The Issue The issue is whether Charles C. Burlingame's request to purchase and upgrade prior regular service with the City of Panama City under the Senior Management Service Class should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this retirement dispute, Petitioner, Charles C. Burlingame (Burlingame), seeks to have certain prior service with Petitioner, City of Panama City (City), upgraded under the Senior Management Service Class (SMSC) so that his retirement benefits will vest at an earlier date. Respondent, Department of Management Services, Division of Retirement (Division), has denied the request on the ground that "the duties of [Burlingame's former] position were different from the duties of [his] current position," and that under these circumstances, Section 121.055(1)(i), Florida Statutes (1997), required that the request be denied. Burlingame was first hired by the City on February 14, 1994, as Human Resources Director/Safety. As such, he was one of approximately 16 City department directors. At that time, Burlingame was enrolled in the "regular" class of the Florida Retirement System (FRS). In 1998, the Legislature authorized local governments (as well as state agencies) who employed at least 200 individuals to designate an additional employee under the SMSC. Because the City employed that number of individuals, it was allowed to designate another employee for SMSC. Burlingame was selected as the employee, and he was promoted to a new position with the title Assistant City Manager/Human Resources/Safety Director. At the same time, his old position was abolished. In conjunction with his promotion, Burlingame prepared a job description for his new position. The old and new duties are described in the documents attached to Respondent's Exhibit 2. They reflect, at least on paper, that the functions and illustrative duties of the two positions are not identical. For example, in his new position, Burlingame is now in charge when the City Manager is absent from the City. He also assists the City Manager "in directing the overall operations of the City," as well as performing his former duties. According to Burlingame, however, these new duties account for no more than five percent of his total duties. The remainder coincide with the duties performed under his old position. Under the terms of the City's retirement system, the retirement benefits for a SMSC employee vest after 7 years of service, while a regular employee does not vest until after 10 years of service. Therefore, Burlingame wished to upgrade his prior service between February 14, 1994, and September 29, 1998, when he was changed to SMSC, since this would allow him to vest in fewer years. It would also allow him to accumulate more retirement points (2 per year) under the FRS for each year of service than he would have earned as a regular employee (1.6 per year). When Burlingame was approved for membership in the SMSC in October 1998, the City began processing an application with the Division on his behalf for the purpose of determining the "cost to upgrade past service to [SMSC] to 2-14-94." Because of a large backlog of work caused by Deferred Retirement Option Program applications, the Division was unable to act on Burlingame's request until the early fall of 1999. After the City made several inquiries concerning its pending request, a Division Benefits Administrator, David W. Ragsdale, wrote the City on September 15, 1999, and advised that "[s]ince the position Mr. Burlingame filled as Human Resources/Safety Director had different duties than the Assistant Manager/Human Resources/Safety Director, he is ineligible to upgrade because the position of Human Resources/Safety Director no longer exists." This was followed by another letter on November 4, 1999, which reconfirmed the earlier finding and offered Petitioners a point of entry to contest the proposed action. Petitioners then initiated this proceeding. There is no rule or statute which provides that if the job duties of a position upgraded from regular to SMSC do not remain the same, prior regular service cannot be upgraded. However, since the inception of the SMSC in 1987, the Division has consistently ascribed that meaning to the words "within the purview of the [SMSC]" in Section 121.055(1)(i), Florida Statutes (1997), and Rule 60S-2.013(2), Florida Administrative Code. Thus, if the new duties are "not within the purview" of the past regular service class, that is, they are different in any respect, the employee cannot purchase and upgrade the prior service. This interpretation of the statute and rule was not shown to be clearly erroneous or outside the range of possible interpretations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioners' request for an upgrade of Charles C. Burlingame's service under the Senior Management Service Class. DONE AND ENTERED this 21st day of March, 2000, in Tallahassee, Leon County, Florida. COPIES FURNISHED: DONALD R. ALEXANDER 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 21st day of March, 2000. A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Cecilia Redding Boyd Bryant & Higby, Chartered Post Office Box 860 Panama City, Florida 32402-0860 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The matter presented here for consideration concerns the termination of the Petitioner, George Nelson, from his employment with the Respondent, State of Florida, Department of Agriculture and Consumer Services, premised upon the purported authority set forth in Rule 22A-13.04, Florida Administrative Code, following the Petitioner's alleged decision to qualify as a candidate for office in the State of Florida, without first gaining permission of the appropriate authorities as set forth in Subsection 110.233(4)(a), Florida Statutes, and Chapter 22A-13, Florida Administrative Code.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the petitioner notified the Respondent of his intention to run for a School Board seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Joint Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the petitioner that he would not be allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the petitioner determined to offer his candidacy without the permission of his agency head, and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by a Joint Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the petitioner to inquire why the petitioner had offered his candidacy without permission of the agency. The petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as Joint Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Joint Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the School Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the petitioner were ones of resignation from his position as Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the School Board of Wakulla County and also -he concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the Department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that he had not. Subsequent to that latter conversation with Wood, the petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Joint Exhibit No. 5. This letter informed the petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1980, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. That correspondence from Carl T. Dierking, Chief of Personnel Management and Employee Relations for the Department of Agriculture and Consumer Services, went on to say that in view of the Petitioner's decision to qualify as a candidate being made after the request to allow him to run had been initially denied by the Department and in keeping with Rule 22A-13.032, Florida Administrative Code, that the Petitioner could request an administrative hearing "toward obtaining an additional review of your situation." This request was to be forwarded through Robert Chastain, Esquire, General Counsel, State of Florida, Department of Agriculture and Consumer Services. After August 15, 1980, the petitioner was removed as a permanent party Career Service employee with the Respondent. On August 27, 1980, the Petitioner corresponded with Mr. Chastain through a letter which stated, "I would like to have an appeal of my dismissal of August 15, 1980, reason, not just cause." A copy of this petition letter may be found as Joint Exhibit No. 6 admitted into evidence. In turn Mr. Chastain contacted the Director of the Division of Administrative Hearings requesting that a Hearing Officer be assigned and a hearing be set. A copy of that correspondence addressed to the Director of the Division of Administrative Hearings may be found as Joint Exhibit No. 7, admitted into evidence. Through that correspondence, Mr. Chastain expressed his opinion that Rule 22A-13.032(1), Florida Administrative Code, provides that an employee has the right to a Section 120.57, Florida Statutes, hearing. Subsequent to the case assignment herein, the Petitioner through his counsel has filed a rules challenge to the Rules 22A-13.04 and 22A-7.10(4)(a), Florida Administrative Code, which may be found in the Division of Administrative Hearings Case No. 80-1925R. In addition, the Petitioner in Division of Administrative Hearings Case No. 80-2049R has attacked the Joint Exhibits Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. In fact, the Petitioner's duty assignment as a forest ranger would conflict at times with his function so School Board Member, in that some of the meetings of the School Board would be held at times when the Petitioner was actively on duty. In addition, the Petitioner is also on call and required to be available in his off-duty time should an emergency arise requiring his assistance as a forest ranger. The petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary forest ranger at this time.
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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 Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
Findings Of Fact At all times relevant, Petitioner was employed as a Clerk Typist with Respondent. Petitioner did not report to work on February 3, 4 and 5, 1988. Respondent's leave policy is that leave should be requested in advance; if an employee gets sick, he or she needs to call in. Petitioner had not requested leave prior to February 3, 1988. On February 3, 1988, Ms. Lester, a co-worker of Petitioner's received a telephone call from a Ms. Williams who stated that Petitioner was in the hospital. Ms. Baker, Petitioner's supervisor, called three hospitals in the area and none had a Ms. Stanyard listed as a patient. Also, she contacted Ms. Stanyard's brother and another person, neither of whom had any knowledge of Petitioner's whereabouts. Finally, Ms. Baker went to Ms. Stanyard's home, but could not find Ms. Stanyard. As of the end of the day on February 5, 1988, Petitioner had not contacted her supervisor or her office.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Administration issue a final order ruling that Petitioner abandoned her position and resigned from the career service. DONE and ORDERED this 29th day of September, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 29th day of September, 1988. COPIES FURNISHED: Ms. Ethelda Stanyard 7855 Wilson Boulevard Apartment 17 Jacksonville, Florida 32210 Scott D. Leemis Assistant District Legal Counsel Post Office Box 2417 Jacksonville, Florida 32231-0083 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Agustus D. Aikens, Jr. Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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
The Issue Whether Petitioner, pursuant to Rules 22A-7.010(2)(a) and 22A-8.002(5)(a)3, Florida Administrative Code, abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Emily D. McGee, was employed by the Respondent, Department, as a Public Assistance Specialist II in the Department's Medically Needy Unit #87 in New Port Richey, Florida. In that assignment, Petitioner's immediate supervisor was Public Assistance Specialist Supervisor Dorothy White. It is established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. On April 13, 1990, Petitioner was overcome with job stress and was admitted to a residential mental health care facility for four days, which was drawn against Petitioner's earned sick leave. Subsequent to her release, she received outpatient psychological therapy at the Center for the Treatment of Depression in New Port Richey, Florida, with Howard L. Masco, M.D., as her treating physician. On April 20 and again on April 25, 1990, Petitioner was advised by White that in order to properly draw against earned sick leave she must provide a doctor's statement that she was disabled and unable to perform her duties and the projected date of her return to work. On April 25, 1990, a doctor's statement was received, but it did not contain a projected date of return. On April 26, 1990, Petitioner applied to draw against the District V Sick Leave Pool, beginning on May 1, 1990 for an indeterminate period of time. This request was denied by the Committee Administrator. On May 9, 1990, White advised the Petitioner, telephonically and in writing, that her request to draw against the sick leave pool was denied. If she was unable to return to work, Petitioner must submit a written request for leave without pay for her current absence from work, with a beginning date of May 4, 1990 and a projected date of return to work. A physician's statement would also be required. After a period of misunderstanding, a written request with a physicians' statement was submitted by the Petitioner and Leave Without Pay was approved on June 18, 1990 retroactive to May 4, 1990. The physician's statement, dated May 18, 1990, stated that Petitioner has been unable to work since her hospitalization on April 13, 1990 and was still unable to work at the present time. Dr. Masco indicated that he was unable to determine when Petitioner would be able to return to work but that the present diagnosis was depression. Petitioner was advised, in writing, that additional leave could not be granted beyond July 17, 1990 and that Petitioner was required to return to work with medical certification at that time as to her ability to perform her assigned job functions. On the dates between July 18 and July 20, 1990, inclusive, Petitioner neither appeared at work nor informed her supervisor or anyone at HRS that she was going to be absent or was medically unable to return to work. No leave was authorized for her. This period constitutes in excess of three consecutive workdays of absence without approved leave. By letter dated July 27, 1990, Petitioner was advised in writing by the District Administrator that her failure to return to work on July 18 and thereafter constitutes abandonment of position. At the hearing, Petitioner attempted to show that her disability continued beyond July 20, 1990 and up to the present day, and that she had no intention of abandoning her position. That in fact she was physically unable to perform her duties due her continuing stress and depression.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Emily D. McGee, abandoned her position with the Department of Health and Rehabilitative Services and resigned from the Career Service when, on July 18, 19 and 20, 1990, without authority, she absented herself from her workplace for three consecutive days. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1991. COPIES FURNISHED: Emily D. McGee Post Office Box 1223 Port Richey, Florida Thomas W. Caufman, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida John Pieno, Jr. Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the transfer of John Jackson, Sr., be sustained. DONE and ORDERED this 24th day of May, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. John Jackson, Jr., Department of Environmental Regulation 2551 Executive Center Circle, West Lafayette Building Tallahassee, Florida 32301 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.
Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 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
