The Issue Whether the Department of Juvenile Justice overpaid Christopher Stokes for pay periods ending May 25, 2000, for 34.5 hours amounting to $274.91; June 8, 2000, for 9.25 hours amounting to $73.81; and June 30, 2000, for 8.0 hours amounting to $63.71.
Findings Of Fact Petitioner, Christopher Stokes, was employed by the Department of Juvenile Justice (Respondent) as a painter at the Dozier School for Boys in Marianna during the period at issue, May 12, 2000, through June 30, 2000. Petitioner continues to be employed by Respondent in the same capacity. Respondent's Policy and Procedure 3.26 (FDJJ 3.26), which is available in hard copy at the workplace and via the internet, delineates the agency's Sick Leave Transfer Policy.1 FDJJ 3.26 is based upon the requirements and provisions of Rule 60L-5.030(3), Florida Administrative Code. FDJJ 3.26, Procedure A provides that in order to donate sick leave, the donor must complete the Interagency Sick Leave Transfer (Request to Donate) form and submit it to the Bureau of Personnel. FDJJ 3.26, Procedure B provides that in order to receive donated sick leave, the employee must complete the Interagency Sick Leave Transfer (Request to Use) form and submit it to the Bureau of Personnel.2 The Department of Juvenile Justice is a centralized agency and the Bureau of Personnel is located in Tallahassee. A request to donate or to use donated sick leave may be made directly to the Bureau of Personnel via U.S. Mail, courier, or fax. FDJJ 3.26, Procedure C provides that sick leave credits donated to the receiving employee shall be credited on the last day of the pay period. Transferred leave must be processed by the last day of the pay period in order to be credited to the employee. This includes checking to see if the donor has leave to transfer and is permitted to transfer it by the donor's employer. The Department of Juvenile Justice has 26 pay periods per year. Requests to donate leave to use donated sick leave that are timely submitted to the Department of Juvenile Justice, Bureau of Personnel, located in Tallahassee, will be accepted by the Department of Juvenile Justice even when the request may be incomplete or incorrectly submitted. Requests to donate leave or to use donated sick leave will be processed by the Department when the error or delay is attributable to the Bureau of Personnel. During the pay period ending May 25, 2000, Petitioner had a medical emergency requiring him to miss several days of work during that period and those that followed. Lynn R. Price, a Department of Children and Families employee, completed a request to donate 25.5 hours of sick leave to Christopher Stokes on May 24, 2000. Christopher Stokes submitted the Lynn Price Request to Donate Sick Leave Hours to the personnel office at Dozier School on May 25, 2000, the last day of the pay period. The Department of Children and Family Services, donator's agency, approved the donation of the leave on June 29, 2000, seven days after the last day of the three pay periods in question. The leave donated by Lynn Price was "not approved per criteria" by the Department of Juvenile Justice on September 12, 2000. This leave could not be credited to the employee's leave account for the next pay period. Earma J. Hendrix, Department of Children and Family Services employee, completed a request to donate 8 hours of sick leave to Christopher Stokes on June 8, 2000, the last day of the period. The Department of Children and Family Services, Donator's Agency, approved the donation of the leave on June 9, 2000, the day after the last of the second pay period at issue. The leave donated by Earma Hendrix was "not approved per criteria" by the Department of Juvenile Justice on September 11, 2000. This leave could not be credited to the employee's leave account for the next pay period. The Department of Juvenile Justice paid Christopher Stokes for 34.5 hours of donated sick leave during the pay period of May 12 through May 24, 2000. Because the attempt to donate sick leave by Earma Hendrix during that pay period was not approved as untimely submitted, Mr. Stokes should not have been paid for the 34.5 hours of donated sick leave, totaling $274.91, on the June 2, 2000, warrant. The Department of Juvenile Justice paid Christopher Stokes for 9.25 hours of donated sick leave during the pay period of May 26 through June 8, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 9.25 hours donated sick leave hours of donated sick leave, totaling $73.81, on the June 16, 2000, warrant. DJJ paid Christopher Stokes for 8 hours of donated sick leave during the pay period of June 9 through June 22, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 8 hours of donated sick leave, totaling $63.71, on the June 30, 2000, warrant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order upholding the Agency's determination of a salary overpayment. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 8th day of November, 2001.
The Issue The issue is whether Rule 4-211.042(8), Florida Administrative Code, contravenes Section 626.641(2), Florida Statutes, by imposing a waiting period in excess of two years for licensee whose license has been revoked to reapply for licensure.
Findings Of Fact From 1984 through November 28, 2000, Petitioner was licensed as a general lines insurance agent. On May 15, 2000, the Miami-Dade County State Attorney charged Petitioner with a felony violation of Section 817.034(3)(d), Florida Statutes (2003). The information alleged that Petitioner had participated in an organized scheme to defraud a person of less than $20,000 from December 1, 1997, through January 31, 1999. (All references to Sections are to Florida Statutes (2003), unless the context indicates otherwise.) On September 14, 2000, Petitioner entered a plea of no contest to the charge, and the court entered a finding of guilt, but withheld adjudication. The court ordered that Petitioner remain on probation and pay court costs. The period of probation was specified in a separate order that is not part of the present record. On the same day, Petitioner entered into a Settlement Stipulation for Consent Order with Respondent. The settlement stipulation acknowledges that Respondent has alleged that Petitioner misappropriated homeowners and flood insurance premiums and uttered forged insurance documents. The settlement stipulation memorializes Petitioner's "voluntary return" to Respondent of all licenses previously issued to him by Respondent and Petitioner's understanding that the return of the licenses has the same effect as a revocation of these licenses, pursuant to Section 626.641, Florida Statutes (2000). The final paragraph of the settlement stipulation states: No person whose licenses, appointments and eligibility for licensure have been revoked by the Department shall have the right to apply for another license or appointment under the Insurance Code within two (2) years from the date of the Consent Order to be issued in this case. The Department shall not, however, grant a new license or appointment or reinstate eligibility to hold such license or appointment if it finds that the circumstance or circumstances for which the eligibility was revoked or for which the previous license or appointment was revoked still exist or are likely to recur. After the Treasurer and Insurance Commissioner approved the settlement stipulation, Respondent issued a Consent Order, which incorporates the settlement stipulation and revokes Petitioner's "licensure and eligibility for licensure as an insurance agent . . . pursuant to Section 626.641(2), Florida Statutes (2000)." The final paragraph of the Consent Order, which was filed November 28, 2000, contains a paragraph identical to the final paragraph, quoted above, of the settlement stipulation, except for minor rewording and the addition of a citation in the second sentence to Section 626.641(1), Florida Statutes (2000). Prior to the expiration of two years following the issuance of the Consent Order, the Legislature passed Chapter 2002-206, Laws of Florida. Taking effect on October 1, 2002, Section 11 adds Section 626.207 which provides: The department shall adopt rules establishing specific waiting periods for applicants to become eligible for licensure following denial, suspension, or revocation pursuant to s. 626.611, s. 626.621, s. 626.8437, s. 626.844, s. 626.935, s. 626.9917, s. 634.181, s. 634.191, s. 634.320, s. 634.321, s. 634.422, s. 634.423, s. 642.041, or s. 642.043. The purpose of the waiting periods is to provide sufficient time to demonstrate reformation of character and rehabilitation. The waiting periods shall vary based on the type of conduct and the length of time since the conduct occurred and shall also be based on the probability that the propensity to commit illegal conduct has been overcome. The waiting periods may be adjusted based on aggravating and mitigating factors established by rule and consistent with this purpose. On October 17, 2002, Respondent adopted Rule 4-211.042, Florida Administrative Code. (All references to Rules are to the Florida Administrative Code.) Rule 4-211.042(8) provides: Required Waiting Periods for a Single Felony Crime. The Department finds it necessary for an applicant whose law enforcement record includes a single felony crime to wait the time period specified below (subject to the mitigating factors set forth elsewhere in this rule) before licensure. All waiting periods run from the trigger date. Class A Crime. The applicant will not be granted licensure until 15 years have passed since the trigger date. Class B Crime. The applicant will not be granted licensure until 7 years have passed since the trigger date. Class C Crime. The applicant will not be granted licensure until 5 years have passed since the trigger date. The Department shall not impose any waiting period pursuant to this rule where the only crime in an applicant’s law enforcement record is a single felony crime that results from the applicant’s passing of a worthless check, or obtaining property in return for a worthless check, and the amount of the check or checks involved in the single felony crime is $500 or less. However, this subparagraph shall not apply where a felony crime resulting from the applicant’s passing of a worthless check, or obtaining property in return for a worthless check is not the only crime in an applicant’s law enforcement record. Rule 4-211.042(21) provides that Class A crimes include 64 felonies ranging from treason, murder, and air piracy, to unlawful possession of a postal key and defrauding an innkeeper. Rule 4-211.042(21)(2) includes fraud. Rule 4-211.041(11) provides that the "trigger date" is the date on which the applicant was found guilty, pleaded guilty, or pleaded no contest. As is apparent from the Notice of Denial, described below, the trigger date is the earliest of these three events. Section 626.641(2) provides: No person or appointee under any license or appointment revoked by the department or office, nor any person whose eligibility to hold same has been revoked by the department or office, shall have the right to apply for another license or appointment under this code within 2 years from the effective date of such revocation or, if judicial review of such revocation is sought, within 2 years from the date of final court order or decree affirming the revocation. The department or office shall not, however, grant a new license or appointment or reinstate eligibility to hold such license or appointment if it finds that the circumstance or circumstances for which the eligibility was revoked or for which the previous license or appointment was revoked still exist or are likely to recur; if an individual's license as agent or customer representative or eligibility to hold same has been revoked upon the ground specified in s. 626.611(12), the department or office shall refuse to grant or issue any new license or appointment so applied for. On January 10, 2003, Petitioner filed an application for licensure as a general lines agent. On February 13, 2003, Respondent issued a Notice of Denial. The Notice of Denial explains that Section 626.611(14) provides that Respondent shall deny an application for a license if it finds that the applicant has been found guilty of, or pleaded guilty or no contest to, a felony involving moral turpitude, without regard to adjudication, and that Section 626.621(8) provides that Respondent may deny an application for a license if it finds that the applicant has been found guilty of, or pleaded guilty or no contest to, a felony. The Notice of Denial cites Rule 4-211.042(8) with respect to the waiting time before licensure due to a record of a single felony. The Notice of Denial concludes that Respondent is subject to a waiting period of 14 years from when he was found guilty, pleaded guilty, or pleaded no contest. Petitioner is substantially affected by Rule 4-211.042(8)(a). The effect of this rule is to preclude Petitioner's application from consideration for 14 years from the trigger date. Given the resolution of this case, it is unnecessary to determine if Petitioner has standing to contest the remaining subsections of Rule 4-211.042(8).
Findings Of Fact The Petitioner, John C. Scott, has been a Career Service employee with the Department of Transportation for approximately ten years, assigned to the Centerline Maintenance Office in Pompano Beach, Florida. During all times material to these proceedings, Petitioner's immediate supervisor was Allen Thomas. Robert Lucas, Highway Maintenance Supervisor in charge of the District III Centerline Crew, is the Petitioner's second-level supervisor. Thomas and Lucas are the only individuals at the Centerline Maintenance Office authorized to approve leave for Petitioner. On May 23, 1987, the Petitioner was arrested for D.U.I. and placed in jail for fifteen days. After the Petitioner was arrested, he called his mother and asked her to inform his supervisor at work that he had some personal business to attend to and would need annual leave. On May 26, 1987, the Petitioner failed to report to work and had not previously requested leave from any of his supervisors. On the morning of May 26, 1987, Ms. Scott, the Petitioner's mother, called Mr. Lucas and told him that her son would need a couple of days off from work because of personal business. Mr. Lucas informed Mrs. Scott that annual leave could not be authorized over the telephone for personal business but that leave could be granted for an emergency situation. Ms. Scott reiterated that the Petitioner had some personal business to take care of. Mr. Lucas advised her that annual leave could not be authorized over the telephone under those circumstances. On June 1, 1987, Mr. Lucas was informed by Mr. Oshesky, the District Personnel Supervisor, that Petitioner's attorney had called and told him that Petitioner was in jail. The Petitioner was absent from work on May 26, 27, 28, and June 1, 2, 3, and 4, 1987. May 29, 30 and 31, 1987 were non-work days for Petitioner. At the time, the Petitioner's work week consisted of four ten hour days from 7:30 a.m. to 5:30 p.m. The last day that Petitioner actually reported for work was Wednesday, May 20, 1987. However, on Thursday, May 21, 1987, the Petitioner was absent from work on authorized annual leave, May 22-24, 1987, were non-work days and on Monday, May 25, 1987, the Petitioner was absent from work due to an official holiday (8 hours) and authorized annual leave (2 hours). On June 5, 1987, the Respondent advised Petitioner by certified mail, return receipt requested, that he was being terminated effective May 20, 1987, (Petitioner's last day at work) for abandonment of his position. The Petitioner's absence from work and involvement with civilian authorities were related to an admitted alcohol problem. Since the Petitioner was released from jail, he has participated in a twenty-day in-patient substance abuse program at John F. Kennedy Hospital and is presently involved with a Fort Lauderdale after-care program. The Petitioner had been provided with a Department of Transportation Employee Handbook by his employers. The Handbook outlined the requirements for annual leave and leave of absences without pay. The Handbook provides in part as follows: Annual Leave - Get your supervisor's approval before taking leave. If an emergency develops, tell your supervisor of the emergency and ask verbal approval to use annual leave. When you return to work complete the leave request form, as appropriate. Leaves of Absence Without Pay - Upon request, you may be granted leave without pay ... for a period not to exceed twelve calendar months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Administration enter a final order finding that the Petitioner, John C. Scott, has abandoned his Career Service position with the Department of Transportation. DONE and ORDERED this 16th day of October, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2750 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 to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in substance in Finding of Fact 3. Partially adopted in substance in Findings of Fact 5 and 6. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 3, 5, and 6. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 11. Adopted in Findings of Fact 7 and 9. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Hon. Kaye N. Henderson Department of Transportation Secretary Room 562 Burns Building Department of Transportation Tallahassee, Florida 32399-0450 605 Suwannee Street Tallahassee, Florida 32399-0458 Patrick J. Curry, Esquire Attn: Eleanor F. Turner, 200 Southeast Sixth Street M.S. 58 Suite 200 Ft. Lauderdale, Florida 32301 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III, Esquire 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Bldg. Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At all times material, Petitioner was employed by the Department of Corrections as a full-time career service employee. On July 13, 1984, he was ranked as a Correctional Officer I at Florida State Prison (FSP). On March 2, 1990, Petitioner had been placed on workers' compensation due to a back injury. On Thursday, April 5, 1990, Dr. W. David Sikes of the Bradford Chiropractic Center signed a medical release permitting Petitioner to return to light duty on Monday, April 9, 1990. Dr. Sikes was apparently the authorized treating physician to whom the agency had currently obligated itself pursuant to Chapter 440 F.S. [The Florida Workers' Compensation Act]. A previous physician had released Petitioner for full-duty work on April 3, 1990. Petitioner was present in the office of Personnel Manager Marion Bronson on Friday, April 6, 1990. At that time, Mr. Bronson told Petitioner to report for work on the first shift (8:00 a.m. to 5:00 p.m.) on Monday, April 9, 1990. This meant Petitioner would be doing mail room duty during the day instead of his regular duties on his regular shift of midnight to 8:00 a.m. Petitioner told Mr. Bronson he could not work the first shift due to his needing to be home to take of his invalid wife. To this, Mr. Bronson replied that the first shift was the only light duty available. On Friday, April 6, 1990 Petitioner did not refuse to come in to work the first shift on Monday, April 9, and he did not tell Mr. Bronson that he was already signed out on annual leave for that date. Nonetheless, Mr. Bronson was left with the impression at the end of their meeting that Petitioner would not come back to light-duty work on Monday. Petitioner did not report for work on the first shift on April 9, 10, or 11, 1990 (Monday, Tuesday and Wednesday). On Wednesday, April 11, 1990, Mr. Bronson mailed Petitioner a letter that read, in pertinent part: You have been carried in unauthorized leave without pay status since April 9, 1990. You were also carried on unauthorized leave without pay on April 3, 1990. You are hereby instructed to return to duty at 8:00 a.m. the day after you receive this letter. If you do not return to duty on that date it will be deemed that you have abandoned your position at Florida State Prison and you will be dismissed. In the past, the FSP personnel office usually made further efforts to contact missing employees after such a letter had been sent, but no such attempts were made in this instance. Normally, FSP gives employees an opportunity to call in and rectify absentee problems but deems it abandonment if the employee does not respond. At no time subsequent to April 6, 1990 did Petitioner contact anyone at FSP regarding his absence. Petitioner did not actually receive the April 11 letter until Friday, April 13. Petitioner did not report for work on Saturday, April 14, Sunday, April 15, or Monday, April 16. Saturday would have been a regular workday for Petitioner. However, Petitioner's usual days off were Sunday and Monday, and nothing had been said by Mr. Bronson about altering Petitioner's workdays. On Monday, April 16, Mr. Bronson mailed Petitioner a letter that read, in pertinent part: This is to inform you that in accordance with Section 22A-7.010(2), F.A.C., you have been deemed to have abandoned your position as Correctional Officer I and resigned from the Career Service System effective April 14, 1990. A copy of Section 22A-7.010(2) is enclosed for your information. You have been absent from duty for at least three consecutive workdays without authorized leave as follows: April 10, 11, and 12, 1990. Please be advised that you have been dropped from the payroll effective the close of business April 14, 1990. Unbeknownst to Mr. Bronson, Petitioner had exercised preapproved annual leave for the period of April 10-14, 1990. None of Petitioner's superiors advised Mr. Bronson of this fact. There was no notation to this effect in Petitioner's personnel file in Mr. Bronson's office. It was Mr. Bronson's testimony that it was better personnel management and he would have preferred to have Petitioner drawing annual leave during this period than to be paying him full pay for makeshift light duty. If Petitioner had requested annual leave on April 6, 1990, Mr. Bronson would have granted it. As of April 14, 1990, Petitioner had "banked" 119.75 hours of annual leave time which would have been sufficient to cover his April 10-14, 1990 vacation or "no show" days. Additionally, he also had available 26.5 hours of sick leave but this sick leave was subject to certain deductions and adjustments which had allowed the agency to keep Petitioner on at full pay the previous week while technically he was only eligible for a reduced amount based on workers' compensation. In accord with standard FSP policy, Petitioner had previously submitted an annual leave request form on October 16, 1989 to request leave for the week of April 10 through April 14, 1990. This form had been approved by his immediate superior, who at that time was his shift supervisor, Officer Gaskin. Officer Gaskin was the correct superior to make such approval. Mr. Bronson has nothing to do with the approval of leave under such circumstances. Harry Tison, who became Petitioner's shift supervisor in April 1990 while Petitioner was still out on workers' compensation leave, was not aware of Petitioner's preapproved annual leave until Mr. Bronson's office began making inquiries after the April 16 letter, but at that time, Tison was able to refer to a leave calendar posted in his area which showed that Petitioner was expected to be out on annual leave on those days. From that information, Officer Tison, by reason of his familiarity with the FSP system and hierarchy, could infer that Petitioner's leave had been approved by FSP's highest command figure, "the Colonel." Some witnesses alluded to FSP policy that even preapproved annual leave requests constituted only tentative approval unless the employee checked with his supervisor a week before actually exercising his leave so as to be sure that the preapproved leave had not been revoked due to an employee crunch, but there is no such rule or printed policy of the Department of Corrections or FSP, and the evidence is insufficient to establish such a vague policy as uniform or binding on Petitioner. Also, in this instance, the week before, Petitioner was away from work most of that week on workers' compensation disability, and there is no evidence of any employee crunch which would have altered the prior annual leave approval.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order finding that Petitioner has not abandoned his position and returning him to the appropriate position with back pay and emoluments, subject to any appropriate setoffs under the Workers' Compensation Act and any mitigation from other employment. DONE and ENTERED this 19th day of August, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Petitioner has filed only a "Final Argument" and that is essentially legal argument and proposed conclusions of law as opposed to proposed findings of fact which are entitled to a ruling pursuant to Section 120.59(2) F.S. Moreover, the format does not lend itself to intelligible rulings since no sentence is numbered. Respondent's PFOF: 1-6 Accepted. Accepted except for the last sentence, which does not comport with the testimony heard. Accepted. Rejected in FOF 13, which reflects the greater weight of the credible evidence. Accepted but subordinate. - 15 Accepted. COPIES FURNISHED: Perri M. King Assistant General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Rodney W. Smith, Esquire Gloria W. Fletcher, Esquire 515 North Main Street, Suite 300 Post Office Box 1208 Gainesville, Florida 32602 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Janet Truett was a former vocational rehabilitation client due to a hearing problem. After successfully completing the program, she was employed as a secretary by the Office of Vocational Rehabilitation in Tampa, a position which she retained for approximately five years. In 1983, petitioner often took annual leave, sick leave and leave without pay, usually calling in at the last minute. On October 13, 1985, her immediate supervisor advised her that "in the future, all leave must be approved in advance except for emergency sick leave." (HRS Exhibit 1). Due to an automobile accident and gall bladder surgery, Mrs. Truett was absent from work approximately one-fourth of the time from mid-November of 1984 through mid-April of 1985. On April 22, 1985, petitioner and her supervising counselor had a conference and discussed her continued use of leave without pay. Petitioner was advised that her absence put undue stress on the rest of the unit and that her physician was being consulted to determine if she was able to return to work on a full-time basis. Another conference was to be scheduled after receiving her doctor's response. By letter dated April 30, 1985, Dr. Michael J. Wiley advised petitioner's supervisor that petitioner had been discharged from care after recovering from her surgery on March 18, 1985, but had come back to his office on April 3, 1985, complaining of abdominal pain. She was instructed to stay home and return for a follow-up visit the following week. She did not return to Dr. Wiley's office after April 3, 1985. Petitioner received her annual performance evaluation on May 2, 1985, with an overall rating of "conditional". The areas of deficiency included dependability, quality of work and quantity of work. Petitioner was advised that her attendance at work would be monitored over the next sixty days and that she would "not be given any approved leave whether sick leave, annual leave or leave without pay without a written explanation. If she falls ill during the 60 days she must provide me with a doctor's report indicating her problem. If she is to take any other type of leave she must provide me with a written explanation. I will then make a determination as to whether or not I will approve this leave." (HRS Exhibit 3). On May 17, 1985, petitioner called her supervisor and indicated she had car problems. She did not come in to work for the entire day. A counseling session was held on May 20, 1985, and petitioner was advised by her supervisor that she was expected to take the city bus or arrange for other transportation should she experience further car trouble. On May 24, 1985, petitioner called her supervisor at 9:45 A.M. and requested leave because of an alleged family problem. She was told that her story would be verified and was reminded that she had been instructed to call in to request leave before 8:30 A.M. The stated reason for her absence on May 24, 1985 was not truthful. On May 28, 1985, petitioner called in at 8:20 A.M. and requested leave, stating that her car had broken down and that she had numerous family problems. She was told that the leave for May 24 and May 28, 1985, would not be approved. On May 29, 1985, she arrived to work late at 8:15 A.M. Also on that date, she received a written reprimand from her supervisor for taking unauthorized leave on May 24 and May 28, 1985. She was instructed to be honest and to call in by 8:30 A.M. if she was going to be out for any reason. On May 31, 1985, petitioner was granted approval for three hours leave in order to get her electricity turned on. On June 3, 1985, she called in requesting leave stating that she still had no electricity, that she had been up late the night before due to family problems and that she had no way to get to work anyway. Her daughter picked up some checks for her around 1:10 P.M. On June 4, she came to work but requested leave. This request was not approved and she received a second written reprimand for taking unauthorized leave on June 3, 1985. In this second reprimand dated June 4 but signed June 11, 1985, petitioner was advised that "further occurrences of unauthorized leave could result in a suspension or dismissal." (HRS Exhibit 5) A counseling session was held with petitioner on June 4, 1985, to review her job performance since the time of her conditional performance rating. She was advised that her attendance problem had not improved. She was referred to the Employee Assistance Program and was advised that the only way she could obtain future approved sick leave was to provide her supervisor with a doctor's statement. On June 14, 1985, a Friday, petitioner called in and requested sick leave. Her supervisor told her that in order for him to approve her sick leave, she must provide him with a doctor's report. On June 17 and 18, 1985, petitioner failed to report to work and failed to request additional leave. On June 19, 1985, she called in and said she was "too upset" to come to work. When asked if she had seen a doctor, she replied that she had not. Petitioner was then advised by her supervisor that he would not approve her leave for June 14, 17 or 18, 1985. When petitioner was absent from work, other secretaries in the office were required to perform her duties, as well as their own. This created a hardship on the other secretaries, and petitioner's frequent absences impaired both the quantity and the quality of her own work. By letter dated June 21, 1985, petitioner was advised that the Office of Vocational Rehabilitation was processing her resignation from her position as a secretary effective June 13, 1985 at 5:00 P.M. Citing Rule 22A-7.10, F1orida Administrative Code, it was assumed that petitioner had abandoned her position and resigned from the Career Service since she had been on unapproved leave for three consecutive work days.
Conclusions Rule 22A-7.10(2t(a), Florida Administrative Code, provides that "An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service." The evidence clearly demonstrates that petitioner's absence on June 14, 17 and 18, 1985, was not authorized. Petitioner does not even contend that it was authorized, but merely urges that it was not "reasonable" for her supervisor not to grant her retroactive approval for these absences. Given the numerous amount of leave time utilized by the petitioner and the repeated warnings, both oral and written, concerning future absences, HRS's action can hardly be termed "unreasonable." Petitioner's supervisors and co-workers were aware that petitioner had medical and personal problems and attempted to work around those problems and provide help and counseling to her. Her absences were both disruptive to the operation of the office as a whole and affected the quality and quantity of her own performance. Petitioner was repeatedly advised and counseled concerning the problems her absences were causing and was instructed and warned of the proper procedure to follow should future absences be necessary. It is difficult to envision any further steps HRS could have taken to solve petitioner's problems with continued absences. She was fully aware of the consequences which would ensue should she fail to report to work without authorized leave. Nevertheless, she chose to do so in the face of two written reprimands within a one-week period, and the passage of less than ten days between the second written reprimand and June 14, the first of her three days of absence without authorized leave. Rule 22A-7.10(2)(a), Florida Administrative Code; is clear and mandates the action to be taken when an employee is absent without authorized leave for three consecutive work days. A review of the facts of this case clearly supports the conclusion that petitioner abandoned her position with HRS and must be deemed to have resigned from the Career Service.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner Janet E. Truett be deemed to have abandoned her position with HRS and to have resigned from the Career Service. Respectfully submitted and entered this 19th day of November, 1985, 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 19th day of November, 1985. COPIES FURNISHED: Janet Truett 1605 East Kirby Apartment B Tampa, Florida 33610 Robert Cox Regional Director, ASCME 4404 Westmoreland Court New Port Richey, Florida 33552 Claudia Isom-Rickert District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 Richard L. Kopel Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 ================================================================ =
Findings Of Fact Petitioner, Basil Glinton (Glinton), was employed full time by the Respondent, Department of Health and Rehabilitative Services (Department) as a Public Assistance Specialist II. On September 14, 1984, as a result of a transfer, Glinton was scheduled to start work at the Department's Food Stamp Office, Unit 61, in Miami, Florida. At 9:15 a.m., September 14, 1984, a Friday, Glinton reported to Unit He requested and received his paycheck, and advised the acting supervisor that he had a doctor's appointment which would require his absence from the office for about one hour. Glinton did not return to the office that day. On Monday, September 17, 1984, Glinton reported to Unit 61 and worked from 8:12 a.m. to 5:00 p.m. On that date, the office supervisor, Raquel Tima, met with Glinton and spoke with him about his absence of September 14, 1984. Ms. Lima advised Glinton that she needed a doctor's statement to authorize that absence. No doctor's statement has been produced. Glinton failed to report for work the remainder of that workweek-- September 18-21, 1984. On September 21, 1984, Ms. Lima sent a warning letter, certified mail, to Glinton. The postal claim check reflects that Glinton was notified of the letter on September 24, 1984, September 29, 1984, and October 9, 1984, but failed to claim it. Glinton likewise failed to report for work the following week-- September 24-28, 1984. He did, however, appear at the office on Friday, September 28, 1984, to request his paycheck. On October 1, 1984, Glinton was personally delivered a letter dated September 28, 1984, which advised him that his absence from work since September 18, 1984 was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Glinton of his right to petition the Department of administration for a review of the facts and whether they constitute abandonment. By letter dated October 4, 1984, Glinton timely petitioned the Department of Administration for review. In his letter, and at final hearing, Glinton claimed he was ill and under a doctor's care for the period of September 18-28, 1984, and that he had routinely called, or had someone else call, the office to advise them of his illness. While professing "illness" for a two-week period, Glinton failed to offer any evidence of the nature of his illness. He further failed to offer the testimony of his physician, or any other evidence supportive of his claim. While Glinton acknowledges familiarity with the Department's rule which requires that the supervisor be notified of absence due to illness, he made no attempt to contact his supervisor. The only time the office was notified of his absence was on September 19, 1984 when an unknown female telephoned and advised the switchboard operator, without explanation, that Glinton would not be coming to work on that date. Glinton's testimony that his absence from work during the period of September 18-28, 1984 was due to illness, and that he telephoned the office every day during his absence, is inherently improbable and unworthy of belief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order that: Petitioner, Basil Glinton, abandoned his position and resigned from the Career Service effective October 1, 1984. Dismisses the petition of Basil Glinton with prejudice. DONE AND ENTERED this 8th day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK 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 8th day of May, 1985. COPIES FURNISHED: Dniel C. Brown, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Leonard Helfand, Esquire Department of Health and Rehabilitative Services Suite 1070, 410 N.W. 2nd Avenue Miami, Florida 33128 Robert L. McKinney, Esquire Suite 1107 Jackson Medical Tower 1500 N.W. 12th Avenue Miami, Florida 33125 Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner was a career service employee of Respondent at all times pertinent to these proceedings. Petitioner failed to report to work as scheduled on April 8, 11, 12, 13 and 14, 1988. Petitioner was absent from work without authorized leave for more than three consecutive work days. Petitioner was aware that after an unauthorized absence from work for three consecutive work days Respondent would consider her to have abandoned her position and to have resigned from the career service employment system of the State of Florida. Petitioner was duly notified by Respondent that she had been deemed to have abandoned her position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period of April 8-14, 1988. DONE AND ENTERED this 28th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by Respondent. Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Adopted in finding 1. Addressed in finding 2. Addressed in finding 3. 4.-5. Addressed in findings 3-5. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kimberly L. Thomas 15025 Southwest 106th Avenue Miami, Florida 33176 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Adis Vila Secretary Department of Administation 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P.E. Secretary Department of Transportation (Attn: Eleanor F. Turner, M.S. 58) Haydon Burns Bldg. Tallahassee, Florida 32399-0450
The Issue The issue for determination is the amount Petitioner, Kimikia Molina, must pay to Respondent, Agency for Health Care Administration (the Agency or AHCA), out of her settlement proceeds as reimbursement for past Medicaid expenditures pursuant to section 409.910, Florida Statutes (2017).1/ More specifically, it must be determined whether Petitioner owes the default amount, $41,250, pursuant to section 409.910(11)(f); and, if not, what portion of her $110,000 settlement proceeds is due to AHCA.
Findings Of Fact Underlying Accident and Injuries Although there was no testimony regarding Petitioner’s accident or injuries, the following information can be gleaned from her medical records. On February 3, 2017, Petitioner, then age 22, was admitted to a medical facility after being involved in a motor vehicle accident. Petitioner had been a passenger in the car and was not wearing her seatbelt; the driver of the car was declared “signal 7” (or deceased) by the emergency responders at the scene of the accident. Petitioner was treated for neurological and orthopedic injuries, including surgical care to her left knee, right ankle and fibula. After numerous surgeries, on March 8, 2017, Petitioner was released from the medical facility to return home. At the time of her release, she still had splints on her left arm and right leg and dressings on her wounds, but was otherwise stable and alert. Upon discharge, Petitioner was placed on restrictions that included the following: No driving. No tub baths. No heavy lifting (over 10 pounds). No lifting, pulling, pushing, or straining. No weight bearing on the lower right side. These restrictions were to remain in effect until lifted by a doctor. Petitioner was also given instructions to follow up with physical and occupational therapy. The parties stipulated that Medicaid provided $55,042.63 toward Petitioner’s past medical expenses arising out of the February 2017 car accident. Additionally, Amerigroup Community Care has a lien against the settlement amount for $3,199.59. Petitioner submitted billing records establishing she incurred $3,865 for services provided by Rehab Consultants of Central Florida from March 16 to August 24, 2017. There was no evidence if this amount remains unpaid, what kinds of services were provided, or whether they were effective in Petitioner’s rehabilitation. There was no evidence as to whether Petitioner suffered from any emotional injuries. There was no evidence as to whether the accident had a permanent impact on her physical abilities. There was also no evidence as to whether Petitioner, who is relatively young, suffered from memory or other cognitive injuries that would prevent her from working in the future. There was no evidence how the accident affected Petitioner’s daily life functions, or her ability to maintain normal family, social, and work relationships. Petitioner’s Sources of Recovery The parties stipulated that in total, Petitioner received $110,000 in gross settlement proceeds. These proceeds came from two sources. The bulk of the proceeds were provided as a result of a unilateral “Bodily Injury Release” (Release) with Progressive American Insurance Company (Progressive), executed by Petitioner on March 22, 2018. The release indicates Petitioner would receive $100,000 in exchange for forfeiting her rights to pursue any claims arising out of the February 2017 accident against the estate of Loron Michael Turner (presumably the driver and/or owner of the vehicle). The remaining $10,000 was provided to Petitioner by State Farm Insurance under a policy held by Jesmarie and Mirian Perez. There was no evidence or testimony identifying the relationship of the Perezes to Petitioner or the driver of the vehicle. Allocation of Past Medical Expenditures The key factual issue in this case is how much of the $110,000 settlement funds are available to ACHA for payment of the Medicaid lien. One way to determine this amount is through a default formula set forth in section 409.910(11)(f). The parties stipulated that under this default formula, Petitioner is required to pay AHCA $41,250 for its Medicaid lien from the $110,000 total settlement proceeds.3/ Alternatively, Petitioner can show that a lesser amount than the default amount “should be allocated as reimbursement” for past medical expenses. See § 409.910(17)(b), Fla. Stat. Here, Petitioner urges the reduction of the Medicaid lien by the ratio of the actual settlement recovery to the “settlement value” amount. Using this formula, Petitioner claims AHCA can only recover 5.5 percent of the past medical expenses, or a total of $3,208.72 from the $110,000 settlement proceeds. Petitioner offered only the Release and the opinion of Frank Currie in support of using this formula. The Release, signed only by Petitioner (not Progressive or the Turner estate), states in relevant part: The parties to this release agree that the total value of Kimikia Molina’s claim is $2,000,000.00 that of that $58,340.35 is allocated for past medical bills, $41,659.70 is allocated to past lost wages, $720,000.00 is allocated to future loss of earning capacity, $590,000.00 is allocated to past pain and suffering and $590,000.00 is allocated to future pain and suffering. There was no evidence as to how the parties arrived at the monetary allocations in the Release. Petitioner provided no evidence supporting the Release’s allocations of past lost wages, future loss earnings, or noneconomic damages, such as pain and suffering. AHCA was not a party to the Release. There was no evidence as to how the $10,000 State Farm proceeds were to be allocated among the damage categories. Regarding Mr. Currie’s testimony, although he may have had litigation experience in personal injury lawsuits, his testimony did not establish why an alternative to the default formula should be used in Petitioner’s case. Mr. Currie testified Petitioner’s “settlement value” would have been $2 million, but it was not clear from his testimony that the “settlement value” is equivalent to the “total value of Kamikia Molina’s claim,” as referenced in the Release. See Smathers v. Ag. for Health Care Admin., Case No. 16-3590MTR, 2017 Fla. Div. Adm. Hear. LEXIS 540, at *7-8 (Fla. DOAH Sept. 13, 2017) (defining total provable damages as “all components of a plaintiff’s recoverable damages, such as medical expenses, lost wages, and noneconomic damages (e.g., pain and suffering)”). Moreover, according to Mr. Currie, the terms “settlement value” and “jury award” are different from each other and do not necessarily establish the total value of Petitioner’s claim or the amount of damages suffered by Petitioner. He explained, the factors in determining a “settlement value” include the best interest of the client, as well as the cost and risk of going to trial. In contrast, a “jury award” is the amount of damages that can be proven at trial, and can be influenced by a jury’s emotions. In this case, Mr. Currie admitted a hypothetical jury could have been influenced by a number of facts, including: the defendant was an estate (as opposed to an individual); Petitioner failed to use her seat belt; and alcohol contributed to the accident. Regardless of whether the $2 million figure cited by Mr. Currie was a “settlement value” or potential “jury award,” there was insufficient evidence establishing this figure because there was no evidence establishing the elements other than past medical expenses, such as an amount attributable to future medical expenses, lost wages, or pain and suffering. Thus, Mr. Currie’s opinion as to the medical expenses portion of the settlement is purely speculative and inconsistent with the Release. For example, Mr. Currie testified Petitioner previously made approximately $18,000 a year in salary.4/ But using this figure, Petitioner’s past lost earnings from February 2017 (the date of the accident) to March 2018 (the date of the settlement) would total approximately $20,000, not the $42,000 agreed to in the Release. Moreover, Mr. Currie’s opinion regarding the value of Petitioner’s case was not based on an established methodology or verifiable facts. Although Mr. Currie testified he reviewed the Release and Petitioner’s medical records in reaching the $2 million figure, there was no evidence at the hearing that he was sufficiently familiar with the facts of Petitioner’s current economic situation, her work history, or current employability. There was no evidence that he met with Petitioner or knew any information other than what was in Petitioner’s exhibits. Even Mr. Currie noted the cases he relied upon to establish his $2 million settlement valuation were procedurally and factually distinguishable from Petitioner’s situation. For example, some of the cases involved recovery after a jury award, others involved settlements; some involved alcohol, some did not; and unlike one of the other claimants, Petitioner was not known to have a pre-existing medical condition. The undersigned rejects Mr. Currie’s testimony because, although unrebutted, it was not based on a reliable methodology or sufficiently established facts. Although he relied on a number of verdict reports where the claimant had injuries similar to Petitioner’s, the underlying facts of Petitioner’s accident and medical situation were never sufficiently established at the hearing to meaningfully compare them to the facts of these cases; there was no evidence regarding Petitioner’s pre-accident health, her occupation, or her future ability to work. Neither the Release nor Mr. Currie’s testimony establish that the “actual settlement”-to-“settlement value” formula should be applied to Petitioner’s Medicaid lien instead of the default formula, nor did Petitioner establish the “settlement value” of her claim was $2 million. Petitioner has not proven by a preponderance of the evidence an alternative amount should be allocated for reimbursement for past medical expenses.
