Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent repay Petitioner in accordance with the Final Determination issued on January 26, 1983. DONE and ORDERED this 8th day of June, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER 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 June, 1983. COPIES FURNISHED: Chad J. Motes, Esquire Suite 131 - Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Mary M. McDaniel, Esquire 101 East Maud Street Tavares, Florida 32778 Honorable Wallace E. Orr Secretary, Department of Labor and Employment Security Suite 206 Berkley Building 2590 Executive Center Circle, East Tallahassee, Florida 32301
Findings Of Fact The facts here involved are largely undisputed. Callie Grier was employed by the Polk County Hospital as a nurses aide from 1966 until July of 1972. She did not have 10 years employment for retirement purposes at the time of her death in 1976, hence her retirement had not vested. In 1966, and again in 1969, Callie Grier designated her husband, Timothy Grier, as beneficiary of her retirement benefits. At the beginning of her employment Callie Grier was covered under the City and County employees retirement system. In 1970 retirement provisions were modified to establish a Florida Retirement System to cover all city, county and state employees. Those employees covered under a previous retirement system were given the option of transferring to the new system or staying with their existing retirement system. In 1970 Mrs. Grier elected to transfer to the Florida Retirement System (Exhibit 7). On 18 September 1970 Callie Grier obtained a final judgment of divorce from Timothy Grier, Jr., which judgment provided for the payment of child support. (Exhibit 1) On 23 March 1971 an Order of Contempt was issued adjudging Timothy Grier, Jr. in contempt of court and sentencing him to IS days in jail for failure to pay child support. (Exhibit 2) . On 1 November 1971 Timothy Grier was adjudged to be in contempt of court and sentenced to jail for 90 days for being in arrears on child support payments (Exhibit 3) . Also on 1 November 1971 an order relinquishing jurisdiction over Timothy Grier to the Criminal Court was issued (Exhibit 4). On or about this time Timothy Grier departed Bartow and his present whereabouts is unknown to Petitioner. Callie Grier married Aaron Spencer after her divorce from Grier and was so married at the time of her death. Petitioner has custody of the minor child of Callie Grier and has had custody since the death of Callie Grier. On 10 February 1971 Callie Grier executed a change of beneficiary form for her insurance with The Travelers Insurance Company designating Willie Mae Barnes as beneficiary (Exhibit 6) At this time Callie Grier was suffering from a kidney disorder which later required the use of dialysis. Following a kidney transplant in 1976 Callie Grier died in a Gainesville hospital. In 1970 many of the employees in Polk County were not aware of all of their retirement benefits and little effort was expended by local employers to insure the employees had all information. The State Division of Retirement has held numerous seminars and workshops throughout Florida, including Polk County, for both supervisors and employees from time to time since the Division of Retirement was formed. In addition, at least annually brochures were prepared in sufficient numbers to provide one for each employee and sent to the various employers. These brochures explained the various retirement benefits to which employees are entitled. In these brochures. as well as he seminars and workshops, the requirement of having currently designated beneficiaries was stressed.
The Issue Whether respondent should be required to repay $16,808 in CETA funds allegedly expended for unallowable purposes.
Findings Of Fact From October 1, 1978, to September 30, 1980, the audit period, the County implemented CETA grants of approximately $5,421,000. The Department's Division of Employment and Training, which serves as the state's prime sponsor under CETA, audited the County's records and disallowed certain expenditures. Those which remain in dispute are addressed below. (Testimony of Jessup, Flowers.) Wage and Fringe Benefits Paid to Kathryn Mabery. (CETA Subgrant Nos. 79MP-26-06-45-01 and 80ET-86-45-01-016, Title II-D) The Department contends that wage and fringe benefits, totaling $9,258, paid to participant Kathryn Mabery should be disallowed because she was not unemployed 15 out of the 20 weeks prior to her application, the Title II-D eligibility criteria of 20 CFR 675.5-5. On her August 13, 1979, application, Ms. Mabery indicated that she was last employed by Maryland Fried Chicken on May 13, 1979 2/ On August 15, 1979, the County correctly found her eligible for Title VI funding, which requires that an applicant be unemployed for at least ten out of 12 weeks prior to application. The County enrolled her as a clerical aide, with a starting date of August 20, 1979. But this was a CETA Title II-D position, not a Title VI position. She was thus paid, out of Title II-D funds, wages and fringe benefits totaling $9,258. In effect, on August 20, 1979, the County transferred Kathryn Mabery from the Title VI CETA program, for which she was eligible, to a Title II program, a program for which she was not eligible on August 15, 1979. (Testimony of Jessup, Flowers; P-1.) Wages and Fringe Benefits Paid to Edward Jackson. (CETA Subgrant No. 79MP-3C-06-45-01, Title IV) The Department contends that wages ($789) and fringe benefits ($44) totaling $833 paid to participant Edward Jackson should be disallowed because he was 13 years old at the time of enrollment. Participants in CETA Title IV programs must be between 14 and 21 years old at the time of enrollment. 20 CFR 676.6-10(b). The County, however, did not know he was 13--and thereby ineligible-- because both Edward Jackson and his mother signed eligibility applications which incorrectly stated he was 14 years old. He was subsequently enrolled in the CETA program, employed in the Mount Dora public works department, and paid a total of $833. The Department replies that Edward Jackson subsequently submitted to the County a student work permit (required for minors 12 through 15 years old) indicating his true age to be 13, and that the County failed to detect the discrepancy. Work permits, however, are a state requirement; they are not used to determine CETA eligibility. They were, in fact, issued after eligibility certification. When the County received them, they were routinely filed by clerical workers. The Department showed no duty on the part of the County to examine post-eligibility certification documents to confirm the initial eligibility determination. If the County had been aware of Jackson's true age, it would have immediately terminated him from the CETA program. His enrollment was not the result of a staff error or a failure to follow CETA eligibility procedures. It was attributable to falsification of eligibility certification documents by Edward Jackson and his mother. (Testimony of Jessup, Flowers; R-1.) Wages and Fringe Benefits Paid to Iola Bing. (CETA Subgrant Nos. 80ET-86-06-45-01-016 and 79MP-2U-06-45-01, Title II-D) The Department contends that wages ($5,196) and fringe benefits ($1,485) totaling $6,681 paid to participant Iola Bing should be disallowed because she did not meet the "Economically Disadvantaged" eligibility requirement of 20 CFR 675.5. Under that requirement, an applicant who receives "public assistance" is eligible. The County's intake staff determined that, since Ms. Bing was receiving Food Stamps, she satisfied the "public assistance" requirement. Federal and state CETA officials subsequently determined that Food Stamps were not "public assistance" within the meaning of CETA regulations. The Department seeks to retroactively apply that interpretation here. But the Department has not shown why Food Stamps should not, and cannot reasonably be considered "public assistance within the meaning of 20 CFR 675.5-5 and 676. No federal or state regulation has been cited which explicitly, or implicitly, disqualifies Food Stamps as public assistance." Neither has the Department shown that the County knew, or should have know, that Food Stamps were not "public assistance." Further, it appears that state officials may have advised County CETA workers that Food Stamps were a form of "public assistance." The Department has not shown, or even asserted, that any of the County's alleged errors were fraudulent; that the County, once it became aware of an ineligible participant or questioned activity, failed to take immediate corrective action; or that the County's eligibility determination procedures were inadequate or CETA management systems were not followed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the County be required to repay the Department $9,258. DONE and RECOMMENDED this 23rd day of December, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1982.
Findings Of Fact The PBA originally filed a petition with PERC requesting recognition as the exclusive representative for collective bargaining purposes of the same, or a similar unit of employees as are involved in this case during the spring of 1975. The Alachua County Sheriff's Department was named as the public employer in that petition. The petition was given PERC No. 8H-RA-756-2024 and was dismissed by PERC. On August 5, 1975, the PBA filed the instant petition. (See: Hearing Officer's Exhibit 1). On February 16, 1976, the PBA, through its attorney prepared a PERC withdrawal request, asking that withdrawal of the instant petition be approved by PERC. The request was forwarded to PERC on February 16, and was accompanied by a recognition certification petition reflecting that the Sheriff's Department had recognized the PBA as the exclusive bargaining agent for units of employees substantially similar to those involved in the instant petition. (See: Hearing's Officer's Exhibit 5). The final hearing was scheduled to be conducted on February 19, 1976. (Hearing Officer's Exhibit 2). The PBA is an employee organization within the meaning of Florida Statutes 447.002(10). (Stipulation, Transcript Page 18, 19). 1/ The PBA has requested recognition as the bargaining agent for the employees set out in the petition in this case. (Stipulation, TR 19, 20). There is no contractural bar to holding an election in this case. (Stipulation, TR 20). PERC has previously determined that the PBA is a duly registered employee organization. (Hearing Officer's Exhibit 3). This finding was made a matter of stipulation at the hearing. (TR 20, 21). PERC has previously determined that the PBA has filed the requesting showing of interest with its petition. (Hearing Officer's Exhibit 4). This finding was made a matter of stipulation at the hearing. (TR 21, 22). Alachua County is a political subdivision of the State of Florida which is governed by a Board of County Commissioners. Florida Constitution, Article VIII, Section 1(a), (d). The Board of County Commissioners have the powers and exercise the duties enumerated in Florida Statute Chapter 125, Part I. Alachua County has adopted by ordinance the County Administration Law of 1974 (Florida Statutes Chapter 125.70 et seq.) The Sheriff of Alachua County is a constitutional officer. Florida Constitution, Article VIII, Section 1(d). Except as modified by special act, the sheriff has the powers and exercises the duties enumerated in Florida Statutes, Chapter 30. The relationship between the Sheriff and the County is further defined by Laws of Florida, Chapter 71-447 (1971). This act is a reenactment of Laws of Florida, Chapter 65-1192 (1965). This Special Act changes somewhat the relationship between the County and the Sheriff as it would exist solely under Florida Statutes, Chapter 30 in regard to fiscal matters. The adoption of the budget under the special Act is the same or substantially similar to the mechanism set out in Chapter 30. In Alachua County, however, appropriations are not given the Sheriff in lump sums. Custody and administration of funds is in the hands of the County. In order to make expenditures beyond $25, the Sheriff must obtain the approval of the Board of County Commissioners. The Sheriff submits requisitions to the County, and these are reduced to purchase orders and presented to the Board of County Commissioners. A copy of such a purchase order was received in evidence as Alachua County Exhibit 10. If the Board of County Commissioners approves the purchase order, then the sheriff can make the expenditure. If the Board does not approve the purchase order, then the Sheriff cannot make the expenditure unless he successfully appeals the decision in accordance with the provisions of the Special Act. A position classification and pay plan has been adopted by the Board of County Commissioners of Alachua County. The pay plan has the effect of setting the salaries for all persons employed by Alachua County, including employees of the Sheriff's Department. The salaries set out in the pay plan cannot be changed except by action of the Board of County Commissioners. Modifications to the plan could be adopted by the Board at any time, and proposals for changes could be made by the Sheriff. If the Board refused a changed proposed by the Sheriff, then the Sheriff would have the appeal mechanisms set out in Florida Statutes, Chapter 30, and Laws of Florida, Chapter 71-447. The Sheriff is solely responsible for the hiring, firing, suspension, discipline, and promotion of employees in the Sheriff's Department. The Sheriff is responsible for setting working hours and scheduling vacation time, holidays, and allowing compensatory leave. The Sheriff is totally responsible for the grievance procedure, and manages all training programs and internal investigations. The Communications Department in Alachua County is headed by the Sheriff. Not all of the functions of the Communications Department are directly related to law enforcement. The Communications Department handles communications functions relating to ambulance service and the County fire control program. Approximately 87 percent of the work of the Communications Department is law enforcement related. The Sheriff exercises the same control over employees of the Communications Department as he exercises over employees of the Sheriff's Department. The budgetary mechanism for the Communications Department is likewise the same as the budgetary mechanism for the Sheriff's Department. The PBA, Alachua County, and the Sheriff have engaged in the collective bargaining process since 1973. Collective bargaining agreements were reached among the parties for the 1973-74 and 1974-75 fiscal years. These agreements were received in evidence at the hearing as Alachua County Exhibits 1 and 2. Each of the agreements is signed by representatives of the County and the Sheriff. The County and the Sheriff participated in the negotiations as co- employers. The Sheriff signed the agreements exclusively as to some of the provisions, together with the County as to other provisions, and the County signed exclusively as to other provisions. The breakdown is set out on the signature pages of each agreement. (See: Alachua County Exhibit 1, p. 8; Alachua County Exhibit 2, p. 10). Generally the provisions signed by the Sheriff relate to working conditions other than those directly requiring the expenditure of money. The provisions signed by the County involve the expenditure of funds. Negotiations were initiated among the parties to reach a similar agreement for the 1975-76 fiscal year. In the early stage of these negotiations the Sheriff indicated that he considered himself the sole employer, but that he would negotiate as previously so as not to unduly delay the negotiations. No contract has been signed by all three parties. The PBA and the Sheriff have entered into two agreements. These agreements were received in evidence at the hearing as Sheriff's Exhibits 1 and 2. The agreements were apparently signed a few days prior to the hearing. The agreements cover both fiscal and non-fiscal considerations. ENTERED this 23rd day of April, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether petitioners Hampton, Busbee, Davis and Robertson, as elected board members of the Escambia County Utilities Authority, are eligible for membership in the Elected State Officers' Class of the Florida Retirement System as "county elected officers" within the meaning of Section 121.052(1)(g), Florida Statutes (1985)?
Findings Of Fact By letter dated April 17, 1985, A. J. McMullian III, State Retirement Director, advised C. H. Wigley, Jr., Acting Executive Director of the Escambia County Utilities Authority (ECUA) that the individual petitioners were eligible for inclusion in the Regular Class, but not the Elected State; Officers' Class, of the Florida Retirement System. Respondent's Exhibit No. 8. "The major difference between the Elected State Officers' Class and the Regular Class is the ESOC members . receive a higher retirement benefit for the same number of years of service." (T. 38) To finance higher benefits the public employer pays a higher amount, set on "an actuarily sound basis." Deposition of Andrew J. McMullian, III, page 19. ECUA CREATED. A few years back, "Escambia County and the City of Pensaco1a, felt it was time . . . to combine . . . utilities' systems into one agency. The City had just completed construction of a twenty-million-gallon-a-day treatment plant and had excess capacity. [Unincorporated] Escambia County had the .,. customers but not the facilities ." (T. 74) "Escambia County was faced with extending or having to go to the bond market to borrow significant money to built] treatment facilities . . . [but] it was more practical that the City and County get together." (T. 88) By special act the legislature created the ECUA to purchase and operate the water and sewer systems that had belonged to both City and County, and to exercise "all powers with respect to water and sewer, and such other additional utilities as may be hereafter designated . . . which are . . . could be, or could have been but for this act, exercised by the City of Pensacola or Escambia County, Florida." Ch. 81-376, Section 3, Laws of Florida, (1981). The ECUA came into existence on October 1, 1981, (T. 90) and now provides natural gas service (T. 95) at least outside the franchised area of the City of Pensacola. Ch. 85-410, Section 5(r), Laws of Florida (1985). The ECUA is authorized to provide utility services to the extent of its capacity to do so even in areas outside Escambia County. Ch. 85-410, Section 5(q), Laws of Florida (1985). The original Special Act transferred city and county utility employees to the ECUA "without loss of benefits, Ch. 81- 376, Section 9(c), Laws of Florida (1981j, and specifically provided, with respect to retirement benefits: (b) The authority may provide social security for its employees pursuant to the provisions of chapter 650, Florida Statutes, and may bring its employees under the Florida Retirement System, the State and County Officers and Employees Retirement System, or any other qualified retirement program. (c) . . . Employees who are transferred to the authority and who are members of the retirement systems available to employees of the City of Pensacola or Escambia County shall not lose those pension or retirement rights or any reserves accrued to their benefit during the period of their employment by the city or county. Such employees may elect to retain the pension and retirement rights accrued during the period of their employment by the city or the county. Any employee so electing shall give written notice of his election, within thirty (30) days or such longer period of time determined by the authority after the effective date of the transfer, to the City Manager of the City of Pensacola or to the County Administrator of Escambia Coutny, as appropriate, who shall then process the notice. In the event any employees elect to retain their pension and retirement rights accrued during the period of their employment with the city or the county, or prior to such election, the authority shall pay into the appropriate retirement system during the period that such employees remain as authority employees, such sums of money as are paid by the city or the county for the benefit of such employees in order to guarantee their continuing participation in such retirement program. The authority may make appropriate deductions from the employees' salaries to preserve their retirement benefits. Chapter 81-376 Section 9(d), Laws of Florida (1981) Escambia County joined the Florida Retirement System effective October 1, 1982. (T. 90) None of the individual petitioners were transferred to the ECUA by Chapter 81-376, Section 9(c), Laws of Florida (1981), although Terry D. Busbee, the Chairman, had worked for Escambia County for 18 years, as Supervisor of Taxes, (T. 58) and W. F. Hampton was employed with a governmental agency participating in the Florida Retirement System as early as 1977. Petitioners' Exhibit No. 3. ELECTED BOARD As required by Chapter 81-376, Section 4, Laws of Florida (1981), the Escambia County Commission selected three members of the ECUA Board, two of whom were county commissioners; and the Pensacola City Council selected three members of the ECUA Board, two of whom were city councilmen. These six then selected the seventh and final ECUA board member. Thereafter, a second Special Act, Chapter 83-403, Laws of Florida (1983) and then a third amended the original Special Act, to provide that the successor of the third County Commission appointee and the "successors of the members of the Board of County Commissioners] and [City] Council appointed to" Chapter 84-427, Section 1, Laws of Florida (1984), the ECUA Board, would be elected in 1984, while the terms of the other two ECUA board members would, "expire upon the commencement of the terms of the members," Chapter 84-427, Section 1, Laws of Florida (1984), elected to succeed the county commission appointees and the city council members. These five were "eligible for reelection." Chapter 81- 376 Section 4(c), Laws of Florida (1984). The four individual petitioners in the present case seek membership in the Elected State Officers' Class effective January 8, 1985, the date the successor terms began. By passing a resolution and signing an agreement effective October 1, 1982, (T. 108), the ECUA joined the Florida Retirement System and "decided to purchase past service back to October, '81, for all employees who were employed as of October 1st, '82." (T. 107) See Respondent's Exhibit No. 5. Beginning with the 1984 elections, candidates for the ECUA Board had to meet the same qualifications as candidates for county office and had to live in the county commission district they sought to represent. Each of the five single-member districts has the same boundaries as the corresponding county commission district. Terms of ECUA board members are staggered just as county commissioners' terms are and, beginning in January 1987, all members will be elected for four-year terms, as county commissioners are. Each ECU board candidate is subject to state election laws governing filing papers, qualifying fees and the like, to the same extent as candidates for county office are; and each takes an oath before entering upon the duties of the office. Petitioners' Exhibit No. 2. The ECUA is on the same fiscal year as Escambia County, October 1 to September 30 (T. 63) and its territorial; jurisdiction is coextensive with Escambia County. The ECUA has all of the duties that Escambia County and the City of Pensacola had relative to water and sewer, before ECUA's creation. (T. 65) The ECUA's principal source of revenue is utility charges, at rates which it is empowered to establish, Chapter 81-376, Section 8, Laws of Florida (1981), although it receives state and federal grants (T. 93); and has authority to borrow money, and has in fact issued bonds. (T. 80) For the fiscal year ending September 30, 1984, Escambia County paid $2,230,040 to the Social Security system while ECUA paid $342,402.00 Petitioners' Exhibits 4 and 5. POWERS AND DUTIES The Special Act confers on the ECUA "all privileges, immunities and exemptions accorded political subdivisions of this state," Chapter 81-376, Section 5(j), Laws of Florida (1981) and makes ECUA's "property, facilities, services and activities . non-taxable." Chapter 81-376, Section 6, Laws of Florida (1981). For purposes of the Public Records Act, but not for the purposes of the Administrative Procedure Act, Chapter 81-376, Section 4(g), Laws of Florida (1981) provides that the ECUA "shall be deemed to be an 'agency'." The same provision specifies that the ECUA "shall be deemed an agency or authority of the county for purposes of S.286.011, Florida Statutes, the "'Government in the Sunshine Law'." Although it once contracted for accounting services from the county, (T. 101), the ECUA budget is .separate and distinct from the county budget. The State Comptroller's Office has determined that ECUA "is an independent authority for purposes of Chapter 218," Deposition of Billy J. Givens, page 8, and the ECUA has not disputed this determination, possibly because it was never advised of the determination as such. The ECUA uses the same financial reporting form that counties and independent districts use in filings required by law to be made with the State Comptroller. The ECUA treats at least some "county buildings-as customers for water and sewer purposes." (T. 70) In the spring of 1985, ECUA switched the tags on its vehicles from county tags to state tags. (T. 98) The ECUA must apply to Escambia County for permits in order to cross county rights of way (T. 101), just as the City of Pensacola did when it operated its water and sewer system. (T. 102) The ECUA also has to apply for a permit in order to cross city rights of way. (T. 101) Deposition of Charles W. Bates page 7. COUNTY OFFICERS The "Florida Retirement System . . . is a statewide consolidated system that covers public programs and employee groups on all levels of government, state, county, school board, cities, special districts . . . ." Deposition of Andrew J. McMullian, III, page 13. State retirement programs before the Florida Retirement System, which came into existence on December 1, 1970, did not distinguish between elected officials and regular employees. Deposition of Ruth Sansom, page 16. After the Elected State Officers' Class had been created, the law was again amended, effective July 1, 1981, to make "county elected officials, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, school board member, or elected school board superintendent," Section 121.052(1)(g), Florida Statutes (1985), eligible for participation in the Elected State Officers' Class. Chapter 81-214, Laws of Florida (1981). Aside from holders of the offices named, the Comptrollers of Orange and Escambia Counties and the Mayor of Metropolitan Dade County are enrolled in the Elected State Officers' Class. (T. 40) Respondent viewed the Mayor of Metropolitan Dade County as differing in name only from a county commissioner and allowed participation in the Elected State Officers' Class on that account. (T. 50) With respect to the Orange and Escambia County Comptrollers, "the majority in one case of the duties of the Clerk were transferred to the Comptroller and in the other case, it seems like it was about a 50/50 split of the prior duties being transferred over to the Comptroller." (T. 50) In these circumstances respondent decided that "based on the functions that they were performing, the duties of the office, that whether the title said Comptroller or Clerk, they essentially fit the definition." (T. 50) In response to a question from respondent's Assistant Director, Lew Dennard, respondent's chief legal officer, Augustus Aikens, Jr., wrote a memorandum dated October 20, 1981. Petitioners' Exhibit No. 1. As phrased by Mr. Aikens, the question was whether the statutory language "limits membership in the Elected State Officers' Class to those elected county officers who are enumerated in Section 121.052(1)(g)?" In the memorandum, Mr. Aikens declared himself of the opinion that the language "any county elected officer" was intended to establish the class of individuals eligible for participation in the Elected State Officers' Class; and the term "including" followed by an enumeration of elected county officers was merely intended to be descriptive of the individuals eligible for inclusion in the Elected State Officers' Class as county elected officers. Accordingly, the class is not exhausted by the enumeration found in subsection (g). Other elected county officers are also includable in the Elected State Officers' Class. Petitioner's Exhibit No. 1. On November 6, 1984, however, respondent promulgated Rule 22B- 1.05, Florida Administrative Code, which did not make participation in the Florida Retirement System mandatory for any county officer and provided: Effective July 1, 1981, participation in the Elected State Officers' Class of the Florida participation in the Elected State Officers' Class of the Florida Retirement System shall be optional for the following elected county officers: sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, district school board member, and elected district school board superintendent. The elected officer may transfer to and participate in the Elected State Officers' Class by submitting an application to the Administrator within one year from July 1, 1981 if already in office on that date, or within one year from the date of election if elected after July 1, 1981. Officers appointed to fill an unexpired term may join the Elected State Officers' Class under this provision. An elected county officer who transfers to the Elected State Officers' Class and who fails to win reelection to an elected office shall cease to be a member of the class. If the member returns to a position covered under the Florida Retirement System he shall receive credit thereafter based on the class of membership of his position. 22B- 1.055(2)(d) In these proceedings, respondent takes the position that this rule provision, and the statutory language it implements preclude petitioners' participation in the Elected State Officers' Class of the Florida Retirement System.
Recommendation RECOMMENDED: That respondent grant the individual petitioners' requests to be included in the Elected State Officers' Class of the Florida Retirement System effective January 8, 1985. DONE and ENTERED this 27th day of February, 1986, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of February, 1986. COPIES FURNISHED: CARSON LINN, P.A. Cambridge Centre 253 East Virginia Street Tallahassee, Florida 32301 Ray Kievit 15 West Main Street Pensacola, Florida 32501 Andrew J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center Tallahassee, Florida 32303 Stanley M. Danek, Esquire Cedars Executive Center 2539 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303 APPENDIX Petitioners' proposed findings of fact one through five, seven through fourteen, sixteen, nineteen, twenty, twenty-three through twenty-seven, twenty nine, thirty-one, thirty-three, thirty-four and thirty-five have been adopted, in substance. Petitioners' proposed finding of fact six is supported by the weight of the evidence, except for the final sentence which states that ECUA board members are required to take the same oath of office as that sworn to by county commissioners." Although they are similar, the oaths are not identical. Petitioners' proposed finding of fact fifteen incorporates petitioners' exhibit 6 which is accurate except that it overlooks the initial two years (1985-1987) during which some of the ECUA board members have two-year terms. Petitioners' proposed findings of fact seventeen and eighteen fail to mention that ECUA also exercises powers and duties pertaining to what were city utilities. Petitioner's proposed finding of fact twenty-one is supported by the weight of the evidence except for the second sentence, which was not proven. Petitioners' proposed finding of fact twenty-two is accurate insofar as the date of the adoption of Rule 22B-1.055, Florida Administrative Code, but there was no competent evidence of the intent of the Division of Retirement, which, on this record, must be inferred from the language of the rule. Petitioners' proposed findings of feet twenty-eight, thirty and thirty-two pertain to the course of free-form proceedings, which became immaterial once formal proceedings began. Respondents' proposed findings of fact one through five, seven, eight, and nine have been adopted, in substance. Respondents' proposed finding of fact six is supported by the weight of the evidence, except that it was Ch. 83-403, Laws of Florida (l984) that made the ECOA board elective. After the Division informed Petitioners by letter dated April 17, 85 that they were ineligible "for membership in the Elected State Officers' Class", Petitioners filed their petition for formal administrative proceedings with the Division of Retirement on Hay 14, 1985. The petition was assigned to the Division of Administrative Hearings. The instant case was later consolidated with a rule challenge by Petitioners in DOAH Case No. 185-2518R. A Final Order in the rule challenge was entered by the Hearing Officer on February 27; 1986, holding that Rule 22B-1.055(2)(d), Florida Administrative Code, was an invalid exercise of delegated legislative authority. That Final Order was not appealed by the Division. HEARING OFFICER'S FINDINGS OF FACT Because the Division is accepting certain of the Hearing Officer's Findings of Fact and rejecting others in part, each finding of fact in the Recommended Order will be considered individually. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7. Accepted in part, rejected in part. The jurisdiction of the Authority is greater than the prior jurisdiction of Escambia County since it may provide utility service to areas outside Escambia County. See Paragraph 2 of Recommended Order. The only source of revenue possessed by the Authority is utility rates paid by customers of its systems. Funds obtained from bond issues, loans, or the federal government, are not considered as revenue. Paragraph 8: Accepted. Paragraph 9: Accepted in part. The phrase ".possibly because it was never advised of the determination as such" is rejected as having no support in the record. Paragraph 10. Accepted. Paragraph 11. Accepted. Paragraph 12. Accepted. Paragraph 13. Accepted. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT ESCAMBIA COUNTY UTILITIES AUTHORITY, W. F. HAMPTON, TERRY BUSBEE, GEORGE DAVIS, and WILSON B. ROBERTSON, Petitioners, vs. DOR Case No. DR85-5 DOAH Case No. 85-1718 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
The Issue Whether the refusal by the Respondent District School Board of Madison County to sign a contract prepared by a representative of the Madison County Education Association after a meeting of the Parties held for the purpose of reaching a collective bargaining agreement on November 18, 1975 was an unfair labor practice.
Findings Of Fact The Madison County Education Association was recognized by the District School Board of Madison County as exclusive bargaining agent for a unit of instructional employees of Madison County Schools on April 1, 1975. Formal negotiations for the purpose of reaching a collective bargaining agreement commenced on or about July 3, 1975. An impasse was reached on or about August 1, 1975 and the controversy was submitted to a special master under Section 447.403, Florida Statutes. A Special Master, Marvin A. Griffin, was appointed by Curtis L. Mack, Chairman, Public Employees Relations Commission, "to investigate the disagreement between the Madison County School Board and the Madison County Teachers Association." After a hearing on August 29, 1975 and September 12, 1975, Mr. Griffin filed a report dated September 26, 1975. He then offered to write a synthesized agreement and presented a draft of an agreement (hereinafter designated Contract 1) entitled "Agreement between Madison County Education Association and District School Board of Madison County, Madison, Florida, October 1, 1975." The Superintendent of Public Instruction, Gene Stokes, formally rejected the Special Master's recommendations concerning a number of articles in the agreement and made recommendations on disputed items in the Special Master's report. The District School Board of Madison County met with the Madison County Education Association and the School superintendent on November 13, 1975, at which meeting the School superintendent and the Teachers Association explained their positions. No final action was taken, and the item was tabled until November 18, 1975. At the meeting on November 18, 1975, the proposed agreement of the Special Master was modified by the superintendent's recommendation and was further modified by a Motion of school board member Eugene P. Bowie to Article XVII. (TR. 44) The agreement as modified was not reduced to writing at the meeting on November 18, 1975. The President of the Teachers Association, Florise Whittemore, used the special Master's agreement and her notes and reduced the agreement to writing (hereinafter called Contract 2 ), as she had understood the agreement. After the agreement was typed, it was presented to the teachers on November 25, 1976 and ratified by them. The pertinent portion of the official minutes of District School Board of Madison County adopted at its regular meeting, December 1975, reads: "Article XVII, $500 increase in base pay for each teacher." An unsigned copy of the contract prepared by Mrs. Whittemore was delivered to school Board Member Pickles through his daughter. A copy was also delivered to Mr. Bowie in person. A signed copy was delivered in December to the Chairman of the School Board and the negotiator Lloyd Day. Upon presentation of the contract agreement as drafted by the Madison County Education Association, member Albert W. Waldrep refused to sign the contract contending that the interpretation as shown in the teachers contract of the Motion by School Board member Bowie was in error. Member Bowie meant by his Motion that the raise should be from June 30, 1975 and Member Albert W. Waldrep understood that Member Bowie's Motion meant from November 1, 1975. Respondent then instructed its attorney to redraft the provisions of the contract pertaining to salary and said redraft (hereinafter called Contract 3) was adopted by the Respondent and signed by Chairman C. W. Pickles and attested to by Gene Stokes, Superintendent. The Charging Party refused to accept Contract 3 as redrafted by Respondent. The Charging Party thereafter filed an unfair labor charge which resulted in a formal Complaint and Notice of Hearing being issued by Public Employees Relations Commission on April 21, 1976. The Hearing Officer further finds: The Motion by Member Bowie relative to the dispute in this cause was voice recorded "Here I recommend a $500 raise per year for each teacher." It was amended by Member Pickles and concurred in by Mr. Bowie to state "base pay" and then seconded by Mr. Pickles. There was no mention of what date the raise was to be effective. There was no discussion of "retroactive pay" or "bonus pay", although the pay increase as intended by Member Bowie would have involved an increase of $150 per month for each of the three months of July, August and September. Member Bowie, cognizant of Contract 1 and prior negotiations, meant the raise to begin June 30, 1975. His Motion was intended to encompass Contract 1 as submitted by the Special Master and recommended by Superintendent Stokes. Mr. Waldrep, cognizant of the prohibition against retroactive pay and the shortage of funds, believed that he voted for a raise beginning November 1, 1975. Teacher salary checks for July, August and September, 1975, had been cut prior to the November 1975 Meeting. The words of the Motion "Here I recommend $500 raise per year for each teacher" together with the amendment or clarification "base pay" does not speak to the point in controversy and is consistent with either an interpretation to mean "fiscal year" or "calendar year." The contract as rewritten, typed and submitted to the members of the School Board [designated Contract 2] was the understanding of the Madison County Education Association of an agreement reached by the Parties at the November 18, 1975 meeting. The contract as rewritten, typed and submitted to the teachers [designated Contract 3] was the understanding of a majority of the five-member District School Board of Madison County of an agreement reached by the Parties at the November 18, 1975 meeting. There was no final agreement between the Parties as to the disputed salary increase effective date. After the November 18, 1975 meeting, Contract 2 was written by the Charging Party without the aid of the Respondent. It reflected an interpretation of the Motion most favorable to Charging Party's financial interests. After the November 18, 1975 meeting, Contract 3 was written by the Respondent without the aid of the Charging Party. It reflected an interpretation of the Motion most favorable to Respondent's financial interests. The facts of the cause do not reflect an unfair labor practice under Section 447.501, F.S., for the reason that the refusal by the parties to sign either Contract II or Contract III was based on the fact that no final agreement had been reached on the disputed issues at the collective bargaining meeting of November 18, 1975.
Recommendation Dismiss the complaint. DONE and ENTERED this 15th day of October, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Leonard Carson, Chairman Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301 Edwin B. Browning, Esquire Post Office Drawer 652 Madison, Florida 32340 R. T. Donelan, Jr., Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Rod W. Smith, Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Florise Whittemore, President Madison County Education Association Madison, Florida Tobias Simon, Esquire and Elizabeth deFresne, Esquire 208 West Pensacola Street Tallahassee, Florida 32304
Findings Of Fact The CORPORATION is a private electronics research, development, and production firm invited by the Osceola County Industrial Development Authority (hereinafter "AUTHORITY") to locate an expanded industrial facility (hereinafter "Project") in Osceola County (Petitioner's Exhibit No. 3). On February 10, 1978, the AUTHORITY, pursuant to official resolution, issued to the CORPORATION an inducement letter which was accepted by the CORPORATION. The letter contained, inter alia, the following proposal by the AUTHORITY: The AUTHORITY would issue industrial revenue bonds in an amount not to exceed $3,300,000.00 to pay the costs of acquisition and construction of the Project; The AUTHORITY would acquire fee simple title to the Project site; Prior to delivery of the bonds, the AUTHORITY and the CORPORATION would enter into an Agreement of Sale under the terms of which the Project would be sold by the AUTHORITY to the CORPORATION "on a basis which . . . [would] provide for the payment in full of the bonds and interest thereon" and would reim- burse the AUTHORITY for all expenditures by it in connection with the acquisition and construction of the Project: The AUTHORITY would enter into a Mortgage and Indenture of Trust which would pledge the Agreement of Sale and the amounts due there- under to the trustee for the benefit of the bond holders (Petitioner's Exhibit No. 3). Pursuant to the provisions of the inducement letter, the AUTHORITY entered into an Agreement for Sale with the CORPORATION on January 1, 1979. The Agreement for Sale (the tax of which is at issue here) imposed, inter alia, the following obligations upon the parties: The AUTHORITY would deliver the deed to the Project site into escrow, for ultimate delivery to the CORPORATION; In payment of the purchase price of the Project, the CORPORATION would execute and deliver a Promissory Note, in the amount and form specified, to the trustee as the assignee of the AUTHORITY under the Mortgage and Indenture of Trust. The CORPORATION agreed to unconditionally "make prompt payment of all amounts payable on the note when due" (Page iv-2, Petitioner's Exhibit No. 3). The Promissory Note, as prescribed in detail by the Agreement of Sale, was to be issued "in evidence of the company's payment obligation contained in Section 4.2 of the Agreement of Sale . . . ." (Page A-5, Petitioner's Exhibit No. 3) The AUTHORITY would issue $3,000,000.00, in aggregate principal amount, of industrial development revenue bonds to finance the cost of acquiring and constructing the Project. (Petitioner's Exhibit No. 3) The Agreement of Sale further provided, in pertinent part, as follows: "[That] the Bonds are to be issued under and secured by the Indenture pursuant to which the AUTHORITY'S interest in this Agree- ment and the Note will be assigned to the Trustee and all revenues received by the AUTHORITY in connection with the ownership and sale of the Project will be assigned to the Trustee and the Project will be mortgaged to the Trustee all as security for the pay- ment of the principal of and interest on the Bonds." (Emphasis supplied) (Page II-2, Petitioner's Exhibit No. 3) The AUTHORITY repeatedly disclaimed any assumption by it of a general obligation to pay in connection with the execution of the Sales Agreement and issuance of the bonds; "Notwithstanding anything herein contained to the contrary, any obligation the AUTHORITY may hereby incur for the payment of money shall not be a general debt on its part but shall be payable solely from proceeds derived from this Agreement and the Note, the sale of the Bonds, the condemnation awards as herein described and any other revenues derived from its ownership of the Project and Other Improvements." Id. (Emphasis supplied) Contemporaneously with, and pursuant to the execution of the Agreement of Sale, the CORPORATION executed a Promissory Note, dated January 1, 1979, in the principal amount of $3,000,000.00, together with interest, payable to the order of the AUTHORITY. The Note indicated payment of principal and interest had been irrevocably assigned by the AUTHORITY to the Trustee pursuant to a Mortgage and Indenture of Trust, dated January 1, 1979, which was also executed in connection with the issuance of the Bonds. (Petitioner's Exhibit No. 3) Pursuant to the inducement letter and the Agreement of Sale, the AUTHORITY acquired the Project site property on January 31, 1979. (Petitioner's Exhibit No. 2) On February 1, 1979, the various instruments involved with the issuance of the Bonds were recorded with the Clerk of the Circuit Court, Osceola County, Florida. The CORPORATION paid, under protest, documentary stamp tax in the amount of $4,500.00 and intangible personal property tax in the amount of $6,000.00 on the Agreement of Sale. No state tax was imposed upon or paid on the Promissory Note executed by the CORPORATION to the AUTHORITY. (Petitioner's Exhibit No. 3, Stipulation of Counsel)
Recommendation Conclusion: The Agreement of Sale evidences a private entity's obligation to repay borrowed money and secures repayment of such money solely from the sale and construction of the proposed industrial project, and is exempt, by virtue of Section 159.31, supra, from state docu- mentary and intangible personal property taxes. Recommendation: That the Petitioner's application for refund be APPROVED.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay $790 in questioned costs under Contract No. 79MP-3C-02-33-08 and $891 in questioned costs under Contract No. 79MP-1F-02- 033-08. All other costs still in issue should be allowed. DONE and ENTERED this 6th day of July, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1982. COPIES FURNISHED: Chad J. Motes, Esquire Suite 131-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Brenda Arnold Post Office Box 555 Port St. Joe, Florida 32456 Honorable Wallace E. Orr Secretary, Department of Labor and Employment Security Suite 206, Berkeley Building Koger Center 2590 Executive Center Circle, East Tallahassee, Florida 32301
Findings Of Fact Petitioner, Bill A. Corbin, has been a member of the Florida Bar since October, 1972 and has continually engaged in the private practice of law in Blountstown since that time. His present office is located at 305 Fannin Street, Blountstown, Florida. On January 1, 1973, petitioner was retained by the Calhoun County Board of Commissioners to represent the county in the capacity of county attorney. He remained in that position until March 1, 1983, or a period of ten years. During that period of time he was a member in good standing of the Florida Retirement System (FRS) and made the required contributions into the program. From April 1, 1980 until August 26, 1983, Corbin also served as county attorney for Liberty County. When he left the employ of Calhoun County on March 1, 1983, he reenrolled in the FRS effective the same date using his employment with Liberty County as a basis for the continued enrollment. After conducting an audit of petitioner's employment in early 1983, respondent, Department of Administration, Division of Retirement, advised petitioner by letter dated April 22, 1983 that because he failed to comply with current FRS membership requirements, he was being removed from FRS membership effective July 1, 1979. The effect of this action was to leave Corbin with approximately 6 1/2 years of creditable service with the FRS rather than almost 10 1/2 years. The proposed agency action triggered the instant proceeding. The position of county attorney in Calhoun County was a regularly established position and has been for some 25 years. The same is true for the county attorney slot in Liberty County. In Calhoun County, Corbin was paid on a monthly basis and had the normal deductions made from his salary. He received the same annual percentage increase in salary as did other county employees. He was also covered under the County's errors and omissions policy, and was eligible for workers' compensation coverage. According to a Calhoun County Commissioner, Corbin received annual and sick leave of one day per month while serving as county attorney. However, unlike other county employees, he was not compensated for unused leave when he terminated employment, and did not have to fill out leave slips as do other employees when taking leave. He also was given stationery, use of a reproduction machine, and clerical help from the county clerk's office when necessary. Corbin's initial employment with Calhoun County was based upon an oral agreement between he and the commissioners. This agreement was later reduced to writing in 1979 in order to comply with concerns expressed by the county's outside auditors. The standard employment contract specified a set fee per month for Corbin to attend regular Board meetings, advise them on legal matters concerning County business, and to prepare resolutions, correspondence and ordinances. Additional services concerning litigation were rendered on either a contingent fee basis or an hourly rate basis. These sums were paid from monies set aside each year by the County for legal services not covered by Corbin's monthly salary. No deductions were taken from payments made to Corbin for these additional services. The contract also provided that either party could terminate the same upon giving thirty days' notice. A similar agreement was executed by Corbin for his employment with Liberty County except that the agreement called for compensation at a rate of $40 per hour. Corbin's normal duties generally included attending two regular board meetings each month which lasted from two to twelve hours each, attending special meetings, handling correspondence, keeping minutes of each meeting, and being on call for requests for advice from Board members. In all, petitioner estimated he spent approximately 30 hours per month on Calhoun County business. Although some of the county work was performed in the courthouse where the boards met, most of it was done in Corbin's law office since he was not provided an office by either county. The members of the Board control petitioner's hours by assignment of the work to be done, including requests for advice, research and opinions, and litigation. The Board determines which cases will be settled, defended or appealed. Corbin is required to accept any case or matter assigned, and does not reject assignments. However, the Boards do not control the day to day methods by which petitioner litigates cases and performs legal judgments. Petitioner does not supervise any employees employed by the County nor does he supervise or direct the activities of any full time or part time assistant county attorneys or legal secretaries. The rule which makes petitioner ineligible for membership in the FRS is Rule 22B-1.04, Florida Administrative Code, which became effective on July 1, 1979. After the rule was adopted, respondent sent a memorandum to all local agencies, including Calhoun and Liberty Counties, requesting that they review those employees that might fall within the "professional" status in order to determine their eligibility under the newly adopted rule. A copy of the rule was also sent to each local agency. The agencies were then required to transmit information on each such employee to the respondent. Thereafter, it began the lengthy process of auditing all reporting units, including the two counties in question. Because respondent is now reviewing over 700 reporting units, the audit process is time-consuming, and has resulted in lengthy delays in removing ineligible employees from FRS.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Bill A. Corbin to remain in the Florida Retirement System from July 1, 1979 through August 26, 1983 be DENIED. DONE and ENTERED this 18th day of June, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of June, 1984.
