Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, including June 28, 1993, through January 27, 1994, an employee of the Department working in the economic services unit of the Department's District XI (hereinafter referred to as the "District"). In 1990, Petitioner occupied a PAS (Public Assistance Specialist) I position that, in or around June of that year, was one of 182 such positions in the District to be reclassified to a PAS II position as part of the Department's implementation of the new FLORIDA computer system. 2/ Those employees occupying these reclassified positions (hereinafter referred to as the "upgraded employees") whose salaries were below the minimum salary for a PAS II received a salary increase to raise their salary to the minimum. Petitioner was among the employees who received such a salary increase. Such action was taken in accordance with the following Department policy set forth at page 11 of HRSP 60-1: When an employee is promoted, a salary increase to at least the minimum salary of the higher level position will be made. How- ever, an increase of up to ten percent above the current base salary or ten percent above the minimum for the new class may be approved. An increase of up to ten percent of the current base salary is normally used when the employee's salary is the same or nearly the same as the minimum for the new class. An increase of up to ten percent above the minimum for the new class may be granted when an employee possesses training or experience substantially above the minimum training and experience required for the higher class and it is determined that the employee is exceptionally well qualified for the position. These increases must be approved by an assistant secretary or district administrator. Because of funding constraints that existed at the time, no other salary increases were given to the upgraded employees. Funds for such additional salary increases became available toward the end of the 1992-1993 fiscal year. The increases were approved at both the Department and District level. Petitioner and the other upgraded employees were advised of the increases by a memorandum dated July 7, 1993, from the District XI District Administrator. The District Administrator's memorandum read as follows: Your position has been identified as one which was upgraded as a result of the FLORIDA implementation in 1990/1991. At the time, our records indicate that you received a partial increase, or none at all, because of budgetary constraints. Due to the identification of available monies prior to the end of the Fiscal Year, we are pleased to inform you that you will be receiving a pay increase in your salary war- rant on July 9, 1993. The amount of the in- crease will be either 10[percent] or the difference between what you received in 1990/1991 and 10[percent], and was effective June 28, 1993. Should you have any questions about this in- crease or how it was calculated, please call Arelis Valero at 377-5197. Your continued dedication and service to HRS is sincerely appreciated. District personnel miscalculated the amount of Petitioner's approved salary increase (which was "the difference between what [she had] received in 1990 . . . and 10[percent]" of her pre-reclassification base salary). As a result, following June 28, 1993, the effective date of the increase, for the pay periods ending January 27, 1994, Petitioner was overpaid a total of $769.39. The District discovered the error and revised its payroll records to reflect Petitioner's correct salary. In addition, by memorandum, it notified Petitioner of the mistake that had been made and advised her that it was her responsibility to repay the amount she had been overpaid. By letter dated November 1, 1995, the District XI District Administrator informed Petitioner that the overpayment would be recovered through payroll deductions beginning January 12, 1996, amounting to "10[percent] of [her] gross salary each pay period, unless [she] prefer[red] a single lump sum, until the balance [was] paid." The letter further provided, in part, as follows: If you do not dispute the overpayment, but feel that the repayment schedule of 10 [percent] of your gross salary per pay period is overly burdensome, please call Thomas Franklin at 377-5055 Number135 and he will review with you what must be documented and submitted to the Comptroller's Office (Capitol Building, Suite 1201, Tallahassee, Florida 32399-0350) to request a modification. While the total amount eventually repaid to the State cannot be adjusted, the Comptroller may be convinced to lengthen the repayment schedule by lessen- ing the percentage withheld each pay period. If you do not agree that you were overpaid this amount, you have the right to an adminis- trative hearing under 120.57(1) or (2), Florida Statutes, and Rules 10-2.036 and 28-5, Florida Administrative Code. You may request a formal or an informal hearing. If a request for a formal hearing is made, your petition must be in compliance with Rule 28-5.021, Florida Administrative Code. Please note that Rule 28-5.201(2) specifies that your petition should contain a concise discussion of the specific item in dispute. Informal hearings are governed by Rules 28-5.501-503, Florida Administrative Code. Your request for either a formal or informal hearing must be received by this office, attention Thomas Franklin, within thirty (30) days of your receipt of this letter, in accordance with Rule 10-2.036, Florida Administrative Code. Failure to request a timely hearing shall be deemed a waiver of your right to hearing. By letter dated November 6, 1995, Petitioner advised the Department that that she was not in agreement with the "content" of the District Administrator's November 1, 1995, letter, and that she desired to have a hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department: find that, from June 28, 1993, until January 27, 1994, Petitioner was overpaid a total of $769.39; notify the Department of Management Services of this finding; and refer the matter to the Comptroller so that the Comptroller may take appropriate action to recover these moneys owed to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1996. STUART M. LERNER, 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 29th day of April, 1996.
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, including June 28, 1993, through January 27, 1994, an employee of the Department working in the economic services unit of the Department's District XI (hereinafter referred to as the "District"). In 1990, Petitioner occupied a PAS (Public Assistance Specialist) I position that, in or around June of that year, was one of 182 such positions in the District to be reclassified to a PAS II position as part of the Department's implementation of the new FLORIDA computer system. 2/ Those employees occupying these reclassified positions (hereinafter referred to as the "upgraded employees") whose salaries were below the minimum salary for a PAS II received a salary increase to raise their salary to the minimum. Petitioner was among the employees who received such a salary increase. Such action was taken in accordance with the following Department policy set forth at page 11 of HRSP 60-1: When an employee is promoted, a salary in- crease to at least the minimum salary of the higher level position will be made. However, an increase of up to ten percent above the current base salary or ten percent above the minimum for the new class may be approved. An increase of up to ten percent of the current base salary is normally used when the employee's salary is the same or nearly the same as the minimum for the new class. An increase of up to ten percent above the minimum for the new class may be granted when an employee possesses training or experience substantially above the minimum training and experience required for the higher class and it is determined that the employee is exceptionally well qualified for the position. These increases must be approved by an assistant secretary or district administrator. Because of funding constraints that existed at the time, no other salary increases were given to the upgraded employees. Funds for such additional salary increases became available toward the end of the 1992-1993 fiscal year. The increases were approved at both the Department and District level. Petitioner and the other upgraded employees were advised of the increases by a memorandum dated July 7, 1993, from the District XI District Administrator. The District Administrator's memorandum read as follows: Your position has been identified as one which was upgraded as a result of the FLORIDA implementation in 1990/1991. At the time, our records indicate that you received a partial increase, or none at all, because of budgetary constraints. Due to the identification of available monies prior to the end of the Fiscal Year, we are pleased to inform you that you will be receiving a pay increase in your salary warrant on July 9, 1993. The amount of the increase will be either 10[percent] or the difference between what you received in 1990/1991 and 10 [percent], and was effective June 28, 1993. Should you have any questions about this increase or how it was calculated, please call Arelis Valero at 377-5197. Your continued dedication and service to HRS is sincerely appreciated. District personnel miscalculated the amount of Petitioner's approved salary increase (which was "the difference between what [he had] received in 1990 . . . and 10[percent]" of his pre-reclassification base salary). As a result, following June 28, 1993, the effective date of the increase, for the pay periods ending January 27, 1994, Petitioner was overpaid a total of $1,148.35. The District discovered the error and revised its payroll records to reflect Petitioner's correct salary. In addition, by memorandum, it notified Petitioner of the mistake that had been made and advised him that it was his responsibility to repay the amount he had been overpaid. By letter dated November 1, 1995, the District XI District Administrator informed Petitioner that the overpayment would be recovered through payroll deductions beginning January 12, 1996, amounting to "10[percent] of [his] gross salary each pay period, unless [he] prefer[red] a single lump sum, until the balance [was] paid." The letter further provided, in part, as follows: If you do not dispute the overpayment, but feel that the repayment schedule of 10 [percent] of your gross salary per pay period is overly burdensome, please call Thomas Franklin at 377-5055 Number135 and he will review with you what must be documented and submitted to the Comptroller's Office (Capitol Building, Suite 1201, Tallahassee, Florida 32399-0350) to request a modification. While the total amount eventually repaid to the State cannot be adjusted, the Comptroller may be convinced to lengthen the repayment schedule by lessening the percentage withheld each pay period. If you do not agree that you were overpaid this amount, you have the right to an administrative hearing under 120.57(1) or (2), Florida Statutes, and Rules 10-2.036 and 28-5, Florida Administrative Code. You may request a formal or an informal hearing. If a request for a formal hearing is made, your petition must be in compliance with Rule 28-5.021, Florida Administrative Code. Please note that Rule 28-5.201(2) specifies that your petition should contain a concise discussion of the specific item in dispute. Informal hearings are governed by Rules 28-5.501-503, Florida Administrative Code. Your request for either a formal or informal hearing must be received by this office, attention Thomas Franklin, within thirty (30) days of your receipt of this letter, in accordance with Rule 10-2.036, Florida Administrative Code. Failure to request a timely hearing shall be deemed a waiver of your right to hearing. After receiving this November 1, 1995, letter, from the District XI District Administrator, Petitioner spoke with Thomas Franklin, the Department employee referenced in the letter. Franklin told Petitioner that he could request both a modification in the repayment schedule and an administrative hearing. In a memorandum to Franklin dated December 3, 1995, Petitioner requested an administrative hearing "due to the fact that [he did] not agree that an overpayment [had] ever occurred." In another December 3, 1995, memorandum to Franklin, Petitioner requested that only "$10.00 biweekly [be deducted] from [his] paycheck" if it was ultimately determined that an overpayment had indeed been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department: find that, from June 28, 1993, until January 27, 1994, Petitioner was overpaid a total of $1,148.35; notify the Department of Management Services of this finding; and refer the matter to the Comptroller so that the Comptroller may take appropriate action to recover these moneys owed to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1996. STUART M. LERNER, 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 29th day of April, 1996.
Findings Of Fact Respondent employs petitioner as a youth counselor II in Ft. Pierce, Florida. Petitioner attained permanent career service status in May of 1972. In addition to "carrying a normal caseload," i.e., supervising 85 to 88 youngsters in the customary fashion, petitioner met four times weekly with children who had been referred by courts or school authorities for intensive counseling. These groups counseling sessions began at six o'clock in the evening and lasted from one to one and a half hours. John B. Romano became petitioner's immediate supervisor on March 18, 1977. With the acquiescence of Mr. Romano's immediate predecessor, Ben Robinson, petitioner ordinarily reported for work between half past nine and half past ten in the morning. The week Mr. Romano started as petitioner's supervisor, he noticed that petitioner arrived for work between half past nine and ten in the morning. When he spoke to petitioner about this, petitioner told him of an accommodation that had been reached with Mr. Robinson, on account of petitioner's staying at work late to conduct group counseling. Mr. Romano told petitioner that he should report for work at half past eight in the morning, until a youth counselor's vacancy that then existed in the office could be filled. Subsequently, on at least one occasion before May 31, 1977, Mr. Romano spoke to petitioner about being late for work. On May 31, 1977, by which time another counselor had been hired, petitioner reported for work at approximately half past ten. On June 7, 1977, after petitioner had been suspended, Mr. Romano issued a written reprimand to petitioner, characterizing petitioner's arrival at half past ten on May 31, 1977, as "an insubordinate offense." Respondent's exhibit No. 5. One Harry Greene told Earl Stout, a service network manager for respondent and Mr. Romano's superior, that a boy whom petitioner had supervised had accused petitioner in open court of selling drugs and smoking marijuana. Messrs. Greene, Stout and Romano visited the facility at which petitioner's accuser was incarcerated and interrogated him. On May 13, 1977, a Friday, Mr. Romano told petitioner to meet him at nine o'clock the following Monday, but did not explain why. Present at the meeting on May 16, 1977, were petitioner, Mr. Romano, Mr. Greene and Mr. Stout. Petitioner was told of the accusations against him, but the accuser's identity was withheld. Mr. Stout gave petitioner the choice of resigning his position or taking annual leave for the duration of a formal investigation. Petitioner refused to resign. Mr. Stout instructed petitioner to tell no one that he had been asked to take leave or that he would be the subject of an investigation. When petitioner left this meeting he promptly told his fellow youth counselors that the had been suspended. For this petitioner received a written reprimand dated June 7, 1977. Respondent's exhibit No. 6. Petitioner subsequently availed himself of grievance procedures to raise the question whether he should have been permitted to take administrative leave instead of annual leave; and it was decided that he was entitled to take administrative leave. On June 8, 1977, Earl Stout wrote petitioner a letter which began "On June 1, you were advised by me that effective June 2, you were being suspended for insubordinate acts . . . ." This letter was sent to petitioner by certified mail. Mr. Stout testified without contradiction that blanket authority had been delegated to him to suspend employees under him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the suspension be upheld. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. J. Wayne Jennings, Esq. 2871 Forth-Fifth Street Gifford, Florida 32960 Mr. K.C. Collette, Esquire Forum 3, Suite 800 1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the transfer of John Jackson, Sr., be sustained. DONE and ORDERED this 24th day of May, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. John Jackson, Jr., Department of Environmental Regulation 2551 Executive Center Circle, West Lafayette Building Tallahassee, Florida 32301 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact In early 1979, the Department of Administration, Division of Personnel, prepared for the Governor a document entitled Recommended Salaries and Benefits for Career Service Employees for the Biennium July 1, 1979, to June 30, 1981. The purpose of this document was to assist the Governor in making recommendations to the 1979 Legislature regarding salaries and benefits for the State's Career Service employees. Approximately one month after publication of its initial recommendations, the Department of Administration published a supplement to those recommendations to reflect the results of collective bargaining negotiations with various bargaining units and to clarify certain points. With respect to merit salary increases, it was recommended that all funds not distributed as guaranteed merit increases in accordance with specific collective bargaining agreements be "distributed at the discretion of management" to employees with six months satisfactory service as of September 1, 1980. For the supervisory bargaining unit of which all Petitioners are members, all merit funds were to be distributed at the discretion of management. The Governor's recommendations contained in the document prepared by the Department of Administration were furnished to legislators and all State agencies prior to adoption of the Appropriations Act. In 1979, in the Appropriations Act for the Biennium 1979-81, as supplemented in 1980 by the 1980 Supplemental General Appropriations Act, the Legislature appropriated certain funds to be used for merit salary increases for Career Service employees. These raises were to become effective September 1, 1980. Funds were allocated in a total dollar amount for each collective bargaining unit within each state agency. The Legislature, in appropriating funds for salary increases and benefits for Career Service employees, specifically provided that such funds were to be distributed in accordance with the Governor's recommendations. Ch. 79-212, Sec. 21, Laws of Florida. The Department of Environmental Regulation received merit increase monies for its Career Service employees within the following bargaining units: supervisory-professional, professional, administrative clerical, operational services, and managerial/confidential. Petitioners Leslee A. Williams, Sylvia E. Sakamoto, and Rosemary Bottcher are Career Service employees employed in the Bureau of Water Analysis, Division of Environmental Programs. Leslee Williams is a Microbiologist III. Sylvia Sakamoto and Rosemary Bottcher are Chemist III's. Petitioners are employees within the Supervsory/professional collective bargaining unit. On July 31, 1980, the Secretary of the Department of Administration sent a memorandum to all Department heads with attached instructions for implementation of salary increases for employees in all affected bargaining units, including the supervisory unit. The instructions for distribution of merit salary increases to employees in the supervisory unit provided that the distribution of funds to eligible employees was discretionary with management, subject only to a cap on the maximum amount any employee could receive. This cap of 10, 7.5, or 5 percent of an employee's salary is determined by the employee's official performance evaluation rating. With regard to "discretionary merit salary advancements", the instructions noted that: These increases are provided to reward current employees based upon their performance. These increases are intended to allow employees to progress within the salary range in recognition of their increased worth to the State as an employee. The proper implementation of merit salary advancements is critical to the State's ability to reward tie most competent, qualified and productive employees. While the funds are discretionary as to the actual amount any one employee may receive, management has no discretion as to whether the Funds may or may not be distributed. These instructions were received by DER in early August of 1980, and DER immediately began taking steps necessary to implement the salary increases in time for inclusion in employees' September paychecks. In August, 1980, the Secretary of the Department of Environmental Regulation authorized each of the directors of the three principal divisions within the Department (the Divisions of Environmental Programs, Environmental Permitting, and Administrative Services), as well as the offices of General Counsel and the Secretary, individually, to establish or determine the methods, standards for determining employee merit and employee performance and performance to be used within each division or office for identification of those Career Service employees eligible to receive a merit salary increase. By memorandum dated August 2, 1980 the Director of the Division of Environmental Programs requested that all Bureau Chiefs in his division and certain supervisors meet with him to establish a ranking of employees within the division to be used in determining the amount of merit salary increase each eligible employee would receive. This memorandum provided, in part, as follows: . . . We have available a certain amount of "discretionary" money which can be given as merit raises. This will be over and above those pay increases through pay adjustments or cost of living increases, which are mandated by the Legislature. The discretionary amounts are small; but they are significant enough that we should make every effort to insure fairness recognition of outstanding service and encouragement of those whom the Department needs to keep. The final decision on all increases will be mine alone, but the preliminary ranking and classification of the various persons will be done in collaboration with all of you. We will begin with the personnel evaluations. However, since grading standards for the evaluations differ among various supervisors, we will attempt to bring all evaluation ratings to comparable scales. We will then try to emphasize those qualities, both within the ratings and those not included in the particular categories, which most contribute to the mission of the Department. We must all try to eliminate our personal biases in this process and the biases inherent in the evaluation system. If we succeed, the raises will be both fair and perceived as fair and will be a help to Division and Department morale. I ask your complete cooperation in this process. (Emphasis added) On September 2, 1980, the Director of the Division of Environmental Programs sent a memorandum to all employees of the division explaining the process used in computing merit salary increases for division employees. The September 2, 1980, memorandum contained the following provisions: The raises were awarded based on relative scores given to each employee. This scoring was done by the Director, Deputy Director and Bureau Chiefs (together with independent office heads for those classes which contained their subordinates) in joint session. First, each employee's evaluation was considered and then related to that of ether employees in the class. The employee's other attributes and contribution to his program and the Department was then discussed. His immediate supervisor's rating tendencies were considered (and we, incidentally, gained a very good idea of how different were the different scoring scales used) and the supervisor was called and consulted if there was difficulty in reaching a consensus. In almost every case one or more of the Bureau Chiefs, other than the employee's own, had experience and opinions on that employee to share. We repeatedly examined each other on the possibility of bias and favoritism. Finally, the employee was given a weighted percentage score. Although some discussions were more protracted than others, complete consensus was reached in every case. The Director and Deputy Director then translated the relative scores into both the base salary and the dollars available within the class. Some small further subjective judgements were necessary because of rounding and some inexactness in the formula but they were extremely minor - no more than $1.00 per person and usually much less. The raises given reflect very closely the relative scores from the joint sessions. There is considerable agreement between the curve of the merit raises and the curve of the evaluations. They are far from congruent, however. Some employees with relatively high evaluations got no merit raises; others relatively low got substantial ones. In each case the discussions were very extensive and the decision was made only after all were convinced that an injustice would otherwise result. Such inflated and deflated evaluations will be the subject of much additional scrutiny in the coming year. Merit salary increases for all 192 Career Service employees within the Division of Environmental Programs were determined pursuant to the methods, standards for determining employee merit and employee performance, and procedures contained in the memoranda of August 25, 1980, and September 2, 1980. The three Division directors, the General Counsel, and the Secretary of DER each used different methods to award merit salary increases to employees in their respective offices. The method used by the Director of the Division of Environmental Programs to award merit salary increases for 1980 was different from the various methods used by DER in the past to distribute similar appropriations. Since at least 1975, DER has made a separate determination each year that funds appropriated for merit increases of the manner in which those funds would be distributed. A decision made one year was not prospectively applicable to future appropriations. Since at least 1975, the Department of Environmental Regulation has evaluated the job performance of its Career Service employees on an annual basis pursuant to procedures applicable to the entire Department. Currently, the Department follows the employee performance evaluation procedures contained in Section 3.2, Department of Environmental Regulation, Administrative Services Internal Management Policies and Procedures Manual ("ASIMPP") including exhibits attached thereto. These procedures and criteria were adopted by the Department pursuant to Rule 22A-9.02(1), Florida Administrative Code, and Section 110.201, Florida Statutes, but have never been adopted as "rules" through Section 120.54, Florida Statutes rulemaking proceedings. The policy of the Department, as stated in the ASIMPP, is to use performance evaluations ". . . to award or deny salary increases . . ." In 1976, 1977 and 1978, merit salary increases were awarded to career service employees in the Department based solely upon performance evaluations. In each of those years, the "merit" of employees was determined by the annual performance evaluations, but a differing method of computing the dollar amount was used for each year. However, within categories of employees having the same performance evaluation rating, the method of calculating the dollar amount was uniformly applied. These standards and procedures for awarding merit salary increases in 1976, 1977, and 1978 were in written form, were established by the Secretary of the Department, and were communicated to all employees. There were no merit raises in 1979. Since at least June 19, 1978, the Department of Environmental Regulation has also had in effect a written policy statement which provides in part: The personnel Rules and Regulations provide that merit/anniversary increases be based on performance evaluations Petitioners were given performance evaluations in the summer of 1980 pursuant to the procedures in Sec. 3.2, ASIMPP and each Petitioner was rated "above satisfactory." Petitioners each had at least six months continuous and satisfactory service on September 1, 1980, and were otherwise eligible to receive a merit salary increase on September 1, 1980, but were denied such a salary increase. Neither of the methods and procedures used by the Division of Environmental Programs to distribute merit salary increases to division employees for 1980, as outlined in the memoranda of August 25, 1980 and September 2, 1980, nor the methods used by the other two divisions and the General Counsel and Secretary were adopted through formal rulemaking in accordance with Section 120.54, Florida Statutes. In each case, the procedures used applied only to Career Service employees within that division or office who were eligible for a merit increase and were used only to determine the distribution of those funds appropriated by the Legislature for the biennium 1979-81. Counsel for Petitioners and Respondent stipulated that the methods used by the Division of Environmental Programs to determine merit salary increases affect the private interests of Petitioners, and further, that Petitioners have standing to bring this petition pursuant to Section 120.56, Florida Statutes. Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner was formerly employed by Respondent as a Human Services Worker assigned to the Landmark Learning Center, a residential facility located in Dade County. She began her employment on May 10, 1985. On January 13, 1989, Petitioner received the following memorandum from the Residential Services Director of Facility I at Landmark: In reviewing your time and attendance record from August, 1988, I have observed that you are exhibiting excessive absences and/or tardiness. These frequent absences place an unfair burden on your coworkers and interfere with the operations of this center. Therefore they will no longer be tolerated. Effective on the date you receive this communication, the following restrictions will be in effect: As always, you are expected to have all leave time approved in advance by your immediate supervisor. You are expected to submit a doctor's statement justifying your absence prior to the approval of any sick leave, annual-sick leave, or family-sick leave. You will not be allowed to substitute any other type of leave for these absences. Failure to comply with the above restrictions will result in disapproved leave without pay for the dates in question, and a recommendation for disciplinary action based on absence without authorized leave. In addition a continued pattern of excessive absence could result in disciplinary action for excessive absence/tardiness. All disciplinary [action] will be in accordance with HRS-P-60-1, Employee's handbook. I am confident that you will correct this situation in a satisfactory manner. At no time prior to the termination of Petitioner's employment with Respondent were the "restrictions" imposed by this memorandum lifted. In early 1990, Petitioner sustained an on-the-job injury. As a result of the injury, Petitioner was on authorized leave from February 25, 1990, until April 4, 1990. When she returned to work on April 5, 1990, Petitioner was assigned to "light duty" in the field office of which Sylvia Davis, a Senior Residential Unit Supervisor, was in charge. Petitioner's working hours were 6:00 a.m. to 2:30 p.m. Petitioner was advised that Roberta Barnes would be her immediate supervisor during her "light duty" assignment. On April 5, 1990, Petitioner worked six and a half hours. She was on authorized leave the remainder of her shift. On April 6 and 7, 1990, she worked her full shift. On April 8 and 9, 1990, Petitioner did not report to work. She telephoned the field office before the beginning of her shift on each of these days and left word that she would not be at work because she was experiencing pain in her lower back and right leg; however, she never received supervisory authorization to be absent from work on these days. April 10 and 11, 1990, were scheduled days off for Petitioner. At approximately 11:00 p.m. on April 11, 1990, Petitioner telephoned the field office and gave notice that, inasmuch as her physical condition remained unchanged, she would not be at work the following day. Petitioner did not report to work on April 12, 1990. Although she had telephoned the field office the night before to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on April 12, 1990. On April 13, 14, 15 and 16, 1990, Petitioner did not report to work because she was still not feeling well. She neither telephoned the field office to give advance notice of her absences, nor obtained supervisory authorization to be absent on these days. April 17 and 18, 1990, were scheduled days off for Petitioner. Prior to the scheduled commencement of her shift on April 19, 1990, Petitioner telephoned the field office to indicate that she would not be at work that day because she had a doctor's appointment, but that she hoped to return to work on April 20, 1990. Petitioner did not report to work on April 19, 1990. Although she had telephoned the field office to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on that day. On April 19, 1990, Petitioner was sent the following letter by the Superintendent of Landmark: You have not called in or reported to work since April 12, 1990 and therefore you have abandoned your position as a Human Services Worker II and are deemed to have resigned from the Career Service according to Chapter 22A-7.010(2)(a) of Personnel Rules and Regulations of the Career Service System. Your resignation will be effective on the date that you receive this letter or on the date we receive the undelivered letter advising you of your abandonment. You have the right to petition the State Personnel Director, 530 Carlton Building, Tallahassee, Florida 32304 for review of the facts. Such petition must be filed within twenty (20) calendar days after receipt of this letter. At approximately 12:40 a.m. on Friday, April 20, 1990, unaware that she had been deemed to have resigned her position, Petitioner telephoned the field office to give notice that she would be out of work until after her doctor's appointment on Monday, April 23, 1990. On April 23, 1990, Petitioner again telephoned the field office to advise that she had to undergo further medical testing and therefore would remain out of work until the required tests were performed. Petitioner's call was transferred to Elaine Olsen, a Personnel Technician II at Landmark, who told Petitioner about the letter the Superintendent had sent to Petitioner the previous Thursday. Petitioner received the letter on April 30, 1990. Petitioner did not report to work during the period referenced in the Superintendent's letter because she was not feeling well. She did not intend, by not reporting to work on these days, to resign or abandon her position. It was her intention to return to work when she felt well enough to do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order (1) finding that Petitioner did not abandon her career service position, and (2) directing Respondent to reinstate Petitioner with back pay. DONE and ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1991. STUART M. LERNER 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 16th day of May, 1991.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, including June 28, 1993, through January 27, 1994, an employee of the Department working in the economic services unit of the Department's District XI (hereinafter referred to as the "District"). In 1990, Petitioner occupied a PAS (Public Assistance Specialist) I position that, in or around June of that year, was one of 182 such positions in the District to be reclassified to a PAS II position as part of the Department's implementation of the new FLORIDA computer system. 2/ Those employees occupying these reclassified positions (hereinafter referred to as the "upgraded employees") whose salaries were below the minimum salary for a PAS II received a salary increase to raise their salary to the minimum. Petitioner was among the employees who received such a salary increase. Such action was taken in accordance with the following Department policy set forth at page 11 of HRSP 60-1: When an employee is promoted, a salary increase to at least the minimum salary of the higher level position will be made. How- ever, an increase of up to ten percent above the current base salary or ten percent above the minimum for the new class may be approved. An increase of up to ten percent of the current base salary is normally used when the employee's salary is the same or nearly the same as the minimum for the new class. An increase of up to ten percent above the minimum for the new class may be granted when an employee possesses training or experience substantially above the minimum training and experience required for the higher class and it is determined that the employee is exceptionally well qualified for the position. These increases must be approved by an assistant secretary or district administrator. Because of funding constraints that existed at the time, no other salary increases were given to the upgraded employees. Funds for such additional salary increases became available toward the end of the 1992-1993 fiscal year. The increases were approved at both the Department and District level. Petitioner and the other upgraded employees were advised of the increases by a memorandum dated July 7, 1993, from the District XI District Administrator. The District Administrator's memorandum read as follows: Your position has been identified as one which was upgraded as a result of the FLORIDA implementation in 1990/1991. At the time, our records indicate that you received a partial increase, or none at all, because of budgetary constraints. Due to the identification of available monies prior to the end of the Fiscal Year, we are pleased to inform you that you will be receiving a pay increase in your salary warrant on July 9, 1993. The amount of the increase will be either 10[percent] or the difference between what you received in 1990/1991 and 10 [percent], and was effective June 28, 1993. Should you have any questions about this increase or how it was calculated, please call Arelis Valero at 377-5197. Your continued dedication and service to HRS is sincerely appreciated. District personnel miscalculated the amount of Petitioner's approved salary increase (which was "the difference between what [she had] received in 1990 . . . and 10[percent]" of her pre-reclassification base salary). As a result, following June 28, 1993, the effective date of the increase, for the pay periods ending January 27, 1994, Petitioner was overpaid a total of $1,144.72. The District discovered the error and revised its payroll records to reflect Petitioner's correct salary. In addition, by memorandum, it notified Petitioner of the mistake that had been made and advised her that it was her responsibility to repay the amount she had been overpaid. By letter dated November 1, 1995, the District XI District Administrator informed Petitioner that the overpayment would be recovered through payroll deductions beginning January 12, 1996, amounting to "10[percent] of [her] gross salary each pay period, unless [she] prefer[red] a single lump sum, until the balance [was] paid." The letter further provided, in part, as follows: If you do not dispute the overpayment, but feel that the repayment schedule of 10 [percent] of your gross salary per pay period is overly burdensome, please call Thomas Franklin at 377-5055 Number135 and he will review with you what must be documented and submitted to the Comptroller's Office (Capitol Building, Suite 1201, Tallahassee, Florida 32399-0350) to request a modification. While the total amount eventually repaid to the State cannot be adjusted, the Comptroller may be convinced to lengthen the repayment schedule by lessening the percentage withheld each pay period. If you do not agree that you were overpaid this amount, you have the right to an adminis- trative hearing under 120.57(1) or (2), Florida Statutes, and Rules 10-2.036 and 28-5, Florida Administrative Code. You may request a formal or an informal hearing. If a request for a formal hearing is made, your petition must be in compliance with Rule 28-5.021, Florida Administrative Code. Please note that Rule 28-5.201(2) specifies that your petition should contain a concise discussion of the specific item in dispute. Informal hearings are governed by Rules 28-5.501-503, Florida Administrative Code. Your request for either a formal or informal hearing must be received by this office, attention Thomas Franklin, within thirty (30) days of your receipt of this letter, in accordance with Rule 10-2.036, Florida Administrative Code. Failure to request a timely hearing shall be deemed a waiver of your right to hearing. Petitioner subsequently requested, by memorandum, a formal hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department: find that, from June 28, 1993, until January 27, 1994, Petitioner was overpaid a total of $1,144.72; notify the Department of Management Services of this finding; and refer the matter to the Comptroller so that the Comptroller may take appropriate action to recover these moneys owed to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1996. STUART M. LERNER, 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 29th day of April, 1996.
Findings Of Fact Harold Thomas Scott obtained a bachelor of science degree in elementary education from Florida A & M University (FAMU) in 1961. He was employed by Petitioner, School Board of Dade County, as an elementary school teacher from 1961 until his suspension without pay in September, 1980. Scott obtained nine graduate credits from FAMU by attending night classes in Miami in 1968 and 1969. He did no further work toward a valid masters degree after that time. He met Eugene Sutton, a FAMU employee, during the 1977-78 school year when Sutton was in Miami to supervise FAMU students interning in education. Sutton discussed a "Graduate Independent Study Program" with Scott, and told him that he could obtain a masters degree working at his own pace in his own home. Sutton also held out the possibility that Scott could become a part-time educational consultant when he obtained the masters degree. During the year following their meeting, Scott gave Sutton a total of $2,500 in cash and checks made payable to Sutton. This amount purportedly represented fees for tuition and "service." Although Scott knew this amount was substantially more than the cost of other graduate programs, he did not question Sutton on this point and obtained only a partial accounting for these fees. Exhibit 3, a receipt for $231 on FAMU form, was the only documentation offered at the hearing. Scott has no contact with any instructor or FAMU representative other than Sutton. He received no course outline or syllabus and was not required to produce a thesis or dissertation, or take any written examinations. Scott prepared assignments given to him by Sutton which he delivered during Sutton's periodic visits to Miami. The assignments consisted mainly of assembling existing teaching materials in a manual or booklet format. Scott received no grades on these assignments nor was he aware of any specific courses which the work related to. He did, however, receive a FAMU transcript on completion of the program. In late 1978 or early 1979, Sutton advised Scott that his degree had been awarded and that he had registered it with the State Department of Education. Scott then applied to Petitioner for the masters degree pay increase and began receiving the higher salary in March, 1979. In September, 1980, Dade County School Board officials learned that Scott's masters degree was fraudulent and confronted him with this information. Scott offered to resign but was suspended instead. Scott concedes that he owes the $2,951.41 in salary overpayments demanded by Petitioner. As a result of criminal charges filed in this and related cases, Scott was arrested in Dade County and ordered to Leon County to stand trial. He entered a plea of nolo contendere to a charge of uttering a forgery and received three years probation. Scott did not contest the criminal charge as he feared a prison sentence was probable if he had gone to trial and lost. Respondent denies that he knew the masters degree he obtained was fraudulent. This denial is not credible in the circumstances of this case. Scott holds a bachelors degree from FAMU and had obtained nine graduate credits from that institution prior to his involvement with Sutton. Thus, he was thoroughly aware that university credits and degrees are awarded only upon meeting specific educational requirements. Scott's familiarity with the education system, both as a student and as a teacher, precluded his deception by Sutton. The exorbitant fees, the manner of payment, the non-existence of course materials, the absence of faculty and the lack of any substantial academic requirements would have, and did in fact, alert Scott to the fraudulent nature of his undertaking.
