Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was an employee of the state of Florida employed by the Department. On May 10, 1991 the Petitioner was arrested and placed in isolation without any outside contact except in the evenings by phone. By letter dated May 15, 1991, mailed to Petitioner's home address, the Department advised Petitioner that having been absence from work for three consecutive days without authorized leave of absence the Department assumed that the Petitioner had abandoned his position and resigned from career services. Additionally, this letter advised the Petitioner that he had 20 calendar days from receipt of the notice to petition the State Personnel Director for a review of the facts to determine if the circumstances constituted abandonment of position. The return receipt for this letter appears to be signed by Vickie Carpenter but does not indicate the date it was signed by her. A copy of this same letter was mailed by the Department to the Petitioner at the jail but no return receipt was ever received by the Department. However, the Petitioner testified at having received the letter around May 23, 1991. On May 23, 1991 the Respondent was released from jail and was available for work beginning on May 24, 1991. However, the Department had already terminated the Petitioner based on abandonment of position. By letter dated June 6, 1991 the Petitioner requested the State Personnel Director to review his case. By letter dated June 12, 1991 and received by Petitioner on June 14, 1991, the Department again advised Petitioner that the Department assumed that he had abandoned his position and again outlined the review process. On June 20, 1991 the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. By letter dated August 27, 1991 the Department advised Petitioner that it was withdrawing the action of abandonment of position, and that he was reinstated to his position effective August 30, 1991. However, by letter dated August 29, 1991 the Department advised Petitioner that he was to report for work on September 3, 1991 rather than August 30, 1991, and that he was to report to Ft. Myers rather than to his old job in Punta Gorda. Additionally, Mark M. Geisler, Subdistrict Administrator, the author of the letter, advised the Petitioner that since the issue of back pay had been discussed with DeLuccia it was best for Petitioner to contact him in that regard. Petitioner was reinstated by the Department on September 3, 1991. Petitioner did not at any time agree to forego any back pay in order for the Department to reinstate him. The Petitioner has never received any back pay for the period beginning Friday, May 24, 1991 (the day he was able and ready to return to work) through Monday, September 2, 1991 (the day before Petitioner returned to work). Petitioner's wife, Vickie L. Carpenter was, at all times material to this proceeding, employed by the state of Florida, and because she and Petitioner both were employed by the state of Florida their health insurance was furnished by the state of Florida at no cost to them. Upon the Department terminating the Petitioner his wife was required to pay for her health insurance until Petitioner was reinstated on September 3, 1991. Petitioner was unable to report to work during the period from May 10, 1991 through May 23, 1991, inclusive, due to being incarcerated, and was on unauthorized leave of absence during this period. Therefore, Petitioner is not entitled to any back pay for this period, and so stipulated at the hearing. However, Petitioner is entitled to receive back pay for the period from May 24, 1991 through September 2, 1991, inclusive. There is sufficient competent substantial evidence to establish that the Department was aware of Petitioner's incarceration and that it was not Petitioner's intent to abandon his position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Administration enter a Final Order (1) confirming the action of the Department that Petitioner did not abandon his position with the Department, and (2) reimbursing Petitioner for back pay for the period from May 24, 1991 through September 2, 1991, inclusive, and for any other benefit that Petitioner was entitled to during this period, including, but not limited to, health insurance benefits. DONE and ENTERED this 12th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 12th day of December, 1991. COPIES FURNISHED: Thomas J. Carpenter 1669 Flamingo Blvd. Bradenton, FL 34207 Susan E. Vacca, Qualified Representative Department of Health and Rehabilitative Services P.O. Box 1415 Punta Gorda, FL 33951-1415 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Robert B. Williams, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Anthony N. DeLuccia, Esquire Department of Health and Rehabilitative Services P.O. Box 06085 Fort Myers, FL 33906
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a claim by petitioner, Robert Jones (Jones or petitioner), that he was denied employment by respondent, Department of Labor and Employment Security (DLES), on account of his handicap. It is undisputed that Jones has diabetes, he is insulin-dependent, and he has had at least one toe amputated because of the disability. As such, he does not enjoy, in some measure, the full and normal use of his physical facilities, and he is accordingly deemed to be a handicapped person within the meaning of the law. The parties also agree that DLES is an employer subject to the Florida Human Rights Act of 1977, as amended, which governs this dispute. DLES denies it acted in a discriminatory manner and contends generally that (a) the handicap played no role in its employment decision since it was unaware that Jones was a disabled person when the employment decision was made, and (b) a more qualified person was hired for both positions sought by Jones. A preliminary investigation by the Florida Commission on Human Relations (Commission) found reasonable cause to believe that an unlawful employment practice had occurred. Since October 3, 1982, petitioner has been employed as an investigator specialist II at the Commission. He also worked for DLES from May 1980 until October 1981, and at the Florida State Employment Service from October 1981 until April 1982. Prior to working with the state, Jones served in the U. S. Marine Corps from which he was honorably discharged with a medical disability in 1977. He is a graduate of Florida State University having received a degree in political science in December 1985. Between 1982 and 1991, respondent made application for employment at DLES on at least four or five occasions but was never hired. On July 16, 1991, he wrote a letter to the agency head, then Frank Scruggs, complaining about his inability to get a job, advising that he was a disabled veteran, and asking for a "fair shake" on his applications. Later that year, he applied for the positions of management review specialist and senior management analyst II. Although he was interviewed for one of the two positions, he was not selected for either job. In his application filed with DLES, Jones described his health as "excellent." Attached to his application papers was a certification from the Veterans Administration indicating he had a service-related disability rated at 30 percent or more. Also, he included a handwritten statement that he was a "veteran with a compensable service-connected disability." There was no indication, however, as to the nature of the disability. After receiving two rejection letters from DLES on February 10, 1992, regarding his job application, Jones filed a complaint of discrimination with the Commission on July 23, 1992, alleging he had "been discriminated against because of (his) Handicap, Diabetes." He later filed a petition for relief in which he charged that DLES' employment decision was based not only on his handicap, but also on account of his "gender, race, veteran status or any other unlawful reason." As to the grounds raised after the Commission had concluded its initial investigation, they have been disregarded as being untimely. Senior Management Analyst II Position On January 9, 1992, respondent published a job opportunity announcement for the position of senior management analyst II in the office of civil rights and minority affairs. The position had been created to assist the director of that office, Deidre Kyle, in her day-to-day responsibilities. Kyle was also the individual responsible for the hiring decision. The advertised position required as minimum qualifications that the applicant have "a bachelor's degree and four years of professional experience in systems administrative work, employment and training, employment security, grants management, education, vocational counseling, vocational placement, occupational analysis, employment selection and referral activities, program planning, program evaluation or program monitoring." Petitioner met the minimum qualifications. Besides Jones, approximately fifty persons applied for the position of senior management analyst II, including Carolyn W. Franklin, a non-handicapped African-American female then working under Kyle's supervision and filling an Other Personal Services (OPS) slot as a civil rights specialist III in Kyle's office since September 1991. Franklin had previously worked for over twelve years in the Governor's Office, principally as a governmental analyst in the Citizens Assistance Office, and mostly under the direct supervision of Shirley Gooding, who later served as inspector general, and then assistant secretary, and finally as secretary of DLES in July 1992. She had also served as the affirmative action officer for the Governor's Office for four years. Except for these latter duties, Franklin had no experience in equal employment or civil rights. Out of the fifty applicants, only four were selected for an interview with Kyle, and none was handicapped. Jones was not selected for an interview. In choosing the top candidates for an interview, Kyle relied upon the duties and responsibilities contained in the career service system position description as well as certain review criteria which she had prepared. The review criteria were: (a) extensive knowledge of equal employment and affirmative action rules and regulations, (b) thorough knowledge of Title VII of the Civil Rights Act, (c) knowledge of the Americans with Disabilities Act, (d) experience in conducting federal program compliance reviews, (e) familiarity with American Standards Institute standards, (f) effective oral and written communication skills, and (g) personal computer experience (Word Perfect and/or Lotus Preferred). The qualifications of the three individuals other than Franklin selected for the final interview are not of record. Also, the record does not show how Jones' qualifications compared with those of the final candidates (other than Franklin). Thus, there is no way to determine if Jones was more or less qualified than the others on the final list, or whether he ranked fifth or even fiftieth out of all of the candidates filing applications. Kyle made no effort to determine whether any of the applicants, including petitioner, had a handicap. Therefore, when she made the decision to reject Jones and the other forty-five candidates through the initial screening process, she was unaware of the fact that he had diabetes. Indeed, she did not learn of this fact until Jones filed his complaint. The position sought by Jones was ultimately filled by Franklin. In selecting Franklin, Kyle noted that Franklin had served in an OPS position with "similar" job responsibilities, she had worked under Kyle's direct supervision for the preceding four months, and she had working knowledge of the duties and responsibilities of the position "that would allow her to begin work immediately." Contrary to petitioner's assertion, Kyle was not told by her superiors to hire Franklin. She concedes, however, that there were "suggestions" by then inspector general Gooding to hire Franklin, a former colleague of Gooding at the Governor's Office. In considering DLES' assertion that the reason for hiring Franklin was that she was the most qualified person, it is noted that earlier that year Franklin had applied for a lower-graded career service position in Kyle's office but was rejected because Kyle was unimpressed with Franklin's "communicative skills." After her rejection, Gooding "suggested" that Kyle hire Franklin for the OPS slot, a suggestion which Kyle followed. Based on these facts, it may be reasonably inferred that Kyle's true motive in hiring Franklin was to satisfy, albeit reluctantly, the wishes of her superior, Gooding, who wanted to place her friend in the agency, rather than hiring the best qualified person for the job. While friendship or even cronyism was the decisive factor in Franklin getting the job, there is insufficient evidence, either direct or circumstantial, that would support an inference that petitioner's handicap was the reason why he was not selected. Indeed, there is no evidence to support a finding that Jones would even have made the short list had Franklin not applied for the job, or would have been considered if Kyle had rejected the suggestions of her superior. Therefore, while the final employment decision may not have been fair, it is found that there was no discriminatory animus in DLES' employment decision to reject Jones. Management Review Specialist Positions On October 17, 1991, respondent published a job opportunity announcement for two management review specialists (position numbers 1158 and 5420) in its office of inspector general, then run by inspector general Gooding. At that time, the office had two sections: management review and investigations. When the announcement was published, the office was unsure whether both positions would be used for management reviews or whether one would be management review and the other for investigations. The minimum qualifications for the positions were a bachelor's degree and 4 years of professional experience in systems analysis, management analysis, program planning, program research, program evaluation, engineering or administrative work. Petitioner met the minimum qualification requirements. The management review slot required the successful applicant to be experienced in management reviews, which are very comprehensive and involve an evaluation of the following management functions: planning, organization, staffing, directing and controlling. The specialist is also required to prepare rather comprehensive reports. On the other hand, the specialist in the investigative section performs more traditional investigative duties with a much more narrow focus than management review. The record shows that Jones was not fully qualified to fill a slot in the management section since his main experience had been investigating discrimination complaints for the Commission for the preceding ten years. Jones and some ninety other persons filed applications for these positions. A preliminary screening process of all applications was conducted by Kitty J. Convertino, who headed the management review section, and Gary Sanford, who headed the investigation section. Because of his investigative experience with the Commission, Jones was placed on the list of some fifteen to seventeen persons to be initially interviewed. It was contemplated that after these initial interviews were conducted, a short list of five candidates would be picked from those interviewed, and they would be invited back for a second interview. Although Convertino ostensibly had authority to make a hiring decision, the final say-so rested with her superior, inspector general Gooding. During the initial interview, each candidate was asked "interview questions" from a list prepared by Convertino. Among other subjects, the applicants were asked about their computer skills since specialists were required to prepare much of their own work. Although Jones says he uses a microcomputer in his present work, his computer skills did not meet Convertino's expectations. At the conclusion of the interview, Jones was asked to provide a writing sample, and he later funished a copy of an investigative report he had written for the Commission in 1986. This writing sample reinforced Convertino's opinion that Jones was more qualified for the investigation section than the management review section. During the selection process, a member of Convertino's management review team was transferred from her team to Sanford's investigation team. When this occurred, the management review specialist vacancy on Sanford's investigation team was eliminated leaving both vacancies in the management review section. The decision to transfer the position was made by inspector general Gooding. Because no position was open in the investigation section, and the qualifications of the chosen candidates for the management section exceeded those of petitioner, Jones was not invited back for a second interview. There is no evidence to support a finding that the transfer was made to prevent petitioner from being considered for the vacant position in the investigative section. Among the candidates for the two management review positions was Jane Steele, a former collegue of Gooding at the Governor's Office, who had performed administrative work for the City of Altamonte Springs for some eighteen months prior to seeking employment with DLES, and who had prior stints with the Department of Insurance, Department of Transportation, and Governor's Office of Planning and Budgeting. When Steele's qualifications did not initially comply with the job description for position 5920, the job description was rewritten midway through the evaluation process so that Steele could satisfy the qualifications. Whether this change was made at the behest of Gooding is not of record. In any event, there is no evidence to show that this manipulation in the qualification process was for an unlawful discriminatory purpose. Steele was ultimately selected to fill one of the two management review specialist positions. According to Convertino, Steele was selected because of her prior experience in performing compliance audits for a state agency and writing audit reports. In addition, she was computer literate, was a "good" writer, having published several articles, and had a masters degree in public administration. Although Steele once worked with Gooding at the Governor's Office, there is no evidence that Convertino consulted with Gooding prior to making her employment decision. Indeed, Convertino flatly denied that any conversations took place. Ronald J. Rigby, an African-American who also has diabetes and is hearing impaired, was selected for position 1158. He had previously performed compliance reviews for DLES in the Job Training Partnership Act program, which experience Convertino believed would be compatible with the work required of position 1158. Although Rigby was placed under investigation by the State Controller in mid-January 1992 for "wage claim discrepancies," and this prevented him from assuming the job for several months, the matter was resolved sometime after April 10, 1992, and he was then allowed to report to work. When the decision to hire Rigby was made, Convertino did not know that Rigby had diabetes, although she knew that he was hearing impaired. Jones says his medical condition was discussed during the interview process, and he advised the interviewers that the disability was controlled by medication. Neither Convertino nor Sanford recalled any such discussion, and Convertino says she was unware of Jones' condition until the complaint was filed. In any event, there is no evidence, either direct or circumstantial, that would support a finding that Jones' handicap played any part in the employment decision. While the investigative slot may have been filled through a transfer on account of friendship or cronyism, that decision was not predicated on a desire to keep a handicapped person from being considered for the job. Moreover, the evidence shows that both Steele and Rigby had more experience in performing compliance audits than did Jones, and thus they were the more qualified individuals to fill those positions. Miscellaneous Employment records received in evidence show that petitioner's annual pay was $22,000 at the time his application was filed in October 1991. His salary since that time is not of record. The position of management review specialist paid in the range of $2,407.49 to $4,056.63 per month while the position of senior management analyst II paid in the range of $2,740.51 to $4,653.39 per month. Respondent apparently did not document, nor could it produce, the written basis for its hiring decisions, as required by its own personnel manual. Even so, this lack of documentation is insufficient to raise an inference that an unlawful discriminatory animus motivated DLES in its employment decisions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 20th day of February, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 20th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2754 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Rejected as being unnecessary. 5. Partially accepted in finding of fact 19. 6. Rejected as being unnecessary. 7. Partially accepted in finding of fact 3. 8. Partially accepted in finding of fact 4. 9. Partially accepted in finding of fact 3. 10. Rejected as being unnecessary. 11. Rejected as being cumulative. 12. Rejected as being unnecessary. 13. Partially accepted in finding of fact 4. 14-16. Partially accepted in finding of fact 16. 17-19. Partially accepted in finding of fact 18. 20-21. Partially accepted in finding of fact 16. 22. Partially accepted in finding of fact 18. 23-24. Partially accepted in finding of fact 4. 25. Rejected as being unnecessary. 26. Partially accepted in finding of fact 18. 27-28. Partially accepted in finding of fact 24. 29. Partially accepted in finding of fact 19. 30-34. Partially accepted in finding of fact 20. 35-39. Partially accepted in finding of fact 21. 40. Rejected as being unnecessary. 41-44. Partially accepted in finding of fact 21. 45. Partially accepted in finding of fact 22. 46. Partially accepted in finding of fact 23. 47. Rejected as being unnecessary. 48-55. Partially accepted in finding of fact 23. 56. Partially accepted in finding of fact 18. 57-59. Partially accepted in finding of fact 6. 60-61. Partially accepted in finding of fact 6. 62-63. Rejected as being unnecessary. 64-67. Partially accepted in finding of fact 9. 68. Partially accepted in finding of fact 7. 69. Rejected as being unnecessary. 70. Partially accepted in finding of fact 4. 71. Rejected as being unnecessary. 72-73. Partially accepted in finding of fact 8. 74-77. Partially accepted in finding of fact 14. 78. Partially accepted in finding of fact 13. 79-81. Partially accepted in finding of fact 9. 82. Partially accepted in finding of fact 13. 83-84. Partially accepted in finding of fact 12. 85-87. Partially accepted in finding of fact 8. 88. Partially accepted in finding of fact 14. 89-90. Partially accepted in finding of fact 5. 91-92. Covered in preliminary statement. Rejected as being unnecessary. Covered in preliminary statement. Rejected as being unnecessary. Rejected as being contrary to the evidence. 97-98. Partially accepted in finding of fact 26. Respondent: Partially accepted in finding of fact 16. Partially accepted in finding of fact 18. 3-4. Partially accepted in finding of fact 4. 5-7. Partially accepted in findings of fact 18 and 19. Partially accepted in finding of fact 19. Partially accepted in finding of fact 20. Partially accepted in finding of fact 22. Partially accepted in finding of fact 23. Partially accepted in finding of fact 6. Partially accepted in finding of fact 8. 14-15. Partially accepted in finding of fact 9. Partially accepted in finding of fact 12. Partially accepted in finding of fact 11. Partially accepted in finding of fact 5. Rejected as being unnecessary. Partially accepted in finding of fact 5. Partially accepted in finding of fact 1. Note - Where a proposed finding has been partially accepted, the unused part has been rejected as being unnecessary to reach a resolution of the issues, irrelevant, cumulative, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Bruce A. Minnick, Esquire Pamela H. Page, Esquire Post Office Box 11127 Tallahassee, FL 32302-3127 Edward A. Dion, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-2152 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149 Dana A. Baird, Esquire Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149
The Issue The issue in this case is whether the Petitioner, Gloria Godbolt, should be deemed, pursuant to Rule 22A-7.010(2), Florida Administrative Code, to have abandoned her position of employment with the Respondent, University of Florida.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. At all times material to this case, the Petitioner, Gloria Godbolt, was a Career Service employee of the Division of Finance and Accounting of the University of Florida. The last position held by Petitioner with the University of Florida was that of a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting. Petitioner last reported to work at the University of Florida on April 25, 1986. On April 27, 1986, the Petitioner called her sister, Ella Godbolt, collect from the Broward County jail. The Petitioner asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner was sick. On April 28, 1986, and again on April 29, 1986, Petitioner's sister, Ella Godbolt, called the Petitioner's office to notify the Respondent that the Petitioner was sick and would not report to work on each of these two days. On April 30, 1986, Ella Godbolt told the Petitioner's supervisor, Grace Strawn, that the Petitioner was sick, that the Petitioner had a doctor's appointment for the following day, and that the Petitioner would not be at work for the rest of the week. The Petitioner called her sister the following Sunday night, May 4, 1986, and asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner would not be at work that week, and that the Petitioner would explain everything later. On Monday, May 5, 1986, Ella Godbolt again talked to Grace Strawn on the telephone and informed Strawn that the Petitioner would not be at work that week and that Petitioner would call later in the week to explain the reasons for her absence. The Petitioner did not call Grace Strawn during the week of May 5, 1986. From May 6, 1986, through May 16, 1986, both dates inclusive, neither the Petitioner nor anyone on her behalf communicated either orally or in writing with the Respondent to report that the Petitioner would be absent from work or to explain the reasons for the Petitioner's absence. The Petitioner was advised by her attorney Michael Swan, that she should not report the fact of her arrest and confinement to anyone. However, that advice was not given to her until approximately one week after her incarceration. From April 26, 1986, through May 16, 1986, the Petitioner was incarcerated in Broward County, Florida, and, because of that incarceration, was unable to report to work on any of those days. During her period of incarceration, the Petitioner had access to a telephone which could be used to make "collect" long distance calls and she also had available the means necessary to write and mail a letter to her employer. The Petitioner neither called nor wrote to her employer to report her absence or to request appropriate leave. Instead, the Petitioner arranged for her sister to call the Petitioner's employer during the Petitioner's first week of absence to falsely report that the Petitioner was sick and to request sick leave for her absence. Based on these false representations, the Petitioner was granted sick leave for the first week of her absence. On May 17, 1986, which was a Saturday, the Petitioner returned to Gainesville. Upon learning that some of the employees in her department were working that day, the Petitioner went to her workplace to ask about her job. Her supervisor, Grace Strawn, told the Petitioner that it was out of her hands. The Petitioner did not explain to Strawn that she had been incarcerated and had not been sick. Again, on May 19, 1986, when the Petitioner talked with Cynthia Fidalgo Evans, Associate University Controller, asking what she could do to get her job back, she misrepresented to Ms. Evans that she had been hospitalized in Broward County. It was not until May 30, 1986, two weeks after the Petitioner had been released from jail, that the Petitioner corrected the record by stating in a letter to William Zeanah, Assistant University Controller, that she had been incarcerated and not sick as previously reported. The Petitioner was aware that she had to let her employer know if she was going to be absent from work and obtain appropriate leave for her absence. She was also aware that three consecutive workdays of unauthorized leave were considered job abandonment by the Respondent. On September 15, 1980, when the Petitioner was first employed, she signed a statement acknowledging receipt of the Career Service Employee Handbook of the University of Florida. This handbook provides at page 27: If you must be unavoidably absent from your job (that is, other than planned vacations or personal business times that have been approved in advance), let your supervisor know as soon as possible on the first day of absence why you must be absent and when you expect to return. If your anticipated return date changes, keep your supervisor informed. Unapproved absences for three consecutive workdays are considered job abandonment and, therefore, voluntary resignation. . The Respondent has consistently notified employees who have been on unauthorized leave for three consecutive workdays that they are considered to have abandoned their jobs and to have voluntarily resigned from the Career Service system. The Respondent needed to know if and when it could expect the Petitioner to report to work in order to make appropriate arrangements to have her work done in a timely fashion during her absence. As a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting, the Petitioner processed the necessary documents to pay vendors for the foods and services they provided to Respondent. Petitioner's task was the last step performed by Respondent before submitting vendors' invoices to the State Comptroller for payment by the issuance of warrants. The Petitioner was therefore aware of the importance of her job and of Respondent's need to have her job performed within specified time constraints. Petitioner was further aware that the Respondent is required by law to process vendors' invoices during a 15-day period and that failure to do so could result in penalties being imposed against the Respondent and disciplinary action taken against employees who persistently fail to process vendors' invoices in a timely fashion. Due to Petitioner's long and continuous unreported absence, Petitioner's supervisor had to work two consecutive Saturdays with other members of her staff in order to process vendors' invoices within the five-day period allotted to her office to accomplish that task.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Gloria Godbolt, was appropriately terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ORDERED this 4th day of May, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3929 The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. It will be helpful to a complete understanding of the rulings which follow to know that there was a great deal of conflict in the testimony of some of the witnesses who testified at the hearing. Most, if not all, of the conflicts in the testimony have been resolved in favor of the version of the facts advanced by the Respondent. In resolving the conflicts in the testimony, I have taken into account a number of matters, the most important of which are: how logical or illogical the competing versions were, whether the testimony was consistent or inconsistent with other reliable evidence, whether the witness had an interest in the outcome of the case, the extent to which the witness' credibility was impeached by prior inconsistent statements, if any, and, of course, the demeanor of the witness while testifying. It should also be noted that the finding that the Petitioner was the instigator of the false reports of her illness that were passed along to the Petitioner's employer is a finding based on the most reasonable inference to be drawn from the evidence. Rulings on Petitioner's proposed findings Accepted in part and rejected in part. Rejected portion relates to what Ella Godbolt told the supervisor. Accepted in part and rejected in part. Rejected portion relates to what Ella Godbolt told the supervisor. Accepted in part and rejected in part. Rejected portion relates to what the Petitioner told her sister to do. Accepted in substance with minor modifications in the interest of accuracy. Rejected as not supported by credible evidence. Accepted, with additional findings in the interest of clarity and accuracy. Rejected as irrelevant to the disposition of this case. Rejected as irrelevant to the disposition of this case. Rejected as not supported by credible evidence and as contrary to the greater weight of the evidence. Rejected as not supported by credible evidence and as contrary to the greater weight of the evidence. Accepted in substance. Rejected as subordinate and unnecessary details. Accepted in substance. Accepted in substance. Accepted, with additional findings in the interest of clarity and accuracy. Rulings on Respondent's proposed findings Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. First four sentences of this paragraph are rejected as subordinate and unnecessary details. Last two sentences are covered in the explanatory comments at the beginning of this Appendix. Accepted. Accepted. Rejected as subordinate and unnecessary details. Accepted. Accepted, with exception of last sentences and quoted material which are rejected as subordinate and unnecessary details. First sentence of this paragraph accepted. Second sentence rejected as unnecessary surplusage. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Carla D. Franklin, Esquire Rodney W. Smith, P.A. Post Office Box 628 Alachua, Florida 32615 Isis Carbajal de Garcia, Esquire Associate General Counsel 207 Tigert Hall University of Florida Gainesville, Florida 32611 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At the time Respondent was advised that DHRS was processing his resignation from his position as Social and Rehabilitative Services Counselor II, effective August 31, 1983 (Exhibit 1), Fox had been employed by DHRS for some 12 years. This was termed a "voluntary" resignation by reason of abandonment of position. Fox had been on leave without pay from August 12, 1983, through August 19, 1983 (Exhibit 4). On Monday, August 22, a woman called Fox's supervisor and told him that Fox was in Miami, his sister had been involved in an automobile accident, and he would not be in to work. On August 24 Fox called his supervisor, Gilbertson, to advise that he was still with his sister but would be back to work by noon on Friday, August 26. During this period, Monday through Friday, Fox was placed on family sick leave. At noon on Friday Fox had exhausted all his sick leave. Fox did not report to work until September 2, 1983, at which time he was given a copy of Exhibit 1, the original of which had been sent to his residence by certified mail. Fox gave no explanation for his absence but took the copy of the letter given him and left abruptly. He was not asked to explain his absence, nor did he offer any such explanation. Fox had earlier had differences with his supervisor, Gilbertson, over what Gilbertson considered excessive use of sick leave by Fox. Fox presented no evidence regarding his period of unauthorized absence from August 26 until he returned September 2. The one witness he called had frequently used sick leave without incurring the displeasure of Gilbertson. However, this witness in the recent past has had his gallbladder removed, hemorrhoid problems, and hepatitis; and had given no reason for anyone to suspect he was abusing the use of sick leave.
Findings Of Fact Petitioner retired under the provisions of the Florida Teacher Retirement System (TRS) on October 1, 1988. Prior to her retirement, Petitioner had been employed as an accounting instructor by Broward Community College (BCC). BCC is a tax-supported institution of higher learning in the State of Florida which participates in the Florida Retirement System. All instructional personnel at BCC are classified as "instructors". There is no job classification of "teacher" used by BCC. On December 14, 1988, Petitioner worked three hours as a substitute instructor at BCC and was paid $61.35. On March 17, 1989, Petitioner worked five hours as a substitute instructor at BCC and was paid $102.25. petitioner worked -as a substitute instructor at the request of personnel at BCC. Prior to agreeing to substitute on these two occasions, Petitioner had read and had relied on certain information provided by Respondent to retirees from the Florida Retirement System (FRS) and from the Florida TRS. That information was contained in a pamphlet published October 1987 entitled "Florida Retirement System - After You Retire" and the 1988 Supplement to that publication. Petitioner was aware that retirees from the TRS could not receive both a salary from a participant in the FRS and retirement benefits from TRS. Petitioner was aware that the pamphlet published October 1987 discussed two exceptions that did not apply to her situation. Petitioner construed a third exception, discussed in the 1988 Supplement, as authorizing her to be1 reemployed as a substitute instructor at BCC without that reemployment interfering with her retirement benefits. The 1988 Supplement discussed the third exception as follows: A third exception to the reemployment law was provided by 1988 legislation. After being retired and "off the payroll" for one calendar month, FRS and TRS retirees may work for 780 hours of the first 12 months as an hourly teacher on a noncontractual basis. The language from the 1988 Supplement which discusses the third exception to the reemployment law provided by 1988 legislation and upon which Petitioner relied fails to advise the retiree that the exception is limited to teachers employed by district school systems. This failure lead to Petitioner's misunderstanding as to the scope of the exception. Following an audit, Respondent advised Petitioner by letter dated September 21, 1989, that she was not entitled to payments of retirement benefits for the months of December 1988, January 1989, and March 1989, because she had been reemployed by BCC during those months. Respondent demanded that Petitioner repay the sum of $3,270.41 that she had received for those three months. On November 15, 1989, Respondent advised Petitioner by letter that it had revised its determination and that only the months of December 1988 and March 1989 were in dispute. Respondent demanded reimbursement of the sum of $2,173.54, the amount of the retirement benefits paid to Petitioner for the months of December 1988 and March 1989. Petitioner timely requested a formal hearing to challenge Respondent's determinations in this matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order which finds that Petitioner received overpayment of retirement benefits for December 14, 1988, and for March 17, 1989, due to her reemployment by Broward Community College and which requires her to repay the retirement benefits she received for December 14, 1988, and for March 17, 1989. DONE AND ENTERED this 12 day of March, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-6853 The following rulings are made on the proposed findings of fact submitted by Respondent. end The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraphs 5-7 are rejected as being recitation of testimony and as being subordinate to the findings made. COPIES FURNISHED: Nellie E. Dry, pro se 1501 South Ocean Drive, M804 Hollywood, Florida 33019 Stanley M. Danek, Esquire Department of Administration 2639 North Monroe Street Building C Tallahassee, Florida 32399-1560 Shirley Hoefer Broward Community College 225 East Las Olas Boulevard Ft. Lauderdale, Florida 33301 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact On July 9, 1986 Petitioner, a Clerk Typist Specialist employed by the Department of Health and Rehabilitative Services, signed a receipt acknowledging that she had received a copy of the Department's Employee Handbook which contains the information that an employee who is absent for three consecutive workdays without authorization may be considered to have abandoned his or her position and thereby to have resigned. On September 3, 1987 Petitioner telephoned her supervisor to advise him that she had an interview scheduled and that she would be at work by 9:30 a.m. She, however, thereafter failed to appear at work and failed to make any further contact with her supervisor on September 3, 4, 8, 9, 10, and 11, 1987. On September 11, 1987 by certified letter the Department advised Petitioner that, as of the close of business on September 9, she was deemed to have abandoned her position and to have resigned from the Career Service due to her unauthorized absence for three consecutive workdays, i.e., September 3, 4, and 8, 1987.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is, RECOMMENDED that a Final Order be entered deeming Petitioner to have abandoned her position and to have resigned from the Career Service. DONE AND ORDERED this 30th day of November, 1987, in Tallahassee, Florida. LINDA M. RIGOT 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 30th day of November, 1987. COPIES FURNISHED: Ruby Holloway-Jenkins 649 West 4th Street Riviera Beach, Florida 33404 K. C. Collette, Esquire District IX Legal Counsel 111 Georgia Avenue West Palm Beach, Florida 33401 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that: The Career Service Commission find that there was no just cause for the written reprimand concerning the charge of "leaving the assigned work station without authorization," and expunge said written reprimand from respondent's personnel file; and The Commission affirm the thirty day suspension without pay for insubordination and committing this offense while supervising children. Respectfully submitted and entered this 15th day of April, 1977, in Tallahassee, Florida. COPIES FURNISHED: William Park, Esquire 4000 West Buffalo Avenue Tampa, Florida 33614 Freemon A. Mark, Esquire 1577 North Dixie Highway Post Office Box 1991 Pompano Beach, Florida 33061 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 Mr. Conley M. Kennison State Personnel Director Room 530, Carlton Building Tallahassee, Florida 32304 DIANE D. TREMOR 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 15th day of April, 1977. =================================================================
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Erin R. McGuire, is entitled to purchase retirement service credit for the 1980-1981 school year based upon the determination of whether she was on a properly authorized leave of absence for that school year or, conversely, had actually resigned for that year before returning as a full- time employee of the Bay County School System the following year.
Findings Of Fact The Petitioner is a regular class member of the FRS, with some 28 years of service credit. Her entire FRS career has been with the Bay County School District. On October 8, 1980, the Petitioner resigned her employment with the Bay County School System to re-locate her residence to Alabama. She wanted to be closer to her family in Alabama and at the time did not intend to return to Bay County. She changed her mind, however, and on September 9, 1981, was re-hired by the Bay County School System. She has continued her employment with Bay County schools from that time until the present. The Petitioner maintains that she spoke to her school principal after tendering her resignation in 1980, and he persuaded her to rescind her resignation and instead take a leave of absence. No school board record of such a decision or denomination of her absence from employment as a leave of absence, was produced at hearing. The Petitioner did admit that when she left her employment with Bay County in 1980, she had no intention of ever returning at that point. She did, however, return for the following school year and has been employed by Bay County Schools ever since. When a member, such as the Petitioner, seeks to purchase a leave of absence from the FRS, they, and their employer, must verify the leave of absence on the FRS form FR That form is provided by the Division and must be executed by both the employer and the employee. The leave of absence must have been approved by the employer, the school board, either prior to or during the time period of the leave of absence, according to the rule cited herein. When Ms. McGuire submitted her form FR 28 to the school board, the board completed the form indicating that she had resigned on October 8, 1980 (not a leave of absence), and was re-hired as a "new hire" on September 9, 1981. It is also the case that the school board approved amending her record to show the time period in question as a leave of absence. That amendment of her record was approved by the school board on January 14, 2004, however, long after the time period of the purported leave of absence itself.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, denying the Petitioner's request to purchase leave of absence credit for the period October 1980 through September 1981. DONE AND ENTERED this 1st day of September, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2004. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Erin McGuire 1507 Rhode Island Avenue Lynn Haven, Florida 32444
The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Petitioner was formerly employed as an Unemployment Compensation (UC) Adjudicator in Respondent's Miami UC office. In this capacity, he interviewed claimants seeking unemployment compensation and made initial determinations regarding the validity of their claims. Petitioner was often absent because of illness. When he was at work, however, he performed his duties competently. Petitioner and his fellow employees at the Miami UC Office were required to notify supervisory personnel no later than the beginning of the workday if they were going to be absent that day. Petitioner was made aware of this requirement on various occasions prior to the absences that led to the termination of his employment with Respondent. On Tuesday, September 5, 1989, Petitioner telephoned his supervisor and told her that he would be absent that day because of an ankle injury he had sustained. He did not indicate during the conversation whether he would be at work the following day. On Wednesday, September 6, 1989, and Thursday, September 7, 1989, Petitioner neither reported to work nor contacted his supervisor at any time during the day to give notification of his absence. On Friday, September 8, 1989, Petitioner again failed to report to work. He did, however, telephone his supervisor concerning his absence, but he did not do so until 4:50 p.m., 20 minutes after the shift to which he was assigned had ended. By letter dated September 11, 1989, Respondent notified Petitioner that it had determined that Petitioner had abandoned his position and resigned from the Career Service effective the close of business September 8, 1989, in view of his unauthorized absence from work on September 6, 7, and 8, 1989. It is this determination that is the subject of the instant controversy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his UC Adjudicator position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1990. STUART H. LERNER 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 16th day of February 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact To the extent that Petitioner asserts in his letter that he contacted his supervisor on September 5, 1989, and again on September 8, 1989, his proposed findings of fact have been accepted and incorporated in substance in this Recommended Order. To the extent that he claims that he "did not have 3 consecutive days of unauthorized absences," his proposed factual findings have been rejected because they are contrary to the preponderance of the evidence. Respondent's Proposed Findings of Fact First Sentence: Accepted and incorporated in substance; Second Sentence: Rejected because it adds only unnecessary detail. First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. First, second and fifth sentences: Accepted and incorporated in substance; Third and fourth sentences: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. COPIES FURNISHED: Jerry Cooper 1601 Northwest 17th Street, #2 Miami, Florida 33125 Edward A. Dion, Esquire Assistant General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 William A. Frieder Senior Attorney Office of the General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Hugo Menendez, Secretary Florida, Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue Whether petitioner must forfeit retirement benefits in the amount of $7,889.26 on account of work he performed for Pensacola Junior College from August 1, 1987, through June 30, 1988?
Findings Of Fact After retiring from the United States Navy as a Captain, petitioner Gaspare B. Tamburello, 72 years of age at the time of the hearing, began working for Pensacola Junior College on August 2, 1969. He spent two years as the College's Director of Veteran Affairs, then became its Director of Administrative Services. By July 1, 1987, when he retired from the College, he had become Assistant to the President. As Assistant to the President, Dr. Tamburello's duties, although many and varied, did not include fund raising or any participation in efforts to create new educational programs. He reported to the President and performed duties the President assigned, including: Serv[ing] as the college's community liaison representative to develop and maintain opt- imum relationships between the college and the community. [by] Represent[ing] the President, in his absence, at community events, councils, and committees. Coordinat[ing] for the college special community and civic events held on campus. Prepar[ing] special briefings and presen- tations. Arrang[ing] tours for representatives of all segments of the community. Serv[ing] as the President's campus ombudsman. [Taking r]esponsib[ility] for special pro- jects and reports on a variety of subjects as assigned by the President. Coordinat[ing] special events and activities for formal ceremonies. Prepar[ing] corres- pondence for the President's signature. Act[ing] as liaison for President at his direction. Supervis[ing] the College Public Relations function. Perform[ing] related duties as required or deemed appropriate to the accomplishment of the responsibilities and functions of the position. Respondent's Exhibit No. 5. While Assistant to the President, he met mornings with Horace E. Hartsell, the College's president, to lay out plans for the day. The College provided petitioner an office next to President Hartsell's, secretarial services, and all his supplies. Until July 1, 1987, the College paid petitioner from its payroll account, withholding a portion of his wages to pay federal income taxes and Social Security taxes. Petitioner received all the fringe benefits the College gave its other employees, including health and hospitalization insurance, life insurance, paid holidays, sick leave, annual leave, contributions on his behalf to the Florida Retirement System, and workers' compensation coverage. When he learned petitioner intended to retire, President Hartsell asked him to consider working as a consultant to the College after his retirement. Dr. Tamburello prepared the following memorandum, dated May 21, 1987: PENSACOLA JUNIOR COLLEGE MEMORANDUM TO: Dr. Hartsell FROM: G. B. Tamburello You asked that I identify areas in which I can serve under the proposed consulting con- tract. The following activities could be assigned under the contract as needed. Community Relations Assist Dr. Crosby in obtaining community support for PJC Future Fund. Assist in developing Community Needs Assessment Project. Develop contacts for expansion of the USA Achievement Program. As directed by you for special purposes. NAVY Relations Lobby for Gulf Region Homeporting Ships Educational Programs. Help develop local homeporting education liaison programs. Arrange courtesy calls with new Commanding Officers. Attend special military functions as requested. PJC Seniors Club Continue to act as advisor to the club. Attend monthly and executive committee meetings. Coordinate Seniors Club campus facili- ties and logistical needs. Develop special programs of interest to PJC Seniors Club members. Veterans Affairs a. Discuss with Reserve Units Reserve GI Bill opportunities. Continuing Education Develop PJC Pre-Retirement Program. Develop Pre-Retirement Program for community businesses and commercial establishments. Develop special life-long learning educational programs. Develop new non-credit PJC Seniors Academy program. International Education a. Assist in the development of recruiting program to attract the international student to PJC campuses. Special Studies and Projects as requested Dr. Hernandez, Jay Mooney, and Betty Dexter approached me about the possibility of being of assistance to them under the contract. I have also discussed the Continuing Education functions with Dr. Betsy Smith who is very pleased with the assistance I might render. Respondent's Exhibit No. 9. The parties later executed a written agreement under which petitioner performed consulting services for the College from August 1, 1987, to June 30, 1988, in exchange for six thousand dollars ($6,000). When Dr. Tamburello retired, the College was paying him at an annual rate of approximately $31,500. Some two weeks after Dr. Tamburello's retirement, David Armstrong became Assistant to the President, filling the regularly established position Dr. Tamburello had vacated and succeeding to his duties. The job description remained unchanged. The consulting contract specified that petitioner would act as an independent contractor while performing services under the contract, and that he would not be an employee of the College. Petitioner reported the income he received under the consulting contract to the Internal Revenue Service on Schedule C. Petitioner's Exhibit No. 10. He filled no position at the college. For his services under the consulting contract, the College paid him from its accounts payable account, and withheld no funds to pay federal income taxes or Social Security taxes. The College did not provide petitioner with an office, assign a secretary, or give him materials and supplies, and petitioner received none of the fringe benefits enjoyed by employees of the College. The College did not reimburse petitioner for expenses he incurred while performing services as a consultant. Although the College contracted directly with Dr. Tamburello and all parties evidently contemplated his personal services, he was not prohibited from hiring others to assist him in performing services under the consulting contract, according to unrebutted testimony from College officials. In 1987 Nova University paid petitioner $6,000 and in 1988 $9,000.00 for services he performed for that school. Petitioner had formed E&T Management Service Co. prior to 1987, and offered his services as a consultant to the general public. Only after August 1, 1987, when Dr. Tamburello's consulting contract became effective, did he begin working with Elizabeth Smith, then Dean of Continuing Education, in an effort to establish an elder hostel program at the College, as part of a "life long learning center" with "seniors teaching seniors." He also conceived and organized the College's "Lex flex" program: classes for members of the crew of the U.S.S. Lexington were scheduled to coincide with the ship's stays in Pensacola, its home port. While working under the consulting contract, he solicited contributions for the College's "Future Fund," and facilitated one donation to the college that amounted to approximately a quarter of a million dollars. He conducted "pre-retirement seminars" at which bankers, lawyers, social security officials and others addressed older members of the community. The Pensacola Junior College Seniors Club, which he started, now has 1500 members. In performing services under the consulting contract, petitioner set his own hours and determined the type and sequence of the work he performed. While not subject to their control, he reported to the President and the Dean of Continuing Education, as ideas or plans unfolded. The pre-retirement seminars took place on campus and he occasionally met with Dean Smith or President Hartsell in their offices, but, as a consultant, for the most part, he worked off campus; he had an office at his home. Petitioner kept track of the various tasks he performed. At varying intervals, he reported how many hours he had worked to Dean Smith, and was paid accordingly, in keeping with the consulting contract. Thirteen of a total of 101 entries reflected that he had done something at President Hartsell's request, typically attend a change of command ceremony as a representative of the College. The President forwarded notices of such events to him, but did not actually request that he attend; sometimes he attended, sometimes he did not. Ten entries reflected time petitioner spent introducing Dr. Armstrong to community leaders. At least nine entries pertained to the "PJC Senior Club." Respondent's Exhibit No. 10. He wrote a single three-minute introduction President Hartsell delivered, but did no other speech writing. Petitioner's experience as a naval officer, his study of the educational needs of the elderly, as evidenced by his doctoral thesis on the educational needs of the elderly, entitled "Project ESP: Education Support Plan for the Aged, and his civic activities all prepared him for the work he performed as a consultant. Before entering into the consulting contract with the College, petitioner had been active in a wide range of community affairs. By June of 1985, petitioner's interest in his retirement benefits had fully vested. Taking into account the twenty factors utilized by respondent as guidelines to determine whether an individual is an employee or an independent contractor, petitioner's status was that of an independent contractor. Some time after 1988, respondent audited the College's records, but did not advise the College that petitioner should be deemed an employee rather than an independent contractor under the terms of the 1987-88 contract. Only later, after an audit performed by the Auditor General's office, did respondent inform him of its contention that he must forfeit $7,889.26 in retirement benefits previously paid to him. The first notice petitioner received from respondent to that effect was dated September 9, 1992.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a final order formally abandoning any claim to the retirement payments it made to petitioner during the period from August 1, 1987 through June 30, 1988. DONE AND ENTERED this 13th day of August, 1993, in Tallahassee, Florida. ROBERT T. BENTON 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 13th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7366 Petitioner's proposed findings of fact Nos. 1 through 21 and 25 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 22, 23, 24 and 26 are properly proposed conclusions of law. Respondent's proposed findings of fact Nos. 6, 7, 8 and 14 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 1, Dr. Tamburello supervised public relations and computer operations when he worked as Director of Administrative Services. With respect to respondent's proposed finding of fact No. 2, while his schedule as Assistant to the President varied from day to day, he met with the President every morning. With respect to respondent's proposed finding of fact No. 3, the contract was dated July 21, 1987. Respondent's proposed finding of fact No. 4 pertains to subordinate and immaterial matters. With respect to respondent's proposed finding of fact No. 5, Dr. Hartsell did not want to retain Dr. Tamburello as Assistant to the President. With respect to respondent's proposed finding of fact No. 9, the 1991-1992 contract was between the College and E&T Management Service. With respect to respondent's proposed finding of fact No. 10, there was some overlap. With respect to respondent's proposed finding of fact No. 11, making introductions is not necessarily the function of an employee. With respect to respondent's proposed finding of fact No. 12, Dr. Tamburello did not meet with Dr. Smith on a continuous basis. With respect to respondent's proposed finding of fact No. 13, the name of the company was E&T Management Service. COPIES FURNISHED: Susan B. Kirkland, General Counsel Department of Management Services 2737 Centerview Drive Tallahassee, Florida 32399-0950 William H. Lindner, Secretary Department of Management Services 2737 Centerview Drive Tallahassee, Florida 32399-0950 M. J. Menge, Esquire Shell, Fleming, Davis & Menge Post Office Box 1831 226 Palafox Place Pensacola, Florida 32501 Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center-Building C 2639 North Monroe Street Tallahassee, Florida 32399
