The Issue Petitioner challenges the validity of Rule 3SF-2.13, Florida Administrative Code. 1/
Findings Of Fact Based on the entire record compiled herein, including the parties' factual stipulation, the following relevant facts are found. MISSION Insurance Co. (MISSION) is a corporation duly authorized to issue insurance policies, including workers' compensation insurance policies in the State of Florida. MISSION conducts its adjusting operations at North Regency One, Suite 400, 985 Regency Square Boulevard, Jacksonville, Florida. In the regular course of its business, MISSION adjusted the worker's compensation claim of Katrine Graham, who was injured on April 30, 1984 in an accident arising out of and in the course of her employment with Smiley's Mobey Dick Restaurant. MISSION received notice of the accident on May 21, 1984. On September 1, 1984, MISSION filed with the DIVISION its initial Injury Progress report (LES From BCL-13), in connection with the claim. On February 11, 1985, MISSION received from the DIVISION's Bureau of Workers' Compensation Carrier practices a letter dated February 4, 1985, notifying MISSION that the Bureau had assessed against MISSION the penalty of $100.00 for filing the form 11 days after the time prescribed by Rule 38F-3.16, F.A.C. A copy of the letter is attached hereto as Joint Exhibit "A." Since at least 1979, the DEPARTMENT has had a policy of imposing a fine of $100.00 on any insurance carrier who files its initial Injury Progress Report (LES From BCL-13) more than 105 days after it receives notice of the accident. The DEPARTMENT applies this policy, through its Bureau of Workers' Compensation Carrier Practices, to all insurance carriers and self-insured employers who come within the jurisdiction of the DEPARTMENT. The DEPARTMENT imposes penalties for the untimely filing of forms other than the BCL-13 form. The penalties to be imposed for the untimely filing of the BCL-13 form, as well as other forms, are stated in a "Penalty Assessment Chart," a copy of which is attached hereto as Joint Exhibit "B." At the time the subject penalty was imposed on MISSION, this chart was used by the DEPARTMENT's workers' compensation examiners in determining whether a penalty should be imposed and, if so, the amount of the penalty. The DEPARTMENT did not implement or use Chapter 120 rulemaking procedures to adopt the Penalty Assessment Chart, or the policy it represents, as a rule. PETITIONER'S POSITION Petitioner contends that the Penalty Assessment Chart amounts to an unpublished rule which has the effect of exacting a penalty for "late" filing in excess of Respondent's legislative authority inasmuch as Respondent is only authorized to impose a penalty based on a carriers failure or refusal to file forms, reports, or notices pursuant to Section 445.185(9), Florida Statutes. Petitioner avers that in the absence of specific statutory authorization for Respondent to impose a penalty or assessment for an untimely filing, there is no basis upon which Respondent can impose the penalty involved herein, that the rule should be declared invalid and the $100.00 penalty imposed based thereon, should be rescinded. RESPONDENT'S POSITION Respondent avers that timely filings are inextricably tied to the Division's reporting requirements and that to conclude that a carrier could file reports, notices, etc. at will, without any directive, would lead to an absurd result in contravention of Respondent's long-standing reporting policy which has been effective since approximately 1979. Finally, Respondent urges that the legislature has authorized it to exact penalties for late filings based on the authority granted in Sections 440.185(5) and (9), Florida Statutes.
The Issue Whether Larry Williams abandoned his position of employment with the Department?
Findings Of Fact Larry Williams worked for the Department for approximately 7 years. During the portion of 1987 that Mr. Williams worked for the Department he was employed as a Supervisor 1. Mr. Williams received a copy of an Employee Handbook upon his employment with the Department. The Employee Handbook informed the Petitioner of the rules governing absences from work, including the Department's rule that an employee will be treated as having abandoned his position if the employee is absent for 3 consecutive workdays without authorized leave. Prior to May 29, 1987, Mr. Williams was assigned to a Bridge Unit of the Department. The Bridge Unit worked out of the Ellis Road yard of the Department located in Jacksonville, Duval County, Florida. Duval County is part of the Department's District Second. By Memorandum dated May 21, 1987, Mr. Williams was informed that he was being reassigned from the Bridge Unit to the Jacksonville Maintenance Unit. He was ordered to report to the Department's sub-maintenance yard at Doctor's Inlet on May 29, 1987. Doctor's Inlet is located in Clay County, Florida. The supervisor of the Doctor's Inlet yard was G. C. Carter. James M. Griffis, a technician at the time at issue in this proceeding also worked at the Doctor's Inlet yard. During the period of time that Mr. Williams was assigned to the Doctor's Inlet yard he occupied a supervisory position between Mr. Carter and Mr. Griffis. Despite this fact, when Mr. Carter was absent from work, Mr. Griffis was placed in charge. This created a problem with Mr. Williams which he discussed with Department employees with supervisory authority over Mr. Carter. Although some efforts were made, the problem was not rectified. On July 30, 1987, Mr. Williams went to the Ellis Road yard and asked to speak with Jesse A. Mann, Mr. Carter's immediate supervisor. Mr. Williams indicated that he was having car troubles and asked if he could work out of the Ellis Road yard that day instead of going to Doctor's Inlet. Mr. Mann informed Mr. Williams that his assigned station was Doctor's Inlet and denied the request. Mr. Williams also asked for permission to drive a Department vehicle to Doctor's Inlet. This request was also denied. Although Department employees had been allowed to use Department vehicles to travel from Ellis Road to other locations, the evidence failed to prove that employees had been allowed to use Department vehicles because their cars had broken down. Mr. Mann told Mr. Williams that he could take a couple of days off in order to get his car repaired. Mr. Mann was authorized to approve leave for Mr. Williams. Mr. Williams told Mr. Mann that he did no have the money to get his car repaired and left without indicating whether he would take time off or not. On Friday, July 31, 1987, Mr. Williams did not report to work. Nor did Mr. Williams notify the Department that he would not be at work that day. On Monday, August 3, 1987, and Tuesday, August 4, 1987, the next working days after July 31, 1987, Mr. Williams did not report to work. Again, Mr. Williams did not notify the Department that he would not be at work. On occasions when Mr. Williams has taken approved leave in the past, his absence has been approved verbally. Only after Mr. Williams has returned from those absences has a written approval form been executed by the Department and Mr. Williams. By letter dated August 5, 1987, the Department notified Mr. Williams that he had been removed from his position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code. By letter dated August 12, 1987, Mr. Williams requested a formal hearing to contest the Department's decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, Larry Williams, has not abandoned his career service position with the Department. DONE and ENTERED this 16th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1988. COPIES FURNISHED: Larry Williams Kaye Henderson, P.E., Secretary 617 West 44th Street Department of Transportation Apartment 191 Haydon Burns Building Jacksonville, Florida 32208 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building Augustus D. Aikens, Jr. 605 Suwannee Street General Counsel Tallahassee, Florida 32399-0450 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Barbara Calhoun, Respondent, is a Career Service employee with permanent status. She has been employed by the Petitioner since approximately 1969 and is presently employed in the capacity of a Resident Lab Assistant (RLA). Mary Ellen Weaver, Nursing Director at Sunland Center at District VII, is in charge of the nurses and other staff personnel at the Sunland Center in Orlando. Mrs. Weaver testified that she approved initially the recommendation by Mrs. Calhoun's supervisor that she be suspended for a continued pattern of absenteeism which had been documented by three previous reprimands, the first of which occurred approximately September 16, 1976. The first reprimand was an oral reprimand of September 16, 1976, and was based on an excessive pattern of sick leave in conjunction with days off. The second one occurred on November 29, 1976, and was submitted by a Mrs. Renner, R.N. and the reviewing officer on that reprimand was Mrs. Graham, R.N. III. The third reprimand occurred on February 5, 1977, a written reprimand the basis therein was excessive absenteeism, with the reviewing officers being Mrs. Renner and Mrs. Graham. (See Petitioner's Exhibits Nos. 1, 2 and 3.) Documentary evidence introduced reveals that from February 11, 1976, to June 23, 1977, the Petitioner accumulated approximately 19 days of unscheduled absences with the majority of such absences occurring in conjunction with days off and most of which were leave without pay (LWOP) because during the Respondent's approximately eight year employment tenure, she had accumulated no annual or sick leave. (See Joint Exhibit 1.) Without going into a recitation of all of the numerous days in which the Respondent was absent, the following is illustrative. On February 11, 1977, Respondent called in sick which was also without pay because she had accrued no leave. The following day the Respondent called in sick and again this absence was without pay and unscheduled. On March 6, 1977, Respondent had a friend call to advise that she was sick with the flu and again a message was sent the following day, on March 7, 1977. On March 26 the Respondent called in sick which was before she was off for two days. On April 18 the Respondent again called in ill. On May 2 Respondent requested annual leave, which was granted. On May 3 the Respondent called in sick and obtained permission to use annual leave since there was no more sick leave accrued. On May 12 Respondent called in sick and again there was no annual leave accrued to cover the absence. The following day the Respondent called in sick, which was prior to her weekend off. On June 1, 1977, Respondent called in sick after being off on May 30 and May 31. On June 16, 1977, Respondent was off and used an annual leave day, which was unscheduled and without prior approval. On June 23 Respondent called in sick, which was unscheduled. It was at this juncture that Respondent's supervisor recommended a suspension, which was approved by Mrs. Weaver and ultimately sent to a Mr. Windsor for final approval. The Respondent offered no explanation to explain, refute or otherwise contradict the numerous absences nor did she offer any proof of any kind to establish that she was in fact sick in such a sporadic form which occurred in conjunction with her days off. 1/ In view of the above, the undersigned concludes that there is competent and substantial evidence to support the Petitioner's disciplinary action directed toward the Respondent.
Recommendation Based on the foregoing findings and conclusions of law, it is hereby recommended the personnel action of the Petitioner, Department of Health and Rehabilitative Services, be sustained. RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1978.
The Issue Whether Respondent may levy upon property belonging to Petitioner (specially, funds in Petitioner's account, number 300126719, at Admiralty Bank), as proposed in Respondent's March 30, 2000, Notice of Intent to Levy?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner operates a Chevron station at 4109 Northlake Boulevard in Palm Beach Gardens, Florida, at which it engages in the business of selling motor fuels at posted retail prices. Petitioner maintains a business account at Admiralty Bank. The number of its account is . Petitioner's Local Option Motor Fuel License number is 60-023068. Petitioner was delinquent in remitting to the Department "local option gas tax" payments for the period from July 1, 1995, through June 30, 1996. The Department provided Petitioner notice of Petitioner's failure to make these payments. The Department filed with the Clerk of the Circuit Court in Palm Beach County a Tax Warrant "for collection of delinquent local option gas tax[es]," in the amount of $106,904.62, plus penalties (in the amount of $59,556.47), interest (in the amount of $12,026.25), and the amount of the "filing fee" ($12.00), for a "grand total" of $178,499.34. Rafael Fanjul is the president and sole owner of Petitioner. On May 2, 1997, Mr. Fanjul, on behalf of Petitioner, entered into a Stipulation Agreement with the Department, which provided as follows: THE FLORIDA DEPARTMENT OF REVENUE AND ELF SERVICES, D/B/A PALM BEACH CHEVRON S/S THE TAXPAYER, TAX IDENTIFICATION NO. 60- 123068, HEREBY AGREE THAT THE $178,024.29 TAX LIABILITY IS DUE THE STATE OF FLORIDA. IT IS FURTHER AGREED THE SUM OF TAX, PENALTY, AND INTEREST REFERENCED ON THE WARRANT OR WARRANTS DATED 02/20/97 IS SUBJECT TO THE FOLLOWING STIPULATIONS: The taxpayer will retire the tax, penalty, and interest shown on the Tax Warrant or Warrants whose dates or dates are shown above. The taxpayer waives any and all rights to institute any further judicial or administrative proceedings under S.72.011, F.S., with respect to this liability and; The taxpayer further agrees to meet each payment term which is detailed on the Amortization Schedule and Payment Coupons provided by the Department of Revenue. IN THE EVENT THE TAXPAYER FAILS TO MEET THE PAYMENT TERMS DETAILED ON THE ENCLOSED AMORTIZATION SCHEDULE AND PAYMENT COUPONS OR FAILS TO TIMELY REMIT ALL TAXES WHICH BECOME DUE AND PAYABLE SUBSEQUENT TO THE DATE OF THIS AGREEMENT, ANY UNPAID BALANCE OF TAX, PENALTY, AND/OR INTEREST SCHEDULED PURSUANT TO THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE. Mr. Fanjul had the authority to bind Petitioner to the terms set forth in the Stipulation Agreement. There has been no showing that, in so doing, he acted involuntarily or under coercion or duress. Petitioner made some, but not all of the payments, set forth on the Amortization Schedule incorporated by reference in the Stipulation Agreement. 4/ On May 1, 1998, Petitioner entered into a second Stipulation Agreement with the Department, which provided as follows: THE FLORIDA DEPARTMENT OF REVENUE AND ELF SERVICES, D/B/A PALM BEACH CHEVRON S/S 4806, THE TAXPAYER, TAX IDENTIFICATION NO. 60- 123068, HEREBY AGREE THAT THE $142,701.38 TAX LIABILITY IS DUE THE STATE OF FLORIDA. IT IS FURTHER AGREED THE SUM OF TAX, PENALTY, AND INTEREST REFERENCED ON THE WARRANT OR WARRANTS DATED 02/20/97 IS SUBJECT TO THE FOLLOWING STIPULATIONS: The taxpayer will retire the tax, penalty, and interest shown on the Tax Warrant or Warrants whose dates or dates are shown above. The taxpayer waives any and all rights to institute any further judicial or administrative proceedings under S.72.011, F.S., with respect to this liability and; The taxpayer further agrees to meet each payment term which is detailed on the Amortization Schedule and Payment Coupons provided by the Department of Revenue. IN THE EVENT THE TAXPAYER FAILS TO MEET THE PAYMENT TERMS DETAILED ON THE ENCLOSED AMORTIZATION SCHEDULE AND PAYMENT COUPONS OR FAILS TO TIMELY REMIT ALL TAXES WHICH BECOME DUE AND PAYABLE SUBSEQUENT TO THE DATE OF THIS AGREEMENT, ANY UNPAID BALANCE OF TAX, PENALTY, AND/OR INTEREST SCHEDULED PURSUANT TO THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE. Mr. Fanjul had the authority to bind Petitioner to the terms set forth in the second Stipulation Agreement. There has been no showing that, in so doing, he acted involuntarily or under coercion or duress. Petitioner made some, but not all of the payments, set forth on the Amortization Schedule incorporated by reference in the second Stipulation Agreement. 5/ On August 12, 1999, Petitioner entered into a third Stipulation Agreement with the Department, which provided as follows: THE FLORIDA DEPARTMENT OF REVENUE AND ELF SERVICES, D/B/A PALM BEACH CHEVRON S/S 4806, THE TAXPAYER, TAX IDENTIFICATION NO. 60- 123068, HEREBY AGREE THAT THE $88,375.04 TAX LIABILITY IS DUE THE STATE OF FLORIDA. IT IS FURTHER AGREED THE SUM OF TAX, PENALTY, AND INTEREST REFERENCED ON THE WARRANT OR WARRANTS DATED 02/20/97 IS SUBJECT TO THE FOLLOWING STIPULATIONS: The taxpayer will retire the tax, penalty, and interest shown on the Tax Warrant or Warrants whose dates or dates are shown above. The taxpayer waives any and all rights to institute any further judicial or administrative proceedings under S.72.011, F.S., with respect to this liability and; The taxpayer further agrees to meet each payment term which is detailed on the Amortization Schedule and Payment Coupons provided by the Department of Revenue. IN THE EVENT THE TAXPAYER FAILS TO MEET THE PAYMENT TERMS DETAILED ON THE ENCLOSED AMORTIZATION SCHEDULE AND PAYMENT COUPONS OR FAILS TO TIMELY REMIT ALL TAXES WHICH BECOME DUE AND PAYABLE SUBSEQUENT TO THE DATE OF THIS AGREEMENT, ANY UNPAID BALANCE OF TAX, PENALTY, AND/OR INTEREST SCHEDULED PURSUANT TO THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE. Mr. Fanjul had the authority to bind Petitioner to the terms set forth in the third Stipulation Agreement. There has been no showing that, in so doing, he acted involuntarily or under coercion or duress. The Amortization Schedule incorporated by reference in the third Stipulation Agreement required Petitioner to make 47 weekly payments of $1,000.00 each from August 12, 1999, to June 29, 2000, and to make a final payment of $28,994.57 on July 6, 2000. As of January 12, 2000, Petitioner was five payments behind. Accordingly, on that date, the Department sent a Notice of Delinquent Tax to Admiralty Bank, which read as follows: RE: ELF SERVICES INC. DBA: PALM BEACH GARDENS CHEVRON STA 48206 FEI: 65-0055086 ACCT: ST#: To Whom It May Concern: You are being notified, under the authority contained is Subsection 212.10(3), Florida Statutes, that the referenced dealer is delinquent in the payment of gas tax liabilities in the amount of $75,581.47 to the State of Florida. You may not transfer or dispose of any credits, debts, or other personal property owed to the dealer, that are to become under your control during the effective period of this notice. Any assets in your possession exceeding the dollar amount shown above may be released in the ordinary course of business. This notice shall remain in effect until the Department consents to a transfer or disposition or until sixty (60) days elapse after receipt of this notice, whichever period expires the earliest. Please furnish a list of all credits, debts, or other property owed to the dealer in your possession and the value of these assets to the Department. Chapter 212.10(3), F.S. requires this list within five (5) days. If you fail to comply with this notice, you may become liable to the State of Florida to the extent of the value of the property or amount of debts or credits disposed of or transferred. Thank you for your cooperation. If you have any questions, please contact the undersigned at the telephone number below. On or about January 18, 2000, in response to the foregoing notice, Admiralty Bank advised the Department in writing that "the balance being held" in Petitioner's account at the bank was $2,223.53. On February 10, 2000, the Department sent Admiralty Bank a Notice of Freeze, which read as follows: RE: Elf Services Inc. DBA Palm Beach Gardens Chevron FEI: 65-0055086 ACCT: ST#: Dear Custodian: You are hereby notified that pursuant to Section 213.67, Florida Statutes, the person identified above has a delinquent liability for tax, penalty, and interest of $75,581.47, which is due the State of Florida. Therefore, as of the date you receive this Notice you may not transfer, dispose, or return any credits, debts, or other personal property owned/controlled by, or owed to, this taxpayer which are in your possession or control. This Notice remains in effect until the Department of Revenue consents to a transfer, disposition, or return, or until 60 consecutive calendar days elapse from the date of receipt of this Notice of Freeze, whichever occurs first. Further, Section 213.67(2), F.S., and Rule 12-21, Florida Administrative Code, require you to advise the Department of Revenue, within 5 days of your receipt of this Notice, of any credits, debts, or other personal property owned by, or owed to, this taxpayer which are in your possession or control. You must furnish this information to the office and address listed below. Your failure to comply with this Notice of Freeze may make you liable for the amount of tax owed, up to the amount of the value of the credits, debts or personal property transferred. Thank you for your cooperation. If you have any questions please contact the undersigned at the telephone number listed below. On March 22, 2000, the Department sent to Petitioner a Notice of Intent to Levy upon Petitioner's "Bank Account # , in the amount of $2,320.07, . . . in the possession or control of Admiralty Bank" "for nonpayment of taxes, penalty and interest in the sum of $75,581.47." After receiving information from Admiralty Bank that Petitioner actually had $7,293.36 in its account at the bank, the Department, on March 30, 2000, sent Petitioner a second Notice of Intent to Levy, which was identical in all respects to the March 22, 2000, Notice of Intent to Levy except that it reflected that Petitioner's account at Admiralty Bank contained $7,293.36, instead of $2,320.07. Petitioner's account at Admiralty Bank does not contain any monies paid by a third party to Petitioner as salary or wages. The amount of the Petitioner's current outstanding delinquent "tax liability" is $75,581.47.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order upholding its March 30, 2000, Notice of Intent to Levy and proceed with the garnishment of the funds in Petitioner's account at Admiralty Bank. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Florida. STUART M. LERNER 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 25th day of October, 2000.
Findings Of Fact The Respondent, Robert Lowenthal as Trustee, trading as Cotton Apartments, is licensed by the Petitioner, the Division of Hotels and Restaurants, Department of Business Regulation, and is in business at 41 East Eighth Street in Hialeah, Florida. Robert Lowenthal is the owner and trustee of said business. A Notice to Show Cause was issued by Petitioner on September 1, 1978, notifying Respondent that certain evidence, which, if true, is good and sufficient cause pursuant to Section 509.261, Florida Statutes, to assess a civil penalty against the Respondent, or to suspend or revoke the license, for failure to return a security deposit of $215.00 to Juana Abijalil and failure to provide a written notice to tell said tenant how the security deposit was being held. The Notice to Show Cause indicated at that date five (5) percent interest, or a total of $44.70, was due. No answer was received by Petitioner, and an Administrative Hearing was requested. Juana Abijalil rented an apartment at Respondent Cotton Apartments on June 16, 1974, from the then manager of said apartments, Howard Jenkins. She rented apartment #17 and paid a rental of $165.00 for the month of June 16, 1974, to July 16, 1974. At the same time she paid $165.00 on her last month's rent. Ms. Abijalil lived in said apartment until May of 1978, when she moved. Prior to April 16, 1978, she told the then manager of said apartment and his wife, Mr. and Mrs. Blanco, that she intended to move and wanted to use the last month's rent she had previously paid on June 16, 1974, for payment for the month of April 16, 1978, to May 16, 1978. She was assured that there would be no problem with a refund, and she then paid the regular monthly rental on April 16, 1978. Prior to her move, and prior to May 16, 1978, Ms. Abijalil again orally requested to be reimbursed in the amount she had prepaid in 1974. She was not paid, but she moved from the apartment owned by Respondent Lowenthal on May 15, 1978. She has made numerous oral demands upon Respondent to be reimbursed, but she has not been reimbursed for the amount she prepaid. The testimony of the witness as to the foregoing facts was unchallenged. Submitted into evidence without objection was a receipt for rental payments dated June 16, 1974, on which it was stated "Received from Juana Abijalil $165.00 for rent on last month's rent." Said receipt was signed by Howard Jenkins, who is now dead. It is obvious that said receipt was altered, and "$50.00 security" was written in, hence the demand for $215.00. The Petitioner Division submitted a memorandum of law. This instrument was considered in the writing of this order. To the extent the proposed memorandum has not been adopted in, or is inconsistent with, factual findings in this order it has been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, Robert Lowenthal, be assessed a fine of $500.00. DONE and ORDERED this 19th day of December, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Bernard F. Siegel, Esquire 370 Minorca Avenue Coral Gables, Florida 33134
The Issue Whether the Petitioner should be treated as having abandoned his employment with the Respondent?
Findings Of Fact The Petitioner was a Career Service employee with the Respondent. The Petitioner received a copy of an Employee Handbook upon his employment with the Respondent. The Handbook informed the Petitioner of the rules governing absences from work, including the rule providing that an employee will be treated as having abandoned his position if absent for 3 days without authorized leave. The Petitioner was employed as an Investigator in the Child Support Enforcement Office of the Respondent in Inverness, Florida. The Petitioner's immediate supervisor was Shirley Barker. In June, 1986, the Petitioner suffered a seizure. The Petitioner subsequently underwent surgery for the removal of a brain tumor in June, 1986. The Petitioner returned to work following his surgery on approximately September 15, 1986. Ms. Barker determined that the Petitioner's performance was not up to standard and discussed the need for additional leave with the Petitioner. The Petitioner's physician agreed that it would be beneficial for the Petitioner to have additional time to recover from his surgery and recommended an additional six months leave of absence. The Petitioner signed a Report of Personnel Action indicating that he was going to take leave without pay. The Petitioner's leave was effective October 13, 1986, "for a period of 6 months with return pending medical reevaluation." This leave of absence ended on April 13, 1987. During the Petitioner's 6 months leave of absence he was given a monthly medical evaluation by his physician. In December, 1986, the Petitioner met with Ms. Barker and told her that he planned on returning to his position with the Respondent when his physician approved his return. The Petitioner did not, however, tell Ms. Barker when he would return or request an extension of his 6 months leave of absence. In March, 1987, the Petitioner met with Barbara Jordan, a supervisor in the Child Support Enforcement Office of the Respondent. This was the Petitioner's only meeting during 1987 with any employee of the Respondent. During this meeting the Petitioner did not indicate when he would return to work or request an extension of his 6 months leave of absence. By letter dated April 16, 1987, Herbert R. Hildreth, Sr., Human Services Program Manager, and Ms. Barker's supervisor, informed the Petitioner that his 6 months leave of absence had expired. The Petitioner was also informed that he should advise the Respondent by April 26, 1987, of his intentions concerning his employment with the Respondent. Mr. Hildreth's letter of April 16, 1987, was received by the Respondent on April 21, 1987. The Petitioner did not respond to Mr. Hildreth's letter of April 16, 1987, prior to April 26, 1987. By letter dated April 30, 1987, Judith Mesot, Deputy District Administrator of the Respondent, informed the Petitioner that the Respondent considered the Petitioner to have abandoned his Career Service position with the Respondent because the Petitioner had been on unauthorized leave since April 10, 1987. By letter dated May 27, 1987, the Petitioner informed the Respondent that his physician had informed him during a May 20, 1987, appointment that he could return to work on a part-time basis. At no time between October 13, 1986, and April 13, 1987, did the Petitioner inform the Respondent when he intended to return to work or request an extension of his 6 months leave of absence. The first time that the Petitioner informed the Respondent that he was ready to return to work was in his May 27, 1987, letter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, John Blackford, has abandoned his position with the Respondent, the Department of Health and Rehabilitative Services. DONE AND ORDERED this 15th day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2617 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 and 4 To the extent that these proposed facts were proved by the evidence, see finding of fact number 3. 5 and 6 4. 7 5. 8 Hereby accepted. 9 and 10 6. 11 7. 12 Although the Petitioner testified that he met with Ms. Barker within one day after his monthly examina- tions, the weight of the evidence failed to support this testimony. See 8. Even if the Petitioner had met with Ms. Barker as often as the Petitioner indicated, the Petitioner still did not return to work or obtain approval of his absence after April 13, 1987. 13 and 14 To the extent that these proposed facts were proved by the evidence and are relevant, see finding of fact number 9. Most of these proposed findings of fact are not relevant, however. 15 10 and 12. 16 13. Respondent's Proposed Findings of Fact 1 1. 2 6. 3 10 and 11. 4 Hereby accepted. 5 11. 6 12. 7 13. COPIES FURNISHED: Don Royston, Esquire Department of Health and Rehabilitative Services District III Building H 1000 Northeast 16th Avenue Gainesville, Florida 32609 John Blackford 3199 East Quail Court Inverness, Florida 32652 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Agustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner’s employment with Respondent terminated on May 31, 2003, or whether Petitioner continued to be employed by Respondent during the next calendar month.
Findings Of Fact Petitioner Babu Jain was hired by Florida Agricultural and Mechanical University (FAMU) as a physics professor in September, 1967. He became an associate professor with tenure in 1979 and a full professor in 1996. The exact date of his last day of employment is a central issue in this case. In 1998, Dr. Jain learned of the DROP program. After reviewing written materials regarding DROP for nearly a year, Dr. Jain decided to join DROP in 1999. He executed Forms DP-11 and DP-ELE, indicating his election to participate in DROP. Form DP-ELE is entitled, "Notice of Election to Participate in the Deferred Retirement Option Program (DROP) and Resignation of Employment." Form DP-ELE includes the following: "RESIGNATION FROM EMPLOYMENT TO PARTICIPATE IN THE DROP - I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes . . . and resign my employment on the date I terminate from the DROP." The form contains Dr. Jain’s notarized signature below the following: "I understand that I must terminate all employment with FRS employers to receive a monthly retirement benefit and my DROP benefit under Chapter 121, F.S." Dr. Jain signed the form on October 12, 1999. The bottom portion of Form DP-ELE is to be completed by the agency head or designated representative. Within that portion of the form, the signature of Nellie Woodruff, Director of Personnel Relations at FAMU, appears following an acknowledgement: "I acknowledge that DROP participation for Babu L. Jain will begin on 06/01/1999, and I accept his resignation effective 05/30/2003 (the date the employee’s DROP participation will terminate)." This portion of the form indicates that it was signed by Ms. Woodruff on November 10, 1999. Sometime in the early part of 2003, Dr. Jain, for personal and financial reasons, decided that he wanted to relinquish his participation in DROP. He was aware that if he did so, he would forfeit all accumulated DROP moneys. Dr. Jain first relayed his desire to FAMU by verbally informing Dr. Henry Williams, the Assistant Dean of the College of Arts and Sciences, who was in charge of science departments. This conversation took place in approximately mid-February, 2003. On March 18, 2003, Dr. Jain sent a letter to Dr. Larry Rivers, Dean of the College of Arts and Sciences, which read in pertinent part as follows: This letter is in connection with my 1999 DROP application. I would like to inform you that I am finding my circumstances very unfavorable to accept the DROP at this time and, hence, I will not be taking the retirement in May 2003. Dr. Jain sent a copy to, among others, Dr. Gladys Lang, who was the Acting Provost and Vice President of Academic Affairs at that time. She did not take any action regarding Dr. Jain’s letter because it was her understanding and belief that no action was necessary. It was her understanding and belief that that Dr. Jain notified the University of his decision to withdraw from DROP and that no action was necessary on her part, "because I believed that the participants in DROP could make that decision that they wanted to continue to work and did not want to continue in the DROP program. I did nothing." She considered her decision not to take any action on Dr. Jain’s letter to be an acceptance of his decision. However, Dr. Lang acknowledged that had the letter been addressed to her, rather than her receiving a copy of it, she would have responded. Dr. Jain did not receive any response to his March 18, 2003, letter to Dr. Rivers. Because of this, Dr. Jain wrote again to Dr. Rivers on April 18, 2003, in which he reiterated that he did not want to retire in May 2003. Dr. Jain received a Termination Notification Form, Form DP-TERM, from the Division of Retirement in February 2003. Form DP-TERM specifies that it must be completed by both the DROP participant and the employer. It reads in pertinent part as follows: According to our records, your DROP termination date is 05/31/03. This form must be completed by both you and your employer and returned to the Division of Retirement in order to receive your DROP benefits and your monthly retirement benefits. In order to collect DROP, you must agree to the following statements. I understand that I cannot accept work for any Florida Retirement System (FRS) covered employer during the calendar month following my DROP termination date or my DROP participation will be null and void. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit including interest. I also understand that I may not be reemployed by any FRS employer in any capacity . . . during the calendar month immediately following my DROP termination date. If I fail to meet this requirement, I will forfeit my accumulated DROP benefit, including interest retroactive to my enrollment date in DROP. I understand that if I forfeit my DROP benefit, my employer will be responsible for making retroactive retirement contributions and I will instead be awarded service credit for the time period during which I was in DROP. I will be eligible for a service retirement benefit based on my new termination date. I will be responsible for submitting an Application for Service Retirement. My retirement benefit will be based on my creditable service and salary, including such service and salary earned while in DROP. Dr. Jain did not sign Form DP-TERM. It is not clear from the record whether FAMU was even aware that Dr. Jain received this form. In any event, the portion of the form which is to be completed by the employer certifying that the employee has or will terminate employment is not signed by anyone from FAMU. Dr. Bill Tucker is a faculty member of the physics department and is president of the FAMU chapter of the United Faculty of Florida. On or about April 19, 2003, Dr. Tucker met with Dr. Rivers regarding Dr. Jain’s intention not to retire. Dr. Tucker left that meeting with the impression that Dr. Rivers had accepted Dr. Jain’s decision to remain a faculty member at FAMU and not retire in May 2003. Following that meeting, Dr. Jain wrote a letter dated April 21, 2003, to Dr. Rivers thanking him for his support and understanding the he, Dr. Jain, had decided not to retire. The letter also reminded Dr. Rivers that Dr. Mochena had not yet given him his 2003-2004 assignment of responsibilities, and requested that Dr. Rivers ask Dr. Mochena to do so at his earliest opportunity. Dr. Rivers did then call Dr. Mochena regarding preparing a schedule for fall semester for Dr. Jain. Dr. Mochena described the call as a "very quick call." As a result of that call, Dr. Mochena issued an Assignment of Responsibility Form on April 23, 2003, for Dr. Jain for the fall 2003 semester. While Dr. Rivers insisted at hearing that his intention was that Dr. Jain be assigned teaching duties on an adjunct basis, he acknowledged, and Dr. Mochena confirmed, that the assignment of responsibilities for Dr. Jain for fall of 2003 was not of a type that would have been given to an adjunct professor. Sometime after April 23, 2003, Dr. Jain asked Dr. Mochena to assign him teaching responsibilities for the summer of 2003. Dr. Mochena had already made his summer teaching assignments. He assumed, however, that since Dr. Jain was being assigned fall classes, that it was it would be appropriate to assign summer classes to Dr. Jain as well. On May 2, 2003, Dr. Mochena issued an Assignment of Responsibility Form for Summer Term "C" 2003, which was for 12 weeks. This was signed by Dr. Jain and Dr. Mochena on May 2, 2003. While Dr. Mochena's assignment of summer teaching responsibilities to Dr. Jain was as a result of Dr. Jain’s request and not at the request of the Dean’s office, Dr. Henry Williams, Assistant Dean for the College of Arts and Sciences, and Dr. Larry Rivers signed the Assignment of Responsibility Form for Summer Term "C" for Dr. Jain on May 5 and 6, 2003, respectively. Dr. Williams and Dr. Rivers also signed two forms on May 5 and 6, 2003, respectively, regarding Dr. Jain entitled "Recommendation for Faculty Employment." One was for the period of employment designated May 12, 2003 to June 30, 2003. The second was for the period July 1, 2003 to August 1, 2003. These recommendations went to the new Provost, Dr. Robinson. Dr. Larry Robinson became Provost and Vice President of Academic Affairs of the University on May 5, 2003. On May 20, 2003, Dr. Robinson signed two employment contracts regarding Dr. Jain for Summer Term "C." The first contract period was May 12, 2003 to June 30, 2003. The period of the second contract was July 1, 2003 until August 1, 2003. There were two contracts covering the summer term because the "C" summer term during which the physics courses were taught, extended into the next fiscal year. There is a section on the two summer contracts entitled "Tenure Status." There is an "X" beside the designation "Tenured." On May 21, 2003, Nellie Woodruff sent a memo addressed to Dr. Robinson which stated as follows: SUBJECT: DROP Termination Date for Babu L. Jain We are requesting your intervention in bringing closure to the subject employee’s request to withdraw from the DROP and continue his employment with the University subsequent to May 31, 2003. Enclosed are copies of the documents which were received in this Office from both Dr. Jain and the Division of Retirement. Please advise this office by May 30, 2003, regarding the appropriate action to take relative to Dr. Jain’s request for withdrawal from the DROP and remaining an employee of the University. According to Dr. Robinson, Ms. Woodruff’s May 21, 2003, memorandum to him was the first time he "officially" became aware of the issue regarding Dr. Jain. That is, he was generally aware of the fact that several employees were approaching their retirement date and entering DROP. Dr. Jain’s designated retirement date was a month earlier than the other FAMU DROP participants who had a June 30, 2003, DROP termination date. Whether Dr. Robinson had unofficial knowledge of Dr. Jain's retirement date or of his desire to withdraw from DROP at the time he signed the two summer contracts is unclear based upon his testimony. As a result of learning of Dr. Jain’s situation, Dr. Robinson sent a certified letter to Dr. Jain dated May 27, 2003, which read as follows: This comes in response to your request to void your participation in the Deferred Retirement Option (DROP) program. It appears from your correspondence of April 18, 2003, addressed to Dr. Larry Rivers, Dean of the College of Arts and Sciences, that you believe the decision to void your participation is a unilateral one. On the contrary, the decision to void your participation in DROP is a mutual one, requiring the University’s assent. The University is not in agreement with your decision to void your participation in DROP. I call your attention to two documents, Form DP-ELE and Form DP-11, which are on file with your signature. Specifically, Form DP- ELE reads in relevant part as follows: "I elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.), as indicated above and resign my employment on the date I terminate from the DROP." Additionally, Form DP-11 reads in relevant part as follows: "I have resigned my employment on the date stated above and elect to participate in the DROP in accordance with Subsection 121.091(13), Florida Statutes (F.S.).” Regrettably, the University must inform you that it will follow the guidelines for DROP as outlined in the aforementioned Florida Statutes and cannot support your request to void your application in DROP. I also call your attention to Florida A&M University Rule 6C-10.211(2)(c), Florida Administrative Code which is enclosed with the aforementioned forms. Thank you for your many years of service to the University. The Division of Retirement issued a letter, dated May 5, 2003, to Dr. Jain with Form DP-VOID enclosed. Dr. Jain insists he did not receive it in the mail and, therefore, went to the Division of Retirement on May 29, 2003, to pick it up. In any event, he signed the DROP-VOID form on May 29, 2003, and took it to FAMU in an attempt to get it executed by Dr. Rivers or Dr. Robinson. The DROP-VOID form contains a section entitled "Employer Certification" which reads as follows: This is to certify that the (agency name) has rescinded the resignation of the above named member, and the member will continue working in a regularly established position with FRS ceverage. We understand the member’s DROP participation will be null and void, the membership in the FRS Pension Plan will be reestablished to the date the member joined the DROP and we will begin immediately reporting the correct retirement plan and contributions to the Division of Retirement. FRS will adjust previous payrolls reported under DROP based upon the member not having joined the DROP. In addition, we understand that contributions, plus interest, may be required. Future payrolls should reflect the retirement plan of active membership. Despite Dr. Jain’s efforts on May 29 and 30, 2003, to get this form signed, the DROP-VOID form was not signed by anyone at FAMU. On either May 29 or 30, 2003, Dr. Mochena received a call from Dr. Henry Williams, Assistant Dean for the College of Arts and Sciences, who instructed Dr. Mochena to end Dr. Jain’s summer employment and to reassign Dr. Jain’s classes to another instructor. Dr. Mochena assigned Mr. Jay Jackson to teach Dr. Jain’s classes beginning Monday, June 2, 2003. Dr. Robinson wrote a second letter to Dr. Jain on May 30, 2003, which read in pertinent part as follows: Dear Dr. Jain: This letter is to inform you that the two Summer Semester Employment Contracts, May 12, 2003 to June 30, 2003, and July 1, 2003 to August 1, 2003, were issued in error to you due to the fact that your DROP retirement date is May 31, 2003. As a result, you will be paid through May 30, 2003 for your services to the University and the University will consider you to have retired as of May 31, 2003. On Monday, June 2, 2003, Dr. Jain arrived at his classroom where Mr. Jackson was teaching. Dr. Jain left the classroom and went to see Dr. Mochena. Dr. Jain learned from Dr. Mochena that he had been instructed by the Dean prior to Saturday, May 31, 2003, to replace Dr. Jain with another instructor. Dr. Jain continued to go to his office for several days after June 2, 2003, "doing things I usually do. Do some research, study, read." He did not teach any classes in June 2003. Each department submits a payroll certification indicating the number of hours that an employee worked during a pay period. The payroll certification signed by Dr. Mochena on June 4, 2003, for the pay-period May 23 through June 5, 2003, initially indicated that Dr. Jain worked 79.3 hours. However, the 79.3 was crossed out and replaced with 47.58. The 47.58 was in handwriting, not typed as the rest of the numbers on the certification sheet which included the entry of 79.3 hours. The record is not clear as to who made the correction or when it was made. According to Ms. Woodruff, however, it is not the practice of the payroll section to change any certifications after the fact. Additionally, once an employee in a salaried position is added to the payroll, he/she is automatically issued a paycheck based upon the contract, unless some action occurs. In any event, the payroll section did not make an adjustment in Dr. Jain’s pay for the pay-period May 23 through June 5, 2003. Dr. Jain’s received an Earnings Statement reflecting a "pay date" of June 13, 2003, and a pay-period of 05/23/2003- 06/05/2003 reflecting regular wages of $3,266.11. Subsequently, the payroll office at FAMU completed a Refund for Overpayment of Salary form and submitted it to the Office of the Comptroller, Bureau of State Payrolls. In the section entitled, Reason for Adjustment, the payroll office wrote, "DROP end date 5/30/03." A salary refund in the amount of $898.33 was deducted from Dr. Jain’s sick leave payout on June 20, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order rescinding its letters of May 27 and 30, 2003, and reinstating Petitioner to employment effective June 1, 2003, including all salary and benefits for that period of time.1/ DONE AND ENTERED this 17th day of May, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 17th day of May, 2004.
The Issue Whether Petitioner should be allowed to withdraw from the Deferred Retirement Option Program (DROP) of the Florida Retirement System.
Findings Of Fact Petitioner is a member of FRS. Petitioner is part of the "Regular" class for FRS retirement purposes. In April 2001, and until late August 2001, Petitioner understood the law to require that if he wanted to participate in DROP he must elect to do so within 12 months of his 30-year anniversary of employment or within 12 months of attaining 62 years of age, whichever date came first. This was, in fact, the law until July 1, 2001. (See Findings of Fact 11 and 25-27). In July of 2001, Petitioner would become eligible to participate in DROP by virtue of reaching thirty years of service teaching at the University of Florida (UF).1 Petitioner would become 62 years old on July 2, 2001. In preparation for entry into DROP, Petitioner requested, and in April 2001 received, from the Division, an Estimate of Benefits. In bold capital print the acknowledgement stated: AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. (P-2) Petitioner filed his application for DROP participation on April 12, 2001. His application selected payout Option 2 to provide benefits to his wife and specified a "begin date" of July 1, 2001, his normal retirement date. Respondent Division, by date of April 16, 2001, acknowledged receipt of Petitioner's DROP application, but required that he provide additional materials, stating: The following items must be received: Properly completed DROP application, DP-11. The notary public's stamp and/or commission expiration date was not shown. A notary public may not amend a notarial certification after the notarization is complete. Enclosed is another Form DP-11, Application for Service Retirement and the Deferred Retirement Option Program (DROP) for you to complete and have properly notarized. Return the completed application to this office immediately. The Hospital Record you submitted as birthdate verification is acceptable as partial proof of age. Please read the enclosed Request for Proof of Age, BVR-1, for a list of documents we will accept to complete your proof of age. AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. A Final Salary Certification, FC-1 with current year salary and terminal leave payments (excluding sick leave payments) must be received from your employer. Your employer is aware of this requirement. (R-1) Petitioner provided the additional information, and on April 30, 2001, the Division notified Petitioner that the apparent birth certificate he had supplied did not constitute acceptable proof of age and that additional proof was required. That item stated: The following items must be received: The Medical Center record you submitted as birth date verification is acceptable as partial proof of age. Please read the enclosed Request for Proof of Age, BVR-1, for a list of documents we will accept to complete your proof of age. If you have a copy of your birth certificate that is registered with the State of New York, please send it to us. The document you submitted was not registered with the vital statistics office for New York. AFTER YOUR FIRST MONTH OF DROP PARTICIPATION YOU CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, CHANGE YOUR DROP BEGIN DATE OR CHANGE YOUR TYPE OF RETIREMENT. (R-2) The Division's April 30, 2001, request for a valid birth certificate was the parties' last correspondence before August 22, 2001. (See Finding of Fact 25). Shortly after April 30, 2001, Petitioner caused the Federal Social Security Administration to send verification of his birthdate to the Division. The Division received this item but did not acknowledge to Petitioner that it had been received. During the 2001 session, the Florida Legislature amended Section 121.091(13)(a)5., Florida Statutes, to allow "instructional personnel" to participate in DROP at any time after they reach their normal retirement date. In other words, the option for instructional personnel to elect DROP was no longer limited to a 12-month period after their 30 years' creditable service retirement date or attainment of age 62. The parties stipulated that the foregoing amendment "became law" on May 16, 2001. However, Chapter 2001-47, Laws of Florida, Section 2., clearly specifies that the amendment "shall take effect July 1, 2001." Respondent Division never individually sought out and notified Petitioner, any other DROP applicant, or any FRS retiree of the legislative change. According to Mr. Hunnicutt, on behalf of the Division, the Division has no way to single out all the people (such as DROP applicants) who might be affected by a specific legislative amendment. However, the Division does try, on a yearly basis, each autumn, to notify all retirees and all employees in FRS and other state retirement programs of the current year's legislative changes. The Division also answers specific questions about such legislative amendments if retirees or employees take the initiative to ask the Division about them. Since Petitioner did not know about the amendment until after August 22, 2001, he did not ask about it or otherwise contact the Division until August 30, 2001. (See Finding of Fact 27.) On June 21, 2001, the Division sent Information Release 2001-73, to all FRS employers, including the UF Retirement Office. This Information Release noted the changes to DROP eligibility for instructional personnel. (R-6) The Division's June 21, 2001, Information Release addressed many types of retirement information that could be obtained at the Division's web site, but did not specifically link the web site and the new legislation. Petitioner's testimony that the Division's web site never announced the amendment effective July 1, 2001, is unrefuted. At no time did UF affirmatively and individually seek out Petitioner and notify him concerning the new legislation. UF also did not do a blanket notification of the new legislation to all FRS members working for UF until November 19, 2001. (P-2) Effective July 2001, Petitioner was honored by a special merit salary increase of $10,000.00 per year that would significantly raise his retirement benefits if he were not considered to have entered DROP, effective July 1, 2001. This award was not reasonably foreseeable at the time he applied for DROP on April 12, 2001. The only document Respondent Division sent Petitioner after April 30, 2001, was a "Final Notification of DROP Benefit," dated July 19, 2001, but post-marked August 20, 2001. It included the following: You should call the Retired Payroll Section at (850) 487-4856, immediately if you: Extend your DROP participation date (approval of employer required). Your participation in the DROP cannot exceed the 5 years (3 years for Special Risk members) which is the maximum allowed by law; (P-1) According to Mr. Hunnicutt, the Division cannot do the final benefit calculations for a DROP or regular retirement applicant until the Division receives all of the information from the employee (Petitioner) and direct employer (UF) because final retirement calculations use the final salary information. The July 19, 2001, date of the foregoing "Final Notification" would have been the date the Division's Benefits Specialist prepared the final calculations and falls within the 30 days the Division usually needs to make and mail the final benefit calculations. Mr. Hunnicutt's only explanation for the month's delay in mailing the foregoing "Final Notification" was that it takes approximately a month for the verification process to be completed and the calculations mailed out. He testified that, regardless of its content, the Final Notification would not have been sent to Petitioner unless the Division had considered Petitioner's DROP application to be complete. Mr. Hunnicutt testified that it is not Agency practice to send an "acceptance into DROP letter." In his opinion, an FRS member is supposed to know he is in DROP unless he is advised that he is not in DROP. The Division viewed Petitioner as automatically having entered DROP on his request date of July 1, 2001. The Division considered Petitioner's begin date of DROP participation to be July 1, 2001, as Petitioner had requested on April 12, 2001. Accordingly, the Division also considered Petitioner's first month of DROP participation to have ended on July 31, 2001. By "DROP participation date" the Agency means "begin DROP participation date." The Division allows members to change or amend their DROP applications during the first month of retirement or DROP participation because it takes approximately a month to make final benefit calculations, and the Division's aspirational goal is to provide the final calculations before the 30 days are up. Therefore, in the Division's view and practice, Petitioner's right to alter any of his retirement selections would have been July 31, 2001. On August 22, 2001, Petitioner received the "Final Notification," dated July 19, 2001, but mailed August 20, 2001. (P-1). It showed a final retirement calculation of benefits for Petitioner which was $6.15 less per month than the original estimate he had received in April 2001. Immediately thereafter, Petitioner went to the UF Retirement Office and discovered the opportunity afforded by the 2001 legislation. By an August 30, 2001, letter, Petitioner wrote Mr. Hunnicutt, requesting to make a change in his DROP participation begin date to either January 2002 or July 2002, dependent upon receiving and reviewing new estimated calculations of benefits based on each of those dates (P-2.) On September 13, 2001, the Division denied Petitioner's request, citing Subsections 121.091(13)(b)3. and (13)(c)1. and 3., Florida Statutes, and advised that: After your DROP begin date, you cannot cancel your DROP participation, change your DROP begin date, change your option selection, or claim additional creditable service period. The letter did not mention the 30 days' grace period for changes which previous correspondence had and which is the Division's acknowledged practice. It stated that it constituted final agency action. Petitioner continued to argue his case by correspondence, seeking an administrative hearing if necessary. Apparently, it was not clear to many members of the academic community that university instructional personnel, as well as K-9 teachers, were eligible under the 2001 extended DROP sign-up amendment. However, as of October 2001, the Division had accepted DROP applications for instructional personnel who previously had not joined DROP during their initial DROP window period and who, as a result, and but for the new statutory amendment, would never have been eligible for DROP. As of October 2001, the Division also had advised other instructional personnel, that due to the new amendment, they were newly exempt from the 12-month window and could apply for DROP at any time. 2 On October 5, 2001, the Division again denied Petitioner's request to withdraw from DROP. In this letter, the Division also provided greater detail as to the reasons for its denial, stated it was final agency action, and included more details advising Petitioner of his right to request a disputed- fact hearing. The 2001 legislative session enacted, in addition to the amendment affecting Petitioner, a number of other amendments which affected retirement benefits, The Division made no blanket mailing to all members of FRS concerning any 2001 retirement law amendments until its annual bulletin, discussing all of the amendments, was mailed for the Division to all FRS members on December 28, 2001, by a private company in New York.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Retirement enter a final order deeming Petitioner timely withdrawn from DROP in the month of July 2001, returning him to an FRS status of regular employment, earning regular retirement serviceable credit, and providing for a recalculation of his retirement credits as appropriate to his altered status. DONE AND ENTERED this 16th day of May, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 16th day of May, 2002.
Findings Of Fact For calendar year 1989 and until November 11, 1990, petitioner worked for respondent. As of January 5, 1989, having exhausted accumulated leave balances, petitioner was not entitled either to sick leave or to annual leave. After January 5, 1989, and until her employment with respondent ended on November 11, 1990, petitioner earned 192 hours of sick leave and 192 hours of annual leave. During the pay period ended January 19, 1989, she took 1.75 hours of leave. During the pay period ended February 2, 1989, she took 3.5 hours of leave. During the pay period ended February 16, 1989, she took 1.5 hours of leave. During the pay period ended March 2, 1989, she took 18.25 hours of leave. During the pay period ended March 16, 1989, she took 16 hours of leave. During the pay period ended March 30, 1989, she took 1.5 hours of leave. During the pay period ended April 13, 1989, she took 36 hours of leave. During the pay period ended April 27, 1989, she took 22 hours of leave. During the pay period ended May 11, 1989, she took 20.75 hours of leave. During the pay period ended May 25, 1989, she took 6 hours of leave. During the pay period ended June 8, 1989, she took 8.75 hours of leave. During the pay period ended June 22, 1989, she took 17.25 hours of leave. During the pay period ended July 6, 1989, she took 16 hours of leave. During the pay period ended July 20, 1989, she took 1 hour of leave. During the pay period ended August 3, 1989, she took 9 hours of leave. During the pay period ended August 17, 1989, she took 10 hours of leave. During the pay period ended August 31, 1989, she took 4 hours of leave. During the pay period ended September 14, 1989, she took 12 hours of leave. During the pay period ended September 28, 1989, she took 8.5 hours of leave. During the pay period ended October 12, 1989, she took 10.5 hours of leave. During the pay period ended October 26, 1989, she took 8.5 hours of leave. During the pay period ended November 9, 1989, she took 26.25 hours of leave. During the pay period ended November 23, 1989, she took one hour of leave. During the pay period ended December 7, 1989, there was no leave taken. During the pay period ended December 21, 1989, she took .5 hours of leave. During the pay period ended January 4, 1990, she took 18 hours of leave. During the pay period ended January 18, 1990, she took 10.5 hours of leave. During the pay period ended February 1, 1990, she took 1.5 hours of leave. During the pay period ended February 15, 1990, she took 1.5 hours of leave. During the pay period ended March 1, 1990, she took 3 hours of leave. During the pay period ended March 15, 1990, she took 27 hours of leave. During the pay period ended March 29, 1990, she took 11.5 hours of leave. During the pay period ended April 12, 1990, she took 36 hours of leave. During the pay period ended April 26, 1990, she took 24 hours of leave. During the pay period ended May 10, 1990, she took 34.25 hours of leave. During the pay period ended May 24, 1990, she took .5 hours of leave. During the pay period ended June 7, 1990, she took 2 hours of leave. During the pay period ended June 21, 1990, she took 27.5 hours of leave. During the pay period ended July 5, 1990, there was no leave taken. During the pay period ended July 19, 1990, she took 8 hours of leave. During the pay period ended August 2, 1990, she took 26 hours of leave. During the pay period ended August 16, 1990, she took 31 hours of leave. During the pay period ended August 30, 1990, she took 8 hours of leave. During the pay period ended September 13, 1990, she took 16 hours of leave. During the pay period ended September 27, 1990, she took 24.5 hours of leave. During the pay period ended October 11, 1990, she took 13.25 hours of leave. Because petitioner's time sheets were not always processed in a timely manner, leave balances stated on contemporaneous print outs were not always accurate. (In 1989, respondent had no official mechanism for notifying employees that time sheets were missing.) After petitioner's situation came to the attention of payroll specialists at HRS, a manual audit was performed. For the period ending March 30, 1989, petitioner had an annual leave balance of 6.5 hours. During the next pay period, she used the entire balance, but at the end of the pay period, at the close of business on April 13, 1989, four more hours of annual leave were credited, all of which she used before the succeeding period ended. During the period ended May 25, 1989, she was also out on leave two hours for which she was not entitled to pay. In all, the audit established that respondent had taken some 563 hours of leave after January 5, 1989. This exceeded paid leave she was entitled to by 179 hours. Nothing in the evidence suggests she was docked for more than 135.25 hours' pay.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's request for refund. DONE and ENTERED this 19th day of April, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1991. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert L. Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Ruby Bush 3111-21 Mahan Drive, #113 Tallahassee, FL 32308
