STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CALVIN L. FOX, )
)
Petitioner, )
)
vs. ) CASE NO. 88-5047
) DEPARTMENT OF LEGAL AFFAIRS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on March 17, 1989, in Tallahassee, Florida.
APPEARANCES
For Petitioner: No appearance.
For Respondent: Lynda Quillen, Esquire
Assistant Attorney General Department of Legal Affairs The Capitol - Suite 1501
Tallahassee, Florida 32399-1050 PRELIMINARY STATEMENT
At issue in this proceeding is whether petitioner was inappropriately paid for accumulated sick leave upon his separation from state employment and, if so, whether he is obligated to repay such monies.
At final hearing, neither petitioner nor anyone on his behalf appeared, and no witnesses or exhibits were offered on his behalf. Respondent called Sharon Austin and Gerald B. Curington as witnesses, and its exhibits 1-8 were received into evidence.
The parties were granted leave until March 27, 1989, to file proposed findings of fact. The respondent elected to file proposed findings of fact and they have been addressed in the appendix to this recommended order.
FINDINGS OF FACT
Respondent, Department of Legal Affairs (Department) is an agency of the State of Florida.
Petitioner, Calvin L. Fox (Fox), was employed by the Department from April 24, 1978 to June 26, 1987, and consequently accrued nine years, two months and two days of creditable state service.
Immediately prior to his employment with the Department, Fox had been employed by a county government. That employment, which commenced March 17, 1976, is creditable under the state retirement system but is not considered creditable state service for other termination benefits.
Upon his resignation from the Department, Fox was paid $966.31 for accumulated sick leave based on the erroneous conclusion that March 17, 1976, as opposed to April 24, 1978, was the date he commenced creditable state service. 1/
Commencing in 1985, Fox was engaged in litigation against the Department arising from his employment with the State of Florida. While the record does not disclose the specifics of that litigation, it does establish that the parties resolved their dispute through the execution of a mutual release dated August 7, 1987, and a joint stipulation of voluntary dismissal with prejudice of a Federal court action on the same date.
Pertinent to this case, the joint stipulation provided:
In consideration for such mutual releases and voluntary dismissal with prejudice, the parties agree to provide the consideration agreed upon in the Mutual Release attached as Exhibit 1 as full settlement of all claims alleged or which could have been alleged in this cause of action.
By accepting the terms of this stipulation and the mutual release which may pertain, the parties do not admit liability or wrongdoing in this action. The parties agree to mutual releases and the payment of consideration solely to accomplish the compromise and settlement of any and all claims, demands, actions, causes of action, or suits of any kind or nature whatsoever, including all attorney fees and costs, arising from Plaintiff's employment or non- employment, by the Defendants.
All parties stipulate and agree that this document, with the attached release, represents the entire agreement between them, and that the terms contained herein may not be changed or altered without the express written consent of all parties.
The mutual release provided:
In consideration of Employee Fox's voluntary dismissal with prejudice and his voluntary resignation, the sufficiency of which is hereby acknowledged, the State, for itself and its legal representatives and assigns, agrees to release, acquit, satisfy and forever discharge Employee Fox, his agents
or servants and all heirs, legal representatives, successors or assigns, from all claims alleged or which could have been alleged in the above-styled actions and from all causes of action, claims or demands whatsoever in law or in equity as a result of any loss known or unknown at this time, or which may hereafter become known, develop or accrue, occasioned by or arising out of, directly or indirectly, any of the matters set forth or which could have been set forth in the above-referenced or any other litigation between the parties.
* * *
The undersigned have read the foregoing release and fully understand it and voluntarily accept it for the purpose of making a full and final compromise, adjustment and settlement of any and all claims based upon the allegations of the above-referenced litigation or any other litigation between the parties and for the express purpose of precluding forever any further or additional claims arising out of Employee Fox's employment or non-employment.
In March 1988, the erroneous payment of accumulated sick leave to Fox was disclosed during a routine audit of the Department by the Auditor General. Fox has denied liability for the repayment of such monies predicated on the parties execution of the joint stipulation and mutual release discussed supra.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Pertinent to this case, Section 110.122(1), Florida Statutes, provides:
All state branches, departments, and agencies which have the authority to establish or approve personnel policies for employees and to employ personnel and establish the conditions of their employment shall establish policies to provide terminal "incentive" pay for accumulated and unused sick leave to each employee upon normal or regular retirement for reason other than disability or upon termination of employment, or to the employee's beneficiary if service is terminated by death, provided such retirement, termination, or death occurs after 10 years of creditable state employment. (Emphasis added.)
Rule 22A-8.008(1), Florida Administrative Code, provides:
Credible service is service during which the employee is on the payroll of a state agency.
And, Rule 22A-8.011(5)(c), Florida Administrative Code, provides:
The only conditions under which an employee shall be paid for unused sick leave credits are when the employee:
Has completed 10 or more years of credible state service...
The Department of Administration has interpreted the foregoing provisions of law as requiring 10 years of employment with a state agency, and not crediting employment with a county or city, when calculating eligibility for payment for unused sick leave credits. Such interpretation is reasonable and consistent with existent law, and is entitled to deference. See: Shell Harbor Group, Inc. v. Department of Business Regulation, 487 So.2d 1141 (Fla. 1st DCA 1986). Accordingly, it is concluded that Fox was inappropriately paid for accumulated sick leave upon his separation from state employment.
While inappropriately paid for his sick leave, the Department is barred from recovering such sums from Fox by virtue of the parties joint stipulation and mutual release. Such documents evidence the parties agreement to resolve all claims arising out of Fox's employment with the Department, whether known or unknown, so as to settle their known differences as well as any additional claims that could be made as a consequence of that employment. The Department's contention that recovery of such monies is not foreclosed by the parties' joint stipulation and mutual release, because its discovery post dated the execution of such documents, is rejected as contrary to the express language and intent of the parties agreement.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order which terminates any
further efforts to collect the subject monies from Fox.
DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
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 31st day of March, 1989.
ENDNOTE
1/ Of these monies, $703.96 were paid directly to Fox, a withholding tax of
$193.26 was paid to the Federal government, and a FICA payment of $69.09 was made on his behalf. Under such circumstances the monies that would be owing to the Department, but for the matters discussed infra, would total $897.22.
Recovery of the withholding tax from the Federal government would be Fox's responsibility.
APPENDIX
Respondent's proposed findings of fact are addressed as follows:
Addressed in paragraph 1.
Addressed in paragraphs 2 and 3.
3-5. Addressed in paragraph 4 and footnote 1.
6.-10. Addressed in paragraph 7.
11-14. Addressed in paragraphs 5 and 6, and paragraph 5 of the Conclusions of Law.
COPIES FURNISHED:
Lynda Quillen, Esquire Department of Legal Affairs The Capitol - Suite 1501
Tallahassee, Florida 32399-1050
Calvin L. Fox
Post Office Box 013391 Miami, Florida 33101
The Honorable Robert A. Butterworth Attorney General
The Capitol
Tallahassee, Florida 32399-1050
Issue Date | Proceedings |
---|---|
Mar. 31, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
Apr. 20, 1989 | Agency Final Order | |
Mar. 31, 1989 | Recommended Order | Employee inappropriately paid for sick leave upon retirement but state barred from recovery based on settlement agreement executed by the parties. |
JANET BING vs DEPARTMENT OF JUVENILE JUSTICE, 88-005047 (1988)
STEPHEN S. POOLE vs DEPARTMENT OF MANAGEMENT SERVICES, 88-005047 (1988)
KEITH M. WOODS vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 88-005047 (1988)
ALMA SLOCUM vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 88-005047 (1988)
WILLIAM H. CROCKETT vs. DIVISION OF RETIREMENT, 88-005047 (1988)