STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
STEPHEN CHERNAIK, )
)
Petitioner, )
)
vs. ) CASE NO. 96-0574
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case by video teleconference (at sites in Miami and Tallahassee, Florida) on June 27, 1996, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Stephen R. Chernaik, pro se
440 27th Street
West Palm Beach, Florida 33407
For Respondent: Karen M. Miller
District Legal Counsel Department of Health and
Rehabilitative Services
111 South Sapodilla Avenue
West Palm Beach, Florida 33401 STATEMENT OF THE ISSUE
Whether Petitioner should receive the relief he has requested in the employee grievance he has filed with Respondent?
PRELIMINARY STATEMENT
By letter dated December 18, 1995, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department") notified Petitioner, a Senior Public Assistance Specialist with the Department, of the denial of the employee grievance he had filed requesting that the Department "make [his] salary equitable with those Senior P[AS]s whose promotions were granted after 12/31/94, and . . . restore to [him] all pertinent back pay, since 1/1/95." Petitioner, by letter dated January 17, 1996, requested a Section
hearing on the matter. In his letter, Petitioner stated the following:
I hereby request a 120.57 hearing, in accordance with the Florida Statutes, and based upon the final agency determination
of my Career Service Grievance filed on May 24, 1995.
The Committee established to review my grie- vance made recommendations favorable to my cause. On September 7, 1995, Suzanne Turner, District 9 Administrator, overruled the Committee's recommendations, and essentially denied my grievance.
On September 19, 1995, I filed a request for a Secretarial review of Suzanne Turner's determination--essentially an appeal. On December 18, 1995, David Wilson, HRS Human and Labor Relations Administrator, filed his response, essentially denying my grievance, but for reasons different from Ms. Turner's reasons.
Briefly, my grievance results from an unintended inequity created by the Pay Grade Adjustment, as announced in Vivian Pyle's Memorandum of April 4, 1995. The result of this Pay Grade Adjustment is the Senior PASs, such as myself, who were appointed prior to December 30, 1994, are now receiving 95 per- cent of the pay as Senior PASs appointed after December 30, 1994, and only because of that arbitrary date of promotion. No one who has reviewed this situation, including Suzanne Turner and David Wilson, has disputed the existence of this inequity.
Furthermore, I believe that this Pay Grade Adjustment violates F.S. 110.209(1).
Therefore since the inequity created by the Pay Grade Adjustment involves a substantial amount of money--5 percent of my pay (or about $30.00 biweekly), translates into at least $15,000.00 over a twenty year career service, possibly as much as $40,000.00 when COLA's, future promotions, and retirement are factored, and since the Pay Grade Adjustment may well be in violation of the Florida Statutes, the District must grant me a 120.57 hearing on the matter.
On January 30, 1996, the Department referred the matter to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct a formal Section 120.57 hearing.
As noted above, the formal hearing was conducted on June 27, 1996. During the evidentiary portion of the hearing, a total of three witnesses testified: Tim Thompson, the Senior Personnel Manager for the Department's District 9; Mary Ellis, one of Thompson's subordinates; and Mary Dinkins, a Personnel
Resource Analyst with the Department of Management Services. In addition to the testimony of these three witnesses, a total of ten exhibits (Petitioners' Exhibits 1 and 2 and Respondent's Exhibits 1 through 8) were offered and received into evidence.
At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline (July 18, 1996) for the filing of such submittals. On July 16, 1996, Petitioner filed an unopposed motion requesting an extension of the deadline for the filing of proposed recommended orders. By order issued July 17, 1996, the motion was granted and the filing deadline was extended to July 25, 1996. On July 18, 1996, the Department filed a proposed recommended order which contained, among other things, (what are labelled as) "findings of fact." Petitioner, on July 23, 1996, filed a written final argument. The Hearing Officer has carefully considered the Department's proposed recommended order and Petitioner's written final argument. The "findings of fact" set forth in the Department's proposed recommended order are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
Petitioner is now, and was at all times material to the instant case, a career service employee of the Department working in the economic services unit of the Department's District 9 (hereinafter referred to as the "District").
His employment with the Department began on September 30, 1987, when he was hired to fill a Public Assistance Specialist (hereinafter referred to as "PAS") position.
On May 6, 1994, Petitioner was promoted to a Senior PAS position. The Senior PAS classification was relatively new. It was established in August of 1993.
Along with his promotion, Petitioner received a 10 percent salary increase.
It was then, and it has remained, an accepted general, Department-wide practice (but not a requirement) to give salary increases of 10 percent, if possible, to Department employees upon promotion. Whether such a 10 percent promotional increase should be given in a particular instance to a promoted employee working in a district office is a matter that is within the discretion of that district's district administrator.
By letter dated January 6, 1995, the Department requested the Department of Management Services (hereinafter referred to as "DMS") to grant upward pay grade adjustments for the PAS and Senior PAS classifications. 1/ The letter read as follows:
As you are aware, Florida's error rates for public assistance programs have been well over the national average and the federal government has imposed penalties in both our food stamp program and . . . Aid to Families with Dependent Children. The department has worked very hard to develop strategies to reduce error rates and subsequent penalties by decreasing fraudulent practices, improving communications between workers and clients, improving the FLORIDA system and
providing better training staff. A major effort is being made to attract and retain good employees and to reward and retrain current staff and decrease turnover rates. In order to ensure the success of these efforts, we are requesting upward pay adjustments for the classes of Public Assistance Specialist and Senior Public Assistance Specialist with an effective date of December 30, 1994.
We wish to adjust the pay for the Public Assistance Specialist from pay grade 015 to 016 and give employees assigned to the class the difference in the minimum salaries for these pay grades. This increase will be in the amount of $40.91 biweekly per employee. We also wish to adjust the pay for Senior Public Assistance Specialists from 016 to
017. Because these employes were recently promoted and received a promotional increase at that time, we are requesting approval to only increase the salary of those employees assigned to the class who are below the new minimum. These employees will receive an increase to the minimum of the new range.
Employees who are above the minimum salary
of the adjusted pay grade will receive a one- time lump-sum bonus payment using productivity enhancement monies in lieu of a salary increase in order to provide some equity in the class.
There is sufficient rate and budget to support this request. If you have any questions, please let me know. We will be happy to meet with you or your staff to discuss this request.
PASs and Senior PASs are included in a collective bargaining unit represented by AFSCME Council 79 (hereinafter referred to as the "Union").
In accordance with the provisions of the collective bargaining agreement covering this bargaining unit, DMS, by letter dated March 15, 1995, notified the Union of the Department's proposed pay grade adjustments and invited the Union to comment on the proposal.
On March 20, 1995, the Union gave DMS written notice that it "approved" of the proposed pay grade adjustments.
By letter dated March 23, 1995, DMS informed the Department of its decision to make the requested adjustments (hereinafter referred to as the "1995 pay grade adjustments"). The letter read as follows:
This is in response to your January 6 letter requesting pay grade adjustments for the classes of Public Assistance Specialist and Senior Public Assistance Specialist.
Based on the information provided and that funding is available, we concur with your request and have adjusted the pay grades for
the classes of Public Assistance Specialist, Class Code 6057, from Pay Grade 15 to 16, and Senior Public Assistance Specialist, Class Code 6050, from Pay Grade 16 to 17. All other designations remain the same.
The pay grade adjustment for the class of Public Assistance Specialist will be accomp- lished by increasing the employees' base rate of pay by the difference between the minimum of the pay grades, provided it does not place their salary above the maximum of the range. The class of Senior Public Assistance Specia- list was established effective August 4, 1993. Based on your statement that employees were promoted over a year ago into this class and received a promotional increase at that time, we concur with your request to increase the salary of those employees assigned to the class who are below the new minimum to the minimum of Pay Grade 17.
As requested in your letter and our conver- sation with the Office of Planning and Budgeting, these actions are effective December 30, 1994.
If you have any questions concerning this matter, please call me or Ms. Mary Dinkins at . . . .
Petitioner was among the Senior PASs employed by the Department whose salary was below the minimum salary for Pay Grade 17. Accordingly, as a result of DMS having reassigned the Senior PAS classification from Pay Grade 16 to Pay Grade 17, Petitioner's salary was increased (by $1.47 biweekly, retroactive to December 30, 1994) to $813.96, the minimum salary for the newly assigned pay grade. The salaries of all other similarly situated Senior PASs in the state were likewise increased to the minimum salary for Pay Grade 17. 2/
There are employees in the District presently filling Senior PAS positions who have fewer years of service with the Department than Petitioner, but whose salaries (for reasons that have no apparent connection to their job performance, qualifications or duties) are nonetheless greater than his. 3/ (These are employees who were promoted to their Senior PAS positions after the pay grade for the Senior PAS classification was upgraded to a Pay Grade 17 and who, in addition to their promotions, received a 10 percent increase in salary upon their promotions, as Petitioner had when he was promoted to his Senior PAS position.)
On May 24, 1995, Petitioner filed an employee grievance with the Department requesting that the Department "make [his] salary equitable with those Senior P[ASs] whose promotions were granted after 12/31/94 and . . .
restore to [him] all pertinent back pay, since 1/1/95."
Petitioner's grievance was presented to a grievance committee, which issued the following written "summary/recommendation:"
It is the findings of this Committee that while the public assistance upgrades caused some variations with how individual PAS[s]
and Senior PAS[s] ended up on the pay scale in comparison to each other, based on when promoted to a Senior PAS, all staff in like positions were treated in the same manner statewide. The variations resulted in trying to create a career ladder as well as upgrade entry level positions.
Mr. Chernaik is correct in that he- and also other Senior PAS[s]- might be paid less and have more experience than a PAS who now gets promoted to Senior PAS. This issue may be resolved on a statewide basis. However, if the statewide resolution does not occur, this Committee recommends that every effort should be made to correct this inequity by like compensation for all Senior PAS[s] at the local level. As stated in the grievance filed by Mr. Chernaik, this inequity began 12/31/94 and compensation should begin retroactive to this date if salary and rate would be available.
Although difficult to establish a definite time frame for action, this Committee will suggest that the State of Florida act upon this matter by December 31, 1995. At that time, if no resolution can be found at the State level, this Committee recommends that District 9 pursue all options to correct this inequity by 6/30/96 retroactive to 12/31/94.
After reviewing the grievance committee's written report, the District Administrator denied Petitioner's grievance on September 7, 1995.
On September 21, 1995, Petitioner requested "Secretarial review" of the District Administrator's decision to deny his grievance.
By letter dated December 18, 1995, the Department's Human and Labor Relations Administrator, David Wilson, responded to Petitioner's request. Wilson's letter read as follows:
This is in response to your request for a Secretarial Review of your Career Service grievance dated May 2[4], 1995. I have been designated by the Secretary to review the concerns expressed in your grievance.
Our examination of the relevant data finds that the Grievance Review Committee did a thorough job in its investigation. The committee found that subsequent to the public assistance specialist pay grade adjustments, some newly promoted senior public assistance specialists may have received a higher salary than existing senior public assistance specialists with more experience. The committee recommended that if this situation could not be resolved
as a statewide issue, means should be found to address it within District 9. Finally, the committee recommended that any compen- sation adjustments should be retroactive to December 31, 1994.
The threshold issue in this grievance is whether or not there have been any violations of the state's pay rules. In its letter of March 23, 1995, the Department of Management Services (DMS) approved the Department of Health and Rehabilitative Services' (HRS) request to adjust only the salaries of those Senior Public Assistance Specialists " . . . assigned to the class who are below the new minimum of Pay Grade 17." This method of implementation was requested by HRS due to the limitation of available funds at the
time the pay grades for the classes in ques- tion were adjusted. Personnel Rule, Section 60K-2.006(2), Florida Administrative Code, Upward Pay Adjustments, states in relevant part, "When the department has reassigned a class to a pay grade having a higher minimum salary, each employee's base rate of pay in the class shall be adjusted in an amount equal to the amount by which the minimum salary for the class is adjusted. This
procedure for granting pay adjustments shall apply unless a different method of implement- ation is required by the department." Based on the fact that DMS approved this method of implementation as provided for in the above cited rule, there is no violation of the Rules of the Career Service System.
As it relates to the recommendation that there should be retroactive salary increases, there is no provision in the Personnel Rules of the Career Service System for retroactive pay. In fact, it is specifically prohibited. Section 60K-2.022(3) states in relevant part: "An agency shall not establish a retroactive effective date for any salary action."
In the September 7, 1995 response to your grievance, District Administrator Suzanne Turner correctly stated that pay grade adjust- ments and pay adjustments related to the minimums of classes are statewide issues, as noted above. Subsequent to her response, it was determined that this issue was to be handled at the district level after conside- ration of available budget and rate.
Based on the foregoing, I find no violation of the Rules of the Career Service System.
Petitioner thereafter requested the Department to "grant [him] a Section 120.57 hearing on the matter." The Department granted the request and referred the matter to the Division.
In addition, on or about January 11, 1996, Petitioner brought his grievance to the attention of DMS.
DMS responded by sending Petitioner a letter, dated February 7, 1996, which read as follows:
We received the documents you submitted regarding your career service grievance on which a final decision was issued by Mr. David Wilson of the Department of Health and Rehabilitative Services on December 18, 1995. Rule 60K-9.004(7), states that the agency head's decision on a grievance is final
except as provided in Section 60K-9.004(6), which states:
"That, in grievances alleging the agency's failure to comply with the provisions of the Personnel Rules and Regulations, the employee shall have the right to file a grievance with the Department of Management Services if dissatisfied with the agency head's or designee's decision."
We have reviewed Mr. Wilson's answer and concur that there has been no violation of any Career Service rules and regulations. Inasmuch as your grievance does not cite additional violations of Career Service rules and regulations, we consider the agency head's decision final on the matter.
On February 23, 1996, DMS sent the following letter to Petitioner: 4/ This is in reference to your February 20 tele-
phone call to Ms. Mary Dinkins regarding my
February 7 letter to you.
We have again reviewed your grievance and do not find any violations by the Department of Management Services (DMS) in approving the pay grade adjustment for the Senior Public Assistance Specialist class.
Section 60K-2.006(2), Florida Administrative Code, indicates "This procedure for granting pay adjustments shall apply unless a different method of implementation is required by the department." The Department of Health and Rehabilitative Services requested the method of implementation and DMS has the authority to approve it.
On April 30, 1996, DMS sent a third letter to Petitioner, which read as follows: 5/
This replies to your career service grievance of January 11, 1996, asserting that the Department of Management Services violated section 110.209(1), Florida Statutes, by
creating an inequitable pay plan when it approved, by letter of March 23, 1995, the request of the Department of Health and Rehabilitative Services to adjust the pay grade of the classification of Public Assistance Specialist, class code 6057, from pay grade 15 to pay grade 16 and the class- ification of Senior Public Assistance Specia- list, Class Code 6058, from pay grade 16 to pay grade 17.
We understand the basis of your assertion that DMS created an inequitable pay plan to be that when the upgrade was put into effect you received a pay raise only to the minimum
pay for the classification and that thereafter employees who were promoted from PAS to Senior PAS were promoted with pay raises that gave them higher salaries than yours although you had more seniority.
The HRS letter of January 6, 1995, requested approval to increase the salaries of only those in Senior PAS positions who were below the new minimum, and to increase them to the new minimum, because those employees had been recently promoted and received a promotional increase at that time. The DMS approval of that request was authorized by Rule
60K-2.006(2).
On March 15, 1995, DMS wrote to the President of AFSCME pursuant to Article 1, Section 3 of the collective bargaining agreement, explaining the proposed action. AFSCME approved it in writing on March 20.
Under Section 110.209, DMS provides a broad salary range for each class, and each employing agency determines the specific salaries. DMS was not involved in the pro- motions and salary decisions that were made after the pay upgrade. HRS did not submit those proposed actions to DMS for approval, and DMS does not exercise approval authority over such actions. The later promotions with higher pay were not contemplated in the March
23 approval. It is our position that our approval did not create an inequitable situation and that DMS did not have any responsibility for the subsequent pay decisions.
Your letter of March 4 requests a hearing on the grievance. Rule 60K-9.004(5) provides for a 14-day deadline to file a grievance; that is, 14 calendar days after the event that give[s] rise to the grievance. Your grievance against DMS is untimely. There is no statute or rule providing for a hearing on a career service grievance, even if the grievance had been timely. The DMS decision
on a career service grievance is the final action. Your request for a hearing is denied. The Public Employees Relations Commission has ruled that it does not have jurisdiction of career service grievances. Copies of two PERC orders to that effect are enclosed (Goll and Sullivan cases).
CONCLUSIONS OF LAW
Section 402.35, Florida Statutes, provides that "[a]ll personnel of the Department of Health and Rehabilitative Services shall be governed by rules and regulations adopted and promulgated by the Department of Management Services relative thereto (hereinafter referred to as the "Personnel Rules and Regulations)."
Among the Personnel Rules and Regulations DMS has adopted are those which "set forth the policies for the development and maintenance of a comprehensive and effective pay plan [applicable to all classes of positions in the career service] and [provide] for the equitable administration of the plan."
These pay plan-related rules and regulations are found in Chapter 60K- 2, Florida Administrative Code. They were adopted by DMS in accordance with the provisions of Sections 110.201(1) and 110.209, Florida Statutes.
Section 110.201(1), Florida Statutes, provides, in pertinent part, as follows:
The department shall develop personnel rules . . . relating to employees and positions in the career service.
Section 110.209, Florida Statutes, provides as follows:
The department shall establish and maintain an equitable pay plan applicable to all classes of positions in the career service and shall be responsible for the overall review, coordination, and administ- ration of the pay plan.
(2)(a) The department shall provide for broad, market-based salary ranges for classes within the career service and shall establish guidelines for the employing agencies to move employees through the salary ranges. The employing agencies may determine the appropriate salary within the ranges and guidelines adopted by the department. Such salary ranges, and the assignment of ranges to positions, shall not constitute rules within the meaning of s. 120.52(16).
The department shall conduct wage and salary surveys as necessary for the purpose of achieving the goal of an equitable, competitive, market-based pay policy.
The department shall establish by rule,
guidelines with respect to, and shall delegate to the employing agencies the authority to administer, the following:
Shift differentials.
On-call fees.
Hazardous-duty pay.
Advanced appointment rates.
Salary increase and decrease corrections.
Lead worker pay.
Temporary special duties pay.
Trainer additive pay.
Workplace environment additive pay.
Competitive area differentials.
Coordinator pay.
The employing agency must use such pay additives as are appropriate within the guidelines established by the department and shall advise the department in writing of the plan for implementing such pay additives prior to the implementation date.
The department shall review, in a postaudit capacity, any action taken by an agency in administering the provisions of the pay plan.
The department shall require the agency to take appropriate corrective action if records show that the action taken by the employing agency in administering the pro- visions of the pay plan does not conform to the rules adopted by the department.
Any action taken by the department in regard to the revision or establishment of the pay grade assignment which affects a department headed by a Cabinet Officer or
by the Governor and Cabinet may be reviewed by the Administration Commission, and the department's decision may be changed by a majority vote of the Administration Commission.
(3) The department shall adopt any rules necessary to implement the provisions of this section; however, such rules shall be approved by the Administration Commission prior to their adoption by the department.
The term "department," as used in Sections 110.201(1) and 110.209, Florida Statutes, (and elsewhere in Chapter 110, Florida Statutes) "means the Department of Management Services." Section 110.107(1), Florida Statutes.
The rules adopted by DMS to "implement the provisions of [Section 110.209, Florida Statutes]" include the following:
60K-2.0031 Development and Maintenance of Salary Ranges. The department 6/ shall develop and maintain salary ranges within the Salary Schedule, and upon the following
provisions, assign individual classes to the established pay grades.
Each salary range shall be comprised of a minimum and maximum amount.
The department shall establish salary range minimum and maximum amounts for each salary range based upon competitive market salary survey data and/or other factors as determined appropriate by the department.
60K-2.004 Determining Salary upon Appointment.
Original or Promotional Appointment- An employee who is given an original or promotional appointment in accordance with the provisions of Chapter 60K-4, F.A.C., shall receive a base rate of pay at the minimum of the salary range for the class to which appointed, however:
An employee may be granted an original or promotional appointment at a base rate of pay up to the maximum of the salary range if it can be documented that the following conditions exist:
The individual's qualifications and/or the knowledge, skills, and abilities must substantially exceed the requirements for the position to which the individual is appointed. The agency must determine that
the individual's qualifications or knowledge, skills, and abilities directly relate to the requirements of the position and will enhance the individual's ability to perform the duties and responsibilities assigned the position to which appointment is being made; or
The agency must have experienced diffi- culty in filling positions at the minimum of the salary range approved for the class. The agency must have actively recruited for vacancies in the class and have demonstrated inability to fill positions after recruitment has been completed.
60K-2.006 Increase to Base Rate of Pay.
If an agency grants an increase to an employee's base rate of pay between the minimum and maximum of the pay range at any given time, it shall be based upon one or more of the following pay adjustment categories. Employees may receive only one increase per category in any 12 month period. In order for any increase to be awarded, an employee must be performing at a satisfactory level. An increase is not to exceed the maximum of the pay grade unless approved by the department. . . . .
(g) Internal Pay Relationships- An increase when it can be documented that labor market conditions necessitate hiring new employees
at a higher rate than current employees in the same class. Agencies may increase salaries of current employees to provide equity.
Upward Pay Grade Adjustment. When the department has reassigned a class to a pay grade having a higher minimum salary, each employee's base rate of pay in the class shall be adjusted in an amount equal to the amount by which the minimum salary for the class is adjusted, provided the pay adjust- ment does not place the employee's base rate of pay above the new maximum of the pay grade for the class. In such cases the employee's base rate of pay shall be adjusted to the new maximum of the pay grade. This procedure for granting pay adjustments shall apply unless a
different method of implementation is required by the department. The department may approve other increases to the base rate of pay as determined appropriate.
60K-2.020 Budgetary Limitations.
All provisions of this chapter relating to payment of salaries are contingent upon funds being available in the agencies' approved budget and in compliance with applic- able law.
Any deviation from paying employees in accordance with these rules because of budgetary limitations must be approved by the department.
60K-2.022 Effective Date of Salary Changes. The effective date of salary changes provided for in this chapter shall be:
The effective date specified by legis- lative action; or
If no effective date is specified by legislative action, the effective date spec- ified by the department; or
If no effective date is specified by the department or legislative action, the date the salary action is taken by the agency. An agency shall not establish a retroactive effective date for any salary action.
Salary Increase upon Promotion. A promotional increase to be granted in accordance with Section 60K-2.004(1), F.A.C., shall be effective on the date of the promotion. If an employee is promoted and adequate funds are not available due to budgetary limitations at the time of pro-
motion to grant a promotional increase, a promotional increase may be granted when funds subsequently become available, provided the increase is granted within 12 months following the date of promotion. In no case can the promotional salary be made effective back to the date of the promotion.
60K-2.024 Violation of Pay Rules.
If it is determined that an agency has violated any part of this Chapter, the Secretary of Management Services shall determine corrective actions to be taken and notify the agency head accordingly.
the agency will then correct the violation, regardless of whether the action was intentional or an oversight.
DMS has also adopted, as part of the Personnel Rules and Regulations, rules and regulations which "establish or reference procedures to be used when the compensation of an employee is in violation of any provision of the Personnel Rules and Regulations of the Career Service System (60K, F.A.C.), or salary setting provisions by the Department of Management Services in accordance with Section 216.251, and 110.205(2), F.S., or provisions specifically included in legislation, and results in an employee being underpaid or overpaid, and the procedures to be used in correcting such actions." Rule 60L-8.001, Fla. Admin. Code.
These rules and regulations are found in Chapter 60L-8, Florida Administrative Code.
Rule 60L-8.005(1) and (4) and Rule 60L-8.006, Florida Administrative Code, require that the employing state agency act in accordance with the following procedures when it believes that one of its employees has received an "underpayment" (which is defined in Rule 60L-8.003(1), Florida Administrative Code, as "[c]ompensation which is less than the minimum that was authorized for payment in conformity with the provisions of the Personnel Rules and Regulations of the Career Service System[,] 60L-8, F.A.C., Sections 216.251 and 110.205(2), Florida Statutes, or specific legislative or Department of Management Services approval"):
60L-8.005 Procedures.
When an underpayment occurs, the agency head shall take the following actions:
Notify the employee of the error in writing including an explanation of how the error occurred and a statement of how the employee's salary is being corrected and that the employee will be reimbursed in an
amount equal to the underpayment unless budge- tary limitations preclude such reimbursement. Such notification may be by a copy of the pay- roll information furnished the State Compt- roller for the payment, or used to make the payroll change, provided such information con- tains the explanation above. If budgetary limitations preclude full reimbursement, the
agency head shall notify the Department of Management Services and the Office of Compt- roller of the agency's inability to reimburse the employee, the specific reasons such pay- ment is not possible, and the course of action that is proposed to compensate the employee properly.
Immediately effectuate a payroll change to correct the employee's salary to the correct amount for future pay periods. . . .
(4) For . . . any underpayments of $100.00 or more, the Office of the Comptroller must be furnished full information for all pay periods in which the underpayment
occurred. The . . . request to pay employee, must be made to the Office of Comptroller in accordance with the rules prescribed by that office.
60L-8.006 Reporting Requirements.
The agency head shall notify the Depart- ment of Management Services of all under-
payments as they are discovered by the agency and shall report the resolution of each such error. A copy of any notice or report required by other sections of these rules may be used to satisfy this requirement.
If the error is brought to the attention of the agency head by the Department of Man- agement Services, a report of resolution shall be submitted to the Department of Man- agement Services.
All reports of resolution shall be made to the Department of Management Services within 10 calendar days after the matter has been resolved. A copy of any notice or report provided to the Department of Banking and Finance pursuant to Section 17.04, Florida Statutes, or Section 3A-30.062, F.A.C., shall be sufficient to satisfy this requirement.
Failure to comply with the provisions of these rules shall be reported to the Administration Commission when required by the provisions of Section 60K-10.002(8), Personnel Rules and Regulations.
Among the other provisions that are a part of the Personnel Rules and Regulations are those concerning the filing of employee grievances.
These provisions are found in Rule 60K-9.004, Florida Administrative Code, which provides, in pertinent part, as follows:
A grievance is defined as the dissatis- faction that occurs when an employee thinks or feels that any condition affecting the employee is unjust, inequitable, a hindrance
to effective operation, or creates a problem . . . .
Each agency head shall establish written procedures to allow any employee who has attained permanent status in the Career Service to bring grievances to the attention of the agency head . . .
An employee having a grievance must file the grievance under the agency's procedure within 14 calendar days following the occurrence of the event giving rise to the grievance.
Each agency's written procedures for handling grievances shall provide:
For written instructions and forms to be used for filing the grievance.
For a step grievance process, which must be reviewed and approved by the Depart- ment of Management Services and which shall include final review by the agency head or,
For a grievance committee composed of three employees of the agency. . . .
That a grievance may be filed with the employee's immediate supervisor either orally or in writing and that in either case the immediate supervisor shall make every effort to resolve the grievance within 15 calendar days from the date it is filed. . . .
That any employee who has permanent status in the Career Service and is desirous of having a grievance reviewed by supervisors above the level of the immediate supervisor shall file a written grievance in accordance with the agency's approved procedures.
That the original of the written grievance shall be filed with the employee's immediate supervisor and a copy of the same shall be furnished immediately to the agency's personnel officer.
Upon receipt of a copy of the written grievance, the agency head or his designee shall determine if the grievance involves a matter over which the agency has control.
If it is found that the agency has no control, the agency head or his designee shall deny
the grievance and notify the employee in writing, and a copy of such grievance and denial shall be furnished to the Department of Management Services. However, if the agency head or his designee determines that the grievance involves a matter over which the agency has control, the agency head or his designee shall be responsible for assuring that, within 30 calendar days from the date the grievance was filed, each employee's grievance is either resolved to the satisfaction of the employee, the step
grievance process is initiated or a committee is appointed to hear the grievance. . . .
That the committee shall make a written recommendation on each grievance to the
agency head within 15 calendar days from the date the full committee is appointed. Upon written recommendation by a majority of the committee, the agency head may extend the reporting period for a period not to exceed an additional 15 calendar days.
That the agency head shall furnish the employee a written decision on the grievance within 15 calendar days from the date the committee reports its recommendation.
That, in grievances alleging the agency's failure to comply with the provisions of the Personnel Rules and Regulations, the employee shall have the right to file a grievance with the Department of Management Services if dissatisfied with the agency head's or his designee's decision.
That the decision of the agency head shall be final in all grievances, except as provided in (6)(m) above.
An employee may not process a grievance when the subject of the grievance and/or the relief requested has been or currently is the subject of another administrative action or appeal before a governmental board or agency or court proceeding.
If the subject of an employee grievance affects the employee's substantial interests and there are disputed issues of material fact, the employee is entitled to a formal hearing under Section 120.57, Florida Statutes, before final agency is taken on the matter. See Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).
In the instant case, Petitioner has filed a grievance with the Department complaining that, as the result of the manner in which the 1995 pay grade adjustments for the PAS and Senior PAS classifications were implemented and the decision to give promotional salary increases of 10 percent to PASs in the District promoted to Senior PASs after the effective date of these adjustments, his salary is now (and has been since these promotions) lower than that received by these more recently appointed Senior PASs, who have less seniority than him, a situation he considers to be inequitable.
At the Section 120.57 formal hearing that he requested and received on the matter, Petitioner established that there are indeed less experienced Senior PASs in the District who are now (and have been since their post-1995 pay grade adjustments promotions) paid more than him. Petitioner, however, has failed to demonstrate that such disparity in pay itself constitutes, or is a by-product of, any violation of Section 110.209(1), Florida Statutes, the Personnel Rules and Regulations, or any other statutory or rule provision. 7/ (Indeed, the Personnel Rules and Regulations, specifically the provisions of Rule 60K- 2.006(1)(g), Florida Administrative Code, contemplate that newly-appointed
employees (receiving either an original or promotional appointment) may be hired "at a higher rate [of pay] than current employees in the same class.")
Accordingly, Petitioner has not been the victim of any "underpayment," as that term is defined in Rule 60L-8.003(1), Florida Administrative Code, and neither the Department, nor any other state agency, is required to take any remedial or corrective action concerning the compensation Petitioner has received or his current rate of pay.
Although the Department is under no obligation to increase Petitioner's rate of pay so that it is no longer lower than that of less experienced (but otherwise similarly situated) Senior PASs in the District, the Department has the authority, in its sound discretion, to "provide [such] equity" pursuant to Rule 60K-2.006(1)(g), Florida Administrative Code.
In the interest of fairness, the Department should exercise such discretionary authority, provided it has the funds available to do so (as required by Rule 60K-2.020(1), Florida Administrative Code). (Pursuant to Rule 60K-2.022, Florida Administrative Code, the Department is prohibited from "establish[ing] a retroactive effective date" for any salary increase it may decide to give Petitioner.)
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Department (1) find that Petitioner did not receive an "underpayment," as defined in Rule 60L-8.003(1), Florida Administrative Code, and is not entitled to the backpay he has requested; and (2) exercise its discretion, pursuant to Rule 60K-2.006(1)(g), Florida Administrative Code, to increase Petitioner's rate of pay (prospectively) so that it is no longer lower than that of less experienced (but otherwise similarly situated) Senior PASs in the District.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of July, 1996.
STUART M. LERNER, 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 29th day of July, 1996.
ENDNOTES
1/ The Department made this request pursuant to a settlement agreement with the federal government, which had imposed penalties against the Department because of errors the Department had made in administering federally funded public assistance programs.
2/ Senior PASs who were making $813.96 or more did not receive any salary increase as a result of the reassignment of pay grades for the classification.
3/ Petitioner's current salary is $840.88.
4/ The February 7, 1996, letter and the February 23, 1996, letter were both signed by Doug Duncan, a Senior Personnel Consultant with DMS.
5/ This letter was signed by Paul Rowell, DMS's General Counsel.
6/ As used in Rule Chapter 60K-2, Florida Administrative Code, the term "department" means DMS. Rule 60K-2.0021(5), Fla. Admin. Code.
7/ At the Section 120.57 formal hearing, Petitioner had the burden of proving (by a preponderance of the evidence) the existence of such a violation. See Department of Banking and Finance v. Osborne Stern and Company, 21 FLW S142, 143 (Fla. March 28, 1996)("'[t]he general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue'"); Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778, 788 (Fla. 1st DCA 1981)("'the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal'"); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414-15 (Fla. 4th DCA 1974)("the burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal;'" "'[a]s a general rule, the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding- that is, a preponderance of the evidence'").
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 96-0574
The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its proposed recommended order:
1-6. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
First sentence: Rejected as a finding of fact because it is more in the nature of a statement of law than a finding of fact; Second sentence: Accepted as true and incorporated in substance.
To the extent that this proposed finding states that the grievance was filed on May 29 [not 24], 1995, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted as true and incorporated in substance.
9-12. Accepted as true and incorporated in substance.
13-14. Rejected as findings of fact because they are more in the nature of a statements of law than findings of fact.
Accepted as true and incorporated in substance.
First sentence: Accepted as true and incorporated in substance; Remaining sentences: Rejected as findings of fact because they are more in the nature of legal argument than findings of fact.
COPIES FURNISHED:
Stephen R. Chernaik
440 27th Street
West Palm Beach, Florida 33407
Karen M. Miller District Legal Counsel
Department of Health and Rehabilitative Services
111 South Sapodilla Avenue
West Palm Beach, Florida 33401
Richard Doran, General Counsel Department of Health and
Rehabilitative Services
1317 Winewood Boulevard, Room 204
Tallahassee, Florida 32399-0700
Gregory D. Venz, Agency Clerk Department of Health and
Rehabilitative Services
1317 Winewood Boulevard, Room 204X Tallahassee, Florida 32399-0700
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 of time 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.
| Issue Date | Proceedings |
|---|---|
| Jan. 08, 1997 | Final Order filed. |
| Aug. 05, 1996 | Petitioner`s Motion to Amend His Final Argument and Amendment filed. |
| Jul. 30, 1996 | Ltr. to Agency Clerk, DHRS from S. Bragg enclosing exhibits that were inadvertently omitted when the Recommended Order was transmitted sent out. |
| Jul. 29, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 06/27/96. |
| Jul. 23, 1996 | Final Arguments From Plaintiff filed. |
| Jul. 22, 1996 | (Karen Miller) Proposed Recommended Order filed. |
| Jul. 18, 1996 | (Respondent) Proposed Recommended Order (for HO signature) (filed via facsimile). |
| Jul. 17, 1996 | Order sent out. (PRO`s are due by 7/25/96) |
| Jul. 16, 1996 | (Petitioner) Extension of Deadline for Final Argument filed. |
| Jun. 27, 1996 | Final Video Hearing Held; for applicable Time frames, refer to CASE STATUS form stapled on right side of Clerk`s Office case file. |
| Jun. 25, 1996 | HRS Exhibits filed. |
| Jun. 25, 1996 | Mr. Chernaik's Exhibits filed. |
| Jun. 20, 1996 | Amended (As to Tallahassee Hearing Location Only) Notice of Video Hearing sent out. (Video Final Hearing set for 6/27/96; 1:00pm; WPB & Tallahassee) |
| Jun. 20, 1996 | Letter to HO from C. Dolling Re: Arrangement for witness M. Dinkins filed. |
| Jun. 11, 1996 | Notice of Video Hearing sent out. (Video Final Hearing set for 6/27/96; 1:00pm; WPB & Tallahassee) |
| Jun. 03, 1996 | Order sent out. (hearing continued) |
| Jun. 03, 1996 | (Respondent) Motion to Continue filed. |
| May 31, 1996 | Respondent`s Supplemental Answers to Interrogatories filed. |
| May 23, 1996 | Respondent`s Answers to Interrogatories filed. |
| May 20, 1996 | Subpoena Duces Tecum (from S. Cherniak) filed. |
| May 08, 1996 | (Petitioner) Interrogatories filed. |
| Mar. 13, 1996 | Order sent out. (hearing set for 6/5/96; 9:30am; WPB) |
| Mar. 11, 1996 | Joint Motion for Continuance filed. |
| Mar. 07, 1996 | Notice of Hearing sent out. (hearing set for 3/22/96; 9:30am; WPB) |
| Feb. 16, 1996 | Ltr. to S. Smith from Steven R. Cherniak re: Reply to Initial Order filed. |
| Feb. 08, 1996 | Initial Order issued. |
| Jan. 30, 1996 | Notice; Request for Administrative Hearing, Letter Form, (Exhibits); Agency Action ltr. filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 03, 1997 | Agency Final Order | |
| Jul. 29, 1996 | Recommended Order | HRS authorized but not required to make employee's pay equal to pay of less experienced but otherwise similarly situated employees; no retroactivity. |
