The Issue Whether or not Respondent has correctly computed Petitioner's retirement pay.
Findings Of Fact The Findings of Fact set forth in paragraph 1 are accepted. The Findings of Fact set forth in paragraph 2 are accepted. The Findings of Fact set forth in paragraph 3 are accepted. The Findings of Fact set forth in paragraph 4 are rejected as not supported by competent, substantial evidence, except for the finding that Mr. wade was re-employed at a much lower rate of pay. Mr. Wade terminated his employment with the Legislature on August 8, 1986, and received salary through that date. He was re-employed by the Department of Banking and Finance and not the Department of Agriculture as stated in the Recommended Order. In addition, although Mr. Wade terminated his employment for retirement reasons on August 31, 1990, his effective date of retirement was September 1, 1990, as provided by the FRS law and rules. The Findings of Fact set forth in paragraph 5 are rejected as not supported by competent, substantial evidence. Petitioner was paid in September 1986 for his accrued annual leave, which also included leave credits earned in July and August 1986 before his termination on August 8, 1986. Mr. Wade was employed with the Department of Banking and Finance effective August 11, 1986, and began to earn additional leave credits which he continued to accrue until he retired effective September 1, 1990. The Findings of Fact as set forth in paragraph 6 are rejected as not supported by competent, substantial evidence. Petitioner's annual leave includes leave earned in July and August 1986, which could not be paid until he terminated employment in August 1986. Further, in Chapter 650, Florida Statutes, the Division of Retirement is named as the state agency with the authority for administering Social Security for public employees and the Federal Insurance Contributions Act (FICA) in Florida, including adoption of rules for the reporting of FICA contributions which are due when paid, not when earned. In addition, the Hearing Officer also incorrectly cited Rule 22B-3.0l1(1), F.A.C., which reads: "contributions" and not "benefits." The Findings of Fact set forth in paragraph 7 are accepted. The Findings of Fact as set forth in paragraph 8 are accepted in part and rejected in part. That portion of the Findings concluding that $11,286.00 should be added to the Petitioner's salary compensation for the 1985 - 86 fiscal year to obtain a higher AFC is rejected as not supported by competent, substantial evidence. In addition, the 1986 lump sum annual leave payment ($11,286) was not paid to Mr. Wade until after he was separated from state employment effective August 8, 1986. Payment was made in September 1986 and this payment cannot be added to the Petitioner's salary compensation for the 1985 - 86 fiscal year. The Findings of Fact set forth in paragraph 9 are accepted. The Findings of Fact as set forth in paragraph 10 are accepted in part and rejected in part as not supported by competent, substantial evidence. The Petitioner was employed by the Legislature through August 8, 1986. In addition, payment for accrued annual leave credits cannot be made to a state employee until his employment has been terminated which did not occur until August 8, 1986. That portion of the paragraph regarding the application of Generally Accepted Accounting Principles (GAAP) in the computation of retirement benefits pursuant to Chapter 121, Florida Statutes, and the FRS rules, in addition to not being relevant, is rejected as not supported by competent, substantial evidence. GAAP is not applicable as this case is governed by the rules of the Division of Retirement. The Petitioner was terminated in August 1986; therefore, the September 1986 lump sum annual leave payment ($11,286) is a part of the Petitioner's salary compensation for the 1986 - 87 fiscal year. The Findings of Fact set forth in paragraph 11 are accepted. The Findings of Fact set forth in paragraph 12 are accepted in part and rejected in part. The Petitioner's employment did not terminate with the Legislature until August 8, 1986, and he did not receive the payment ($11,286) for his accrued annual leave, which included leave accrued as of June 30, 1986, as well as leave earned in July and August 1986, until September 1986. The payment was calculated for fiscal year 1986 - 1987 which was not one of Mr. Wade's highest fiscal years. The Findings of Fact set forth in paragraph 13 are accepted. However, these findings are irrelevant as GAAP is not applicable to this case. The Findings of Fact set forth in paragraph 14 are accepted.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration, Division of Retirement, enter a final order adding $11,286.00 to Petitioner's $64,172.00 salary as already calculated for fiscal year 1985-1986, and using that figure together with Petitioner's fiscal years 1981-1982, 1982-1983, 1983-1984, 1984-1985 salaries so as to calculate Petitioner's average final compensation for retirement purposes. DONE and ENTERED this 14th day of May, 1991 in Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: There are no PFOF 1-4. 5, 5a Covered in the COL. 6 Covered in FOF 5 and 10. 7, 8, 10, 13 The recitation of the witnesses' qualifications and how exhibits came to be admitted is subordinate or unnecessary to the facts as found. The disputed material facts are resolved within the RO. Accepted that the 360 hours of annual leave accrued to Petitioner or obligated the State in 1985-1986 but that the monies therefor were not paid until the 1986-1987 fiscal year. Petitioner's choice of language utilized in this PFOF is confusing and misleading and is not adopted for those reasons. 9, 11 Covered in FOF 10 and 12-14 except for subordinate and unnecessary material which is rejected. Mere recitation of testimony is likewise rejected. 12, 16 Subordinate and cumulative. Accepted in FOF 13, but not dispositive. Accepted but unnecessary and not dispositive of the properly raised issues herein. Respondent's PFOF: 1 Largely subordinate and unnecessary. Covered as necessary in the Preliminary Statement and the COL. 4-8 Covered in FOF 1 and 2 and the COL. 9 Unnecessary and unproven. COPIES FURNISHED: Mr. Thomas L. Wade 602 Concord Road Tallahassee, Florida 32308 Larry D. Scott Assistant Division Attorney Division of Retirement Legal Office 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The issue in the case is whether supplemental payments made to the Petitioner by Brevard Community College constitute creditable compensation for purposes of determining retirement benefits under the Florida Retirement System.
Findings Of Fact From 1970 until his retirement in June 1998, Brevard Community College employed Stephen J. Megregian at an executive level. The State of Florida, Division of Retirement, manages and oversees operation of the Florida Retirement System (FRS) in which Brevard Community College (BCC) participates. In June 1990, the college adopted an Employee Benefit Plan for BCC Executive Employees. The provisions of the plan covered Mr. Megregian, an executive employee. In fact, Mr. Megregian drafted the plan, which was adopted by the college's Board of Trustees. The executive benefit plan included a severance pay benefit for plan participants. The severance benefit was calculated according to a formula using the employee's daily base pay as multiplied by the sum of "benefit days." Benefit days were earned according to employment longevity. A "severance day" calculation determined the amount of severance pay a departing employee would receive. Apparently, at some point in 1994, participants in the FRS learned that the Division of Retirement would exclude some types of compensation, including severance pay, from the "creditable compensation" used to determine retirement benefits. In June 1995, the college amended the plan to provide a severance pay "opt-out" provision to plan participants. The provision entitled plan participants who were within five years of eligibility for FRS retirement benefits to "opt-out" of the severance package and instead immediately begin to receive supplemental payments. Mr. Megregian drafted the "opt-out" provision, which was adopted by the college board. The decision to "opt-out" was irrevocable. A plan participant could not change his or her mind and take the severance package once the "opt-out" decision was made. The supplemental payments were calculated based upon the "severance days" that the employee would have otherwise earned during the year. The payments were made along with the employee's salary payment. The "opt-out" plan did not require a participant to retire after the fifth year of receiving the supplemental payment. The Petitioner asserts that the creation of the "opt- out" provision was in accordance with information provided by the Division of Retirement. There is no evidence that the Division of Retirement provided any information suggesting that the "opt-out" provision would result in an increase in creditable compensation for purposes of determining FRS benefits, or that the "opt-out" provision was an acceptable method of avoiding the severance pay exclusion. There is no evidence that, prior to March of 1998, the college specifically sought any direction or advice from the Division of Retirement as to the supplemental payments made to employees under the "opt-out" provision. The evidence as to why the college did not simply increase base salaries for employees to whom supplemental payments were being made is unclear. There was testimony that the plan was designed to avoid unidentified tax consequences. There was also testimony that the supplemental plan was designed to avoid increasing some employees base salaries beyond the percentage increases awarded to other employees. There was apparently some concern as to the impact the supplemental payments would have on other college employees who were not receiving the additional funds. There is no evidence that the Petitioner performed any additional duties on the college's behalf in exchange for the supplemental payments. The Petitioner was eligible to participate in the "opt- out" plan beginning in the college's 1995-1996 fiscal year, and he elected to do so. As a result of his election, supplemental payments were made in amounts as follows: Fiscal Year 1995-1996, $7,938.46. Fiscal Year 1996-1997, $8,147.13. Fiscal Year 1997-1998, $8,395.40. On March 21, 1998, Brevard Community College requested clarification from the Division of Retirement as to how the supplemental payments would affect a plan participant's benefit. On April 30, 1998, the Division of Retirement notified the college that the supplemental payments would not be included within the calculation of creditable compensation. The Petitioner retired from his employment at Brevard Community College on June 30, 1998. The Petitioner is presently entitled to retirement benefits under the FRS. The Division calculates FRS retirement benefits based on "creditable compensation" paid to an employee during the five years in which an employee's compensation is highest. Some or all of the three years during which the Petitioner received supplemental payments are included in the calculation of his creditable compensation. The evidence fails to establish that the supplemental payments made to the Petitioner should be included within the creditable compensation upon which FRS benefits are calculated. Under the statutes and rules governing FRS benefit determinations, the supplemental payments made to the Petitioner are "bonuses" and are excluded from the "creditable compensation" calculation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the State of Florida, Division of Retirement, enter a final order finding that supplemental payments made to Stephen J. Megregian are bonus payments and are excluded from calculation of creditable compensation for FRS benefit purposes. DONE AND ENTERED this 2nd day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 2nd day of December, 1999. COPIES FURNISHED: David A. Pearson, Esquire Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A. Post Office Box 2346 Orlando, Florida 32802-2346 Robert B. Button, Esquire Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her age, as alleged in her charge of discrimination dated June 6, 1984, and in her petition for relief dated March 6, 1985.
Findings Of Fact Based on the admissions of the parties and on the exhibits received in evidence and the testimony of the witnesses at hearing, I make the following findings of fact: The Petitioner has been employed by the Respondent from July 1, 1980 to the present. She was first employed with the Respondent as a Staff Assistant II following the abolition of the Crimes Compensation Commission by the Legislature, effective June 30, 1980. The crimes compensation program was transferred to the Respondent at that time. As a Staff Assistant, Petitioner's duties included reviewing claims submitted by field investigators. After approximately two months in this position, the Petitioner requested permission to do the actual investigation of claims. The Petitioner's Bureau Chief, Herbert Parker, authorized Petitioner to investigate claims because her duties as a Staff Assistant did not keep her busy full time. Respondent's Monthly Field Representative Reports, maintained by Mr. Parker, reflect that the "Claims Examiners," i.e., Staff Assistants, including the Petitioner and Betty Cureton, completed a combined total of 13 reports in August 1980. In October 1980 these Reports began to break out the investigation work performed by the Petitioner and Ms. Cureton, showing the number of reports they completed as well as those completed by the actual Field Representatives. The Monthly Field Representative Reports show that Petitioner's investigations gradually increased in number over the next two years, so that in the six months from May 1983 through October 1983, she averaged almost 15 reports per month. A Field Representative was expected to produce at least 25 reports per month. In October 1983, Petitioner's position was reclassified from Staff Assistant II to Field Representative, reflecting the continuing transition in the Petitioner's duties from those of a Staff Assistant to the duties of a Field Representative. When her position was reclassified in October 1983, the Petitioner's salary was $1,570.S2 per month. The minimum salary for a Field Representative was $1,139.70 per month and the maximum was $1,635.60 per month. Petitioner's salary was not increased at that time. The reason Petitioner's salary was not increased at that time is that she was already earning over the minimum for the new classification and the Respondent was experiencing budget problems. In response to its budget problems, Respondent had taken a number of corrective measures, including a freeze on promotional pay increases. Within the Division of Worker's Compensation, the freeze was lifted in December 1983 but the Bureau Chiefs within the Division were admonished to be sure their respective units had "rate" and "salary" available before granting any increases. Rate Reports for the Bureau of Crimes Compensation show that that Bureau did not have any available rate from the time of Petitioner's promotion in October 1983 through March l984when she received a salary increase. The Rate Reports reflect a rate deficit occurred in March 1984 equal to the amount of Respondent's and Betty Cureton's combined salary increases. By Waiting until March to award pay increases to Petitioner and Ms. Cureton, the Respondent was better able to project its budget status through the end of the fiscal year and determine that the Division of Worker's Compensation would be able to offset the Bureau's rate deficit. In deciding whether to give promotional increases and, if so, in what amount, the Respondent considers a person's individual qualifications, along with budget considerations. Some employees do not receive any increase at all when they are promoted others have received less than Petitioner's five per cent and some have received more. The class specifications for the class of Field Representative contain the minimum training and experience requirements, which include: "graduation from an accredited four-year college or university and two years of professional experience directly involved in the juvenile or adult criminal justice system." The Petitioner had only two years of college and she did not have any past employment that would have satisfied the requirement for two years of professional experience in the criminal justice system. Respondent obtained a substitution of required training and experience for Petitioner by counting the field investigation work she did between August 1980 and October 1983, while employed as a Staff Assistant. This substitution enabled her to qualify as a Field Representative once the position was reclassified. A similar substitution was obtained for another employee, Ms. Cureton. Petitioner is a very capable efficient employee who has always received outstanding evaluations, receiving a score of thirty-six out of a possible thirty-six evaluative points on the performance of her duties on her performance ratings by her superiors. The Petitioner's age was not a factor in any of the Respondent's personnel decisions affecting the Petitioner's promotion or promotional pay increases.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Geneva Roberts. DONE AND ORDERED this 11th day of December, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 11th day of December, 1985. APPENDIX The following are the specific rulings on each of the proposed findings of fact submitted by the parties. Rulings on Petitioner's proposed findings: Accepted in part and rejected in part. The accepted portions are incorporated in findings proposed by the Respondent. The rejected portions are rejected either as irrelevant details or because they are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Accepted and incorporated in other findings. The portion up to the first comma is accepted. The portion after the first comma is rejected as irrelevant in light of other evidence in the record, especially when note is taken of the fact that a new employee at ten per cent above the minimum was making substantially less than Petitioner. First sentence is accepted in substance. Second sentence is rejected as irrelevant. Rejected because it incorporates irrelevant details and because to the extent it proposes comparisons between Petitioner and Ms. Raker it incorporates opinions, inferences, and conclusions which are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Further, the ultimate conclusion asserted in paragraph 8 of the Petitioner's proposed findings is not supported by the evidence. Rejected as irrelevant and also as misleading in light of other evidence. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The first unnumbered paragraph under the caption SUMMARY OF FACTS is rejected because most of it is not supported by persuasive competent substantial evidence and the remainder is inconsistent with the greater weight of the evidence. The first sentence of the second unnumbered paragraph under the caption SUMMARY OF FACTS is rejected as contrary to the greater weight of the evidence. The last sentence of that paragraph is accepted. Rulings on Respondent's proposed findings: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Most of the first six lines are rejected as constituting summaries of the parties' contentions rather than proposed findings. The substance of lines 7 through 11 is accepted. The last sixteen lines of this paragraph are rejected on the grounds that for the most part they constitute legal argument, conclusions of law, and explication of reasons for making findings of fact, but are not themselves findings of fact. [Some of the material on the last sixteen lines is accepted and incorporated in the Conclusions of Law portion of this Recommended Order.] The substance of this paragraph is accepted, with certain minor corrections and deletions. Accepted. COPIES FURNISHED: Joseph C. Jacobs, Esquire ERVIN, YARN, JACOBS, ODOM & KITCHEN Post Office Drawer 1170 Tallahassee, Florida 32302 Kenneth H. Hart, Jr., Esquire General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
Findings Of Fact Petitioner, Robert L. Hazlett, Jr., has been a career service employee of the State of Florida for more than twenty years and is employed by the Department of Transportation (DOT) in the Division of Tolls. In 1988, Petitioner was classified as a Regional Toll Manager with the Pay Grade 20. In the spring of 1988, DOT requested that the Department of Administration (DOA) adjust the pay grade for Regional Toll Managers from Pay Grade 20 to Pay Grade 23. This adjustment was granted on May 3, 1988. The instructions which accompanied this adjustment specified that no employee whose position was allocated to the class of Regional Toll Manager on the effective date of the pay grade change was to receive an increase in base rate of pay. Said adjustment in pay was not communicated to the DOT personnel office for several months and on June 17, 1988, based on the assumption that DOA had not approved the pay adjustment for Regional Toll Managers, DOT reclassified the position of Regional Toll Manager to the class of Operations and Management Consultant I, Pay Grade 21. Effective June 17, 1988, Petitioner's job classification was changed from Regional Toll Manager, pay grade 20, to Operations and Management Consultant I, Pay Grade 21. As a result, his biweekly salary changed from $965.06 to $1,093.42. On September 7, 1988, the Secretary of Administration advised that the Department of Transportation's action on June 17, 1988 reclassifying Petitioner's job classification actually resulted in a demotion from pay grade 23 to pay grade 21, but with an increase in his base rate of pay. This action was in violation of Section 22A-2.004(3)(d), Florida Administrative Code. In the letter, the Secretary of the Department of Administration directed the Respondent to take corrective action by reducing the Petitioner's salary to the amount he was receiving prior to the Respondent's June 17 pay action and recalculate all proper subsequent changes to his base rate of pay. On October 18, 1988, Respondent reversed the promotional actions, implemented the pay grade adjustments as approved by the Department of Administration, recalculated the Petitioner's July 1 pay increase, and notified Petitioner of the corrective action taken. In addition, Respondent's Personnel Officer filed a request with the Department of Administration, on November 9, 1988, for a special pay increase for Petitioner, and others, because the reclassification of Petitioner's position was processed as a promotion, not a demotion. This request was denied on December 29, 1988. Petitioner, through no fault of his own, has been overpaid for the period of June 17, 1988 through October 13, 1988 the total sum of $204.26. This sum must be repaid to the treasury of the State of Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended Petitioner reimburse the State of Florida the sum of $204.26 for overpayment of salary in the fiscal years 1988 and 1989. RECOMMENDED this 19th day of November, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: R. Lou Hazlett, Sr. Post Office Box 1415 Green Cove Springs, FL 32043 DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1990. Charles G. Gardner, Esquire Senior Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns building Tallahassee, FL 32399-0458
Findings Of Fact Petitioner, Shirley Gibson, is a permanent status employee of the Department of Health and Rehabilitative Services (HRS) in Clearwater, Florida. She has been employed by HRS for over five years. On June 19, 1982, Petitioner took a voluntary demotion from the position of clerk typist III (pay grade 07) to secretary II (pay grade 06). The demotion appointment was properly made with permanent status, and she retained her full salary of $403.82 biweekly. On August 27, 1982, Gibson was promoted to the position of personnel aide (bay grade 10). In conjunction with her promotion she received a ten percent promotional increase which raised her salary to $442.52 biweekly. The minimum pay grade for the personnel aide class at that time was $396.80. Therefore, at the time of promotion, Gibson's salary exceeded the minimum salary for the class to which she was promoted. On September 1, 1982, Petitioner received the seven percent pay increase granted all state employees. This pay adjustment raised her compensation to $473.50 biweekly. In February, 1983 Respondent, Department of Administration (DOA), completed a comprehensive personnel program review whose purpose was to ensure that the overall administration of HRS's personnel program in Clearwater was in compliance with the Respondent's personnel rules. During the course of that review Gibson's personnel file was randomly selected for inspection, and the promotional increase given on August 27, 1982, was found to be in violation of Rule 22A-2.07(1)(c), Florida Administrative Code. The Department concluded that based upon the provisions of the rule, Petitioner's salary should have remained at $403.82 since she was ineligible for a promotional increase on August 27. Thereafter, it directed that her biweekly salary be reduced to $432.09 1/ effective April 8, 1983, and that she refund the difference ($561.91) between that amount and the $473.40 biweekly pay she received for the period August 27, 1982, through April 7, 1983. This refund is to be accomplished by payroll deductions from Gibson's salary over eight pay periods. On May 11, 1983, Petitioner filed a petition to have Rule 22A- 2.07(1)(c) declared invalid, and the entry of an order requiring the comptroller to refund all funds paid on the alleged overpayment of $561.91. Rule 22A-2.07, Florida Administrative Code, generally relates to the pay plan for career service employees. Subpara-graph (1)(c) thereof provides generally that once an employee is demoted without a reduction in salary, and is subsequently promoted within six months, he or she is not eligible for a promotional increase unless the salary is below the minimum for the class to which the employee is promoted. The purpose of this provision is to ensure that demotions and promotions are not artificially created to give salary increases not authorized in other parts of the personnel rules. Petitioner contends the rule is unfair and discriminatory because it does not distinguish between multi-step and single step promotions in its application. She also contended that HRS had given promotional increases to several other individuals in the past under similar circumstances. This was confirmed by a representative of HRS who noted that such increases had indeed been given until DOA had advised it was incorrect.
Findings Of Fact Sutton is a "small business party" incorporated under the laws of Florida and has its principal office located at 3054 Skyview Drive, Lakeland, Florida with less than 25 employees and a net worth of less than $2 million dollars. The Department previously initiated action against Sutton by denying an application for renewal of its license to operate a group home in Lakeland, Florida. A timely request for a hearing on the denial was filed by Sutton, and the matter transferred by the Department to the Division of Administrative Hearings where it was assigned Case Number 90-2928. The final hearing was held in Lakeland, Florida, on August 16, 1990, before K. N. Ayers, Hearing Officer, and thereafter a Recommended Order was filed on August 30, 1990, which recommended that Department enter a Final Order granting Sutton a license to operate a group home. The Department approved and adopted this recommendation in its Final Order entered on October 17, 1990, by the terms of which Sutton prevailed in the prior action initiated by the Department. The Department was not a nominal party to the prior proceedings, and there is nothing in the record to show that the Department was substantially justified in denying Sutton's application for renewal of license to operate a group home, or that any special circumstances exist which would make an award of fees and costs unjust. On December 24, 1990, a Motion For Attorney's Fees and Costs was filed with the Division of Administrative Hearings by Sutton. The authority cited for the award was Section 57.111, Florida Statutes. Therefore, the motion was treated as a petition under Rule 22I-6.035, Florida Statutes, and by order of January 16, 1991 was dismissed for failure to comply with that rule, with leave to amend within twenty days. On January 24, 1991, an Amended Motion For Attorney's Fees and Costs was filed with the Division of Administrative Hearings by Sutton. The motion is accompanied by an affidavit and supporting documents which are uncontroverted, and which establish that Sutton incurred legal fees in the amount of $3,945.00 and costs of $369.72, as a result of the prior proceedings in Case Number 90-2928. No evidentiary hearing was requested by either Sutton or the Department. The Department was advised by order dated January 16, 1991 that if Sutton filed an amended petition the Department would have twenty days from the date that Sutton filed the amended petition to file its response in accordance with Rule 22I-6.035(5), Florida Administrative Code, and that failure to timely respond would result in the waiver of the opportunity to dispute the allegations contained in the petition. No responsive pleading of any kind has been filed with the Division of Administrative Hearings on behalf of the Department to the Amended Motion For Attorney's Fees and Costs.
The Issue The issues in this case are whether former Hillsborough County Administrator Patricia G. Bean (Respondent) violated section 112.313(6), Florida Statutes (2011),1/ and, if so, what penalty, if any, should be imposed.
Findings Of Fact Beginning in 2003, and at all times material to this case, the Respondent was employed as the county administrator for Hillsborough County, Florida. In Spring 2006, various departments of the Hillsborough County government were engaged in reviewing their responsibilities and developing proposals to increase efficiencies and reduce costs for upcoming budget years. An "executive team" of county employees met periodically to determine which of the proposals met or exceeded efficiency goals that were targeted towards reducing costs while maintaining services. In the Summer or Fall of 2006, the Respondent, Deputy County Administrator Walter Hill, and County Budget Director Eric Johnson began to discuss ways to encourage and reward department directors who met efficiency goals. At that time, the county government had three existing "award" options that could be used to reward employees for exceptional service. One award consisted of a paper certificate called the "Extra Mile Award." There was no monetary gain associated with receiving an "Extra Mile Award." The second award (the "Productivity Award") included a monetary bonus and was available to most employees (with some exceptions) for exceptional performance. The third award was the "Discretionary 1% Merit Increase" available to senior management employees. This award consisted of a one percent "merit" salary increase over and above any regular pay raise that the employee would have received. The Respondent, along with Deputy County Administrator Hill and County Budget Director Johnson, decided to use the "Extra Mile Award" and the merit salary increase to reward department directors who met efficiency goals. The Respondent was responsible for the final determination as to which employees would receive awards. The "Extra Mile Certificate" awards were announced at a budget "kick-off" meeting on the morning of February 1, 2007. After the meeting, the Respondent issued a written congratulatory memo to each employee who received a certificate. She also used the memo to notify those employees who had been awarded the salary increase. The Respondent's department met the efficiency goals. At the time of the budget kick-off meeting, the Respondent believed that her employment contract with Hillsborough County precluded her from accepting it, and she excluded herself from the salary increase. The Charter of Hillsborough County provided that the "compensation" for the county administrator "shall be fixed by the Board of County Commissioners by ordinance" and that such compensation "may be set by contract if allowed by and pursuant to ordinance." The Respondent's employment contract with Hillsborough County established her initial salary as $179,000. According to Section 6 of the contract, the Respondent was entitled to receive the same "annual market equity increase" provided to "all other unclassified managerial employees of the County." The section also stated that additional salary or benefit increases could be granted by action of the BCC within 60 days of her annual performance evaluation. Hillsborough County Attorney Renee Lee and Director of the Hillsborough County Environmental Protection Commission Richard Garrity also met the efficiency goals, but their employment contracts with the county contained provisions similar to those of the Respondent, and, so, the Respondent excluded Ms. Lee and Mr. Garrity from receiving the salary increase. Both received the "Extra Mile Award" at the budget kick-off meeting. After the meeting had concluded, Ms. Lee sent an email addressed to the Respondent and Deputy County Administrator Hill wherein she asserted that the terms of her contract allowed her to receive "the award." In the email, Ms. Lee cited a provision in her contract that referenced entitlement to "such other benefits" as were made available to other county employees. Although there appears to have been some confusion regarding the names of the awards available to recognize county employees for their performance, it was clear that the reference to the "Extra Mile Award" in Ms. Lee's email referred to the salary increase. The Respondent's employment contract contained language similar to that cited in Ms. Lee's email, whereby the Respondent was entitled to the "benefits" available to other managerial employees in the county. As the county attorney, Ms. Lee reported directly to the BCC and, pursuant to the county charter, was the chief legal advisor for the BCC on all matters of county business, including personnel matters. The Respondent had no managerial authority over the county attorney at any time relevant to this proceeding. There is no evidence that the Respondent discussed the matter with Ms. Lee. After receiving Ms. Lee's email, the Respondent directed Deputy County Administrator Hill to contact Christina Swanson (director of the Employee Benefits Division in the county's Human Resources Department) and ask her to evaluate Ms. Lee's email. Deputy County Administrator Hill apparently did so, and Ms. Swanson thereafter asked Ms. Lee to provide a written legal opinion addressing whether the salary increase could be awarded under the terms of the contracts. On February 2, 2007, Ms. Lee issued a written legal opinion addressed to Ms. Swanson, stating that both Ms. Lee and the Respondent could receive the salary increases under the terms of their respective contracts. Although she had received a law degree, Ms. Swanson had not worked as a practicing attorney. The issues of the whether the salary increases underlying this case constituted a "benefit" of employment with Hillsborough County, and whether Ms. Lee's written legal opinion was correct, are not at issue in this proceeding. After Ms. Swanson received Ms. Lee's written legal opinion, the Human Resources Department processed the forms required to implement the salary increases for the Respondent and for Ms. Lee. The Respondent testified that she discussed the matter with Ms. Swanson after Ms. Lee issued the legal opinion. Ms. Swanson did not recall the conversation. In any event, the evidence fails to establish that the Respondent directed Ms. Swanson, or any other employee in the Human Resources Department, to process the paperwork required to implement the salary increases. On February 7, 2007, George Williams, the director of the county's Human Resources Department, signed the form ("Report of Change of Status"), approving the one percent salary increase awarded to the Respondent. The Respondent's hourly salary rate was increased from $101.82 to $102.84, effective January 7, 2007. The Respondent did not receive a copy of the form. Deb Dahma, a staff member in the Human Resources Department, signed the form approving the one percent salary increase awarded to Ms. Lee. The signature on that form was undated. There is no evidence that the Respondent directed either Mr. Williams or Ms. Dahma to sign the forms. The executed forms were sent to the county's payroll department, and their salary increases were implemented. On February 8, 2007, Ms. Lee authored another email to Ms. Swanson wherein she opined that, upon review of Mr. Garrity's contract, he was also eligible for the salary increase. There is no evidence that the Respondent participated in any effort to award the salary increase to Mr. Garrity, or that he accepted or received the salary increase. Both the Respondent and Ms. Lee accepted the salary increases. The county administrator's staff was responsible for preparation of agendas for BCC meetings. The Respondent participated in the preparation process and could direct placement of items on the agenda. The Respondent did not provide the BCC with an opportunity to consider the salary increases referenced herein and did not seek the explicit approval of the salary increases from the BCC either prior to or after they were implemented. The Respondent believed that the Human Resources Department, which handled personnel matters, would seek any approval of the salary increases required from the BCC, but the Human Resources Department did not bring the matter to the BCC for review. Although the BCC approved the Respondent's salary, including the increase underlying this case, during the Respondent's subsequent performance review, the evidence fails to establish that the BCC was advised that the salary included an increase that had not been approved by the BCC. At some later point, the Respondent's salary increase apparently became a matter of conflict with the BCC, and her salary was reduced to negate the one percent increase. The Respondent reimbursed Hillsborough County for the funds she received through the salary increase. The Respondent's employment as the Hillsborough County administrator was eventually terminated. An investigation of the circumstances of the raise that was conducted by the Florida Department of Law Enforcement resulted in no criminal charges being filed against the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that Patricia G. Bean did not violate section 112.313(6) and dismissing the complaint filed in this case. DONE AND ENTERED this 31st day of May, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of May, 2012.
The Issue The issue in this proceeding is whether Kathryn Williams' request for arbitration should be dismissed for lack of arbitrability.
Findings Of Fact By letter dated 2 September 1975, the Commissioner of Education notified petitioner that, as a result of reorganization of the Department of Education he was being demoted from an Assistant Chief, Research and Information, Pay Grade 33, to a Program Director, Pay Grade 32, with no change in his salary or anniversary date. On 22 September 1975 petitioner filed timely appeal with the Career Service Commission to protest this action. Thereafter the file was, transferred to the Division of Administrative Hearings, and, following several continuances, was set for hearing on 17 August 1976. By letter dated July 27, 1976 directed to the Commissioner of Education, petitioner resigned from his position in the Department of Education, effective 19 August 1976 to take another position. By letter of 30 July 1976 this resignation was accepted by the Commissioner. Petitioner acknowledged that he had suffered no loss of pay in his demotion; and, in fact, received an increase in pay when general state-wide pay increases were approved by the legislature in 1976. At the motion hearing petitioner's principal argument was directed towards his entitlement to attorney's fees in the event the hearing was held and he was successful in proving he had been wrongfully demoted.
Findings Of Fact Coflin was a permanent Career Service Employee, in Employment Office Supervisor (EOS) III Position. Coflin was "bumped" from his position by another permanent Career Service employee (Mr. Reddy), whose EOS III position was abolished by virtue of the failure of Hillsborough County to renew a contract for service with the Department of Commerce in November, 1975. Coflin was "bumped" on April 1, 1976 because pursuant to Department guidelines approved by the State Personnel Director as required by the State Personnel Rules, Coflin had fewer retention points than Reddy. Coflin, pursuant to the guidelines and rules and regulations, was in turn entitled to "bump" either the incumbent of an EOS III position who was not permanent in the position of EOS III or the employee within the State with the least retention points. This right and the positions available to him were communicated to Coflin; however, because he would have had to move to another area of the State to assume either of these positions, Coflin elected under protest to take the third alternative, demotion to another class in which he held permanent status in his immediate geographical area. Coflin appealed the resulting demotion, asserting that he had been wrongfully demoted. The demotion was solely the result of Coflin having been "bumped" in accordance with the guidelines of the Department of Commerce and not because of Coflin's job performance and conduct which were above average. The Department's guidelines were not adopted as rules in the manner prescribed in Chapter 120, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Coflin be reinstated to his position as EOS III, the personnel action taken having not been for good cause. DONE and ORDERED this 10th day September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1976. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Kenneth H. Hart, Jr., Esquire 401 Collins Building Tallahassee, Florida 32304 Brian Duffy, Esquire Post Office Box 1170 Tallahassee, Florida 32302
