FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY
KEITH JACKSON, Ph.D.,
Petitioner,
BOARD OF TRUSTEES TALLAHASSEE, FLORIDA
DMSI0N 0F AI>MlNIS'FRA HEARINGS
?
C;- FI ED.
DATE at!./d)7>{ L
FLORIDA A&M UNIVERSITY BOARD OF TRUSTEES,
Respondent.
FAMU Case Nos. 09-002 and 09-003
DOAH Case Nos. 09-0030 and 09-1352
----------------·'
FINAL ORDER
This matter is now before Florida Agricultural and Mechanical University Board of Trustees ("FAMU," "Respondent," or the "University") for final agency action.
STATEMENT OF THE ISSUE
Whether Keith Jackson, Ph.D. ("Petitioner") should be required to pay FAMU's claimed overpayment of salary as calculated in the amount of $29,141.57, for the pay periods between July 11, 2008 and December 12, 2008.
PRELIMINARY STATEMENT
On or about December 11, 2008, Petitioner was notified by FAMU that pursuant to FAMU BOT Policy 2005-15, his salary, retroactive to July 11, 2008, had been modified to the median salary of employees within his same professorial rank and discipline as a Physics Professor and that effective December 12, 2008 his pay warrant would reflect the salary adjustment. Pursuant to Section 120.57(1), Florida Statutes, Petitioner requested a disputed-fact hearing to "dispute how Petitioner's salary is to be determined" and the cause was referred to the Division of Administrative Hearings (DOAH) on or about January 5, 2009. Petitioner's request for hearing was assigned
DOAH case number 09-0030. By Order entered January 29, 2009, DOAH denied Petitioner's request for hearing because "it [was] unclear from the request what relief [was] being sought."1
On or about January 5, 2009, Petitioner was notified by FAMU that he had been overpaid by a gross amount of $29,141.57 and that pursuant to FAMU BOT Policy 2005-19, the University was seeking from Petitioner repayment of the overpayment amount. On or about February 20, 2009, Petitioner filed an Amended Request for
Hearing "to dispute that he owed $29,141.57 as a salary overpayment." The request for a disputed-fact hearing was referred by FAMU to DOAH and the matter was assigned DOAH case number 09-1352. By Order entered March 26, 2009, DOAH, sua sponte,
consolidated case numbers 09-0030 and 09-1352.
On March 18, 2010, Petitioner filed with DOAH a Motion to Abate or in the Alternative Continue Hearing in case number 09-1352. On March 19, 2010, an Order was entered granting Petitioner's motion and the matter was placed in abeyance by DOAH until September 20, 2010. Also on March 19, 2010, and after entry of the abatement order, Petitioner filed a Notice of Voluntary Dismissal Without Prejudice in case number 09-1352. Upon receipt of Petitioner's Notice of Voluntary Dismissal, an Order was entered by DOAH on March 19, 2010, closing case number 09-1352. An Amended Order closing the file and relinquishing jurisdiction was subsequently entered by DOAH in case number 09-1352 on March 24, 2010.
On March 18, 2010, Petitioner also filed a Notice of Voluntary Dismissal without prejudice in DOAH case number 09-0030. On March 19, 2010, an Order closing file
1 On January 30, 2009, FAMU, without knowledge of the Order of dismissal entered by DOAH on January 29, 2009, also issued an Order Denying Petitioner's Request for Administrative Hearing.
2
number 09-0030 was entered. It is not clear why Petitioner filed the Notice of Voluntary Dismissal in case number 09-0030 when Petitioner's request for hearing in this case was denied by Order entered January 29, 2009, and this case was consolidated with case number 09-1352 by Order entered March 26, 2009.
RULING ON OBJECTIONS
On April 5, 2010, FAMU received "Petitioner's Response to Respondent's Notice of Intent to Take Final Agency Action in Matters Not Involving Disputed Issues of Material Fact (hereinafter "Response")." Petitioner's objections to Respondent's intended final agency action are hereby overruled for the reasons set forth below. The numbered paragraphs and language below correspond with Petitioner's numbered paragraphs as set forth in the Response.
Petitioner's Objection: DOAH Case Nos. 09-1352 and 09-0030 have been dismissed and The Honorable Diane Cleavinger entered [an] Order closing both files. Due to the dismissals and subsequent Orders, DOAH has no further jurisdiction in this matter. FAMU has not filed a Petition for Hearing on this issue nor have they [sic] filed a Counter-Petition in DOAH Case Nos. 09-1352 and 09-0030.
Objection Overruled: By Order entered March 24, 2010, The Florida Division of Administrative Hearings closed its file and relinquished jurisdiction to FAMU. Petitioner asserts that FAMU should have filed a Petition for Hearing or Counter-Petition in the instant matter. Respondent is not aware of, nor has Petitioner cited, any legal authority that requires FAMU, as the agency proposing to take action in this matter, to file a Petition or Counter-Petition with DOAH.
3
Petitioner's Objection: In the event DOAH determines they have [sic] retained some form of jurisdiction, FAMU states there are no disputed issues of material fact. This statement is not accurate. Petitioner, Keith Jackson specifically alleges there are numerous factual disputes.
Objection Overruled: The· statement set forth in numbered paragraph two (2) is merely conclusory, and fails to set forth specific grounds as to why FAMU should not take final agency action in this matter.
Petitioner's Objection: In Respondents [sic} paragraph #1, Petitioner objects to Respondent's portrayal of the contract signed between Petitioner and Respondent. The contract shall speak for itself as to its terms and conditions. Respondent has not incorporated the contract with its Motion. Therefore this paragraph is materially disputed.
Objection Overruled: Section 120.57(1)(i), Florida Statutes, provides in material part that "[i]f [an] administrative law judge enters an order relinquishing jurisdiction, the agency may promptly conduct a proceeding pursuant to subsection (2), if appropriate, but the parties may not raise any issues of disputed fact that could have been raised before the administrative law judge." (Emphasis added) Petitioner initially sought relief pursuant to Section 120.57(1), Florida Statutes, on the ground that that a dispute exists as to material facts. Subsequently, Petitioner waived his claim of the existence of disputed material facts when he voluntarily dismissed his petition for a disputed-fact hearing pursuant to Section 120.57(1), Florida Statutes. Therefore, consistent with Section 120.57(1)(i), Florida Statutes, Petitioner is now estopped from asserting the existence of issues of disputed material fact regarding the execution of the
4
contract because the issue clearly involves facts that could have been raised by Petitioner while the instant matter was pending before the administrative law judge.
Petitioner's Objection: Petitioner admits that paragraph #2 is not in dispute.
Petitioner's Objection: In Respondents [sic] paragraph #3, Respondent [sic] is without knowledge as to if and when the resignation was accepted by Respondent. Therefore paragraph #3 is in dispute.
Objection Overruled: Section 120.57(1)(i), Florida Statutes, provides in material part that "[i]f [an] administrative law judge enters an order relinquishing jurisdiction, the agency may promptly conduct a proceeding pursuant to subsection (2), if appropriate, but the parties may not raise any issues of disputed fact that could have been raised before the administrative law judge." (Emphasis added) Petitioner initially sought relief pursuant to Section 120.57(1), Florida Statutes, on the ground that that a dispute exists as to material facts in the instant matter. Subsequently, Petitioner waived his claim of the existence of disputed material fact when he voluntarily dismissed his petition for a disputed-fact hearing pursuant to Section 120.57(1), Florida Statutes. Therefore, consistent with Section 120.57(1)(i), Florida Statutes, Petitioner is now estopped from asserting the existence of issues of disputed material fact regarding when Petitioner's letter of resignation was accepted by FAMU because this issue clearly involves facts that could have been raised by Petitioner while the instant matter was pending before the administrative law judge.
Petitioner's Objection: Petitioner admits that paragraph #4 is not in dispute.
5
Petitioner's Objection: Petitioner admits that paragraph #5 is not in dispute.
Petitioner's Objection: In Respondents [sic] paragraph #6, Petitioner admits that FAMU BOT's policy 2005-15 is as stated. However, Petitioner denies the policy as written applies to him or that the policy as written is vague as to how it applies to him and this paragraph is subject to ongoing litigation in Leon County Circuit Court Case Number 2010-CA-000845. Therefore, there is a factual material dispute as to the policy and its application.
Objection Overruled: Section 120.57(1)(i), Florida Statutes, provides in material part that "[i]f [an] administrative law judge enters an order relinquishing jurisdiction, the agency may promptly conduct a proceeding pursuant to subsection (2), if appropriate, but the parties may not raise any issues of disputed fact that could have been raised before the administrative law judge." (Emphasis added) Petitioner initially sought relief pursuant to Section 120.57(1), Florida Statutes, on the ground that that a dispute exists as to material facts in the instant matter. Subsequently, Petitioner waived his claim of the existence of disputed material facts when he voluntarily dismissed his petition for a disputed-fact hearing pursuant to Section 120.57(1), Florida Statutes. Therefore, consistent with Section 120.57(1)(i), Florida Statutes, Petitioner is now estopped from asserting the existence of issues of disputed material fact regarding the application of FAMU BOT policy 2005-15 because this issue clearly involves facts that could have been raised by Petitioner while the instant matter was pending before the administrative law judge. Additionally, when an administrative error results in a salary overpayment, the proper avenue for the employee to pursue a review of the
6
employer's actions attempting to collect the overpayment is by way of a Section 120.57, Florida Statutes, proceeding as a substantially affected person. New v. Dept. of
Banking and Finance, 544 So.2d 1203 (Fla. 1st DCA 1989) (citing, Dept. of Corrections
v. Career Service Commission, 429, So.2d 1244, 1246, Fla. 1st DCA 1983)). Furthermore, it is well established that a party who seeks relief through the administrative process "should not seek to have the administrative process subverted by filing a civil action in circuit court." State of Florida, Dept. of Transportation v. Clark
Construction Co., 621 So.2d 511, 513 (Fla. 1st DCA 1993). This is consistent with the "primary jurisdiction doctrine" which generally provides that when the courts and an agency have concurrent jurisdiction over a subject matter, the courts should defer to the agency for initial determination of the matter. See Hill Top Developers v. Holiday Pines
Service Corp., 478 So.2d 368 (Fla. 2d DCA 1985).
7
Petitioner's Objection: In Respondents [sic] paragraph #9, Petitioner denies there was any oversight and according to the signed employment contract, he was entitled to $166,400.00 until there was a mutually acceptable contractual modification. The allegations in paragraph #9 are currently subject to ongoing litigation in Leon County Circuit Court Case Number 2010-CA-000845. Therefore, there is a factual material dispute as to the allegations alleged in paragraph #9.
Objection Overruled: Section 120.57(1)(i), Florida Statutes, provides in material part that "[i]f [an] administrative law judge enters an order relinquishing jurisdiction, the agency may promptly conduct a proceeding pursuant to subsection (2), . if appropriate, but the parties may not raise any issues of disputed fact that could have been raised before the administrative law judge." (Emphasis added) Petitioner initially sought relief pursuant to Section 120.57(1), Florida Statutes, on the ground that that a dispute exists as to material facts in the instant matter. Subsequently, Petitioner waived his claim of the existence of disputed material facts when he voluntarily dismissed his petition for a disputed-fact hearing pursuant to Section 120.57(1), Florida Statutes. Therefore, consistent with Section 120.57(1)(i), Florida Statutes, Petitioner is now estopped from asserting the existence of issues of disputed material fact regarding his claim of entitlement to a salary of $166,400.00 because this issue clearly involves facts that could have been raised by Petitioner while the instant matter was pending before the administrative law judge. Additionally, when an administrative error results in a salary overpayment, the proper avenue for the employee to pursue a review of the employer's actions attempting to collect the overpayment is by way of a Section 120.57, Florida Statutes, proceeding as a substantially affected person. New v. Dept. of
8
Banking and Finance, 544 So.2d 1203 (Fla. 1st DCA 1989) (citing, Dept. of Corrections
v. Career Service Commission, 429, So.2d 1244, 1246, Fla. 1st DCA 1983)). Furthermore, it is well established that a party who seeks relief through the administrative process "should not seek to have the administrative process subverted by filing a civil action in circuit court." State of Florida. Dept. of Transportation v. Clark
Construction Co., 621 So.2d 511, 513 (Fla. 1st DCA 1993). This is consistent with the "primary jurisdiction doctrine" which generally provides that when the courts and an agency have concurrent jurisdiction over a subject matter, the courts should defer to the agency to initially decide the matter. See Hill Top Developers v. Holiday Pines Service
Corp,, 478 So.2d 368 (Fla. 2d DCA 1985).
Petitioner's Objection: In Respondents [sic] paragraph #10, pursuant to Petitioner's response to paragraph's [sic] 1, 6, 8 and 9, Petitioner denies his salary should have been adjusted to $72,662.00. The allegation in Respondent's paragraph #10 is factually disputed and is currently subject to ongoing litigation in Leon County Circuit Court Case Number 201O-CA-000845.
Objection Overruled: This objection is overruled on the same grounds as set forth in paragraph 11, above.
Petitioner's Objection: In Respondents [sic] paragraph #11, pursuant to Petitioner's response to Respondent's paragraph's [sic] 1, 6, 8, 9 and 10, Petitioner denies he was erroneously paid from July 11, 2008 through December 12, 2008. The allegation in Respondent's paragraph #11 is factually disputed and is currently subject to ongoing litigation in Leon County Circuit Court Case Number 2010-CA-000845.
9
Objection Overruled: Section 120.57(1)(i), Florida Statutes, provides in material part that "[i]f [an] administrative law judge enters an order relinquishing jurisdiction, the agency may promptly conduct a proceeding pursuant to subsection (2), if appropriate, but the parties may not raise any issues of disputed fact that could have been raised before the administrative law judge." (Emphasis added) Petitioner initially sought relief pursuant to Section 120.57(1), Florida Statutes, on the ground that that a dispute exists as to material facts in the instant matter. Subsequently, Petitioner waived his claim of the existence of disputed material facts when he voluntarily dismissed his petition for a disputed-fact hearing pursuant to Section 120.57(1), Florida Statutes. Therefore, consistent with Section 120.57(1)(i), Florida Statutes, Petitioner is now estopped from asserting the existence of issues of disputed material fact regarding his pay from July 11, 2008 through December 12, 2008, because this issue clearly involves facts that could have been raised by Petitioner while the instant matter was pending before the administrative law judge. Additionally, when an administrative error results in a salary overpayment, the proper avenue for the employee to pursue a review of the employer's actions attempting to collect the overpayment is by way of a Section
120.57, Florida Statutes, proceeding as a substantially affected person. New v. Dept. of
Banking and Finance, 544 So.2d 1203 (Fla. 1st DCA 1989) (citing, Dept. of Corrections
v. Career Service Commission, 429, So.2d 1244, 1246, Fla. 1st DCA 1983)).
Furthermore, it is well established that a party who seeks relief through the administrative process "should not seek to have the administrative process subverted by filing a civil action in circuit court." State of Florida, Dept. of Transportation v. Clark
Construction Co., 621 So.2d 511, 513 (Fla. 1st DCA 1993). This is consistent with the
10
"primary jurisdiction doctrine" which generally provides that when the courts and an agency have concurrent jurisdiction over a subject matter, the courts should defer to the agency to initially decide the matter. See Hill Top Developers v. Holiday Pines Service
Corp., 478 So.2d 368 (Fla. 2d DCA 1985).
Petitioner's Objection: In Respondents [sic] paragraph #12, Petitioner was advised by Respondent [that] he could elect to file for an administrative hearing. Petitioner did file two Petitions: DOAH Case Nos. 09-1352 and 09-0030. However, DOAH does not have exclusive jurisdiction over contract disputes and Petitioner elected to file a Complaint in Leon County Circuit Court, Case Number 2010-CA-000845 alleging Breach of Contract and Intentional Infliction of Emotional Distress. Petitioner does not dispute Respondent has the right to seek overpayments, if any. The allegations in Respondent's paragraph #12 are currently subject to ongoing litigation in Leon County Circuit Court Case Number 2010-CA-000845.
Objection Overruled: This objection is overruled on the same grounds as set forth in paragraph 11, above.
Petitioner's Objection: In Respondents [sic] paragraph #13, See [sic] response to paragraph #12.
Objection Overruled: This objection is overruled on the same grounds as set forth in paragraph 11, above.
Petitioner's Objection: In Respondents [sic] paragraph #14, Petitioner admits to Respondent's paragraph #14.
Petitioner's Objection: In Respondents [sic] paragraph #15, Petitioner did dismiss DOAH Case Nos. 09-1352 and 09-0030 due to all of the issues being
11
brought before DOAH was subject to the Complaint filed in Leon County Circuit Court, Case Number 2010-CA-000845. Prior to dismissal, Petitioner advised the Hearing Officer, Diane Cleavinger, as to the Circuit Court Complaint and requested an abatement pending resolution of the Circuit Court Case. Respondent objected to the abatement. Hearing Officer, Diane Cleavinger, agreed the matter should be abated pending resolution in Circuit Court.
Objection Overruled: Petitioner does not dispute that he dismissed his pending requests for hearing in the instant matter. The grounds set forth by Petitioner as to paragraph 15 fail, however, to provide a legal basis as to why Respondent should not take final agency action in this matter. The objection is therefore overruled.
FINDINGS OF FACT
On or about July 1, 2005, Petitioner executed an employment contract with FAMU to serve as Vice President for Research. The contract executed by Petitioner provides that Petitioner "is subject to the Constitution and Laws of the State of Florida and the United States and the rules, policies, guidelines and procedures of the Board of Governors and the University as now existing or hereafter promulgated."
On July 11, 2008, Petitioner submitted to the University a letter advising that he was resigning from his administrative position with the University as the Vice President for Research.
Petitioner's letter of resignation was accepted by the University effective July 11, 2008.
Tenure as a faculty member was granted to Petitioner by the University on May 25, 2007.
12
When Petitioner resigned from his administrative position on July 11, 2008, he was a tenured faculty member at the University.
FAMU BOT Policy 2005-15, adopted June 30, 2005 and revised on February 12, 2008, requires that the salary for former administrators, such as Petitioner, be adjusted to "the median salary of the employees within the same professorial rank and discipline."
On July 11, 2008, Petitioner's annual salary, based on his service as Vice President for Research, was $166,400.00.
According to FAMU BOT Policy 2005-15, his salary, upon resignation from his administrative position as Vice President for Research and movement to his faculty position, should have been adjusted to $72,662.00 in that this amount reflected, at the time, the median salary of employees within Petitioner's rank and discipline.
Due to administrative oversight, Petitioner, after the effective date of his resignation, continued to receive his full administrative salary of $166,400.00.
Petitioner's salary was adjusted to the correct amount beginning with the biweekly pay period of December 12, 2008.
Petitioner was erroneously paid his salary of $166,400.00 from July 11, 2008 through the biweekly pay period of December 12, 2008. This resulted in Petitioner receiving a salary overpayment in the amount of $29,141.27.
Petitioner has not refunded any money to FAMU.
CONCLUSIONS OF LAW
FAMU has jurisdiction in this matter pursuant to Sections 120.569 and
120.57 (2), Florida Statutes.
13
Filed September 27, 2012 11:20 AM Division of Administrative Hearings
Section 1012.80 (1) (b), Florida Statutes, states in pertinent part,
Any person who accepts the privilege extended by the laws of the state of employment at any state university shall, by
working at such institution, be deemed to have given his or her consent to the policies of that institution, the policies of the Board of Governors, and the laws of this state ....
FAMU has the authority to recoup salary overpayments from Petitioner.
New v. Department of Banking and Finance, 554 So. 2d 1203 (Fla. 1st DCA 1989).
FAMU Regulation 3.019, adopted May 24, 2007, provides that "[t]he University shall use due diligence and make every effort in the collection of all accounts owed to the University by employees, students, vendors, or other parties." FAMU BOT Policy 2005-19, adopted October 6, 2005, requires that the University seek reimbursement for salary overpayments.
FAMU BOT Policy 2005-15, adopted June 30, 2005 and revised on February 12, 2008, requires that the salary of administrators when returning to a faculty position shall be adjusted to "the median salary of the employees within the same professorial rank and discipline."
The contract executed by Petitioner provides that Petitioner "is subject to the Constitution and Laws of the State of Florida and the United States and the rules, policies, guidelines and procedures of the Board of Governors and the University as now existing or hereafter promulgated."
On July 11, 2008, when Petitioner resigned from his position as Vice President for Research, his annual salary was $166,400.00. Pursuant to FAMU BOT Policy 2005-15, Petitioner's salary, as of the effective date of his resignation from his administrative position on July 11, 2008 and movement to tenured faculty, automatically
14
adjusted to the median salary of employees within Petitioner's professorial rank and discipline. On July 11, 2008, the median salary of employees within Petitioner's professorial rank and discipline was $72,662.00. Due to an administrative oversight, Petitioner continued to receive his salary of $166,400.00 until December 11, 2008. Consequently, Petitioner received $29,141.27 as a salary overpayment and owes this amount to the University.
ORDER
Having considered the positions set forth by the University and Respondent, being fully advised in the premises, and based on the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED and ADJUDGED that Petitioner is indebted to FAMU in the amount of $29,141.27 and the University is authorized to recoup the salary overpayments from Petitioner.
IP
DONE and ORDERED this j1_ day of April, 2010.
.taucb;,,
-.&If l1nvz,,,, 0t,¥
JaesH.Ammons President
1
Filed with the Agency this
/bl.''1:tay of April, 2010.
Agency Clerk
15
NOTICE OF RIGHT TO JUDICIAL REVIEW
This Order Constitutes Final Agency Action. A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing an original Notice of Administrative Appeal with the Agency Clerk of Florida Agricultural and Mechanical University, Office of the General Counsel, Lee Hall, Suite 300, Tallahassee, Florida 32307, and a copy of the Notice of Appeal attached to which is a conformed copy of the order designated in the Notice of Appeal, accompanied by filing fees prescribed by law, with the First District Court of Appeal. The Notice of Administrative Appeal must be filed within thirty (30) days of the date this Final Order is rendered.
Copy: Teresa Hardee, CFO and Vice President, Administrative and Financial Services Avery D. McKnight, FAMU General Counsel
Linzie F. Bogan, Associate General Counsel, Director of Labor Relations Nellie C. Woodruff, Associate Vice President, Human Resources
Robert E. Larkin, Ill, Esq.
Jacqueline Lester, Associate Director of Payroll Claudio Llado, DOAH Clerk
16
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 15, 2010 | Agency Final Order | |
| Apr. 15, 2010 | Agency Final Order | |
| Apr. 12, 2010 | Corrected Agency FO |
