The Issue Whether, under the facts and circumstances of this case, petitioner is deemed to have abandoned his position and resigned from the Career Service.
Findings Of Fact Mr. Willie L. Claridy was an employee of the Department of Transportation for 2 or 3 years and was under the immediate supervision of Daniel E. Skinner at the Sarasota Maintenance Office for approximately a year, including March and early April of 1984. On or about Monday, March 26, 1984, while in the outside shop area at his place of employment, Mr. Claridy mentioned taking a vacation to some fellow employees. He said he was going home to a family reunion. The employees moved into the office area, and the conversation continued. Mr. Skinner, who was petitioner's supervisor, Mr. Campbell, Mr. Claridy, and two others were present in the office. During the conversation in the office, Mr. Claridy stated that he was going to take a vacation; however, he never specifically asked for leave, he was not told that he could have leave, and no specific dates were mentioned. 1/ Although Mr. Skinner could not recall the discussion regarding Mr. Claridy's vacation, he admitted that it could have taken place. However, Mr. Claridy never signed a leave slip requesting leave, and Mr. Skinner never signed a leave slip approving leave. Nevertheless, Mr. Claridy did not report for work on April 2nd, 3rd, 4th, or 5th, 1984, and did not contact his office during that time. The Employee Handbook, received by Mr. Claridy on April 20, 1983, clearly states that an employee must obtain the approval of his supervisor before taking leave. Neither the handbook nor the memorandum to employees of January 1982 states that prior approval must be in writing, although the language in the handbook implies that it should be. However, Mr. Claridy was fully aware of the procedure that he needed to follow in requesting leave. On two earlier occasions when Mr. Claridy had wanted time off he had submitted leave slips and received approval from his supervisor prior to his absences from work. Mr. Claridy's stated reason for not submitting a leave slip in this case in advance of his absence is neither accurate nor credible. He testified that he thought he might get called back to work during the course of his leave time due to a shortage of mechanics, and, if this occurred and he had submitted the leave slip, he would not have gotten paid for his time. 2/ However, the evidence at the hearing indicated that Mr. Claridy did not plan to be and was not in town during his absence from work, and therefore could not have been called into work. 3/ Further, Mr. Claridy stated that they might need him because they were short of help but also testified that "[w]e were caught up with all our work." Finally Mr. Claridy's return to work during a period of time when he was on authorized leave would not have adversely affected his pay or his annual leave time, and Mr. Claridy would have discovered this had he made any inquiries. Mr. Skinner did not approve Mr. Claridy's leave time nor did he inform Mr. Claridy that he could submit a leave slip after his vacation. Consequently Mr. Claridy's absence from work on April 2nd, 3rd, 4th, and 5th was unauthorized. Mr. Claridy had received the Employee Handbook and the memorandum of January 1982 which informed him that three consecutive absences without authorized leave would result in termination of employment. Mr. Claridy was properly informed by certified letter dated April 5, 1984, that having failed to report for work during the period in question and having failed to take action to notify his supervisor of the reasons for the absence he was deemed to have abandoned his position and resigned from the Career Service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Department of Transportation in deeming the petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. DONE and ENTERED this 18th day of December, 1985, in Tallahassee, Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1985.
Findings Of Fact The Petitioner, John C. Scott, has been a Career Service employee with the Department of Transportation for approximately ten years, assigned to the Centerline Maintenance Office in Pompano Beach, Florida. During all times material to these proceedings, Petitioner's immediate supervisor was Allen Thomas. Robert Lucas, Highway Maintenance Supervisor in charge of the District III Centerline Crew, is the Petitioner's second-level supervisor. Thomas and Lucas are the only individuals at the Centerline Maintenance Office authorized to approve leave for Petitioner. On May 23, 1987, the Petitioner was arrested for D.U.I. and placed in jail for fifteen days. After the Petitioner was arrested, he called his mother and asked her to inform his supervisor at work that he had some personal business to attend to and would need annual leave. On May 26, 1987, the Petitioner failed to report to work and had not previously requested leave from any of his supervisors. On the morning of May 26, 1987, Ms. Scott, the Petitioner's mother, called Mr. Lucas and told him that her son would need a couple of days off from work because of personal business. Mr. Lucas informed Mrs. Scott that annual leave could not be authorized over the telephone for personal business but that leave could be granted for an emergency situation. Ms. Scott reiterated that the Petitioner had some personal business to take care of. Mr. Lucas advised her that annual leave could not be authorized over the telephone under those circumstances. On June 1, 1987, Mr. Lucas was informed by Mr. Oshesky, the District Personnel Supervisor, that Petitioner's attorney had called and told him that Petitioner was in jail. The Petitioner was absent from work on May 26, 27, 28, and June 1, 2, 3, and 4, 1987. May 29, 30 and 31, 1987 were non-work days for Petitioner. At the time, the Petitioner's work week consisted of four ten hour days from 7:30 a.m. to 5:30 p.m. The last day that Petitioner actually reported for work was Wednesday, May 20, 1987. However, on Thursday, May 21, 1987, the Petitioner was absent from work on authorized annual leave, May 22-24, 1987, were non-work days and on Monday, May 25, 1987, the Petitioner was absent from work due to an official holiday (8 hours) and authorized annual leave (2 hours). On June 5, 1987, the Respondent advised Petitioner by certified mail, return receipt requested, that he was being terminated effective May 20, 1987, (Petitioner's last day at work) for abandonment of his position. The Petitioner's absence from work and involvement with civilian authorities were related to an admitted alcohol problem. Since the Petitioner was released from jail, he has participated in a twenty-day in-patient substance abuse program at John F. Kennedy Hospital and is presently involved with a Fort Lauderdale after-care program. The Petitioner had been provided with a Department of Transportation Employee Handbook by his employers. The Handbook outlined the requirements for annual leave and leave of absences without pay. The Handbook provides in part as follows: Annual Leave - Get your supervisor's approval before taking leave. If an emergency develops, tell your supervisor of the emergency and ask verbal approval to use annual leave. When you return to work complete the leave request form, as appropriate. Leaves of Absence Without Pay - Upon request, you may be granted leave without pay ... for a period not to exceed twelve calendar months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Administration enter a final order finding that the Petitioner, John C. Scott, has abandoned his Career Service position with the Department of Transportation. DONE and ORDERED this 16th day of October, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2750 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in substance in Finding of Fact 3. Partially adopted in substance in Findings of Fact 5 and 6. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 3, 5, and 6. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 11. Adopted in Findings of Fact 7 and 9. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Hon. Kaye N. Henderson Department of Transportation Secretary Room 562 Burns Building Department of Transportation Tallahassee, Florida 32399-0450 605 Suwannee Street Tallahassee, Florida 32399-0458 Patrick J. Curry, Esquire Attn: Eleanor F. Turner, 200 Southeast Sixth Street M.S. 58 Suite 200 Ft. Lauderdale, Florida 32301 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III, Esquire 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Bldg. Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that: Respondent Department of Health and Rehabilitative Services enter a final order correcting the annual leave account of Robert J. Braun by reducing his annual leave balance by 125 hours in accordance with its 1983 audit of the account. RECOMMENDED this 21st day of January, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of January, 1985.
The Issue Whether the Petitioner is entitled to receive benefits pursuant to Option 3 as retirement earned by his deceased wife, Susana T. Fabian.
Findings Of Fact The Petitioner, Howard Fabian, is the spouse of the late Susana T. Fabian. Mrs. Fabian was a member of the Florida Retirement System (FRS). The Fabians were married for approximately 14 years and have two children from their union. The girls, now teenagers, reside with Mr. Fabian and depend on him for their financial support. The Respondent, DMS, is the state agency charged with the responsibility of administering the FRS. Benefits payable to FRS participants are tendered pursuant to the provisions of Chapter 121, Florida Statutes, and DMS rules. Mrs. Fabian was employed as a teacher in the Miami- Dade County Public Schools on or about December 17, 1984. As such, she was eligible to participate in the FRS. In fact, Mrs. Fabian's employer made contributions to the FRS for her benefit throughout her employment with the school system. Such contributions continued for over 13 years. It is undisputed that Mrs. Fabian was "vested" and was, therefore, entitled to receive retirement benefits from the FRS. Unfortunately, Mrs. Fabian became ill in 1997 and was unable to teach. She requested an extended sick leave for the period August 31, 1997 through May 31, 1998, which her employer granted. Mrs. Fabian returned to teaching the following year and was able to perform her duties until January 2000. At that time her medical condition worsened. Her request for unpaid leave through June 2000 was granted. Despite her best efforts to regain her health, Mrs. Fabian did not improve. Each time her employer asked whether she would return to work, forms were returned seeking an extension of leave. The employer continued to grant the extension requests and approved sick leave without pay for the period through June 14, 2002. Mr. Fabian filled out a leave form seeking leave on his wife's behalf through June 2003. By letter dated May 14, 2002, the school system denied that request. Whether or not the employer correctly calculated the time Mrs. Fabian received unpaid leave is unknown. The Petitioner asserts that had Mrs. Fabian received credit for "hardship leave and dire emergency leave" in 1997 and 2000 (for which the union contract provided), the leave request in June 2002 would or could have been granted. The record is clear that the Respondent did not have any part in the internal workings of the Miami-Dade County School District and did not have knowledge as to whether Mrs. Fabian could have been granted additional unpaid leave. The employer's decisions regarding this employee were unknown to the Respondent until the instant action. However, about the time the employer denied the last leave extension request, Mr. Fabian received a FRS application for disability retirement. The application was completed on or about June 2002. The form signed by Mrs. Fabian was out- of-date and did not have a designation of beneficiary space. Pursuant to its policy, DMS accepted the out of date form and sent Mrs. Fabian a form for designating a beneficiary. The form for designating a beneficiary listed four options: Option 1, Option 2, Option 3 and Option 4. All (Options 1-4) were clearly and unambiguously described. However, only two of the options had estimates included on the form sent to Mrs. Fabian. Estimates for Options 3 and 4 were not noted. Under Option 1 the form indicated a monthly benefit of $895.28. Option 2 indicated a monthly payment of $824.89. At that point in time DMS did not have sufficient information to calculate Options 3 and 4. To calculate Options 3 and 4 DMS must have information regarding a "Joint Annuitant." Had Mr. Fabian included information for Options 3 and 4 those amounts would have been calculated. In this case, the Respondent could not know Mrs. Fabian was married, as the initial (outdated) form did not provide that information. The Respondent could have become aware of Mrs. Fabian's marital status as a result of a telephone call from Mr. Fabian to DMS in August of 2002. At that time DMS still needed information to put Mrs. Fabian on the retirement payroll. The request for information unambiguously listed information needed for a "joint annuitant." The first notice to Mrs. Fabian, dated July 11, 2002, asked for the proof of birth for the joint annuitant. Similarly, the SECOND REQUEST-RETURN WITHIN 30 DAYS (Respondent's Ex. 12) dated September 4, 2002, indicated the following: Your name cannot be placed on the retired payroll for the reason(s) indicated below: BIRTH VERIFICATION Please see the enclosed memo outlining the acceptable means of proving your birth date. BIRTH VERIFICATION OF BENEFICIARY If you elect Option 3 or 4, we will need proof of birth for your joint annuitant. FRS-11o, OPTION SELECTION FORM The enclosed Option Selection Form is needed. If you elect option 3 or 4, we will need proof of birth for your joint annuitant. You may wait until an estimate of benefits is provided before selecting your option. FORM FST-12, BENEFICIARY DESIGNATION This form must be completed to designate a beneficiary. You must designate a beneficiary to receive any benefits due at your date of death. [Emphasis in original] Nevertheless, when the Option Selection form was submitted to DMS, Mr. Fabian, exercising a power of attorney provided by his wife, chose Option 1. Mr. Fabian claims he did not know Option 3 was available. The Option Selection form clearly and unambiguously listed all four options available to Mrs. Fabian. Mr. Fabian is an educated professional. He has taught school for the Miami-Dade County School District and has operated a real estate office for approximately 20 years. The Option Selection form signed by Mr. Fabian for himself and for his wife on September 3, 2002 (Petitioner's Exhibit. 7) required the Petitioner to complete a "Spousal Acknowledgement," recognizing that the member had chosen Option 1. The section must be completed if the FRS member is married and if Option 1 or 2 is elected. Clearly, the Petitioner knew or should have known that the form contemplated a permanent decision. In fact, the Petitioner acknowledged by signing beneath the section that stated: . . . I also understand that I cannot add additional service, change options, or change my type of retirement (Regular, Disability and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed, deposited, or when my Deferred Retirement Option Program participation begins. DMS received the Beneficiary Designation Form and Option Selection forms on September 12, 2002. The completed file was referred to payroll and Mrs. Fabian then received monthly retirement benefits under Option 1 (the option selected by her husband pursuant to his power of attorney). It is undisputed the first payment was negotiated upon its receipt. Prior to cashing the first payment Mrs. Fabian could have changed her option selection. On December 24, 2002, Mrs. Fabian passed away. The Respondent then notified Mr. Fabian that the option he had selected did not provide for continuing benefits beyond the month of Mrs. Fabian's death. Additionally, Mr. Fabian was advised that he was not entitled to a refund of any contribution Mrs. Fabian paid to FRS as she had not made any. The employer paid 100 percent of the contributions to Mrs. Fabian's account. Retirement benefits under the FRS are not equivalent to life insurance. That is, the retirement payments are payable to the employee who "earned" benefits or to those who may be "joint annuitants" as defined by law. At all times material to this case, the employer paid the full amount credited to Mrs. Fabian's retirement account, approximately $84,046.51. Obviously, Mrs. Fabian sought the benefits from her account prior to her anticipated retirement date. DMS allows disability retirement under such circumstances. Therefore, Mrs. Fabian's eligibility to claim her disability retirement is not disputed. The deposition testimony of Nina Barron was admitted into evidence as Respondent's Exhibit 5. Ms. Barron reviewed the retirement options with the Petitioner prior to the time the form was submitted to FRS. Ms. Barron also calculated the amounts payable to Mrs. Fabian pursuant to each option. Ms. Barron also believes she spoke to Mrs. Fabian regarding the options. Ms. Barron mailed the calculated estimates for each option to the Petitioner. The Petitioner's allegation that he was confused regarding the options and which election would best protect his family's interests has not been deemed persuasive in light of the testimony of Ms. Barron. The witness provided an unofficial estimate to Mrs. Fabian that included all 4 options.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order denying the Petitioner's request. S DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 15th day of June, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services Division of Retirement 4050 Esplande Way Tallahassee, Florida 32399-1560 Richard M. Ellis, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Tallahassee, Florida 32302-0551 Larry D. Scott, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner received a salary overpayment for the pay period ending November 9, 2000, for which the State of Florida is entitled to be reimbursed.
Findings Of Fact Petitioner was employed by the State of Florida, Department of Juvenile Justice (Respondent) as a Group Treatment Leader, Class Code 5721, for a four-month period ending on November 6, 2000. This is a career service position. Petitioner resigned from the Respondent on November 6, 2000, due to significant personal problems associated with his marriage. Petitioner's resignation was accepted by his supervisor on the same day. Petitioner was not a permanent career service employee on the date of his resignation. Petitioner received a final payment for work performed for the period October 27, 2000 through November 5, 2000, on approximately November 20, 2001. Petitioner was concerned about the possibility of overpayment and contacted his local personnel office to inquire about it. Petitioner was told by his office personnel officer not to be concerned about it. At that time, Petitioner believed the matter to be resolved and no longer an issue. By letter dated May 16, 2001, Petitioner received correspondence from Respondent alleging that he was overpaid and seeking reimbursement in the amount of $233.53 for 21.0 hours of earned annual leave that was not compensable. The notification was not prompt, but is was made in a timely manner. On May 21, 2001, Petitioner requested a formal hearing before the DOAH. On June 26, 2001, Respondent notified Petitioner that a further audit revealed that he was entitled to be paid for 8.0 hours of special compensation leave. Applying these hours to the overpayment left a balance of 13.0 hours, equaling $144.57 due. While this matter was pending before DOAH, that amount was garnished from Petitioner's wages by the Comptroller, without prior notification. Petitioner had 21.0 hours of earned annual leave while employed by Respondent. Due to excessive working hours and the critical nature of the position with Respondent, Petitioner had very limited opportunities to use his leave during the time he was employed by Respondent. Due to the short time that he was employed by Respondent, Petitioner's earned leave was not transferable to the Department of Heath, his current employer. Petitioner seeks to withdraw his original letter of resignation and substitute a new letter, to be effective November 20, 2000. This would allow him to use the annual leave and special compensatory leave to account for the period in question and cancel the garnishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary enter a final order authorizing the garnishment of Petitioner's wages in the amount of $144.57 for salary overpayment for the pay period ending November 9, 2000. DONE AND ENTERED this 1st day of November, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of November, 2001. COPIES FURNISHED: Richard D. Davison, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Sheldon S. Scrivener 5253 Jamaica Road Cocoa, Florida 32927-9058 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service pursuant to the personnel rules of the Career Service System?
Findings Of Fact The Petitioner was an employee of the Respondent for more than five years. At all times relevant hereto, the Petitioner was employed by the Respondent. During the month of December, 1986, and the portion of January, 1987, prior to the date the Petitioner was removed from his position, the Petitioner was assigned to the Blountstown, Florida, road maintenance office. The Petitioner's immediate supervisor was Mr. Gustavev Goodwin. Mr. Goodwin was an HMT-3 with the Respondent and supervised a maintenance crew of three men, including the Petitioner. Mr. Goodwin was the Petitioner's immediate supervisor. Mr. Lloyd Blackburn, a Highway Maintenance Supervisor with the Respondent, was Mr. Goodwin's immediate supervisor. Mr. Blackburn supervises all crews operating out of the Blountstown office. The Petitioner and his crew worked a 10-hour day, 4 days a week. Mr. Goodwin prepares a weekly crew report on a daily basis. Mr. Goodwin records the hours a crew member worked or, if a crew member was not present, Mr. Goodwin notes the absence and the reason for the absence. Mr. Blackburn transfers the information recorded on the weekly crew reports to timesheets which are used for payroll purposes. If approval of a request for leave is required, employees are required to report to their crew supervisor or Mr. Blackburn. The Petitioner would have been required to obtain approval of leave from Mr. Goodwin or Mr. Blackburn, if prior approval had been required. In cases of sick leave, employees were expected to call by telephone on the day of the illness or injury and inform Mr. Blackburn. Mr. Blackburn was at the office each work day in the morning before the crews completed fueling their trucks and departed for the day. Mr. Blackburn was then out of the office during most of the remainder of the day. During the last week of December, 1986, Mr. Goodwin, the Petitioner and the other members of Mr. Goodwin's crew were "bull skating" (joking and talking). The Petitioner told Mr. Goodwin in response to some comment, probably pertaining to the work that would be done the first week of January, 1987, that "I won't be here next week anyway. I be in the hospital." Although Mr. Goodwin did not remember the Petitioner having made these comments, the Petitioner and one of the crew members, Mr. Arthur Jackson, both testified that the comments were made. Neither Mr. Goodwin or Mr. Blackburn told the Petitioner that he could be absent from work during the first week of January, 1987. The Petitioner was absent from work during the first week of January, 1987 -- January 5, 6, 7 and 8, 1987. Neither Mr. Goodwin nor Mr. Blackburn were contacted on January 5-8, 1987, by the Petitioner or anyone on behalf of the Petitioner, about the Petitioner's absence. Neither Mr. Goodwin or Mr. Blackburn told the Petitioner that his absence on January 5-8, 1937, was approved. The Petitioner had obtained approval of annual leave prior to the period at issue in this case. The Petitioner had planned to go to the hospital on January 5, 1987, because of problems he has had with his legs, and to remain in the hospital for the remainder of the week. Because of the problems with his legs and his automobile, the Petitioner did not go to the hospital or see a doctor on January 5, 1987. On January 8, 1987, the Petitioner had a friend drive him to Panama City, Florida, where he remained under the care of Dr. Ernest G. Haslam, M.D., in the hospital, until January 12, 1987. Although the Petitioner does not have a telephone at his residence, Mr. Goodwin or Mr. Blackburn could have been contacted by Petitioner's wife, who works at Hardees, or by a friend. The Petitioner acknowledged receipt on April 14, 1983, of the Florida Department of Transportation Employee Handbook and his responsibility to review the handbook in detail and to request clarification, if necessary. On page 43 of the handbook it is provided that "[a]fter an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from Career Service ..." On page 22 of the handbook it is provided that "[i]f a medical appointment is necessary during work hours, you should obtain `approval, in advance, to use your earned sick leave." By certified letter from Allen Potter, Deputy Assistant Secretary of the Department, dated January 8, 1976, the Petitioner was informed that he was deemed to have abandoned his position with the Respondent and to have resigned from the Career Service because of his absence from work during the first week of January, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration rule that the Petitioner, Albert T. Smith, has not abandoned his position with the Respondent, the Department of Transportation, and has not resigned from the Career Service. DONE and ENTERED this 12th day of May, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0450 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s), if any, in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RD ." Petitioner's Proposed Findings of Fact The Petitioner has filed a letter dated April 10, 1987. The only proposed finding of fact contained in this letter concerns the question of whether the Petitioner told his supervisor, Mr. Goodwin, that he would not be at work during the period of time at issue in this case. The proposed finding of fact has been accepted in RD 10. Respondent's Proposed Findings of Fact Proposed Finding RD Number of Acceptance of Fact Number or Reason for Rejection 1 RD 1-4 and 8. 2 RD 5-7 and 9. 3 RD 10-11. 4 RD 11 and 13. The evidence did not prove that the Petitioner had obtained prior approval for sick leave subsequent to the period of time involved in this case. The evidence only proved that the Petitioner had on other occasions received prior approval of annual leave. 5 RD 19-20. RD 16 and 18. The evidence does not prove that the Petitioner got into a car and drove to town. RD 21. The Petitioner was not, however, "absent from his position without authorized leave ..." COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kay N. Henderson, P.E., Secretary Department of Transportation Hayden Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 ATTN: Eleanor F. Turner, MS 58 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Mr. Albert T. Smith Route 1, Box 135, B 69A Blountstown, Florida 32424 =================================================================
The Issue Whether Petitioner, Anthony McFarlane, was overpaid in the amount of $978.69 as a result of utilizing more administrative leave than that to which he was entitled.
Findings Of Fact Petitioner was an employee of the Agency's Central Office during the pay periods of February 14, 2014, to February 27, 2014; February 28, 2014, to March 13, 2014; and March 14, 2014, to March 27, 2014. Although the exact dates of Petitioner's employment by the Agency are unknown, he was also employed by the Agency and its predecessor entities prior to, and subsequent to, those dates for a total of approximately eighteen years. Petitioner retired from the Agency on April 4, 2014. Petitioner, prior to his retirement, attempted to use the surplusage of leave time he had accumulated for which he would not be compensated upon retiring. The Agency uses the People First system for the submittal of employee time sheets and tracking of individual employees' accrued paid leave time. The system maintains the amount of Annual Leave, Sick Leave, and Special Compensation Leave available to each individual employee. Further, although Sick Leave can be used at any time, Annual Leave cannot be used until Special Compensation Leave is depleted. Administrative Leave--Other is not maintained on an individual level and employees are not automatically prohibited from using more Administrative Leave--Other than that to which they are entitled nor are they required to deplete their Special Compensation Leave prior to using Administrative Leave. Administrative Leave--Other is made available to employees only in special circumstances such as an office closure due to a hurricane, plumbing leak, or air conditioner failure, or an unscheduled paid holiday authorized by the Governor. During the pay period of February 14, 2014, to February 27, 2014, Petitioner used sixteen hours of Special Compensation Leave (Code 0055) and sixteen hours of Sick Leave (Code 0052). During the pay period of February 28, 2014, to March 13, 2014, Petitioner used seventy-two hours of Administrative Leave-- Other (Code 0056). No special circumstances entitling Petitioner to take Administrative Leave--Other hours occurred during this pay period. During the pay period of March 14, 2014, to March 27, 2014, Petitioner used five hours of Special Compensation Leave (Code 0055) and seventy-five hours of Annual Leave (Code 0051). In February of 2015, the Office of the Inspector General published an audit of the Agency's human resources practices at its Central Office. The audit showed that seventy-two hours of Annual Leave were miscoded as Administrative Leave--Other, resulting in a $1,059.84 leave balance overpayment. The Agency then determined that Petitioner was the individual whose Annual Leave time had been miscoded as Administrative Leave--Other and had therefore been overpaid $1,059.84. After adjusting the amount for taxes and benefits withheld, the Agency concluded that the amount overpaid directly to Petitioner was $978.69. During the hearing, Petitioner for the first time realized and admitted that in his attempt to deplete his Special Compensation Leave before using his Annual Leave, he made an error in using Code 0056 (Administrative Leave--Other) when he intended to use Code 0055 (Special Compensation Leave).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner repay $100.00 per month to the Agency until the $978.69 balance is repaid in full. DONE AND ENTERED this 5th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 5th day of June, 2015. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony McFarlane 7971 Northwest 11th Street Plantation, Florida 33322-5158 David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue is whether Petitioner may lawfully discipline Respondent due to excessive absences from work.
Findings Of Fact Petitioner employed Respondent as a police officer in the Operations Division of the Cape Coral Police Department (Department) from October 5, 1987, through approximately April 27, 1998, when Petitioner terminated her employment. As detailed below, Petitioner monthly provides its employees with a specified amount of leave, based on their years of service. Petitioner credits all leave in a single account. Employees then draw on their leave account by taking scheduled and unscheduled leave. This case involves Respondent's use of allegedly excessive amounts of leave. In 1989, Respondent used 125.76 hours of unscheduled leave. On May 23, 1989, she received an interim performance evaluation noting that she was "below acceptable" in unscheduled leave time and needed to improve her relations with other employees. On October 13, 1989, she received an annual performance evaluation stating that she had had 18 days "sick leave" in the preceding 12 months and was below "operational standard" in attendance and relations with others; all of her other categories were marked as meeting operational standard. The attached narrative notes a "slight improvement" since her May 1989 interim performance evaluation. In 1990, Respondent used 198.5 hours of unscheduled leave. Her October 12, 1990, annual performance evaluation states that Respondent was again below operational standard in attendance with 23.25 days of "sick leave." She had raised her relations with others to operational standard and work habits to above operational standard. The narrative attached to the evaluation states that the evaluator has spent a sizable amount of time conferring with Susan regarding causes to her illnesses and resulting time off due to illness. Officer Von Halla does have problems with migraine's and when she experiences one, she is [less than] an effective part of the shift in fulfilling her normal duties. I have tried to understand why she experiences so many migraines and have suggested different activities (i.e. physical exercise, stress reduction). I am confident that despite the significant amount of time taken due to illness, when this officer calls in sick, she is sick and does not use this time for other unknown reasons. I feel, currently, Officer Von Halla is attempting to minimize the amount of times she calls in sick. Despite some improvement recently, Officer Von Halla still is in need of progress in this area so her time reserved starts reflecting this. The narrative concludes that Respondent can improve her weak point, which is attendance, by "finding new ways to minimize the migraine potential and making a genuine effort towards this." Another evaluative document speaks in a very different tone from the annual performance evaluation, which is signed by a sergeant who was Respondent's immediate supervisor. On October 2, 1990--only 10 days before the 1990 annual evaluation-- a captain reviewed Respondent's use of unscheduled leave and warned: you are hereby notified that this level of unscheduled leave time usage will no longer be tolerated. You will be required to achieve a level of usage that is consistent with the national and department average which equates to approximately sixty hours per year, or five hours per month. If you fail to maintain this rate between October 1, 1990 and December 31, 1990 I will request that the Chief of Police consider terminating your employment effective January 1, 1991. If you are successful, you will be expected to maintain this average with the exception of documented major medical complications that require the use of extended leave. By memorandum dated December 14, 1990, from the captain to the police chief, the captain stated: On October 2, 1990, I advised Officer Von Halla that she would be required to maintain an acceptable level of unscheduled leave usage through December 31, 1990. The level of usage was established at five (5) hours per month, or a total of 15 hours for the period of October 2, 1990, through December 31, 1990. . . . Since October 2, 1990, Officer Von Halla has chosen to utilize forty (40) hours of leave. Thirty-two (32) hours were for illness as noted by her chiropractor and eight (8) for unexpected visitors. The captain's memorandum reasons: "In analyzing Officer Von Halla's unscheduled leave, it is clear that her utilization of unscheduled leave far exceeds any norms and Officer Von Halla is clearly abusing this city benefit." The memorandum states that, after consulting with the city attorney and city manager, the captain was recommending that Petitioner initiate termination proceedings against Respondent. By memorandum dated January 17, 1991, the captain asked a lieutenant to convene a Command Review Board to evaluate Respondent's excessive absenteeism and her violation of three groups of general orders prohibiting feigning of illness and failing to perform duties, abusing sick leave, and engaging in any conduct adversely affecting the morale and efficiency of the Department. The memorandum explains the last alleged violation as noting that the department had had to use 66 hours of overtime, at a cost of $1125, to cover shift shortages caused by Respondent's unscheduled absences. The Command Review Board sustained the allegation that Respondent had abused her unscheduled leave, but rejected the allegations of feigning illness and failing to perform duties and engaging in any conduct adversely affecting the morale and efficiency of the department. Accordingly, the Command Review Board recommended that the police chief suspend Respondent without pay for one day. By memorandum dated February 2, 1991, the police chief adopted the findings and determinations of the Command Review Board and suspended Respondent for one day. By memorandum dated February 14, 1991, Respondent protested the proposed discipline and demanded a hearing. The arbitrator entered a decision on June 24, 1991, that the police chief had just cause for suspending Respondent for one day without pay. Respondent served this suspension. The next annual performance evaluation is dated January 25, 1992. Respondent earned marks of above operational standard in job knowledge, quality of work, initiative, work habits, and appearance. Her only mark of below operational standard was in attendance. In the preceding 15.5 months, Respondent had used 18 days of "sick leave" and had one day without pay, due to her exhaustion of leave. From May 1990 through April 1991, Respondent used 148 hours of unscheduled leave. The evaluations and memoranda from 1992 through 1994 are largely the same: average or above-average performance in all areas but attendance. The records note only the excessive use of unscheduled leave, but do not attribute the use to fraud. From January 13, 1994 through December 26, 1997, Respondent used 691.72 hours of unscheduled leave. On February 12, 1995, the former captain, now a major, recommended that the Department suspend Respondent without pay for three days due to excessive use of unscheduled leave. By memorandum dated February 27, 1995, the police chief, "with some reluctance," concurred with the recommendation of three days' suspension. On April 18, 1995, a Departmental disciplinary review board met and failed to agree on corrective action. The board recommended only that the Department remove Respondent from field duty and place her in a noncritical position. Upon further deliberations, the board agreed upon a two-day suspension. Respondent served this suspension in June 1995, and the following month a quarterly evaluation dated July 1, 1995, notes that she was still using unscheduled leave. A memorandum dated September 10, 1995, notes that Respondent used 213 hours of unscheduled leave in the first eight months of 1995. By memorandum dated September 20, 1995, the major and three of his subordinates, including the person with immediate supervisory authority over Respondent, recommended to the police chief that the Department terminate Respondent due to excessive use of unscheduled leave. Rejecting the recommendation for termination, the police chief imposed a 30-day suspension without pay, based partly on the assurance of Respondent's physician that the cause of her constant illness had been corrected. Respondent served her suspension from November 22- December 21, 1995. Quarterly evaluations in June 1996 and March 1997 note some improvement in the use of unscheduled leave. From October 1996 through September 17, 1997, Respondent used 180 hours of unscheduled sick leave. From October 1, 1997, through January 26, 1998, Respondent used 82 hours of unscheduled leave. By memorandum dated January 26, 1998, the major advised the police chief of Respondent's continued use of unscheduled leave and recommended termination. By notice to Respondent from the police chief dated February 13, 1998, the chief advised Respondent that he was considering disciplinary action, including termination. The notice cites the following grounds from Article Seven, Section C, Ordinance 50-94: excessive unauthorized tardiness or absence from work, violation of Department work rules or operating procedures, actions or conduct detrimental to Petitioner's interests, or any other properly substantiated cause that adversely affects Petitioner. The notice alleges that Respondent's conduct also violates department General Order D-1.IV.36, which prohibits excessive use of unscheduled leave. The notice summarizes Respondent's past use of unscheduled leave and the discipline that she had received. The notice asserts that she had used 96 hours of unscheduled leave in the past four months. By letter dated March 12, 1998, Respondent advised the police chief that her ear, nose, and throat physician had placed her on Predisone, which had eliminated her debilitating headaches. By letter dated March 16, 1998, the police chief provided Respondent final notice of proposed disciplinary action for the four grounds mentioned in the prior notice. Respondent has raised an issue of disparate treatment. However, the record fails to reveal other, similarly situated employees with comparable patterns of usage of unscheduled leave. The record contains a detailed record of Respondent's relevant payroll history from January 1, 1994, through May 1, 1998, on which date Petitioner terminated her. By year, these records disclose the following totals of hours for unscheduled leave and leave without pay, the latter of which is due to Respondent's exhaustion of her granted leave: 1994--190 and 48.22; 1995--201 and 148; 1996--94 and 42; 1997--174 and 58; and 1998 (four months)--32.72 and 0. The respective totals are 691.72 and 296.22 hours. Respondent's use of unscheduled leave and leave without pay far exceed the averages for the Department. Respondent is a member of a collective bargaining unit, which is represented by the Florida State Lodge of the Fraternal Order of Police (FOP). Petitioner and FOP negotiated a collective bargaining agreement in effect from October 1, 1997, through September 30, 2000 (Agreement). Article 3, Section 1, of the Agreement provides: Except as specifically abridged or modified by a provision of this Agreement, City will continue to have, whether exercised or not, all of the rights, powers and authority heretofore existing, including, but not limited to, the following: . . . to hire, transfer, promote and demote employees; to direct employees, to take disciplinary action up to, and including, termination; to relieve employees from duty because of lack of work or for other legitimate reasons; [and] to issue rules and regulations . . .. Article 10, Section 2, of the Agreement describes the forms of discipline as follows: In accordance with Police Department General Order D-1 (as dated April 1, 1993), forms of corrective action will be utilized by City with the approval of the Police Chief shall include: Counseling or Re-Training--to correct and improve employee performance; Reprimand--a written statement warning the employee of the consequence of future misconduct of a similar nature; Suspension-- suspension from duty without pay; Demotion--a change to a position of lesser responsibility and salary; and Termination--dismissal from the Police Department. Article 10, Section 3, of the Agreement provides that Petitioner shall use "[p]rogressive corrective action," unless the severity of the offense dictates a more severe action. Article 11 of the Agreement provides that Petitioner may take disciplinary action against an employee for "just cause." Article 15, Section 1(a), of the Agreement grants employees with five or less years of continuous service 25 days of annual leave per year. Article 15, Section 1(b), grants employees with 6-10 years of continuous service 30 days of annual leave per year. The remaining subsections grant more leave based on years of service. Article 15, Section 1(g), of the Agreement provides: The use of annual leave for other than illness must be scheduled with the employee's supervisor. In case of illness, an employee must notify his/her supervisor not later than two (2) hours before the beginning of the scheduled work day or in accordance with Police Department Rules and Regulations. The Agreement provides that Petitioner may discipline covered employees for "just cause," but does not identify what constitutes "just cause." Ordinance 50-94 (Ordinance) sets forth the rules and regulations governing all of Petitioner's employees. Article One, Section B.2, states that the Ordinance covers employees who are parties to a collective bargaining agreement, "except that in the event of a conflict between the terms of this Ordinance and the collective bargaining agreement, the collective bargaining agreement shall govern." Article Six, Section E, provides that an employee may be dismissed for "just cause," but that the department head must comply with the procedures in Article Seven prior to termination. Article Seven, Section B, requires progressive discipline for "the same or similar conduct by the employee," although Petitioner reserves the right to impose the most severe discipline as an initial measure "when circumstances warrant." Article Seven, Section C, cites several grounds for discipline, including "[g]ross neglect of duty or specific serious failure to perform assigned duties"; "[m]ental or physical impairment, normally as supported by written documentation from not less than two licensed physicians, that prevents the employee, even with reasonable accommodation, from performing the essential functions of his or her position"; "[a]bsence without leave, or failure to give proper notice of absence"; "[e]xcessive unauthorized tardiness or absence from work"; "[v]iolation of Department work rules or operating procedures"; "[a]ctions or conduct detrimental to the interests of the City"; or "[a]ny other properly substantiated cause which adversely affects the City." Article Seven, Section D, requires that the employee proceed with a grievance for proposed discipline under the ordinance or collective bargaining agreement. Section E.5 describes the hearing conducted under the ordinance, which is the procedure that Respondent elected, and states, at Subsubsection 7, that the Administrative Law Judge is to determine if Petitioner proves by a preponderance of the evidence "just cause" for the discipline. Subsubsection 8 provides that the order is a final order. Subsubsection 9 provides for judicial review. Article Eleven describes attendance and leave. Section A.6.a provides that fulltime employees shall be present at their assigned jobs, "unless absence from duty is authorized by the Department Head as provided herein." Section A.6.c states in part: Excessive unscheduled absences or tardiness shall be grounds for disciplinary action. For purposes of this paragraph, "excessive unscheduled absences or tardiness" shall mean use which is in excess of the average number of hours and/or occurrences of unscheduled leave taken by other City employees in the same or similar positions . . .. Article Seven, Section E.3, defines unscheduled leave as that which the employee requests and the supervisor approves on the day that it is taken. This section states: "An employee's excessive use of unscheduled leave may be grounds for disciplinary action." Section E.1 contains a schedule for the accrual of leave, and the applicable monthly accrual rate, which increases with seniority, applies to the total of each employee's scheduled and unscheduled leave. Department General Order D-1 (General Order), as last revised on December 11, 1995, provides, at Section II, that it applies to [ALL] members of the Department. This section states that the police chief will use progressive discipline, "unless the severity of the offense dictates a more severe action." Section IV prohibits various acts, including feigning illness, avoiding responsibility, or failing to perform one's duties; "excessive use of unscheduled leave"; or engaging in conduct that adversely affects the morale and efficiency of the department. By memorandum dated July 20, 1987, a major in the Department advised all operations division personnel that absences, "regardless of cause," weaken the Department's ability to serve the public though personnel shortages, increase personnel costs due to overtime to cover absences, and increase burdens on other employees. The safety of the public and law enforcement officers requires a minimum staffing of law enforcement officers on each shift. The absence of a scheduled officer requires that the Department pay overtime for an unscheduled officer to report for duty. The record does not demonstrate that unscheduled absences of an officer, up to the total amount of granted leave, compromise the safety of the public or other officers. The contrary inference is precluded in part by the fact that, in the Agreement, Petitioner grants each officer a certain amount of leave and does not further restrict the officer's choice to use his or her granted leave as unscheduled leave. However, the use of unscheduled leave in excess of the granted leave is not anticipated by the Agreement and may compromise the safety of the public and other officers.
The Issue The issues are whether Petitioner received a salary overpayment from Respondent for leave usage to which he was not entitled, as set forth in correspondence dated April 26, 2013; and, if so, whether Respondent is entitled to a repayment for the salary overpayment made to Petitioner.
Findings Of Fact Petitioner, Bruce Deterding, was an employee of the Department of Health, having served as an executive director of a medical practice board, making him a Select Exempt Service (SES) employee. Petitioner entered into a settlement agreement with the Department on December 19, 2012. The agreement required Petitioner to resign his position with the Department effective February 28, 2013, and included the following conditions: Petitioner's last day in the office would be December 18, 2012, one day preceding the signed settlement agreement; and Petitioner was required to utilize 384 hours of accrued annual leave beginning on December 19, 2012, and ending on February 27, 2013. Petitioner did not participate in the preparation of the settlement agreement, but agreed to its terms by his signature. The agreement was signed by the Division of Medical Quality Assurance Director Lucy C. Gee on behalf of the Department. From December 19, 2012, through February 28, 2013, Petitioner performed as obligated under the agreement. The Department paid Petitioner for the 384 hours of leave as required by the agreement. Petitioner relied on the Department's representations that he would be able to purchase his former military service time from the State Retirement System and retire with 30 years of state service on the resignation date set forth in the agreement. Petitioner demonstrated through a screen shot of his personnel records in the "PeopleFirst" system that he had an available balance of 428 hours of annual leave at the time he entered into the settlement agreement with the Department. The Department's employee verified through PeopleFirst that sufficient hours of leave were available prior to presenting the settlement agreement offering to pay 384 hours of leave to Petitioner. The Department notified Petitioner by a letter dated April 26, 2013, that he had received salary overpayments. Specifically, the letter stated that two payments in the amounts of $1,262.48 and $1,717.56, dated February 22, 2013, and March 8, 2013, respectively, had been erroneously made to him. Petitioner, as an SES employee, received 176 hours of annual leave on his leave accrual anniversary date of July 1 each year. In 2010, Petitioner received an annual leave accrual of 176 hours on June 18, 2010, and a second annual leave accrual on July 1, 2010. On April 26, 2013, Petitioner had a telephone conversation with Meshelle Bradford, one of the Department's payroll employees, concerning potential salary overpayments. During that conversation, Petitioner acknowledged he had received the two salary accruals totaling 352 hours on June 18 and July 1, 2010. Petitioner testified that he assumed he was the beneficiary of an "extraordinarily good hire date" which entitled him to receive leave on his former (from his previous state employment) and new leave accrual dates. The Department conducted a payroll and leave audit after the date of Petitioner's resignation and separation from the agency. The audit revealed that Petitioner had been overpaid for annual leave hours that he had accrued in 2010 by mistake. Petitioner had been paid for annual leave he used in February 2013, when he had exhausted all of his accrued leave. During the two-week pay period of February 1 through 14, 2013, Petitioner received pay for 58.5 hours of leave he did not have available, and for the two-week pay period of February 15 through 28, 2013, Petitioner received pay for 80 hours of leave he did not have available, resulting from the double accrual of leave in June and July 2010. The Department's position is that Petitioner should have been in leave without pay status for the 58.5 and 80 hours of leave for which he was paid in February 2013. The calculated overpayment for the unavailable leave is $2,980.04. The Department seeks reimbursement from Petitioner for that amount. Petitioner disputes that he owes any amount due to the fact he entered into a settlement agreement that delineated the payments to be made by the Department to him as a condition of his resignation. The Department's Agency Attendance and Leave Policy, in section VI.D.3, states: "It is the employee's responsibility to maintain an accurate accounting of their leave balances."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health requiring Petitioner to repay the overpayment of salary in the amount of $2,980.04. DONE AND ENTERED this 5th day of December, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 5th day of December, 2013. COPIES FURNISHED: Mark John Henderson, Esquire Department of Health 2585 Merchants Row, Room 110J Tallahassee, Florida 32399 Bruce Milton Deterding 4841 Old Bainbridge Road Tallahassee, Florida 32303 Althea Gaines, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John H. Armstrong, M.D., F.A.C.S. State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at tee hearing, the following findings of fact are made: On or about December 5, 1969, the Petitioner, Hugh G. Purkey became employed by the State of Florida, Department of Transportation. In 1984, Petitioner held the position of Engineer II, Area Engineer and was assigned to the North Dade Maintenance Yard (NDMY). In 1983, Petitioner executed a form which acknowledged he had received a complete copy of the DOT employee handbook. The acknowledgement specified that enployees are responsible to review the handbook in detail and to request any clarification needed from a supervisor. The handbook provided the following regarding job abandonnent: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. On or about October 23, 1984, Petitioner filed a request for a medical leave of absence. This request was based upon Petitioner's pulmonary disorder which prevented him from performing his duties with the NDMY. Petitioner was to receive pay based upon his accrued annual and/or sick leave through Novenber 6, 1984, thereafter, he was to be on leave without pay for a period of four months. This leave request was approved by the Petitioner's supervisor, Clive Taylor. Mr. Taylor was the only supervisor or employee at the NDMY who was authorized to grant a leave of absence for Petitioner. On January 28, 1985, an extension of Petitioner's leave of absence was granted by Mr. Taylor. This extension authorized two additional months of leave and specified that Petitioner would return to work no later than May 6, 1985. Prior to the leave of absence described above, Petitioner had performed his duties with the NDMY in an above satisfactory manner. Prior to May 6, 1985, Petitioner had complied with the rules and regulations regarding requests for leave. Petitioner did not return to work on May 6, 1985. Petitioner did not file a request for a leave extension. Mr. Taylor did not approve an extension of the leave beyond May 6, 1985. Petitioner was absent without authorized leave on May 6, 7, and 8, 1985. On May 10, 1985, Mr. Taylor executed a form entitled "Resignation and Exit Interview Form." This form provided, in part: "Mr. Purkey is not available for signature" and "Mr. Purkey is pursuing regular disability retirement." Petitioner did not execute the form but was advised of its content by telephone. Sometime prior to April 30, 1985, Petitioner had applied for disability retirement benefits. That request was filed with the Department of Administration, Division of Retirement and was denied based upon a determination that Petitioner was not totally and permanently disabled from rendering useful and efficient service. When that determination was made, Petitioner elected to file for regular retirement since he had accrued over ten years with the State. Thereafter, Petitioner received retirement benefits which were granted and paid retroactively from February 1, 1985. On July 9, 1986, Petitioner received a physician's statement which provided: It is my professional opinion that this patient may return to work requiring no strenuous physical activity providing that the patient continue on his medication and return for regular checkups in any office. Upon receipt of the physician's statement, Petitioner contacted the NDMY to request that he be allowed to return to work. Petitioner was advised that he had been terminated from employment in May, 1985, based upon his failure to return to work following his leave of absence. On July 29, 1986, Petitioner wrote to John C. Gocdnight, Assistant Secretary of Transportation, and requested Mr. Goodnight's assistance to allow Petitioner to return to DOT. That letter admitted that Petitioner knew his position had been filled but claimed he had been on leave. Petitioner maintained that he was "much too young to retire." The letter failed to mention that Petitioner had already been receiving retirement benefits. Petitioner listed his address subsequent to November, 1984, as Dunnellon, Florida. There is no record in Petitioner's personnel file which confirms DOT sent, and Petitioner received, a notice of his termination from employment in May, 1985. Petitioner did not request a hearing to review that termination until January, 1989.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Administration enter a final order finding that the Petitioner, Hugh G. Purkey, abandoned his position and resigned from the Career Service. DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraph 1 is accepted. The first portion of paragraph 2 is accepted; the designation of his last actual day of employment is in error and is rejected as contrary to the weight of the evidence. The date indicated, January 20, 1984, was not his last day of actual employment. According to DOT exhibit 8 (the referenced citation) that date was the last date worked. Petitioner's last date of employment would have been calculated from May 5, 1985 (the last date of his authorized leave). With regard to paragraphs 3 and 4, it is accepted that Petitioner used his accrued sick and annual leave until they were exhausted. After the paid leave was used, Petitioner applied for and received, by filing the appropriate form, an authorized leave without pay. Paragraph 5 is accepted. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as comment, argument, or recitation of testimony which does not constitute a finding of specific fact. Paragraph 11 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as contrary to the weight of the credible evidence. Paragraph 14 is rejected as vague and ambiguous. It is accepted that Petitioner filed his original leave request and that Ms. Sellers assisted him. Paragraph 15 is rejected as incomplete and contrary to the weight of the evidence. Paragraph 16 is accepted to the extent that it provides that clerks would assist persons who requested such assistance. The first three sentences of paragraph 17 are accepted; the balance of the paragraph is rejected as argument or contrary to the weight of the evidence. The first sentence of paragraph 18 is accepted. The remainder of the paragraph is rejected as irrelevant or unknown. DOT did not establish that the form was sent and received by Petitioner. Paragraph 19 is accepted. Paragraph 20 is rejected as a provision of law. The parties have not disputed that the notice is required. Paragraph 21 is accepted to the extent that DOT cannot prove that such notice was provided to Petitioner. Paragraph 22 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 23 is rejected as irrelevant since Petitioner did not request that his medical leave be continued as required by the rule. Paragraph 24 is rejected as irrelevant. Further, the authorization to return was not without limitation. Paragraph 25 is rejected as contrary to the weight of the credible evidence. Paragraph 26 is rejected as irrelevant. Paragraph 27 is rejected as irrelevant. With regard to the letter to Goodnight, Petitioner admitted in that letter that he knew his position had been filled. Paragraph 28 is rejected as irrelevant. Paragraph 29 is accepted but is irrelevant. Paragraph 30 is accepted. Paragraph 31 is rejected as irrelevant or not covered by the record. With regard to paragraph 32, it is accepted that Petitioner's request for disability retirement was denied and that he ultimately elected to seek early retirement; otherwise, it is rejected as hearsay uncorroborated by direct evidence. Paragraph 33 is accepted. Paragraph 34 is rejected as irrelevant or contrary to the credible evidence. Paragraph 35 is rejected as irrelevant. Paragraph 36 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 37 is rejected as irrelevant. Paragraph 38 is rejected as comment, argument, or recitation of testimony. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is rejected as contrary to the weight of the credible evidence. Petitioner's section described as "Analysis" has not been considered findings of fact. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY DOT: 1. Paragraphs 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 24, and 25 are accepted. Paragraph 2 is rejected as Irrelevant. Paragraph 4 is rejected as irrelevant. Paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted but is unnecessary. Paragraph 23 is rejected as unsupported by the record. DOT's section described as "Analysis" has not been considered findings of fact COPIES FURNISHED: Paul H. Field WICKER, SMITH, BLOMQVIST, TUTAN, O'HARA, McCOY, GRAHAM & LANE Grove Plaza Building, 5th Floor 2900 Middle Street Miami, Florida 33133 Charles Gardner Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Acting Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
