The Issue May Petitioner be excluded from participating in the Florida Retirement System for the academic/fiscal year 1978-1979?
Findings Of Fact Petitioner was hired by the University of Florida in 1975 and has been employed with the University of Florida from 1976 to the present. Petitioner believed himself to be a member of the Florida Retirement System from 1976 to the present. There is no dispute that he is entitled to Florida Retirement System benefits from 1976 to 1978 and from 1979 to the present, during which years Petitioner was paid from State salaries allocations and worked in a regularly established State position. Petitioner was paid during the years 1976-1980 with a combination of funds from several sources: the State salary budget, the federal Veterans Administration (VA), and a University of Florida practice funding account. The allocation of these funds in the year 1978-1979 created the current problem. During the years 1976-1980, Petitioner performed work for both the University of Florida (State of Florida) and the VA. The Federal Retirement System was a defined plan from 1976 to 1980. Petitioner was an employee of the VA from 1976 to 1980. Petitioner was a participant in the Federal Retirement System as an employee of the VA from 1976 to 1980. Petitioner received retirement credits in the Federal Retirement System as an employee of the VA from 1976 to 1980. Petitioner's employment during the State fiscal year 1978-1979 included job duties and work performed as an employee of the University of Florida (State of Florida) and did not change from previous years. Petitioner's salary during the State fiscal year 1978- 1979 should have included an allocation from State funds. Due to an administrative error, Petitioner's entire salary was paid only with federal VA funds for the State fiscal year 1978-1979. State funds did not contribute to Petitioner's salary during the State fiscal year 1978-1979 solely due to the administrative error in the allocation of funds for Petitioner's salary, and even though the State presumably benefited from his labor. For the 1978-1979 fiscal year, Petitioner received retirement credits in the Federal Retirement System and none have been taken away. Contributions were made to the Federal Retirement System on Petitioner's behalf as an employee of the VA from 1976 to 1980, and Petitioner received retirement credits in the Federal Retirement System as a VA employee for that period. Petitioner earned $2,072.50, in federal retirement contributions in 1977; $2,256.52, in federal retirement contributions in 1978; and $1,931.56, in federal retirement contributions in 1979. When Petitioner discontinued work for the VA in 1980, his federal contributions were paid to him in a lump sum by the federal government. Petitioner placed this money in a private retirement account.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a final order which: Finds Petitioner was a federal employee during the 1978-1979 academic/fiscal year and at this time is not entitled to credit therefor in the Florida Retirement System; Provides for his participation in the Florida Retirement System for the 1978-1979 academic/fiscal year if he elects to participate pursuant to Rule 60S-2.007(3) Florida Administrative Code; and Establishes, pursuant to the formula provided in Rule 60S-3.008(3), Florida Administrative Code, the amount by which Petitioner may "buy back" that year of State service, if he elects to do so. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2000. COPIES FURNISHED: Esteban F. Scornik, Esquire McDonough & Wieland, P.A. Post Office Drawer 1991 Orlando, Florida 32802 Thomas E. Wright, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffman, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue posed for decision herein is whether or not the Respondent's (Division of Retirement) denial of Petitioner's claim to buy for retirement credit purposes, service while she was a student nurse during the period August, 1941 through December, 1944 was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found. The facts herein are virtually undisputed. From August, 1941, through December, 1944, Petitioner was a student nurse at Florida State Hospital (Hospital) at Chattahoochee, Florida. As a student nurse, Petitioner worked twelve (12) hours a day, six and one-half (6-1/2) days per week with one full day off each month. During the weekdays, Petitioner spent time in class, with the remainder of time spent in the wards at the Hospital. Petitioner averaged between thirty-nine (39) and forty-seven (47) hours of work per week at the Hospital. As a student nurse, Petitioner received a salary of $15.00 per month in addition to her room, board, uniform and various fringe benefits such as medical care and leave, much like other Hospital employees. Personnel problems were resolved through the personnel office as with other employees. Petitioner returned to work at the Hospital as a Registered Nurse in October, 1954, and has worked almost continually to the present time. During the period 1970 through early 1972, employees of Florida State Hospital were given the opportunity to participate in the State and County Officers and Employees Retirement System (SCOERS). Petitioner participated in that retirement system. During the period 1970 through 1972, various state retirement systems, including SCOERS, merged and formed the present Florida Retirement System (FRS). Petitioner was given the option to transfer to FRS and in fact exercised that option by designating that election on a ballot provided by the personnel office at Florida State Hospital (Petitioner's Exhibit 1). The effective date of that transfer to FRS is December 1, 1970. During the period 1970 through early 1972, Respondent permitted transferees of the SCOERS retirement system to transfer student nurse credits as part of the retirement credits in the same manner as "full-time work" for retirement credit purposes. In early 1972, Respondent changed its policy of allowing work as a student nurse to be credited toward retirement benefits. C. J. Brock has been the personnel manager at Florida State Hospital in Chattahoochee since approximately 1968. He was initially hired at the Hospital in 1955. As personnel manager, Mr. Brock is in charge of submitting employee claims for retirement credits for various types of employment service to FRS for retirement benefits.' Mr. Brock recalled Petitioner visiting his office pan various occasions between the periods 1963 through 1972 inquiring as to the manner for purchasing student time for retirement credit purposes. Mr. Brock advised Petitioner that he would research the wage statements to determine the exact amount of student time she had earned and would refer the matter to FRS for a decision, Mr. Brock is not authorized to act for or on behalf of Respondent. The interaction between the Hospital's personnel officer and Respondent is limited to the referral of claims and certification of wage and employment statements. As such, there is no agency relationship between the Hospital and Respondent. This referral was made by Mr. Brock on Petitioner's behalf on December 20, 1972, and the request was denied. Former student nurses who were members of SCOERS and transferred to FRS during the periods 1970 through early 1972 had been allowed to purchase retirement credit for their student nurse service. This practice ended in early 1972. In this regard, Mr. Brock has certified the payroll records for student nurses who purchased retirement credit for their student nurse time, Ruth Sampson, Assistant Bureau Chief for the Division of Retireent, has primarily been involved in reviewing retirement benefit calculations since approximately 1969. Mrs. Sampson is familiar with the merger of SCOERS and FRS. Mrs. Sampson affirmed that Respondent had a policy which allowed members of SCOERS who transferred to FRS to purchase retirement credit for student employment time and that such policy was followed from December 1, 1970 (the inception of FRS) to early 1972. This policy was also followed by the SCOERS administrator prior to December 1, 1970. This unwritten policy was changed, according to Mrs. Sampson for two primary reasons. First, Chapter 122, Florida Statutes, did not permit the purchase of student time. Secondly, with the combination of SCOERS and the Teacher Retirement System (TRS) into the combined FRS system, an inequity existed since TRS members, unlike student nurses, were not allowed to purchase student time. As stated, the letter from Mr. Brock certifying Petitioner's employment and wage statements for the period in question was dated December 20, 1972. Mrs. Sampson, by letter dated March 30, 1973, requested additional information respecting the salary paid Petitioner and the amount of time she actually spent working at the Hospital during the period in question. Mr. Brock replied by letter dated April 4, 1973, advising that during the period in question, Petitioner was a student nurse at the Hospital which paid a full-time salary of $15.00 per month. By letter dated May 14, 1973, Mrs. Sampson denied Petitioner's claim since Petitioner was primarily a student during the period that the prior service claim was submitted (Joint Exhibit No. 1). Mr. Robert L. Kennedy, Jr. , the former Director of FRS, appeared and related that the policy decision was made to discontinue the practice of allowing student time to be credited for retirement purposes since that practice was not contemplated by pertinent statutes. Former Director Kennedy disagreed with the Comptroller's policy decision which had previously allowed this practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's appeal of the State Retirement Director's decision denying her request to purchase prior service credit for her service as a student nurse be DENIED. Accordingly, it is RECOMMENDED that the decision of the State Retirement Director be SUSTAINED. RECOMMENDED this 13th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Edward S. Stafman, Esquire Diane K. Kiesling, Esquire PATTERSON and TRAYNHAN Division of Retirement 1215 Thomasville Road Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street Suite 207C - Box .81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue is whether Florida Administrative Code Rules 19B-14.001, 19B- 14.002, and 19B-14.003 (collectively the “Rules”), are each an invalid exercise of delegated legislative authority for the reasons alleged by Petitioner.
Findings Of Fact The Board is the State Agency which administers the Stanley G. Tate Florida Prepaid College Program (Florida Prepaid College Plan) set forth in section 1009.98, Florida Statutes, and the Florida College Savings Program (Florida 529 Plan) set forth in section 1009.981, collectively known as the Plans. Intuition is a Florida corporation authorized to do business in Florida. Intuition provides services to customers nationwide, including college savings and prepaid record keeping administration services. It is the largest third- party contractor in the country providing prepaid record keeping administrative services. The Board and Intuition have entered into a series of contracts over the past 25 years. The parties entered their last contract on July 1, 2019, which called for Intuition to provide customer services and records administration services to the Board. Witnesses for both parties testified about the possibility of an upcoming contract dispute involving $700,000.00. This issue prompted the rule challenge. The dispute resolution paragraph in the July 1, 2019, contract provides the following in pertinent part: 33. INTERPRETATION, VENUE AND DISPUTE RESOLUTION * * * B. The sole and exclusive manner of resolution of all claims, disputes or controversies related to or arising under or from this Contract shall be pursuant to Rules 19B-14.001, 19B-14.002, and 19B-14.003, Florida Administrative Code, as amended from time to time. 5. Rules 19B-14.001, 19B-14.002, and 19B-14.003, were effective as “New” on June 20, 1996. Rule 19B-14.001, the only rule that has been amended since 1996,4 currently provides: 19B-14.001 Scope These rules shall apply to the resolution of all claims, disputes or controversies related to or arising from contracts, including any extensions of contracts, entered by the Florida Prepaid College Board on or after the effective date of these rules. These rules shall constitute the sole procedure for the resolution of all claims under all such contracts. These rules do not apply to advance payment contracts for the prepayment of Registration Fees, Local Fees, the Tuition Differential Fee and dormitory fees. Rulemaking Authority 1009.971(1), (4), (6) FS. Law Implemented 1009.971[5] FS. History–New 6-20-96, Amended 10-18-10.[6] Rule 19B-14.001 identifies the “Rulemaking Authority” as section 1009.971(1), (4), and (6), and the “Law Implemented” as section 1009.971. 4 The rule was amended in the following ways: the name was changed from Florida Prepaid Postsecondary Education Expenses Board to Florida Prepaid College Board; the word “postsecondary” was deleted before “Registration Fees”; the word “registration” was deleted after the word “dormitory”; “Registration Fees” was capitalized; and the phrase “Local Fees, the Tuition Differential Fee” was added. 5 Although section 1009.971 is cited as the “Law Implemented,” these three statutory subsections: (2) Florida Prepaid College Board; Membership; (3) Florida Prepaid College Board; Elections; Meetings; and (5) Florida Prepaid College Board; Contractual Services, are not applicable to the challenged rules. 6 These history notes are not completely accurate. This rule was amended in 2010 and the citations are accurate for 2010. Florida Administrative Code Rule 1-1.012, Legal Citations and History Notes, provides the specific method to record legal citations and history notes. Section 1009.971(1), (4), and (6) state in pertinent part: FLORIDA PREPAID COLLEGE BOARD; CREATION.—The Florida Prepaid College Board is hereby created as a body corporate with all the powers of a body corporate for the purposes delineated in this section. The board shall administer the prepaid program and the savings program, and shall perform essential governmental functions as provided in ss. 1009.97-1009.988.[7] For the purposes of s. 6, Art. IV of the State Constitution, the board shall be assigned to and administratively housed within the State Board of Administration, but it shall independently exercise the powers and duties specified in ss. 1009.97- 1009.988. * * * (4) FLORIDA PREPAID COLLEGE BOARD; POWERS AND DUTIES.—The board shall have the powers and duties necessary or proper to carry out the provisions of ss. 1009.97-1009.988, including, but not limited to, the power and duty to: Appoint an executive director to serve as the chief administrative and operational officer of the board and to perform other duties assigned to him or her by the board. Adopt an official seal and rules. Sue and be sued. Make and execute contracts and other necessary instruments. Establish agreements or other transactions with federal, state, and local agencies, including state universities and Florida College System institutions. 7 In 1996, the statutes addressing the Plans ended at section 1009.984. Sections 1009.985 through 1009.988 were added in 2015; but those additions do not affect the issue herein. Further reference to these additional sections 1009.985 through 1009.988 will not be noted. Administer the trust fund in a manner that is sufficiently actuarially sound to defray the obligations of the prepaid program and the savings program, considering the separate purposes and objectives of each program. The board shall annually evaluate or cause to be evaluated the actuarial soundness of the prepaid fund. If the board perceives a need for additional assets in order to preserve actuarial soundness of the prepaid program, the board may adjust the terms of subsequent advance payment contracts to ensure such soundness. Invest funds not required for immediate disbursement. Appear in its own behalf before boards, commissions, or other governmental agencies. Hold, buy, and sell any instruments, obligations, securities, and property determined appropriate by the board. Require a reasonable length of state residence for qualified beneficiaries. Segregate contributions and payments to the trust fund into the appropriate fund. Procure and contract for goods and services, employ personnel, and engage the services of private consultants, actuaries, managers, legal counsel, and auditors in a manner determined to be necessary and appropriate by the board. Solicit and accept gifts, grants, loans, and other aids from any source or participate in any other way in any government program to carry out the purposes of ss. 1009.97-1009.988. Require and collect administrative fees and charges in connection with any transaction and impose reasonable penalties, including default, for delinquent payments or for entering into an advance payment contract or a participation agreement on a fraudulent basis. Procure insurance against any loss in connection with the property, assets, and activities of the trust fund or the board. Impose reasonable time limits on use of the benefits provided by the prepaid program or savings program. However, any such limitations shall be specified within the advance payment contract or the participation agreement, respectively. Delineate the terms and conditions under which payments may be withdrawn from the trust fund and impose reasonable fees and charges for such withdrawal. Such terms and conditions shall be specified within the advance payment contract or the participation agreement. Provide for the receipt of contributions in lump sums or installment payments. Require that purchasers of advance payment contracts or benefactors of participation agreements verify, under oath, any requests for contract conversions, substitutions, transfers, cancellations, refund requests, or contract changes of any nature. Verification shall be accomplished as authorized and provided for in s. 92.525(1)(a). Delegate responsibility for administration of one or both of the comprehensive investment plans required in s. 1009.973 to persons the board determines to be qualified. Such persons shall be compensated by the board. Endorse insurance coverage written exclusively for the purpose of protecting advance payment contracts, and participation agreements, and the purchasers, benefactors, and beneficiaries thereof, including group life policies and group disability policies, which are exempt from the provisions of part V of chapter 627. Form strategic alliances with public and private entities to provide benefits to the prepaid program, savings program, and participants of either or both programs. Solicit proposals and contract, pursuant to s. 287.057, for the marketing of the prepaid program or the savings program, or both together. Any materials produced for the purpose of marketing the prepaid program or the savings program shall be submitted to the board for review. No such materials shall be made available to the public before the materials are approved by the board. Any educational institution may distribute marketing materials produced for the prepaid program or the savings program; however, all such materials shall be approved by the board prior to distribution. Neither the state nor the board shall be liable for misrepresentation of the prepaid program or the savings program by a marketing agent. Establish other policies, procedures, and criteria to implement and administer the provisions of ss. 1009.97-1009.988. Adopt procedures to govern contract dispute proceedings between the board and its vendors. Amend board contracts to provide Florida ABLE, Inc., or the Florida ABLE program with contractual services. (aa) Adopt rules relating to the purchase and use of a prepaid college plan authorized under s. 1009.98 or a college savings plan authorized under s. 1009.981 for the Gardiner Scholarship Program pursuant to s. 1002.385, which may include, but need not be limited to: * * * (6) QUALIFIED TUITION PROGRAM STATUS.— Notwithstanding any other provision of ss. 1009.97- 1009.984, the board may adopt rules necessary for the prepaid program and the savings program each to retain its status as a “qualified tuition program” in order to maintain its tax-exempt status or other similar status of the program, purchasers, and qualified beneficiaries under the Internal Revenue Code. The board shall inform participants in the prepaid program and the savings program of changes to the tax or securities status of advance purchase contracts and participation agreements. Rule 19B-14.001 provides, in plain language, “[t]hese rules shall apply to the resolution of all claims, disputes or controversies related to or arising from contracts” and “shall constitute the sole procedure for the resolution of all claims under all such contracts.” The term “shall” is defined as “directives to express what is mandatory.” See Merriam-Webster On-line Dictionary (https://www.merriam-webster.com/dictionary/shall). Rule 19B-14.002 provides the following: 19B-14.002 Initiating Proceedings Related to Contracts with the Board. Any person or firm that has entered into a contract with the Board and has been adversely affected by a decision of the Board or its employees concerning such contract shall file a written petition to contest the decision with the Board within 21 days of the date of the receipt by such person or firm of the decision. The notice of the decision shall be provided in writing to the person or firm by the Executive Director. The date of receipt of the notice shall be either the date on which the notice is received by the person or firm if the notice is sent by registered mail or by other means of delivery which results in a receipt for delivery or the date of the decision plus five days if the notice is sent by regular mail. Any person or firm who receives such written notice of the decision and who fails to request a hearing within twenty-one days, shall have waived his right subsequently to request a hearing on such matters. The petition shall include the following: The name and business address of the person or firm which claims to be adversely affected by a decision of the Board or its employees; A concise statement of the ultimate facts upon which the claim arose; The date and subject of the contract under which the claim arose; A statement of all disputed issues of material fact upon which the claim is based or, if there are none, the petition shall so indicate; A concise statement which explains how the substantial interests of the person or firm are affected by the decision of the Board or the Board’s employees; A concise statement of the provisions of the contract together with any fed., state and local laws, ordinances or code requirements or customary practices and usages in the industry asserted to be applicable to the questions presented by the claim; The demand for relief sought by the claimant; The date of the occurrence of the event or events which gave rise to the claim and the date and manner of the Contractor’s compliance with the contract; and Any other material information the person or firm contends is material to its claim. The written petition shall be printed, typewritten or otherwise duplicated in legible form. The petition shall include copies of all documents which support the claim. Rulemaking Authority 1009.971(1), (4), (6) FS. Law Implemented 1009.971 FS. History–New 6-20- 96.[8] Rule 19B-14.002(1) clearly states that any person or firm (vendor) “shall file a written petition to contest the decision with the Board within 21 days of the date of the receipt by such person or firm of the decision.” The next sentence provides the method by which the specific date of receipt of the notice is determined, and when the clock starts ticking for the affected vendor to file a written petition. However, the rule fails to establish a time frame in which Respondent must issue the notice once the adverse decision is made. Further, there are no specific requirements for the content of the written notice, such as explaining the basis for the adverse decision. Although Mr. Thompson asserted that any affected vendor could file a written petition to contest any adverse decision by the Board or a Board employee, there is no such language in the rule, the “sole procedure” for a vendor to do so. Rule 19B-14.002(2) provides specific requirements for the written petition. Although a vendor may be able to include some of the required information for the written petition, the requirement that the vendor “shall” provide a “concise statement of the ultimate facts upon which the claim arose”; a “statement of all disputed issues of material fact upon which the claim is based ...”; and a “concise statement which explains how the substantial interest of the person or firm are affected by the decision of the Board or the Board’s employees” is impossible without specific information from Respondent as to the circumstances giving rise to the adverse decision. Mr. Thompson testified there was nothing to preclude an affected vendor from filing a public records request seeking the information desired. 8 These citations are not accurate. In 1996, Respondent listed sections 120.53(1) and 240.551(5), Florida. Statutes (1995), as the “Specific Authority” and section 240.551 as the “Law Implemented.” Rule 1-1.012, Legal Citations and History Notes, provides the specific method to record legal citations and history notes. However, this is contrary to the specific language of the rule, which neither requires the Board to explain the basis for their adverse decision nor provides any procedure for an adversely affected vendor to obtain the information necessary to file a written petition. There is no such language in the rule, the “sole procedure” for a vendor to do so. Rule 19B-14.003 provides the following: 19B-14.003 Resolution of Claims. Upon receipt of a formal written petition, the Executive Director shall attempt to resolve the matters that are the subject of the petition by mutual agreement within fifteen (15) days, excluding Saturdays, Sundays, and legal holidays. If the petition is not resolved by mutual agreement within fifteen (15) days, excluding Saturdays, Sundays and legal holidays, the Executive Director shall deliver, within forty-five (45) days from the date such petition was filed, to the person or firm that filed the petition a determination that indicates the Board’s written response to the claims or such person or firm. Unless the person or firm who filed the petition agrees to the determination of the Board and a consent order adopting the determination is entered within thirty (30) days from the receipt by the person or firm of the Board’s determination, the Executive Director, if no disputed issues of material fact are involved, shall designate a hearing officer who shall conduct an informal proceeding pursuant to Section 120.57(2), F.S., and applicable Board rules. The hearing officer designated by the Executive Director shall be either a person who is a member in good standing of the Florida Bar or a person knowledgeable by virtue of education or practical experience with the subject matter of similar contracts involving state agencies. If there is a disputed issue of material fact, the Executive Director shall refer the petition to the Division of Administrative Hearings of the Department of Management Services for proceedings under Section 120.57(1), F.S. Once the Executive Director has referred the dispute to a hearing officer pursuant to subsection (3) or (4), no further information or amendment of the claims shall be permitted. The statements, facts, documents and materials contained in the petition filed pursuant to Rule 19B-14.002, F.A.C., or which are submitted to and received by the Executive Director prior to the determination made pursuant to subsection 19B- 14.003(2), F.A.C., shall constitute the entire factual record submitted by a person or firm on which a claim against the Board may be sustained in any hearing under this rule. A person or firm making a claim against the Board shall not be allowed to submit to a hearing officer any statements, facts, documents or materials to support any claim against the Board which were not submitted to the Executive Director by the person or firm making the claim prior to the Executive Director’s determination pursuant to subsection 19B- 14.003(2), F.A.C. The Board may submit statements, facts, documents or materials in response to the factual record submitted by a person or firm making a claim against the Board or to sustain the decision of the Executive Director which was made pursuant to subsection 19B- 14.003(2), F.A.C. The filing of a petition by a person or firm pursuant to the provisions of this rule shall not affect the duty or obligation of the person or firm pursuant to the contract under which the claim or dispute arose. Any person or firm which files a petition pursuant to the provisions of this rule expressly agrees that it shall continue to proceed with all scheduled work as determined under any prior existing schedule pursuant to such contract unless otherwise agreed in writing between the person or firm and the Board. Rulemaking Authority 1009.971(1), (4), (6) FS. Law Implemented 1009.971 FS. History–New 6-20- 96.[9] Rule 19B-14.003(1) adds the word “formal” before “written petition” in the first sentence. The addition of this one word, without any definition and without any previous mention in rule 19B-14.001 (the “sole procedure”), imposes another requirement on vendors. Yet, there is no direction provided as to what that “formal written petition” includes. Respondent aptly states in its PFO: “A rule may be vague if it does not define important terms or standards.” Such is the case when a word is inserted and not defined. The remainder of rule 19B-14.003(1) places a duty on the Board’s Executive Director to attempt a resolution of the “formal written petition” within 15 business days of its receipt. Rule 19B-14.003(3) establishes that if no resolution is reached, the matter is referred to a hearing officer designated by the Board’s Executive Director for a hearing not involving disputed issues of fact (formerly and commonly referred to as an “informal hearing”). This informal hearing is to be conducted pursuant to section 120.57(2), Florida Statutes. Rule 19B-14.003(4) establishes that if no resolution is reached, the matter is referred to DOAH for a hearing involving disputed issues of fact (formerly and commonly referred to as a “formal hearing”), “for proceedings under section 120.57(1),F.S.” However, rule 19B-14.003(5) provides that regardless of which referral is made (either rule 19B-14.003(3) or (4)), “no further information or amendment of the claims shall be permitted.” This, in effect, precludes the discovery process at DOAH, and purports to cut off the authority of the presiding administrative law judge to grant leave to amend the petition. 9 See Footnote 8 above. Rule 19B-14.003(6) then proceeds to place further restrictions on how either hearing (informal or formal) must proceed. Subsection (6) restricts what “shall constitute the entire factual record” to the “statements, facts, documents and materials contained in the petition,” and that which is “submitted to and received by the Executive Director prior to the determination made pursuant to subsection Rule 19B-14.003(2), F.A.C.” This phrase is emphasized again with the following statement: “[A] person or firm making a claim against the Board shall not be allowed to submit to a hearing officer any statements, facts, documents or materials to support any claim against the Board which were not submitted ... prior to the Executive Director’s determination.” (Emphasis added). However, the Board, itself, “may submit statements, facts, documents or materials in response to the factual record submitted by person or firm making a claim against the Board, or to sustain the decision of the Executive Director which was made pursuant to subsection 19B-14.003(2), F.A.C.” Overall, these three rules set forth the procedures, in either informal or formal proceedings, to adjudicate contractual disputes. To prohibit the adversely affected party from fully prosecuting their claim, while allowing the Board to submit additional material to the trier of fact is not fair, and is contrary to the procedures in place at DOAH, contrary to several statutory provisions found in sections 120.569 and 120.57(1), and the discovery permitted at DOAH under the Florida Rules. of Civil. Procedures. The phrase “judge, jury, and executioner” may not be an incorrect analogy. Each rule cites as its “Rulemaking Authority” section 1009.97(1), (4), and (6). The Board is a creature of the Florida Statutes, created by section 1009.971(1), “with all the powers of a body corporate,” yet subsection (1) does not provide any rulemaking authority. Further, nowhere does this section grant the Board the ability to adopt rules to bind another state agency, that is governed by different statutes and rules. Section 1009.971(6) allows the Board to “adopt rules necessary for the prepaid program and the savings program... to maintain its tax-exempt status or other similar status of the program,” but does not specifically provide that the Board may impose its rules on another state agency. Section 1009.971(4)(b) grants the Board the “power and duty to… (a)dopt an official seal and rules.” This subsection does not expound on what the rules may impart, and thus does not grant the specific authority to do more. Section 1009.971(4)(y) grants the Board the “power and duty to… “(a)dopt procedures to govern contract dispute proceedings between the board and its vendors.” Although the Board has the ability to adopt rules, that authority does not grant the Board the ability to impose its “procedures” on another state agency that is governed by different statutes and rules. The term “procedures” is not defined in the statute. The common definition of procedures is “a particular way of accomplishing something.” See Merriam-Webster On-line Dictionary (https://www.merriam- webster.com/dictionary/procedure). In the legal arena, the term “procedure” is defined as “[T]hat which regulates the formal steps in an action or other judicial proceeding; a form, manner, and order of conducting suits or prosecutions.” Black’s Law Dictionary 1368 (4th ed. 1968). Another characterization of the term “procedure” is the structure for carrying on a lawsuit, including the pleadings, discovery process, evidence, and practice. The Division10 provides independent administrative law judges to conduct hearings pursuant to sections 120.569 and 120.57(1), and other laws. Section 120.569 sets forth the type of proceedings to be conducted: “Decisions which affect substantial interests.” The petition for a hearing is 10 The Division operates two distinct programs: the adjudication of administrative cases by administrative law judges (ALJs); and the adjudication of workers’ compensation claims by the judges of compensation claims. In this instance, the Division employs ALJs to conduct hearings in which the substantial interests of a person or entity are determined by an agency and involve a disputed issue of material fact. filed with the affected agency, which in turn has 15 days to notify DOAH, although the parties may attempt to resolve the dispute and a delay in sending the case to DOAH occurs. Once the case is at DOAH, an ALJ is assigned and the affected agency is mandated to “take no further action with respect to the proceeding ... except as a party litigant, as long as the division has jurisdiction over the proceeding under s. 120.57(1).” The “presiding officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas, and to effect discovery on the written request of any party by any means available to the courts ” See § 120.569(2)(f), Fla. Stat. Further, the presiding officer shall exclude irrelevant, immaterial, or unduly repetitious evidence, while allowing “all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs ” See § 120.569(2)(g), Fla. Stat. The Florida Administration Commission, composed of the Governor and Cabinet, adopted the hearing procedures that DOAH utilizes, commonly referred to as the Uniform Rules. See §§ 14.202 and 120.54(5), Fla. Stat. Chapter 28-106, Part I, sets forth the general provisions that apply to “all proceedings in which the substantial interest of a party are determined by the agency and shall be construed to secure the just, speedy, and inexpensive determination of every proceeding.” Part II sets forth those processes for hearings involving disputed issues of material fact, which are at specific odds with rule 19B-14.003.11 Section 120.54(5)(a)2. provides that an “agency may seek exceptions to the uniform rules of procedure by filing a petition with the Administration Commission.” The Board provided no evidence that it has sought and received an exception that would authorize the challenged rules. 11 Chapter 28-106, Part III, provides the uniform procedures for proceedings and hearings not involving disputed issues of material fact; Part IV provides the uniform procedures for mediations; Part V provides the process for emergency actions; and Part VI provides conflict direction. It is true that the Board can adopt procedures to govern contract dispute proceedings. However, the challenged rules, read separately and as a whole, are an invalid exercise of delegated legislative authority.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Thomas B. Webb, Jr. has been employed by the State of Florida, Department of Transportation for twenty-four years and is currently a member of the Florida Retirement System. While a student at the University of Florida, petitioner was employed at the Hume Library from September of 1948 through September of 1950. He worked continuously at the library during this period of time at the rate of approximately 20 to 25 hours per week. His nighttime working hours, from 7:00 p.m. to 10:00 p.m., were regular and his daytime hours varied depending upon his class schedule. Mr. Webb worked when school was not in session due to holidays or breaks between sessions. The Hume Library was open during these periods to provide service to the agricultural experiment stations around the State. He also worked for a few weeks after his graduation from the University of Florida. While working at the Hume Library, petitioner's duties included supervisory responsibilities; manning the circulation desk; checking out, receiving, shelving and indexing books and periodicals; assisting students with bibliographic research; servicing orders from the eight to ten agricultural experiment stations around the State; and closing up the library at night. During the time that he was employed at the library, approximately one-half of the employees were students and the other half were non-students. As of October 22, 1979, the duties which petitioner performed were being performed by both full time regular employees whose job classification title is Clerk III and by student assistants. Petitioner could not recall whether he received annual leave, sick leave, insurance or other employee benefits while working at the Hume Library. He was paid on an hourly basis. He replaced a prior employee when he started to work at the library, and someone replaced him when he left. The quarterly check tapes from the Office of the Comptroller, which the Division of Retirement uses on a daily basis in carrying out its functions, show that petitioner received salary payments for 19 months between the periods of October 1948 through September of 1950. The petitioner was unable to explain why payments for one month in 1948, four months in 1949 and one month in 1950 were not reflected on these documents. He is certain that he worked continuously during these years in order to support his family and that he gas paid for his work. He was not able to produce any documentary evidence to substantiate his employment or salary for these six months. Petitioner is seeking retirement service credit under the Florida Retirement System for his employment at the Hume Library between September of 1948 and September of 1950. Be is willing to make all payments necessary for him to claim This prior service.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: petitioner is entitled to prior service credit for purposes of retirement for his employment at the University of Florida Hume Library during the period of September 1948 through September 1950, inclusive; and the amount of contribution owed by petitioner be calculated by attributing the average amount of his nineteen reported payments to the six unreported payments. Respectfully submitted and entered this 16th day of May, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John Radey, Esquire Holland and Knight Post Office Drawer 810 Tallahassee, Florida 32302 Diane K. Keisling, Esquire Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 McMullian, III State Retirement Director Cedars Executive Center 2639 North Monroe Street Tallahassee Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Davis was general manager of the Florida Food Industry Credit Union from May 31, 1980 to May 30, 1985. He was a member of the Board of Directors of the Credit Union from 1980 to May 31, 1985. Davis resigned as General Manager and Director of the Credit Union effective May 31, 1985. In his letter of resignation, Davis acknowledged that he had falsely reported delinquent loans in reports to the Board of Directors for the previous eight years (including three years before he became General Manager). These reports understated the status and amount of delinquent loans. A review of loan records of the Credit Union by the Department of Banking and Finance in June, 1985, confirmed that delinquency reports to the Board of Directors and the Department had been understated over $300,000 for at least six months of 1984. Other source documents of actual loan delinquency and reports thereof could not be located by the Credit Union. The amount of loans past due two months and over were significantly understated as follows: DATE REPORTED AMOUNT REPORTED ACTUAL AMOUNT AMOUNT UNDERSTATED 12/84 $90,117.02 $415,054.48 $324,937.46 9/84 $107,792.25 $446,224.48 $348,400.50 6/30/84 $86,378.35 $454,206.15 $367,827.80 5/31/84 $85,003.54 $492,721.49 $407,717.95 4/30/84 $80,538.85 $477,767.97 $397,299.12 The June 30, 1984, Report of Condition of the Credit Union to the Department understated loans delinquent over sixty days by $367,827. Loans past due two months and over as of April 30, 1985, Report of Examination, totaled $520,600. Of this amount $348,700 were classified by the examiner as loss and $57,400 doubtful of collection. The earned net worth of the Credit Union, as of the date of the examination, was 3.8 percent of total assets. Earned net worth, adjusted for loans classified loss and 50.0 percent of loans classified doubtful of collection, was 1.4 percent of total assets. Essentially, the loans classified loss and doubtful of collection are those that were not reported by Davis. By his response to Requests for Admissions and by his letter of resignation, Davis has acknowledged that he knowingly reported the false delinquent loan information. The understatement of delinquent loans as it relates to an inflation of earned net worth could seriously prejudice the interests of the depositors, members or shareholders of the Credit Union in that inflation of earned net worth impacts on future lending policies and declaration of dividends. The Complaint seeking formal removal of Respondent as a director and officer of Florida Food Industry Credit Union was dated and served on August 29, 1985. At the time the Department of Banking and Finance issued and served the Complaint instituting these proceedings, Respondent was not an officer, director, committee member or employee of Florida Food Industry Credit Union or of any other financial institution in the State of Florida, having resigned on May 31, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order finding Respondent, Thomas E. Davis, guilty of violating Sections 655.037(1)(a) and (g), Florida Statutes, and prohibiting his participation in the affairs of any financial institution for a period of three years from May 31, 1985. DONE and ENTERED this 19th day of February, 1986, in Tallahassee, Florida. DIANE K. KIESLING 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 February, 1986. COPIES FURNISHED: Rodney C. Wade, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 Thomas E. Davis 1775 N. Andrews Avenue, 204W Fort Lauderdale, Florida 33311 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 Charles Stutts General Counsel Office of the Comptroller Plaza Level, The Capitol Tallahassee, Florida 32301 APPENDIX 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 of Petitioner Adopted in substance in Finding of Fact 3. Adopted in substance in Findings of Fact 2 and 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Rulings on Proposed Findings of Fact of Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 3.
The Issue Whether the Petitioner should be permitted to return his retirement contributions and be reinstated in the Florida Retirement System so that he can apply for disability benefits from the Florida Retirement System.
Findings Of Fact Petitioner is a thirty-four year old man, having left high school in the eleventh grade in order to get married, but later took the GED test to qualify as a high school graduate. Some years later he was informed by an Ophthalmologist that he had fallen into the bracket of being legally blind, a status which categorizes a person who has ten percent (10%) or less vision. Petitioner can and does read. He worked for a bakery which entailed work with machinery and required extensive reading, but was advised by the ophthalmologist to find a job where he would not be required to work with machinery and which did not require extensive reading. Petitioner began participating in the State and County Officers and Employees Retirement System on July 1, 1969, when he became a partner in a blind vending stand. He elected to become a member of the Florida Retirement System on December 1, 1970. Petitioner attended two (2) agency meetings at which retirement was discussed. He stated that he had changed from the State and County Officers and Employees Retirement System (Chapter 122, Florida Statutes) to the Florida Retirement System (Chapter 121, Florida Statutes), and was prompted to make the change because a senior partner in the business who had been there for many years said that it was a good idea for him and for the younger partner to sign into the new system. He stated that there probably was a discussion relative to the merits of the new retirement system but that he did not remember anything about it. He did, however, sign the card to change retirement systems. On June 1, 1971, Petitioner suffered some type of injury to his back which was subsequently diagnosed as a sprain. Petitioner received medical treatment and returned to work where he continued to work for the Bureau of Blind Services for approximately three years, resigning November 11, 1974. On March 5, 1975, Petitioner obtained a lump sum as a settlement for this disputed claim under the Florida Workmen's Compensation Act. Petitioner went on leave February 5, 1974, after supplying his supervisor, Mr. Eurgil G. Crawford, Administrative Vending Stand Section, Bureau of Blind Services, with a letter from the physician stating that Petitioner had a "nervous condition." In a letter of October 10, 1974, Mr. Crawford advised Petitioner to either return to work or to contact them if it was not possible. He also stated that the Petitioner would have sixty (60) days in which he might come back to work if he so desired, but that after that time his position would have to be filled permanently by another employee. Petitioner had had some employment problems with the other two (2) members of the three (3) man working team. The problems involved the work at the stand, cleanliness and the lifting necessary to operate the stand. He stated that he and the other two (2) members just could not get together as far as working as a team was concerned. After termination of employment, which was voluntary on the part of Petitioner, Petitioner contacted the supervisor, Mr. Crawford, and asked whether he was entitled to benefits he had contributed and was told that he was. Thereupon, Mr. Crawford sent him the necessary forms to apply for a refund. A refund was made after Petitioner had signed the proper forms and returned them to Mr. Crawford. Two (2) state warrants were issued to Petitioner, one on December 19, 1974, and a subsequent one to close out his account. Petitioner did not work after leaving the Blind Services and has not attempted to find work but receives disability benefits from Social Security based on a 15 percent permanent partial disability rating. He stated that "I have come up with a couple of not so advantageous jobs, you know, its a possibility of getting hurt and one thing and another, I haven't done anything." Subsequently, Petitioner requested information from the Respondent and, after receiving literature from them in 1976, tendered a sum of money equal to the refund he had received so he could apply for disability retirement benefits. The tender of the repayment of his contributions was denied. Petitioner applied for this administrative hearing. Petitioner contends: That he was unaware of a choice to apply for a disability rating when he signed the waiver to obtain a refund. That the supervisor owed Petitioner a special duty to inform him of the possibility of applying for disability benefits before requesting a return of his contributions. Respondent contends: That Petitioner was present at meetings at which the retirement system was discussed; he had information that caused him to transfer to the Florida Retirement System; that he knew of eligibility requirements under the Florida Retirement System and that requirements for eligibility were written in a booklet he had obtained from an employee of the retirement system and that he testified he knew of the five year eligibility requirement. That Petitioner voluntarily signed the waiver, that he had due notice and that the tender of the refund was properly denied.
Recommendation Deny the Petition. DONE and ORDERED this 18th day of April, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David A. Townsend, Esquire Albritton, Sessums & Di Dio 100 Madison Avenue, Suite 301 Tampa, Florida 33602 Stephen S. Mathues, Esquire Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center Tallahassee, Florida
The Issue Whether Respondent, First Commerce Credit Union (“First Commerce”), discriminated against Petitioner, Ian H. Williams, in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact Mr. Williams is a 29-year-old, African-American male who contends he was discriminated against by First Commerce when he applied for a position as a teller at that institution. First Commerce is a credit union doing business in Tallahassee, Florida. It has more than 15 employees. On December 2, 2016, Mr. Williams submitted an employment application with First Commerce. He was seeking a part-time position as a teller, identified internally by First Commerce by Job ID No. 10201603. In his application, Mr. Williams indicated that he had received a bachelor’s degree from the University of Colorado, but that he had no experience as a teller in a bank or credit union. He also answered a question in the application about his experience handling cash; he indicated he had “None.” However, in his resume attached to the application, Mr. Williams noted that he had “Adept skill in infrastructure of cash operations.” The resume did not provide any explanation as to what that skill may have entailed. Ms. Sorne reviewed about 170 applications for the part- time teller position. Her initial review was done to determine which applicants met the minimum requirements for the job, i.e., whether the applicant had teller experience and/or experience handling cash. Ms. Sorne did not know the age, race, or gender of the applicants at that point in time. From her review of Mr. Williams’ application, Ms. Sorne determined that Mr. Williams did not meet the minimum qualifications. That is, she did not interpret the statement concerning “infrastructure of cash operations” as meeting the “cash handling” requirement. Ms. Sorne sent letters by way of email to all applicants who did not meet the minimum requirements. Unfortunately, when she sent the email to Mr. Williams, she selected the wrong “form letter” from her computer drop-down selections. The letter in the email to Mr. Williams stated: “Thank you for taking time to interview for our Teller position at First Commerce Credit Union. It was a pleasure meeting you. Although your credentials are impressive, we have chosen to pursue other candidates that better align with the needs of our company.” In fact, Mr. Williams had not been afforded an interview and had never met Ms. Sorne. He apparently believed the emailed letter was therefore indicative of some discriminatory animus by First Commerce. How he made the connection between the erroneously-selected letter and discrimination was not made clear from the evidence presented at final hearing. Nonetheless, he replied to Ms. Sorne’s email, stating, “I did not interview with you people.” Upon receiving Mr. Williams’ email response, Ms. Sorne called him to explain her mistake in sending the erroneous “form letter” concerning rejection of his application. During the telephone conversation, Mr. Williams simply advised Ms. Sorne that he would be filing a complaint with the FCHR and that he would see her in court within the year. He did not attempt to correct his erroneous application, i.e., he offered no other information concerning his experience handling cash. True to his word, Mr. Williams filed a complaint with FCHR. First Commerce, meanwhile, hired two people to fill the part-time teller position it had advertised. Both of the hired individuals were African-American; one was male and the other was female. At final hearing, Mr. Williams pointed out that the two applicants hired for the teller position may have had less education or experience than he had. He noted that he was a graduate of the University of Colorado (although his application says that he attended there for less than one year), while the two hired applicants attended Florida A & M University. He did not explain why that fact may have contributed to the discrimination against him by First Commerce. However, both of the other applicants had indicated on their application forms that they had teller experience and cash-handling experience. That is, each of them met the minimum requirements for the position. That was enough to get them a job interview. Inasmuch as Mr. Williams’ application said he did not have that experience, he was not chosen for an interview. Mr. Williams presented no evidence whatsoever that he was treated differently from any other applicant based on his race (black, African-American) or his gender (male). At final hearing he raised the issue of discrimination based on age, apparently because one of the competing applicants erroneously indicated on her application that she was “under the age of 18.” That disclosure was later determined to have been a mistake. Age was not a consideration for the part-time teller position anyway. Mr. Williams failed to establish even a prima facie case of discrimination. It is, in fact, difficult to make any connection between the way he was treated and discriminatory practices in general. Mr. Williams appears to have been treated equally with all applicants; there is no evidence that he was discriminated against for any reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Complaint filed by Ian H. Williams. DONE AND ENTERED this 29th day of August, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Ian H. Williams Apartment 311C 2315 Jackson Bluff Road Tallahassee, Florida 32304 Jason Curtis Taylor, Esquire McConnaughhay, Duffy, Coonrod, Pope and Weaver, P.A. Suite 200 1709 Hermitage Boulevard Tallahassee, Florida 32308 (eServed) Donna Carson Utecht First Commerce Credit Union Post Office Box 6416 Tallahassee, Florida 32314 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether or not Petitioner is entitled to a refund of contributions made to the Florida State Officers and Employees Retirement System from October 1952 through January 1956.
Findings Of Fact Petitioner was employed by the Florida A & M Hospital, Tallahassee, Florida, from October 1952 through January 1956. During the course of this employment, contributions to SOERS were withheld from her monthly pay warrant. On February 23, 1956, Division records reflect that she had contributed a total of $455.04 into SOERS. During January 1956 she terminated her employment. On or about February 23, 1956, the sum of $455.04 was debited from Petitioner's account. This action was taken because the Florida law in effect in 1956, mandated the return of contributions made to SOERS to an employee upon termination of employment. However, evidence which might have demonstrated that a warrant was issued naming Petitioner as payee, is unavailable because cancelled warrants are only maintained on file by the Florida Comptroller for 20 years. Under applicable statutes and, pursuant to Division practice at times pertinent, if a warrant had been issued, but never negotiated, the amount would have been credited back to the trust fund under Petitioner's account. Petitioner's account at the Division does not reflect such a credit. If a warrant had been issued and negotiated pursuant to a forged endorsement, and such forgery was not detected, no entries subsequent to issuance would have been made to Petitioner's account. Petitioner, in January 1956, departed Tallahassee for Nuremburg, Germany, after marrying. She did not leave a forwarding address with her employer or with Respondent. Petitioner ultimately became a resident of Coram, New York, where she currently resides. Petitioner testified that she never received a warrant for $455.04 from the State of Florida. Her testimony was unrebutted and credible and is taken as a fact. Petitioner first became aware she was entitled to a payment of $455.04 from the Division when, in the year 2000, she made inquiries regarding her eligibility for social security. Petitioner has determined that the amount in question is not being held in the Unclaimed Property Bureau of the Florida Comptroller.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Division cause to be issued to Petitioner a warrant in the amount of $455.04. DONE AND ENTERED this 23rd day of February, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 23rd day of February, 2001. COPIES FURNISHED: Lettie L. Echols No. 2 Gulf Lane Coram, New York 11727 Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issue for consideration in this case is whether Respondent's license as a professional engineer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Florida Engineers Management Corporation, for the Board of Professional Engineers, was the state agency responsible for the licensing of professional engineers and the regulation of the engineering profession in Florida. Respondent was licensed as a professional engineer in Florida under license number PE 0013355 issued on September 9, 1968, in the field of mechanical engineering. By Final Order dated July 20, 1988, the Board of Professional Engineers accepted a signed stipulation entered into between Respondent and counsel for the Department of Professional Regulation in settlement of a disciplinary action against Respondent, which stipulation called for Respondent to, inter alia, pay an administrative fine of $5,000 in $1,000 increments to be paid every six months. Subsequent to the entry of that Final Order, the Board furnished Respondent with five fine payment cards, one for each installment of the fine due, which reflected the amount of that installment and the date due. Each installment was for $1,000, and the installments, as reflected on the payment cards, were due of January 20, 1989, July 20, 1989, January 20, 1990, July 20, 1990, and January 20, 1991. Respondent did not pay the installment due on January 20, 1989, and on March 31, 1989, the Board sent him a notice reminding him that his installment due on January 1 had not been submitted. The installment was received by the Board on May 19, 1989, and it sent Respondent a receipt on May 31, 1989, reflecting that payment in the amount of $1,000 had been received. On September 25, 1990, because no further installment payments had been made by Respondent, the Board issued an Administrative Complaint alleging his failure to comply with the terms of the prior Final Order, and after informal hearing, on January 3, 1991, entered a second Final Order in which Respondent was reprimanded and ordered to make a $1,000 installment payment within three weeks from the date of the order and every six months thereafter until the full administrative fine was paid. However, before entry of the second final order, on December 27, 1990, the Board received a payment of $1,000 from the Respondent. This brought the total paid to $2,000. On July 17, 1991, Respondent purchased a money order in the amount of $1,000 from the NCNB's Largo, Florida branch, and forwarded it to the Board. This payment, the third, was received by the Board on July 23, 1991, and brought the total amount paid to $3,000. Respondent claims that at the time the third payment was made, and for a period thereafter, he was having a cash flow problem and made all his payments in cash or by money order, rather than by business or personal check. He also claims that after the July 1991 payment was made, when the remaining two installments were due, he paid them by bank money order but he was unable to find the customer copy of these checks or recall which bank he bought them from. Records of the Board fail to reveal either of the last two installments were paid when due. Therefore, because of the apparent failure to comply fully with the terms of the Final Order as they relate to the fine, in August 1998 representatives of the Board contacted Respondent by letter to advise him that the final two installments had not been paid and of the Board's intention to take further action. By letter dated September 2, 1998, Respondent's counsel forwarded to the Board a check from Respondent in the amount of $2,000 in full settlement of the amount of fine due. In the letter, counsel noted that the last two installments required were not paid "due to oversight on behalf of my client or if paid cannot be proven." Though they are not included in the current Administrative Complaint, counsel also referred in his letter to other requirements of the prior Board order which "might still be outstanding." However, because they were not alleged, and because no mention was made of them at hearing, they are not considered in the resolution of this matter. Respondent maintained at hearing that he sincerely believed he had made all payments due but could not find any evidence thereof in his records. He asserts that aside from the August 13, 1998, letter, he did not receive any notification from the Board, from 1991 on, that he had failed to make his payments. However, as was mentioned previously, he also could not recall from which banks he purchased the two missing money orders. Considering the relative probabilities of the evidence, it is found that Respondent did not make the last two payments when due, and in addition, failed to make the first payment in a timely manner. Respondent contends that he has engineered several large projects in his engineering career, such as the prototypes for Eckerd's pharmacies and Checkers restaurants, without any problems. He also claims he rarely gets any adverse feedback regarding his work or change requests from pertinent building departments. Mr. Spencer, an architect for whom Respondent frequently does work, contends Respondent is the best mechanical engineer with whom he has worked and gets the most work from him of all engineers he retains. He has found Respondent's work to be good and the prototype projects Respondent has worked on have been used repeatedly without problem. Spencer agrees that building departments rarely comment adversely on Respondent's work. Respondent is 77 years old and wants to continue working. He claims he has never been charged or accused of negligence or misconduct other than in the 1988 case which resulted in the original administrative fine. However, records of the Board indicated two complaints were filed against him in 1984, one in 1985, one in 1986, and one in 1989. The records do not reflect the substance of the complaints or the resolution thereof.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Engineers Management Corporation enter a final order in this case suspending Respondent's license as a professional engineer in the discipline of mechanical engineering for a period of six months. DONE AND ENTERED this 28th day of October, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1999. COPIES FURNISHED: Natalie A. Lowe, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 John E. Sullivan, Esquire 349 Pauls Drive Brandon, Florida 33511 Maxwell G. Battle, Jr., Esquire Post Office Box 1309 Kalispell, Montana 59903 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Barton, Executive Director Board of Professional Engineers Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301
The Issue The issue in the case is whether Eldon Sadler, Taylor County Property Appraiser, (Petitioner) is required to enroll Connie LaValle in the Florida Retirement System (FRS) for all of her employment with the Taylor County Property Appraiser's Office from June 1993 until the present.
Findings Of Fact Connie LaValle has been employed in Petitioner's office as a permanent part-time employee since September 16, 1992, as a "mapper." Pursuant to a contract, she has also been performing additional mapping services for Petitioner since June 1993, for which no contributions have been made to FRS. Contributions have been made for LaValle's other part-time employment in the office. Prior to June 2, 1993, LaValle and Petitioner spoke regarding LaValle's performing services related to implementing a Geographic Information System (GIS) in the event that Taylor County decided to obtain such a system. As a consequence, LaValle sought and obtained placement of her name on the Department of Revenue's approved bidder's list. Placement on the list is a prerequisite to entering into a contract with Petitioner's office. On June 2, 1993, Petitioner's office and LaValle entered into a contract whereby LaValle would perform "mapping services to aid in assessment." While not detailed as such in the written contract, these services were related to the GIS mapping function and were in addition to LaValle's existing part-time employment in the office. The contract was renewed on May 30, 1996. LaValle was not given any training for the tasks for which she contracted, she was not required to follow daily or weekly routines or schedules established in Petitioner's office, she was given no instructions in the way that work was to be performed, and Petitioner could not change methods used by LaValle or otherwise direct her as to how to do the work. LaValle did the contractual work at her convenience and was not required to perform that work in the office or pursuant to any schedule. She was paid for the work product as she finished it. Payment under one contract resulted in a $60 per map payment from Petitioner when the product was completed. Under the renegotiated contract, she received $3 per parcel on computerized maps. She was not guaranteed a minimum payment, nor did she receive pension benefits, bonuses, paid vacation time, or sick pay. Earnings pursuant to the contract were reported by LaValle as self-employment income on form 1099. The contract provided that neither Petitioner nor LaValle could terminate the agreement absent 30 days notice to the other party. In addition to furnishing her own work location, work equipment, tables, engineering scales, computer and other necessary equipment, LaValle also paid all related expenses. LaValle performed all contract work in her home. Although not prohibited by terms of the contract, she did not work for other entities. Respondent, pursuant to an audit of retirement records of Petitioner's office, determined that LaValle was performing additional duties for Petitioner's office and receiving salary for which no retirement contributions were paid. Petitioner was notified by Respondent by letter dated August 10, 1999, that LaValle previously filling a part-time regularly established position, was now performing additional duties for the same employer and was now considered to be filling a regularly established position for her total employment. Petitioner was informed that salary earned by LaValle for the additional duties should have been reported and contributions paid to Respondent for retirement benefits. Petitioner maintains that LaValle is an independent contractor with regard to additional duties and no retirement contributions are due and payable. Respondent has determined LaValle is not an independent contractor. Respondent asserts that the additional duties are an extension of her normal duties in her part-time position and contributions for retirement benefits are due with regard to compensation paid to her by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State of Florida, Division of Retirement, enter a final order finding that payments made to Connie LaValle for additional duties from Petitioner's office constitute salary for additional employment requiring payment of retirement contributions by Petitioner. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 30th day of October, 2000. COPIES FURNISHED: Levy E. Levy, Esquire 1828 Riggins Road Tallahassee, Florida 32308 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
