STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGG L. FOX )

)

Petitioner, )

)

vs. ) CASE NO. 86-3789

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, Sharyn L. Smith, held a formal administrative hearing in this case on December 10, 1986, in Tallahassee, Florida. The parties were represented as follows:

APPEARANCES

For Petitioner: Gregg L. Fox, pro se

2509 Killarney Way

Tallahassee, Florida 32308

For Respondent: Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

The issue in this case is whether the Petitioner Gregg L. Fox, was properly awarded a salary increase pursuant to Senate Bill 1300, Chapter 85-119, Laws of Florida.

The parties filed Proposed Recommended Orders. No transcript of hearing was prepared. Ruling on the parties' Proposed Findings of Fact are contained in the Appendix which is attached to this Recommended Order.

At the final hearing, Petitioner's Exhibits 1-6 were offered and Respondent's Exhibits 1-6, 8, 10-14 and 16 were admitted into evidence. Ruling was reserved on Respondent's Exhibits 7, 9 and 15, which are hereby admitted into evidence.

FINDINGS OF FACT

1. At all pertinent times, the Petitioner Fox was employed by the Department of Labor and Employment Security in Position Number 02076, class title, Unemployment Executive II.

2. Petitioner's latest appointment to the Career Service was prior to July 1, 1972. Under the terms of the Governor's Recommendations for Implementation of the 1985-86 Fiscal Year Performance Incentive Increase, Petitioner's anniversary date was adjusted from October 30, 1985 to July 1, 1985.

   
   

3. On July 25, 1985, the Petitioner was evaluated by his supervisors as "Exceeds Performance Standards."

   
   

4. Petitioner qualified for and received a Performance Incentive Pay Increase, which advanced his base pay rate from $2,950.79 to $3,043.26 per month, the maximum for his class. The percentage increase equaled .03133737 of Petitioner's base salary.

   
   

5. Petitioner received this increase without protest. No administrative, legal, or grievance action was filed by Petitioner challenging the propriety of his agency's calculation of the Performance Incentive Increase.

   
   

6. On January 1, 1986, all Career Service pay ranges were increased pursuant to the Fiscal Year 1985-86 General Appropriations Act. This had the effect of increasing the maximum rate which could be paid to members of the Career Service System. As a result of the increase, Petitioner was once again below the maximum of the pay range. Petitioner's supervisor submitted an additional personnel action form, which sought an amount which would bring Petitioner's total performance incentive increase to five percent of his June 30, 1986, base salary. That increase equaled $55.07 per month for the months of January, 1986, through June, 1986. Plaintiff is, therefore, seeking a total additional salary increase of $330.42.

   
   

7. At the time Petitioner received his July, 1985, pay increase, he was informed by certain Department of Labor and Employment Security officials that an additional performance incentive increase could be granted if the pay grade was subsequently adjusted and the maximum pay allowed for the class was increased.

   
   

8. The Petitioner's supervisor within his agency apparently based this assumption on oral information which had been received from an unidentified individual within the Department of Administration.

   
   

9. At the same time, the Bureau Chief of Classification and Pay within the Department informed agency personnel offices that such an increase was not authorized.

   
   

10. By letter dated February 3, 1986, Don Bradley, Chief, Classification and Pay for the Department of Administration, officially advised the Department of Labor and Employment Security that the requested additional performance incentive increases could not be approved.

    
    

11. Final Department of Administration action was taken by letter from Secretary Lambert to Secretary Wallace Orr dated June 20, 1986, which denied a special pay increase request in order to maintain fairness among all the departments.

    
    

12. In anticipation of the adjustment to the maximum pay ranges, certain personnel officers within the agencies elected to postpone granting employee pay raises until after January 1, 1986. By doing so, they avoided running afoul of the Governor's Recommendation which states that "no employee shall be eligible to receive more than one merit salary advance during fiscal year 1985-1986."

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties to, and subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1985).

    
    

14. The Secretary of Administration is responsible for establishing and maintaining an equitable pay plan for all classes of positions in the Career Service. See Section 110.209, Florida Statutes (1985).

    
    

15. Paragraph 5., Section 5 of Chapter 85-119, Laws of Florida, provides in pertinent part:

    
    

    Funds for Performance Incentive Increases are provided in Specific Appropriation 8A for all eligible Career Service employees. Distribution of these funds to Career Service employees who are not assigned to a step pay plan is not subject to the four criteria cited in the Governor's 1985-86 Salary and Benefit Increase Recommendations.

    Career Service employees who are assigned to a step pay plan and whose current performance appraisal "exceeds performance standards" are eligible for a Performance Incentive Payment in an

    amount not less than three percent (3 percent) or greater than five percent (5 percent) of A each employee's base salary effective on

    the employee's anniversary date to be implemented as recommended by the Governor. (Emphasis Supplied)

    
    

16. The Governor's Recommendation provided the merit salary advancements could not cause an employee to exceed the maximum of the salary range. If an otherwise eligible employee was at or above the maximum salary range, the employee could not receive the salary increase until "the salary range maximum exceeds the employee's base salary."

    
    

    Importantly, the Governor recommended that:

    ... No employee shall be eligible to receive more than one merit salary advancement during Fiscal Year 1985-86...

    
    

17. Effective July 1, 1985, the Petitioner received one performance incentive increase as authorized by law. It clearly exceeded three percent and was less than five percent of his base salary, did not exceed the maximum of his pay range, was based on an evaluation of Exceeds Standards, and was given after the reestablished anniversary date.

    
    

18. Petitioner seeks an additional pay increase of 1.8 percent because his pay range increase would now permit it. However, to authorize an additional pay increase would violate the prohibition in the Governor's Recommendation concerning a single pay raise. No additional increase was or could have been promised at the time Petitioner received his first pay increase.

19. Petitioner's situation is unfortunate and has arisen through no fault of his. In the future, this problem could be avoided by the Department either electing as soon as possible after the close of the legislative session to adjust Career Service pay ranges or informing agency personnel officers of the option of delaying pay raises until after the maximums are adjusted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's request for an A additional $330.42

salary increase be DENIED.

DONE and ENTERED this 7th day of May, 1987 in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1987.

APPENDIX

Petitioner's Proposed Findings of Fact numbered 1-9 have been accepted as modified.

Respondent's Proposed Findings of Fact have been accepted, with the exception of those portions of the unnumbered paragraphs rejected as not being germane to this proceeding.

COPIES FURNISHED:

Gregg L. Fox

2509 Killarney Way

Tallahassee, Florida 32308

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 86-003789

Orders for Case No: 86-003789