STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN S. POOLE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7401

)

DEPARTMENT OF MANAGEMENT )

SERVICES, )

)

Respondent. )

)

SUMMARY RECOMMENDED ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's Motion for Summary Recommended Order. The undersigned has reviewed the record and is fully advised in the premises.

APPEARANCES

For Petitioner: Baya Harrison, III

Silver Lake Road Post Office Box 656

Monticello, Florida 32344

For Respondent: Sylvan Strickland

2737 Centerview Drive, Suite 30-9

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

Whether or not Petitioner is entitled to retirement credits, annual leave credits, and sick leave credits.

PRELIMINARY STATEMENT

This cause arises upon Petitioner's Petition and Respondent's Motion for Summary Recommended Order. In the course of considering the motion, all pleadings of record have been considered, including but not limited to Petitioner's Notice of Filing Affidavit, Affidavit with attachments, and Supplemental Memorandum, and Respondent's Supplemental Memorandum.

Also, oral argument was heard, at which time various stipulations were made and the undersigned was given for consideration 5 FCSR 111, 5 FCSR 137, the backpay order at 6 FCSR 059 and 6 FCSR 084. These items have all been considered.

The parties have, among other matters, stipulated that the Division of Administrative Hearings has jurisdiction of the benefits issue as set out supra; that the burden of proof herein is by a preponderance of the evidence; that

Petitioner has the duty to go forward; and that there are no disputed issues of material fact. Therefore, no formal hearing is necessary and the formal hearing now scheduled for May 17, 1993 is hereby cancelled.

Petitioner has raised or alluded to various constitutional issues and problems with certain statutes and rules. However, the Division of Administrative Hearings has no jurisdiction, power, or authority over those issues as raised here. Also, no formal rule challenge has been filed.

Therefore, those issues are not addressed by this order.

FINDINGS OF FACT

1. There are no disputed issues of material fact which would preclude entry of this summary recommended order of dismissal based on the undisputed facts and law involved.

   
   

2. Petitioner was dismissed from his career service position with Respondent state agency.

   
   

3. On appeal, the dismissal was reversed.

   
   

4. Petitioner was off the state agency payroll and did not work for seven months.

   
   

5. In backpay proceedings before the Public Employees Relations Commission (PERC), Petitioner was awarded backpay for only one month. Petitioner was paid for the one month that pay was awarded, but not for the other six months.

   
   

6. Petitioner received retirement credit, annual leave credit, and sick leave credit for that one month awarded and paid, but not for the other six months.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), F.S.

   
   

8. This case involves merely an application of statutes and rules to undisputed facts.

   
   

9. The resolution of the retirement part of this case is found clearly in Rule 22B-2.002(5)(c) Florida Administrative Code, [now Rule 60S-2.002(5)(c)] which provides, in pertinent part, as follows:

   
   

   (c) A member whose employment is interrupted by dismissal . . . and who is later reinstated after having been found

   to have been dismissed or suspended without just cause shall have continuous service, provided he is reinstated for the period of dismissal . . . and the required contributions

   are paid for the period. A member shall receive a full month of retirement service credit based on the full or partial salary he receives for the period he is reinstated. [Emphasis supplied]

10. This was explained in the Division of Retirement's letter of September 29, 1992 as follows (copy attached to Petition):

    
    

    Section 22B-2.002(5)(c), Florida Administrative Code, states service credit shall be awarded for each month which the member is paid a salary payment for employment. The Final Order on Backpay stated Mr. Poole was entitled to backpay for the first 30 days of the backpay period.

    Retirement contributions are due on this payment only. If Mr. Poole wishes to claim retirement credit for the remainder of the period of suspension in accordance with Section 22B-2.016, Florida Administrative Code, he should complete Form FR-9 requesting an audit of his retirement account.

    
    

11. On the subject of attendance and leave, Section 110.219(5), F.S. (1989), includes these provisions:

    
    

    1. Rules shall be adopted . . . Such rules shall provide for, but shall not be limited to:

       * * *

       1. Continuous service with one or more state agencies without a break in service.

       2. Creditable service in which the employee is on the payroll of a state agency or during which the employee is on authorized leave without pay.

       
       

12. As alleged in paragraph 9 of the Petition herein, for purposes of the definition of "creditable service," Section 121.021(17)(b)4, F.S., allows one month of retirement service credit for each month salary is paid for service performed. However, this Petitioner did not perform service for the six months in question and was not paid for that period. Therefore, the Petition clearly shows that there was no creditable service during that time. Section 121.021(17)(a), F.S., requires, for creditable service, that all required contributions be paid and all other requirements of Chapter 121, F.S., be met.

    
    

13. Paragraph 9f ii of the Petition shows that Rule 22B-2.002(5)(c) F.A.C. prohibits retirement service credit at taxpayer's expense in case of dismissal and reinstatement, except for the months for which backpay is awarded. This paragraph authorizes continuous service in spite of not working after dismissal if the employee is reinstated for the full period of his absence. In order to be reinstated for the full period, backpay must have been awarded for the full period. Backpay was not awarded to this Petitioner for the six months in question. Therefore, the state is not authorized to pay retirement contributions for those months. Petitioner can get retirement credit and make his service continuous, but he must pay the contributions for the six months.

    
    

14. Section 110.219(5), F.S., (1989) provides, in pertinent part:

    
    

    1. Rules shall be adopted . . . Such rules shall provide for, but shall not be limited to:

       * * *

       1. Annual leave provisions.

       2. Sick leave provisions.

       * * *

       (n) Leave of absence without pay provisions.

       
       

15. Rule 60K-5.007, F.A.C., [formerly Rule 22A-8.007, F.A.C.] includes:

    
    

    (1) Continuous service shall be construed as employment with one or more state agencies without a break in service. (Continuous service as defined in this section shall have no effect

    on the provisions of the Florida Retirement Systems.)

    * * *

    1. Authorized leaves of absence without pay shall be considered continuous service.

    2. Any unauthorized leave without pay for 3 consecutive workdays shall be considered a break in service.

    * * *

    (9) Continuous service as provided herein shall apply to the annual leave provisions of Section 60K-5.010(1).

    
    

16. Rule 60K-5.008, F.A.C. [formerly 22A-8.008, F.A.C.], provides:

    
    

    1. Creditable service is service during which the employee is on the payroll of a state agency or during which the employee is on authorized leave without pay approved in accordance with this chapter.

    2. Creditable service as provided herein shall apply to the annual leave provisions of Section 60K-5.010(1), and to the sick leave provisions of Sections 60K-5.011(4) and (5).

    
    

17. Petitioner herein was not on the state payroll and was not on authorized leave during the six-month period.

    
    

18. Rule 60K-5.010, F.A.C., [formerly Rule 22A-8.010, F.A.C.], on the method of earning annual leave, in paragraph (1)(a) requires an employee to be filling an established position in order to earn leave. Poole was not filling a position during the six months in question. This paragraph also requires continuous and creditable service. The six months constituted a break in service under Rule 60K-5.007(1), F.A.C., and was not creditable service under Rule 60K-5.008, F.A.C. Paragraph (1)(d) of that rule states:

    
    

    (d) Employees who work less than a full pay period due to initial employment or separation during a pay period, transfer between agencies, leave of absence without pay, or education leave with pay, shall earn annual leave credits for the hours worked during that pay period in accordance with the appropriate table:

    * * *

    
    

19. The table applies to "Number of Hours Actually Worked."

    
    

20. Paragraph (1) (f) provides:

    (f) During leaves of absence with pay, an employee shall continue to earn annual leave credits, . . .

    
    

21. As to sick leave, Rule 60K-5.011, F.A.C., [formerly 22A-8.011, F.A.C.], in paragraphs (1)(a), (c) and (d), contains provisions similar to those in Rule 60K-5.010, F.A.C.

    
    

22. In short, since Petitioner did not work during the six months and was not deemed to have worked by means of a PERC award of backpay, he is not entitled to leave credits. No work and no pay equal no leave. There is no provision for Petitioner to buy leave credits.

    
    

23. As a practical matter, the way this works is that Rule 38D-21.010, F.A.C., requires PERC to make a finding of whether the employee is entitled to backpay. If the PERC finding is against the employee, the mitigation of backpay is a moot point. If the PERC finding is in the employee's favor as to the entire period of absence from work, that would constitute full reinstatement and the employee would be given full retirement and leave credits (benefits) for the period of reinstatement, and the PERC order would entitle him to full backpay. The fact that an employee's amount of backpay would be reduced by the amount of pay he received from other employment is an arithmetic calculation that does not diminish the fact that the employee has received a full reinstatement to appropriate benefits.

    
    

24. Section 447.208(3)(e), F.S., (1989) provides that any order of PERC may include backpay if applicable. PERC's order that Petitioner would receive backpay for only one month is res judicata1 and therefore the instant case before the Division of Administrative Hearings is simply to apply statutes and rules applicable to how much retirement, annual leave, and sick leave credits, if any, Petitioner is entitled to, incidental to PERC's award of one month's backpay.

    
    

25. But for Respondent's conceding that PERC's order at 6 FCSR 059 did not purport to adjudicate these issues (See Respondent's Supplemental Memorandum) and the parties' oral stipulation to submit this limited issue to the Division of Administrative Hearings, this forum clearly would not have jurisdiction of this cause.

    
    

26. Regardless of Petitioner's individualistic connotations upon the word "period" or upon the phrase "made whole" and regardless of his speculations upon what might have happened under other circumstances, and regardless of any acrimony or lack thereof between the parties, it was not Respondent's conduct that deprived Petitioner of backpay. Rather, Petitioner's failure to mitigate his economic losses upon termination of his state employment, either by obtaining other employment or by showing that he could not get other employment, resulted in PERC's denial of backpay for more than one month out of seven months. The seven months Petitioner was off the payroll was not a suspension or any type of leave. It constituted a time frame after discharge from state employment. Once the PERC decision locked-in the issue of backpay, the statutes and rules as outlined supra govern Petitioner's entitlement to leave and retirement benefits.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Management Services enter a final order denying all claims of Petitioner and dismissing the Petition.

RECOMMENDED this 12th day of April, 1993, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 12th day of April, 1993.

ENDNOTE

1/ Apparently, PERC saw fit only to award Petitioner backpay for the 30 days to which he is automatically entitled. Likewise, PERC has already made adjustments for the hours over 240 hours annual leave, which hours in excess of 240 hours all employees forfeit annually pursuant to other statutes and rules by not requiring Petitioner to buy back those hours. PERC also denied additional attorney's fees, reasoning that to grant same would be inequitable where Petitioner has not mitigated his losses. See, 6 FCSR 059 at pp. 222-223.

COPIES FURNISHED:

Sylvan Strickland, Esquire Joan Van Arsdall, Esquire

2737 Centerview Drive, Suite 30-9

Tallahassee, FL 32399-0950

Baya Harrison, III, Esquire Post Office Box 656 Monticello, Florida 32344

William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307

Koger Executive Center 2737 Centerview Drive

Tallahassee, FL 32399-0950

Susan B. Kirkland, Esquire General Counsel

Department of Management Services Knight Building, Suite 307

Koger Executive Center 2737 Centerview Drive

Tallahassee, FL 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.

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

STEPHEN S. POOLE, JR., P.E., NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

vs. CASE NO. 93-2150

DOAH CASE NO. 92-7401

DEPARTMENT OF MANAGEMENT SERVICES,

Appellee.

/ Opinion filed August 8, 1994.

An appeal from an Order of the Department of Administrative Hearings. Baya Harrison III, Monticello, for Appellant.

Robert B. Button, Staff Attorney, Department of Management Services, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

BARFIELD, MINER and MICKLE, JJ., CONCUR.

Docket for Case No: 92-007401

Orders for Case No: 92-007401