STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAN B. GLASS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3162

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick held a public hearing in the above-styled case on April 30, 1985, at Tallahassee, Florida.

APPEARANCES

For Petitioner: John C. Pelham, Esquire

424 East Call Street Tallahassee, Florida 32301

For Respondent: Daniel C. Brown, Esquire

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

PRELIMINARY STATEMENT

Petitioner, Dan B. Glass, filed a petition, pursuant to Section 120.565, Florida Statutes, with Respondent, Department of Administration, for a declaratory statement as to the applicability of Rule 22A-8.10(4)(c), F.A.C., to leave in excess of 240 hours purportedly accrued by Petitioner prior to December 31, 1961. Respondent forwarded Petitioner's request to the Division of Administrative Hearings and requested the assignment of a Hearing Officer to conduct a hearing pursuant to the `provisions of Section 120.57(1), Florida Statutes.

At the final hearing Petitioner testified on his own behalf, and called Arthur S. Adams, J. W. Melvin, and David W. Soule, as witnesses. Petitioner offered Exhibits 1-5, and Exhibits 1-4 were received into evidence. Respondent called Sandra Brooks as a witness, and offered Exhibit 1, which was received into evidence.

At the parties' request an extension of time was given in which to submit proposed findings of fact and conclusions of law. The parties waived the requirement set forth in Rule 28-5.402, F.A.C., that a recommended order be entered within 30 days after the hearing.

The parties have submitted proposed findings of fact and conclusions of law, and they have been reviewed and considered. To the extent the parties' findings of fact were consistent with the greater weight of the evidence, or could be modified to conform to the greater weight of the evidence, they have been adopted in this Recommended Order. To the extent the parties' findings of fact could not be modified to conform to the greater weight of the evidence, or were subordinate, cumulative, immaterial or unnecessary, they have been rejected.

FINDINGS OF FACT

1. From July 1946 until his retirement from the state career service system on June 30, 1983, Petitioner was an employee of the Department of Labor and Employment Security or its predecessor agencies (the Florida Industrial Commission, the Department of Commerce, and the War Manpower Commission), hereinafter collectively referred to as the Department.

   
   

2. The Department, at the time of Petitioner's initial employment, established and administered its own leave policies. Subsequently, the Florida Merit System was expanded to cover all state agencies, including the Department, and uniform personnel policies and practices, including the accumulation of annual leave, were established. Effective July 1, 1957 the accumulation of annual leave for employees of the Department, as with employees of all state agencies, was limited to 240 hours.

   
   

3. Initially, Merit System leave regulations provided that leave accumulated by employees of agencies with existing leave regulations, such as the Department, would be credited to their accounts as of July 1, 1957, but any accumulated leave in excess of 240 hours would become void after December 31, 1959. At the behest of the Department, the deadline within which excess accumulated leave had to be utilized was extended to December 31, 1961. Essentially employees were afforded four and one-half years within which to utilize their excess accumulated annual leave or forfeit it.

   
   

4. Upon his retirement June 30, 1983, Petitioner was paid for, and had computed as part of his Average Final compensation; the annual leave he had accumulated up to a maximum of 240 hours in accordance with Rule 22A-8.10,

   F.A.C. That rule, or its predecessor, has contained the same 240-hour limitation since December 31, 1961.

   
   

5. Petitioner asserts that he had accumulated leave in excess of 240 hours on December 31, 1961. While the evidence does establish Petitioner had excess leave on that date, there was no competent evidence presented from which his actual leave balance could be established. The actual amount of Petitioner's excess leave is not, however, significant since any annual leave he had in excess of 240 hours was void after December 31, 1961.

   
   

6. Notwithstanding the voiding of his excess annual leave, Petitioner asserts that his entitlement to such leave still exists because of certain assurances he received from his supervisors. According to Petitioner, he was unable to utilize his excess leave between July 1, 1957 and December 31, 1961, because he was on "special assignments" for the Department which precluded his absence from work. Consequently, Petitioner says, `his supervisors "assured" him that they would see to it that he "got his excess leave."

   
   

7. It is worthy of note that the supervisors who purportedly gave such assurances have been dead for over a decade, that there exists no corroborating

   evidence of Petitioner's assertions, and that at no time during the ensuing 23 years did Petitioner raise any issue concerning, or attempt to use, the leave which had been forfeited. It is further worthy of note that while purportedly assured he would "get his excess leave," Petitioner received no assurance he would be paid for it upon retirement.

   
   

8. It is unnecessary to decide whether such assurances were in fact given. The evidence is clear that the supervisors in question had no authority, real or apparent, to bind the State by such assurances. Further, any reliance Petitioner may have placed on such assurances would not have been reasonable, since such assurances were contrary to existing regulations.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Petitioner requests a declaratory statement of whether Rule 22A-8.10, F.A.C., precludes compensation, upon retirement, for any annual leave he accrued, in excess of 240 hours, prior to December 31, 1961.

    
    

11. Declaratory statements are not rendered on hypothetical questions. There must exist a controversy, question or doubt upon which to predicate a declaratory statement. Rule 28-4.05, F.A.C.

    
    

12. In the instant case, the evidence is clear that any excess leave Petitioner may have had was, pursuant to Florida Merit System regulations, rendered void after December 31, 1961. Petitioner's supervisors had no authority to, nor did they agree to, compensate Petitioner for any excess leave. Woodham v. City of Jacksonville, 276 So.2d 1975 (Fla. 1st DCA 1973).

    
    

13. Petitioner, having failed to establish that any excess leave he may have accrued prior to December 31, 1961, is still existent, has failed to establish a controversy, question or doubt upon which to predicate a declaratory statement.

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Petition for

Declaratory statement.

DONE AND ENTERED this 28th day of June, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

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 28th day of June, 1985.

COPIES FURNISHED:

John C. Pelham, Esquire

424 East Call Street Tallahassee, Florida 32301

Daniel C. Brown, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

DAN B. GLASS,

Petitioner,

vs. DOA CASE NO. A-84-52

DOAH CASE NO. 84-3162

STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION,

Respondent.

/

FINAL ORDER

This matter is before the Department for entry of a final order. The Recommended Order of the Hearing Officer was entered in this case on June 28, 1985, and the period for filing exceptions thereto has expired with exceptions having been solely filed by the Department of Administration.

The exceptions filed by the Department of Administration are supported by competent substantial evidence in this proceeding and the law and are therefore granted. The Findings of Fact as determined by the Hearing Officer are modified to include Findings of Fact numbers 5, 7, and 8 in the Department of Administration's Proposed Recommended Order. Additionally, the Conclusions of Law as determined by the Hearing Officer are modified to include paragraphs 9 and 11 of the Department of Administration's Proposed Recommended Order and are

further modified to the extent said Recommended Order fails to conclude that the doctrine of laches prohibits the granting of a declaratory statement in this matter, that the Petitioner lacks standing to seek a declaratory statement, and that he failed to establish a prima facie case for such declaratory statement.

FINDINGS OF FACT

1. The agency adopts the Findings of Fact set forth in the Recommended Order as follows:

   
   

   "1. From July 1946 until his retirement from the state career service system on June 30, 1983, Petitioner was an employee of the Department of Labor and Employment Security or its predecessor agencies (the Florida Industrial Commission, the Department of Commerce, and the War Manpower Commission), hereinafter collectively referred to as the Department."

   
   

   "2. The Department, at the time of Petitioner's initial employment, established and administered its own leave policies.

   Subsequently, the Florida Merit System was expanded to cover all state agencies, including the Department, and uniform personnel policies and practices, including the accumulation of annual leave, were established. Effective July 1, 1957, the accumulation of annual leave for employees of the Department, as with employees of all state agencies, was limited to 240 hours."

   
   

   "3. Initially, Merit System leave regulations provided that leave accumulation by employees of agencies with existing leave regulations, such as the Department, would be credited to their accounts as of July 1, 1957, but any accumulated leave in excess of 240 hours would become void after December 31, 1959. At the behest of the Department, the deadline within which excess accumulated leave had to be utilized was extended to December 31, 1961.

   Essentially employees were afforded four and one-half years within which to utilize their excess accumulated annual leave or forfeit it."

   
   

   "4. Upon his retirement June 30, 1983, Petitioner was paid for, and had computed as part of his Average Final Compensation, the annual leave he had accumulated, up to a maximum of 240 hours, in accordance with Rule 22A-8.10, F.A.C. That rule, or its predecessor, has contained the same 240- hour limitation since December 31, 1961."

   "5. Petitioner asserts that he had accumulated leave in excess of 240 hours on December 31, 1961. While the evidence does establish Petitioner had excess leave on that date,

   there was no competent evidence presented from which his actual leave balance could be established. The actual amount of Petitioner's excess leave is not, however, significant since any annual leave he had in excess of 240 hours was void after December 31, 1961."

   
   

   "6. Notwithstanding the voiding of his excess annual leave, Petitioner asserts that his entitlement to such leave still exists because of certain assurances he received from his supervisors. According to Petitioner, he was unable to utilize his excess leave between July 1, 1957 and December 31, 1961, because

   he was on `special assignments' for the Department which precluded his absence from work. Consequently, Petitioner says, his supervisors `assured' him that they would see to it that he `got his excess leave."

   
   

   "7. It is worthy of note that the supervisors who purportedly gave such assurances have been dead for over a decade, that there exists no corroborating evidence of Petitioner's asser- tions, and that at no time during the ensuing

   23 years did Petitioner raise any issue con- cerning, or attempt to use, the leave which had been forfeited. It is further worthy of note that while purportedly assured he would "get his excess leave," Petitioner received no assurances he would be paid for it upon retirement."

   
   

   "8. It is unnecessary to decide whether such assurances were in fact given. The evidence is clear that the supervisors in question had no authority, real or apparent, to bind the State by such assurances. Further, any reliance Petitioner may have placed on such assurances would not have been reasonable, since such assurances were contrary to existing regulations."

   
   

2. The agency modifies the Findings of Fact included in the Recommended Order by including the following:

   
   

3. Petitioner asserts that upon commencing employment with the War Manpower Commission, he was told that he could accrue annual leave in unlimited amounts and that such alleged policy continued through 1957 as the policy of LES. Petitioner had no written contract of employment specifying leave accrual, carrying provisions or a promise to pay for unused leave upon termination between 1946 and 1952. Petitioner produced no competent evidence that the leave

   policies he alleges to have been extant at that time were in fact, the authorized and official leave policies of LES. Petitioner asserts that he came to his understanding of LES leave policy as alleged in his petition through conversations with his supervisory personnel at the time of his employment and thereafter through 1957. However, all those persons are now long deceased.

   Further, Petitioner was unable to recall the amount of leave per pay period he was allowed to accrue between 1946 and 1957. Petitioner presented a document designated Annual Leave Computation (Petitioner's #3) , which purports to reconstruct Petitioner's leave accrual by pay period between 1946 and 1961 However, that exhibit was not constructed from actual leave records of Mr. Glass or from official leave policy memoranda of LES, such source records being non- existent at the time that Exhibit 3 was prepared. That exhibit is thus without adequate foundation and is an improper summary of Petitioner's leave accrual.

   Moreover, Petitioner presented no competent evidence of his annual leave usage between 1946 and 1961, so that his actual annual leave balance, if any, on December 31, 1961, might be determined by deducting leave actually used from figures shown on Petitioner's Exhibit 3, assuming those figures were themselves true and accurate. Further, Petitioner's assertion that he was entitled to accrue annual leave in unlimited amounts between 1946 and 1957, is undermined by the very case upon which he relies in support of his claim in this matter. In Green v. Galvin, 114 So.2d 187 (Fla. 1st DCA 1959), the Court discussed the annual leave provisions of the Florida Industrial Commission between 1942 and 1957. The Court characterized such leave as follows:

   
   

   Leave was allowed to accumulate provided that the maximum accumulation could not exceed 480 hours.

   
   

   Id. at 188. While that characterization is not issue-preclusive between the parties in the instant matter, the record of that proceeding is subject to official notice, and, given the lack of recall of Petitioner and his witnesses on the subject, the undersigned finds it to be persuasive and determines that the Petitioner was not, in fact, entitled to accrue annual leave in unlimited amounts between 1946 and 1957.

   
   

4. Petitioner knew on December 31, 1961, that any annual leave in excess of 240 hours was cancelled and his account was to be reduced to 240 hours of such leave if he had any leave in excess of 240 hours. Petitioner was on that date aware of his right to challenge such action and testified that had he instituted suit on the matter at that time, in his opinion, he knew he would win. He was personally familiar with the Green v. Galvin case, cited above.

   
   

5. Petitioner did not bring legal action in 1961 or thereafter to enforce his alleged rights to restoration of his leave balance, nor did he advise LES to preserve his leave records between 1946 and 1961 in contemplation that he might in the future institute legal proceedings on the matter. He first requested his leave records in 1983 and did not file this proceeding until May 21, 1984, some

   23 years after the events giving rise to his cause of action on December 31, 1961. In the interim, records of leave policy accrual and usage were lost or destroyed and cannot now be located, witnesses crucial in providing evidence regarding the allegations of Petitioner have died, and recall among other witnesses has faded. It is evident that the Department of Administration is prejudiced in the defense of this matter by the absence of witnesses to conversations which Petitioner claims he had and which are central to the establishment or repudiation of his assertions.

   CONCLUSIONS OF LAW

   
   

6. The agency accepts and adopts the following conclusions of law contained in the Recommended Order:

   
   

   "2. Petitioner requests a declaratory statement of whether Rule 22A-8.10, F.A.C., precludes compensation, upon retirement, for any annual leave he accrued, in excess of

   240 hours, prior to December 31, 1961."

   
   

   "3. Declaratory statements are no rendered on hypothetical questions. There must exist a controversy, question, or doubt upon which to predicate a declaratory statement. Rule 28-4.05, F.A.C.

   
   

   "4. In the instant case, the evidence is clear that any excess leave Petitioner may have had was, pursuant to Florida Merit System regulations, rendered void after December 31, 1961. Petitioner's supervisors had no authority to, nor did they agree to, compensate Petitioner for any excess leave. Woodham v. Cite of Jacksonville, 276 So.2d 1975 (Fla. 1st DCA 1973)."

   
   

   "5. Petitioner, having failed to establish that any excess leave he may have accrued prior to December 31, 1961 is still existent,

   has failed to establish a controversy, question or doubt upon which to predicate a declaratory statement."

   
   

7. The agency adopts additional conclusions of law as set forth in the following numbered paragraphs:

   
   

8. This petition is in substance no more than a claim for unpaid wages or breach of contract. The cause of action as to such claims arose no later than December 31, 1961 and, under Chapter 95, Florida Statutes, Petitioner'S cause of action, if filed as an action at law, would have been barred by December 31, 1965. See s. 95.11(3)(k) , Florida Statutes. While this is not an action at law to which the limitations of Chapter 95 technically apply, the doctrines of laches, equitable estoppel and waiver do apply in administrative proceedings. Devine v. Department of Professional Regulation, 9 Fla. L. Weekly 1377 (Fla. 1st DCA 1984). In applying those doctrines, resort to the applicable limitations provided in Chapter 95 is appropriate. St. Petersburg v. Norris, 335 So.2d 333 (Fla. 2d DCA 1976). All the elements of laches are established by the evidence in this case. The conduct giving rise to Petitioner's claim was undertaken by LES, which administered leave regulations as of 1961 at the direction of the Department of Administration or its predecessor, the State Personnel Board. Petitioner, having knowledge of that conduct on December 31, 1961, and knowledge of his rights, failed to institute suit for 23 years. Nor did he advise LES or the Department of Administration that he would in the future institute suit on the right he now alleges. The earliest inkling that petitioner might do so was 1983. By then, key witnesses were dead and key records lost or destroyed. The Petitioner now seeks to place the State in the position of making financial

   payments to him when its ability to ascertain the true facts s or rounding his claim is severely hampered by the passage of time and the loss of evidence.

   This petition is barred under the doctrines of equitable estoppel, laches, and waiver.

   
   

9. In the alternative, Petitioner failed to present a preponderance of competent substantial evidence to show (1) that he was entitled between 1946 and 1957 to accrue annual leave in unlimited amounts, (2) that he had a leave balance in excess of 240 hours on December 31, 1961, or that such leave was his property, in the sense that it was his to do with as he pleased. Payment for such leave is lawful only in accordance with specific statutory authority, and then subject to limitations on such authority. Woodham v. City of Jacksonville

276 So.2d 175 (Fla. 1st DCA 1973); AGO 071-74. There was no competent, substantial evidence presented by Petitioner that statutory authority existed for the alleged right to accrue, carry from year to year, and be compensated for the annual leave in unlimited amounts. Nor is there competent evidence that the Florida Industrial Commission, under such authority, officially adopted a policy of that nature with respect to leave or that such policy applied to Petitioner during the period from 1946 to 1957. Further, Petitioner presented no competent evidence as to what his alleged leave balance in excess of 240 hours was on December 31, 1961. Without such proof, Petitioner lacks standing to seek the declaratory statement set forth in his petition and failed to show a prima facie case entitling him to such declaration. Without proof that Petitioner was legally authorized to accrue a leave balance in excess of 240 hours in an unlimited fashion, without proof that he had such an excess leave balance and what it was, Petitioner fails to establish a factual predicate for a determination that Rule 22A-8.10 may operate to remove leave otherwise granted. Accordingly, on these alternative grounds, the petition must be dismissed.

ORDER

Accordingly, it is ORDERED:

1. That the petition for declaratory statement is hereby dismissed.

   
   

2. This Order constitutes final agency action. Judicial review of this proceeding may be instituted by the filing of a Notice of Appeal in the appropriate District Court of Appeal pursuant to Section 120.68, Florida Statutes. Such notice must be filed with the District Court of Appeal within thirty (30) calendar days of the date of this Order or further review of this action will be barred.

So Ordered in Tallahassee, Florida, this 13th day of August, 1985.

GILDA H. LAMBER

Secretary of Administration

435 Carlton Building Tallahassee, Florida 32301 (904) 488-4116

Certificate of Clerk

Filed in the official records of the Department of Administration this 13th day of August, 1985.

Clerk

COPIES FURNISHED:

Daniel C. Brown, General Counsel Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Attorney for Respondent

William J. Kendrick Hearing Officer

Division of Administrative Hearings 2009 Apalachee Pkwy., Oakland Bldg. Tallahassee, Florida 32301

John C. Pelham, Esquire

424 E. Call Street Tallahassee, Florida 32301

Attorney for Petitioner Richard L. Kopel

Deputy General Counsel

Respondent Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 84-003162

Orders for Case No: 84-003162