STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. DURDEN, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1739

) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 19 August 1982 at Tallahassee, Florida.

APPEARANCES

For Petitioner: H. Reynolds Sampson, Esquire

327 Magnolia Office Plaza Tallahassee, Florida 32301

For Respondent: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

By letter dated 7 May 1982 John L. Durden, Petitioner, by and through his attorney, requests an administrative hearing to contest the Florida Department of Transportation (DOT) Respondent's denial of his request for adjustment of his leave balances. In an undated Petition, Petitioner claims an additional 562 hours of annual leave and 529 hours of sick leave should have been credited to his accounts.

At the hearing Petitioner testified in his own behalf, Respondent called two witnesses, and 19 exhibits were admitted into evidence. The facts are generally undisputed.

FINDINGS OF FACT

1. John L. Durden, Petitioner, was initially employed by the State Road Department (SRD), the predecessor agency to Respondent, on September 29, 1952. He left the SRD on June 30, 1955, and was employed by the Florida Turnpike Authority (FTA) on July 1, 1955.

   
   

2. Petitioner was employed by the FTA until October 9, 1958, and was reinstated at the SRD on October 10, 1958, and has been continually employed by this agency and Respondent.

3. At the time Petitioner terminated his employment with the SRD, the Merit System in Florida had not commenced although the law became effective on June 20, 1955, when signed by the Governor. The Merit System became applicable to a state agency when that agency was so designated by the Governor. During the period Durden was employed by the FTA that agency was not placed under the Florida Merit System, but the SRD was placed under the Merit System. Accordingly, when Durden returned to the SRD in 1958, he became covered under the Florida Merit System.

   
   

4. Leave policies in effect during the period between 1952 and 1958 provided that an employee earned annual leave at the rate of one working day per month during the first ten years of creditable service and one and one-quarter working days per month from the commencement of the eleventh year of creditable service. After state agencies came under the Merit System, State Personnel Rules promulgated thereafter were applicable only to agencies under the Merit System. When Petitioner returned to the SRD in 1958, there was no provision in the statutes or rules whereby Petitioner could use his prior service with the SRD or his service with the FTA to accrue ten years' creditable service for the purpose of computing earned leave. Accordingly, the entry on his personnel records that he would complete ten years' creditable service in 1968 was correct.

   
   

5. In 1968 the personnel rules were changed to allow an employee, working for an agency under the Merit System, to earn ten hours of annual leave per month after five years of continuous and creditable service and twelve hours of annual leave after ten years of continuous and creditable service. These rules specifically provided they would have no retroactive application (Exhibit 11). In 1968 Petitioner completed ten years of continuous and creditable service with the SRD and earned leave in accordance with these rules.

   
   

6. At the time Petitioner tendered his resignation to the SRD to accept employment with the FTA sick leave could not be transferred to a different agency. When Petitioner left FTA to return to SRD, any sick leave Petitioner had accrued at the FTA could not be transferred to the SRD because the FTA was not under the Merit System.

   
   

7. The FTA was made a state agency by the Legislature when the FTA was created in 1953 Section 340.05, Florida Statutes (1955), but, as noted above, its employees were never covered by the Merit System.

   
   

8. The pay records maintained by the Comptroller show that Petitioner was paid by state warrant issued from the Comptroller's office from 1952 until 1955 and from 1958 to the present. This indicates that FTA employees were not paid from appropriated funds but from revenues (or bonds) from the Turnpike.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. In 1955 when Petitioner resigned from the SRD to work for the FTA, the sick leave he had accrued could not be carried over to the new agency and was lost. When Petitioner returned to the SRD in 1955, he started with zero hours annual leave and zero hours sick leave balances. He accrued both annual and sick leave from that time forward in accordance with the rules and regulations in effect at the time these leave credits were earned.

11. From the foregoing it is concluded that Petitioner's leave records accurately reflect his balances of both annual and sick leave and no adjustment is indicated. It is, therefore,

RECOMMENDED that Petitioner's claim for additional annual and sick leave credits be denied.

ENTERED this 16th day of September, 1982, at Tallahassee, Florida.

K. N. AYERS, 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 16th day of September, 1982.

COPIES FURNISHED:

H. Reynolds Sampson, Esquire

327 Magnolia Office Plaza Tallahassee, Florida 32301

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 82-001739

Orders for Case No: 82-001739