STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND )

EMPLOYMENT SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-410

) COLLIER COUNTY BOARD OF COUNTY ) COMMISSIONERS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on August 24, 1982. The parties' substitution of stipulated statement of facts was received by the Division of Administrative Hearings on September 2, 1982. The parties were represented by counsel:

APPEARANCES

For Petitioner: Chad J. Motes, Esquire

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301

For Respondent: Kenneth B. Cuyler, Esquire

County Attorney's Office Collier County Courthouse Naples, Florida 33942

This controversy arises out of an audit petitioner conducted of Collier County's Comprehensive Employment and Training Act (CETA) Program. Counsel are to be commended for their considerable efforts before hearing in narrowing the dispute to the following

ISSUES

Whether appropriate documentation shows total family income for a Mr.

Taylor of $7,820 or less for the year before he began work with Collier County's CETA Program? At stake is reimbursement for Mr. Taylor's salary ($1,993) and certain fringe benefits ($221).

Whether petitioner should reimburse respondent for a CETA worker's salary ($1,166) and fringe benefits ($170) where the worker's annualized income exceeded the limit in effect when he applied, but not when he began employment (because the limit was raised after he applied), even though this fact was never reflected on his application?

Whether petitioner should reimburse respondent for salaries ($6,322) and fringe benefits ($589) respondent paid to and for CETA workers who were Cuban or Haitian refugees?

FINDINGS OF FACT

1. No evidence was offered as to Mr. Taylor's income nor as to any documentation respondent may have received with respect to his income at the time he applied for employment with CETA. The parties stipulated that both his salary ($1,993) and his fringe benefits ($221) should be disallowed, in the absence of documentation of his income.

   
   

   THE OTHER U.S. NATIONAL

   
   

2. With respect to another CETA worker (participant), the parties stipulated, in haec verba:

   
   

   Respondent received participant's applica- tion on May 6, 1980. On that date, partic- ipant's annualized income exceeded the limit then in effect.

   
   

   Participant was found by Respondent to

   be ineligible and was not enrolled in the program at that time.

   
   

   Subsequent to May 6, 1980, the qualifying annualized income limit was increased. Re- spondent reviewed participant's application of May 6, 1980 and found that participant was eligible to participate under the in- creased annualized income limit. Respon- dent recalled participant for enrollment

   in the program.

   
   

   Applicable regulations required Respondent to update participant's May 6, 1980 appli- cation on the date of enrollment to reflect any change in eligibility criteria or any change in participant's circumstances which may have occurred since the date of partic- ipant's May 6, 1980 application.

   
   

   Respondent did not update the May 6, 1980 application of participant upon her enroll- ment. Therefore, the application audited by Petitioner showed on its face that par- ticipant was ineligible to participate in Respondent's program on the date of appli- cation.

   
   

   THE REFUGEES

   
   

3. Aridas Vega, a Cuban national, held a "green card," Immigration and Naturalization Form 1-94 (Arrival-Departure Record) dated May 30, 1980, when he began working for respondent's CETA Program on July 8, 1980. He received a salary of $957 and fringe benefits worth $91. Almondo Riol, a Cuban national,

   held a green card dated July 2, 1980, when he began working for respondent's CETA Program on June 24, 1980. He received a salary of $1,751 and fringe benefits worth $176. Maria Santiesteban, a Cuban national, held a green card dated May 30, 1980, when she began working for respondent's CETA Program on July 3, 1980. She received a salary of $1,558 and fringe benefits worth $142. Juan Crespo, a Cuban national, held a green card dated June 21, 1980, when he began working for respondent's CETA Program on July 17, 1980. He received a salary of

   $1,034 and fringe benefits worth $94. On August 31, 1980, Silva Condominia and Noel Por, of Cuban or Haitian nationality, began working for respondent's CETA Program. Silva Condominia, who held a green card dated July 2, 1980, received a salary of $97. Noel Por, who held a green card dated July 17, 1980, received a salary of $87. Neither received fringe benefits.

   
   

4. Altogether, in the spring and summer of 1980, some 120 to 150 Cuban or Haitian refugees applied for employment in respondent's CETA Program. On receipt of the first of these applications, Jim Meerpohl, the program director, spoke to somebody with the Immigration and Naturalization Service who advised him that a refugee holding a green card could lawfully work for wages in this country. He sought advice from petitioner's Bill Heacock and consulted the Dade County CETA intake coordinator. Mr. Heacock told him to do the best he could, so they applied the CETA regulations, including the provisions that declared recipients of public assistance eligible for CETA employment. Most, if not all, of the refugees named above received public assistance at the time they began working for CETA. In every instance, the applicant met appropriate CETA eligibility guidelines. Respondent's Exhibit No. 1.

   
   

5. On June 25, 1980, the Employment and Training Administration of the

   U.S. Department of Labor telegraphed all regional administrators that Cuban refugees

   
   

   WOULD BE ELIGIBLE FOR CETA SERVICES IF THEY MEET THE RESPECTIVE ELIGIBILITY REQUIREMENTS OF THE TITLE FOR WHICH THEY ARE APPLYING AND PRESENT APPROPRIATE DOCUMENTATION FROM THE IMMIGRATION AND NATURALIZATION SERVICES WHICH INDICATES THAT EMPLOYMENT IS AUTHORIZED. . . DIRECTIVES WITH MORE DETAILED INFORMATION

   WILL BE ISSUED IN THE NEAR FUTURE. Petitioner's

   Exhibit No. 2.

   
   

   On September 4, 1980, the Employment and Training Administration of the U.S. Department of Labor directed Field Memorandum No. 392-80 to all regional administrators. Under the heading "Length of Unemployment," the memorandum stated

   
   

   when determining the eligibility of a Cuban and Haitian Entrant the prime sponsor shall begin computing the length of unemployment on the day the applicant is authorized by INS to accept employment. Joint Exhibit No. 1.

   
   

   On September 29, 1980, petitioner's employee Ernest S. Urassa wrote Mr. Meerpohl "in response to [his] telephone inquiry and . . . [a] letter from . . . [his] staff concerning the CETA eligibility of Cuban and Haitian refugees," Petitioner's Exhibit No. 1, enclosing Field Memorandum No. 392-80. Mr. Urassa's letter was received on October 3, 1980, and on that date each of the refugees

   named above was terminated from CETA employment, because none of them had held a green card as long as 15 weeks before beginning CETA employment. CETA regulations required applicants to have been unemployed 15 out of the 20 weeks next preceding CETA employment.

   
   

6. In a schedule of costs recommended for disallowance, the auditor "recommend[ed] that [respondent] verify regulations on a more timely basis" in order to insure eligibility," Petitioner's Exhibit No. 2, of CETA applicants.

   
   

   CONCLUSIONS OF LAW

   
   

7. The parties declined to put in evidence the contract between them; its provisions have not been established for purposes of this proceeding.

   
   

8. In accordance with the parties' stipulation, in the absence of appropriate documentation, there is no basis for reimbursement of Mr. Taylor's salary or for the fringe benefits paid on his account.

   
   

9. As to the other U.S. national, the auditor understandably questioned his employment, based on the income criteria at the time of the application, reflected on the application form. But the parties stipulated that he became eligible, when the income limit was raised, even though the raised limit was never noted on the form. This technical omission should not be determinative, in view of the parties' agreement that his income ceased to be disqualifying, before he began employment with CETA.

   
   

10. Finally, as to the refugees employed by respondent before petitioner advised that they were ineligible, it is clear that respondent's conduct was eminently reasonable, under the circumstances.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

Petitioner shall reimburse respondent eight thousand two hundred forty- seven dollars ($8,247).

DONE AND ENTERED this 23rd day of September, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 23rd day of September, 1982.

COPIES FURNISHED:

Chad J. Motes, Esquire Department of Labor and

Employment Security

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301

Kenneth B. Cuyler, Esquire County Attorney's Office Collier County Courthouse Naples, Florida 33942

Wallace E. Orr, Secretary Department of Labor and

Employment Security

Suite 206, Berkeley Building

2590 Executive Center Circle, East Tallahassee, Florida 32301

Docket for Case No: 82-000410

Orders for Case No: 82-000410