Judges: K. N. AYERS
Agency: Office of the Governor
Latest Update: Jul. 19, 1989
Summary: Whether Respondent complied with the terms of the stipulated settlement dated December 22, 1988.Petitioner bound by settlement agreement all conditions of which had been complied with by respondent
88-2821.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN J. MACHULES, )
)
Petitioner, )
)
vs. ) CASE NO. 88-2821
)
DEPARTMENT OF INSURANCE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on July 6, 1989 at Tampa, Florida.
APPEARANCES
For Petitioner: John Zajac
AFSCME
1703 Tampa Street, Suite 1
Tampa, Florida 33602
For Respondent: John Hale, Esquire
200 East Gaines Street 413-B Larson Building
Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUES
Whether Respondent complied with the terms of the stipulated settlement dated December 22, 1988.
PRELIMINARY STATEMENT
This case has a long history. On February 4, 1985, John J. Machules, Petitioner, was notified he was terminated from his employment by the Department of Insurance, Respondent, on allegations that he had abandoned his position by unauthorized absence for three consecutive days; and was notified that he had the right to appeal this decision to the Department of Administration within twenty (20) days. To challenge this determination Respondent went to his union representative who filed a contractual grievance on his behalf on February 4, 1985. When the hearing on this grievance was held it was determined that the issue of abandonment was not cognizable under the labor agreement and that Petitioner's recourse was through an administrative hearing pursuant to Section 22A-7.10(2), Florida Administrative Code.
When Petitioner promptly filed a request for such a hearing, more than twenty 20 days had elapsed since Petitioner had been notified of his right to
the Chapter 120 Florida Statutes hearing, and his appeal was denied as untimely filed and outside the agency's jurisdiction.
This determination was affirmed by the District Court of Appeal and appealed to the Supreme Court of Florida which, in Machules v. Department of Administration, Case No. 70,311 dated March 31, 1988, held that under the doctrine of equitable tolling the 20 day limitation on requesting an Administrative Hearing had been tolled by the attempted grievance procedure and that Machules was entitled to a 120.57(1) hearing to challenge the abandonment charge.
By letter dated June 7, 1988 the Department of Administration forwarded the Court's mandate and requested a hearing officer be assigned. This case was initially scheduled to commence September 27, 1988, was subsequently continued until October 26, 1988, was continued indefinitely on joint motion of the parties, was subsequently rescheduled for March 1, 1989, by notice of hearing dated December 16, 1988, and abated upon receipt of information from Respondent that a settlement agreement had been executed.
On March 1, 1989, Machules called this office to advise he had appeared at the time and place scheduled for the hearing and no one had advised him the hearing had been cancelled. By letter dated February 5, 1989 (which Machules later advised was written March 5), to AFSCME, copy to Hearing Officer, Machules stated the settlement had not been consummated, the March 1, 1989 hearing had been cancelled without his knowledge, and that he was unaware the issues had all been resolved.
By letter dated June 2, 1988, the Respondent, by and through its attorney, advised this Hearing Officer that a settlement document had been executed by the parties in December 1988, that the Department had been attempting to obtain information from Machules needed to calculate the deductions from his compensation during the period Respondent had agreed to reimburse Machules, and that this file should be closed.
In view of Petitioner's allegations that a settlement had not been completed, although a copy thereof had been filed in this case by Respondent, this case was scheduled to be heard on July 6, 1989, by notice of hearing dated June 16, 1989. The issue was not whether Petitioner had abandoned his position but whether Respondent had complied with the terms of the settlement agreement.
At the hearing Petitioner testified in his own behalf and 18 Exhibits were admitted into evidence. There is no dispute as to the operable facts here involved.
FINDINGS OF FACT
By Stipulated Settlement and Mutual Release executed December 22, 1988, (Ex. 1) signed by Mike Gresham, Director, Division of Administration, Department of Insurance and John Machules, the parties agreed to settle all issues and conclude the litigation and all claims in this case. The Deputy Commissioner approved the agreement on December 28, 1988, making it final with respect to both parties.
In consideration of the Department agreeing to pay Machules the salary he would have earned plus compensation for the leave he would have earned between February 1, 1935 and December 31, 1988, in the gross amount of
$76,713.33, Machules agreed to:
Waive any and all present or future claims against the Department concerning the abandonment action;
Waive the right to hearing in this matter and to dismiss with prejudice the case currently pending before the Division of Administrative Hearings;
Voluntarily tender his resignation from employment with the Department effective
at 5:00 p.m. on December 31, 1988; and
Release the Department from all acts or omissions alleged or which could have
been alleged in this cause of action or any derivative or collateral action at law or in equity.
On December 22, 1988, Machules tendered his resignation effective 5:00 pm. December 31, 1988, (Ex. 1).
On December 22, 1988, Machules, in consideration of the sum of
$76,71.33 minus standard deductions (Ex. 1) executed a RELEASE releasing the Department from all claims arising from the termination of his employment with the Department.
By letter dated December 9, 1988, (Ex. 2) Machules was advised by the Department that all details of the settlement had to be accepted and approved prior to the end of December 1988, that the Department could not credit him with an additional year of credible service (to qualify Machules for retirement) and if this was a condition he insisted upon, the case would proceed to hearing.
By letter dated January 4, 1989, (Ex. 3) from the Department to Petitioner's then acting attorney, Machules was advised that the Comptroller's office needed a new W-4 form from Machules and affidavit of his earnings during the period the Department had agreed to pay him.
By letter dated February 1, 1989, (Ex. 4) from the Department to Petitioner's attorney, Machules was advised of an IRS levy on Machules' salary and requested documentation that the delinquent taxes had been paid.
By letter dated February 27, 1989, (Ex. 4) from the Department to Petitioner's attorney, the attorney was advised that Machules had telephoned the Department lawyer regarding the IRS lien and that he had advised Machules that his attorney should make the contact and further advised Machules that the information on this lien could be obtained from the Comptroller's office. The attorney was also advised that Machules had requested subpoenas for the earlier scheduled March 1, 1989, hearing.
By letter dated March 17, 1989, (Ex. 5) the Comptroller's office advised the Department that all issues in the Machules' back pay award had been resolved except for Machules' interim earnings during the back pay period.
By letter dated March 21, 1989, (Ex. 6) the Department forwarded a copy of the Comptroller's letter (Ex. 5) to Machules' attorney requesting income tax returns for the years 1986, 1987 and 1988 or W-2 forms for those years, either of which would be acceptable to the Comptroller.
By letter dated March 31, 1989, (Ex. 8) the Department forwarded to Machules' attorney a copy of a letter and affidavits received by the Comptroller's office from Machules and advised the attorney that more specific information was required by the Comptroller before Machules' claim could be paid.
By letter dated April 3, 1989, (Ex. 9) Machules wrote to Respondent's attorney acknowledging receipt of a copy of Exhibit 8 and stating, among other things, that since he had not received the $76,000.00 by December 31, 1988, "The tentative settlement agreement was NULL and VOID." However, he included a list of one place "employed from 1971 to present" and part-time employment at other places in 1987 and 1988. No specific earnings were provided.
By letter dated April 12, 1989, (Ex. 10) the Department replied to Exhibit 9 emphasizing to Machules that it was the Comptroller that needed to be satisfied about Machules' interim earnings before it could pay his claim and he would not be paid until he satisfied the Comptroller on this point.
By letter dated April 13, 1989, (Ex. 11) Machules forwarded to the Department copies of 1099-MISC and W-2's for 1987 and 1988. Receipt of this letter which provided the information previously requested was acknowledged by Respondent on April 18, 1989 (Ex. 12).
By letter dated April 20, 1989, (Ex. 13) the Department forwarded to Machules' attorney a warrant dated 4/19/89 in the amount of $50,572.33 payable to John J. Machules with a Retroactive Payment Schedule showing a deduction for interim earnings, withholding tax and social security tax.
By separate letter dated April 20, 1989, (Ex. 14) the Department advised Machules that the check settling his claim for back pay had been forwarded to Machules' attorney.
By letter dated May 11, 1989, (Ex. 15) to Machules' attorney, the Department inquired if Machules had received payment so this case could be closed.
By letter dated May 9, 1989, (Ex. 17) Machules was advised by AFSCME that the check being held for him would be returned to the Department if he did not pick it up before May 22, 1989. By letter dated May 13, 1989 (Ex. 17) Machules requested AFSCME to forward the check to him. This was done on May 25, 1989, (Ex. 17). On June 1, 1989, (Ex. 17) Machules acknowledged receipt of the check "as part payment for a future settlement."
By letter dated June 23, 1989, (Ex. 16) AFSCME legal counsel advised that the union would not provide legal counsel at an abandonment hearing but would provide a representative to assist him at such a hearing.
On the witness stand Petitioner acknowledged signing the settlement agreement and his letter of resignation from the Department; and that he received and cashed a check in the amount of $50,572.33. He also received an accounting of all deductions from the $76,717.33 noted in the stipulated settlement.
Petitioner contends that because he didn't receive $76,717.33 in December 1988 the settlement stipulation became void as well as did his resignation. He could point to no line of either document indicating the stipulated settlement was void or voidable if all conditions were not met by
December 31, 1988. In fact, Petitioner testified that he really didn't expect to get the check until January 1989, at the earliest.
Delays in cutting the warrant and paying Petitioner the funds due under the settlement was due to Petitioner's failure to promptly provide proof to the Comptroller of his other earnings between February 1985 and December 1988.
Respondent has fully complied with the terms of the settlement stipulation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.
The stipulated settlement entered into by the parties and accepted by the Commissioner of Insurance constitutes a contract in which valuable consideration was given by each party. That contract became binding when executed and approved by the Deputy Commissioner of Insurance.
Petitioner's resignation became effective when accepted by the Department. While the promises made by Petitioner were conditioned upon Respondent paying back wages agreed to by Respondent, there was no provision in the contract specifying the time frame in which such payment should be made. Absent a specific time for payment the law provides such payment be made in a reasonable time.
Inasmuch as the amount of back pay to be paid Petitioner depended upon Petitioner's earnings during the nearly three years for which he was to receive back pay, it was incumbent upon Petitioner to provide this information which was timely requested by Respondent. All delays in the payment to Petitioner were the result of Petitioner's failure to provide the information requested which only he could provide.
Even if the agreement was voidable by reason of Respondent not making the payment agreed upon prior to the end of calendar year 1988, by accepting the payment on the date delivered Petitioner ratified the contract.
Petitioner's contention that the agreement was void because he did not receive the back pay sooner is totally without merit.
Petitioner agreed to voluntarily dismiss all claims against the Department resulting from the abandonment charge upon receipt of the payment of back pay and to fully release Respondent from all liability resulting from this action. Respondent has now fully complied with the terms of the stipulated settlement and the settlement requires the Petitioner's claims to be dismissed.
From the foregoing it is concluded that the Department of Insurance has fully complied with the terms of the stipulated Settlement and Mutual Release executed December 22, 1988 and approved by the Deputy Commissioner of Insurance on December 28, 1988, and that Petitioner is therefore required to comply with his promises.
RECOMMENDATION
It is recommended that all claims of John J. Machules resulting from the charges of abandonment of position in February, 1985, be dismissed.
ENTERED this 19th day of July, 1989, in Tallahassee, Leon County, Florida.
K. N. AYERS 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 19th day of July, 1989.
COPIES FURNISHED:
John Zajac AFSCME
1703 Tampa Street, Suite 1
Tampa, Florida 33602
John Hale, Esquire
200 East Gaines Street 4l3-B Larson Building
Tallahassee, Florida 32399-0300
Honorable Tom Gallagher State Treasurer and
Insurance Commissioner The Capitol, Plaza Level
Tallahassee, Florida 32399-0300
Don Dowell, Esquire General Counsel Department of Insurance
and Treasurer
The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Docket for Case No: 88-002821
Orders for Case No: 88-002821
| Issue Date |
Document |
Summary |
|
Sep. 28, 1989 |
Agency Final Order
|
|
|
Jul. 19, 1989 |
Recommended Order
|
Petitioner bound by settlement agreement all conditions of which had been complied with by respondent
|
