter 2 of the State Personnel Rules. A review of Chapter 2 of the State Personnel Rules in effect in 1972 and now, reveals no rule requiring special authorization to implement a pay increase due to an upward adjustment in pay class when competitive geographical pay differentials are in effect. In the absence of such a rule restricting increases in pay or requiring special authorization, there is no violation of Chapter 22A-2. Therefore, State Personnel Director is without authority to direct an agency head to take corrective action. Because the action taken by the agency was at the direction of the State Personnel Director, who in this instance lacked authority to mandate a reduction, this action is not for good cause.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Career Service Commission rescind the action taken by the agency, and that all monies collected from the affected employees be returned to them.

DONE and ORDERED this 17th day of January, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Phillip S. Bennett, Esquire Mrs. Dorothy Roberts Department of Transportation Appeals Coordinator Haydon Burns Building Career Service Commission Tallahassee, Florida 32304 530 Carlton Building

Tallahassee, Florida 32304

Ronald A. Silver, Esquire

2020 Northeast 163rd Street, S204 Joe Francis North Miami Beach, Florida 33162 3830 Day Avenue

Coral Gables, Florida

Rosco Homer Cleavenger 1901 N.W. 107th Street Miami, Florida 33167

Docket for Case No: 77-000261

Orders for Case No: 77-000261