The Issue Whether respondent's rules of conduct contained in Department of Law Enforcement Directive #200.08 constitute an invalid exercise of delegated legislative authority on the ground that they were not promulgated in accordance with Chapter 120, Florida Statutes (1979)
Findings Of Fact Petitioner Maggie L. Allen was a Career Service employee (with permanent status) of the Department of Law Enforcement until she was terminated from her position or about June 15, 1981. She has appealed her termination to the Florida Career Service Commission. (Prehearing Stipulation, p. 2; Respondent's Admissions.) The reason given for her termination was, in part, her alleged violation of Department Directive #200.08(5), Rules of Conduct ("Directive") . More specifically, the Department charged her with violating specific rules of conduct contained in the Directive: Rule 10, entitled, "Insubordination"; Rule 22, entitled, "Departmental Reports"; Rule 23, entitled, "Performance of Lawful Duty"; and Rule 34, entitled, "Truthfulness." (Prehearing Stipulation, p. 2; Respondent's Admissions; Exhibit No. 3.) The Directive, effective November 27, 1978, is an official statement of Department policy and is generally applicable to all employees of the Department. Its stated purpose is "to provide each Departmental employee with clear examples of acts which would violate the above personnel rules or statutes." (Emphasis supplied.) (Exhibit No. 1.) Essentially, the Directive defines acceptable conduct for Department employees by specifically enumerating 35 standards of conduct. By its terms, breach of one or more of those standards constitutes employee misconduct and may result in disciplinary action against an employee ranging from oral reprimand to discharge. However, these standards are not intended to be an exclusive, or exhaustive listing of impermissible conduct. (Respondent's Admissions; Exhibit No. 1.) The Directive is part of the Department's Duty Manual, a volume containing directives on personnel, administrative, training, and fiscal matters as well as the operations of the Department's divisions. The stated purpose of the Duty Manual is to "inform and guide . . . [Department] officers and employees in the performance of their official duties." (Exhibit No. 2.) The Duty Manual recites that it is "promulgated" pursuant to Chapter 120, Florida Statutes, that copies are disseminated to all employees and that employees must obey, comply with, and follow the Manual's directives. The Manual has been incorporated, by reference, in Department Rule 11-1.12, Florida Administrative Code. All formalities concerning publication of Rule 11-1.12 were complied with prior to its publication in the Florida Administrative Code. (Prehearing Stipulation; Exhibit No. 2.) Department Rule 11-1.12, incorporating--by reference--the Duty Manual, was adopted on March 20, 1979, for the purpose of validating those portions (unspecified) of the Manual which constituted "rules" under the APA. At the time, the Department anticipated that adopting the Manual, by rule, would "lead to greater efficiency." (Exhibit No. 2.)
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Verna M. Johnson, terminated all employment with a Florida Retirement System employer, or employers, as defined in Section 121.021(39)(b), Florida Statutes, when she concluded or terminated her "DROP" participation and therefore whether she actually, finally retired.
Findings Of Fact The Petitioner was employed by the Alachua County School Board in 1998 and 1999 and prior to that time. She was a regular class member of the FRS who begin participating in the DROP program on August 1, 1998. Thereafter, on July 9, 1999, the Petitioner terminated her employment with Alachua County Schools to begin receiving her DROP accumulation and her monthly FRS retirement benefits. The Petitioner and her husband had founded the Caring and Sharing Learning School (Charter School) back on January 28, 1998, while the Petitioner was employed by the Alachua County School District and had not yet retired or entered the DROP program. She was a full-time FRS employee with the Alachua County School system. The Charter School was not then an FRS employer, nor were retirement contributions made on the Petitioner's behalf by the Charter School. She worked most of the ensuing year after entering the DROP program, and on June 9, 1999, ended her employment relationship by exercising her resignation from the Alachua County School District employment, at which point she began receiving FRS benefits and her DROP accumulation. Thereafter, on July 16, 1999, the Director of State Retirement for the FRS, and the Charter School, entered into an agreement for admission of the Charter School to the FRS as an FRS employer. It had not been an FRS-enrolled employer before July 16, 1999, slightly over a month after the Petitioner had terminated her employment with the school district and began receiving her DROP accumulation and retirement benefits. That agreement provided that the effective date of admission of the Charter School into the status of an FRS employer (with attendant compulsory FRS membership by all employees) was related back with an effective date of August 24, 1998. The record does not reflect the reason for this earlier effective date. The Petitioner continued to work as an administrator with the Charter School even through the date of hearing in 2005. The Division performed an external audit of the Charter School during the week of March 15, 2004. In the process of that audit the Division received some sort of verification from the school's accountant to the effect that the Petitioner was employed as an administrator and had been so employed since August 24, 1998. Because of this information, the Division requested that the Charter School and the Petitioner complete "employment relationship questionnaires." The Petitioner completed and submitted these forms to the Division. On both questionnaires she indicated that the income she receives from the school was reported by an IRS form W-2 and thus that the employer and employee-required contributions for employees had been made. She further indicated that she was covered by the school's workers' compensation policy. On both forms the Petitioner stated that her pay was "more of a stipend than salary." On the second form she added, however, "when it started, at this time it is salary." She testified that she was paid a regular percentage of her total income from the Charter School before her DROP termination and the stipend after. She added that she just wrote what she "thought they wanted to hear" (meaning on the forms). The check registers provided to the Division by the Petitioner also indicate "salary" payments for "administrators" in September 1999. It is also true that the Petitioner from the inception of the Charter School in January 1998, and was on the board of directors of the Charter School corporation. According to the Division, the Petitioner was provided at least "three written alerts" by the Division that she was required to terminate all employment relationships with all FRS employers for at least one calendar month after resignation, or her retirement would be deemed null and not to have occurred, requiring refund of any retirement benefits received, including DROP accumulations. The Division maintains that based on the material provided it by the Petitioner, that the Petitioner was an employee of the Charter School from August 24, 1998 (the date the "related-back agreement" entered into on July 16, 1999, purportedly took effect) through at least May 12, 2005. It is necessary that a member of the FRS earning retirement service credits, or after retirement or resignation, receiving retirement benefits have been an "employee," as that is defined in the authority cited below, in order for the various provisions of Chapter 121, Florida Statutes, and related rules to apply to that person's status. This status is determinative of such things as retirement service credit contributions and benefits, including DROP benefits, entitlement, and accumulations and the disposition made of them. In any event, the Division determined that the Petitioner had been an employee of the Charter School, as referenced above, and took its agency action determining that the Petitioner failed to terminate all employment relationships with all FRS employers (that is she kept working for the Charter School) before and during the month after resignation from the Alachua County School Board and continuing through May 12, 2005, as an employee in the Division's view of things. Therefore, because she was still employed by an FRS employer during the calendar month of July 1999 (only because of the agreement entered into between the Charter School and the division director on July 16, 1999,) her retirement (which had ended her employment with the Alachua County School System) was deemed null and void. The Division thus has demanded that she refund all retirement benefits and DROP accumulations earned or accrued between the date of entry into DROP which was August 1, 1998, through approximately May 12, 2005. This apparently totals approximately $169,000.00.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Management Services, Division of Retirement, determining that the Petitioner's retirement was effective and lawful, that she was entitled to the retirement benefits accrued and paid from June 9, 1999, forward, including the DROP accumulations that accrued up from August 1, 1998, until that date. DONE AND ENTERED this 3rd day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of March, 2006. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-0950 Verna M. Johnson 3432 Northwest 52nd Avenue Gainesville, Florida 32605 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner, John F. Morack, is a member of the Teachers Retirement System (TRS). The TRS is administered by respondent, Department of Administration, Division of Retirement (Division). On April 18, 1988, petitioner began working for a new employer and concurrently filled out an application form to enroll in the Florida Retirement System (FRS), a plan also administered by the Division. By letter dated June 27, 1988, the Division, through its chief of bureau of enrollment and contributions, Tom F. Wooten, denied the request on the ground Morack failed to qualify for such a transfer. Dissatisfied with the agency's decision, Morack initiated this proceeding. Petitioner first enrolled in the TRS on September 18, 1970, when he began employment as a dean at Broward Community College. At that time, he had no option to enroll in any retirement program except the TRS. Under the TRS, an employee did not have to make contributions to social security and earned "points" for calculating retirement benefits at a rate of 2% for each year of creditable service. In contrast, under the FRS, which was established in late 1970, members earned benefits at a rate of only 1.6% per year but were participants in the social security program. Finally, a TRS member could not purchase credit for wartime military service unless he was an employee at the time he entered the military service and was merely on a leave of absence. On the other hand, an FRS member could purchase credit for military service after ten years of creditable service as long as such military service occurred during wartime. When the FRS was established in late 1970, members of the TRS were given the option of transferring to the newly created FRS or remaining on TRS. Morack executed a ballot on October 15, 1970 expressing his desire to remain on the TRS. In November 1974, the Division offered all TRS members an open enrollment period to change from TRS to FRS. Morack elected again to remain on the TRS. In the latter part of 1978, the Division offered TRS members a second open enrollment period to switch retirement systems. On November 21, 1978, Morack declined to accept this offer. On January 1, 1979 Morack accepted employment with the Department of Education (DOE) in Tallahassee but continued his membership in the TRS. He remained with the DOE until July 1981 when he accepted a position in the State of Texas. However, because Morack intended to eventually return to Florida, he left his contributions in the fund. Approximately two years later, petitioner returned to Florida and accepted a position at Florida Atlantic University (FAU) in Boca Raton as assistant vice president effective July 11, 1983. About the same time, he prepared the following letter on a FAU letterhead. To Whom it May Concern: This is to indicate that I elect remaining in TRS rather than FRS. (Signature) John F. Morack The letter was received by the Division on July 19, 1983, and the enrollment form was processed on November 2, 1983. Although Morack stated that he was told by an FAU official that he could not transfer plans at that time, there is no competent evidence of record to support this claim since the testimony is hearsay in nature. On November 18, 1985, Morack requested the Division to audit his account for the purpose of determining how much it would cost to purchase his Korean War military service. On January 24, 1986, the Division advised Morack by memorandum that because he had "no membership time prior to (his) military service, that service is not creditable under the provisions of the Teachers' Retirement System." During the next two years Morack requested two audits on his account to determine retirement benefits assuming a termination of employment on July 31, 1987 and June 30, 1988, respectively. On April 14, 1988, Morack ended his employment with FAU and began working on April 18, 1988, or four days later, at Palm Beach Junior College (PBJC) as construction manager for the performing arts center. When he began working at PBJC he executed Division Form M10 and reflected his desire to be enrolled in the FRS. As noted earlier, this request was denied, and Morack remains in the TRS. The denial was based on a Division rule that requires at least a thirty day break in service with the state in order to change retirement plans after returning to state employment. Because Morack's break in service was only four days, he did not meet the requirement of the rule. At hearing and on deposition, Morack acknowledged he had several earlier opportunities to transfer to the FRS but declined since he never had the benefits of the FRS explained by school personnel. As retirement age crept closer, petitioner began investigating the differences between the TRS and FRS and learned that the latter plan was more beneficial to him. This was because the FRS would allow him to purchase almost four years of military service, a higher base salary would be used to compute benefits, he could participate in social security, and there would be no social security offset against his retirement benefits. Also, petitioner complained that school personnel were not well versed in retirement plans and either were unaware of alternative options or failed to adequately explain them. As an example, Morack points out that when he returned from Texas in 1983 he was not told by FAU personnel about the change in the law now codified as subsection 121.051(1)(c). Finally he thinks it unfair that the Division counts four days employment in a month as a full month's creditable service for computing benefits but will not count his four days break in service in April 1988 as a full month for computing the time between jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to change retirement plans be DENIED. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4183 Respondent: 1. Covered in finding of fact 6. 2-4. Covered in finding of fact 7. 5. Covered in finding of fact 10. 6-7. Covered in finding of fact 11. Covered in findings of fact 8 and 11. Covered in findings of fact 1 and 10. COPIES FURNISHED: Mr. John F. Morack 10474 Green Trail Drive Boynton Beach, Florida 33436 Stanley M. Danek, Esquire 440 Carlton Building Tallahassee, Florida 32399-1550 Andrew J. McMullian, III State Retirement Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Adis Maria Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire general Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue in this case is whether the Petitioner, Gloria Godbolt, should be deemed, pursuant to Rule 22A-7.010(2), Florida Administrative Code, to have abandoned her position of employment with the Respondent, University of Florida.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. At all times material to this case, the Petitioner, Gloria Godbolt, was a Career Service employee of the Division of Finance and Accounting of the University of Florida. The last position held by Petitioner with the University of Florida was that of a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting. Petitioner last reported to work at the University of Florida on April 25, 1986. On April 27, 1986, the Petitioner called her sister, Ella Godbolt, collect from the Broward County jail. The Petitioner asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner was sick. On April 28, 1986, and again on April 29, 1986, Petitioner's sister, Ella Godbolt, called the Petitioner's office to notify the Respondent that the Petitioner was sick and would not report to work on each of these two days. On April 30, 1986, Ella Godbolt told the Petitioner's supervisor, Grace Strawn, that the Petitioner was sick, that the Petitioner had a doctor's appointment for the following day, and that the Petitioner would not be at work for the rest of the week. The Petitioner called her sister the following Sunday night, May 4, 1986, and asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner would not be at work that week, and that the Petitioner would explain everything later. On Monday, May 5, 1986, Ella Godbolt again talked to Grace Strawn on the telephone and informed Strawn that the Petitioner would not be at work that week and that Petitioner would call later in the week to explain the reasons for her absence. The Petitioner did not call Grace Strawn during the week of May 5, 1986. From May 6, 1986, through May 16, 1986, both dates inclusive, neither the Petitioner nor anyone on her behalf communicated either orally or in writing with the Respondent to report that the Petitioner would be absent from work or to explain the reasons for the Petitioner's absence. The Petitioner was advised by her attorney Michael Swan, that she should not report the fact of her arrest and confinement to anyone. However, that advice was not given to her until approximately one week after her incarceration. From April 26, 1986, through May 16, 1986, the Petitioner was incarcerated in Broward County, Florida, and, because of that incarceration, was unable to report to work on any of those days. During her period of incarceration, the Petitioner had access to a telephone which could be used to make "collect" long distance calls and she also had available the means necessary to write and mail a letter to her employer. The Petitioner neither called nor wrote to her employer to report her absence or to request appropriate leave. Instead, the Petitioner arranged for her sister to call the Petitioner's employer during the Petitioner's first week of absence to falsely report that the Petitioner was sick and to request sick leave for her absence. Based on these false representations, the Petitioner was granted sick leave for the first week of her absence. On May 17, 1986, which was a Saturday, the Petitioner returned to Gainesville. Upon learning that some of the employees in her department were working that day, the Petitioner went to her workplace to ask about her job. Her supervisor, Grace Strawn, told the Petitioner that it was out of her hands. The Petitioner did not explain to Strawn that she had been incarcerated and had not been sick. Again, on May 19, 1986, when the Petitioner talked with Cynthia Fidalgo Evans, Associate University Controller, asking what she could do to get her job back, she misrepresented to Ms. Evans that she had been hospitalized in Broward County. It was not until May 30, 1986, two weeks after the Petitioner had been released from jail, that the Petitioner corrected the record by stating in a letter to William Zeanah, Assistant University Controller, that she had been incarcerated and not sick as previously reported. The Petitioner was aware that she had to let her employer know if she was going to be absent from work and obtain appropriate leave for her absence. She was also aware that three consecutive workdays of unauthorized leave were considered job abandonment by the Respondent. On September 15, 1980, when the Petitioner was first employed, she signed a statement acknowledging receipt of the Career Service Employee Handbook of the University of Florida. This handbook provides at page 27: If you must be unavoidably absent from your job (that is, other than planned vacations or personal business times that have been approved in advance), let your supervisor know as soon as possible on the first day of absence why you must be absent and when you expect to return. If your anticipated return date changes, keep your supervisor informed. Unapproved absences for three consecutive workdays are considered job abandonment and, therefore, voluntary resignation. . The Respondent has consistently notified employees who have been on unauthorized leave for three consecutive workdays that they are considered to have abandoned their jobs and to have voluntarily resigned from the Career Service system. The Respondent needed to know if and when it could expect the Petitioner to report to work in order to make appropriate arrangements to have her work done in a timely fashion during her absence. As a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting, the Petitioner processed the necessary documents to pay vendors for the foods and services they provided to Respondent. Petitioner's task was the last step performed by Respondent before submitting vendors' invoices to the State Comptroller for payment by the issuance of warrants. The Petitioner was therefore aware of the importance of her job and of Respondent's need to have her job performed within specified time constraints. Petitioner was further aware that the Respondent is required by law to process vendors' invoices during a 15-day period and that failure to do so could result in penalties being imposed against the Respondent and disciplinary action taken against employees who persistently fail to process vendors' invoices in a timely fashion. Due to Petitioner's long and continuous unreported absence, Petitioner's supervisor had to work two consecutive Saturdays with other members of her staff in order to process vendors' invoices within the five-day period allotted to her office to accomplish that task.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Gloria Godbolt, was appropriately terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ORDERED this 4th day of May, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH 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 4th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3929 The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. It will be helpful to a complete understanding of the rulings which follow to know that there was a great deal of conflict in the testimony of some of the witnesses who testified at the hearing. Most, if not all, of the conflicts in the testimony have been resolved in favor of the version of the facts advanced by the Respondent. In resolving the conflicts in the testimony, I have taken into account a number of matters, the most important of which are: how logical or illogical the competing versions were, whether the testimony was consistent or inconsistent with other reliable evidence, whether the witness had an interest in the outcome of the case, the extent to which the witness' credibility was impeached by prior inconsistent statements, if any, and, of course, the demeanor of the witness while testifying. It should also be noted that the finding that the Petitioner was the instigator of the false reports of her illness that were passed along to the Petitioner's employer is a finding based on the most reasonable inference to be drawn from the evidence. Rulings on Petitioner's proposed findings Accepted in part and rejected in part. Rejected portion relates to what Ella Godbolt told the supervisor. Accepted in part and rejected in part. Rejected portion relates to what Ella Godbolt told the supervisor. Accepted in part and rejected in part. Rejected portion relates to what the Petitioner told her sister to do. Accepted in substance with minor modifications in the interest of accuracy. Rejected as not supported by credible evidence. Accepted, with additional findings in the interest of clarity and accuracy. Rejected as irrelevant to the disposition of this case. Rejected as irrelevant to the disposition of this case. Rejected as not supported by credible evidence and as contrary to the greater weight of the evidence. Rejected as not supported by credible evidence and as contrary to the greater weight of the evidence. Accepted in substance. Rejected as subordinate and unnecessary details. Accepted in substance. Accepted in substance. Accepted, with additional findings in the interest of clarity and accuracy. Rulings on Respondent's proposed findings Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. First four sentences of this paragraph are rejected as subordinate and unnecessary details. Last two sentences are covered in the explanatory comments at the beginning of this Appendix. Accepted. Accepted. Rejected as subordinate and unnecessary details. Accepted. Accepted, with exception of last sentences and quoted material which are rejected as subordinate and unnecessary details. First sentence of this paragraph accepted. Second sentence rejected as unnecessary surplusage. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Carla D. Franklin, Esquire Rodney W. Smith, P.A. Post Office Box 628 Alachua, Florida 32615 Isis Carbajal de Garcia, Esquire Associate General Counsel 207 Tigert Hall University of Florida Gainesville, Florida 32611 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At the times pertinent to this proceeding, Petitioner held a career service position with the Department of Health and Rehabilitative Services (DHRS). His job title was Public Assistance Specialist II. On September 10, 1990, Petitioner requested authorization to use 120 hours of accumulated annual leave beginning September 17, 1990, through October 5, 1990. Because of the office work load, Petitioner's supervisor, Doreen Moskowitz, authorized him to take 80 hours of leave beginning September 17, 1990, through September 28, 1990. Petitioner accepted this authorization and agreed to return to work on the morning of Monday, October 1, 1990. While on leave, Petitioner traveled to his native country of Nigeria to visit his mother who was ill. While in Nigeria, Petitioner became ill and was under the care of a doctor in Nigeria between September 27, 1990, and October 5, 1990. On October 5, 1990, Petitioner was determined by his doctor to be fit to travel. Because his travel plans had been disrupted by his illness, Petitioner had difficulty making arrangements to return to Miami. On Monday, October 8, 1990, Petitioner flew from London to New York and from New York to Miami. On Tuesday, October 9, 1990, Petitioner reported to work. Petitioner's wife did not accompany him to Nigeria, but remained in the Miami area. Petitioner contacted his wife from Nigeria by telephone and caused her to call his supervisor on several occasions to advise that Petitioner would not be returning to work on October 1, 1990, as scheduled and the reasons for his absences. On October 1, 1990, Petitioner's wife called Ms. Moskowitz and informed her that Petitioner had fallen ill in Nigeria and would not be able to return to work as scheduled. Petitioner's wife was informed that Petitioner's leave was unauthorized. Petitioner's wife called Ms. Moskowitz again on October 4 and on October 5, 1990, and informed her that Petitioner was still ill in Nigeria. Petitioner's wife also called Ms. Moskowitz on October 8, 1990, and told her that Petitioner was in London en route to Miami. On October 1, 1990, Petitioner left a telephone message with a coworker, Shirley Franklin, advising that he was ill in Nigeria and hoped to return to work on October 5, 1990. Ms. Franklin, at Petitioner's request, gave this message to Ms. Moskowitz. Petitioner also called another coworker, Sylvester Onyemeziem, to advise him of his illness in Nigeria and asked that he contact Ms. Moskowitz and to make sure that Petitioner's wife had spoken to Ms. Moskowitz. Mr. Onyemeziem gave this information to Ms. Moskowitz and confirmed with Petitioner's wife that she had also contacted Ms. Moskowitz. The DHRS Employee Handbook, dated October 1, 1988, advises employees at page 13 under the heading of Absences: If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. The standard procedure followed by this DHRS office is to require employees to make personal contact with his or her supervisor to advise the supervisor of any absences and to explain the reasons therefor. This standard procedure has not been adopted as a rule. In this instance, it was very difficult for Petitioner to call Ms. Moskowitz during her business hours because of his limited access to international telephone lines. (The telephone calls Petitioner made to his wife and to his coworkers were placed either before or after normal business hours.) Petitioner was absent from his employment without authorized leave on October 1, 2, 3, 4, 5, and 8, 1990. On October 8, 1990, DHRS terminated Petitioner's employment as a career service employee. The letter of termination provided, in pertinent part, as follows: In accordance with Chapter 22A-7 of the State of Florida Career Service Rules and Regulations, since you did not report to work as scheduled October 4, 5, 8, 1990 and you have not reported to work since that time; you have abandoned your position of Public Assistance Specialist II. Your resignation was effective at the close of business October 4, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner did not abandon his career service position and which orders that Petitioner be reinstated with back-pay to his career service position with the Department of Health and Rehabilitative Services. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1991. COPIES FURNISHED: William C. Robinson, Esquire 220 Courthouse Plaza 28 West Flagler Street Miami, Florida 33130 Jacqueline S. Banke, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard, Room 513 Fort Lauderdale, Florida 33301 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Petitioner was employed by Florida State University during the 1979- 1980 academic year as a tenured professor of chemistry at an annual salary of $22,819.00. Petitioner submitted an Application for Service Retirement Benefits dated May 2, 1980, to Respondent, which application reflected Petitioner's intention to terminate his employment at Florida State University effective May 30, 1980. Previously, Petitioner had advised the Chairman of the Chemistry Department of Petitioner's intention to retire effective June 5, 1980. However, in submitting the aforesaid application dated May 2, 1980, Petitioner determined to relinquish four days of employment salary in June in order to become eligible for retirement benefits begin to accrue on the first day of the first month following termination of employment. Petitioner's request to terminate his employment effective May 30, 1980, was approved by both his department chairman and by the Retirement Coordinator at Florida State University. As a result of his notification of intent to terminate his employment effective May 30, 1980, Petitioner was removed from the payroll of Florida State University effective May 30, 1980. However, Petitioner continued to perform his duties as a professor of chemistry at Florida State University until the end of the academic school year on June 16, 1980. Petitioner continued actual classroom and laboratory instruction until the end of classes on June 6, 1980. Petitioner continued actual classroom and laboratory instruction until the end of classes on June 6, 1980, and, following the end of classes, he conducted final exams, graded examinations, issued grades and, on June 16, 1980, briefly attended a faculty meeting. Although Petitioner's contract of employment provides for a faculty appointment from September 7, 1979 through June 5, 1980, these dates relate only to pay periods, since a faculty member's contractual duties and responsibilities, unless specifically altered by mutual agreement between the contracting parties, extend through the end of the academic school year in this case, June 16, 1980. The academic school year at Florida State University is nine months long and is comprised of three academic quarters, during which approximately one-third of a faculty member's annual salary is paid in each of the three academic quarters. Petitioner was paid through May 30, 1980, by Florida State University, and received no payment for services rendered during the month of June, 1980. However, when Florida State University officials were advised by respondent's personnel that Petitioner's request to establish May 30, 1980 as his termination date for retirement purposes would not be honored, Petitioner was advised that the University stood ready to pay him the $468.08 which he would have received for his work in June, 1980, had he not chosen the May 30, 1980 employment termination date. The record reflects that Petitioner made the decision to choose May 30, 1980, as his employment termination date, rather than the later date of June 5, 1980, during counseling sessions with representatives of Respondent, when it became apparent to them that he could receive $1,554.64 in retirement benefits for the month of June, as opposed to the $468.08 he would receive in June in salary had he chosen to continue to receive his salary for services performed at Florida State University. Petitioner was correctly advised by Respondent's personnel that by working through June 5, 1980, and earning salary for that time period, he would be ineligible to begin accruing retirement benefits until the end of June, 1980.
The Issue Whether petitioner abandoned her position and is deemed to have resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact The petitioner was first employed by the State of Florida with the Department of Health and Rehabilitative Services on May 2, 1980. At the time, the petitioner owned her own accounting firm. However because she intended to remain in State employment for a minimum of ten years and did not want to jeopardize her position with HRS, she closed out her accounting firm transferring her clients to another member of Florida State Accounting Association. On October 28, 1985, petitioner became ill with acute bronchitis. She did not return to work until November 8, 1985. During that period of time, she was on authorized leave. On Saturday, November 23, the petitioner had a relapse. After calling her doctor, petitioner resumed taking the medication that had previously been prescribed and stayed in bed. On November 25, 1985, Angela Gary, a co-worker, went by Petitioner's home to give her a ride to work. Petitioner informed Ms. Gary that she would not be going to work that day. Petitioner did not explain to Ms. Gary that she was ill and did not ask Ms. Gary to take any message to the petitioner's supervisor, Ms. Matson, or to the District Fiscal Officer, Mr. Fisher, who was in charge of the entire accounting section. 1/ Mr. Fisher was aware that Ms. Gary was to provide a ride for petitioner on November 25, 1985. Therefore when petitioner did not report to work, Mr. Fisher asked Ms. Gary if she had remembered to go by petitioner's house. Ms. Gary told Mr. Fisher that she had remembered to go by the house but that petitioner said that she wasn't going to work. On Tuesday, November 26, Ms. Gary again went by petitioner's home to drive her to work. At that time, petitioner told Ms. Gary that she wouldn't be going to work and that Ms. Gary did not have to come by her house on Wednesday unless the petitioner called her. Because petitioner did not feel capable of returning to work on Wednesday, she did not call Ms. Gary. Therefore, Ms. Gary did not go by petitioner's house on Wednesday November 27, 1985. At no time during the three day period that she was absent from work did the petitioner telephone her supervisor to inform her of the situation. Prior to this three-day period, petitioner had been absent on several occasions and had always called her supervisor to inform the supervisor that she would be unable to report to work. She was quite familiar with the procedure that she needed to follow. Petitioner had received a copy of the HRS Employee Handbook, HRSP 60-1, which includes procedures to be followed to obtain authorized leave. The procedure for sick leave includes the following: As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness....Your supervisor should also be given an estimate of the length of the absence. Medical certification may be required. Further, within the accounting section, the employees had been specifically advised that they had to speak directly to their immediate supervisor when calling in sick. Although petitioner was aware of the sick leave procedure, she did not attempt to call her supervisor at any time during the three-day period she was absent. Her only reason for not calling was that the medication she was taking made her "woozy" and that she slept most of the time. There was no evidence to suggest that petitioner was incapacitated to the degree that she was unable to call her supervisor. 1O. November 27-28 were holidays. On December 2; 1985, the following Monday, petitioner called her supervisor in the morning to inform the supervisor that she would be late to work. At that time, petitioner was informed that she was no longer employed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Health and Rehabilitative Services in deeming Virginia I. Lee to have abandoned her position and resigned from the Career Service. DONE and ENTERED this 29th day of April, 1986, in Tallahassee 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 29th day of April, 1986.
The Issue Whether petitioner should be removed from the Florida Retirement System, as of July 1, 1979, on grounds of ineligibility.
Findings Of Fact Petitioner, a licensed attorney, practices law in Clewiston, Hendry County, Florida. Since at least September 1, 1970, he has continuously engaged in the private practice of law in Clewiston. On September 1, 1970, the Glades County School Board ("School Board" or "Board") hired him as the School Board attorney, a position which he continues to hold. This is a part-time position, since the Board has no need for a full-time attorney. The School Board is headquartered at Moore Haven, 16 miles northwest of Clewiston, in neighboring Glades County. The terms and conditions of petitioner's employment with the School Board have remained virtually unchanged since he was originally hired. Each year, the School Board sets his salary consisting of a monthly retainer or salary, plus a fixed amount per hour for any additional professional services or litigation required by the School Board. For the 1979-80 school year, the Board set his salary or retainer--terms which the School Board used interchangeably-- as shown by the Minutes of the July 11, 1979, meeting: 3. SALARY/SCHOOL BOARD ATTORNEY - 1979-80 Chairman Hilliard opened the floor for discussion on the salary for the school board attorney for the 1979-80 school year. After some discussion between the board and Mr. Potter, the board proposed a retainer of $750.00 per month. (annual salary of $9,000.00) plus $50.00 per hour for additional pro fessional services or litigation required by the board. ON MOTION by Sapp, seconded by Johnson, the board approved this pro- posal for school board attorney for the 1979-80 school year. (Vote: Arnold, yes; Johnson, yes; Taylor, yes; Sapp, yes; Hilliard, yes.) His salary is paid from the School Board's regular employee salary account. But as the School Board's attorney, unlike other School Board employees, he does not accrue annual leave, sick leave, or pay during vacations, holidays or illness, though when he is sick or on vacation, there is no adjustment to his salary. He is reimbursed for work-related travel and meals at the rates provided by Section 112.061, Florida Statutes (1983), and is covered by the School Board's group health and life insurance, and Workers' Compensation. Since 1970, the Board has withheld his Social Security contributions from his fixed monthly salary payments; has paid the employer's Social Security contributions on his salary payments; and has annually reported his monthly salary payments on Internal Revenue Service Form W-2. To this extent, the School Board considered him an employee and treated him the same as it treated its other employees. The legal services which he furnished the School Board are described in his employment agreement and the School Board's job description for the position: TYPICAL DUTIES: Attend all regular Board meetings and such special meetings as deemed advisable by Board Chairman or Superintendent. Be available for routine telephone or personal consultations with Board Chairman, Superintendent and Staff members. Perform legal research. Prepare or approve leases or agreements prior to execution by Board. Prepare and prosecute law suits in behalf of Board and defend law suits against Board, including any actions against Superintendent, Staff or other school district employees allegedly arising etc., unless special counsel is deemed necessary by Board Attorney with Board's concurrence. Attend the quarterly seminars/meetings of Florida School Board Attorneys Association; and any other approved by Board. Represent Board and/or Superintendent in personnel matters where appropriate, as well as student discipline matters. School Board meetings, held monthly, last approximately one and one-half hours. Litigation, although described as a typical duty, is considered extra work, and an hourly rate is charged over and above the monthly salary. Petitioner agrees that he would not knowingly accept any new clients which would cause a conflict of interest with his School Board employment. Although he has been free to turn down work assigned by the School Board, he never has--at least through 1976. As explained by Mr. Strope, Superintendent of Schools from 1968 to 1976, although petitioner was free to turn down work, he "shouldn't have." Petitioner is not required to maintain any set office hours, and his monthly salary does not vary with the number of hours' work. He is not furnished office space by the School Board. The majority of his legal work for the Board is performed at his private law office, in Clewiston. The cost of operating his law office is not a budget item in the School Board's budget. Under his employment arrangement with the School Board, he furnishes all personnel, equipment, and facilities needed to perform his services. He is responsible for supervising the secretaries who work in his private office. Occasionally, when he is at School Board headquarters in Moore Haven he will ask a School Board employee to type a document. At his request, however, the School Board will furnish him pencils, legal pads, legal periodicals and stationery. It also pays for his travel; for per diem expenses incurred while attending legal seminars or meetings; and for long distance telephone calls made in connection with his School Board employment. He is neither responsible for, nor supervises, any employee of the School Board. The School Board does not furnish him any legal secretaries or part-time attorney assistants. He has not shown what percentage, or amount, of his working hours are devoted to performing legal services for the School Board, as opposed to legal services which he performs for his other clients. Other than assigning specific legal tasks, the School Board exercises no more control over the means, methods, and manner by which petitioner performs the legal work given him than is ordinarily exercised by any client over an attorney. Because of ethical constraints and the nature of legal work, petitioner must exercise independent professional judgment. Since September 1, 1970 2/, petitioner has been enrolled in the FRS. This was accomplished by his filling out a prescribed form which the School Board then filed with the Division. The Board then began reporting him on its employee rolls. There is no evidence that the initial FRS entry form, filed with the Division, described petitioner's work duties or the nature of his employment with the School Board. Both the Board and the Division enrolled him in the FRS, believing that he was eligible for membership. The Division did not question or investigate the nature of his employment relationship with the Board until 1983. From his initial enrollment until January 1, 1975, when FRS became a non-contributory system, petitioner contributed one-half of the the required FRS contribution, while the School Board contributed the other half. Since January 1, 1975, the School Board has contributed 100 percent of his contributions to FRS. During the 1970s petitioner's membership in the FRS prevented him from participating in any other tax sheltered retirement plan. 3/ Since July 1, 1979, the Division has, by rule, given notice that consultants and other professional persons contracting with public employers are, ordinarily, ineligible for membership in the FRS. All public employers, including the School Board, have been asked to remove such persons from their retirement payrolls. Since at least July 8, 1981, petitioner was on notice that his status as an employee, and his eligibility for continued membership in the FRS, were in question. Both the parties stipulate that part-time electricians, plumbers, painters, combustion engine mechanics, air conditioning mechanics, janitors or sewage plant operators (and even other occupations) employed in 1983 by the Glades County School Board on a year-round salary basis (i.e., at least 10 consecutive months), and paid out of the School Board's regular salary and wage account, would be mandatory members of FRS by statute. (Prehearing Stip., para. E. 6)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order removing petitioner from membership in the Florida Retirement System, as of July 1, 1979; and That the Division return to petitioner and the School Board their respective FRS contributions, mistakenly made to his account. DONE and RECOMMENDED this 14th day of February, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1984.
Findings Of Fact Petitioner retired under the provisions of the Florida Teacher Retirement System (TRS) on October 1, 1988. Prior to her retirement, Petitioner had been employed as an accounting instructor by Broward Community College (BCC). BCC is a tax-supported institution of higher learning in the State of Florida which participates in the Florida Retirement System. All instructional personnel at BCC are classified as "instructors". There is no job classification of "teacher" used by BCC. On December 14, 1988, Petitioner worked three hours as a substitute instructor at BCC and was paid $61.35. On March 17, 1989, Petitioner worked five hours as a substitute instructor at BCC and was paid $102.25. petitioner worked -as a substitute instructor at the request of personnel at BCC. Prior to agreeing to substitute on these two occasions, Petitioner had read and had relied on certain information provided by Respondent to retirees from the Florida Retirement System (FRS) and from the Florida TRS. That information was contained in a pamphlet published October 1987 entitled "Florida Retirement System - After You Retire" and the 1988 Supplement to that publication. Petitioner was aware that retirees from the TRS could not receive both a salary from a participant in the FRS and retirement benefits from TRS. Petitioner was aware that the pamphlet published October 1987 discussed two exceptions that did not apply to her situation. Petitioner construed a third exception, discussed in the 1988 Supplement, as authorizing her to be1 reemployed as a substitute instructor at BCC without that reemployment interfering with her retirement benefits. The 1988 Supplement discussed the third exception as follows: A third exception to the reemployment law was provided by 1988 legislation. After being retired and "off the payroll" for one calendar month, FRS and TRS retirees may work for 780 hours of the first 12 months as an hourly teacher on a noncontractual basis. The language from the 1988 Supplement which discusses the third exception to the reemployment law provided by 1988 legislation and upon which Petitioner relied fails to advise the retiree that the exception is limited to teachers employed by district school systems. This failure lead to Petitioner's misunderstanding as to the scope of the exception. Following an audit, Respondent advised Petitioner by letter dated September 21, 1989, that she was not entitled to payments of retirement benefits for the months of December 1988, January 1989, and March 1989, because she had been reemployed by BCC during those months. Respondent demanded that Petitioner repay the sum of $3,270.41 that she had received for those three months. On November 15, 1989, Respondent advised Petitioner by letter that it had revised its determination and that only the months of December 1988 and March 1989 were in dispute. Respondent demanded reimbursement of the sum of $2,173.54, the amount of the retirement benefits paid to Petitioner for the months of December 1988 and March 1989. Petitioner timely requested a formal hearing to challenge Respondent's determinations in this matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order which finds that Petitioner received overpayment of retirement benefits for December 14, 1988, and for March 17, 1989, due to her reemployment by Broward Community College and which requires her to repay the retirement benefits she received for December 14, 1988, and for March 17, 1989. DONE AND ENTERED this 12 day of March, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-6853 The following rulings are made on the proposed findings of fact submitted by Respondent. end The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraphs 5-7 are rejected as being recitation of testimony and as being subordinate to the findings made. COPIES FURNISHED: Nellie E. Dry, pro se 1501 South Ocean Drive, M804 Hollywood, Florida 33019 Stanley M. Danek, Esquire Department of Administration 2639 North Monroe Street Building C Tallahassee, Florida 32399-1560 Shirley Hoefer Broward Community College 225 East Las Olas Boulevard Ft. Lauderdale, Florida 33301 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact The Petitioner James H. Clendenin was elected to the office of Commissioner of the Canaveral Port Authority and served as a Port Commissioner from January 1, 1967 through December 31, 1982. The Petitioner was one of five Commissioners of the Authority. The Petitioner was not enrolled in the Florida Retirement System, Chapter 121, Florida Statutes, or any prior system until January 1, 1969. Prior to that date he was enrolled from January 1, 1969 through November 30, 1970, in the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes. The Port Authority, the authorized governing body of the Canaveral Port District, is an autonomous public entity created and established by Chapter 28922, Laws of Florida, 1953. As a Commissioner, the Petitioner was paid monies for his service for calendar years 1967 and 1968 which were reported as income--to the Internal Revenue Service. Prior to January 1, 1969, the Petitioner was required to submit a voucher for expenses and was paid on a fee basis. He received $25 per day in per diem and was reimbursed through an expense account. In order to receive the $25 which was characterized as per diem pay under the special act, the approval of the other four Commissioners was required. The total per diem was paid to each Commissioner on a monthly basis. After January 1, 1969, salaries were authorized for Commissioners and the per diem system was abandoned. Thereafter, the Petitioner received a salary check without request or required attendance at the Authority's meetings. On January 1, 1969, Petitioner submitted an application for enrollment in the State Retirement System. His application was accepted and the Petitioner began to accrue retirement service credits. Upon Petitioner's retirement, he attempted to claim and purchase prior service credits for 1967-1968. However, Petitioner was denied the opportunity to pay retirement contributions for retirement service credits for those years, and monies he had paid to purchase the prior service period were refunded. Consequently, Petitioner was credited with only 13.30 total years of service instead of 15.30 years. The difference in benefits amounts to 18.78 per month.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Respondent permitting the Petitioner to purchase additional service as a Port Commissioner for 1967 and 1968 upon payment to the Retirement Fund of $496.68 and increase the Petitioner's retirement benefit to the amount originally calculated to be due him by the Division of Retirement, retroactive to the date the Respondent received from the Petitioner monies paid for the purchase of the additional service. DONE and ENTERED this 19th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1984. COPIES FURNISHED: Robert T. Westman, Esquire STROMIRE WESTMAN LINTZ BAUGH McKINLEY AND ANTOON, P.A. 1970 Michigan Avenue, Bldg. C Post Office Hox 1888 Cocoa, Florida 32923 Augustus D. Aikens, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
