vs. ) CASE NO. 88-3535
ST. JOHNS RIVER WATER )
Respondent. )
Pursuant to notice, a formal hearing was held in this case in Palatka, Florida, on October 18, 1988, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.
For Petitioner: Joe H. Pickens, Esquire
For Respondent: John W. Williams, Esquire
St. Johns River Water Management District Palatka, Florida 32078-1429
Petitioner, Ms. Kay Willis, was terminated from her employment with Respondent, the St. Johns River Water Management District, on May 31, 1988. By letter dated June 6, 1988, Petitioner requested that her termination be reviewed by Respondent's Board of Governors. The parties, however, agreed to forward the case to the Division of Administrative Hearings for a formal hearing prior to the Board of Governors taking action.
At the hearing, Petitioner testified on her own behalf, presented the testimony of Ms. Gayle Gallagher and Ms. Daneese Kemp, and offered seven exhibits which were received into evidence. Respondent presented the testimony of Ms. Melanie West, Mr. David Porter, Ms. Jean Osterhout, Mr. Jeff Elledge and Mr. Wayne Flowers, and offered seven exhibits which were received into evidence.
After the hearing, both parties filed Proposed Recommended Orders containing proposed findings of fact. The proposed findings of fact are addressed in the Appendix attached to this Recommended Order.
Petitioner was an employee of Respondent's from December 8, 1984, until May 31, 1988.
Respondent is a water management district created pursuant to Section 373.069, Florida Statutes
Respondent provides health insurance to its employees through, what is, in effect, a self-insurance program. An employee who elects to receive single individual coverage under the health insurance program, receives the coverage for free. An employee choosing family coverage pays $59.00 per month to Respondent. Payment is made through payroll deductions.
Petitioner participated in the health insurance program. Petitioner elected to receive family coverage for herself, her husband, and her minor child by a prior marriage, and had $59.00 deducted from her paycheck to cover the cost of family coverage.
Under the provisions of 42 USCS Sec. 300bb (COBRA), Respondent is required, if certain conditions are met, to offer continuation coverage to beneficiaries of its health insurance program who would have otherwise lost their coverage under the plan. A beneficiary electing to receive continuation coverage is required to pay Respondent a premium amount not exceeding 102 percent of the amount it costs the program to provide coverage for beneficiaries of the plan. Continuation coverage for a single individual would have cost
$111.20 after June 1, 1988, and approximately $107.00 prior to June 1, 1988.
On March 4, 1987, Respondent prepared a memorandum addressed to all "Employees and Spouses" of Respondent's. The memorandum provided an explanation of the continuation coverage provisions of COBRA. Also, Respondent held a staff meeting to explain the COBRA provisions to employees. However, not all of Respondent's employees received the memorandum, attended the meeting, or were otherwise advised of the COBRA provisions. Petitioner was one of these employees.
In July 1987, Petitioners husband suffered a neck injury for which he received medical treatment during 1987. Petitioner's insurance coverage with Respondent paid the bills related to this treatment.
After several consultations with neurosurgeons, it was decided that Petitioner's husband should undergo surgery. The surgery was initially scheduled for the week before Thanksgiving, 1987. However, because of a problem with scheduling the operating room, the surgery was rescheduled for December 4, 1988.
Sometime in the fall of 1987, Petitioner had filed for divorce. Sometime in November 1987, Petitioner was informed that her divorce was on the judge's desk and would become final shortly.
Petitioner wanted her husband's surgery to be covered by her health insurance. Upon receiving notice that the divorce would become final shortly, she became concerned about what would happen if the divorce became final prior to the surgery taking place.
Petitioner went to Respondent's personnel office to find out what options there were for her husband to be covered by insurance in the event the
surgery took place after the divorce became final. At that time, Ms. Carol Donaldson was in charge of handling employee insurance matters for Respondent. Ms. Donaldson, however, was not in the office when Petitioner came in, and Petitioner spoke with Ms. Jean Osterhout.
Ms. Osterhout's position with the Respondent was as a Personnel Service Specialist in employee relations. At the time of her conversation with Petitioner, her duties did not specifically include insurance matters. However, when Ms. Donaldson left Respondent in mid-December, 1987, Ms. Osterhout was one of two people who handled the insurance office until a replacement was hired on February 2, 1988.
After explaining her concerns, Petitioner was told by Ms. Osterhout that under the COBRA act her husband could be covered by the insurance program if he paid the premiums. Petitioner asked what the premiums would be, and Ms. Osterhout responded she did not know, that she needed to investigate.
Petitioner asked Ms. Osterhout to investigate the price and to send her the proper forms to continue the coverage. Ms. Osterhout agreed to do this and told Petitioner to continue paying the premiums for family coverage until they got all the forms together.
In anticipation of her divorce, Petitioner had made arrangements for her son to be covered by his father's (her prior husband's) employer's insurance. In this manner, Petitioner could save $59.00 per month, since insurance coverage for her alone was provided at no charge.
On December 16, 1987, Petitioner's divorce became final.
About a month after her conversation with Ms. Osterhout, Petitioner asked Ms. Osterhout about the forms. Ms. Osterhout told Petitioner that she had been busy and had not had a chance to get them together, and for Petitioner to continue to pay the family premium.
Petitioner continued to have $59.00 deducted from her paycheck until her employment with Respondent ended.
The surgery which had been scheduled for December 4, 1987, was also cancelled. Petitioner's husband (now ex- husband) underwent surgery in March 1988.
At the time of the operation, Petitioner believed her ex-husband was covered by Respondent's insurance. On March 16, 1988, Petitioner accompanied her ex-husband to the hospital and signed the hospital's Agreement for Treatment, Insurance Assignments, Release of Information, Responsibility for Personal Items and Payment of Charges" as the insured party. Petitioner signed the document where she was told to sign by the hospital. At the time she signed it, the document did not contain the circle around the words "Spouse" and "Guardian." Petitioner signed the document as the "Insured," since she believed that her insurance with Respondent still covered her husband.
In April Respondent paid $8,109.35 under its insurance agreement as reimbursement for payment of Petitioner's ex-husband's surgery bills.
On April 6, 1988, Ms. Melanie West, Respondent's employee then responsible for handling insurance matters, asked Petitioner to complete a claim form for the surgery.
Upon receiving the claim form, Petitioner went to see Ms. West and told her that the surgery was related to an accident that had happened in 1987 and that she had filled out claim form in 1987. Ms. West told Petitioner she needed a new claim form. A new claim form was needed because it was the first claim that had been received in 1988 with respect to Petitioner's ex-husband's accident.
Petitioner asked Ms. West for a copy of the claim form she had filled out in 1987 and used this claim form to fill out the new claim form on April 6, 1988, with exactly the same information that she had included in the claim form filed in 1987. In doing so, Petitioner indicated on the claim form that she was married, since that is what the 1987 claim form showed. Petitioner wanted the claim forms to be exact because of concerns that her ex-husband might sue over the accident.
In May 1988, Respondent's finance and accounting department notified Ms. West that there may be a problem with the insurance claim for the surgery, since it was possible that Petitioner was no longer married.
After confirming with the Putnam County Courthouse that Petitioner had been divorced on December 16, 1987, Ms. West asked Petitioner to come to her office. When Petitioner arrived, Ms. West told her there appeared to be a problem with the claim for the surgery expenses because she had been told that Petitioner was no longer married. Ms. West asked Petitioner when she had been divorced. Petitioner initially responded that she had been divorced in April 1988, but upon being asked for written proof, Petitioner told Ms. West that the divorce had taken place in December 1987.
After several meetings took place between Petitioner and different persons in Respondents upper management, a meeting took place between Mr. Dean, Respondent's Executive Director; Mr. Flowers, the General Counsel; Ms. Horton and Mr. Wheeley, Assistant Executive Directors; Mr. Parker, Director of the Office of Employee Relations; and Mr. Elledge, Director of the Department of Resource Management. After reviewing and discussing the facts as they knew them, the group concluded that Ms. Willis had falsified the claim form and had lied to Ms. West.
The group decided that disciplinary action was warranted. After discussing a range of possible actions, Mr. Dean decided Petitioner should be given two options. Petitioner could either accept a five-day suspension without pay and agree to reimburse the $8,109.35, or be terminated.
After being informed of her options, Petitioner responded that she could not pay the money back. Therefore, she was terminated immediately, effective May 31, 1988. The termination letter states that the basis for dismissal was falsification of records.
During the time Petitioner was employed by the Respondent, she was an excellent, hardworking, reliable employee. Her immediate supervisor considered her to be honest. Finally, she was not the type of employee who would try to hide her mistakes.
After her divorce became final, Petitioner did not try to hide the fact that she was divorced. She attended Respondent's Christmas party with someone other than her ex-husband, and numerous employees of Respondent's knew she was divorced.
ISSUE
Whether Petitioner should be dismissed from employment by Respondent?
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.
Respondent, being the proponent of the action to be taken, has the burden of proving, by a preponderance of the evidence, that Petitioner should be dismissed. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
At all times relevant, Respondent had in place written policies setting forth procedures for the separation of employees and guidelines governing the disciplining of employees.
Policy 81-9 provides, in part, that the Executive Director may dismiss any employee for just cause. Just cause includes "willful violation of the provisions of law or District rules . . . (and) misconduct.
Policy 81-10 gives employees dismissed by the Executive Director the right to appeal the dismissal to Respondent's governing board.
Also, Policy 81-10 sets forth the acts of misconduct which will result in disciplinary action. Finally, Policy 81-10 sets forth a system of recommended disciplinary actions to be imposed depending on the offense committed by the employee. The system includes escalating penalties for repeat offenses.
One of the acts of misconduct for which an employee may be disciplined is titled "Falsification of Records." This provision states that:
An employee shall not knowingly make any false entry in or misrepresentation of any material fact in any book, report, record, statement or application or knowingly omit to make true entry of any material fact pertaining to any book, report, record, statement, or application maintained by the District.
The recommended penalty for this act is a "written reprimand, suspension up to 3 days or dismissal," for the first occurrence, and dismissal for the second.
In this case, Respondent proposes to dismiss Petitioner for falsifying records based on two acts: (1) listing herself as married on the claim form she completed on April 6, 1988; and (2) indicating that she was still married on the Agreement for Treatment, Insurance Assignment Form she signed on March 16, 1988. (See Petitioner's Exhibit 4).
In order to dismiss Petitioner, Respondent must show that Petitioner knowingly falsified the two documents. For the reasons set forth below, Respondent has failed to so show.
The evidence shows that Petitioner signed the March 16, 1988, document where she was told to sign by the hospital. At the time she signed it, the document did not contain the circle around the words "Spouse" and "Guardian." Petitioner signed the document as the "Insured," since she believed that her insurance with Respondent still covered her husband.
As to the claim form completed on April 6, 1988, Petitioner wanted to complete the form in exactly the same manner she had completed the prior year's claim form. She did this because the 1988 claim related to the incident which necessitated the prior year's form.
Neither of these instances indicate a knowing or willful attempt to defraud Respondent. This conclusion is supported by the events surrounding this case.
When Petitioner became aware that her divorce may become final prior to her husband's operation, she went to Respondent's insurance office to get information on what could be done about it. She was told by Ms. Osterhout that COBRA would apply and that her husband would be covered, if he agreed to pay the premiums. Ms. Osterhout agreed to get the necessary forms together for Petitioner to fill out and told Petitioner to continue to pay the family premiums. Even though Ms. Osterhout was not the technically proper person to handle insurance matters, Petitioner should not be blamed for relying on her statements. Also, Petitioner inquired about the forms approximately one month later and Ms. Osterhout again told Petitioner to continue paying the premiums until Ms. Osterhout obtained the proper papers. By this time the position of insurance person was vacant, or was soon to be, and Ms. Osterhout was one of the two persons who performed those duties until a new insurance person was hired.
The evidence in this case shows that it would have cost Petitioner's husband approximately $107.00 per month to retain insurance. This is only
$48.00 more than Petitioner paid for family coverage at the time of her divorce, and continued to pay until she wad terminated. It is extremely unlikely that Petitioner and her husband would have chosen not to pay the additional $48.00 for insurance coverage to pay for a certain medical expense of thousands of dollars, if they had been given the proper information and forms.
While Petitioner filled out the forms with inaccurate information, she was relying on information given her by Respondent's employee and no evidence was presented which would indicate Petitioner had reason to believe she should not rely on that information.
Based on the foregoing Findings and of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order reinstating Petitioner to
DONE and RECOMMENDED this 3rd day of February, 1989, in Tallahassee, Florida.
JOSE A. DIEZ-ARGUELLES
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1989.
are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ."
the evidence. Petitioner believed her ex-husband was still covered.
19-20. Accepted. RO18 and 19.
Petitioner believed her ex- husband was covered by her insurance.
Petitioner also never hid the fact she was divorced and it was common knowledge to Respondent s employees.
30-31. Subordinate to facts found.
See R026.
Joe H. Pickens, Esquire
John W. Williams, Esquire Office of Legal Services
St. Johns River Water Management District Palatka, Florida 32078-1429
St. Johns River Water Management Post Office Box 1429
