The Issue The only remaining count, Count I, attacks Rules 11B-14.01 and 11B-14.02, Florida Administrative Code. The attack is twofold: (1) the agency's rule is not applicable to the Petitioner; and (2) the rule is an invalid exercise of validly delegated legislative authority.
Findings Of Fact Petitioner is a local school board and political subdivision of the State employing school security officers who meet the definition of Chapter 943, Florida Statutes, of law enforcement officers. Respondent is the Department of Criminal Law Enforcement, Police Standards and Training Commission which has adopted Rules 11B-14.01 and 11B- 14.02, Florida Administrative Code, following the procedures required by law, and applies them to the Petitioner and its law enforcement employees. Those rules substantially affect the Petitioner by mandating, in part, the salary which it must pay its school security officers. The Petitioner has standing to challenge the rules in question under Section 120.56, Florida Statutes.
The Issue The issue posed herein is whether or not the Respondent, Sherba Brothers, Inc., owes the Petitioner wages in the amount of $1,446.62 based on Respondent's failure to comply with the prevailing wage rate as set forth and defined in Chapter 215.19, Florida Statutes. Based on the entire record compiled herein, including the testimony of the witnesses and their demeanor, I make the following:
Findings Of Fact The Petitioner, Aldine Clinton Carter, Jr., was employed by Sherba Brothers, Inc., from approximately May 27, 1976 to October 14, 1976 as a licensed electrician (Dade County). The project in which the Petitioner was employed is the Dade County Courthouse, Project No. 4169, Code 915-018001 which entailed the complete renovation of the 12th floor. The Petitioner was employed by Respondent approximately 39 days, 2-1/2 hours, receiving wages of One Thousand Nine Hundred Thirty-Four Dollars and Twenty-Five Cents ($1,934.25). The prevailing wage rate for electricians in the subject area is Ten Dollars and Seventy-Five Cents ($10.75) which based on the work period involved here i.e. 39 days, 2-1/2 hours times the prevailing hourly rate equals Three Thousand Three Hundred Eighty Dollars and Eighty-Seven Cents ($3,380.87). This figure represents a difference of One Thousand Four Hundred Forty-Six Dollars and Sixty-Two Cents ($1,446.62) which as stated is the amount claimed by the Petitioner as now being due and owing. The Respondent offered no evidence to contest the fact that the Petitioner was in fact, employed as an electrician on the subject project. Some testimony was adduced by Respondent for the purpose of establishing that Petitioner was classified as a second or third class electrician. The proof falls short in this regard. There was no testimony establishing that there in fact exist such a classification(s) and the job classifications listed in the specification book for this project list only an electrician classification at the hourly rate of Ten Dollars and Seventy-Five Cents ($10.75). It is undisputed that the Petitioner is licensed as an electrician. Therefore, for purposes of this proceeding, I conclude that the Petitioner was in fact employed as a licensed electrician while employed by Respondent. However, the Respondent contends that as a nonunion subcontractor, it was not obligated to pay the prevailing wage rate and that the Petitioner was aware of this when he accepted the job for the lower wages. 1/ Secondly, the Respondent contends, that in any event the Petitioner failed to timely file an affidavit in protest of the asserted "noncompliance" as is set forth and defined in Chapter 215.19(3)(a)(1), Florida Statutes. In this regard, the last date the Petitioner was employed by Sherba Brothers was October 14, 1976. On October 31, 1976, the Petitioner sent a letter to the Public Works Department, protesting the fact that he was not paid the prevailing wages. That letter was forwarded to the administrative agency for that project and the county architect, Alf O. Barth, advised Petitioner, by letter dated November 15, 1976, that while his letter of October 31, 1976, contained the essential information regarding his claim, his letter was not notarized as required by state law. The general contractor, Rainey Construction Company and the subcontractor, Sherba Brothers (Respondent) were both notified by copy of Mr. Barth's letter to Mr. Carter that the amount as claimed by him was being withheld from their final payment until a final determination had been made on Petitioner's claim. Two days later on November 17, 1976, the Petitioner forwarded a notarized letter to the parties involved. The Petitioner testified that he made numerous inquiries from various project employees seeking to ascertain if in fact the Respondent was obligated to pay the prevailing wage rate. According to his unrefuted testimony, it was only after he left the Respondent's employ that he was able to determine that Respondent was indeed obliged to pay prevailing wages. This determination came through a communique from Messr., Luther J. Moore, Administrator of Prevailing Wage. The Respondent failed to introduce evidence showing that the prevailing wage rate was posted on this project during the period in which the Petitioner was employed. By so doing, the Petitioner urges and is now claiming that be was thwarted in asserting his rights under the prevailing wage law.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent shall pay the Petitioner the sum of $1,446.62 as claimed in the petition filed herein. RECOMMENDED this 7th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
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.
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2013.
Findings Of Fact It is the responsibility of the Department to coordinate the purchase of commodities for all state agencies. The Department annually enters into approximately 140 "term contracts" for commodities of which nine are multiple awards. A "term contract" does not involve a definite quantity purchase but rather a guarantee that a purchase, if made during the contract period, will be from the term contract at a set price. No bidding is involved since the user agency accepts the terms agreed to in the contract. To implement a decision to establish a term contract, the Department issues an ITB which consists of general conditions, special conditions, and technical specifications. After issuance of an ITB, pre-bid conferences and addenda to the ITB may follow. Vendors respond to the ITB and ultimately a term contract is certified following approval by the Governor and Cabinet. Agencies may acquire from the term contract without prior approval of the Department. Term contracts may be for either a single competitive award or multiple award. A competitive award involves a single vendor or awardee who is awarded the contract for a specified term on the basis of being the lowest responsive bidder. If the Department receives only one responsive bid, it will award the bid to the single bidder in lieu of making a multiple award. A "multiple award," as used herein means an award to multiple vendors who are qualified by the Department to furnish a commodity. After a multiple award, the vendors compete for business at the user agency level under the terms of the state contract. A multiple award is often referred to as a "purchasing" or "pricing agreement." The Department utilizes single competitive bids when specifications can be drawn which reflect minimum agency needs and do not discriminate among vendors. The Department has no rules regarding when it will utilize a single or multiple award approach. Instead, this decision is made on a commodity by commodity basis. Generally, the Department considers a single award system as the preferred approach when technical specifications can be adequately drafted. If the specifications are drafted too broadly, they will not meet specified needs. Similarly, if they are drafted too narrowly, they will unduly restrict a vendor's ability to compete in the bidding process, thereby defeating one of the basic purposes of a single award system. In soliciting competitive bids for copiers, the Department has attempted to standardize specifications to meet basic copying needs. Even though machine specifications may differ, the general specifications by type and class prescribe the minimum requirements a machine must possess to qualify. The standardized specifications are what determines whether a comparison based on price alone is fair. Individual copier machines are not equivalent due to the wide variety of features available from different manufacturers; however, the Department only seeks to acquire machines which meet basic performance specifications. In the specifications set forth in the ITB, the Department has established general categories based upon the type of paper utilized, machine features such as reduction and two sided copying and monthly volume ranges of between 1,000 to 60,000 copies per month. Through these specifications, the Department has not attempted to meet every copying need, but only basic copying requirements of state agencies. If an agency has a need which is not met by the proposed state contract, the Department may authorize an exception to the contract and the needed copier may be acquired either through sole source or competitive bid depending on the situation. A basic disagreement between Xerox and the Department involves whether the specifications adequately address user needs. In drafting the specifications for the ITB, the Department utilized information obtained from vendor's quarterly reports, a review of previous years' exceptions, a review of other states' specifications, independent technological publications such as Data-Pro, certification forms completed by the user agencies and conferences and discussions with user agency personnel and vendors. Each agency purchasing official who testified at the formal hearing stated that the competitive award contract utilized by the Department either met their needs or they were unaware of any needs which were not met by the contract. Witnesses for Savin supported this finding by stating that the specifications met the vast majority of the copier needs which had been identified as being required by government agencies. The Petitioner has failed to demonstrate what actual needs are not capable of being met by the proposed contract in conjunction with the exception process. The competitive award system is not inherently unfair to any vendor. By acquiring copier machines with basic features at the lowest cost, companies such as Xerox which stress marketing, service, and added features are placed at a competitive disadvantage against companies such as Savin who emphasize low cost, basic copiers. Conversely, under a multiple award system, a secondary vendor such as Savin without a large established sales force and acknowledged user acceptance, would be placed in a similarly disadvantageous position. If a multiple award contract were utilized in Florida, pricing would be similar to General Services Administration (hereafter "GSA") price lists. This is the price provided under the federal multiple award program administered by the GSA. Under this system, vendors do not compete generally on the basis of price; a multiple system merely qualified a vendor to sell a commodity directly to the user agency once it agrees to offer a set discount from its commercial pricing. Since direct price competition results to a far greater degree under a single award system, prices paid for commodities are generally lower than under a multiple award approach. Savin witnesses corroborated this by testifying that Savin prices submitted to the state under a competitive award approach were less than those submitted to the federal government for GSA contracts. Additionally, at the request of the Congress, the General Accounting Office (GAO) reviewed the GSA's multiple award schedule program and issued a report outlining the federal experience with multiple awards. (See DGS Exhibit 3). In compiling its report, the GAO investigated state competitive procurement practices in certain states and costs associated under both the state and federal models. The report concluded that states which use competitive procurement have been able to obtain significantly lower prices than GSA for identical products. The report also criticized the GSA for its "service oriented" approach to acquisitions which attempts to "... satisfy the unique need of each customer." Instead, the report recommended that GSA ". . . should balance the interests of the Government as a whole by providing a reasonable range of items to satisfy agency needs through market research and analysis. . ." See DGS Exhibit 3 at 48. The multiple award approach is a more complicated and difficult system to administer because each vendor is permitted to include as part its response to an ITB, special terms and conditions and pricing plans. While this allows for more flexibility at the user level it also creates difficulty for user agencies in evaluating the various plans and prices to determine which products meet needs at the lowest cost. While certain agency-purchasing officials express a desire to make copier acquisition decisions at the user level rather than through a centralized procurement agency such as DGS, none of the officials who testified indicated that he or she had copier acquisition experience equal to that found in the Department. In the absence of a standardized contract with comparable pricing plans, it is difficult to ascertain how the actual prices of various copiers can legitimately be compared. Dependability of machinery is a primary factor in acquisition of copiers. The Department's terms and conditions which specify maintenance and service requirements are critical since a copier must function in order to justify its acquisition. Since copiers are inherently unreliable, a vendor's record on service and maintenance is extremely import.ant in awarding contracts. Although the standardized terms and conditions set forth by DGS in its ITB concerning service and maintenance are accepted by the vendors when they are awarded a bid, it is impossible for vendors in all situations to comply with such standards. Service varies among vendors and dealers. However, if an agency located in an isolated part of the state had a service problem and a critical need for a continually functioning machine, the exception process should be made available to accommodate such user. Neither the competitive nor the multiple award approach has a clear advantage in the area of service, this being a function more of the individual's repairing the machine rather than the type of award utilized. In drafting the technical specifications for the proposed contract, innovative or uncommon features are often excluded from consideration. The Department's goal is to provide specifications based on the "lowest common denominator" of perceived needs. The 1980-1981 draft specifications delineate twenty categories of copiers in four purchase plans, all designed to meet basic copying needs as determined by the Department. Thus, so long as a machine meets the minimum requirements of the technical specifications, it is eligible to compete for an award against all other copiers which also meet such threshold requirements. From a cost standpoint, the machines which come closest to meeting the minimum features should have the best chance of receiving an award. While, in some cases, copiers with added features were the low bidder over machines with less features, the result was simply that the state received added features at no extra cost. Xerox has disputed the Department's use of copies per minute and recommend volume ranges as the test for a copier to meet the requirements of Table I of DGS Exhibit 1. While the recommended volume ranges of some equipment was above or below those recommended by Data-Pro, this does not mean that the specifications are arbitrary or erroneous. Rather, volume ranges should be evaluated on the basis of whether or not they reasonably reflect the volume needs of the user agencies. Other states which have drafted specifications for copiers utilize volume ranges comparable to those used in Florida. Although it is possible that vendors would have an incentive to bid copiers in higher volume ranges than recommended by Data-Pro when copiers are evaluated on the basis of price, this does not necessarily mean that the copier is not capable of performing satisfactorily. Some of the equipment evaluated by Data-Pro has been used successfully at volume ranges in excess of those recommended. Table II of the DGS proposed technical specifications describes the features required for a copier to qualify in the nineteen categories of Group I. Xerox contends that machines with specialized features such as size, console controls, computer self-diagnostics, job recovery and automatic self-cancelling controls, throughput abilities, platen type, toner, paper feed, first copy time, type of document feed and specialized reduction, should not be compared to copiers without such features on the basis of price. However, while many of these features may indeed be useful to a user agency, the question is not whether they are useful but rather whether they are necessary to meet an agency need. For example, if an agency has a specific need for a compact copier because of space limitations, the Department could address such need by the exception process. Similarly, if an agency demonstrated a need for a copier with exceptional copy quality, the exception process could again be utilized. The Department's specifications require either a single or multiple automatic document feed. Although an automatic multipage document feed makes a difference in copier performance, no testimony was presented to show that a need was not being met by requiring one of the two types of feeds. The specifications do not distinguish between sorting capabilities of machines. No distinction is made between a copier with ten bins of sorting and a copier with fifty bins of sorting. This feature, however, must be available as either a built-in or add-on accessory. If a sorter is built into a machine the machine is then compared to one without the added cost of the sorter considered. While this gives an agency the option of adding a sorter at a later date if needed, it also ignores the benefit of the built in feature during the evaluation process. In order to fairly evaluate the two machines, the cost of the "must be availible feature" should be included if a fair cost comparison between machines which provide build-in sorting and those on which it is a mandatory option is to be made. The Department has delineated features affecting performance in the technical specifications. To the extent that features were not delineated, the Department reasonably concluded, based upon its expertise and experience, that the added features, although desirable in many instances, were not necessary. The technical specifications meet the vast majority of user needs and any specific or unusual need not addressed by the specifications can be acquired by a user agency through the exception process. Although each copier is unique in terms of the needs it serves, the Department has drafted technical specifications requiring comparing copiers not on the basis of unique features but on the basis of performance capabilities. It is possible for the Department to delineate user needs through specifications and permit vendors to market the machines which meet those needs at the lowest price. One of the primary advantages of the multiple award system is that it permits new technologically advanced equipment to enter the market place. However, through a workable exception process, equipment can be acquired if such equipment meets a need which is not addressed by the specifications. While each vendor has a variety of pricing plans, no testimony was presented from agency personnel that the state pricing plans which are limited to monthly rental, annual rental, two year lease and outright purchase, failed to adequately address agency pricing plan needs. The Department's use of a median volume figure is generally representative of actual usage. Of necessity, any figure utilized is to some extent arbitrary, however, the median is a reasonable predictor of average usage. In prior years, DGS attempted to average by volume bands in determining tie low bidder. This system proved administratively difficult to both the Department and vendors and was replaced by the present system. The cost formula utilized by the Department in its ITB was also challenged as an ineffective way to analyze the costs and productivity of individual copiers. The Petitioner contends that seven elements affecting productivity including (1) positioning originals; (2) dialing the number of copies; (3) pressing the start button; (4) waiting for the first copy; (5) copying time; (6) replenishing the paper tray; and (7) key operator functions should be considered by the Department either in whole or in part. Another suggested way of determining productivity would be to time various copying tasks. Additionally, Petitioner asserts that the Department's failure to consider the above factors and rely solely on rated machine speed to determine productivity causes labor costs to be understated. The Department's cost formula constitutes a reasonable method of comparing the costs of various copiers. Labor costs will of necessity vary widely depending upon, among other things, the operator, location of the machine, etc. However, the constant primary cost factors are the cost of the machine and supplies. The productivity analysis suggested by the Respondents would clearly be valuable in high volume copying. In lower volumes, the importance of specifically addressing factors other than machine, labor, and supply costs decreases. In order to be awarded a state contract a vendor is required to bid either statewide or by district. The state was divided into four districts by the Department to insure that vendors who receive bids provide service in remote or rural areas. To an extent, this requirement is restrictive and eliminates service vendors who are not capable of providing service to remote areas but who are capable of providing service in and around urban centers. While the district bidding requirement assures service to isolated areas it has also eliminated otherwise qualified vendors from the bidding process. Although the Department has presented a reasonable basis for dividing the state into four districts for bidding purposes, it is possible that alternatives such as reducing the size of the districts, would encourage vendor participation in the bidding process and thus strengthen the existing single award system. In order to ensure that a single award approach meets agency copying needs, it is imperative that a centralized procurement agency have information available by which to assess the actual work performed by the agencies in implementing their statutory responsibilities. Prior to October, 1978, Department approval was required prior to the placement of any copiers. In the fall of 1978, the Governor and Cabinet, sitting as the head of the Department, amended Rule 13A-1.04(1), Florida Administrative Code, to permit agencies to acquire from the state contract without prior approval but with after the fact certification. This amendment significantly decentralized purchasing authority and permitted quicker placement of copiers. However, approximately fifty percent of the copier placements have not been certified as required by rule. This failure to provide the Department with copier placement information raises questions in two areas. First, without this information, it will become increasingly difficult for the Department to draft technical specifications which meet agency needs. The information furnished through the certification process is necessary for the Department to obtain in order to assess the changing responsibilities of an agency. The needs of an agency could change yearly as the legislature reorganizes and creates, transfers and/or abolishes programs in executive departments. Second, the primary advantages of the single award, i.e. lower costs, could easily be circumvented without the certification process. For example, nothing prohibits an agency from acquiring from the contract a higher priced machine with more features than needed. The certification process operates as a check to insure that agency requirements correspond to the acquisition. Without the post-acquisition certification, the potential for abuse increases and a basic advantage of the single award system is potentially eliminated. Therefore, because of the importance of the certification process to the Department's ability to draft specifications and fulfill its statutory duty to promote economy and efficiency, it is necessary that executive agencies certify their acquisitions to the Department as required by Rule 13A-1.04, Florida Administrative Code. A consistent issue in this proceeding has been whether the Department or user agencies are better equipped to make cost saving decisions regarding copiers. The agency purchasing officials who testified on behalf of the Petitioners were proponents of a decentralized procurement system in which acquisition and management decisions were made at the user level rather than through a centralized agency. Those who testified for the Department believe that centralized procurement is desirable not only from a cost savings standpoint, but also because the Department possesses specialized expertise to make decisions on technical equipment which is lacking in their agencies. Additionally, they preferred DGS to deal with vendors in a highly competitive market such as copiers where frequent calls from salesmen attempting to place copiers are a standard marketing technique. However, the agency purchasing officials who support the multiple award concept generally do so not because they believe that their respective agencies possess expertise greater than or equal to the Department's or that their present needs were not being met through the existing contract and exception process, but rather because the multiple award system gives user agencies greater management flexibility and discretion in acquiring a commodity. In actuality, the objections of user agencies are directed more toward the concept of centralized procurement that to the method of procurement utilized. The Department has not promulgated rules to explain when an exception to the contract will be granted or denied. Fewer exceptions are now being granted and the exception process has become more stringent since a personnel change occurred in the Department. However, in order for the single award system to work, some flexibility must be provided through the exception process. As stated previously, user agencies may have unique needs not addressed by the state contract which justify a deviation. Areas such as quality, service and specialized features could present peculiar problems for certain agencies which could be solved through the exception route. The Department's present position regarding exceptions is overly rigid and effectively precludes objective consideration of user agency requests. The Department's decision to utilize multiple or competitive awards is based upon whether specifications can be drawn which do not discriminate against vendors and allow the state to meet its commodity needs. with respect to copiers, the present specifications for 1980-1981 in conjunction with the exception process, do not discriminate among vendors and do meet agency needs. The Department's attempt to draft copier specifications for purposes of a single award system is relatively new and of necessity an evolving process. The trend in recent years among some of the larger states has been to competitively bid copier contracts in some form, either definite quantity or fixed term. It is anticipated that through actual experience and compilation of necessary data, the specifications will also change in order to reflect changing needs. Under the proposed single award system for the 1980-1981 copier contract, the Petitioner will receive fewer awards than in previous years when a multiple award approach was used. Xerox received no awards in 1979-1980 when a single award was used. Thus, the Petitioner can expect fewer copier placements in 1980-1981 as a direct result of the single award contract. Conversely, Savin, which has intentionally structured its marketing practices to compete in a competitive single award system, would place fewer copiers if the Department utilized a multiple award approach for 1980-1981.
The Issue Whether certain payments received by the Petitioner, James Gomia, from the Leon County Clerk of Court subsequent to July 1, 1989, constitute creditable "compensation" within the meaning of Rule 22B-6.001(16), Florida Administrative Code, for purposes of determining Mr. Gomia's retirement benefits.
Findings Of Fact Mr. Gomia's Employment. The Petitioner, James Gomia, has been employed by the Clerk of Court in and for Leon County, Florida, for the past eleven years. At all times relevant to this proceeding, Mr. Gomia has been employed as an Assistant Finance Director and Deputy Clerk. By virtue of his employment with the Clerk's office Mr. Gomia is eligible to participate in the Florida Retirement System pursuant to Chapter 121, Florida Statutes. Mr. Gomia's Compensation. At all times relevant to this proceeding, Mr. Gomia received a monthly base salary from his employment with the Clerk's office. The Clerk's office operates for budget purposes on a fiscal year which begins October 1st and ends September 30th. In addition to his base salary, Mr. Gomia has been paid the following amounts (hereinafter referred to as "Additional Compensation"), during the following months: Month Amount September, 1989 $1,750.00 May, 1990 500.00 September, 1990 1,750.00 May, 1991 600.00 September, 1991 2,150.00 Mr. Gomia has been paid Additional Compensation twice a year since he was employed by the Clerk's office. The Clerk's Policy of Paying Additional Compensation. It has been the policy of Paul F. Hartsfield, Leon County Clerk of Court, to pay Additional Compensation to employees of the Clerk's office, with one exception not relevant to this proceeding, for at least the past twenty years. Additional Compensation has been paid to Clerk's office employees twice a year. One payment is made in May/June and the other payment is made in September/October/November. The amount of Additional Compensation paid to each employee is the same. For example, in May, 1991, all employees received $600.00 as Additional Compensation. The amount to be paid as Additional Compensation is included in the budget submitted by the Clerk's office each year for approval by the Board of County Commissioners. The amount requested is included as part of a lump-sum request for the amount of funds necessary to pay all salary, including employees' base salary. Although the amount of the payments to be made as Additional Compensation is broken out in the work papers to the budget each year, those figures are only seen by the financial personnel and not the Board of County Commissioners. Lack of Written Policy. The decision of whether Additional Compensation is paid is within the sound discretion of the Clerk to make. The Clerk of Court is under no legal obligation to make such payments even if included in an approved budget. The policy of paying Additional Compensation has not been reduced to writing. Nowhere has the Clerk stated in writing that the Clerk's office has a policy: That applies all employees will receive Additional Compensation equally; Additional Compensation will be paid no later than the eleventh year of employment; Additional Compensation will be paid for as long as an employee continues employment; and Additional Compensation will be paid at least annually. The only written indication that Additional Compensation will be paid to employees is the inclusion of the dollar amount necessary to make the payments in the work papers of the Clerk's office budget. Nowhere in the work papers to the budget or the budget itself are the conditions set out in finding of fact 13 included. Even if the work papers (or the budget) of the Clerk's office were sufficient to constitute a formal written policy, the policy evidenced in the work papers only applies to the fiscal year the work papers relate to. Therefore, if the work papers or budget constitute a written policy it is only a policy to pay Additional Compensation for the upcoming fiscal year and not on a recurring basis. Although a policy of paying Additional Compensation to Clerk's office employees exists, that policy has not formally been reduced to writing. Mr. Hartsfield, the Leon County Clerk of Court, admitted that there was no formal written policy during his deposition and in a letter dated November 12, 1991, attached as Respondent's exhibit 1 to Mr. Hartsfield's deposition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order declaring that the Additional Compensation paid to James Gomia between September, 1989, and September, 1991, was not paid as "average final compensation" for purposes of Rule 22B-6.001(6), Florida Administrative Code, and dismissing Mr. Gomia's Amended Petition with prejudice. DONE and ENTERED this 2nd day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 2nd day of September, 1992. APPENDIX Case Number 92-2504 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Gomia's Proposed Findings of Fact Findings of fact 1, 4 and 6-11. Hereby accepted. The Department's Proposed Findings of Fact Findings of fact 1-3. Findings of fact 4 and 6. Finding of fact 16. Conclusion of law. Findings of fact 4, 6 11 and 13. Finding of fact 4 and 6. Whether the payments come within the Department's rules is a conclusion of law. COPIES FURNISHED: Harry H. Mitchell, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Burton M. Michaels Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1566 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Larry Strong Acting Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Susan Kirkland General counsel Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact Petitioner, Howard B. Steele, a black male, has been employed with the City of Lynn Haven since October, 1981. At the time he sought employment, Petitioner applied for the position of meter reader "or any available position." A meter reader position was not available, so Petitioner accepted a position in the sanitation department, picking up garbage. Three months after his employment, Mr. Steele was transferred to the street department to work on the trash truck. The trash truck crew picks up yard trash. During the summer of 1984, Mr. Steele was selected to assist with the maintenance and upkeep of the parks during baseball season. Parks and recreation was a part of the street department, and at all relevant times, was a two-man unit. When baseball season was over, Mr. Steele and his coworker would work in the sanitation department. In 1986, Mr. Steele and another coworker were assigned to handle the parks and recreation responsibilities exclusively during the entire year. Mr. Steele was no longer required to work in the sanitation department. The City of Lynn Haven is a municipality chartered pursuant to Laws of Florida, 1951, Ch. 27685, Sec. 5. At all relevant times, Lynn Haven employed approximately 98 persons. Of the 98 employees, fifteen are black and constitute approximately fifteen percent of the City's work force. The general population of non-whites in Lynn Haven and Bay County is approximately 13.8 percent and 14.3 percent, respectively. The general population of blacks in Lynn Haven is 10.1 percent. However, the City's qualified applicant pool is significantly less than ten percent. 1/ When the City's percentage of blacks in the work force is compared to the qualified applicant pool or even to the general population figures, it is apparent the City has no hiring practices or policies that disproportionately impact on blacks. In 1979, Lynn Haven adopted a Position Classification and Pay Plan (the Plan). The Plan has been slightly modified over the past ten years. The Plan includes eight general job classifications, as follows: Administrative, Clerical, Labor, Public Safety, Equipment Operation, Refuse, Utilities, and Supervision. Each job classification has a corresponding pay range that can be adjusted in exceptional circumstances. Salary increases are obtained primarily by two methods: cost-of-living raises and merit raises. 2/ Currently, both raises are given annually to all employees. However, prior to June 1989, merit raises were given biannually. A merit increase is not automatic but is given in conjunction with an annual evaluation on the employee's anniversary date of employment. Merit raises generally range from zero to five percent within the job's pay range. Consequently, while an employee is always eligible for a cost-of-living increase, it is possible for an individual to reach the maximum salary level for his or her position and no longer be eligible for a merit increase. Additionally, under the Plan, if an employee is demoted for just cause, the demotion may be in the form of a reduction in pay or to a lesser job classification. If, however, the demotion is due to an employee's inability to perform his or her work because of health or other reasons, there is no change in the employee's pay unless recommended by the department head. Therefore, it is possible for a person to be demoted into a lower job classification and make more money than a person with more seniority already in the lower job classification. The demotion policy is facially neutral and works to the advantage or disadvantage of blacks and whites equally. In 1981, when Mr. Steele was hired, he was paid $3.35 per hour. At that time, the salary range for unskilled laborers was $2.67 to $3.74 per hour. Currently, Mr. Steele is essentially an unskilled laborer with seniority in the parks and recreation unit. He is primarily responsible for maintaining the cleanliness of the city parks. This includes mowing the grass, cutting the shrubbery, and making minor repairs. Mr. Steele also lines the playing fields before ball games. While Mr. Steele does delegate assignments and duties to his crew member, Tommy Flanders, and is sometimes required to supervise community service workers, he does not function as a department head or have the responsibilities of a foreman such as Mr. Gray or Mr. Marlowe who hold foreman positions. During his employment, Mr. Steele has received a written reprimand for falsifying a time card and has also had a well-documented problem with absenteeism spanning several years. Since his employment in 1981, Mr. Steele has been given a cost-of- living increase each year he has been employed with the City. Mr. Steele has also received the appropriate number of merit raises. None of these raises were inequitable or discriminatory. Mr. Steele received his first merit increase in July, 1982, and his second merit increase in April, 1983. Under the policy existing at the time, merit increases were given every two years. Mr. Steele, however, received an extra merit raise because of his job performance. In 1985, Mr. Steele, along with approximately 20 other white and black employees, were eligible for a merit increase. However, the City inadvertently failed to give these employees their raises. The missed raises were due exclusively to an oversight by the City and were corrected in 1986 when they were discovered. In 1986, Mr. Steele was given a 15% salary increase which included his annual cost-of-living raise and a two-step merit increase. In 1987, Mr. Steele was given a cost-of-living raise but not a merit increase. As noted above, merit increases were given biannually, and because Mr. Steele had received a two-step merit increase in 1986, he was not entitled to a merit increase in 1987. On November 3, 1988, Mr. Steele received a merit increase which raised his salary to $6.91 per hour. The following June (1989) the compensation policy was amended to permit merit raises annually. Under the new policy, Mr. Steele was eligible for a merit increase in October, 1989. Once again, the City inadvertently failed to give Mr. Steele his merit increase in 1989 but corrected the oversight retroactively. 3/ On March 10, 1990, when Mr. Steele filed his Charge of Discrimination, he was being paid $7.44 per hour. On October 29, 1990, Mr. Steele received a merit raise which brought his salary to $7.55 per hour, and on December 28, 1990, Mr. Steele received a cost-of-living raise which brought his rate of pay to $7.78 per hour. 4/ Mr. Steele has received other raises since 1990 and is currently making $8.82 per hour. It is undisputed that Tommy Flanders, Mr. Steele's white co-worker with less seniority in the parks and recreation unit, was at one time paid a higher hourly rate than Mr. Steele. Mr. Flanders was hired in April, 1981, in the fire department as a paid fireman. Mr. Flanders had been a volunteer fireman with the City since 1968. Mr. Flanders was unable to get state certification because of a vision problem, and upon denial of a fireman's certification, he was demoted to the sanitation department. He worked in this job approximately two months and then moved to Pensacola after a work-related injury. Mr. Flanders returned to Lynn Haven in August, 1985, and was hired by the City as a truck driver in the street department at a rate of $4.21 per hour. Mr. Flanders' pay was consistent with the City's pay classification system. He was promoted to Step 1 foreman in February, 1986, at a rate of $5.96 per hour. Mr. Flanders remained in the sanitation department until he was injured in another job-related accident in August, 1988. When he returned from workers' compensation leave to light duty in November, 1988, Mr. Flanders was assigned to the parks and recreation unit as a crew member with Mr. Steele. Although this was essentially a demotion, the City's demotion policy permitted Mr. Flanders to maintain the same hourly rate of pay he received as a foreman with the sanitation department. This created an unfortunate situation for Mr. Steele, who had been in the recreation unit longer and had more experience in the parks and recreation unit than Mr. Flanders. However, the pay disparity was consistent with the then-current pay and classification plan and is one reason the City began to move toward adoption of a new compensation and job classification plan. Mr. Flanders' current hourly rate is $8.45 per hour. John Barnes, a black male, is presently employed with the City as a meter reader at the rate of $9.55 per hour. Mr. Barnes was hired as a sanitation worker in 1980 at the rate of $3.35 per hour. Mr. Barnes was promoted to truck driver and then to backhoe operator. In 1987, he was encouraged by the City to apply for a firefighter's position. Mr. Barnes was hired as a firefighter. When Mr. Barnes was unable to successfully complete the state certification requirements for firefighters, he was transferred to the street department. 5/ Although this was a demotion, Mr. Barnes, like Mr. Flanders, was permitted to keep his higher pay as a fireman pursuant to the City's Compensation and Pay Plan. Mr. Barnes stayed in the street department until Sammy Oliver, a white male, encouraged Mr. Barnes to apply for a meter reader opening. Mr. Barnes filled out an application and was given the job. He has been a meter reader approximately six years during which Mr. Barnes has received job training in computerized meter reading. James Powell, a black male, worked for the City approximately 22 years before he retired in 1991. At the time of his retirement, Mr. Powell was sign foreman making $10.77 per hour. Although Mr. Powell testified he did not know he was the sign foreman, the payroll records of the City showed that Mr. Powell was classified as "sign foreman." In addition, Mr. Powell admitted on cross examination that, besides himself, numerous other blacks held position outside of the sanitation department, as follows: a black police officer, a black meter reader, a black school guard, two blacks in the recreation unit, and Charlie Smith, a black member of management working in the administrative department of City Hall. Willie Mallard is a black male working in the sanitation department. Mr. Mallard testified that he has worked for the City for ten years, and no one has ever asked him to be foreman. Mallard admitted on cross examination, however, that he had never expressed any interest in becoming foreman. Mallard further testified that the only promotion he ever sought was given to him when it came open. L. D. Marlowe is the current supervisor of the street department. He has worked for the City approximately seven years and is making approximately $11.00 per hour. His position carries greater responsibility than Howard Steele's, and he supervises a greater number of employees than Mr. Steele. Bob Gray, a white male, is the current foreman in the sanitation department. Mr. Gray has worked for the City on two occasions, the latest tenure being in 1987 when he was hired to work on the back of a garbage truck. After two years he worked his way up to foreman. Mr. Grays quick promotion was due to his work ethic and desire to work. Ralph Hester, the former city manager, approached him about the foreman position when Tommy Flanders was demoted in 1987. Mr. Gray had previously expressed to Mr. Hester interest in advancement and was more qualified than Mr. Steele for such a position. 6/ Mr. Gray testified that he is currently making $22,000 a year. However, at the time Mr. Steele filed his first Charge of Discrimination, Mr. Gray was making $8.00 per hour. In 1986, Ralph Hester, city manager at the time, appointed Tommy Flanders, a white male, to be the new foreman of the sanitation crew. Hester's decision was based upon the recommendation of the administrative assistant to the public works director, Jackie D. Cornette. Cornette's recommendation was based on the fact that Flanders was the "best worker." Although Mr. Steele did not express any interest in the position, he objected to Mr. Flanders' promotion. When the promotion was announced at a group meeting, Mr. Steele questioned why Mr. Flanders was given the job instead of other workers with more seniority. Mr. Steele did not ask that he be given the sanitation foreman's position. In 1987, the position of foreman was again open when Mr. Flanders was injured and was placed on light-duty work assignment. Although Mr. Steele did not express any interest in the sanitation foreman's job he was considered for the job, but was rejected because of his excessive tardiness, abuse of sick leave, and his inability to work unsupervised. In fact, Mr. Steele never sought the position or expressed any interest in advancing outside of the recreation unit. Mr. Steele did complain repeatedly that his current position should be better compensated; however, there was no evidence Mr. Steele ever actively sought any other position available under the City's pay and classification plan. Additionally, there was no higher position in the recreation unit under the City's pay and classification system to which Mr. Steele could be promoted. Finally, the evidence demonstrated that the City's promotion policy was based on merit rather than on seniority. However, the evidence did not demonstrate that the City's promotion policy was discriminatory. In fact, black employees who merited promotion were encouraged to seek such promotions and were promoted. The evidence was clear that Mr. Steele was not personally sought for promotion because of his excessive tardiness, abuse of sick leave and his inability to work unsupervised. Mr. Steele's lack of promotional offers had nothing to do with his race. Given these facts, Mr. Steele has failed to establish that he has been subjected to any unlawful employment practice and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED: That a Final Order be entered by the Florida Human Relations Commission denying and dismissing the Petition for Relief filed herein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10 day of September, 1992. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10 day of September, 1992.
The Issue The issues in this case are whether Respondent violated Sections 475.25(1)(a),(b), and (e) and 475.42(1)(a),(b), and (d), Florida Statutes (1997), by operating as a broker without holding a valid broker's license, operating as a broker while licensed as a salesperson, collecting money except in the name of his employer, and committing misrepresentation, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust; and, if so, what, if any, penalty should be imposed. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a salesperson pursuant to license number 0575377. The last license issued was issued as an involuntary inactive salesperson at 361 Godfrey Road Southeast, Palm Bay, Florida 32909. After March 31, 1995, Respondent's license as a salesperson became inactive after Respondent did not renew it. Between March 1994 and January 1997, Respondent was employed as a salesperson by Prestige Homes of Brevard, Inc. ("Prestige"). Prestige is a Florida corporation wholly owned by Mr. Mark Pagliarulo and Mr. John Wales. Prestige is engaged in the business of residential construction. Mr. G. Wayne Carter was the sponsoring broker for Respondent from March 1994 through January 1997. Mr. Carter was licensed in the state as a broker until his license was revoked in 1998. Between March 1994 and January 1997, Prestige paid Respondent a sales commission of three percent of the sales price of each home constructed by Prestige and sold by Respondent. Prestige paid Respondent a weekly draw against commissions earned by Respondent. Mr. Carter, the sponsoring broker for Respondent, had no knowledge of the payments received by Respondent. Respondent did not deposit any sales commissions to Mr. Carter's escrow account. Respondent participated in various activities that violate relevant provisions in Sections 475.25 and 475.42. Respondent collected $1,100 from Marcia Pitts for a sprinkler system, a $1,000 initializing fee from Linda and David Grogan, and a $1,000 "design fee" from Mrs. Robert Leudesdorf. Respondent converted the foregoing sums to his personal use without the knowledge of his employers at Prestige and without the knowledge of Respondent's broker. Respondent operated as a broker without a valid broker's license, while licensed as a salesperson, and collected money for himself rather than for his broker or his employer. Respondent routinely designed variations on a "custom" home design without his employers' knowledge. Respondent then charged the purchasers approximately $1,000 for the plan changes. Respondent routinely deducted the $1,000 fee from the contract price Prestige charged the customer and converted the $1,000 fee directly to his personal use. Respondent failed to disclose to the purchasers that he was not acting on behalf of Prestige. The purchasers believed they were dealing with Prestige. The omission and failure to disclose amounted to a misrepresentation, false pretense, and breach of trust in a real estate transaction. For a time, Respondent's employers at Prestige condoned Respondent's "free lance" activities. Respondent's employers reduced Respondent's draws against commissions by the amount of the "free lance" fees converted by Respondent. After Respondent failed to discontinue his "free lance" activities, however, Prestige terminated Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Sections 475.25(1)(a),(b), and (e) and 475.42(1)(a),(b), and (d), and revoking Respondent's license. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Steven Johnson, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Steven Michael Wallace 361 Godfrey Road Palm Bay, Florida 32909 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination in this proceeding is whether the State of Florida, Department of Labor and Employment Security may revoke the self-insurer status of Ponderosa System, Inc. which was granted by the Department for purposes of self insurance under Florida's Workers' Compensation Law, Chapter 440, Florida Statutes. Proposed Recommended Orders have been submitted by the parties and considered by the Hearing Officer. Those proposed findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.
Findings Of Fact The Petitioner, Ponderosa System, Inc. (hereafter "Petitioner" or "Ponderosa") is a publicly held corporation listed on the New York Stock Exchange which operates a chain of steak houses in 30 states and nine Canadian provinces. Ponderosa operates or licenses 694 restaurants including 23 in Florida and a portion control and freezer plant in Tampa to service its Florida enterprises. Ponderosa's Florida restaurants and processing plant employed several hundred persons during the past fiscal year. On June 21, 1979, Ponderosa was granted self-insurer status by the Bureau of Workmen's Compensation, Florida Department of Labor and Employment Security (hereafter "Department"), effective July 1, 1979. The approval was based on available financial information which was submitted by Ponderosa to the Department for 1977-75 and which showed a ratio of current assets to current liabilities or "current ratio" for 1975 of $26,465,000 to $25,495,000 or approximately 1.04 to 1.00. A later financial statement was submitted by Ponderosa in August 1980, which revised the current ratio figures previously supplied the Department for fiscal year 1977-75. The revised financial statement showed a current ratio of $25,860,000 to $25,948,000 or approximately .966 to 1.00. The revised figure is attributable to a change in accounting principles prompted by the Petitioner's belief that its continued utilization of a one to one current ratio was an unnecessary business expense, rather than an effort to mislead or misinform the Division at the time of the initial application and approval. The financial data contained in the Petitioner's 1979 and 1980 annual reports and 1951 interim report show current ratios of $39,177,000 to $39,504,000 or approximately .99 to 1, $37,398,000 to $46,899,000 or approximately .80 to 1 and $32,386,000 to $36,592,000 or approximately .89 to 1, respectively. On September 16, 1980, the Department notified Ponderosa that unless a hearing was requested, its self-insurer status would be revoked effective October 17, 1980, for failure to maintain a current ratio of one to one as required by Rule 38F-5.10(2)(a), Florida Administrative Code. No other violation of Chapter 440, Florida Statutes, or any regulations promulgated thereunder was alleged by the Department in any subsequent written notice. The decision to revoke the Petitioner's self-insurer status was based solely on information furnished to the Department by Ponderosa concerning the one to one current ratio, and no independent investigation was made by the Department of Ponderosa's financial position. On September 30, 1980, Ponderosa requested and the Department subsequently denied a waiver of the one to one current ratio requirement of Rule 38F-5.10(2)(a), Florida Administrative Code. The Department has never granted a request for a waiver of the current ratio requirement from any restaurant; its waiver approvals have so far been confined to public utilities. Since it has been granted self-insurer status, Ponderosa has paid and adequately serviced all workers' compensation claims arising in Florida. Additionally, Petitioner has posted a $25,000 surety bond conditioned upon abiding by and performing the requirements of Florida's Workers' Compensation Law with reference to paying or furnishing compensation, medical or surgical services, etc. Ponderosa has obtained an excess liability insurance policy with a retention threshold of $250,000 and a limit of ten million dollars for May 1980 through 1981 which covers its operations in Florida, Indiana, Michigan, Missouri and Pennsylvania. The Petitioner has placed an emphasis on safety in its operations and in order to implement this has established an ongoing safety program and employed consultants to conduct safety programs and inspections. At the time of its application and approval for self-insurance status through the present, Ponderosa has had a net worth of more than $250,000 and more than three times its annual loss fund. Since being approved for self-insurer status on June 21, 1979, Petitioner has not encountered any significant financial problems and its financial condition has not weakened in any material sense. Ponderosa has entered into revolving credit agreements with five financial institutions which require a current ratio of not less than .75 to 1. Pursuant to its revolving credit agreement, Ponderosa has the ability to secure up to $20,008,088 upon demand. Petitioner presently has the financial ability to borrow the funds necessary to create a current ratio of one to one if it were prudent or necessary to do so. Ponderosa has chosen not to borrow from its revolving credit fund in order to have a one to one current ratio because of a number of factors including the significant expense in borrowing, a one to one ratio is not required by its institutional lenders and a one to one current ratio is neither necessary nor prudent from a business perspective. In the industry in which Ponderosa competes, fast food restaurants, generally recognized accounting principles do not require a one to one current ratio, and many major fast food corporations no longer maintain such a requirement. The peculiarities of the fast food industry are such that it is a current cash business with virtually no receivables and often operates on deficit capital. Because of the large sums of cash generated in this industry, fast food restaurants have ample funds to meet current obligations even with a deficit current ratio. For example, fast food restaurants whose financial statements reflect a current ratio of less than one to one include Wendy's (.78 to 1), Gino's (.80 to 1), Horn and Hardart (.97 to 1) and McDonald's (.74 to 1). Only three chains in Florida, New England Oyster House, Denny's and Shoney's, are currently self-insured and meet the one to one ratio. McDonald's has applied for and been denied self-insurer status by the Department. The lack of a current one to one ratio does not indicate that a fast food corporation is in poor financial condition. As indicated, supra, companies which are among the leaders in the industry have current ratios of well under one to one. For the fiscal year ending February 28, 1980, Ponderosa had total revenues of $328,423,000, net income of $13,496,000 and a net worth of $69,309,000. Ponderosa has working capital in an amount that reflects the financial strength and liquidity of its business and is and has been able to pay workers' compensation claims promptly. The Petitioner has the ability to provide workers' compensation benefits to its employees as a self-insurer. Ponderosa is a self-insurer for purposes of workers' compensation in a number of major industrial states including Illinois, Michigan, Pennsylvania, Ohio, Indiana, New York and Missouri. The Petitioner has attempted to self- insure in as many areas as possible in order to limit its insurance costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Labor and Employment Security continuing the self-insurer status of Ponderosa System, Inc. and denying the application to revoke that status. DONE and ENTERED this 21st day of January, 1981, in Tallahassee, Florida. SHARYN SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1981.
The Issue At issue in this proceeding is whether Petitioner, an employee of the Department of Children and Family Services (the Department), was overpaid in the amount of $1,671.29 and should be required to repay that amount to the Department.
Findings Of Fact Petitioner is a career-service employee of Respondent and was initially employed on September 18, 1992. In a letter dated March 13, 2001, Petitioner was informed that a salary overpayment occurred on the supplemental payroll of February 22, 2000. Two warrants were inadvertently issued on that day for $847.57 and $823.72 totaling $1,671.29. The overpayment resulted because the Department made a series of administrative errors. The reason for the overpayment was communicated to Petitioner. Petitioner's pay was remitted to her bank account electronically. She received a written explanation of her pay each time she was paid. However, Petitioner was not monitoring her bank account closely and did not realize she had been overpaid. Currently, Petitioner's rate of pay is $963.36 bi-weekly. Ms. Henderson prepared a certified letter dated February 28, 2001, notifying Petitioner of the overpayments. The letter stated that Petitioner had received $1,671.29 in gross overpayments for the supplemental payroll dated February 22, 2000. The letter was not picked up by Petitioner and was, therefore, returned to the Department. Subsequently, Ms. Henderson prepared a letter dated March 13, 2001, notifying Petitioner of the overpayment. The letter indicated the overpayment would be deducted from her next two pay checks. Petitioner received the second letter. By letter dated March 15, 2001, Petitioner objected to the payroll deductions since the amount of the deductions would leave her with a little more than $100. The amount left to Petitioner would be below minimum wage. A meeting was arranged between Petitioner, Allean Lovett, Human Resources Manager, and Linda Ricke, Personnel Services Specialist, with the Department to discuss, inter alia, a schedule for repayment. The meeting took place on April 9, 2001, however, was not concluded and was to be continued, by mutual agreement, to April 13, 2001. Petitioner informed Mrs. Lovett on April 12, 2001, that she did not want to continue with their scheduled meeting and would prefer to have the matter determined through the administrative hearing process. At the hearing, Petitioner did not dispute the amount of the gross overpayment. Petitioner testified that she would be able to repay the money at a rate of $25 to $50 per pay period. She could not afford any greater amount due to her living and medical expenses. The repayment schedule of $50 per pay period is reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent repay $50 per pay period to the Department of Children and Family Services beginning with the pay period immediately following entry of a final order in this case and continuing each pay period thereafter until the overpayment is repaid. DONE AND ENTERED this 25th day of October, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2001. COPIES FURNISHED: Leslie Scott Jean-Bart, Esquire Farah and Farah, P.A. 1845 University Boulevard, North Jacksonville, Florida 32211 Craig A. Gibbs, Esquire Law Office of Craig Gibbs 1200 Riverplace Boulevard Suite 810 Jacksonville, Florida 32207 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32211 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
