STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD LEE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2211

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

OFFICE OF DISABILITY )

DETERMINATIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on March 16, 1978, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, in Orlando, Florida. The parties were represented by counsel:

For Petitioner: Carlton L. Welch, Esquire

331 Laurina Street, No. 547 Jacksonville, Florida 32216

For Respondent: Douglas E. Whitney, Esquire

1350 North Orange Avenue Winter Park, Florida 32789

On respondent's behalf, John T. Herndon for Alvin Taylor wrote petitioner on October 5, 1977, demoting him from his "position as a Medical Disability Examiner Supervisor I to the position of Medical Disability Examiner with [respondent] . . . effective at 5:00 P.M. on Friday, October 7, 1977," and stated as grounds for the demotion that petitioner:

1. Took advantage of [his] position of trust as a supervisor to assist [himself] in purposely misdirecting claimant cases that might be reviewed for quality of work according to established sampling procedures.

2. Conducted [him]self in a manner not in keeping with the duties and responsibilities of [his] position.

3. Knowingly omitting and submitting inaccurate or untruthful information relating to the established reporting of cases for the quality review of [his] unit's work.

Petitioner made timely request for a hearing in connection with this action.

FINDINGS OF FACT

1. In 1955, the Department of Health and Rehabilitative Services (HRS) entered into a contract with the federal Social Security Administration under which HRS agreed to evaluate applications for social security disability benefits and to allow or disallow claims, accordingly. At the time of the hearing, respondent employed 343 persons who were involved in adjudicating some 2,500 cases every week. On the average, every claim allowed has a value of ninety thousand dollars ($90,000.00). From 1955 through 1972, every determination was reviewed in a central office in Baltimore, Maryland. Since then, as an economy measure required by federal legislation, review has been limited to more or less random samples and most determinations have gone unreviewed by anybody outside of the office making the determination.

   
   

2. The original means of choosing samples for review involved the selection of a one or two digit number, which was changed periodically. When applicants' social security numbers ended in the chosen numerals, their cases were sent to another office for review, after the initial determinations had been made. Under this system, the primary evaluators learned which cases would be reviewed, if they found out what digits were being used. This created possibilities for non-random samples. While the first sampling method was in effect, one of respondent's district supervisors, Robert Melcher, limited his review of determinations that had been made in HRS' Orlando office, which he headed, to the cases of applicants whose social security numbers ended in digits designated as calling for inclusion in samples to be mailed elsewhere for review. If one of these determinations struck him as problematic, he might direct that additional work be done with a view toward the matter's eventually being reconsidered. This sometimes had the incidental effect of delaying final processing in Orlando until a time when different digits had been announced for review samples purposes, so that the case escaped any review outside the Orlando office.

   
   

3. Petitioner is one of two unit supervisors who answer directly to Mr. Melcher. The other is Creighton Hoyt. Each unit supervisor supervises a team of medical disability examiners. Detailed statistics are kept with respect to the job performance of each medical disability examiner, each unit and each branch office in Florida. As one result, a definite rivalry between Unit I and Unit II has grown up in the Orlando office. James Drake, who has succeeded to the position vacated by petitioner's demotion, was formerly a medical disability examiner in Unit II, headed by Mr. Hoyt. Ms. Johnnie M. Sherrod worked as a medical disability examiner in Unit I, headed by petitioner. Harry Jackson Speir, Jr., also worked as a medical disability examiner in HRS' Orlando office, starting in June of 1973.

   
   

4. From 1975 until the time of the hearing, a second method of selecting samples for review purposes obtained in HRS' Orlando office, in accordance with national guidelines. Becky Bowman, a clerk IV or "coder," divided the files she received from the medical disability examiners and their supervisors into two piles. In one pile were files involving claims arising exclusively under Title II of the Social Security Act and in the other pile were files involving all other claims. Mrs. Bowman, who is technically directly answerable to Leon Simkins, in Tallahassee, was supervised on a day to day basis by petitioner and Mr. Melcher. She was told to pick every tenth, then, in February of 1977, every fourteenth case from the first pile for mailing to Tallahassee for quality assurance review; every thirtieth case in the first pile she was told to mail to Atlanta; and every fortieth case in the second pile Mrs. Bowman was told to mail to Baltimore. Although the procedures have stayed more or less constant since

   1975, the intervals at which cases were to be selected changed in February of 1977 and again in December of 1977. Originally, Mrs. Bowman only sorted, while Ms. Margaret Dingfelder prepared the files for mailing.

   
   

5. From time to time, Mr. Speir took cases he was working on to Mr. Melcher to ask for advice on difficult points. In three separate instances, Mr. Melcher said to Mr. Speir, referring to the case they were discussing, "This is one we don't want to go to Q.A. [the quality assurance section]," or words to that effect. In each instance, Mr. Speir attached a note to the case file before delivering it to Mrs. Bowman. The notes read something like "Not for Q.A." On one occasion, Mrs. Bowman asked Mr. Speir who had authorized bypassing quality assurance review and Mr. Speir told her that Mr. Melcher had authorized it.

   
   

6. Ms. Elaine Keir, who worked as Mr. Melcher's secretary from June of 1973 until October of 1976, remembers occasions when Mr. Melcher told medical disability examiners that more evidence should be gathered for a particular case. She remembers other occasions when Mr. Melcher told medical disability examiners to see that a particular case was not included in the quality assurance review sample. She had the impression that Mr. Melcher, who was concerned that his office's processing time statistics compare favorably with other branch offices' statistics, asked for further evidence in cases that relatively little time had been spent on, while suggesting bypassing review procedures in cases in which considerable time had already been expended but in which problems persisted nonetheless.

   
   

7. From time to time, petitioner Lee, who began work with respondent as a medical disability examiner supervisor in May of 1973, received instructions from Mr. Melcher, his immediate supervisor, to see that a particular file was not sent for quality assurance review. Aware of the impropriety of interfering with sampling procedures intended to ensure randomness, petitioner began, on March 18, 1976, to keep a record of Mr. Melcher's requests. He received 22 such requests through September of 1977. Initially, petitioner attached a note to any file designated by Mr. Melcher as one to be diverted. The notes read "No Q.A." and were intended as directives to Mrs. Bowman. Mrs. Bowman, also aware of the impropriety of sabotaging the sampling procedures, suggested to petitioner that he dispense with the notes. At her suggestion, petitioner began laying files sideways in a tray on Mrs. Bowman's desk, whenever he had been told by Mr. Melcher that a file should not be sent elsewhere for review. Petitioner never indicated to Mrs. Bowman in any way that a case should be diverted from a quality assurance review sample, unless Mr. Melcher had first directed him to do so. On three occasions, Ms. Sherrod heard Mr. Melcher tell petitioner to see that Mrs. Bowman did not include cases in quality assurance review samples.

   
   

8. In August or September of 1977, James Drake noticed a file turned sideways in a tray on Mrs. Bowman's desk. When he started to move it, she stopped him, saying that petitioner wanted the case routed around quality assurance review. Mr. Drake reported this incident to Mr. Hoyt, upon the latter's return from vacation. Mr. Hoyt, who had earlier heard a similar story from his secretary, summoned Mrs. Bowman to his office and listened to her confirm the reports that had preceded her. On September 21, 1977, Mr. Hoyt wrote Mr. Melcher a memorandum entitled "Inequities existing between Unit I & Unit II, in which he set out, inter alia, what he had been told by Mrs. Bowman.

   
   

9. Mr. Hoyt sent a copy of this memorandum to James C. Russ, which resulted in Mr. Russ' investigating the charges. Inasmuch as petitioner admitted what he had done, Mr. Russ' investigation was short and

   straightforward. Petitioner did not accuse Mr. Melcher when he was originally interrogated on these matters, and Mr. Melcher denied complicity. Petitioner's superiors greeted petitioner's accusation with skepticism when it did come.

   They nonetheless conducted a somewhat perfunctory second investigation, which apparently failed to uncover sufficient evidence to satisfy them that Mr.

   Melcher had indeed directed petitioner to divert certain cases, so that they would not be included in quality assurance review samples. Even so, Mr.

   Melcher's superiors did reprimand Mr. Melcher, orally and in writing, for the part they perceived him to have played in these events.

   
   

   CONCLUSIONS OF LAW

   
   

10. Pursuant to Rule 22A-7.07(6), Florida Administrative Code, petitioner, who has attained permanent status in accordance with Rule 22A-7.04, Florida Administrative Code, has a right to appeal his demotion to the Career Service Commission. The specifications set forth in respondent's letter of October 5, 1977, boil down to a charge of "purposely misdirecting claimant cases" and of using apparent supervisory authority to enlist Mrs. Bowman's assistance in misdirecting cases. These allegations constitute allegations of misconduct within the meaning of Rule 22A-7.10(7)(b), Florida Administrative Code. The allegations were proven and just cause for disciplinary action was thereby established, even though petitioner was only following Mr. Melcher's orders.

    
    

11. Under former law, with respect to the question of severity of the penalty, "The agency ha[d] sole discretion . . ." Florida A & M University v. Lewis, 327 So.2d 862 (Fla. 1st DCA 1976). As long as there was just cause for disciplinary action, it was not for the Division of Administrative Hearings or the Career Service Commission to pass on the severity of the action taken. Id. By enacting Chapter 77-370, Laws of Florida, however, the Legislature provided that the Commission "may, in its discretion, reduce a dismissal to a suspension

    . . . ." Section 110.061 (3)(b), Florida Statutes (1977), or "[r]educe the period of a suspension." Section 110.061(3)(c), Florida Statutes (1977) . In using this language, the Legislature intended to confer synecdochically on the Commission general authority to reduce penalties the Commission deems too harsh (but the Legislature has conferred on the Commission no authority to increase penalties the Commission deems too lenient)

    
    

12. It is difficult to overstate the gravity of petitioner's misconduct. Considered apart from the treatment fellow workers received, petitioner's misconduct might well merit dismissal. It is impossible to overlook the fact, however, that petitioner's supervisor, at whose instance he acted, received only a written reprimand, while Mrs. Bowman was not disciplined at all. In these circumstances, the injustice of singling petitioner out for substantially more severe punishment is manifest.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent rescind petitioner's demotion, and issue a written reprimand to petitioner instead.

DONE and ENTERED this 19th day of April, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Carlton L. Welch, Esquire

331 Laurina Street, No. 547 Jacksonville, Florida 32216

Douglas E. Whitney, Esquire 1350 North Orange Avenue Winter Park, Florida 32789

Mrs. Dorothy B. Roberts Appeals Coordinator

530 Carlton Building Tallahassee, Florida 32304

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER (AGAINST SUSPENSION)

=================================================================

STATE OF FLORIDA CAREER SERVICE COMMISSION

IN THE APPEAL OF RICHARD LEE, AGAINST SUSPENSION

Petitioner,

vs. CASE NO. 77-2211

BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, OFFICE OF DISABILITY DETERMINATIONS,

Respondent.

/

FINAL ORDER

This cause came on to be considered upon Motion filed herein by counsel for the Appellant requesting the Commission to amend its Opinion and Order dated May 31, 1978, in which it adopted the Order of the Hearing Officer dated April 19, 1978, entered by Robert T. Benton, II, and due to a scrivener's error the Opinion and Order referred to a suspension instead of demotion.

Accordingly, it is

ORDERED that in each instance when this Commission's Order dated May 31, 1978, refers to suspension, it shall be amended to read demotion, and the Agency shall comply forthwith.

DONE and ORDERED this 31st day of July, A.D., 1978.

Decision: Unanimous CATHERINE W. CHAPIN, Chairman Career Service Commission

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Order was forwarded by United States Mail this 15th day of August, A.D., 1978 to Carlton L. Welch, Attorney at Law, 331 Laurina Street, #547, Jacksonville, Florida 33316; Douglas E. Whitney, Attorney at Law, 1350 North Orange Avenue, Winter Park, Florida 32789; Richard Lee, 201 Jamestown Drive, Winter Park, Florida 32792; Robert T. Benton, II, Division of Administrative Hearing, Room 530, Carlton Building, Tallahassee, Florida 32304; and James Wacksman, Department of Health and Rehabilitative Services, Winewood Boulevard, Tallahassee, Florida 32304.

Career Service Commission By: Carolyn Bellis

================================================================= AGENCY FINAL ORDER (AGAINST DEMOTION)

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN THE APPEAL OF RICHARD LEE, AGAINST DEMOTION

Petitioner,

vs. CASE NO. 77-2211

BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, OFFICE OF DISABILITY DETERMINATIONS,

Respondent.

/

FINAL ORDER

Chairman Catherine W. Chapin and Members Dana D. Chapman and Edward T. Quigley participating.

This cause came on to be considered upon recommended order entered herein by Robert T. Benton, II, Hearing Officer, dated April 19, 1978, and Objections to Recommended Order filed herein by the agency, Department of Health and Rehabilitative Services. Having considered the Recommended Order and the Objections to the Recommended Order filed herein by counsel for the Agency, and it appearing to this Commission that the findings of fact and conclusions of law incorporated in the Recommended Order entered by the Hearing Officer are proper and should be adopted by this Commission, it is

ORDERED that the Recommended Order dated April 19, 1978, signed by Robert

T. Benton, II, Hearing Officer, be and the same is hereby adopted by this Commission and incorporated herein by reference. It is further

ORDERED that the suspension imposed by the Agency upon the Appellant be and the same is hereby reversed and the Agency shall reimburse the Appellant for any wages lost as a result of said suspension. This Commission would recommend that the Agency might consider less punishment than the suspension, such as a written reprimand. It is further

ORDERED that the Appellant, Richard Lee, shall be entitled to any and all benefits accruing to a Career Service employee during the period of his suspension, including the earning of sick and annual leave.

DONE AND ORDERED this 31st day of May, A.D., 1978.

CATHERINE W. CHAPIN, Chairman

Career Service Commission

CERTIFICATE OF SERVICE

I hereby certify that copy of the foregoing opinion and order was forwarded by United States Mail this 2nd day of June, A.D., 1978, to Carlton L. Welch, Attorney at Law, 331 Laurina Street, #547, Jacksonville, Florida 33316; Douglas

E. Whitney, Attorney at Law, 1350 North Orange Avenue, Winter Park, Florida 32789; Carol Webb, Executive Director, Administrative Procedures Committee, Room

120 Holland Building, Tallahassee, Florida; Richard Lee, 201 Jamestown Drive, Winter Park, Florida 32792; and Mr. Robert T. Benton, II, Division of Administrative Hearings, Room 530 Carlton Building, Tallahassee, Florida 32304.

CAREER SERVICE COMMISSION

By: Carolyn J. Bellis

Docket for Case No: 77-002211

Orders for Case No: 77-002211