The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th day of February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
The Issue The central issue in this cause is whether Petitioner abandoned his position and thereby resigned his career service position at Children, Youth, & Families Services.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner was employed as a counselor working with the District XI Children, Youth, & Families (CYS) Services. Petitioner was assigned to monitor approximately twenty-five foster care children. After some past employment disputes, Petitioner was reinstated by the Department effective March 31, 1987. Petitioner returned to work on April 17, 1987, however, he was not satisfied with the working environment. In a memorandum dated April 22, 1987, Petitioner alleged: The same pattern of capricious, arbitrary and discriminatory practices which led to my previous illegal dismissal from services at a time I was disable, as the result of an accident which had occurred while fulfilling my duties for this Department, are still present. All my fundamental rights have been thoroughly violated. Even workman compensation has been denied to me. With so painful experience and in light of outstanding losses I have consequently suffered, any idea of subsidizing HRS with my own car, car insurance, car repairs and advance funding for gasoline purchase as an obligatory condition for employment at CYF is being rejected as unfair practices; and violate the equal Employment Opportunity Laws. Various efforts made to have this abusive situation corrected have been met with the flagrant opposition of fierce administrators of this department, totally obstinated not to let fairness and logic prevail. In light of all these facts, it is my conclusion that my interests can be better preserved by my abstention from any involvement at HRS until these matters are properly attended by your diligence in the best of the delays, or by a court of law. In consequence effective Friday April 24, 1987 I have decided to temporarily not to be in attendance at Unit 462 Foster Care. In response, the District Program Manager for Social Services, Frank Manning, wrote to Petitioner on April 23, 1987, and advised him that failure to report to work as scheduled would be cause for action pursuant to Chapter 22A- 7.010(2). Petitioner failed to appear or to call in to work for hour consecutive work days, to wit: April 27-30, 1987. Petitioner was not authorized to take leave during the time in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration enter a Final Order affirming the decision that Petitioner abandoned his position and thereby resigned from the Career Service. DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1988. COPIES FURNISHED: Morton Laitner, Esquire Dade County Health Unit 1350 North West 14th Street Miami, Florida 33215 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Louis C. Germaine 308 Northeast 117th Street Miami, Florida 33161 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
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
Findings Of Fact Respondent was employed by the Brevard County School District on January 15, 1990, as a Secretary III, Classified. She was assigned as secretary to Margaret Lewis, Director of Vocational Education. Classified employees are distinguished from certified employees who are teachers or administrators who hold teaching certificates. Respondent's duties included typing, handling and filing documents and correspondence, keeping budget and payroll records, copying and receiving incoming phone calls to the Department of Vocational Education. For approximately six months, Respondent and her supervisor had a good working relationship. Both were new to the Brevard County School District, and Margaret Lewis felt that together they could make positive changes in the unit. Respondent's personnel evaluation dated March 15, 1990, rates her in the "exceptional high" range in every category, with the highest possible rating being given in the categories, "work attitude," "cooperativeness," "personal appearance" and "tardiness." Something happened in the summer of 1990 around the time that the unit was moving from its office in Rockledge to the new district building in the Brevard County Governmental Center at Viera. The relationship between the two women rapidly deteriorated, a phenomenon observed by co-workers and the assistant superintendents, including Margaret Lewis' supervisor, Daniel Scheuerer. The circumstances were confusing, even to Jerry Copeland, Assistant Superintendent of Personnel Services. None could pinpoint the cause of the rift, although both Ms. Cooper and Ms. Lewis offered their own theories. Ms. Cooper described her supervisor arriving at work one morning crying and upset over some domestic situation. She went into Ms. Lewis' office with her and urged her to go home. Ms. Lewis eventually did leave and was gone for several days. Upon her return, Ms. Cooper felt that Ms. Lewis was very cool toward her and began communicating with her through notes or through messages to other staff. Ms. Lewis believes Ms. Cooper's work attitude changed radically after she was passed over for a secretarial position in the School Board attorney's office. On two occasions, Ms. Cooper approached Abraham Collinsworth, the Superintendent, with concerns she had about Margaret Lewis. Mr. Collinsworth referred the matter back to Dr. Scheuerer, Ms. Lewis' supervisor and the Assistant Superintendent for Instructional Services. Dr. Scheuerer told the superintendent that he had a very disruptive situation with loud conversations and people not feeling good about each other. During the several months period, July through September 1990, Dr. Scheuerer met with the women individually and together. Ms. Cooper complained that Ms. Lewis required her to make too many copies of things, that she communicated with her through yellow stickers, "post-it" notes, and that she, Ms. Lewis, would not tell her where she was going. Dr. Scheuerer counselled Ms. Cooper to adapt to her supervisor's way of doing things and also made suggestions to Ms. Lewis of ways to improve communications, for example, allowing her secretary to keep the calendar. The meeting he had with both women together was very unpleasant. It was obvious that there was a lot of hostility and animosity, tension and stress between the two. Generally, however, Ms. Lewis conducted herself in a professional manner. Ms. Cooper kept a tape recorder that she used to play subliminal tapes. Ms. Lewis felt that she was using the tape recorder to tape their conversations. Ms. Lewis felt that Ms. Cooper spent an inordinate amount of time away from her desk and abused break periods. Ms. Cooper said that she was making deliveries or copying. Ms. Lewis begin writing notes of their confrontations in order to avoid getting emotionally involved. This seemed to inflame Ms. Cooper. Ms. Cooper's reaction to direction was often either a sullen shrug or a verbal retort. Ms. Cooper felt Ms. Lewis gave her conflicting or serial requests. She also kept notes of their interactions. Early on the morning of October 8, 1990, several employees in the area of Ms. Cooper's and Ms. Lewis' office overheard a verbal confrontation between the two. Ms. Cooper had her voice raised and when Ms. Lewis asked her not to talk so loud, she replied she wanted everyone to hear. It was obvious to Daniel Scheuerer, who also overheard part of the confrontation, that Ms. Cooper was the one doing the yelling. On October 9, 1990, Ms. Lewis gave Ms. Cooper the following written reprimand: This is a formal letter of reprimand as a result of your unacceptable behavior on the morning of October 8, 1990. It is being issued as a result of your intentional (you stated that you wanted to be heard by everyone when I asked you to lower your voice) vociferous and disruptive shouting at me in your work area and the disrespect which you displayed toward me as your supervisor after I had made reasonable requests. This type of behavior is unacceptable, disturbing and disruptive to the work effort of the department and the entire area. This is to inform you that any similar outburst of this matter will result in your immediate termination. CC: Personnel File (Petitioner's exhibit No. 5) Sometime around the end of September, or early October, Karen Denbo, the district Equal Employment Opportunity Officer, had a secretarial position open that would have been a lateral transfer (same level, same pay) for Janice Cooper. She applied, and Dr. Scheuerer asked Ms. Denbo to interview Ms. Cooper. Ms. Denbo asked if he was telling her to hire Ms. Cooper. Dr. Scheuerer was given the impression by both Ms. Cooper and Ms. Denbo that they had misgivings about Ms. Cooper performing in a position requiring a lot of technical filings for which there would be no training. Ms. Cooper was not offered the transfer and no other efforts were made to find Ms. Cooper alternative employment. On October 26, 1990, Ms. Lewis gave Janice Cooper a memorandum titled "Job Expectations." It informed her that her supervisor had concerns regarding job performance, relationships with other employees, work attitude and failure to follow administrative directives. It directed her to take specified times for break and it stated she must be accurate, careful, effective and courteous. It stated that her performance was not satisfactory and warned that "failure to make necessary adjustments will result in additional disciplinary action." (Petitioner's exhibit No. 6) On November 1, 1990, near the end of the work week, Ms. Lewis needed some coping done and could not find Janice Cooper. She filled out a copy request form and put Ms. Cooper's name as the contact person. Ms. Cooper returned and Ms. Lewis asked if the form was completed properly. Ms. Cooper looked at it and then replied, "It if says what you want it to say, then its alright." After Ms. Lewis returned to her office, Ms. Cooper followed her in and said if she was going to use her name she needed to get her permission first. As Ms. Lewis began writing down Ms. Cooper's comments, Ms. Cooper reached across the desk, knocking off pencils and paper, and tore the paper out of her hand. Ms. Lewis reached for the phone and asked Dr. Scheuerer to come immediately. Ms. Cooper left and did not return until November 5th, after the weekend. In the meantime, Ms. Lewis met with Dr. Scheuerer; the Assistant Superintendent of Personnel, Jerry Copeland; and the Labor Relations Director, Bob Barrett. Upon Ms. Cooper's return to work, Ms. Lewis called her in to her office. Bob Barrett was also present. She was given this letter: November 5, 1990 Ms. Janice Cooper, Secretary Vocational Education Department Dear Ms. Cooper: This is to inform you that your employment with the School Board of Brevard County is terminated effective immediately, November 5, 1990. The reason for this termination is your unsatisfactory performance. You have been counseled and warned on several occasions regarding the need to improve your performance. On October 26, 1990, you were provided a memorandum which outlined your responsibilities and gave you direction for improving your performance. You were notified that your performance was unsatisfactory and that your failure to make the necessary adjustments would bring additional disciplinary action. Since October 26, 1990, your performance has continued to deteriorate to the point that your unwillingness to make the effort required to function as a Secretary III necessitates this action. Prior to your departure from the work site today, you should turn in any keys or other such School Board material which was issued to you to uses in your job. Sincerely, Margaret Lewis Director, Vocational Education (Respondent's Exhibit No. 2) (emphasis in original) When asked if she had anything to say, Ms. Cooper made no response and refused to acknowledge receipt of the letter. She was directed to collect her personal items and to leave the office. With guidance from the State Department of Education, the Brevard County School District has a policy of discipline of all employees which it calls, "NEAT." The acronym stands for the right to "Notice," followed by "Explanation," followed by "Assistance," within a reasonable "Time." If the deficiencies are not corrected at the end of this process, the employee may be terminated. The School Board's adopted rule 6Gx5-7.05, provides in pertinent part: Suspension/Dismissal. A certificated employee may be suspended or dismissed at any time during the work year pursuant to provisions set forth in Florida Statute 230.33(7)(h), 231.36(4)(6) and the Rules of the Educational Practices Commission. A classified employee may be dismissed for cause. The immediate supervisor shall suspend the employee and notify him/her in writing of the recommendation for dismissal, stating the cause. Termination Date. The effective date of any termination of employment or suspension shall be the last day on which the employee works. (Respondent's Exhibit No. 1) In addition to the above, the School Board's administrative staff acknowledge an employee's right to a pre-termination process that gives her an opportunity to explain why she should not be terminated. The record in this proceeding establishes that Janice Cooper was insubordinate on several occasions. She yelled at her supervisor, disrupting the workplace; she refused to follow instructions or was insolent; and finally, she virtually assaulted her supervisor when she grabbed the paper and tore it up. There is little specific evidence, however, of her poor job performance. Her only evaluation during the ten months of her employment was exceptionally positive. The "Job Expectations" memorandum was provided four days before the incident leading to Ms. Cooper's separation, which incident was plainly insubordination or misconduct, but not "poor job performance." The administrative staff make no apparent distinction between "termination" and "suspension" as both are separations from employment; and they do not view Ms. Lewis' letter, therefore, as a violation of the policy described in paragraph 18 above. Practically, there is no distinction, as no separation is final until the Board takes its action. In the meantime, the employee is no longer on the payroll. In Ms. Cooper's case, the time off of the payroll has been two years, most of which time has been the result of circumstances beyond the control of the School Board. Neither before, nor immediately after her termination by Margaret Lewis, was Janice Cooper offered reasonable opportunity to explain why she should not be terminated. She was given the letter and asked if she had a response. The letter states that termination is a fait accompli. She did not respond, and was told to leave. No evidence was presented as to the need to take immediate action. Both the district and Ms. Cooper could have benefited from a brief cooling off period; the district, by taking the time to draft a letter reflecting the proper cause for its action; and Ms. Cooper, by having an opportunity to reflect on her employment jeopardy and to prepare a response. The district presented evidence sufficient to support a finding of cause to terminate Ms. Cooper. It did not, however, prove that the cause was "poor performance." For that reason, and because the employee was not offered a reasonable opportunity to respond, the termination procedure was fatally flawed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Brevard County enter its final order reinstating Janice Cooper to full back pay and benefits from November 9, 1990, until and including October 7, 1992, and approving her termination effective October 7, 1992. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January 1993. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1993. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in Paragraph 1. Adopted in Paragraph 3. Adopted in Paragraph 4. Adopted in substance in Paragraph 7. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 8. Adopted in substance in Paragraph 10. Adopted in substance in Paragraph 11. With the exception of the October 26, 1990 memo, the facts proposed here are rejected as unsupported by the weight of evidence. Poor performance was not proven, nor was it proven that Respondent was taping conversations, rather than playing her own "subliminal tapes." Adopted in substance in Paragraph 14. Adopted in substance in Paragraph 16. Rejected as irrelevant and immaterial. Moreover, there was some mention of a grievance, but no evidence of what this process was or whether it was actually filed and withdrawn. Adopted in Paragraph 17. Rejected as contrary to the weight of evidence, as to unsatisfactory job performance, which is distinguished, according to the School Board's witness, from "insubordination" or misconduct. (Transcript, p. 70-71) Rejected as contrary to the weight of evidence. Respondent's Proposed Findings Adopted in Paragraph 1. Adopted in substance in Paragraph 16. Adopted in Paragraph 18. 4-8. Rejected as argument or conclusions, or summary of testimony rather than discrete findings of fact. Some of those arguments and conclusions have been adopted in the conclusions of law herein. COPIES FURNISHED: Harold T. Bistline, Esquire Building E 1970 Michigan Avenue Cocoa, Florida 32922 F. Michael Driscoll, Esquire Suite 58 3815 North Highway One Cocoa, Florida 32926 Abraham L. Collinsworth, Superintendent Brevard County School Board 2700 St. Johns Street Melbourne, Florida 32940-6699 Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue presented is whether Petitioner is entitled to retirement service credit for certain additional periods of time.
Findings Of Fact Petitioner was employed by the Miami-Dade County Public Health Trust--Jackson Memorial Hospital (Dade County) in September 1970 as a full-time employee. As such, he was eligible to earn service credit for retirement. Dade County is an employer in the Florida Retirement System (FRS). Petitioner is a member of the FRS. There are approximately 870 employers within the FRS, and approximately 600,000 employees are members of the FRS. In the late 1990s the FRS began sending to each member an annual statement regarding that member's retirement account. The statement also advised that a member of the FRS could request an audit of that member's account at any time. The FRS sent these statements to the employing agency for distribution to that agency's employees who were members of the FRS. The procedure changed in 2000 after the FRS obtained member-employees' addresses. Statements were subsequently sent by the FRS directly to each member-employee. Prior to July 1, 1979, the employing agency determined which of its employees were eligible for membership in the FRS. On that date a new rule promulgated by Respondent became effective. Thereafter, the FRS determined which employees were eligible. At the time of the final hearing in this cause, Petitioner had 34.83 years of service for which he had obtained retirement service credit. He was not given retirement service credit, however, for the time periods of January 11, 1976, through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. In this proceeding, Petitioner seeks retirement service credit for these additional three time periods. What benefits an employee receives is within the discretion of the employing agency. Similarly, how an employee is categorized, and what budgetary item or code an employee is paid from, is within the discretion of the employing agency. During the time periods in question Dade County used four different budget codes or statuses for paying its employees. Budget codes 1 and 2 signified regular full-time employees. However, budget codes 3 and 4 signified employees in temporary, part-time, or summer positions, the equivalent of the State of Florida's other personnel services category. Those employees within budget codes 1 and 2 received retirement service credit, but those within budget codes 3 and 4 did not and were not eligible. Petitioner's personnel file contains a copy of Dade County's Advice of Personnel Action form dated January 11, 1976, changing his status from full-time to part-time and placing him in budget status 3. Another Advice of Personnel Action form dated May 2, 1976, changed his status from part-time back to full-time and placed him in budget status 1. A third Advice of Personnel Action form dated August 22, 1976, changed Petitioner's status from full-time back to part-time and placed him in budget status 3. A Payroll--Employee Master Record shows that on May 29, 1977, Petitioner was promoted from a respiratory therapy tech 2 to a respiratory therapist, but his status remained part-time. A second Payroll--Employee Master Record shows that Petitioner was changed from part-time back to full- time on August 7, 1977. Petitioner admitted during the final hearing in this cause that there were times when he was given reduced hours of work at his request. His personnel file indicates the impact of his requests. Although he had been hired as a regular, full- time employee, during the time periods in question, he was only a part-time employee. Contrary to his testimony, Petitioner's personnel file reflects that he was aware at the time that his periods of part- time employment did not provide him with retirement service credit. His file contains a copy of a form enrolling him in the FRS signed by him on August 17, 1977. The form provides that Petitioner was employed by Jackson Memorial Hospital from September 14, 1970, through January 11, 1976, and again from May 16, 1976, through August 22, 1976. The file also contains a second FRS form which he signed on September 17, 1976, indicating that the reason he was submitting it was that he was going to full-time employment from part-time. Accordingly, Petitioner knew that he was not accruing continuous retirement service credit and understood that he needed to enroll in the FRS whenever he changed from part-time employment back to full- time. A one-page payroll register submitted by Petitioner as one of his exhibits in this proceeding covers one of the time periods in question. Although it shows that Petitioner paid for insurance and union dues, it does not reflect any information regarding retirement and, therefore, cannot support the implication that Petitioner suggests, i.e., that he is entitled to retirement service credit. Petitioner was careful to re-enroll in the FRS whenever he changed to full-time employment with Dade County. Similarly, Dade County changed the budget code each time Petitioner changed his employment status, which indicates an appropriate budget code was specifically selected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for retirement service credit for the time periods of January 11, 1976 through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. DONE AND ENTERED this 27th of October, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th of October, 2006. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Luis J. Morrina 6211 Southwest 161 Avenue Southwest Ranches, Florida 33331 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Steven S. Ferst, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
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
Findings Of Fact On February 4, 1991 the Petitioner met with Peter Bond the Department's Regional Toll Manager for the Tampa Bay Region and Delene Wilson the Department's Toll Facility Supervisor at the Sunshine Skyway Bridge concerning a transfer to the Tampa Bay Region from her then present position as a Toll Collector in Miramar, Florida. As a result of these meetings with Bond and Wilson, Petitioner was offered a position as Toll Collector on the Sunshine Skyway Bridge. The Petitioner preferred the first shift in order to be available to see about her children when they got out of the day care center. Wilson advised the Petitioner that there may be a first shift opening but that unless that worked out there was only a second shift available. Petitioner understood this when she accepted the position and started the process of transferring. As it turned out, the first shift did not become available and Petitioner was placed on the second shift. Additionally, Wilson was able to transfer another Toll Collector from the north end of the bridge to the south end of the bridge so that Petitioner could work the north end which was closer to her home. With everyone thinking that Petitioner's transfer would be effectuated by February 15, 1991, the Petitioner was placed on the work scheduled for February 15, 1991 through February 28, 1991. As it turned out, Petitioner's last day at Miramar was February 26, 1991. As a result, Petitioner was placed on a new work schedule of March 1, 1991 through March 14, 1991. However, because Petitioner had just moved and needed to get things straightened out, Wilson placed Petitioner on authorized leave without pay (Petitioner had no leave time accumulated) for March 1-2, 1991. Petitioner's regular days off would have been March 3-4, 1991 which required her to report for work on March 5, 1991. The Petitioner did not report for work on March 5, 1991 or at any time during the two week work schedule of March 1 through March 14, 1991. Wilson covered the Petitioner's shift on a day to day basis which did cause the other employees some hardship. From March 7, 1991 Wilson called Petitioner on a daily basis but was unable to reach anyone until March 12, 1991 when she talked to Petitioner's husband, Brian and ask that he have Petitioner call Wilson as Wilson needed her to work. Petitioner did not return this call notwithstanding that her husband gave her that message on March 12, 1991. On March 14, 1991, while Bond was in Wilson's office, Wilson called Petitioner and Petitioner answered the phone. When asked why she had not reported to work the Petitioner explained that she was attending school to better herself and that she could not work the second shift because she had no one to take care of her children after they got out of the day care center. During this telephone conversation on March 14, 1991 Petitioner requested a six month leave of absence without pay, Petitioner was advised by Bond, through Wilson, that Petitioner could file for a leave of absence without pay but she must report for work that day or otherwise she would be considered as having abandoned her position and resigned from career service which would result in her termination. Petitioner did not report for work that day, March 14, 1991 and even though she was on work schedule through March 28, 1991 did not report for work any day thereafter through March 28, 1991 when she was advised by Bond of her termination by letter referred to in Finding of Fact 2 above. Petitioner understood that her transfer would not cause a break in service and that any time off had to be on her regular days off or by authorized leave of absence. Petitioner also understood that since she had no accumulated annual leave any leave time would have to be sick leave or authorized leave of absence without pay. Except for March 3-4, 1991, Petitioner neither applied for, nor was granted, any sick leave or unauthorized leave of absence without pay between March 1, 1991 and March 28, 1991. Between March 1, 1991 and March 28, 1991 the Petitioner was attending school and working on jobs other than with the Department that allowed her to work the first shift. There is sufficient competent substantial evidence to establish that Petitioner intended to abandon her position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Department of Administration enter a Final Order (1) finding that Petitioner did abandon her position with the Department and resigned from career service, and (2) denying the Petitioner any relief. DONE and ENTERED this 18th day of October, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Petitioner did not submit any proposed findings of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. As to the receipt of letter it is adopted in Finding of Fact 3. As to reading the letter the date was sometime around April 6, 1991 and in that regard proposed finding of fact 2 is rejected. See Finding of Fact 4. Not material or relevant since the date letter is postmarked controls and that was earlier than May 30, 1991. Covered in Preliminary Statement. - 7. Not material or relevant. Adopted in substance as modified in Finding of Fact 8. - 14. Adopted in substance as modified in Findings of Fact 9, 7, 7, 9, 10, and 9, respectively. Not material or relevant since Wilson had placed Petitioner on authorized leave of absence without pay on March 1-2, 1991. See Finding of Fact 10. - 17. Adopted in substance as modified in Findings of Fact 11 and 12, respectively. Not material or relevant. The first phrase of proposed finding of fact 19 is adopted in substance as modified in Finding of Fact 12. The second phrase of proposed finding of fact 19 is not supported by the record but see Finding of Fact 12. While the record reflects that Petitioner may have been pregnant, the record does not reflect that her pregnancy would have prevented her from returning to work. - 23. Adopted in substance as modified in Findings of Fact 13, 16 and 12, respectively. Not supported by substantial competent evidence in the record. Adopted in substance as modified in Finding of Fact 13. Goes to credibility and not a finding of fact. 27.-28. Adopted in substance as modified in Finding of Fact 14. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Angelita K. Coley Davis 5919 S. Dale Mabry Apt. A Tampa, FL 33611 Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458
The Issue Whether City of Belleair Beach Treasurer Robert K. Hebden was an independent contractor or an employee of the city.
Findings Of Fact The Petitioner City of Belleair Beach (City) is a participating local agency of the Florida Retirement System (FRS) and is subject to the laws applicable to the FRS. The City began participating in the FRS through the adoption of City Ordinance 99 in 1973. The Respondent Division of Retirement (Division) is the state agency charged by statute with the administration of the FRS. On a date unspecified, the Division's Management Review Section audited the City as required by statute. Based on the audit, the Division concluded that Mr. Hebden was not an independent contractor, but was a part time employee of the City. The Division communicated this information to the City by letter of May 27, 1992. The Division's Enrollment Section, responsible for enrolling employees in the FRS, conducted an analysis of the materials obtained by the Management Review Section, and concurred in the initial employment status determination. By letter of October 11, 1993, the Director of the State Division of Retirement notified the City that the Division had determined Mr. Hebden to be have been an employee in a regularly established position for purposes of the FRS from July 1979 through February 1991, and that FRS contributions were due for that period. On October 15, 1993, Mr. Hebden signed an FRS application for service retirement. The application was filed with the FRS. Mr. Hebden completed the application on the suggestion of the Enrollment Section Administrator. Mr. Hebden considers himself to have worked for the City as an independent contractor and would not have filed an FRS application without the request by the enrollment administrator. In concluding that Mr. Hebden was an employee, the Division reviewed all materials furnished by the City. Such materials included copies of contracts, billing statements and IRS forms. At all times, the Division has been amenable to reviewing any additional documents submitted by the City. Beginning in 1972, and continuing to February of 1991, Robert K. Hebden provided various services to the City. Beginning in July 1979, Mr. Hebden served as the City Treasurer. The position of Belleair Beach City Treasurer is established by city ordinance. The position description for the City Treasurer sets forth duties as follows: The treasurer works on a daily basis primarily under the mayor's supervision but is ultimately accountable to the city council. Compiles operating and capital expense estimates for annual budget. Forecasts problem areas of income and expense and proposes possible solutions. Maintains general accounting system and appropriate operating cash balances. Submits to council a monthly detailed statement of revenue and disbursements in contrast with annual budget. Prepares for submission to council a detailed financial statement as of the end of each fiscal year. Invests surplus General Government Funds in conjunction with the Mayor or Deputy Mayor and recommends investment of Sewer Trust Funds in conjunction with the approved Trustee. Provides for payment of bonds and interest and maintains files for cancelled coupons and bonds. Maintains capital assets inventory including acquisition and disposition. Between July 1, 1979 and February 12, 1991, Mr. Hebden was the Belleair Beach City Treasurer. He performed the duties of the position description and such additional duties as were assigned at the discretion of the Mayor and Council. In February 1983, Mr. Hebden and the City entered into a written contract regarding his service as Treasurer. The initial contract was retroactive to October 1, 1982. Prior to this point, Mr. Hebden acted as City Treasurer under an oral agreement with the City officials. The February 2, 1983 contract identifies Mr. Hebden as "the Contractor." The contract is for the one year period of October 1, 1982 to September 30, 1983 and provides as follows: The Contractor will be allowed twelve (12) days of paid sick leave and at times mutually agreeable fifteen (15) days of vacation without adjustment to the monthly fee. Absence in excess of this amount will be adjusted on a prorata basis. The work week will be 8:30 A. M. to 12:30 P. M. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. Services will be reimbursed on a monthly basis at the rate of SEVEN HUNDRED DOLLARS ($700.00) per month, plus an allowance of SEVENTY DOLLARS ($70.00) for expenses upon receipt of a statement. This agreement may be extended beyond the original term of One (1) year upon such terms and conditions as the parties shall mutually agree between them. Beginning with the subsequent agreement dated July 14, 1983, all contracts identify Mr. Hebden as "the City Treasurer" rather than "the Contractor." The July 14, 1983 contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. The duties of the City Treasurer shall include but not be limited to: -compilation of current and capital expense estimates for the annual budget -maintenance of a general accounting system -submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget -preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be EIGHT HUNDRED THIRTY DOLLARS AND NO/100 ($830.00) per month. THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 10, 1984 contract for the one year period to September 30, 1985 is identical to the agreement of July 14, 1983 except that the retainer fee was increased to $900.00 monthly. The July 15, 1985 contract for the one year period to September 30, 1986 is similar to the agreement of September 10, 1984. The retainer fee was increased to $1100.00 monthly and paid leave was again included. The agreement provides as follows: ....In addition, the City Treasurer shall receive three work-weeks vacation annually (allowing for a base figure of 3 work-weeks for the current fiscal year) and twelve work-days sick leave annually (allowing for twelve work-days for the current fiscal year). THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall commence October 1, 1985, and shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 23, 1986 contract for the one year period to September 30, 1987 is substantially similar to the preceding contract, however, an amendment was made to the paid leave provisions. The agreement provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be ELEVEN HUNDRED THIRTY DOLLARS AND NO/100 ($1100.00) per month. In addition, the City Treasurer shall receive three work-weeks vacation annually and twelve work-days sick leave annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned. The August 3, 1987 contract for the one year period of October 1, 1987 to September 30, 1988 is substantially similar to the preceding contract except that the work hours were amended to 8:00 a.m. to 12:30 p.m. and monthly payment was increased to $1300.00. The September 12, 1988 contract for the one year period of October 1, 1988 to September 30, 1989 is substantially similar to the preceding contract except that monthly payment was increased to $1350.00. In 1989, some Council members questioned Mr. Hebden's performance and considered termination of his contract. The September 25, 1989 contract for the one year period of October 1, 1989 to September 30, 1990 is substantially similar to the preceding contract except that the agreement provides "for a six months performance evaluation." Apparently, the concerned Council members were satisfied with the review and the contract was again renewed. The September 10, 1990 contract reflected Mr. Hebden's intention to leave his position. The contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:00 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year * A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be [[THIRTEEN HUNDRED AND FIFTY DOLLARS AND NO/100 ($1350.00)]] <<FOURTEEN HUNDRED FIFTY DOLLARS AND NO/100 ($1450.00)>> per month. In addition, the City Treasurer shall receive [[three work-weeks vacation annually and twelve]] <<three>> work-days sick leave [[annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned.]] <<Annual leave earned through September 30, 1990 and not taken will be paid on completion of this contract.>> [[THIS AGREEMENT shall provide for a six months performance evaluation.]] [[THIS AGREEMENT shall be reviewed annually by the personnel committee of the City Council, the Mayor and the City Treasurer.]] THIS AGREEMENT shall commence October 1, 1985, and shall expire on <<December 31, 1990>> [[September 30 of each year unless renewed by Council prior to that time.]] THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. * Note: In the above quotation, language which has been added is within the <<>>; deleted language is within the [[]]. All the contracts identified herein were between the City and Mr. Hebden personally. Mr. Hebden signed the contracts. Except as otherwise stated herein, the terms of the contracts were negotiated between Mr. Hebden and the City. Mr. Hebden performed all the responsibilities of the contract personally. For a brief period, he was assisted by a man identified as "Mr. Denman," a person employed by the City. He hired no assistants. Mr. Hebden performed his responsibilities according to practices and procedures he created. He was not provided instructions by the City on how to perform his tasks. The City provided no training to Mr. Hebden. Prior to terminating his tenure as City Treasurer, Mr. Hebden trained his successor in the practices and procedures Mr. Hebden had developed. At all times during Mr. Hebden's employment with the City, he worked the hours specified by the contracts in his office at City Hall. Mr. Hebden testified that he could not recall how his office hours had been determined. The space was provided by the City. The responsibilities of Mr. Hebden's position required utilization of city records, and it was therefore appropriate for such tasks to be performed in an office at City Hall. All furnishings for the office and materials used in performing his tasks were provided by the City. During the period between July 1979 and February 1991, Mr. Hebden submitted to the City statements for payment. Generally, the statements were submitted on a monthly basis. Mr. Hebden had no risk of profit or loss based on any actions of the City. He had no personal investment in the City. Mr. Hebden was paid according to the terms of the contract. He did not receive additional remuneration for his appearance at or participation in Council meetings, work sessions or committee meetings as directed by the Council or Mayor. In the first written contract, Mr. Hebden received a payment for "expenses" in addition to the monthly remuneration. Additionally, Mr. Hebden was reimbursed for personal expenses related to City business use of his car and his boat. Although only one formal performance evaluation was completed during his service, the contracts provide for annual review, except for the final contract which terminated Mr. Hebden's service to the City. Upon said termination, Mr. Hebden was paid for the accrued annual leave. Under the terms of the contract, Mr. Hebden's services could be terminated without penalty upon thirty days notice by either party. Mr. Hebden did not advertise his services to the general public, because he was not interested in taking on additional work, however, for a time, he provided accounting consulting services to the Indian Rocks Fire Control District and was compensated for his work. He also provided volunteer services to the Church of the Isles. During the period relevant to this proceeding Mr. Hebden held no business or occupational licenses. For the years 1979 through 1982, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-NEC, the form used to report "Nonemployee Compensation." For the years 1983 through 1991, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-MISC, the form used to report "Miscellaneous Compensation." The City did not provide health or life insurance coverage to Mr. Hebden. The City did not pay federal social security or withholding taxes for Mr. Hebden. The City did not provide or pay workers compensation benefits or unemployment benefits for Mr. Hebden. The City did not pay retirement contributions to the FRS for Mr. Hebden.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order determining that as City Treasurer of the City of Belleair Beach from July 1979 through February 1991, Robert K. Hebden was an employee of the City, and as such was a compulsory member of the Florida Retirement System for which contributions from the City are due. DONE and RECOMMENDED this 21st day of March, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1994. APPENDIX TO CASE NO. 93-6518 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3. Rejected, contrary to the greater weight of the evidence. Mr. Hebden submitted invoices for payment as early as July, 1979. 11. Rejected, not supported by greater weight of the evidence. Because Mr. Hebden developed his own procedures for performing the duties of the City Treasurer, and trained his successor in performing the tasks of City Treasurer, it is not possible to conclude that Mr. Hebden's services were "not essential to the success or continuation of the City's operation." Rejected, irrelevant. Rejected, contrary to greater weight of evidence. Mr. Hebden testified on direct examination that he could not recall who chose the work hours set forth by contract. All contracts specify the hours to be worked. As to leave time, the first contract provided that such leave could be used only "at times mutually agreeable...." Subsequent contracts required annual leave to be used in four hour increments. Rejected, contrary to greater weight of evidence. Mr. Hebden testified that some auto and boat expenses had been reimbursed. First contract and invoices for payment through September 30, 1982 include payment of sums for "expenses." Rejected, contrary to greater weight of evidence. The contracts specify standard hours of employment and require attendance at meetings as directed by the Mayor and Council. The Respondent's assertion that Mr. Hebden "could make a profit or suffer a loss" is unsupported by credible evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, as to employment status of Mr. Hebden's predecessor or successor as City Treasurer, irrelevant. 28, 30. Rejected, as to employment status of Mr. Hebden's successor as City Treasurer, irrelevant. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Thomas J Trask, Esquire Frazer, Hubbard, Brandt & Trask 595 Main Street Dunedin, Florida 34698 Jodi B. Jennings, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
