The Issue Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).
Findings Of Fact Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989. FCCJ is a member employer under FRS. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth science; acted as a facilitator in the laboratory; and taught Adult Studies courses. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part, 3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment. * * * The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees. * * * 9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to participate in FRS from January 1, 2000, through June 13, 2002. DONE AND ENTERED this 14th day of January, 2003, 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 14th day of January, 2003. COPIES FURNISHED: Al Millar, Esquire 4627 Ocean Street Mayport, Florida 32233 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner transferred to the Florida Retirement System (FRS) Investment Plan from the FRS Pension Plan, pursuant to section 121.4501, Florida Statutes (2012).1/
Findings Of Fact Petitioner is a 32-year-old former employee of the Florida Department of Corrections. Petitioner was employed as a correctional officer at the Northwest Florida Reception Center in Washington County, Florida from June 14, 2004, until he resigned on July 23, 2012. Petitioner is a fully vested member of the State of Florida Retirement System (FRS). Respondent, State Board of Administration, is the agency with the duty and responsibility to administer the State of Florida Retirement System Investment Plan. See § 121.4501(8), Fla. Stat. In mid-2011, Petitioner decided to look for other employment and began researching his retirement options. Petitioner discovered he needed to be employed by the State for six years to be fully vested in the FRS and have the option to transfer from the FRS Pension Plan (a defined benefit plan) to the FRS Investment Plan (a defined contribution plan). Sometime between May 1 and 10, 2012, Petitioner accessed the FRS website, either downloaded or printed the FRS “second election form” –- the paperwork required to transfer his retirement account to the Investment Plan -- and completed the form. Although Petitioner does not remember the exact date, Petitioner approached Ms. Charity Pleas, Secretary Specialist for the Chief of Security, and asked her to file his second election form for him by facsimile transmission (fax). Ms. Pleas testified she faxed the document to the number on the form. Petitioner observed Ms. Pleas place the paperwork into the fax machine, dial a fax number, complete the fax transmission, and retrieve a fax transmission confirmation report. Ms. Pleas handed the confirmation report to Petitioner. Petitioner cannot be certain what became of the confirmation report or his original second election form. Petitioner did not contact anyone with the Florida Retirement System to confirm receipt of his second election form. Ms. Pleas often sends faxes on behalf of employees at the Reception Center where she has been employed since 2007. Ms. Pleas occasionally receives complaints from employees that a fax she has sent on their behalf was not received by the other party. Sometimes this happens despite the fact that she has received a fax confirmation report. Petitioner began employment in the private sector with Power South on July 30, 2012. In early August 2012, Petitioner contacted the FRS to find out if the retirement funds were available to move into a 401K account with his new employer. He spoke with someone named “Jason” who said there was no record of a second election having been made by Petitioner. An investigation ensued. Aon Hewitt is the Plan Choice Administrator for the FRS Investment Plan. Aon Hewitt provides services to the SBA in connection with the Investment Plan, including processing enrollments and second elections. Lynette Murphy is Benefits Operations Manager for Hewitt Associates, LLC, a division of Aon Hewitt. Ms. Murphy researched the issue of whether Petitioner’s second election form was received by Aon Hewitt. She conducted several searches of the company’s files, including a search by Petitioner’s name (both first and last names) and social security number. In case the second election form had been received without a member name or social security number, Ms. Murphy also conducted a search on the numbers “99” and “90,” the codes assigned to forms received which are unidentifiable. Ms. Murphy’s search included not only forms received between April 1, 2012 and July 30, 2012, but also all dates covering the life of Petitioner’s eligibility and enrollment in the FRS. Ms. Murphy was unable to find any record of a second election form filed by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order denying the relief requested in Petitioner’s Petition for Hearing. DONE AND ENTERED this <day> day of <month>, <year>, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this <day> day of <month>, <year>.
The Issue The issue is whether Petitioner is eligible to purchase her employee service as a CETA employee with a state agency as credible service in the Florida Retirement Service.
Findings Of Fact Petitioner, Sherry Stearns, was employed by the State of Florida, Department of Labor and Commerce, in the Florida State Unemployment office from January 1976 until September 30, 1977. The records maintained by the Department of Retirement based upon payroll data submitted by the Department of Revenue reflect that Petitioner was not in a permanent position as reflected by the Code 0303 and the entry of "zz" in the last column showing she was not eligible for retirement benefits. The Petitioner offered no evidence in support of her claim to show that she was employed in a position which was covered or for which she could claim prior service credit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Petitioner's claim be DENIED. DONE AND ENTERED this 29th day of July, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1998. COPIES FURNISHED: Sherry Stearns 360 South Senaca Boulevard Daytona Beach, Florida 32114 Stanley N. Danek, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Linder, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue presented for decision herein is whether or not the Petitioner, Margie Ann Sims, was unlawfully terminated (by Respondent), Niagara Lockport Industries, Inc., due to her age in violation of the Florida Human Rights Act of 1977, Section 760.10, Florida Statutes (1983).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is forty eight (48) years old. She commenced work for Respondent, Niagara Wires, a subsidiary of Niagara Lockport Industries, Inc., located in Quincy, Florida during 1965 as an Accounts Payable Clerk. Petitioner was terminated on August 5, 1983, as a result of a reduction in staff and unsatisfactory work performance.1 During Petitioner's job tenure, she held various accounting and secretarial positions. Petitioner's initial duties were that of an accounting clerk and she later progressed to Assistant Chief Accountant. She later served as Corporate Bookkeeper and Secretary. Throughout her employment, her job duties were very broad and encompassed many areas of responsibility including overseeing accounts receivable, billings, payroll, bank statements, journal entries, wire transfers and financial statements. During 1975, Respondent's corporate office was moved to Quincy, Florida and Petitioner handled accounting and secretarial duties for the corporate office, dealt with banks making fund transfers, loan balancing and note arrangements; managed financial consolidation of Respondent's eight companies on a quarterly basis; maintained all pension plan records for Respondent's fourteen pension plans which included calculations of pension benefits, submission of wages and credited service to actuaries in preparation of various pension reports. Petitioner's other duties involved maintenance of company minute books, typing, submission and maintenance of files for all letters of credit issued; keeping patent and trademark files and assisted with telecopy, switchboard and TWX. (Petitioner's Exhibit 2). During 1976, Petitioner worked directly for Respondent's corporate secretary/treasurer, Robert Worrall. The assignment occurred as a result of a recommendation by Respondent's manufacturing manager, Don Anderson. Petitioner was considered the best of the three employees available to work for Worrall. Thereafter, several changes were made in Respondent's corporate makeup including the addition of the Lockport Felt Division in 1977. As a result, additional employees were placed in the accounting department and Petitioner's duties became more secretarial and clerical in nature than accounting. This situation remained unchanged until Petitioner's termination in 1983. Although Petitioner worked directly for Worrall, she was also expected to perform secretarial and clerical work for others in the accounting department, specifically including Harry Kurtz, Vice-President of Finance, Bruce Kennedy, Controller and Hank Burnett, Corporate Administrative Manager. While Petitioner's primary responsibility was to complete Worrall's work, she was also expected to perform work for other accountants and fiscal employees in the accounting department as she was the only trained employee in the accounting department available for typing duties. (TR 35, 106, 133-134, 117-119, 138, 142 and 153). Respondent has not maintained a formal policy concerning employee discipline or warnings for salaried employees, as Petitioner. (Testimony of Cairns and Worrall, TR 19, 46-47, 60 and 77). Commencing in 1980, Worrall became unhappy with Petitioner's work performance. This unhappiness took the form of counseling with Petitioner during year-end annual reviews and included the following deficiencies: "away from her work station when needed; too much time spent socializing with others; unwilling to work; pushing work back on Worrall; untimeliness and failing to timely complete work as assigned." (TR 85, 110, 116- 117). Like Worrall, other employees in the accounting department for whom Petitioner worked were dissatisfied with her performance during the years 1980-1983. Harry Kurtz, Vice- President of Finance, experienced problems with Petitioner's work quality including errors in typing and formatting, misspelled words and inaccurate numbers to the point where he did not want her (Petitioner) to perform his (Kurtz) work. He was thus forced to seek assistance from persons outside the accounting department, including Pat Simmons who replaced Petitioner, to perform his work. Kurtz related these problems to Worrall. (TR 128, 129-133, 131 and 136). Bruce Kennedy, Controller, experienced similar problems with Petitioner's work quality. He noted Petitioner frequently misspelled words and transposed numbers. Kennedy experienced problems concerning timeliness and the invalid excuses by Petitioner for failing to complete assigned work as scheduled. (TR 137-139). Based on Petitioner's poor work quality, Kennedy went outside the accounting department to get assistance in performing his clerical and secretarial duties. Kennedy informed Worrall of his dissatisfaction with Petitioner's work. Hank Burnett, Corporate Administrative Manager, also experienced problems with Petitioner's work quality in regards to accuracy and neatness. Burnett related an incident where Petitioner used so much "white-out" to make corrections that numbers on ledger sheets were not legible. Burnett also experienced problems with Petitioner in getting work returned timely. He also found it necessary to go outside the accounting_ department to solicit the assistance of Pat Simmons to perform his work. Burnett related to Worrall his dissatisfaction with Petitioner's performance. (TR 128, 150). Linda Jaudzimas is presently employed with Niagara Wire Weaving Employees Credit Union. She has held that position since approximately May of 1980. During the years 1978 through May of 1980, Jaudzimas was employed as an accounting clerk in the corporate accounting office for Niagara Lockport Industries. During that time period, she worked directly with Petitioner and Worrall. Jaudzimas described Petitioner and Worrall as having a very good work relationship and that Worrall depended upon Petitioner a lot. However, since May of 1980, Jaudzimas had only limited contact with Petitioner The typical degree of contact would be only to "pick up reports; I would get information from pensions for time reporting periods." (TR 54 and 58). Don Anderson is presently employed as the Manufacturing Manager for Respondent. Anderson has been in Respondent's employ since 1971. From 1971 through January 1, 1974, Anderson was Respondent's Chief Accountant. Anderson had no direct knowledge concerning Petitioner's work performance since January of 1974. Anderson corroborated Cairns and Worrall's testimony that Respondent had no formal policy concerning disciplinary action taken against salaried employees, as Petitioner. (TR 60). Respondent conducted informal evaluations of salaried employees, including Petitioner, at the end of each year in conjunction with salary increases. During Petitioner's 1981 work performance evaluation, Worrall discussed his concerns with Petitioner including the fact that she spent too much time talking to other people; that he always had to look for her and she pushed work back on him. Petitioner's time away from her work station and her negative attitude toward the company's insurance program were items of discussion. (TR 17; 84-88). An entire list of Worrall's concerns respecting Petitioner's job performance were placed in her personnel file during the 1981 annual performance review. (Respondent's Exhibit 1). Petitioner recalls Worrall using that list during their meetings. (TR 36). Petitioner's performance did not improve during the following year and Worrall expressed the same concerns to her during her annual work performance review during 1982. (TR 115-116). Petitioner received "good" salary increases during the late 70's however, due to her poor performance from 1980-1982, Worrall recommended that she receive only the minimum cost of living increases for the years 1981, 1982 and 1983. In mid 1983, Respondent made a decision to reorganize its corporate offices by moving the sales office of Niagara Lockport from Quincy to Starkeville, Mississippi and by making a change in the research and development department. Pat Simmons, age 41, was secretary for the vice-present of research and development. Worrall was familiar with Ms. Simmons and her work having seen it first hand. Additionally, she was highly recommended by her then supervisors. Finally, she had performed work considered to be "high quality" by other employees in the accounting department including Kurtz, Kennedy and Burnett. When Simmons became available due to the reorganization, Worrall decided to replace Petitioner with Simmons. Petitioner's job had become primarily secretarial and clerical in nature and Worrall desired a competent executive secretary to replace her. (TR 88 90, 92, 94, 121-122, 127). Petitioner was 45 years of age at the time of her termination. (Respondent's Exhibit 3). Petitioner's duties were assumed by Simmons (95 percent) and Elaine Hall (5 percent) who was retained since she- possessed requisite accounting skills. Hall was able to complete the cash report in two hours, a job that had taken Petitioner the better part of a day to perform. (TR 86). As a result of the reorganization, two other employees, Loretta Hood (mid 30's) and Virginia Jeffcoat (mid 50's) were terminated. Petitioner was terminated in August, 1983 for the reasons that her performance was not satisfactory and a qualified person (Simmons) had become available due to Respondent's corporate reorganization and staff reduction. This was told to Petitioner at the time of her termination. (Respondent's Exhibit 2; TR 68, 93). Subsequent to her termination, Petitioner requested that Worrall write her a letter of recommendation. Worrall complied, however, Petitioner was not pleased and asked him to write a second one giving him an example to follow (Respondent's Exhibit 7). Petitioner wanted a "good" letter of recommendation so that she could easily obtain another job. In writing the recommendation, Worrall followed his policy of not commenting on negatives but merely set out the type of work Petitioner performed. Petitioner was still unsatisfied with Worrall's second letter and she therefore asked the Respondent's President, Malcolm Cairns, to write a letter of recommendation for her. As with Worrall, Petitioner participated in the drafting of the letter for Cairns by providing him with an example. (TR 22, 23 and 70). Cairns did not include anything negative in the letter so that it would be easier for Petitioner to obtain another job.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order finding that Petitioner was not terminated due to her age in violation of the Florida Human Rights Act of 1977, as amended. Section 760.10, Florida Statutes (1983) and that Petitioner's Petition for Relief be DISMISSED. DONE and ORDERED this 10th day of March, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1986. COPIES FURNISHED: Steven L. Seliger, Esquire 229 E. Washington Street Quincy, Florida 32351 Swift, Currie, NcGhee and Hiers, P.A., by Victor A. Cavanough 771 Spring Street, N.W. Post Office Box 54247 Atlanta, Georgia 30379-2401 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240/ Tallahassee, Florida 32303. Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
Findings Of Fact The Department of Professional Regulation, Board of Dentistry, filed an Administrative Complaint in DPR Case Number 00-52375 against the Petitioner's license to practice dentistry on May 13, 1986. The Petitioner did not dispute the facts alleged in the Administrative Complaint and the Board of Dentistry held an informal hearing, pursuant to Section 120.57(2), Florida Statutes, on September 13, 1986. On October 2, 1986, the Board of Dentistry issued a Final Order suspending the Petitioner from the remunerative practice of dentistry for a period of ten (10) years and advised the Petitioner of his right to appeal the Board's Final Order. The Petitioner did not appeal the October 2, 1986 Final Order of the Board of Dentistry. On or about May 1, 1987, and/or May 2, 1987, the Board of Dentistry met to consider correspondence from the Petitioner seeking a determination of compliance with the Board's October 2, 1986 Final Order for his proposal to do volunteer community service dental work at "St. Catherine Laboure Manor" in Jacksonville, Florida. The Board of Dentistry requested further clarification from the Petitioner and took no further action with respect to the Petitioner's request. On June 10, 1987, the Board of Dentistry met to consider the Petitioner's request to allow him to provide volunteer community service dental work under indirect supervision, and on June 26, 1987, the Board of Dentistry issued an Order Denying the Modification. The Petitioner did not appeal the June 26, 1987, Order of the Board of Dentistry. On or about March 9, 1988, the Petitioner submitted his second request to the Board of Dentistry for modification of its October 2, 1986 Final Order. The Petitioner identified the following reasons as why the Board of Dentistry should grant his request: My obligation to the people of the State of Florida was fully satisfied on September 28, 1987 (enc.). My civil rights were restored on February 25, 1988 (enc.). The fine imposed by the Board of Professional Regulation ($2000.00) has been paid in full. Since July 1987 I have been treating patients in St. Catherine Laboure' Manor under the direct supervision of Owen Boales D.D.S., as required by order of the Board (enc.). I am currently 64 years of age and need gainful employment. My wife and I are currently surviving primary on her earnings as an employee of the Florida Community College at Jacksonville. My mentally disabled son was admitted to The Northeast Florida State Hospital approximately one month after my arrest. His condition would be benefited by whatever personal attention and care my wife and I may be able to provide. The ten year suspension order now in effect is tantamount to lifetime punishment. This long suspension does not benefit the public but severely obstructs rehabilitative effort. It minimizes the opportunities for professional public service and prevents professional employment. It reduces the available options to demonstrate reliability and observable conformity to the profession's ethical standards. It will continue to impede all my effort to becoming a self sustaining productive and worthy member of society. On April 23, 1988, the Board of Dentistry met to consider the Petitioner's second request for modification of the Board's October 2, 1986 Final Order. After discussion and consideration of the evidence and arguments of the Petitioner, the Board of Dentistry on July 13, 1988, issued an Order Denying Modification of Final Order. The Petitioner did not appeal the Board's July 13, 1988 Order denying his second request. On or about June 5, 1990, the Petitioner through his attorney submitted his third request to the Board of Dentistry for a modification of the October 2, 1986 Final Order. The Petitioner's third Motion for Modification of Final Order submitted to the Board on or about June 5, 1990, did not contain information or circumstances that were substantially different from those known to the Board at the time the Final Order of October 2, 1986, was entered, at the time the first order was entered denying the modification request, or that were known to the Board when it had previously heard and denied Petitioner's second request in 1988. On July 28, 1990, the Board of Dentistry met to consider the Petitioner's third request for modification of the October 2, 1986 Final Order. After discussion of the parties and upon the advice of legal counsel, the Board of Dentistry on August 13, 1990, issued an Order Denying Modification of Final Order. The Petitioner timely sought an appeal of the Board's August 13, 1990 Order in the First District Court of Appeal, Case Number 90-2369. On September 4, 1991, the First District Court of Appeal issued its opinion where they found the August 13, 1990 Final Order to be ambiguous, vacated the August 13th Final Order, and remanded the case back to the Board of Dentistry for further proceedings. On October 8, 1991, the First District Court of Appeal issued its Mandate to the Board of Dentistry to hold further proceedings consistent with the Court's opinion. On or about October 15, 1991, the Petitioner submitted an Amended Motion for Modification alleging for the first time that "there had been material changes in circumstances since his suspension was entered and/or since the previous rulings as to his suspension." On November 8, 1991, the Board of Dentistry met to consider the Petitioner's third request for modification of the Board's October 2, 1986 Final Order, the Amended Motion for Modification of Final Order, and the Opinion and Mandate of the First District Court of Appeal. After discussion and consideration of the Petitioner's requests for modification, the Opinion and Mandate of the First District Court of Appeal, and the evidence presented, on December 12, 1991, the Board of Dentistry issued a Final Order on Remand granting the Petitioner's Amended Motion for Modification of the Board's October 2, 1986 Final Order. The Petitioner is a sole proprietor of a professional practice of dentistry. His principal office and domicile are located in Jacksonville, Florida. He has fewer than twenty-five (25) full-time employees, and his net worth, at the time of filing, was less than two million ($2,000,000) dollars. The Petitioner incurred appellate attorney's fees in the amount of $8,990.00 and costs in the amount of $323.92. The Respondent did not dispute the reasonableness of the fees and costs in this case.
The Issue The issues presented to the Administrative Law Judge for resolution in this case were: Whether it is necessary for Petitioner, Marcella Mika, to go to law school to return to suitable gainful employment. Whether the provisions of Section 440.491, Florida Statutes (1995), apply to Petitioner. Whether the provisions of Florida Administrative Code Rules Chapter 38F-55 apply to Petitioner. Whether Respondent is required to reimburse Petitioner for tuition and the reasonable costs of board and lodging for Petitioner's attendance at Stetson University College of Law.
Findings Of Fact Petitioner's Injury and Recovery On January 24, 1991, Petitioner sustained a compensable injury within the course and scope of her employment with her employer, Community Dialysis Center. Petitioner was diagnosed as sustaining acetabular fracture of the left hip with residual sciatic neuropathy and cervical injury as a result of tripping and falling over a telephone cord. On or about January 7, 1993, Petitioner reached maximum medical improvement with the following physical capabilities: Petitioner can work full-time. Petitioner can drive an automobile with an automatic transmission. Petitioner can drive 30 minutes to an hour at one time and a total of 2-3 hours in a work day. Petitioner can walk 5-10 minutes at one time and a total of 1-2 hours in a work day. Petitioner can stand 5-10 minutes at one time and a total of 1-2 hours in a work day. Petitioner can sit 2-3 hours at one time and a total of 6-8 hours in a work day. Petitioner can lift/carry/push/pull up to twenty pounds (20 lbs.) occasionally up to 1/3 of a work day. Petitioner cannot lift/carry/push/pull more than twenty pounds (20 lbs.). Petitioner can bend frequently for 1/3 to 2/3 of a work day. Petitioner can twist frequently for 1/3 to 2/3 of a work day. Petitioner cannot stoop or squat. Petitioner can kneel occasionally up to 1/3 of a work day. Petitioner cannot crawl. Petitioner cannot climb stairs or ladders. Petitioner can reach above her shoulder constantly for 2/3 or more of the work day. Petitioner can reach across a desk/counter constantly for 2/3 or more of the work day. Petitioner can reach below her waist constantly for 2/3 or more of the work day. Petitioner can grasp/finger with her left and right hand constantly for 2/3 or more of the work day. Petitioner can operate foot controls frequently and up to 1/3 to 2/3 of a work day. Petitioner's Education and Employment History Petitioner has earned an Associate in Applied Science degree in Nursing from Northern Virginia Community College awarded on or about June 9, 1973. From 1973 until her work-related accident on January 24, 1991, Petitioner worked as a registered nurse. Petitioner earned approximately $782.65 weekly and received fringe benefits valued at approximately $41.65 weekly. From 1981 through 1985, Petitioner was employed with Woodbridge Manassas Dialysis Center as a Systems Manager/Charge Nurse. From September 1987 until June 1989, Petitioner was employed as a utilization review specialist with Florida Employers Insurance Service Company earning approximately $23,000 to $27,000 per year. Following her accident, Petitioner returned to work with the Community Dialysis Center at her convenience for 5-6 hours per week earning fourteen dollars ($14.00) per hour from April 15, 1992, until January 31, 1994. At that time, the Community Dialysis Center closed and ceased doing business in Petitioner's area of residence. From September 1994 until May 1996, while pursuing a bachelor of arts degree at the University of South Florida (USF), the Petitioner was employed in a USF work study position, seven to ten hours per week, earning five dollars ($5.00) per hour. Petitioner earned a Bachelor of Arts degree in Interdisciplinary Social Sciences from the University of South Florida awarded in May 1996. Petitioner's Request for Screening On or about February 7, 1995, the District "M," Office of the Judges of Compensation Claims, Judge Joe Willis, entered an Order approving the Petitioner's settlement with her employer, Community Dialysis, and the carrier, Liberty Mutual Insurance Company. Petitioner settled her benefits with Liberty Mutual for $75,000, purportedly pursuant to Section 440.491(6)(b), Florida Statutes (1995). Paragraph 8 of the settlement agreement specifically provided: "The Employee shall also retain the right to apply to the Division of Workers' Compensation for appropriate training and education under Section 440.491(6)(a), Florida Statutes " On or about December 21, 1995, Petitioner submitted a request for screening on form DWC-23 to the Respondent. The Respondent conducted a screening and concluded that Petitioner has transferable skills and therefore it was not necessary to refer Petitioner for a vocational evaluation, nor provide training and education, to return Petitioner to suitable gainful employment. On May 16, 1996, the Petitioner filed a Petition for Hearing. The Petition for Hearing advised that the Petitioner had been accepted by the Stetson University College of Law for the Fall 1996 semester and indicated her desire to pursue a career in law with the assistance of the Workers' Compensation Trust Fund. Petitioner's Law Studies On or about August 1996, Petitioner began to study law at the Stetson University College of Law. Petitioner is currently working towards a Juris Doctor degree. Petitioner has completed two semesters at Stetson University College of Law. The program leading to the Juris Doctor degree consists of five semesters and two summer school sessions. Tuition per semester at Stetson University College of Law is nine-thousand-one-hundred-dollars ($9,100.00), and four- thousand-six-hundred-dollars ($4,600.00) for each summer school session. Stetson University College of law is approved by the American Bar Association, the American Association of Law Schools, and the Southern Association of Colleges and Schools. Petitioner was prohibited by Stetson University College of Law from working during her first year of law school. Petitioner does not intend to work or look for employment while attending Stetson University College of Law. Petitioner's Employability and Need for Retraining Petitioner is forty-seven years old. Petitioner has transferable skills which would allow her to return to suitable gainful employment in nursing within the physical restrictions resulting from her injury. These skills derive not only from her education (Associate in Applied Science degree in Nursing, and Bachelor of Arts degree in Interdisciplinary Sciences), but also from her work history and previous occupation as a Registered Nurse. The Petitioner does not require additional education at Stetson University College of Law to return to suitable gainful employment. There are nursing positions available within Petitioner's physical restrictions for which Petitioner is qualified. The Petitioner's vocational evaluation and vocational rehabilitation expert, Dr. David Heaston, testified that the Petitioner cannot return to the wages she was earning at the time of her accident without rehabilitation or retraining. Dr. Heaston stated that the maximum salary that the Petitioner could return to without any type of rehabilitation or retraining was approximately $28,000 to $30,000. Dr. Heaston also testified that the Petitioner would be able to work within her physical limitations and restrictions as a sole practicing attorney (or under a similar arrangement so that she could maintain could control over her work environment, conditions, and hours). Dr. Heaston testified that, after receiving a Juris Doctor degree at the Stetson University College of Law, the Petitioner would be able to earn approximately $38,000 to $40,000. But that is far from a certainty. Even assuming that a Juris Doctor from Stetson would enable the Petitioner to earn $38,000 to $40,000 in the sole practice of law, it is not clear that those dollars could be earned immediately; licensure will take a certain amount of time after graduation, and it is reasonable to believe that it would take additional time after licensure to build such a sole practice. It is not clear that the Petitioner would be able to achieve earnings as high as her earnings at the time of her accident more quickly by completing law school and starting a law career than she would by seeking employment in the nursing field at this time and working to earn promotions and raises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, the Division of Workers' Compensation, enter a final order denying the Petitioner's request for payment of her expenses incurred in attending the Stetson University College of Law. RECOMMENDED this 23rd day of October, 1997, at Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1997. COPIES FURNISHED: Christopher B. Young, Esquire Riden, Earle and Kiefner, P.A. 100 Second Avenue South Suite 400, North Tower St. Petersburg, Florida 33701 Michael G. Moore, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue Does correspondence dated August 18, 1997, from John M. Awad, Ph.D., District Administrator for District II, State of Florida, Department of Children and Family Services, directed to Theodore R. Buri, Jr., Regional Director, American Federation of State, County, and Municipal employees, AFL-CIO, identify Respondent’s agency policy? If yes, is that policy a “Rule” as defined in Section 120.52(15), Florida Statutes (Supp. 1996)? If a “Rule," has Respondent promulgated the policy in accordance with Section 120.54, Florida Statutes (Supp. 1996)? If the policy is a “Rule” that has not been promulgated, does a statutory basis exist for its promulgation?
Findings Of Fact The individual Petitioners are employed at the Florida State Hospital. This is a mental health facility operated by the Respondent. The individual Petitioners have contact with the clients who reside in the hospital. Because those individual Petitioners have client contact in performing their employment at the hospital, Respondent, as their employer, is responsible for screening the employees to ascertain whether those individual Petitioners have been convicted of or pled guilty or nolo contendere to certain offenses set forth in Sections 435.03 and 435.04, Florida Statutes (1995). Such a finding would disqualify the employees from working directly with the clients. The requirement for screening is in accordance with Section 110.1127(3), and Section 394.4572, Florida Statutes (Supp. 1996). Florida Public Employees Council 79, American Federation of State, County, and Municipal employees, AFL-CIO (AFSCME), represents the individual Petitioners in collective bargaining between those Petitioners and the State of Florida. Each of the individual Petitioners received notification from Robert B. Williams, Hospital Administrator, Florida State Hospital, that each person had been declared ineligible to hold a position of “special trust” based upon certain offenses attributable to the Petitioners. The basis for the disqualifications was Chapter 435, Florida Statutes (1995). This meant that the individuals could not have client contact. As a consequence, Petitioners were told, through the correspondence notifying them of their disqualifications, that they could seek exemption from disqualification and/or contest the accuracy of the records declaring their disqualifications. All Petitioners sought relief from Respondent in accordance with Section 435.07(3), Florida Statutes (1995), by requesting exemption from disqualification before the Respondent. Bobby Jones, Clarence Cornell Simmons, Freddie Lee, and Frank Lawrence Dickens were denied exemption. Whether those Petitioners have contested the preliminary decision by Respondent denying their exemption through hearing procedures set forth in Chapter 120, Florida Statutes is not known. The other Petitioners were granted exemption from disqualification by action of the Respondent. Before Respondent made its preliminary determination on eligibility, on August 13, 1997, Theodore R. Buri, Jr., Regional Director of AFSCME Florida Council 79, wrote to Dr. John Awad, District Administrator, District II, Department of Children and Family Services. The purpose of the letter concerned the disqualification of the individual Petitioners to continue work in positions of “special trust” by having contact with clients at Florida State Hospital. That correspondence stated: The above referenced employees have been previously notified of disqualification, allegedly under the provisions of Chapter 435, Florida Statutes. These employees have notified Council 79, through their local union, that they are scheduled for a hearing on a possible exemption from the provisions of Chapter 435 on August 27, 1997. I have reviewed the documents of these individuals and I have found, without exception, that the charges which served as the basis of potential disqualification all occurred prior to October 1, 1995. As I am sure you are aware the provisions of Chapter 435, Florida Statutes, did not become effective until October 1, 1995. Further, the notations are consistent throughout Chapter 435, indicating that the provisions of Chapter 435 shall apply only to offenses committed subsequent to October 1, 1995. It appears that these, and other, employees are being improperly required by the Department to defend themselves against provisions of Florida Statutes which do not apply to them. I wish you would immediately review this concern with your legal department and direct Florida State Hospital to immediately make the affected employees whole and to terminate the pending actions against these employees. Your prompt attention in this matter is very much appreciated. On August 18, 1997, Dr. Awad responded to Mr. Buri’s inquiry through correspondence, in which Dr. Awad stated: The concerns expressed in your letter dated August 13, 1997, concerning background screenings were reviewed approximately a year and a half ago by an agency statewide workgroup, which included several background screening coordinators, District Legal Counsels, and attorneys from the General Counsel’s office. The legal research from that group resulted in the issuance of Agency policy addressing this and other statewide issues. In response to a question similar to that raised in your letter, Agency policy is that although Section 64 of Chapter 95-228, Laws of Florida, states that “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date,” it applies only to the new criminal offense of “Luring or enticing a child” created by Section 1 of the law and does not apply to screening provisions. Therefore, in accordance with established principals [sic] of statutory construction, a person being rescreened after 10-1-95, must meet the requirements of the law in effect as of the date of the rescreening, which includes the broadened offenses, just as a new job applicant must meet such requirements. If you have any further questions concerning this matter, you may wish to have your attorney discuss this with the Agency’s General Counsel. The exemption hearings before Respondent were held on August 27, 1997, leading to the grant of exemptions for some Petitioners, and denial for others. Through their Petition to determine the invalidity of a “Rule," Petitioners allege and request the following relief: Although Chapter 435 of the Laws of Florida concerning employment screening specifically states that it applies to offenses committed on or after October 1, 1995, the Respondent applies employment screening to all employees and to all offenses regardless of the date of the offense. The Respondent articulated this policy of application in correspondence addressed to Theodore R. Buri from John Awad dated August 18, 1997,. . . The Respondent’s policy, as more fully described above, is a 'Rule' within the meaning of Section 120.52(16), Florida Statutes, because it is an 'agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of the agency.' Id. This rule should be declared an invalid exercise of delegated legislative authority for the following reasons: The above described rule has not been adopted in substantial compliance with Section 120.54, Florida Statutes; The Respondent has no statutory or rule authority to adopt the above described rule as applied to offenses predating October 1, 1995, thus the rule violates Section 120.56, Florida Statutes. The rule imposes a civil penalty against the individually named Petitioners for which there is no specific statutory authority. The rule is arbitrary and capricious as applied to offenses predating October 1, 1995, and thus violates Section 120.56, Florida Statutes. The rule adversely affects the Petitioners' substantial interest in continued employment in a position of 'special trust.' The rule is an unconstitutional impairment of the contract of employment. It unfairly burdens the Petitioners and others similarly situated with the duty to timely request and prove by clear and convincing evidence that [sic] either an entitlement to an exemption from disqualification or that the records are inaccurate. It is an oppressive and unreasonable condition of employment. As a penalty attached to an offense committed prior to October 1, 1995, the Rule is unlawful as an ex post facto law. The immediate removal from a position of trust before an employee may be heard denies the employee due process. The rule attacks a protected property and liberty interest of the individually named Petitioners and those similarly situated. The Agency’s actions against the Petitioners based on the Rule stigmatizes the employee. Petitioners also request that they be granted costs and attorneys fees pursuant to Section 120.595(3) and (4), Florida Statutes (Supp. 1996). Chapter 95-228, Laws of Florida, referred to by Dr. Awad in his August 18, 1997, correspondence to Mr. Buri, created Chapter 435, Florida Statutes.
The Issue This is a rule challenge proceeding pursuant to Section 120.56(4), Florida Statutes, in which the Petitioners and the Intervenor assert that they are substantially affected by an agency statement that violates Section 120.54(1)(a), Florida Statutes. The subject matter at issue here concerns the method of determining the order of layoff of some of the Respondent's employees.
Findings Of Fact Stipulated facts In 1996, the federal government modified and/or reformed welfare to require eligible participants to obtain employment. The Florida Legislature enacted Chapter 414, Florida Statutes, also known as the WAGES law, which required the Respondent to provide certain services to applicants for and participants in the WAGES program, including work activities, training, and other job-related services, which the Respondent termed "front-end services." Those services were primarily provided by Career Service employees of the Respondent. In 1998, the Florida Legislature amended portions of the WAGES law to require that local WAGES coalitions, instead of the Respondent, provide those front-end services to WAGES participants, effective October 1, 1998. As a direct result therefor, the Respondent was required to lay off approximately 700 career service employees. As a part of the implementation of the announced layoff of employees, Respondent requested approval of a method of determining the order of layoff, pursuant to Rule 60K- 17.004(3)(g), Florida Administrative Code, which provides: (g) Agencies shall then choose and consistently apply one of two methods, or another method as approved by the Department of Management Services, in determining the order of layoff. These methods are commonly referred to as "bumping." Option 1: The employee at the top of the list shall have the option of selecting a position at the bottom of the list based on the number of positions to be abolished, e.g., 20 positions in the affected class, 5 positions to be abolished. The employee at the top of the list can select any of the positions occupied by the 5 employees at the bottom of the list. The next highest employee on the list then has the option of selecting any of the positions occupied by the 4 remaining employees at the bottom of the list with the process continuing in this manner until the 5 employees at the top of the list have exercised their option. Option 2: The employee at the top of the list has the option of selecting any position occupied by any employee on the list with fewer retention points in the class. The next highest employee and remaining employees shall be handled in a similar manner until the list is exhausted. Rather than selecting Option 1 or Option 2, set forth in the published rule, the Respondent requested approval of an alternative method of determining the order of layoff. By letter dated August 17, 1998, the Department of Management Services (DMS) approved the method of determining order of layoff set forth in its correspondence. The method of determining the order of layoff is described by DMS in its approval letter as: The option you have chosen will allow adversely affected employees to select any position in the affected class and series, in the competitive area approved in our August 5, 1998 letter. Neither the Respondent's request for approval of the alternate method of determining the order of layoff, nor DMS' approval of that method, have been adopted in substantial conformity with Section 120.54, Florida Statutes. The Respondent's request for approval of the alternate method of layoff was intended to apply solely to the layoff occasioned by changes in the WAGES law. Facts based on evidence at hearing Florida Public Employees Council 79, AFSCME, is the certified bargaining agent for approximately 67,000 career service employees of the State of Florida. As such, it represents the employees of the Department who were affected by the subject layoff. The individual Petitioners, Betty Hall, Diana Lomas, Mercedes Valdez, and Elizabeth Judd, are members of the AFSCME collective bargaining unit. The challenged bumping procedure was not reached by collective bargaining. Under the alternative layoff method approved for the Respondent by DMS, employees with the greater number of retention points received enhanced bumping rights, permitting them to "bump" employees with fewer retention points in the same class and in the class series. Conversely, by this alternative procedure, employees with fewer retention points were accorded diminished protection against bumping. These employees could be bumped not only by employees with greater retention points in the class, but also by employees with greater retention points in other classes in the class series. For example, Consuelo Casanovas, from Petitioners' Exhibit 8, who was adversely affected in her position of Employment Security Representative I, was accorded bumping rights to positions in her class and to positions in the other two classes in the class series, Customer Services Specialist and Interviewing Clerk. Had the Respondent elected Option 1 or Option 2 in the published rule, Rule 60K-17.004(3)(g), Florida Administrative Code, Ms. Casanovas would not have had the right to bump to positions in the other two classes, and persons in those other two classes would not have been subject to bumping by Ms. Casanovas.1
