Findings Of Fact At all times material, Petitioner was employed by the Department of Corrections as a full-time career service employee. On July 13, 1984, he was ranked as a Correctional Officer I at Florida State Prison (FSP). On March 2, 1990, Petitioner had been placed on workers' compensation due to a back injury. On Thursday, April 5, 1990, Dr. W. David Sikes of the Bradford Chiropractic Center signed a medical release permitting Petitioner to return to light duty on Monday, April 9, 1990. Dr. Sikes was apparently the authorized treating physician to whom the agency had currently obligated itself pursuant to Chapter 440 F.S. [The Florida Workers' Compensation Act]. A previous physician had released Petitioner for full-duty work on April 3, 1990. Petitioner was present in the office of Personnel Manager Marion Bronson on Friday, April 6, 1990. At that time, Mr. Bronson told Petitioner to report for work on the first shift (8:00 a.m. to 5:00 p.m.) on Monday, April 9, 1990. This meant Petitioner would be doing mail room duty during the day instead of his regular duties on his regular shift of midnight to 8:00 a.m. Petitioner told Mr. Bronson he could not work the first shift due to his needing to be home to take of his invalid wife. To this, Mr. Bronson replied that the first shift was the only light duty available. On Friday, April 6, 1990 Petitioner did not refuse to come in to work the first shift on Monday, April 9, and he did not tell Mr. Bronson that he was already signed out on annual leave for that date. Nonetheless, Mr. Bronson was left with the impression at the end of their meeting that Petitioner would not come back to light-duty work on Monday. Petitioner did not report for work on the first shift on April 9, 10, or 11, 1990 (Monday, Tuesday and Wednesday). On Wednesday, April 11, 1990, Mr. Bronson mailed Petitioner a letter that read, in pertinent part: You have been carried in unauthorized leave without pay status since April 9, 1990. You were also carried on unauthorized leave without pay on April 3, 1990. You are hereby instructed to return to duty at 8:00 a.m. the day after you receive this letter. If you do not return to duty on that date it will be deemed that you have abandoned your position at Florida State Prison and you will be dismissed. In the past, the FSP personnel office usually made further efforts to contact missing employees after such a letter had been sent, but no such attempts were made in this instance. Normally, FSP gives employees an opportunity to call in and rectify absentee problems but deems it abandonment if the employee does not respond. At no time subsequent to April 6, 1990 did Petitioner contact anyone at FSP regarding his absence. Petitioner did not actually receive the April 11 letter until Friday, April 13. Petitioner did not report for work on Saturday, April 14, Sunday, April 15, or Monday, April 16. Saturday would have been a regular workday for Petitioner. However, Petitioner's usual days off were Sunday and Monday, and nothing had been said by Mr. Bronson about altering Petitioner's workdays. On Monday, April 16, Mr. Bronson mailed Petitioner a letter that read, in pertinent part: This is to inform you that in accordance with Section 22A-7.010(2), F.A.C., you have been deemed to have abandoned your position as Correctional Officer I and resigned from the Career Service System effective April 14, 1990. A copy of Section 22A-7.010(2) is enclosed for your information. You have been absent from duty for at least three consecutive workdays without authorized leave as follows: April 10, 11, and 12, 1990. Please be advised that you have been dropped from the payroll effective the close of business April 14, 1990. Unbeknownst to Mr. Bronson, Petitioner had exercised preapproved annual leave for the period of April 10-14, 1990. None of Petitioner's superiors advised Mr. Bronson of this fact. There was no notation to this effect in Petitioner's personnel file in Mr. Bronson's office. It was Mr. Bronson's testimony that it was better personnel management and he would have preferred to have Petitioner drawing annual leave during this period than to be paying him full pay for makeshift light duty. If Petitioner had requested annual leave on April 6, 1990, Mr. Bronson would have granted it. As of April 14, 1990, Petitioner had "banked" 119.75 hours of annual leave time which would have been sufficient to cover his April 10-14, 1990 vacation or "no show" days. Additionally, he also had available 26.5 hours of sick leave but this sick leave was subject to certain deductions and adjustments which had allowed the agency to keep Petitioner on at full pay the previous week while technically he was only eligible for a reduced amount based on workers' compensation. In accord with standard FSP policy, Petitioner had previously submitted an annual leave request form on October 16, 1989 to request leave for the week of April 10 through April 14, 1990. This form had been approved by his immediate superior, who at that time was his shift supervisor, Officer Gaskin. Officer Gaskin was the correct superior to make such approval. Mr. Bronson has nothing to do with the approval of leave under such circumstances. Harry Tison, who became Petitioner's shift supervisor in April 1990 while Petitioner was still out on workers' compensation leave, was not aware of Petitioner's preapproved annual leave until Mr. Bronson's office began making inquiries after the April 16 letter, but at that time, Tison was able to refer to a leave calendar posted in his area which showed that Petitioner was expected to be out on annual leave on those days. From that information, Officer Tison, by reason of his familiarity with the FSP system and hierarchy, could infer that Petitioner's leave had been approved by FSP's highest command figure, "the Colonel." Some witnesses alluded to FSP policy that even preapproved annual leave requests constituted only tentative approval unless the employee checked with his supervisor a week before actually exercising his leave so as to be sure that the preapproved leave had not been revoked due to an employee crunch, but there is no such rule or printed policy of the Department of Corrections or FSP, and the evidence is insufficient to establish such a vague policy as uniform or binding on Petitioner. Also, in this instance, the week before, Petitioner was away from work most of that week on workers' compensation disability, and there is no evidence of any employee crunch which would have altered the prior annual leave approval.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order finding that Petitioner has not abandoned his position and returning him to the appropriate position with back pay and emoluments, subject to any appropriate setoffs under the Workers' Compensation Act and any mitigation from other employment. DONE and ENTERED this 19th day of August, 1990, at 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 19th day of August, 1990. 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: Petitioner has filed only a "Final Argument" and that is essentially legal argument and proposed conclusions of law as opposed to proposed findings of fact which are entitled to a ruling pursuant to Section 120.59(2) F.S. Moreover, the format does not lend itself to intelligible rulings since no sentence is numbered. Respondent's PFOF: 1-6 Accepted. Accepted except for the last sentence, which does not comport with the testimony heard. Accepted. Rejected in FOF 13, which reflects the greater weight of the credible evidence. Accepted but subordinate. - 15 Accepted. COPIES FURNISHED: Perri M. King Assistant General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Rodney W. Smith, Esquire Gloria W. Fletcher, Esquire 515 North Main Street, Suite 300 Post Office Box 1208 Gainesville, Florida 32602 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Louis C. Germain, has been employed with the Department of Health and Rehabilitative Services, Foster Care Unit-452 since late 1984 or early 1985. On the morning of February 3, 1986, the Petitioner was involved in an automobile accident during the course of his employment while enroute to pick up a client who had a court appointment. As a result of the accident the Petitioner sustained several injuries, including a nose injury, back pains, headaches and blurred vision. The Petitioner was taken to his physician's office. At approximately 4:30 p.m. on February 3, 1986, the Petitioner called his immediate supervisor, Ms. Shelia Weiner, and advised her of the accident and of his injuries. On Friday, February 7, 1986, the Petitioner went to his office to pick up his pay check. The Petitioner spoke with Ms. Weiner and informed her that he did not know when his physician would allow him to return to work. On Monday, February 17, 1986, the Petitioner returned to the office once more to pick up a pay check. Ms. Weiner told the Petitioner that he had to report to work on Thursday, February 20, 1986. The Petitioner told Ms. Weiner that he was still suffering from injuries sustained in the February 3, 1986 accident and that he did not know when he would be able to return to work. On February 20, 1986, Ms. Weiner wrote the Petitioner a letter stating that his absence from work since February 17, 1986 had not been authorized. The letter stated in part that: "You are directed to report to work immediately and provide an explanation for your absences." The Petitioner received Ms. Weiner's letter on Saturday, February 22, 1986. On Tuesday, February 25, 1986, the Petitioner had an appointment with his physician and obtained a medical statement from her. The Petitioner's physician indicated in the medical statement that Petitioner had been under her care since the automobile accident of February 3, 1986, that Petitioner sustained multiple injuries in the accident and that Petitioner was now able to return to work. The Petitioner returned to work on February 25, 1986 and was advised that he needed to speak with Mr. Carlos Baptiste, supervisor of the personnel department. The Petitioner presented the letter from his doctor to Mr. Baptiste, but Baptiste was not satisfied with the doctor's statement and felt that it was "insufficient." Baptiste asked the Petitioner if he had a towing receipt or an accident report to confirm the accident of February 3, 1986. The Petitioner replied that he did not. The Petitioner was not allowed to return to work. At the final hearing, Mr. Baptiste stated that: "If Mr. Germain had produced an accident report, he would still be working with HRS." The Petitioner's leave and attendance record maintained by DHRS reflected that the Petitioner was given sick leave from February 3 to February 6, 1986. From February 7 to February 20, 1986 the Petitioner was placed on leave without pay. On March 3, 1986, Ms. Sylvia Williams notified the Petitioner by certified mail that due to his absence from work since "February 17, 1986", he was deemed to have abandoned his position and to have resigned from the Career Service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Administration enter a final order reinstating Petitioner to his position with the Department of Health and Rehabilitative Services, Foster Care Unit-452 in Miami, Florida. DONE and ORDERED this 4th day of February, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3319 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 11. Matters not contained therein rejected as argument. Addressed in Conclusions of Law section. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as argument. Rejected as argument. Rejected as argument. Rejected as argument. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a recitation of testimony and/or argument. Adopted in substance in Finding of Fact 6. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as mis- leading. Rejected as subordinate. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: Louis C. Germain 308 Northeast 117 Street Miami, Florida 33161 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue - Suite 790 Miami, Florida 33128 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
Findings Of Fact There are no disputed issues of material fact which would preclude entry of this summary recommended order of dismissal based on the undisputed facts and law involved. Petitioner was dismissed from his career service position with Respondent state agency. On appeal, the dismissal was reversed. Petitioner was off the state agency payroll and did not work for seven months. In backpay proceedings before the Public Employees Relations Commission (PERC), Petitioner was awarded backpay for only one month. Petitioner was paid for the one month that pay was awarded, but not for the other six months. Petitioner received retirement credit, annual leave credit, and sick leave credit for that one month awarded and paid, but not for the other six months.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Management Services enter a final order denying all claims of Petitioner and dismissing the Petition. RECOMMENDED this 12th day of April, 1993, at 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 12th day of April, 1993.
The Issue Whether the petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact 2. On April 14, 1983, petitioner received a copy of the "Employee Handbook" published by the Department of Transportation. Job abandonment is explained in the Employee Handbook as follows: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current policy. The petitioner was absent without authorized leave on April 13, 14 and 15, 1987. Petitioner did not appear for work on those days and did not call the office to explain or report his absence. On April 16, 1987, petitioner called the office at approximately 8:00 a.m. to say that no one had come to pick him up. A fellow employee sometimes furnishes petitioner's transportation. By the time petitioner called in to work, he had been absent three consecutive days without authorization. Petitioner had previously been warned about his absenteeism. On March 17, 1987, petitioner was placed on unauthorized leave without pay due to his failure to report to work or notify his supervisor. On March 18, petitioner was sent a letter notifying him that he had to report by March 24, 1987, or he would be dismissed. Thus, petitioner was well aware that he had to notify his supervisor of any absences.
Recommendation Based on 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 Transportation and finding that Fred P. Noble abandoned his position and resigned from the Career Service. DONE AND ENTERED this 28th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1987. COPIES FURNISHED: Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450 Mr. Fred P. Noble 2516 Queen Street South St. Petersburg, Florida 33705 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Petitioner, Sharon Fleita, made a valid “second election” to transfer from the Florida Retirement System (“FRS”) Pension Plan to the Investment Plan, pursuant to section 121.4501, Florida Statutes (2016).1/
Findings Of Fact Petitioner, Sharon Fleita, was, at all times relevant hereto, an employee of the Jefferson County School Board (“School Board”) and enrolled as a member of the FRS Pension Plan. Respondent, SBA, is the state agency tasked with administering the FRS Investment Plan. § 121.4501(8), Fla. Stat. Petitioner’s Employment History Petitioner was employed by the School Board as a full- time teaching assistant from early 2011 through May 31, 2017. The last day Petitioner performed work for the School Board was on April 19, 2017. As of that date, Petitioner had exhausted her allotted paid sick leave. On April 21, 2017, Petitioner underwent ankle surgery. The recovery period was about three months, during which time Petitioner was required to use a wheelchair. From April 20 through May 31, 2017, Petitioner was on unpaid “Family Medical Leave Without Pay” as designated by the School Board on a form titled “Application for Leave of Absence,” which was signed by Petitioner. Realizing that her medical condition would prevent her from returning to work, Petitioner officially resigned on May 31, 2017.2/ At the time of her resignation, Petitioner had earned 7.27 years of FRS service credits and was a “vested” member of the FRS.3/ See § 121.021(45), Fla. Stat. Petitioner did not return to work after her leave of absence, nor did she retire on disability through FRS. Petitioner was found to be disabled by the Social Security Administration with a date of disability of April 21, 2017, but she never applied for disability with FRS.4/ On May 31, 2017, Petitioner received a paycheck from the School Board in the amount of $82.13, after deductions and taxes, indicating a pay period of May 1, 2017 through May 26, 2017. The paycheck was compensation for work performed prior to May 2017. Petitioner’s Second Election Ms. Fleita’s employer, the School Board, did not have a human resources director to help her through the second election process. Seeking guidance, Petitioner placed a number of calls to the Division of Retirement and the MyFRS hotline over the course of about five months, beginning in March 2017. Before she made her second election, several representatives informed Petitioner during these phone calls that she needed to be actively employed, earning a salary, and earning FRS service credits at the time the second election was made. On March 20, 2017, a representative with the MyFRS hotline informed Petitioner that she could not make a valid second election while on “unpaid leave of absence or summer break or anything like that.” The representative also recommended that Petitioner make her second election a month or so before her last day of work, in order to make sure the election was valid. On May 10, 2017, a representative with the MyFRS hotline explained to Petitioner that a salary and FRS service credits are distinct, and that it is possible to receive a paycheck but no FRS service credit for a given month. The representative also informed Petitioner that if she were to submit a second election while not earning service credit, the election might be processed but ultimately would not be considered valid. On May 10, 2017, while on FMLA (Family Medical Leave Act) leave, Petitioner completed a “2nd Election Retirement Plan Enrollment Form” to switch from the FRS Pension Plan to the Investment Plan. The Plan Choice Administrator processed the election on May 11, 2017. On July 28, 2017, a representative with the Division of Retirement informed Petitioner that she had earned service credit for May 2017, the month in which she made her second election. Later that same day, a different representative informed Petitioner that her election into the Investment Plan had been approved. However, soon thereafter, the representative called Petitioner back and informed her that her election was invalid because, according to the SBA, Petitioner was not earning service credits in May 2017. Service Credit During FMLA Leave Monthly service credit is awarded for “each month salary is paid for service performed.” § 121.021(17)(b)4., Fla. Stat. Section 121.021(58) defines “leave of absence” as “a leave of absence from employment under the Florida Retirement System, subsequent to November 30, 1970, for which retirement credit [i.e., FRS service credit] may be received in accordance with s. 121.121.” This definition is reiterated in Florida Administrative Code Rule 60S-6.001, which provides: LEAVE OF ABSENCE (Authorized Leave of Absence) – Means a leave of absence from employment under the Florida Retirement System, subsequent to November 30, 1970, for which retirement credit may be received in accordance with Rule 60S-2.006, F.A.C. By default, FRS members do not earn service credits while on an unpaid leave of absence. Service credits may be earned, however, if the member meets the following requirements of rule 60S-2.006: A member may receive retirement credit for a total of two work years of creditable service for authorized leaves of absence under the Florida Retirement System, subject to the following: A leave of absence must be authorized in writing by a member’s employer prior to or during the leave of absence. The member must satisfy the service requirements for vesting, excluding any periods of leave of absence, except for military leaves of absence as provided in subsection 60S-2.005(1), F.A.C., prior to receiving retirement credit for leaves of absence. The member must return to active employment performing service with a Florida Retirement System employer in a regularly established position immediately upon termination of the leave of absence and remain on the employer’s payroll for one calendar month. The exceptions to this requirement are: A member placed on a leave of absence for medical reasons who retires on disability while on the leave of absence shall not be required to return to employment in order to be eligible to receive credit for the leave of absence; and A member whose work year is less than 12 months and whose leave of absence terminates between school years shall be eligible to receive credit for the leave of absence as long as he or she returns to covered employment at the beginning of the next school year and remains on the employer’s payroll for one calendar month. Petitioner did not return to work after her leave of absence (or at the beginning of the following school year), or retire on disability during her leave of absence. Petitioner did not earn service credit during her leave of absence in May 2017. Id. It appears Petitioner misunderstood the distinction between salary and FRS service credit, believing that the paycheck she received in May 2017 meant that she also earned FRS service credits for that month. The delay between the date on which her second election form was processed and the date on which it was invalidated exacerbated this problem, and perhaps gave Petitioner false hope that her second election was valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, State Board of Administration, issue a final order denying Petitioner’s request to transfer from the FRS Pension Plan to the Investment Plan. DONE AND ENTERED this 23rd day of February, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 23rd day of February, 2018.
The Issue Whether the Petitioner may withdraw from participation in the Deferred Retirement Option Plan (DROP)?
Findings Of Fact The Petitioner, Henry Gohlke, is a member of the Florida Retirement System (FRS), which is governed by Chapter 121, Florida Statutes (2003). The Petitioner is employed by the Department of Agriculture and Consumer Services. The Petitioner divorced his former spouse, Joanne Marie Gohlke, on October 29, 1997, and a Qualified Domestic Relations Order (QDRO) was entered which provided that Joanne Marie Gohlke was the alternate payee of the Petitioner's retirement benefits. See Exhibit J-10. Under the terms of the QDRO, when the Petitioner retired, his future retirement benefits would be incorporated into alimony payable to Joanne Marie Gohlke, beginning with the first monthly retirement benefit payment made to the Petitioner. The payment was fixed based upon the value of the Petitioner's pension at the time, and Joanne Marie Gohlke would receive $552.05 per month. DROP is a program which permits an employee, who has qualified for retirement, to retire; draw his retirement benefit based upon the retirement option he selected; and have the money paid into a non-taxed, interest-drawing account for up to five years while the employee continues to work. At the end of the five years or such other shorter time the employee elects, the employee may cease working and receive all or a part of the money in a lump payment paying the income taxes due on the amount, or roll the money over into an Individual Retirement Account (IRA) or similar program without paying income taxes until the money is withdrawn from that account. The Petitioner testified that he queried Eddie Tanner, who at that time was a paralegal working with the Division of Retirement, about the effect of the QDRO on his DROP deposits. There is conflicting testimony about what the Petitioner was told; however, Tanner testified concerning his customary advice to persons subject to QDROs. The Petitioner was advised to seek clarification from the domestic relations court to be certain. The Petitioner elected to participate in the DROP program in March of 2003. He may continue to participate in DROP until March 28, 2008. See Exhibit J-7. When he began to receive retirement benefits, a letter was sent to him on June 25, 1998, advising him that Joanne Marie Gohlke would qualify for a $552.05 per month share of the Petitioner's accrued DROP benefit as provided in the QDRO. The letter also advised that, upon the Petitioner's ceasing to work, the moneys due Joanne Marie Gohlke would be paid to her together with the accrued interest. This letter was sent to the Petitioner's old address, and he did not receive the letter. Eventually, the Petitioner learned that his DROP payments would be subject to the allocation of $552.05 each month to his ex-wife pursuant to the QDRO. This money would be payable to his ex-wife at the same time the Petitioner accessed his DROP money. The Petitioner questioned this payment to his ex-wife. The status of DROP benefits has been litigated, and the courts have determined that DROP benefits are retirement benefits and subject to QDROs. See Ganzel v. Ganzel, 770 So. 2d 304, 306 (Fla 4th DCA 2000). Based upon this precedent, the Respondent denied the Petitioner's request not to pay the proceeds from DROP to Joanne Marie Gohlke. Upon learning that his ex-wife would receive a portion of his DROP account, the Petitioner sought to withdraw from his participation in the DROP. Although an employee may elect to continue to work at the end of five years with the permission and written concurrence of his employer, he or she would automatically lose his or her DROP moneys by continuing to work past the five-year mark.1/ There is no administrative mechanism for withdrawing from DROP which would be analogous to "un-retiring." The Respondent properly denied the Petitioner's request to withdraw from DROP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's Petition be dismissed. DONE AND ENTERED this 27th day of January, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 27th day of January, 2004.
The Issue Whether or not Petitioner is indebted to the State of Florida in the amount of $897.01 arising out of his receipt of overtime pay while in an "excluded position" with the Department of State.
Findings Of Fact Petitioner is currently an employee of the State of Florida, Department of State ("State"). He has been continuously employed by "State" from March 1991 to date. Petitioner has consistently received his regular salary, annual leave, sick leave, special holidays, and retirement contributions as part of his employment package as a state government employee. Petitioner was employed by the Division of Elections of "State" as an Administrative Assistant II until April 1, 1991, at which time, he was promoted to an Administrative Assistant III. Petitioner went from an "included position" to an "excluded position" upon his promotion on April 1, 1991. Employees filling "included positions" may receive overtime compensation. Employees filling "excluded positions" may only receive compensatory leave on an hour-for-hour basis for those hours worked in excess of 40 hours per week. "Compensatory leave" may be withdrawn from an employee's leave accumulation amount and utilized in the same way as annual leave for the employee's rest and relaxation or other personal purposes. Prior to Petitioner's promotion, "State's" Division of Elections had never had an employee move from an Administrative II, included position, to an Administrative III, excluded position. Neither "State's" administrative personnel nor Petitioner had any prior knowledge that upon his promotion Petitioner would/was no longer entitled to be paid money for the overtime he worked in the new position. "State's" March 27, 1991 appointment letter to Petitioner advising him of his promotion did not advise him that the promotion had the effect of moving him from an included to an excluded position for purposes of overtime pay. The April 10, 1991 Report of Personnel Action regarding Petitioner's promotion incorrectly indicated that he had moved from an Administrative II, "excluded," to an Administrative III, "excluded" position. The Department of Management Services (Management Services) is solely responsible for the designation of whether an employee is in an included or excluded position as it relates to a Report of Personnel Action. That agency's personnel were unable to explain why the April 10, 1991 Report of Personnel Action was incorrect. Due to the erroneous Report of Personnel Action, neither "State" nor Petitioner were on actual notice that Petitioner had moved from an included to an excluded position for purposes of overtime pay and that he was no longer entitled to be paid money for the overtime he worked in the excluded promotional position of Administrative Assistant III. However, all concerned had constructive notice by prior documents and designations that the Administrative Assistant II position was an "included" position. No agency deliberately misled the Petitioner concerning his promotion, and there is no evidence that he would have refused the promotion had he known of the change of status from "included" to "excluded." Petitioner's "State" supervisor who had authorized his April 1, 1991 promotion was without actual knowledge at the time of Petitioner's promotion that Petitioner had moved from an included to an excluded position for purposes of receiving overtime pay and did not advise him of his ineligibility for overtime pay after his promotion. Petitioner was paid $897.01 in overtime payments for overtime worked during April through July 1991, while in an excluded position, despite not being entitled to overtime pay after May 31, 1991 for hours worked in excess of 40 hours per week. (The May 31, 1991 date was stipulated by the parties, see appendix.) Petitioner's "State" supervisor erroneously authorized the overtime payments Petitioner received while in his excluded promotional position. The Respondent, Department of Banking and Finance's (Banking and Finance's) payroll system that is designed to detect errors such as occurred here upon receipt of an employee's authorized request for pay did not detect this error because the system was not on-line during the four months Petitioner worked and submitted authorized requests for overtime pay in the excluded promotional position. The fact that Petitioner had received overtime pay while in an excluded position was neither discovered nor conveyed to him until six months after his April 1, 1991 promotion. Banking and Finance initiated an investigation concerning the overtime payments received by Petitioner while in an excluded position after receiving an anonymous complaint on October 28, 1991. In a March 10, 1993 letter, Banking and Finance asserted that the overtime payments Petitioner received while in an excluded position constituted a monetary debt to the State of Florida which Petitioner must repay in money. Petitioner spent the $897.01 to pay bills associated with the vacation he had taken prior to his promotion. Petitioner would have been able to repay the overpayment in cash had the error been discovered after the first or second erroneous monthly overtime payments, but he was not able to repay that large an amount in cash after the third request was submitted. Petitioner's request for authorization for overtime pay after his promotion was not submitted fraudulently or mendaciously, but was submitted because neither Petitioner nor anyone in his agency ("State") understood that he was not legally entitled to overtime pay. After determining that Petitioner had received overpayments, "State" took steps to recoup the overpayments. "State" sought to work with Petitioner to alleviate this problem for which its personnel felt partially responsible. In fact, "State" permitted him to utilize one of its agency attorneys for purposes of the instant formal proceeding. Petitioner and "State", without consulting Banking and Finance, entered into a negotiated agreement by which Petitioner would remit the $897.01 in overpayments in the form of 78 annual leave hours, and on December 31, 1991, 78 hours were deducted from Petitioner's accrued annual leave balance. In calculating the repayment of the deducted 78 annual leave hours from Petitioner's annual leave balance, "State" multiplied his rate of pay at that time, with the number of annual leave hours necessary to equal the amount of the overpayments, equaling $897.01. Neither Petitioner nor any agency received a cash payment from the deduction of the 78 annual leave hours. "State" merely deducted the hours from Petitioner's annual leave balance. "State" represented to Petitioner that the deduction of an amount of annual leave hours equivalent to the overpayments would satisfy his debt to the State of Florida. However, "State" neither requested nor received written permission from the Department of Banking and Finance to enter into an agreement by which "State" could accept a non-monetary "repayment" from Petitioner. Charlene Wilson, Personnel Services Specialist, Benefits Division of Administrative Services, Department of State, testified that accrued paid leave is a dollar-for-dollar payment since each hour of annual leave represents an hour of active employment and, therefore, are equal. William J. Schmitt, Chief, Bureau of Payrolls, Department of Banking and Finance, testified that an employee is paid for annual leave when authorized by an agency. However, these isolated pieces of evidence are not controlling. Further testimony was provided as to the historical application of the rules of the Department of Banking and Finance and the Department of Management Services. Robert W. Henley, Labor Specialist for Management Services, and William J. Schmitt each testified to the historical application and interpretation of their respective agency rules. Each testified that, as their agencies had interpreted and applied their own rules to date, employees who are continually employed by the State of Florida may not use annual leave to repay a debt in the manner Petitioner and the Department of State chose. Prior to the December 31, 1991 deduction of the annual leave hours, Petitioner had "banked" 109.097 annual leave hours. After the deduction of 78 hours to satisfy his agreement with "State," he had only 31.097 hours remaining. It took Petitioner 12 months to build his annual leave balance back to where it was prior to the December 31, 1991 deduction. During the 1991 year, but prior to the deduction of the 78 annual leave hours, Petitioner had taken a vacation to Innsbruck, Austria utilizing his annual leave accrued to that point in time and being paid his regular salary while he was on vacation. Petitioner did not take a vacation in 1992, the year following the deduction of the 78 annual leave hours, because of the lack of sufficient accrued annual leave hours left in his balance to take the length of vacation he wanted to take. In 1992 there were still low air-fare prices for trips abroad. In 1991, Petitioner utilized 80 annual leave hours while receiving regular pay. In 1992, Petitioner utilized 18.25 annual leave hours while receiving regular pay.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Banking and Finance enter a final order providing as follows: That Petitioner is indebted for salary overpayments to the Department of Banking and Finance for the amount of $897.01; That Petitioner shall repay the aforesaid amount within one year from date of this order in payment amounts of not less than $100.00 each or the total remaining balance of the debt in any single payment and that failure of Petitioner to repay the full amount in the year provided shall result in the Department of Banking and Finance debiting his salary for the unpaid balance at the end of the year's grace period, and That once full payment is completed, the Department of Banking and Finance shall coordinate, to the degree possible, with all other agencies the restoration of 78 hours annual leave to Petitioner's annual leave account balance and the crediting of Petitioner with the appropriate compensatory leave hours earned after his promotional date. RECOMMENDED this 28th day of February, 1994, at 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 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER 93-1886 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-5 Accepted in substance, but not adopted verbatim. 7-11 Accepted in substance, but not adopted verbatim. 6,12 Rejected as stated due to the legal words of art employed. See FOF 2 and 11 which more accurately conform to the record as a whole. 13-32 Not adopted verbatim. Accepted in substance except for unnecessary, subordinate or cumulative material. It is noted that PFOF 21 and 22 seem to be contradictory but were in fact stipulated as fact by the parties. Although a date of March 31 makes better sense, the hearing officer assumes that the parties' use of the May 31 date accounts for pre-earned payments of overtime delayed into a following pay period. This is not a dispositive issue and the parties' stipulation has been honored in FOF 13. 33-34 Rejected because these proposals are misleading as stated and are not dispositive. Covered in FOF 25-26. 35-36 Not adopted verbatim. Accepted in substance except for unnecessary, subordinate, or cumulative material. Rejected as stated because it contains words of art and represents a proposed conclusion of law. See Conclusions of Law. Covered only as necessary in FOF 21-23. Otherwise rejected as a proposed conclusion of law or as cumulative to the facts as found. 39-40 Rejected as conclusions of law or legal argument and as unnecessary and non-dispositive. See FOF 21-23 and Conclusions of Law. 41-49 The interspersed conclusions of law, including but not limited to the "payment" of leave hours, are rejected as such. The interspersed and footnoted legal arguments also are rejected. See FOF 28-30 Conclusions of Law. Otherwise, the proposals are accepted in substance but not adopted verbatim to avoid subordinate, cumulative and verbose material. 50 Accepted. Respondent's PFOF: 1-2 Accepted, but some unnecessary, subordinate and cumulative material has been excised. COPIES FURNISHED: Douglas D. Sunshine, Esquire Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250 Scott C. Wright, Esquire Office of the Comptroller The Capitol, Suite 1302 Tallahassee, FL 32399-0350 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 William G. Reeves Department of Banking and Finance The Capitol, Room 1302 Tallahassee, FL 32399-0350
Findings Of Fact Brian Clancy was employed by the Department of Transportation in a survey crew and had been so employed since before April 19, 1983, until he was deemed to have resigned from his position by abandonment on July 7, 1986. In March or April, 1986, Petitioner discussed with his immediate supervisor on the survey crew, Ray Fletcher, the possibility of him taking leave in July to go to New York in time for the Statue of Liberty celebration July 4, 1986. Fletcher advised Petitioner that by that time he would have accrued enough leave to take ten days off. Petitioner interpreted that as approval for leave. On June 30, 1986, Petitioner did not report to work and his absence was reported by his supervisor as were his subsequent absences on July 1, 2 and 3, 1986. On July 3, 1986, James Lott, District Location Surveyor, sent a memo to his supervisor stating that Clancy had been absent from the position for three consecutive days and requested he be terminated by reason of abandonment. By letter dated July 7, 1986 (Exhibit 4) the Deputy Assistant Secretary - District One advised Clancy that he was deemed to have resigned his position by reason of abandonment and of his right to a Chapter 120, Florida Statutes, hearing. At no time did Petitioner request leave-in writing nor was he ever granted leave in writing. Other than his discussions with Fletcher in April or May regarding taking leave in July did Petitioner say anything else about his leave and Fletcher has no recollection that any specific time period for this leave was discussed. Petitioner contends that he never intended to abandon his position and thought that his discussions with Fletcher constituted approval of his leave request. By acknowledgment dated April 19, 1983 (Exhibit 2), Petitioner acknowledged receipt of Employee Handbook (Exhibit 1). Petitioner further contends that each time he took leave prior to June 30, 1986, his supervisor had the leave request prepared for him and brought it to Petitioner to sign, and that Petitioner never went to the office to initiate the paperwork. Petitioner did not testify that he ever departed on leave without having written approval prior to June 30, 1986.
The Issue Whether, under the facts and circumstances of this case, petitioner is deemed to have abandoned his position and resigned from the Career Service.
Findings Of Fact Mr. Willie L. Claridy was an employee of the Department of Transportation for 2 or 3 years and was under the immediate supervision of Daniel E. Skinner at the Sarasota Maintenance Office for approximately a year, including March and early April of 1984. On or about Monday, March 26, 1984, while in the outside shop area at his place of employment, Mr. Claridy mentioned taking a vacation to some fellow employees. He said he was going home to a family reunion. The employees moved into the office area, and the conversation continued. Mr. Skinner, who was petitioner's supervisor, Mr. Campbell, Mr. Claridy, and two others were present in the office. During the conversation in the office, Mr. Claridy stated that he was going to take a vacation; however, he never specifically asked for leave, he was not told that he could have leave, and no specific dates were mentioned. 1/ Although Mr. Skinner could not recall the discussion regarding Mr. Claridy's vacation, he admitted that it could have taken place. However, Mr. Claridy never signed a leave slip requesting leave, and Mr. Skinner never signed a leave slip approving leave. Nevertheless, Mr. Claridy did not report for work on April 2nd, 3rd, 4th, or 5th, 1984, and did not contact his office during that time. The Employee Handbook, received by Mr. Claridy on April 20, 1983, clearly states that an employee must obtain the approval of his supervisor before taking leave. Neither the handbook nor the memorandum to employees of January 1982 states that prior approval must be in writing, although the language in the handbook implies that it should be. However, Mr. Claridy was fully aware of the procedure that he needed to follow in requesting leave. On two earlier occasions when Mr. Claridy had wanted time off he had submitted leave slips and received approval from his supervisor prior to his absences from work. Mr. Claridy's stated reason for not submitting a leave slip in this case in advance of his absence is neither accurate nor credible. He testified that he thought he might get called back to work during the course of his leave time due to a shortage of mechanics, and, if this occurred and he had submitted the leave slip, he would not have gotten paid for his time. 2/ However, the evidence at the hearing indicated that Mr. Claridy did not plan to be and was not in town during his absence from work, and therefore could not have been called into work. 3/ Further, Mr. Claridy stated that they might need him because they were short of help but also testified that "[w]e were caught up with all our work." Finally Mr. Claridy's return to work during a period of time when he was on authorized leave would not have adversely affected his pay or his annual leave time, and Mr. Claridy would have discovered this had he made any inquiries. Mr. Skinner did not approve Mr. Claridy's leave time nor did he inform Mr. Claridy that he could submit a leave slip after his vacation. Consequently Mr. Claridy's absence from work on April 2nd, 3rd, 4th, and 5th was unauthorized. Mr. Claridy had received the Employee Handbook and the memorandum of January 1982 which informed him that three consecutive absences without authorized leave would result in termination of employment. Mr. Claridy was properly informed by certified letter dated April 5, 1984, that having failed to report for work during the period in question and having failed to take action to notify his supervisor of the reasons for the absence he was deemed to have abandoned his position and resigned from the Career Service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that, under the facts and circumstances of this case, the action of the Department of Transportation in deeming the petitioner to have abandoned his position and resigned from the Career Service was correct and affirming such action. DONE and ENTERED this 18th day of December, 1985, in Tallahassee, Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1985.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at tee hearing, the following findings of fact are made: On or about December 5, 1969, the Petitioner, Hugh G. Purkey became employed by the State of Florida, Department of Transportation. In 1984, Petitioner held the position of Engineer II, Area Engineer and was assigned to the North Dade Maintenance Yard (NDMY). In 1983, Petitioner executed a form which acknowledged he had received a complete copy of the DOT employee handbook. The acknowledgement specified that enployees are responsible to review the handbook in detail and to request any clarification needed from a supervisor. The handbook provided the following regarding job abandonnent: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. On or about October 23, 1984, Petitioner filed a request for a medical leave of absence. This request was based upon Petitioner's pulmonary disorder which prevented him from performing his duties with the NDMY. Petitioner was to receive pay based upon his accrued annual and/or sick leave through Novenber 6, 1984, thereafter, he was to be on leave without pay for a period of four months. This leave request was approved by the Petitioner's supervisor, Clive Taylor. Mr. Taylor was the only supervisor or employee at the NDMY who was authorized to grant a leave of absence for Petitioner. On January 28, 1985, an extension of Petitioner's leave of absence was granted by Mr. Taylor. This extension authorized two additional months of leave and specified that Petitioner would return to work no later than May 6, 1985. Prior to the leave of absence described above, Petitioner had performed his duties with the NDMY in an above satisfactory manner. Prior to May 6, 1985, Petitioner had complied with the rules and regulations regarding requests for leave. Petitioner did not return to work on May 6, 1985. Petitioner did not file a request for a leave extension. Mr. Taylor did not approve an extension of the leave beyond May 6, 1985. Petitioner was absent without authorized leave on May 6, 7, and 8, 1985. On May 10, 1985, Mr. Taylor executed a form entitled "Resignation and Exit Interview Form." This form provided, in part: "Mr. Purkey is not available for signature" and "Mr. Purkey is pursuing regular disability retirement." Petitioner did not execute the form but was advised of its content by telephone. Sometime prior to April 30, 1985, Petitioner had applied for disability retirement benefits. That request was filed with the Department of Administration, Division of Retirement and was denied based upon a determination that Petitioner was not totally and permanently disabled from rendering useful and efficient service. When that determination was made, Petitioner elected to file for regular retirement since he had accrued over ten years with the State. Thereafter, Petitioner received retirement benefits which were granted and paid retroactively from February 1, 1985. On July 9, 1986, Petitioner received a physician's statement which provided: It is my professional opinion that this patient may return to work requiring no strenuous physical activity providing that the patient continue on his medication and return for regular checkups in any office. Upon receipt of the physician's statement, Petitioner contacted the NDMY to request that he be allowed to return to work. Petitioner was advised that he had been terminated from employment in May, 1985, based upon his failure to return to work following his leave of absence. On July 29, 1986, Petitioner wrote to John C. Gocdnight, Assistant Secretary of Transportation, and requested Mr. Goodnight's assistance to allow Petitioner to return to DOT. That letter admitted that Petitioner knew his position had been filled but claimed he had been on leave. Petitioner maintained that he was "much too young to retire." The letter failed to mention that Petitioner had already been receiving retirement benefits. Petitioner listed his address subsequent to November, 1984, as Dunnellon, Florida. There is no record in Petitioner's personnel file which confirms DOT sent, and Petitioner received, a notice of his termination from employment in May, 1985. Petitioner did not request a hearing to review that termination until January, 1989.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Administration enter a final order finding that the Petitioner, Hugh G. Purkey, abandoned his position and resigned from the Career Service. DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraph 1 is accepted. The first portion of paragraph 2 is accepted; the designation of his last actual day of employment is in error and is rejected as contrary to the weight of the evidence. The date indicated, January 20, 1984, was not his last day of actual employment. According to DOT exhibit 8 (the referenced citation) that date was the last date worked. Petitioner's last date of employment would have been calculated from May 5, 1985 (the last date of his authorized leave). With regard to paragraphs 3 and 4, it is accepted that Petitioner used his accrued sick and annual leave until they were exhausted. After the paid leave was used, Petitioner applied for and received, by filing the appropriate form, an authorized leave without pay. Paragraph 5 is accepted. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as comment, argument, or recitation of testimony which does not constitute a finding of specific fact. Paragraph 11 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as contrary to the weight of the credible evidence. Paragraph 14 is rejected as vague and ambiguous. It is accepted that Petitioner filed his original leave request and that Ms. Sellers assisted him. Paragraph 15 is rejected as incomplete and contrary to the weight of the evidence. Paragraph 16 is accepted to the extent that it provides that clerks would assist persons who requested such assistance. The first three sentences of paragraph 17 are accepted; the balance of the paragraph is rejected as argument or contrary to the weight of the evidence. The first sentence of paragraph 18 is accepted. The remainder of the paragraph is rejected as irrelevant or unknown. DOT did not establish that the form was sent and received by Petitioner. Paragraph 19 is accepted. Paragraph 20 is rejected as a provision of law. The parties have not disputed that the notice is required. Paragraph 21 is accepted to the extent that DOT cannot prove that such notice was provided to Petitioner. Paragraph 22 is rejected as incomplete or contrary to the weight of the evidence. Paragraph 23 is rejected as irrelevant since Petitioner did not request that his medical leave be continued as required by the rule. Paragraph 24 is rejected as irrelevant. Further, the authorization to return was not without limitation. Paragraph 25 is rejected as contrary to the weight of the credible evidence. Paragraph 26 is rejected as irrelevant. Paragraph 27 is rejected as irrelevant. With regard to the letter to Goodnight, Petitioner admitted in that letter that he knew his position had been filled. Paragraph 28 is rejected as irrelevant. Paragraph 29 is accepted but is irrelevant. Paragraph 30 is accepted. Paragraph 31 is rejected as irrelevant or not covered by the record. With regard to paragraph 32, it is accepted that Petitioner's request for disability retirement was denied and that he ultimately elected to seek early retirement; otherwise, it is rejected as hearsay uncorroborated by direct evidence. Paragraph 33 is accepted. Paragraph 34 is rejected as irrelevant or contrary to the credible evidence. Paragraph 35 is rejected as irrelevant. Paragraph 36 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 37 is rejected as irrelevant. Paragraph 38 is rejected as comment, argument, or recitation of testimony. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is rejected as contrary to the weight of the credible evidence. Petitioner's section described as "Analysis" has not been considered findings of fact. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY DOT: 1. Paragraphs 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 24, and 25 are accepted. Paragraph 2 is rejected as Irrelevant. Paragraph 4 is rejected as irrelevant. Paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted but is unnecessary. Paragraph 23 is rejected as unsupported by the record. DOT's section described as "Analysis" has not been considered findings of fact COPIES FURNISHED: Paul H. Field WICKER, SMITH, BLOMQVIST, TUTAN, O'HARA, McCOY, GRAHAM & LANE Grove Plaza Building, 5th Floor 2900 Middle Street Miami, Florida 33133 Charles Gardner Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Acting Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
