STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF UNEMPLOYMENT COMPENSATION )

)

Petitioner )

)

v. ) CASE NO. 84-3072

)

FLAGLER COUNTY BOARD OF )

COUNTY COMMISSIONERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above captioned case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander on January 24, 1985 in Bunnell, Florida.

APPEARANCES

For Petitioner: Kenneth H. Hart, Jr., Esquire

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301

For Respondent: Noel C. McKinnon, Esquire

Post Office Drawer 9670 Daytona Beach, Florida 32020

BACKGROUND

This matter began when petitioner, Department of Labor and Employment Security, Division of Unemployment Compensation, issued a notice of intent to certify delinquency on July 10, 1984 to respondent, Flagler County Board of County Commissioners, advising that it intended to certify to the Department of Banking and Finance that respondent was more than 120 days delinquent in paying petitioner $6,408.71, including interest, in unemployment compensation benefits paid to twelve former employees of respondent.

Respondent disputed the above allegations and requested a formal hearing to contest the proposed agency action. The matter was forwarded to the Division of Administrative Hearings by petitioner on august 24, 1984, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated October 15, 1984, a final hearing was scheduled on December 3, 1984, in Tallahassee, Florida. At the request of respondent the final hearing was rescheduled to January 24, 1985 in Bunnell, Florida.

On January 11, 1985, petitioner issued an amended notice of intent to certify delinquency wherein it reduced the amount of alleged delinquency from

$6,408.71 to $5,204.79.

No testimony was presented at the final hearing. Rather, counsel eventually stipulated as to certain factual matters and the introduction into evidence of respondent's exhibit 1. Also submitted was a reimbursement notice which is hereby received as petitioner's exhibit 1.

The parties also agreed to submit memoranda of law within twenty days after designated excerpts of the transcript of hearing were prepared. A portion of the transcript of hearing was filed on April 12, 1985. Memoranda of law were filed by petitioner and respondent on March 15 and April 12, 1985, respectively.

During the course of the hearing respondent agreed that it owed petitioner all monies claimed in the amended notice of intent except those relating to two employees. This eliminated claims relating to ten of the twelve employees, and leaves only approximately $600 in dispute. At issue, then, is whether respondent owes petitioner reimbursements, including interest, due the Unemployment Compensation Trust Fund for benefits paid to two employees.

Based upon the stipulations and representations of counsel, as well as the pleadings filed herein, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Department of Labor and Employment Security, Division of Unemployment Compensation (Division), administers the State Unemployment Compensation Program, which includes the payment of benefits to unemployed individuals and the collection of taxes or reimbursement payments from employers to finance these benefits.

   
   

2. By law petitioner is authorized to seek reimbursement from political subdivisions for a pro-rata portion of benefits paid to their employees. If a subdivision fails to timely reimburse the State, the Division may certify the delinquent amount to the Department of Banking and Finance, and request the Comptroller to transfer funds otherwise due that entity to the Unemployment Compensation Trust Fund (Trust Fund).

   
   

3. If a subdivision contends an employee is not entitled to unemployment benefits, it may contest a claim for benefits with a claim examiner employed by the Division. That decision may be reviewed by an appeals referee, and if either side is still aggrieved, a final administrative appeal may be heard by the full Unemployment Compensation Commission. Those decisions are then reviewed only by the First District Court of Appeal.

   
   

4. Respondent, Board of County Commissioners of Flagler County (Board), is a political subdivision of the state, and is required by law to reimburse the Trust Fund for its pro-rate share of benefits paid to former employees.

   
   

5. On July 10, 1984, petitioner issued to respondent a notice of intent to certify delinquency wherein it claimed that between October 1, 1979 and December 31, 1983 respondent incurred a liability to the State totaling $6,409.71. This amount included $5,704.92 in benefits paid to former employees and $703.79 for 6 percent interest on overdue payments. That precipitated the instant controversy. The amount due was later reduced to $5,204.79 by the issuance of an amended notice of intent to certify delinquency on January 11, 1985.

6. At hearing respondent conceded it owed all claimed monies except those due for two individuals: Emma Worthington and Margaret Prather. This resolved more than 60 percent of the Division's claim leaving only around $600 in dispute.

   
   

7. Emma Worthington was a former employee of the Clerk of the Circuit Court of Flagler County (Clerk) and was never employed by the Board of County Commissioners of Flagler County. Nonetheless, for some reason, the Clerk reported Worthington's wages to the Division under the Employer Identification Number assigned to respondent. Because of this, the Division assumed respondent was Worthington's employer. When Worthington was terminated by the Clerk's office, she requested unemployment benefits. The Clerk filed an appeal with a claims examiner contesting the payment of such benefits. The examiner ruled that such benefits were due, and this decision was affirmed by both an appeals referee and the full commission.

   
   

8. As required by law, on an undisclosed date the Division forwarded a reimbursement notice to respondent advising that certain monies were due because of unemployment compensation payments made to Worthington. The Board did not respond to this notice but simply referred it to the Clerk's office. There is no evidence that the Division was ever formally notified by the Board that the employee was actually a Clerk employee, that the bill was forwarded to another party, or that the wrong Employer Identification number had been used. The bill was never paid.

   
   

9. Margaret Prather was an employee of the Flagler County Supervisor of Elections (Supervisor) when she was terminated from employment. Before that, she was a Board employee. While employed by the Supervisor of Elections, Prather's wages were erroneously reported to the Division under the Employer Identification number of respondent. Because of this, the Division assumed Prather was a Board employee. After she was terminated by the Supervisor, Prather received unemployment benefits. Whether the Supervisor contested these benefits is not known. In any event, the Division sent the Board a Reimbursement Invoice on an undisclosed date requesting reimbursement for benefits paid to Prather. The Board did not respond to the Invoice but simply forwarded it to the Supervisor. Again, there is no evidence that the Board advised the Division of the erroneous use of its Employer Identification number, that the bill had been forwarded to another party, or that Prather was not an employee. To date, the bill has not been paid.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

11. The Division's claim herein is filed pursuant to Subsection 443.131(5)(a) 2., Florida Statutes. That Subsection provides in relevant part as follows:

    
    

    In the event any political subdivision of the state or any instrumentality thereof becomes more than 120 days delinquent on reimbursements due to the Unemployment Compensation Trust Fund, then, upon request by the division after a hearing, the

    Department of Revenue or the Department of Banking and Finance, as the case may be, shall deduct the amount owed by the political subdivision or instrumentality from any

    funds to be distributed by it to the county, city, special district, or consolidated form of government for further distribution to

    the trust fund in accordance with this chapter.

    
    

12. Subsection 443.131(4)(b)4., Florida Statutes, is also relevant and it provides in pertinent part as follows:

    
    

    (b)4. The amount due specified in any bill from the division shall be conclusive on the organization unless, not later than 15 days after the bill was mailed to its last known address or otherwise delivered to it, the organization files an application for rede- termination by the division, setting forth the grounds for such application.

    
    

13. Under the foregoing statute, once a bill is mailed to an employer, if it disputes the bill it must seek a "redetermination" within fifteen days thereafter, or the bill becomes "conclusive" by operation of law. Petitioner contends that this law applies, and that because the Board did not seek a "redetermination," the bill became conclusive by operation of the law fifteen days later.

    
    

14. Obviously, the law would not apply where a bill was erroneously sent to a non-employer or one who was not subject to the Division's regulatory jurisdiction. But here the Board is an employer with an Employee Identification Number, has presumably been sent such bills on a recurring basis, and is expected to have reasonable knowledge pertaining to unemployment compensation claims and the procedure for contesting improper bills. Then, too, the wages for the two employees in question were reported using the Board's own Employee Identification Number, and the responsibility for correcting this mistake must rest with the Board. Therefore, it is concluded that the bills for employees Worthington and Prather became conclusive fifteen days after being mailed.

    
    

15. Respondent does not dispute the legitimacy of the Division's claims, but contends that the Division should resubmit its bills to the Clerk and Supervisor since Worthington and Prather were their employees at the time of termination. It points out that the Clerk and Supervisor are constitutional officers, distinct from the Board of County Commissioners, and by law the Board is precluded from paying the bills of another constitutional entity. While numerous cases can undoubtedly be cited for the general proposition that constitutional officers are separate and independent with individually established budgets, this is immaterial to the resolution of the case at bar. With good reason, the Division believed that the Board was responsible for the claims, and, as noted above, once the bills were sent to the Board they became conclusive fifteen days later by operation of law. Subsection 443.131(4)(b)4., Florida Statutes. Therefore, the Board is liable for the claims, and should seek reimbursement from its colleagues in whatever manner it chooses. 1/

    
    

16. It is concluded that the claim against the Board is conclusive, that the amounts in question are undisputed, and that the Board should reimburse the Division within thirty days from date of final order in this proceeding.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent reimburse petitioner for benefits paid to

employees Worthington and Prather as set forth in the amended notice of intent to certify delinquency within thirty days from date of final order.

DONE and ORDERED this 23rd day of April, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 23rd day of April, 1985.

ENDNOTE

1/ Section 129.06, Florida Statutes, may provide a means to resolve the dilemma of the Board being reimbursed by its Clerk and Supervisor counterparts. That section deals with the budget process for the three, and authorizes budget amendments, presumably including one which would allow reimbursement of 600 due from the Clerk and Supervisor.

COPIES FURNISHED:

Noel C. McKinnon, Jr., Esquire

P. O. Drawer 9670

Daytona Beach, Florida 32020

Kenneth Hart, Esquire

Suite 131, Montgomery Bldg.

2562 Executive Center, Circle East Tallahassee, Florida 32301

Docket for Case No: 84-003072

Orders for Case No: 84-003072