Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts relevant to the issues presented for determination are found: At the first hearing on January 8, 1981, the petitioner and the respondent stipulated and agreed that an appropriate rate base for petitioner's water operations was $249,622, that an appropriate rate base for petitioner's sewer operations was $714,919, and that an appropriate overall rate of return on petitioner's net investment was 13.07 percent. The reopening of the hearing was occasioned by a dispute over the appropriate amount of contributions-in-aid-of- construction (CIAC) attributable to petitioner's sewer operations. The petitioner takes the position that $84,500 is the appropriate amount of CIAC and the respondent and intervenor are of the opinion that the appropriate amount of CIAC is $317,000. Thus, the prior stipulation with regard to the figures contained in petitioner's Exhibit 4 is dissolved and the appropriate rate bases are dependent upon a resolution of the disputes concerning CIAC and additional rate case expenses occasioned by the reopening of the hearing. Quality of Service. The fifteen customers who testified at the hearing were concerned primarily with the large increase in sewer rates requested by the petitioner. The majority of petitioner's customers are elderly, retired persons on fixed incomes. Other than one witness who did not like the taste of the water and two customers who complained of billing errors, there was no adverse testimony concerning the quality of water or sewer services provided by petitioner to its customers. The petitioner's water and treated sewage consistently meets the standards and regulations imposed by regulatory agencies. There are no corrective orders or citations outstanding against petitioner's water or sewer operations. Charge for Delinquent Accounts. The petitioner presently computes a late payment charge of five percent of the overdue balance on delinquent accounts. Its request to charge a $10.00 fee when delinquency in payment results in a termination of water service and a charge of $2.20 for processing a delinquent bill which does not result in a termination of service is based upon actual labor and mailing costs necessary to the performance of these functions. These charges are reasonable and comport with similar charges made by other utility companies. Monthly Versus Quarterly Billing Cycle. The petitioner is presently billing its customers on a quarterly basis and has requested approval to change to monthly billing. The additional expense associated with monthly, as opposed to quarterly, billing would amount to $22,626.00 annually, or approximately 64 cents per customer per bill. The working capital allowance formula of one-eighth operation end maintenance expense is based upon a 45-day lag period or monthly billing system. If petitioner continues to bill on a quarterly cycle, its working capital allowance should be increased. Meters do occasionally stop working, meter boxes and covers become broken and water lines can develop leaks. Billing on a monthly basis would allow the petitioner to determine on a more frequent basis when a meter or a water line becomes inoperable, thus assuring that customers are accurately billed and preventing hazardous conditions with possible liability on petitioner's behalf. On a quarterly billing system, a meter could be incorrectly functioning for 90 to 150 days before the utility becomes aware of it. Between 1978 and 1900, the petitioner replaced 405 meters. No evidence was offered as to the amount of water, and therefore revenue, lost as a result of the nonfunctioning meters. With the exception of those in Duval County, most water and sewer utilities bill their customers on a monthly basis. Rate Case Expenses. Prior to the close of the January 8, 1991, hearing, the petitioner and the respondent Public Service Commission stipulated that the appropriate amount of rate case expense was $57,900.00 and that said expense should be amortized over a three-year period. The only remaining issue is the appropriate amount of rate case expense resulting from the reopening of the hearing due to the dispute regarding CIAC, and the appropriate period of amortization as to those expenses. The petitioner has claimed additional rate case expenses attributable to the new hearing in the amount of $15,100.00, for a total rate case expense of $73,000.00. This $15,100.00 is made up of additional attorneys' fees in the amount of $9,000.00, additional fees to three certified public accountant firms in the amount of approximately $4,000.00 and additional printing costs and miscellaneous costs of approximately $2,000.00. These amounts constitute estimates based upon incurred and expected hours of professional time occasioned by the new hearing. The figures were prepared for the April 10 hearing and do net include expenses or time spent on the May 14, 1981 hearing. The subject application is the petitioner's first application for a rate increase. While the use of one accounting firm may have been more economical and efficient, the use of two independent accounting firms is not unusual in a utility's first rate case due to the necessity of gathering historical data, the preparation of the minimum filing requirements of the Public Service Commission and the expertise required in regulatory matters. The two independent consulting firms did not engage in duplications of effort. The reopening of the hearing to resolve the CIAC dispute also resulted in many hours of PSC staff time. The petitioner has gained an extended benefit from the legal and accounting work done in this first application for a rate increase, and rate case expenses in a future application should be lower as a result of the efforts devoted to the present rate increase request. A three-year period has been a normal and reasonable period of time between rate cases. Contributions-in-aid-of-construction. The petitioner provides water and sewer service to the Beverly Hills Subdivision, which was developed in several stages. Units 1, 2 and 3 have septic tanks and Units 4, 5 and 6 are connected to a centralized sewerage treatment plant. During the period of 1069 and 1970, the petitioner collected a premium of $500.00 for homes sold in Units 4 and 5. There was evidence that some purchasers of homes in Units 4 through 6 were charged a premium of $1,000.00. Since no evidence was adduced as to the number of $1,000.00 fees which were collected, it is assumed for computational purposes that all such fees collected were in the amount of $500.00. There premiums were printed on petitioner's promotional literature as "houses in sewer areas extra." On land sales contracts, the premiums were referred to as "land improvements," "sewers" or "Unit 4 or 5 improvements," and on the closing statements the premiums were referred to as "land improvement fee." This fee was separate from and in addition to the monthly or quarterly charge for day to day sewer service. The utility presented no evidence that there was any other reason for the collection of $500.00 for "improvements" in Units 4 through 6. The collected premiums for the years 1969 and 1970 in the amount of $84,500.00 were recorded on the petitioner's books as "sales -- sewer charge" and the petitioner reduced the plant account and revenues by this amount. Also, in 1969, a New York branch office collected $500.00 fees in the total amount of $14,500.00. This amount was recognized by petitioner as taxable income and was not credited to the plant account. While the petitioner does not concede that the $500.00 premiums collected in 1969 and 1970 actually constitute CIAC, it does not contest the inclusion of the $84,500.00 as CIAC since it did not pay federal income taxes on that amount in 1969 and 1980. In 1971, petitioner continued to collect $500.00 premiums for lots sold in Units 4 through 6 and treated them in the same manner as they were treated on its books and records in 1969 and 1970. The amount of $54,500.00 was collected as premiums in 1971. Subsequently, the Internal Revenue Service audited the petitioner's 1971 tax return and treated the $500.00 collections amounting to $54,500.00 as revenue subject to income tax liability. The petitioner continued to collect the $500.00 premiums from purchasers in Units 4 through 6 until 1974. Due to the Internal Revenue Service report or directive which classified the 1971 $500.00 premiums as revenues, the petitioner incurred federal income tax liability on the premiums collected from 1971 through 1974. In 1972, the books of the petitioner changed with respect to the treatment of the $500.00 premiums. Prior to that time, the funds were segregated and declared as reductions to plant. After that time, the funds were treated on the corporate books as revenues from the sale of homes and were placed in a separate corporate account. Funds from sources other than sewer premiums wore also deposited into that account and monies from that account were used for such things as engineering services, sewer plant construction, roads, advertising, repairs, storm drainage and materials. Promotional materials, contracts of sale and closing statements, as well as customer testimony, indicate that petitioner consistently characterized the $500.00 fees for Units 4 through 6 as a charge for the sewer service available in those Units. The only difference between the homes in Units 1 through 3 and the homes in Units 4 through 6 was the presence of the sewer system in the latter as opposed to septic tanks in the former. Between 1969 and 1974, the petitioner sold 634 homes which included the $500.00 (or in some instances $1,000.00) premium for sewer service. Assuming a $500.00 fee from each purchaser, the total premiums collected amount to $317,000.00. The petitioner paid federal income taxes on all such $500.00 fees collected with the exception of the $84,500.00 collected in 1969 and 1970. Due to the three-year statute of limitations on refunds, the petitioner cannot now recover or recoup the taxes paid on that income. The imputation of CIAC to funds which petitioner has treated in the past for Internal Revenue purposes as income will substantially reduce petitioner's future sewer rate base and will reduce the petitioner's cash flow potential. If CIAC is imputed to these $500.00 premiums, it is estimated that the petitioner's sewer operation would offer revenue reductions in the approximate amount of $25,000.00 per year. Prior to December of 1973, no governmental agency regulated petitioner's water and sewer rates. The petitioner came under the jurisdiction of the Florida Public Service Commission in December of 1973. Although the petitioner did not produce the revenue agent's report which allegedly required the $500.00 fees to be reported as income, the testimony of petitioner's expert witness was that only a regulated utility could report tax-free Contributions- in-aid-of-construction. For federal income tax purposes, the CIAC of an unregulated utility was treated as ordinary taxable income. The assets represented by such funds can be depreciated for income tax purposes.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the issues in dispute between the parties be resolved as follows: The quality of service provided by the petitioner to its water and sewer customers be found adequate; A delinquent account charge he set at $10.00 if service must be disconnected and $2.20 if only a delinquent notice must be mailed; The petitioner's request to change from a quarterly to a monthly billing cycle be granted; Rate case expenses in the amount of $73,000.00 be approved, said amount to be amortized over a three-year period; and The $500.00 premiums collected between 1969 and 1974, in the total amount of $317,000.00, be treated as contributions-in-aid-of-construction and the petitioner's sewer rate base be accordingly reduced. Respectfully submitted and entered this 14th day of July, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1981. COPIES FURNISHED: R.M.C. Rose and Martin Friedman 1020 East Lafayette Street Tallahassee, Florida 32301 Marta M. Suarez-Murias and Paul Sexton, Staff Counsel Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Suzanne Brownless and Steven Burgess Office of Public Counsel Room 4, Holland Building Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Charles E. Lertora, Jr. Beverly Hills Civic Association, Inc. Post Office Box 23 Beverly Hills, Florida 32665
The Issue Whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority," as alleged by Petitioner.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Petitioner is a thirty-one (31) year old male who has been a diabetic for approximately twenty-five (25) years and during this time has always taken his insulin as prescribed. Petitioner was hired by Respondent as a Correctional Officer 1 (Recreational) and assigned to work at the Florida Correctional Institution at Lowell, Florida (FCI). Petitioner began his employment with Respondent effective April 22, 1985. FCI is a facility for housing female felony offenders who require minimum to close security. The grounds of FCI consist of approximately eight hundred (800) acres, of which one hundred (100) acres is within the compound. FCI houses approximately six hundred seventy-five (675) inmates. FCI has a staff of two hundred twenty (220) employees, however, on weekends and on the 12 midnight to 8:00 a.m. shift, as few as eighteen (18) staff members may be on duty. Petitioner was responsible for maintaining the care, custody and control of the inmates involved in recreational activities and his duties would require his response to emergency situations to prevent escape or suppress inmate disorders. Petitioner advised Respondent prior to being hired that he was diabetic but that his diabetes was kept well under control and presented no problem and that he had sight in only one (1) eye. From February 27, 1984, until Petitioner moved to Florida in April, 1985, Petitioner was being treated for his diabetes in West Virginia by Dr. John P. Griffiths. During this period, Petitioner consulted Dr. Griffiths regarding "blackouts". Although Dr. Griffiths mentioned Petitioner's "kidney problem", he did not diagnose the "kidney problem" as being the potential cause of the Petitioner's "blackouts" and did not suggest a way for Petitioner to avoid having these "blackouts" in the future. Petitioner suffered several "blackouts" while living in West Virginia before accepting employment with Respondent, the last one being approximately a year before moving to Florida. These "blackouts" resulted in Petitioner being taken to the hospital emergency room for treatment. Petitioner did not make Respondent aware of these "blackouts" at the time he applied and was accepted for employment by the Respondent. At the beginning of his employment, Petitioner was required to have a complete physical examination which was administered by Dr. A. Rodriquez, Chief Medical Officer, FCI, and his staff. Among the tests administered was a urinalysis which revealed an abnormal level of protein in the urine. Being concerned over the level of protein in Petitioner's urine, Dr. Rodriquez requested Lester Dinkins, Personnel Manager, FCI, to advise Petitioner to see a private physician in this regard. About a week later, Petitioner consulted Dr. Rodriquez who explained the test results and advised Petitioner to see a nephrologist (kidney specialist). On May 2, 1985, Petitioner was examined by Dr. James J. Mahoney, private physician in Gainesville, Florida. Dr. Mahoney did not discuss a possible "kidney problem" or tell Petitioner why there was excess protein in his urine. Dr. Mahoney recommended that Petitioner continue on his blood pressure medication, have his blood pressure checked once a day so that medication adjustments could be made as needed, to see an opthamologist, and to keep check on his diabetes. FCI does not provide non-emergency health care for staff, therefore, Petitioner was unable to get his blood pressure checked by the FCI medical staff and did not get it checked by any outside private facility. Petitioner scheduled a second appointment with Dr. Mahoney which was rescheduled by Dr. Mahoney for a later date. Petitioner was dismissed by Respondent before the second appointment and, therefore, he did not keep the second appointment. On May 3, 1985, the day after Petitioner was examined by Dr. Mahoney, he suffered his first "blackout" while on the job. Petitioner was taken to the emergency room at Monroe Regional Medical Center where the medical personnel raised his glucose level and restored him to consciousness. After Petitioner regained consciousness he refused any further medical treatment. When Petitioner returned to FCI after his first "blackout", he was told to take Saturday and Sunday off and report to work on Monday. On Monday, Petitioner assured George Denman, Superintendent of FCI, that he could and would prevent another "blackout". Although Mr. Denman was concerned about Petitioner's ability to discharge his duties properly, he nevertheless allowed Petitioner to return to work on Petitioner's assurance that he could control the "blackouts". On May 9, 1985, Dr. Mahoney advised Respondent by letter that Petitioner's present condition should not interfere with his employment if Petitioner followed Dr. Mahoney's recommendations set out in Finding of Fact 10. There is sufficient evidence to show that Petitioner did not follow Dr. Mahoney's advice. Petitioner "blacked out" again on May 18, 1985, while he was preparing for a softball game between inmates of FCI and another institution. Petitioner was transported to the FCI infirmary and from there to Harold's Clinic and from there to another hospital. This "blackout" occurred on a Saturday when a staff of approximately eighteen (18) employees were on duty at FCI. Petitioner had keys to various parts of the institution in his possession at this time. Once Petitioner was stabilized after the "blackout", he was instructed to take Sunday off and report in on Monday. On Monday, he reported first to Lester Dinkins and then to Mr. Denman who informed him that he would be dismissed on Friday, May 24, 1986 because of Petitioner's inability to perform his duty to maintain proper care, custody and control of the inmates which placed the security of the institution in jeopardy. The prison superintendent is authorized to allow employees up to three (3) weeks leave without pay under extenuating circumstances, however, for a "brand new" employee, such as Petitioner, it would be exceptional. Leave without pay was not offered to Petitioner at any time before his dismissal to seek help with the problem of "blackouts" because Petitioner assured Mr. Denman that he had his problem under control. Additionally, Petitioner did not request any time off to seek help with his problem of "blackouts". Although Petitioner thought his "blackouts" were related to a serious automobile accident that he was involved in during 1972, there was no medical evidence introduced at the hearing to support Petitioner's theory. At the time Petitioner was dismissed, both parties were aware of Petitioner's kidney problem, but neither knew the exact cause or if the kidney problem was related to the "blackouts" or to the diabetes. Although Petitioner would have accepted other alternatives to dismissal, Respondent had no job openings for which Petitioner qualified for at the time. Lester Dinkins did inquire with other agencies and found a job as a Recreational Therapist with the Department of Health and Rehabilitative Services at the Gulf Coast Center in Ft. Myers, Florida. Petitioner rejected that job on the basis of being unable to cope with the emotional stress of working with mentally and physically handicapped individuals, and that by moving he would lose Dr. Donald Mars as his primary care physician. In June, 1985, Dr. Mars, Assistant Professor of Medicine, Division of Nephrology and Hypertension, Shands Teaching Hospital, Gainesville, Florida, diagnosed the cause of Petitioner's "blackouts" as the result of Petitioner's continued use of insulin adversely affecting his kidneys so that protein was being excreted with Petitioner's urine instead of being used by his body which caused episodes of hypoglycemia (low blood sugar) and, since corrective measures were not taken by Petitioner, "blackouts" resulted. A diabetic can take a measurement of the glucose (sugar) level in his body by using the "finger stick" test. This test can be performed in approximately two (2) minutes, and if there is an indication of a low level of glucose, the diabetic can correct the condition by eating some form of carbohydrate, such as bread or pastry, for quick energy. A diabetic can avoid "blackout's" by performing the required number of "finger stick" tests each day and properly responding to the results. In Petitioner's case, it would require two (2) to four (4) tests each day which could be performed on the job. There are other diabetics on the staff at FCI. Petitioner's job performance, other than during the time of the "blackouts", was satisfactory. Petitioner's "blackouts" put the security of FCI in jeopardy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition For Relief filed by the Petitioner, Stephen Retton. Respectfully submitted and entered this 10th day of September, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0975 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Findings of Fact 1 and 2 covered in background material. 3.-4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 6. 6.-7. Adopted in Finding of Fact 1. 8.-14. Adopted in Finding of Fact 7. 15. Adopted in Finding of Fact 8. 16.-18. Adopted in Finding of Fact 9. 19.-21. Adopted in Finding of Fact 10. 22. Rejected as immaterial and irrelevant. 23.-24. Adopted in Finding of Fact 10. 25. Rejected as immaterial and irrelevant. 26.-27. Adopted in Finding of Fact 11. 28. Adopted in Finding of Fact 18. 29.-32. Adopted in Finding of Fact 12. 33. Adopted in Finding of Fact 8. 34. Adopted in Finding of Fact 13. 35.-36. Adopted in Finding of Fact 17. 37. 38. Rejected as not comporting evidence in the record. Adopted in Finding of Fact to the substantial 15. competent 39. Adopted in Finding of Fact 16. 40. Adopted in Finding of Fact 20 as modified. 41.-47. Adopted in Finding of Fact 21. 48.-52. Adopted in Finding of Fact 22. 53. Rejected as immaterial and irrelevant. 54.-56. Adopted in Finding of Fact 20. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Findings of Fact 7 and 8. 7. Adopted in Findings of Fact 5 and 23. 8.-9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 12 as modified. 12. Adopted in Finding of Fact 12 as modified. 13. Adopted in Finding of Fact 13. 14. Adopted in Findings of Fact 13 and 15. 15. Adopted in Finding of Fact 16. 16. Adopted in Finding of Fact 16. COPIES FURNISHED: Thomas R. Williams, Esquire 359 N.E. First Street Gainesville, Florida 32601 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Ernest L. Reddick, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 3230 =================================================================
The Issue Whether Respondent, Russell Spencer, willfully abandoned his employment with Petitioner, South Florida Water Management District, by unauthorized absence and failure to call-in or report to work for a three day period, without extenuating circumstances.
Findings Of Fact Respondent was employed by the District as a title examiner in its Real Estate Division. Respondent felt aggrieved and dissatisfied with his employment as a result of the denial of two promotions, which he believed he was entitled to receive. Most recently, in February, 1985, his application to fill the position of "Director of the Real Estate Division" was denied. (P-4) The Directorship of the Real Estate Division was vacated on January 31, 1985, as a result of the retirement of Jack W. Braun, who had held that position for approximately 12 years. Upon Mr. Braun's retirement, William C. Brannen, Jr., Director of the Land Management Department (which includes the Real Estate Division) assumed the position of Acting Director of the Real Estate Division until a new director could be hired. As Acting Director, he was Respondent's immediate supervisor during the interim period. The District has a long-standing written policy regarding annual leave, which requires prior written authorization from the immediate supervisor. The policy in effect in November 1982 and continuing through February 1985, states: Use of Annual Leave: a. * * * b. The use of annual leave shall require the prior approval of the employee's Supervisor or Division Director. Annual leave requests for more than 30 calendar days shall require prior written approval of the employee's Department Director. (p-10) The District's attendance and leave policy was revised on February 28,n 1985, but not with regard to the use of annual leave. The District developed and utilized a standard form for requesting annual leave. (P-11, P-12) On February 26, 1985, Respondent approached a co- worker, Andrew DuBois, and asked him to forward to Mr. Brannen (Acting Division Director) the following memorandum dated that day: In reference to the above subject matter, I have, at this writing, 200 plus hours of annual leave accrued and I intend to use whatever necessary to retain legal counsel to file suit on my behalf against this District. (P-1) He also asked Mr. DuBois to submit blank time sheets on his behalf. Mr. DuBois declined to become involved because he believed the matter was between Respondent and his supervisor. He did, however, remind Respondent of the need to obtain prior approval for annual leave. Respondent replied that he would not submit a leave request "for legal reasons." (P-34) He then left the District's offices and went home. Upon receipt of Respondent's memorandum, Mr. Brannen consulted with Mark Chapman, Director of the District's Personnel Department, as to the appropriate response. Mr. Chapman advised Mr. Brannen that Respondent was subject to disciplinary action under the District's Corrective Action Policy for taking unauthorized leave. (P-18, Section F.2.; Testimony of Brannen, Chapman Section C.7. of the District's Attendance and Leave Policy) Instead of initiating disciplinary action, Mr. Brannen telephoned Respondent and asked him to meet with him at 1:00 p.m. that day, February 26, 1985, to discuss his use of leave. At 1:00 p.m., Respondent, Mr. Brannen and the District's legal counsel, Thomas Schwartz, met at the District's offices. Mr. Brannen reminded Respondent that he was his acting supervisor and that his prior approval was required before Respondent could use annual leave. In reply to Respondent's expressed desire to seek legal counsel to file suit against the District, attorney Schwartz told him that his reasons for taking leave were immaterial with regard to whether a leave request would be granted. Respondent then asked for five days leave, through March 1, 1985. He completed the required leave forms and they were approved at the meeting. (P-2 Testimony of Brannen, Schwartz) Two days later, Mr. Brannen prepared a memorandum for the files summarizing the February 28, 1985, meeting. The memorandum, a copy of which was sent to Respondent by certified mail on March 1, 1985, and received on March 2, 1985, contains the following statement: We met at the appointed time and I explained to Russ that us of annual leave must have prior approval by me as his acting supervisor. We discussed how long he felt he needed to be on leave. Russ said he needed to be off through March 1, 1985. He filled out leave slips and I approved use of annual leave through March 1. (P-2) On February 28, 1985, Respondent returned to pick up his paycheck. On that date, Mr. Brannen and Mr. Dubois observed that Respondent's desk and office had been emptied of all personal materials and assumed that Respondent did not intend to return to work. (P-34; Testimony of DuBois, Brannen) Respondent's apparent intention not to return to work disturbed Mr. Brannen because there was a significant backlog of title examination work. Due to recruitment procedures it would have taken considerable time to hire a new title examiner, and recruitment could not be initiated until Respondent expressed a definite intention to resign. (Testimony of Brannen) Respondent's leave expired at 5:00 p.m. on Friday, March 1, 1985, but he did not return to work on Monday, March 4, 1985, the next working day. At 8:09 a.m. that date, Respondent telephoned Mr. DuBois, asking him to relay to Mr. Brannen his request for an additional week of annual leave through March 8, 1985. Mr. DuBois immediately relayed the request to Mr. Brannen, who telephoned Respondent at 8:21 a.m. at his residence, but received no answer. (P-3, P-34; Testimony of Brannen, DuBois) Mr. Brannen discussed Respondent's further unauthorized absence with Personnel Director Chapman, who again suggested that he take disciplinary action against Respondent for failure to follow instructions. Mr. Brannen, however again declined to take disciplinary action and instead decided to approve—after-the-fact—Respondent's verbal request for additional annual leave. On March 4, 1985, he mailed a letter to Respondent advising: Although you did not contact me as I instructed you to do, your use of annual leave through 5 p.m., March 8, 1985, is approved. You will be expected to return to work no later than 8 a.m., March 11, 1985. We have a backlog of title work to complete which requires your help; therefore, even though you have accrued annual leave, any further request for its use must be denied at this time. If you do not report to work as instructed you will be placed on an unauthorized leave without pay status until you return to work. After three days on unauthorized leave you'll be considered to have abandoned your job. (e.s.) Respondent received the letter on March 6, 1985. (P-3; R-2) On March 5, 1985, Respondent sent a letter to Stanley Hole, Chairman of the District's Governing Board, expressing dissatisfaction with the denial of certain promotions and alleging that the District had a policy of affording preferential treatment to friends and relatives. Respondent then stated that "I will interpret no reply or an adverse reply as an involuntary termination of 18 years of employment with District." (P-4) Although this direct communication with the Board circumvented the District's grievance procedures, the Executive Director of the District, fowarded a copy of the letter to the members of the Governing Board with a cover memorandum dated March 8, 1985. On that day, the District's Deputy Executive Director, Tilford C. Creel, sent Respondent a certified letter, which stated in relevant part: We do not agree with the general content of your letter and particularly we do not agree that you will be terminated due to "no reply or an adverse reply" to your letters. The authority to terminate employees resides in the executive office and in your case, Mr. Brannen informs me that you have been granted annual leave through Friday, March 8, 1985. He further informed me that the workload in the title examination area is such that we are in great need of your services and cannot extend your leave any further. There is only one other title examiner and the backlog of work continues to increase. Therefore, we will expect you to report to work on Monday, March 11, 1985, as you were adivsed by Mr. Brannen. (e.s.) (P-5; P-9) Respondent, however, failed to report to work on March 11, 1985. Neither did he telephone District officials, prior to or on that date to request an extension of his annual leave. Respondent also failed to report to work or telephone the District on Tuesday, March 12, 1985 or Wednesday, March 13, 1985. He was not ill or incapacitated or otherwise unable to reach a telephone. (Testimony of Brannen, Spencer) On Thursday, March 14, 1985, the District notified Respondent by certified letter that, effective at 5:00 p.m. on March 13, 1985, he was deemed to have abandoned his employment pursuant to Section C.7. of the District's Corrective Action Policy for failure to report to work for three consecutive working days. Personnel action was initiated that same date by Mr. Brannon. On March 29, 1985, the District notified Respondent by certified mail of his right to petition for an administrative hearing pursuant to Section 120.57, Florida Statutes, after first pursuing the normal grievance procedures. (P-6, P-7, P-8) Respondent requested a grievance hearing by letter dated April 5, 1985. The hearing was held by the Grievance Review Board on April 17, 1985. The Review Board consisted of two supervisory personnel and two non-supervisory personnel, selected at random by Respondent. After Respondent failed to appear at the hearing, the Board concluded that Respondent had ample notice and opportunity to return to work and that termination of his employment was justified and consistent with District policy and procedure. (P-13) Respondent then appealed the Grievance Review Board determination to the Executive Director, who affirmed it. It was a long-standing District policy that unau- thorized absence from work for three consecutive days would result in termination of employment. On March 14, 1985, the District had in effect an interim written guideline, stating: Any employee who fails to report to work for three (3) consecutive working days without notifying the division office or fails to report to work after a leave of absence has expired or after the leave has been disap- proved, revoked, or cancelled will automati- cally be considered to have resigned his/her employment with the District, barring the supervisors consideration of extenuating circumstances. (P-15,P-18, Section C.7.) This interim guideline was ultimately adopted as a rule, effective April 7, 1985. The District policy in effect prior to the adoption of the interim guideline on February 1, 1985, had a similar provision: Any employee who fails to report to work for three (3) full consecutive working days without notifying the District may be considered to have abandoned the position. (P-15,P-16,P-17) In implementing this long-standing policy, the District routinely terminated the employment of employees who failed to report to work for three consecutive days. The revised (interim and final) policy contains an exception for "extenuating circumstances," which is reasonably interpreted by the District to cover situations where a sudden emergency or physical impairment prevents an employee from reporting to work. In any event, the employee was still expected to telephone the District, except where prevented by a physical impairment. (P- l9,P-20,P-21,P-22, P-23,P-24,P-26 Testimony of Chapman Thomas) The District uniformly requires adherence to attendance and leave regulations throughout its work force. At its West Palm Beach Field Station, which is responsible for maintaining District projects in the West Palm Beach area, em- ployees are routinely given written notices of any lateness in reporting to work, even if only a few minutes. Repeated tardiness or other cumulative infractions of the District's attendance and leave regulations, which do not involve a failure to report to work for three consecutive days, have also resulted in discharge. It is also a common District practice to deny leave requests when work duties require an employee or supervisor to be at work. (P-25, P-27, P-29, P-31; Testimony of Thomas; Chapman) Respondent participated in the development of the revised Corrective Action Policy. Several meetings were held among the employees of his division, wherein the employees were given an opportunity to comment on various aspects of the proposed policy. Copies of the policy were distributed to the employees of his division prior to February 1, 1985, when it became effective as an interim guideline. (Testimony of Chapman; Braun; DuBois) Respondent's acting supervisor, Mr. Brannen, did not act in a retaliatory manner against Respondent in terminating his employment for failure to report to work for three consecutive days. On the contrary, on two prior occasions, Mr. Brannen had refrained from disciplining Respondent for violating the Attendance and Leave Policy. He valued Repondent's capabilities and long-term service to the District, and went to considerable lengths to accommodate him. Respondent was not in any way impeded by Petitioner in his attempt to seek legal counsel. He was able to confer with six attorneys during his leave of absence. (Testimony of Respondent)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent be deemed to have abandoned his employment (by failing to report to work for three consecutive working days, without authorized leave or extenuating circumstances) and his employment be thereby terminated effective 5:00 p.m. on March 13, 1985. DONE and ORDERED this 6th day of December, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as facts stipulated to by the parties, the following relevant facts are found: Central Corporation, formerly known as TFC Teleservices Corporation, is a provider of alternative operator services (AOS). An AOS provider provides operator assisted long distance telecommunications services to various entities including hotels, motels, universities, hospitals and private pay telephone providers. This new AOS telecommunication industry emerged after 1984 when AT&T ceased paying commissions to hotels for toll-traffic from guests and when the Federal Communications Commission authorized privately-owned pay phones. There are currently nine AOS providers in Florida. Central is authorized by Certificate Number 1528, issued by the PSC on November 21, 1986, to operate as an interexchange carrier within the State of Florida. Central currently operates in Florida under an approved tariff on file with the PSC, which tariff became effective on September 15, 1987, and authorizes Central to charge certain amounts for its services. Prior to the challenged action, the PSC never placed any conditions upon Central's approved tariffed rates. Interexchange companies (IXCs) are companies which provide long distance telephone services. They are certificated by the PSC on a statewide basis and engage in competition with each other. Such competition, along with the PSC's fitness screening and approval of tariffed rates, is considered adequate to protect the public. Consequently, the PSC does not regulate the rates of IXCs, at least minor IXCs including AOS providers. The PSC does not set rate levels for minor IXCs and does not set an authorized rate of return on equity for minor IXCs. Indeed, in accordance with Section 364.337, Florida Statutes, which authorizes the PSC to exempt from the requirements of Chapter 364 a telephone company which is in competition with or duplicates the services of another telephone company, the PSC has placed AOS providers under the separate rules and regulations pertaining to IXCs, which are not rate base regulated. The PSC has never established for any minor IXC a rate base or an authorized or required rate of return. Local exchange telephone companies (LECs) serve a franchised monopoly area. The LEC agrees to provide service indiscriminately to the public without competition, and, in return, the PSC guarantees the LEC the opportunity to earn a fair rate of return designed to emulate what might be achieved in a competitive market. The PSC sets rate bases and rate levels for LECs, and authorizes the rate of return on equity. In other words, unlike IXCs, LECs are rate base regulated utilities. LECs and/or the PSC may initiate rate relief or rate decrease proceedings. Interim relief is often necessary and is authorized by statute and case law due to the regulatory lag time pending the conclusion of the proceedings. Such interim rate relief or interim rate decreases are done on an individual case-by-case basis and are based upon the financial condition of the particular LEC. The PSC has never provided interim rate relief or interim rate decreases on an industry-wide basis. It has set a "generic" rate cap, establishing a 25 cent local call rate for privately-owned pay phones, but that was done on a prospective basis. The PSC has never imposed an industry-wide rate cap, with a requirement to hold subject to refund monies in excess of that cap. At the request of PSC staff, the PSC opened, on December 18, 1987, Docket Number 871394-TP styled "In re: Review of Requirements Appropriate for Alternative Operator Services provided from Public Telephones." This was designated as a "generic" proceeding, and emanated from numerous complaints the PSC had received from end users (i.e., guests of hotels and motels, hospital patients and pay telephone users) who had been charged for alternative operator services. The nature of the complaints included end users being charged for AOS without being aware of using the service, lack of prior knowledge of the rates being charged, inability to use the services of their preferred IXC and inability to access the LEC operator. The most significant complaint, however, was the excessive rate being charged by some AOS providers. The evidence demonstrates that the intrastate long distance rates charged by Central are considerably higher than the rates charged by Southern Bell, an LEC. Central entered an appearance in Docket No. 871394-TP on December 30, 1987. At an Agenda Conference held on February 2, 1988, the PSC voted on various recommendations of its staff. As pertinent to this proceeding, the PSC voted to set an expedited hearing to be held as soon as practicable to determine whether AOS are in the public interest and various other issues concerning the provision of AOS. The PSC also voted to require all AOS providers to place all revenues subject to refund that are generated by charges in excess of the AT&T rate for a comparable call. This vote exceeded the staff's recommendation, which did not include a "hold subject to refund" requirement. At an Agenda Conference held on February 16, 1988, the PSC voted to reconsider the rate cap applicable to AOS providers and to hold the Order reflecting their February 2nd vote pending such reconsideration. At its Agenda Conference held on March 15, 1988, the PSC reconsidered and raised the rate cap amount from the AT&T rate for a comparable call to the LEC rate for a comparable call, thereby decreasing the amount of revenues that AOS providers must hold subject to refund. The action taken on March 15, 1988, was embodied in written Order No. 19095 issued on April 4, 1988. This Order is entitled "Order Setting for Hearing the Issue of Whether Alternative Operator Services are in the Public Interest and Placing Revenues Subject to Refund ..." The remainder of the title relates to "proposed agency action" concerning other requirements for AOS providers, which are not challenged in this proceeding. Order No. 19095 declares that paragraph 7, which requires AOS providers to hold subject to refund all charges collected in excess of the approved rate, is effective February 2, 1988. The Order further recites "We are cognizant of the serious impact this action may have on AOS providers and their customers. However, it is our view that we must take immediate and effective action to remedy the abusive situation we perceive exists at this time. It is in consideration of these conflicting concerns that we have chosen the least drastic action available. This action does not require AOS providers to immediately stop charging current rates. It does not suspend or revoke any certificates of public convenience and necessity. It does not levy any fines or penalties. It merely places revenues subject to refund to allow for the return of these monies if it is subsequently decided that they were generated from inappropriate charges." Although not embodied within the terms of Order No. 19095, the parties stipulated that the hearing to determine public interest is scheduled for August 9-12, 1988. Central requested the PSC to hold an evidentiary hearing prior to making the rate cap take effect, but this request was denied. The rate cap requirement and the disposition of the revenues held by AOS providers pursuant to Order No. 19095 are issues to be determined at the hearing to be held August 9- 12, 1988. The rate cap requirement set forth in Order No. 19095 applies to all AOS providers operating in Florida. Central's current tariff authorizes Central to charge more than the rate cap specified in Order No. 19095. Prior to Order No. 19095, there was no rate cap on AOS providers. Regardless of whether the PSC ultimately orders a refund, the "hold subject to refund" requirement which became effective on February 2, 1988, has immediate and significant adverse impacts upon Central. Central is a relatively new company and must use the revenue it generates on a daily basis. Prior to Order No. 19095, Central was able to rely on the unconditional use of revenues it receives under its approved Florida tariff. If Central continues to charge its current tariffed rates, it will have to set aside the difference between what it bills and the rate cap, place it in escrow and will not be able to utilize those funds. It is estimated that the revenues Central might have to refund if it continues to charge its current rates would between $1.2 and $1.7 million. Nonrecoverable commissions and the cost of a actually making the refund would increase the potential cost of the refund. If Central were to reduce its rates to the LEC rate, it would lose a substantial amount of revenue and does not know where it can make up that loss. Even if this option were chosen today, Central would still have to determine to whom it provided services since February 2, 1988, and what the potential refund would be. Additional staffing and/or computer equipment would be necessary to keep track of prior users and charges. A third option is for Central to withdraw from Florida intrastate operations pending the outcome and conclusions of the August PSC proceedings. Central operates in many states. While its Florida business makes up only 8 to 10 percent of its intrastate revenues, some 40 percent of Central's entire business originates at Florida properties. If Central were to cease paying commissions on intrastate revenues, its intrastate business originating from Florida would go to its competitors. While Central has made the decision not to do business in certain states due to those state's methods of rate regulation, such decisions were made on a prospective basis. Other immediate and adverse impacts upon Central include the administrative costs and burdens associated with separate bookkeeping for its Florida operations, as well as separate books within Florida to segregate the difference between the rate cap and its tariffed rates. Central has already experienced delays in loan financing. Lenders want to wait and see what the PSC does with AOS providers. The valuation of the company is affected due to money taken out of the revenue stream and placed in escrow. Central's financial statement must reflect the contingent liability of potential refunds and full disclosure must be made to the Federal Communication Commission.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: During the development stage of a condominium project, known as Lake Villas Condominium, in Altamonte Springs, Florida, First Federal Savings and Loan of Orlando foreclosed on some forty (40) units of the project. At that time, approximately in November of 1975, thirty-one (31) units already had fee- simple owners or were under a lease/purchase option and they were not involved in the foreclosure proceedings. Mr. David McComb, a vice-president and mortgage loan officer with First Federal Savings and Loan of Orlando, was given the responsibility of assuring the completion of the remaining units, selling the units and setting up a homeowners' association for the Lake Villas Condominium. The petitioner Lake Villas Condominium Association's five-position board of directors was originally comprised of three members who were personnel of First Federal Savings and Loan of Orlando, so that First Federal would have majority control at a time when it held the ownership to the majority of the units. In June of 1976, thirty-seven of the seventy-one units had been sold to individuals. Thereafter, the composition of the petitioner's board of directors changed and the individual-unit owners held the majority of the five positions. Mr. McComb, as a representative of First Federal Savings and Loan of Orlando, remained on the board of directors and continued First Federal's attempts to sell the remaining unsold units. First Federal retained a sales representative who lived in one of the condominium units, operated her sales office from one of the vacant units owned by First Federal and was paid a real estate commission when she sold a unit. The sales contract on the last of the units owned by First Federal was closed on December 12, 1977. Prior to mid-1976, the Florida Power Corporation account for seven or eight common element meters was in the name of First Federal Savings and Loan of Orlando, doing business as Lake Villas Condominium Association, and the billing statements were mailed to the Orlando office of First Federal Savings and Loan. In June or July of 1976, after the majority of units had been purchased by individual owners and majority control of the board of directors was obtained by the individual owners, Mr. McComb of First Federal placed a telephone call to the respondent's Winter Park office. The purpose of this call was to inform respondent that First Federal wanted the account name and address for the seven or eight meters changed and to inform respondent that the Lake Villas Condominium Association had taken over responsibility for the accounts. Mr. McComb spoke on the telephone to a female who handled commercial accounts for the respondent's Winter Park office and informed her that he wanted the name of First Federal Savings and Loan taken off the account and the bills to be mailed to the Lake Villas Condominium Association at a post office box in Altamonte Springs. The female to whom Mr. McComb spoke took down the information regarding the account numbers and change of billing names and addresses, and told him she would take care of it. Mr. McComb did not inquire about a rate adjustment, and no discussion was had concerning rates for the seven or eight meters. Following the June or July, 1976, discussion between Mr. McComb and a female at the respondent's Winter Park office concerning a change in billing name and address, the billing statements were sent and received at the post office address of the Lake Villas Condominium Association, Inc. in Altamonte Springs. Approximately one year later, in mid-1977, Mr. McComb was forwarded some delinquent notices on the seven or eight meters. They had originally been sent to the petitioner's post office box in Altamonte Springs, but were thereafter forwarded to Mr. McComb's attention at First Federal. Mr. McComb noticed that, although the post office address had been changed, the accounts were still in the name of First Federal Savings and Loan of Orlando. He then placed another telephone call to the respondent's Winter Park office, spoke with a female in the commercial department and requested that the name of First Federal Savings and Loan of Orlando be removed from the account and that the Lake Villas Condominium Association, Inc. be inserted as the new-named customer. The female informed Mr. McComb that this request would be taken care of and that nothing further need be done. No inquiry by Mr. McComb or discussion was had concerning a rate adjustment for these seven or eight meters. Electricity for the individual living units of the Lake Villas Condominiums are separately metered. In addition, there are seven or eight separately billed meters which service the common areas of the condominium, such as the two swimming pools, the internal street and sidewalk lighting, the clubhouse and small post lamps for an open green area. From at least April of 1979 through October of 1980, no commercial activity occurred in any of the condominium units. In April of 1979, Mr. O. K. Armstrong became the manager of the Lake Villas Condominiums and was responsible for the association's financial transactions. He noticed in May of 1979 that the bills for the seven or eight subject meters contained the name of First Federal Savings and Loan of Orlando, though they did list the condominium's post office box number for the address. After speaking with Mr. McComb about the matter, Mr. Armstrong telephoned a Mr. Harbour at the respondent's Winter Park office. It was during this discussion that petitioner, through Mr. Armstrong, learned that the seven or eight common element meters might qualify for a residential, as opposed to the higher commercial, rate. Thereafter, the rates for the seven or eight meters were changed by Florida Power Corporation from commercial to residential. The request of Mr. Armstrong for a retroactive application of those residential rates to January 1, 1976, which would amount to a refund of all amounts paid in excess of the residential rates from that date, was denied by Mr. Harbour, respondent's office manager in Winter Park. During the hearing, the petitioner verbally amended the request for retroactive application of the residential rate from January 1, 1976, to July of 1976.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petition filed by the Lake Villas Condominium Association, Inc. be DISMISSED. Respectfully submitted and entered this 17th day of June, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1981. COPIES FURNISHED: James D. Mapp Hunter, Pattillo, Marchman, Mapp and Davis Post Office Box 340 Winter Park, Florida 32790 Blair W. Clack Assistant Counsel Post Office Box 14042 St. Petersburg, Florida 33733 Arthur Shell Public Service Commission Legal Department 101 East Gaines Street Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
