STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARVIN H. BRANNING, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7417

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on September 13, 1993 in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brian T. Hayes, P.A., Esquire

245 East Washington Street Monticello, Florida 32344

For Respondent: Laura S. Leve, Esquire

Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUE

Whether or not Respondent violated Florida Administrative Code salary provisions by paying certain of its employees salaries in excess of the amount(s) authorized by the legislature so as to entitle Petitioner to equalization with the highest paid employee in his class or reduction of six other employees' salaries exceeding $29,479.94 per annum.

PRELIMINARY STATEMENT

The parties' "Pre-Trial Stipulation" was admitted in evidence at formal hearing as HO Exhibit A.

Petitioner presented the oral testimony of Ralph Kiessig and testified on his own behalf. Petitioner's Exhibits 3-8 were admitted in evidence.

Petitioner's Exhibits 1-2 were admitted, subject to Section 120.58(1)(a) F.S.

Respondent was granted official recognition of Rules 22A-2.004-2.006 and 60K-9.004 F.A.C. and had three exhibits admitted in evidence. Respondent also was required to file an exhibit within seven days of the close of formal hearing, which filing was timely accomplished. Respondent presented the oral testimony of Ralph Kiessig.

Respondent's Motion to Dismiss, which had been denied by Order entered herein on August 16, 1993, was renewed in the course of formal hearing for disposition within this recommended order.

Petitioner, without knowledge of his counsel, filed materials and a letter to the undersigned hearing officer after the record had closed and without leave of court. The undersigned notified counsel for Petitioner and Respondent's counsel concerning this ex parte communication and provided them with copies of all items filed. Since the materials filed are outside the record, they may not be, and have not been, considered herein.

No transcript was filed, but all timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner filed his petition and request for formal hearing approximately December 1, 1992. The attachments thereto suggest that he began requesting redress June 19, 1992. The agency referred his December 1, 1992 petition to the Division of Administrative Hearings, pursuant to Section 120.57(1) F.S.

   
   

2. The Petitioner alleges that Petitioner's substantial interests are adversely affected by his employing agency paying other employees similarly situated more than Petitioner is paid.

   
   

3. The Petition's attachments also obliquely put at issue the agency's refusal to process a special pay increase request for an individual exception in Petitioner's pay rate to the Department of Administration (now Department of Management Services). Such an application was refused by the agency approximately May 21, 1990. (See Petition attachments and Petitioner's Exhibit P-6.)

   
   

4. Petitioner has not formally petitioned to invalidate any agency rule.

   
   

5. Petitioner was hired by the Department of Corrections on April 6, 1965 in the position of guard. On September 1, 1965, he was promoted to Road Prison Officer I (RPO I), and his salary was increased. On October 27, 1989, he was promoted to Correctional Officer II (CO II). At the time of his promotion to CO II, his biweekly salary was $1,029.07. The maximum biweekly salary for that class was $1,004.14.

   
   

6. Salary ranges for a job-class are posted on the job vacancy notice for that position. Petitioner had constructive, if not actual, knowledge of the pay grade range (maximum and minimum) at the time he accepted his October 27, 1989 promotion to CO II.

   
   

7. Petitioner remained in the CO II class as of the date of formal hearing, however CO II is now known as Correctional Officer-Sergeant.

   
   

8. The Petition herein has not affirmatively put at issue the Respondent agency's failure to promote Petitioner since 1989, however it is noted that at all times material, Petitioner met or exceeded all job performance requirements of a CO II.

9. Petitioner, like all other employees similarly situated, has received salary adjustments and pay raises as appropriated by the legislature since October 27, 1989, even though he exceeded the maximum salary for the class he was occupying at the time.

   
   

10. The testimony is clear that, as a CO II, Petitioner's salary is negotiated with the Respondent agency by a bargaining representative of the Police Benevolent Association, and that Petitioner was aware, at least by May 21, 1990, when he was denied an individual pay adjustment above the maximum for his pay grade, that he could file a grievance. He has never done so. From the foregoing, the only reasonable inference is that Petitioner has, at all times material, been subject to the terms of a collective bargaining agreement for State of Florida career service employees which provides for a grievance procedure. The terms of the collective bargaining agreement are not in evidence, however. As of the date of formal hearing, Petitioner also has filed no action before the Public Employees Relations Commission.

    
    

11. The maximum authorized annual salary for a Correctional Officer- Sergeant as of the date of formal hearing was $29,479.84. At the present time, six employees ranked as Correctional Officer-Sergeant receive salaries in excess of Petitioner's salary. These employees in the same class are James Vaughn, Charles Williams, John C. Norman, Glynn H. Dunham, James Newsome and James Hamilton. Some of these employees have been employed by Respondent fewer years total than Petitioner.

    
    

12. James Vaughn was promoted to CO II (now Correctional Officer-Sergeant) on April 19, 1974; Charles Williams on November 28, 1975; John C. Norman on February 20, 1976; Glynn H. Dunham on November 9, 1975; James Newsome on January 9, 1976; and James Hamilton originally on December 1, 1975 and then after a separation from employment, rehired as a CO II on January 1, 1985. As of January 1, 1987, all six of these employees were granted an across the board pay raise which equalized their salaries. The excess raise was given to the employees in a lump sum payment.

    
    

13. Employees working in certain geographical regions of the state were granted a set pay adjustment for that region, up to $5,000. This amount may cause an employee's salary to exceed the maximum of the pay range for the CO II class. The Petitioner does not work in one of these geographic regions.

    
    

14. By the time Petitioner was promoted to the position of CO II on October 27, 1989, the other six employees were earning $1,120.04, biweekly. Although their salaries exceeded the maximum salary for that class ($1,004.14), their pay raises were appropriated by the legislature across the board, regardless of whether the maximum range would be exceeded. Petitioner was also being paid in excess of the maximum for his class (RPO I) and in excess of the promotional class (CO II). Petitioner's biweekly salary at that time was

    $1,029.07. He also was given a raise in salary whenever it was authorized by a legislative appropriation bill. (See Finding of Fact 5).

    
    

15. In early 1993, Petitioner brought to Respondent agency's attention that another employee, Richard E. Cobb, was making a salary in excess of what was permissible. Once the Department became aware of the error, it forwarded the information to the State of Florida, Office of the Comptroller for review. The error was corrected, and Richard E. Cobb's salary was reduced prospectively and the retroactive recovery of the overpayment was begun through deductions to Mr. Cobb's salary.

16. Petitioner also complained about employee Blendage Weeks being promoted on September 1, 1989 with a 3.5 percent pay raise. Mr. Weeks is not a similarly situated employee because he is in a different job class than Petitioner. Also, although Petitioner believed that Mr. Weeks was given a raise in excess of the maximum for his class (Correctional Officer Chief I), in fact, the evidence shows that Mr. Weeks received a raise that brought him up from his then salary of $1,209.55 biweekly to the maximum for his class of $1,253.31 biweekly.

17. Rule 60K-2.002(5), F.A.C. (formerly 22A-2.001) provides:

An employee shall not be paid in excess of the maximum of the salary range for a class, unless such payments are authorized by these rules or legislation.

18. Rule 60K-2.004(1)(b), F.A.C. (formerly 22A-2.004) provides:

The agency head is authorized to grant a promotional appointment to an individual at a base rate of pay from the minimum to the maximum of the salary range for the class to which promoted provided such increase does not exceed 10 percent of the employee's base rate of pay prior to promotion.

1. Pursuant to the foregoing rules, promotional pay raises are treated differently than legislatively appropriated pay raises and the agency may grant a promotional pay raise as long as it does not exceed the maximum of the salary range for the class into which the employee is being promoted.

   
   

2. Petitioner does not fall into any of the protected classes governed by Section 760.10, F.S. and has filed no charge of discrimination with the Florida Commission on Human Relations.

   
   

   CONCLUSIONS OF LAW

   
   

3. A threshold issue in this cause is whether the Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause based upon the unique facts and particular salary underpayment dispute involved in this case.

   
   

4. The Petition which initiated this proceeding asserted that Respondent agency has not paid Petitioner lawful wages and has, by use of a discriminatory pay scale, deprived him of lawful wages it has paid to other employees of equal or lesser entitlement and experience, and therefore his substantial interests have been adversely affected. Beyond Section 120.57(1) F.S., Petitioner has cited no statutory or other authority for the relief sought.

   
   

5. Respondent filed a motion to dismiss prior to formal hearing which was treated as a motion for summary recommended order of dismissal. That motion was denied by an order entered August 16, 1993. The motion, renewed at formal hearing and in Respondent's proposed recommended order, asserts that, "Petitioner has not demonstrated that his substantial interests are affected, lacks standing, and is not entitled to a hearing under the Administrative Procedures Act," and cites as authority for those grounds the case of United Health Inc., v. Dept. of Health and Rehabilitative Services, 579 So 2d 342 (Fla.

   1st DCA 1991). That case is not sufficiently on point to be persuasive of the premises for which it has been cited. That case determined that a Petitioner could proceed for other relief by way of a Section 120.57 F.S. formal hearing without first exhausting rule challenge provisions of Section 120.56 F.S. Respondent further asserts (1) that Petitioner's failure to file his petition until December 1992, more than four years after his October 1989 promotion to CO II, proves lack of sufficiently immediate interests, (2) that he has failed to set forth a prayer for relief which can be provided in this proceeding, and (3) that he is not entitled to recovery pursuant to Title VII of the Civil Rights Act of 1964 as amended by the Equal Employment Opportunity Act of 1972, 42 USCA Section 20003-2 and Section 760.10 F.S.

   
   

6. Despite Respondent's misapprehension that this is a civil rights action, Petitioner has not requested relief pursuant to Section 760.10 F.S., and his prayer for relief as set out supra seems fairly straightforward. The foregoing analysis disposes of Respondent's second and third arguments.

   
   

7. Respondent's first argument is that because Petitioner delayed four years (either until June 19 or December 1, 1992) in requesting redress of salary inequities existing at the time of his promotion, the issues raised lack substantial and immediate impact upon Petitioner's interests. This argument is not persuasive since Petitioner's current, ongoing salary is also at issue. An employee's current salary amount is certainly an immediate and substantial interest.

   
   

8. For the foregoing reasons, Respondent's motion to dismiss is once more denied.

   
   

9. However, it is clear that Petitioner did not timely request formal hearing concerning the amount of his promotional salary of October 27, 1989 or concerning the agency's May 21, 1990 decision to refuse to process his request for a unilateral pay raise through the Department of Administration (now Department of Management Services). Those restricted issues are consequently barred. Note, unless otherwise specified by rule, the time for requesting a formal hearing upon (proposed) final agency action is twenty-one days. See, Section 120.57 F.S. and Rule 28-5.111 F.A.C.

   
   

10. As to the issue of current salary inequities, which issue, by its very nature embraces, at least to a degree, the issue of any salary inequity existing on October 27, 1989, the jurisdiction of the Division of Administrative Hearings is unclear due, at least in part, to the existence of an applicable collective bargaining agreement and the probable jurisdiction of the Public Employees Relations Commission (PERC).

    
    

11. In Dept. of Health and Rehabilitative Services v. Allen, DOAH Case No. 91-6197 (RO entered January 27, 1992; FO entered February 28, 1992) a Division of Administrative Hearings hearing officer recommended dismissal of a similar, but not identical, case for lack of subject matter jurisdiction and further recommended transferal of the case to the correct forum timely elected by the employee under the collective bargaining agreement as provided in Chapter

    447.401 F.S., governing jurisdiction of public employers and public employees. That ruling, in a case based in part upon an agency's attempt to recover salary from an employee, was based upon the contents of the collective bargaining agreement in evidence in that case which provided alternatively for a grievance procedure or PERC procedure. No collective bargaining agreement is in evidence in the instant cause.

12. Petitioner has not cited any statutory or other authority specifically permitting recovery of salary underpayments from an agency or equalization down of other employees' salaries. On the other hand, the situation presented in the instant cause lends itself to a conclusion that the Division of Administrative Hearings has jurisdiction upon a "flip-side" reading of Department of Corrections v. Career Service Commission, 429 So 2d 1244 (Fla. 1st DCA 1983), wherein it was determined that the Division of Administrative Hearings was the proper forum for an employee to pursue review of an agency's attempt to recover salary overpayments as the result of an administrative or clerical oversight rather than any disciplinary action against the employee.

    
    

13. Absent more evidence than has been presented herein, Petitioner seems entitled to a Section 120.57(1) F.S. hearing and recommended order in this forum.

    
    

14. Upon the merits of the case, it is clear that Rules 60K-2.002(5) and 60K-2.004(1)(b) prohibit payment of a salary in excess of the maximum range for that class, even upon promotion, unless such payments are authorized by the legislature. The agency has applied those rules consistently, increasing Petitioner and other similarly situated employees whenever legislative appropriation bills permitted and not increasing any employee's pay otherwise. Petitioner has not demonstrated by a preponderance of the evidence that there is legislative authorization for his pay to be increased, and likewise has not demonstrated any reason to decrease the pay of other employees.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the relief sought be denied and the petition therefore dismissed.

RECOMMENDED this 21st day of December, 1993, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7417

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-2 Accepted, except as to month and day.

1. Accepted as to content of Rule 60K-2.002(5) [not 60K-1.002(5)] F.A.C. The remainder of

   PFOF 3 is not properly cited.

2. Accepted.

3. Accepted as to what the salaries are and their names. The remainder of PFOF 5 is rejected as mere argument.

Respondent's PFOF:

1-7,9-11,14-15 Accepted.

8,12 Accepted as modified to more accurately reflect the record evidence.

13 Covered in FOF 8; otherwise rejected as immaterial.

1. Rejected as mere argument.

2. Covered except as cumulative; see FOF 16.

3. Rejected as evidentiary rulings or cumulative; see FOF 12.

COPIES FURNISHED:

Brian T. Hayes, P.A., Esquire

245 East Washington Street Monticello, Florida 32344

Laura S. Leve, Esquire Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Harry K. Singletary, Secretary Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-2500

Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-007417

Orders for Case No: 92-007417