STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES GOMIA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2504

) DEPARTMENT OF MANAGEMENT SERVICES, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 29, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Harry H. Mitchell, Esquire

103 North Gadsden Street Tallahassee, Florida 32301

For Respondent: Burton M. Michaels

Assistant Division Attorney Division of Retirement

Department of Management Services Cedars Executive Center

Building C

2639 North Monroe Street Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUES

Whether certain payments received by the Petitioner, James Gomia, from the Leon County Clerk of Court subsequent to July 1, 1989, constitute creditable "compensation" within the meaning of Rule 22B-6.001(16), Florida Administrative Code, for purposes of determining Mr. Gomia's retirement benefits.

PRELIMINARY STATEMENT

The Respondent, the Department of Management Services, Division of Retirement (hereinafter referred to as the "Department"), notified the Petitioner, James Gomia, by letter that certain payments Mr. Gomia had received from the Leon County Clerk of Court did not constitute creditable "compensation" for purposes of determining Mr. Gomia's retirement benefits. Mr. Gomia challenged the Department's determination by filing an Amended Petition for Formal Proceeding dated April 13, 1992, with the Department. Mr. Gomia's amended petition was forwarded by the Department to the Division of Administrative Hearings along with a Notice of Election to Request Assignment of

Hearing Officer on April 27, 1992. The matter was assigned to the undersigned and scheduled for a final hearing to be conducted June 29, 1992.

At the final hearing Mr. Gomia testified on his own behalf and presented the testimony of Raymond S. Hurst, Jr., and Paul F. Hartsfield, Leon County Clerk of Court. Mr. Gomia also offered one exhibit which was accepted into evidence.

The Department presented the testimony of Cathy Smith. The Department also offered six exhibits, including the deposition testimony of Mr. Hurst and Mr.

Hartsfield, which were accepted into evidence.

Official recognition of Sections 121.021 and 215.425, Florida Statutes, and Chapter 22B-6, Florida Administrative Code, was taken.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. Mr. Gomia's Employment.

   
   

   1. The Petitioner, James Gomia, has been employed by the Clerk of Court in and for Leon County, Florida, for the past eleven years.

      
      

   2. At all times relevant to this proceeding, Mr. Gomia has been employed as an Assistant Finance Director and Deputy Clerk.

      
      

   3. By virtue of his employment with the Clerk's office Mr. Gomia is eligible to participate in the Florida Retirement System pursuant to Chapter 121, Florida Statutes.

      
      

2. Mr. Gomia's Compensation.

   
   

   1. At all times relevant to this proceeding, Mr. Gomia received a monthly base salary from his employment with the Clerk's office.

      
      

   2. The Clerk's office operates for budget purposes on a fiscal year which begins October 1st and ends September 30th.

      
      

   3. In addition to his base salary, Mr. Gomia has been paid the following amounts (hereinafter referred to as "Additional Compensation"), during the following months:

      
      

      Month Amount

      
      

      September, 1989 $1,750.00

      
      

      May, 1990 500.00

      September, 1990 1,750.00

      
      

      May, 1991 600.00

      September, 1991 2,150.00

   4. Mr. Gomia has been paid Additional Compensation twice a year since he was employed by the Clerk's office.

      
      

3. The Clerk's Policy of Paying Additional Compensation.

   
   

   1. It has been the policy of Paul F. Hartsfield, Leon County Clerk of Court, to pay Additional Compensation to employees of the Clerk's office, with one exception not relevant to this proceeding, for at least the past twenty years.

      
      

   2. Additional Compensation has been paid to Clerk's office employees twice a year. One payment is made in May/June and the other payment is made in September/October/November.

      
      

   3. The amount of Additional Compensation paid to each employee is the same. For example, in May, 1991, all employees received $600.00 as Additional Compensation.

      
      

   4. The amount to be paid as Additional Compensation is included in the budget submitted by the Clerk's office each year for approval by the Board of County Commissioners. The amount requested is included as part of a lump-sum request for the amount of funds necessary to pay all salary, including employees' base salary. Although the amount of the payments to be made as Additional Compensation is broken out in the work papers to the budget each year, those figures are only seen by the financial personnel and not the Board of County Commissioners.

      
      

4. Lack of Written Policy.

1. The decision of whether Additional Compensation is paid is within the sound discretion of the Clerk to make. The Clerk of Court is under no legal obligation to make such payments even if included in an approved budget.

   
   

2. The policy of paying Additional Compensation has not been reduced to writing. Nowhere has the Clerk stated in writing that the Clerk's office has a policy:

   
   

   1. That applies all employees will receive Additional Compensation equally;

      
      

   2. Additional Compensation will be paid no later than the eleventh year of employment;

      
      

   3. Additional Compensation will be paid for as long as an employee continues employment; and

      
      

   4. Additional Compensation will be paid at least annually.

   
   

3. The only written indication that Additional Compensation will be paid to employees is the inclusion of the dollar amount necessary to make the payments in the work papers of the Clerk's office budget. Nowhere in the work papers to the budget or the budget itself are the conditions set out in finding of fact 13 included.

   
   

4. Even if the work papers (or the budget) of the Clerk's office were sufficient to constitute a formal written policy, the policy evidenced in the work papers only applies to the fiscal year the work papers relate to.

   Therefore, if the work papers or budget constitute a written policy it is only a policy to pay Additional Compensation for the upcoming fiscal year and not on a recurring basis.

   
   

5. Although a policy of paying Additional Compensation to Clerk's office employees exists, that policy has not formally been reduced to writing. Mr. Hartsfield, the Leon County Clerk of Court, admitted that there was no formal written policy during his deposition and in a letter dated November 12, 1991, attached as Respondent's exhibit 1 to Mr. Hartsfield's deposition.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991)

   
   

7. The amount of benefits paid to a person eligible to participate in the Florida Retirement System, requires a determination of that persons "average final compensation". "Average final compensation" is defined in Rule 22B- 6.001(6), Florida Administrative Code, in relevant part, as follows:

   
   

   (6) AVERAGE FINAL COMPENSATION -- Means the average of the 5 highest fiscal years of compensation for creditable service prior to retirement, termination or death calculated in accordance with 22B-4.004(1).

   
   

   . . . .

   
   

   (b) The average final compensation shall not include:

   
   

   . . . .

   
   

   5. Bonuses as defined in 22B-6.001(11).

   
   

   . . . .

   
   

8. The term "compensation" for purposes of determining average final compensation, is defined in Rule 22B-6.001(16), Florida Administrative Code, as follows:

   
   

   (16) COMPENSATION OR GROSS COMPENSATION --

   
   

   (a) Compensation means the total gross monthly salary paid a member, including:

   
   

   . . . .

   
   

   3. Payments in addition to the employee's base rate of pay if all the following apply:

   
   

   1. The payments are paid according to a formal written policy that applies to all eligible employees equally, and

   2. The policy provides that payments shall commence not later than the eleventh year of employment, and

      
      

   3. The payments are paid for as long as the employee continues his employment, and

      
      

   4. The payments are paid at least annually;

   
   

   . . . .

   
   

9. At issue in this proceeding is the question of whether the Additional Compensation paid to Mr. Gomia from September, 1989, to September, 1991, constituted "compensation" pursuant to Rule 22B-6.001(16)3., Florida Administrative Code. The parties agreed that the Clerk's office policy of making Additional Compensation payments meets the requirements of Rule 22B- 6.001(16)3.b.-d., Florida Administrative Code. That is, payments are made to all eligible employees, the payments commence not later than the eleventh year of employment of an employee, the payments are paid as long as an employee continues employment, and the payments are paid at least annually. At issue is whether the payments of Additional Compensation are made pursuant to a "formal written policy" as required by Rule 22B-6.001(16)3.a., Florida Administrative Code. If not, then the Additional Compensation received by Mr. Gomia does not come within the definition of "compensation" for purposes of determining his retirement benefits. Rather, the Additional Compensation paid to Mr. Gomia constitutes a "bonus" under the definition of Rule 22B-6.001(11), Florida Administrative Code, and is specifically excluded from the definition of "Average Final Compensation."

   
   

10. The burden of proof in this case was on Mr. Gomia. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

11. The evidence in this case failed to prove that the Additional Compensation paid to Mr. Gomia was paid pursuant to a "formal written policy". The evidence proved that, although the Clerk of Court has followed a policy of making payments in a manner which would qualify as "compensation", that policy, as admitted by Mr. Hartsfield, has never been reduced to writing in any formal manner. Therefore, the evidence failed to prove that all of the required characteristics of "compensation" specified in Rule 22B-6.001(16), Florida Administrative Code, apply to the Additional Compensation paid to Mr. Gomia.

    
    

12. Mr. Gomia's suggestion that the inclusion of amounts paid to employees as Additional Compensation in the work papers and budget of the Clerk's office constitutes a "formal written policy" is rejected. At best, evidence on this point proved that the unwritten policy of making Additional Compensation payments has been reflected or evidenced in the budget and budget work papers. The policy itself, however, is not included. Nowhere in the budget or the work papers thereto, is it reflected that Additional Compensation is available to all employees, that the payments will commence not later than the eleventh year of employment of an employee, that the payments will be paid as long as an employee continues employment, or that the payments will be paid at least annually.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of

Retirement, enter a Final Order declaring that the Additional Compensation paid to James Gomia between September, 1989, and September, 1991, was not paid as "average final compensation" for purposes of Rule 22B-6.001(6), Florida Administrative Code, and dismissing Mr. Gomia's Amended Petition with prejudice.

DONE and ENTERED this 2nd day of September, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

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 2nd day of September, 1992.

APPENDIX

Case Number 92-2504

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Mr. Gomia's Proposed Findings of Fact

1. Findings of fact 1, 4 and 6-11.

2. Hereby accepted.

The Department's Proposed Findings of Fact

1. Findings of fact 1-3.

2. Findings of fact 4 and 6.

3. Finding of fact 16.

4. Conclusion of law.

5. Findings of fact 4, 6 11 and 13.

6. Finding of fact 4 and 6. Whether the payments come within the Department's rules is a conclusion of law.

COPIES FURNISHED:

Harry H. Mitchell, Esquire

103 North Gadsden Street Tallahassee, Florida 32301

Burton M. Michaels Assistant Division Attorney Division of Retirement

Department of Administration

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1566

A. J. McMullian, III, Director Division of Retirement

Cedars Executive Center, Building C 2639 N. Monroe Street

Tallahassee, Florida 32399-1560

Larry Strong Acting Secretary

Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

Susan Kirkland General counsel

Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 92-002504

Orders for Case No: 92-002504