The Issue The issue to be resolved in this proceeding concerns whether the Respondent abandoned his position in the career service employment system of the State of Florida in the manner envisioned by Rule 22A-7.010, Florida Administrative Code, and therefore, whether that employment position is any longer available to him.
Findings Of Fact The Petitioner, Thomas J. Atwell, was employed by the Department of Highway Safety and Motor Vehicles in its regional office in Tampa, Florida. Most of his employment duties were located in the Clearwater, Florida, area. His duties involved inspection of mobile homes at sites where those homes were manufactured. His immediate supervisor was Melvin Hinson, Sr., the Assistant Regional Administrator of the Division of Motor Vehicles Regional Office in Tampa, Florida. On October 19, 1988, the Petitioner injured his back while on duty in the process of jumping to the ground from the door of a mobile home he was inspecting. He was placed on disability leave and received worker's compensation benefits as a result of the injury which occurred within the course and scope of his employment. Sometime after being placed on disability leave, he began a course of treatment at Shands Hospital in Gainesville, Florida. At about the same time, he encountered marital discord with his wife, became separated from her, and moved to Tallahassee, Florida, to live with relatives. Upon arriving in Tallahassee, he began to be treated by Dr. Charles Wingo, who became his treating physician for worker's compensation purposes. Dr. Wingo ultimately notified his employer that he could return to light-duty work in a sedentary capacity, sitting and standing, without doing any carrying, if such work were available to him. This notification was by letter dated October 2, 1989. The Respondent, as a result of this communication, issued a letter to the Petitioner on November 3, 1989 advising him that he should report to the Tampa Regional Office of the Division of Motor Vehicles on November 13, 1989 to begin light-duty employment. The letter stated that the Petitioner would be "assisting in answering the telephone, filing, making xerox copies, and performing other light duties that may be assigned by your supervisor." According to the testimony of Buck Jones, the Respondent had a genuine need for someone to perform these duties and it was a true open position in the Tampa Regional Office. The Respondent did not have a need for someone to perform such light duties in the Tallahassee area, however. Indeed, there is no regional office in Tallahassee, with the closest regional office being in Ocala, Florida. In any event, a few days after the November 3, 1989 letter, the Petitioner telephoned Buck Jones, the Chief of the Bureau for Mobile Home and Recreational Vehicle Construction. The Petitioner told Mr. Jones that he could not get the required medical treatment in Tampa. Mr. Jones told the Petitioner that he would investigate the matter of the availability of medical treatment in Tampa. The Respondent later confirmed that medical treatment was indeed available in the Tampa area, which was suitable for the Petitioner's condition. On November 16, 1989, Mr. Jones wrote the Petitioner another letter stating that medical treatment was available in Tampa and requiring him to report for duty at the Tampa office on November 20, 1989. The letter also expressly stated that should the Petitioner fail to report for duty within three (3) days of that date, November 20, 1989, he would deemed to have abandoned his position and resigned from the Department. The letter invited the Petitioner to contact Mr. Jones should he have any questions about the matter. The Petitioner never contacted Mr. Jones before his employment reporting date of November 20, 1989. He did not report for work on November 20, 1989, as ordered, or at anytime thereafter. Around November 3, 1989, the Petitioner had called Mr. Hinson to discuss his worker's compensation case and his job and was told by Mr. Hinson that he should be contacting the Tallahassee office because he had already been told to call "headquarters." On November 27, 1989, the Respondent notified the Petitioner that he had been absent without authorized leave for three (3) consecutive workdays and was, therefore, deemed to have abandoned his position and resigned from the career service.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department of Administration declaring that the Petitioner, Thomas J. Atwell, has abandoned his employment position and resigned from the career service. DONE AND ENTERED this 23rd day of August, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 23rd day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-7058 Respondent's Proposed Findings of Fact 1-15. Accepted. Accepted, but not material to resolution of disputed issues. Accepted. COPIES FURNISHED: Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Thomas J. Atwell, pro se 2320-J Apalachee Parkway Box 455 Tallahassee, FL 32301 Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504
Findings Of Fact Respondent was licensed to operate Lakeside Health Center, 2501 Australia Avenue, West Palm Beach, Florida, at all times material to this proceeding. It currently holds Skilled Nursing Facility License No. 238, issued by Petitioner. Pursuant to Subsection 400.111(1), Florida Statutes, such licenses must be renewed annually. Respondent's annual license expires on June 30. Prior to revision of this statute by the 1980 Legislature (Chapter 80-186), renewal applications were required 60 days prior to the expiration date. Thereafter, such renewal applications were required to be submitted to Petitioner 90 days prior to expiration. Additionally, the revised statute established a daily late charge equal to 50 percent of the preceding annual renewal fee. Respondent's application for its 1981-82 license renewal was due on April 2, 1981, which was 90 days prior to expiration. The application was actually filed on June 8, 1981, which is 67 days after the due date. Its previous renewal fee (1980-81) was $194. Fifty percent of this amount, $97, multiplied by 67 days equals $6,499, the amount of the late fee which Petitioner seeks to impose. Although it is not required by statute or rule to do so, Petitioner reminds licensees of their renewal obligation sufficiently in advance to preclude inadvertent delay. Additionally, Petitioner sent a form letter to all nursing home administrators on August 11, 1980, advising them of the revisions to Subsection 400.111(1), Florida Statutes. Petitioner's first notification to Respondent regarding the renewal deadline for its 1981-82 license was dated January 7, 1981. However, this letter was misaddressed and Respondent's denial of receipt is accepted. Petitioner's second notification was dated January 21, 1981, and was properly addressed. The letter was processed in due course by Petitioner's Licensing and Certification Office and was presumably received by the addressee, although Respondent denies this. Renewal letters were sent by ordinary mail at that time, but are now certified. Respondent argues that the January 21 letter misstated the due date as March 16, 1981, rather than the correct date of April 2. This was harmless error, however, and had no effect on Respondent's delay. Similarly, the requirement contained in this letter that renewals be filed with the local county health unit rather than directly with Petitioner in no way caused or contributed to Respondent's delayed filing. During the period when license renewal should have taken place, Respondent was experiencing changes in its administration and overlooked the renewal requirement. An interim administrator telephoned Petitioner's Jacksonville office in November, 1980, to inquire about renewal, and was told the forms would be finished automatically prior to the due date. This was the purpose of Petitioner's January 7 and January 21 letters, which Respondent denies receiving. Petitioner's third letter, dated May 22, 1981, intended to be a further reminder, was received and acted on by Respondent, prior to expiration of its 1980-81 license. By then, however, the $6,499 penalty had accrued.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing Respondent a late fee of $6,499 on the basis of its delay in applying for renewal of its license to operate a skilled nursing facility for the period beginning July 1, 1981. DONE AND ENTERED this 8th day of March, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1982. COPIES FURNISHED: Robert P. Daniti, Esquire Licensure and Certification Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301 Mark P. Lang, Esquire, and Stephen W. Pickert, Esquire DEMPSEY AND SLAUGHTER, P.A. Suite 610, Eola Office Building 605 East Robinson Street Orlando, Florida 32801
The Issue The issue to be resolved concerns whether the Petitioner received, and should be compelled to repay, an alleged salary overpayment of $1,306.09.
Findings Of Fact James L. Lowery, the Petitioner, was employed by the Respondent Department, at all times pertinent. The Department employees are paid bi-weekly, with pay warrants being issued eight days after the end of a pay period. This is based on employee timesheets submitted to the Peoples’ First leave and payroll system. The payroll system will issue an employee a paycheck for the full pay period hours, if his or her timesheet is not timely submitted or if no timesheet is submitted (until a correction and re-calculation is done). That is the default posture. An employee is only paid less or a different amount than his regular salary if a timesheet is timely submitted and reflects less than a full-time number of hours of work or leave- time. Upon an employee’s separation from employment, an audit is conducted of his leave and attendance, to ensure that his final pay is correct. During the audit, the Department reviews the employee’s timesheets to determine what leave codes were used. It generates a cumulative pay report to ensure that the employee was paid correctly for each pay period. Upon conclusion of the audit, the Department sends the employee payment for any leave to which he is entitled, or, if it is determined that he was overpaid, the employee is notified of the hours and amount of the overpayment and repayment is demanded. Mr. Lowery was injured and therefore, had to be absent from work on workers’ compensation leave, starting in May of 2008, for approximately six weeks. He recovered from that injury, but did not return to work because his medication regimen for another condition interfered with his work schedule. Mr. Lowery thereupon began to use his accrued sick and annual leave. He exhausted his sick and annual leave by August 2008. He thereupon began using sick leave that he believed had been donated to him from the sick leave pool. Although he believed he was using sick leave pool leave, he actually had received donated sick leave for the period August 8, 2008 through October 30, 2008. The total amount of leave donated to him was 470 hours. Sick leave donations are not a pre-determined amount, but rather the amount an employee can receive depends strictly on how much leave is actually donated to that individual by other employees. Mr. Lowry used all the leave which had been donated to him as of November 14, 2008. Therefore, for the November 14 through November 27, 2008, pay period he had no leave left to his credit, but did not return to work. His timesheets for that pay period show that he was on “Authorized Leave Without Pay.” When the pay warrants were issued for that pay period, the system did not recognize that the Petitioner was on “Authorized Leave Without Pay” and on December 5, 2008, he was paid for 80 hours, in a gross amount of $1,162.00. Since he only had 4.75 hours of sick leave available for that pay period, he was, thus, overpaid for 75.25 hours. Between November 28, 2008, and December 25, 2008, the Petitioner did not work and had no annual, sick or other type of leave to his credit. Nonetheless, a pay warrant was issued to him on January 2, 2009, for payment for 30.75 hours. He was, thus, overpaid for that number of hours. The Petitioner’s timesheet for the period January 9 through January 22, 2009, shows that his hours were coded or entered as follows: 1.50 hours of annual leave, 1.00 hour of sick leave and 77.50 hours of unauthorized leave without pay. Although he had no annual, sick or other leave available to him, a pay warrant was issued to him on January 30, 2009, for the 2.50 hours. He was, thus, overpaid for that amount of hours. The Petitioner did not question the amounts he was paid on December 5, 2008, January 2, 2009, or January 30, 2009, because he believed he was drawing sick leave credit from the sick leave pool and that his timesheets were being taken care of by a supervisor, Otis Ray, in the Tallahassee office. After January 30, 2009, he received no more pay warrants. Upon the Petitioner’s separation from employment, the Respondent conducted the leave audit referenced above, as delineated in the Department of Financial Services’ Payroll Preparation Manual. It was thus determined that the Petitioner had been overpaid for a total of 108.50 hours for the above- referenced pay periods, due to the fact that he had used leave to which he was not entitled and because his timesheet was not timely submitted. In accordance with the Payroll Preparation Manual (in evidence as Respondent’s Exhibit 7), the amount of salary overpaid, and to be repaid, was calculated as follows: $1,013.56 for the warrant issued on December 5, 2008, $267.71 for the warrant issued on January 2, 2009, and $24.82 for the warrant issued on January 30, 2009. 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. The Respondent followed those procedures in making the calculations relevant in this case. On May 29, 2009, the Respondent notified Petitioner of its position that he owed repayment of $1306.09, the total amount of the three erroneously paid warrants.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Department of Juvenile Justice requiring the Petitioner to repay erroneously paid salary in the amount of $1,306.09, pursuant to a reasonable installment arrangement to be agreed upon by the parties. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399 James L. Lowery, Jr. 3875 Old Cottondale Road Marianna, Florida 32448-492 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether or not Petitioner, pursuant to Rule 6C-770 F.A.C., abandoned her position as a Secretary Specialist, thereby resigning from Florida State University by being absent without leave for three consecutive days.
Findings Of Fact At all times material, Petitioner, Teresa Loewy, was employed as a Secretary Specialist in the Department of Educational Leadership at Florida State University (FSU). On October 22, 1989, Petitioner Loewy reported that she had suffered a head injury as a result of an on-the-job accident. That same day, she was seen at Tallahassee Memorial Regional Medical Center and released. On October 23, 1987, FSU placed Petitioner on administrative leave for 40 hours. Contact was made by Petitioner and her husband, Mr. Samuel Loewy, with Dr. David Leslie, Department Chairman, with Nina Mingledorff, Department Staff Assistant and Petitioner's immediate supervisor, and with Motney Gray, FSU Workers' Compensation Supervisor. The Loewys were informed that a worker's compensation report had been completed and forwarded by the Department to Ms. Gray. This is the first formal step in an employer acknowledging that workers' compensation or medical benefits may be due a worker pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law." By letter dated November 3, mailed November 5, and received by Petitioner on November 10, 1987, Chairman Leslie informed Petitioner in pertinent part as follows: As you may be aware, you have been on disability leave for a 40 hour work period. Beyond that limit, this office will not certify any additional leave for you unless we receive medical proof that you are unable to return to work. Although you may apply for workers' compensation, I believe that similar proof will be required by that office. Absent any further communication from you and absent proof to the contrary, we assume that you are capable of returning to work and have elected not to do so (R-3). By letter of November 5, 1987, (R-9) Motney Gray notified Petitioner that Ms. Gray's communications with Joe D. Rawlings, M.D. had convinced Ms. Gray that Petitioner was not still impaired and was able to work and that Ms. Gray was terminating workers' compensation medical benefits and Petitioner's disability leave as of that date. By letter dated November 12 and received November 13, 1987, Robert L. Lathrop, Dean of the College, informed Petitioner as follows: Based on Motney Gray's letter of November 5, to you, we are hereby notifying you as of 8:00 a.m. November 6, you have been on unauthorized leave. Because of your unauthorized leave of absence, I am writing this letter to determine your intentions concerning continued employment at Florida State University. You must report for work immediately, or provide your supervisor, Mrs. Nina Mingledorff, with appropriate medical certification by 4:30 p.m., Monday, November 16, or it will be assumed you have voluntarily resigned due to abandonment of your position. (R-1) In response, on November 16, 1987, Mr. Loewy, on behalf of his wife, delivered to the Department a handwritten note from Dr. Rawlings, (R-2) which read: To whom it may concern: Mrs. Teresa Loewy is still under my care for headaches dating back to her injury on 10-22-87. At that point in time, Dr. Rawlings could be accurately characterized as Petitioner's primary treating physician pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law". Copies of this letter were seen by Nina Mingledorff and by Annette Roberts, FSU Employee Labor Relations Coordinator. On November 17, 1987, Petitioner and Mr. Loewy, together with another couple, visited Petitioner's workplace. Their purpose was to have Petitioner physically on the employment premises to demonstrate that Petitioner was unable to work due to her injury. At that time, the Loewy faction spoke with Annette Roberts, with John Goldinger, Assistant Personnel Director, and with Dean Lathrop. Initially, Petitioner was given a termination letter prepared for the Dean's signature, based upon Petitioner's three consecutive days' absence without prior authorization, which letter was as yet unsigned. However, as a result of the Loewy faction's face-to-face interview with Dean Lathrop, a new memorandum was prepared and actually signed by the Dean. This second communication was addressed to John Goldinger and read as follows: I am hereby authorizing leave of absence for Ms. Teresa A. Loewy beginning November 16, 1987, at 3:00 p.m. and ending no later than 10:00 a.m. on November 20, 1987. The purpose of this leave is to provide time for Mrs. Loewy to secure medical certification that she is unable to drive herself to work. (R-4) The effect of this memorandum, signed by Dean Lathrop and handed to Petitioner, was to supersede his other unsigned/unconsummated correspondence attempting to terminate her under the three days' absence rule. On November 20, 1987, Mr. Loewy obtained a two page letter from Dr. Rawlings (R-6) dated the preceding day. That letter, which Mr. Loewy was unable to pick up at Dr. Rawlings' office in Thomasville, Georgia, until shortly after the 10:00 a.m. November 20 deadline established by Dean Lathrop's November 17 signed memorandum, may be summarized as follows: Dr. Florek, a board certified neurologist had diagnosed Petitioner as having post-concussive syndrome on October 29, 1987. Sometime between November 3 and 6, Dr. Bridges, an opthomologist had diagnosed her eye examination as "essentially within normal limits". With the concurrence of FSU's Motney Gray, Petitioner was scheduled for an MMPI (a psychological assessment), the results of which had not yet been received on the date of Dr. Rawlings' letter, November 19, 1987. She was also scheduled for an MRI (magnetic resonance imaging, a type of x-ray particularly helpful in determining head and soft tissue injuries) which was scheduled for November 24, 1987. Dr. Rawlings confirmed that the Petitioner continued to come to him with the subjective complaints of headaches, blurred vision, and diplopia. The overall tone of his letter is that Dr. Rawlings thought Petitioner could work as of November 19, 1987, although he did not specifically say so. His rather vague summation was, "I have relayed to Mrs. Loewy [on] a number of occasions that I feel this problem will be self limited and that all attempts will be made on my part to not give her any type medication which might be habit forming." (R-6) On his wife's behalf, on November 20, 1987, at approximately 11:30 a.m., Mr. Loewy presented Dr. Rawlings' November 19, 1987 letter in a sealed envelope to Evelyn Ashley, Dean Lathrop's Administrative Assistant, and also gave a copy of it to Nina Mingledorff. Dean Lathrop was not in the workplace that day. During the time he was at Petitioner's workplace on November 20, 1987, Mrs. Ashley presented Mr. Loewy with a request form for a leave of absence without pay. She and others emphasized to him that the completed form must specify a date the Petitioner could return to work, a fact clearly in contention at that point. He was requested to have Petitioner complete the form and return it. He was not told how long Mrs. Loewy would have in which to complete and return the form. From this point forward the testimony is in sharp conflict. It is debatable whether Mr. Loewy was concerned about the effect such a "form" request might have upon his wife's job status or her incipient workers' compensation claim, whether he merely felt she was entitled to leave with pay, or whether he was ever told he could sign the form for his wife. It is clear, however, that Mr. Loewy refused to complete the form on Petitioner's behalf and also refused to take it to her unless he could add a notation to the form that her job would not be jeopardized by requesting such voluntary leave. Having assessed the candor and demeanor of the respective witnesses and the internal and external credibility and consistency or lack thereof of their respective versions of the events and conversations of November 20, 1987, it is found that FSU personnel refused to permit any additions or deletions to the form. They also refused to permit Mr. Loewy to submit a separate explanatory note with regard to the Loewys' position on the subject, even though it was John Goldinger's view at the time of formal hearing that it had always been normal FSU procedure to permit attachments and addendums to other requests for leave without pay. The standard forms requesting leave without pay which were presented by FSU employees to Mr. Loewy therefore were never given to Petitioner, completed by her, or submitted by the Petitioner to the University, although Mr. Loewy was repeatedly told that Petitioner's job would not be held for her unless the forms were filled out and submitted. Dr. Rawlings' November 19 letter (R-6) was not transmitted by his subordinates to Dean Lathrop at or near the time Mr. Loewy submitted it to them. Neither did Chairman Leslie contemporaneously see Exhibit R-6. According to Dr. Leslie, no one below his administrative level had the authority to determine the sufficiency of that "excuse" and the appropriate person to have decided that issue would have been Dean Lathrop. Annette Roberts and John Goldinger agreed that leave requests often went through Dean Lathrop. Although the Dean might not vary duly promulgated rules, the evidence as a whole, including Dean Lathrop's prior informal extension of Petitioner's leave, supports Annette Roberts' assertion that Dean Lathrop had the discretion to either effect the abandonment or increase the grace/leave period he had previously granted Petitioner. Thereafter, Petitioner never did return to work. On Wednesday, November 25, 1987, Dean Lathrop, unaware of the contents of the November 19 letter from Dr. Rawlings, and therefore never having decided on its sufficiency or lack thereof, prepared the following termination letter to Petitioner: You have been absent without leave of absence for 3 or more consecutive workdays . . . [Rule 6C-5.770(2)(a) is quoted] . . . Based on the above stated rule, you are deemed to have resigned from your position. . . effective this date, November 25, 1987 at 10:00 a.m. (R-10) Bracketed material and emphasis provided] It is clear from the foregoing, that regardless of Petitioner's not having submitted any leave without pay request forms, and regardless of Petitioner's nebulous status as to leave after her initial 40 hours disability leave (See Findings of Fact 4-9 supra), Dean Lathrop counted toward implementation of the three days' abandonment rule only the three consecutive "working days" (presumably 24 work hours) elapsing after his own ultimatum time and date of 10:00 a.m., November 20. The Dean's reasoning, as explained by him at formal hearing, was that the Petitioner had not requested a leave of absence. Evelyn Ashley stated that she had told Dean Lathrop both that the doctor's letter (R-6) had been submitted and also that the Dean could do nothing about processing leave for Mrs. Loewy because R-6 had to be attached to a "request for leave form" and that "form" had not been submitted by the Petitioner. Dean Lathrop testified that if he had seen R-6 and still had any doubts of its sufficiency, he probably would have approved leave on the same basis as he had on November 17, at least until he had the opportunity to consult medical personnel further. It was never determined by FSU personnel prior to formal hearing whether the December 19 communication from Dr. Rawlings (R-6) was sufficient under the terms of the Dean's November 17 memorandum granting further leave up to 10:00 a.m., November 20, 1987. As of Friday, November 20, 1987, Petitioner had only 1.7 hours annual leave and 3.5 hours sick leave status to draw upon. After her separation date, Petitioner was paid for 1.7 hours of accrued annual leave; she was not paid for any accumulated sick leave. Subsequently, Petitioner and FSU became embroiled in workers' compensation litigation and entered into a "Stipulation and Joint Petition" which was adopted and approved by an Order of the Deputy Commissioner dated August 8, 1988. (P-3) 1/ Admitted facts found therefrom which are relevant, material, and significant to the instant cause and which are not cumulative to any of the facts found supra, are as follows: . . . She [Petitioner] was scheduled for an MMPI which was done on November 20, 1987. An MRI scan of the brain was done November 23, 1987 and was interpreted as normal. . . . Dr. Bridges examined the Employee [Petitioner herein] on 11/3/87 and found irregular visual fields, more constricted in the right eye, but otherwise normal examination. The employee was then seen by Dr. Thomas J. Perkins who diagnosed occipital syndrome on the right side and recommended treatment by Dr. Seay. . . . The employer/carrier and employee/claimant stipulate and agree that the maximum medical improvement date is April 25, 1988, pursuant to the medical report of Dr. James T. Willis. [Bracketted material provided] It is clear on the record that Motney Gray, FSU's Coordinator for Insurance Risk, informed Dr. Rawlings on several occasions that it was "possible" that workers' compensation would pay for another employee to transport Petitioner from her home in Thomasville, Georgia, to work at FSU in Tallahassee, Florida, but it is not clear that this offer was ever made any more concrete than as a "possibility", and the offer apparently was never made directly to the Petitioner by any representative of FSU. It is clear that, at some point, Dr. Rawlings conveyed this offer to the Petitioner, but it is not clear on the record that this information ever reached Petitioner at any time prior to November 25, 1987 and simultaneously with a period she also was not taking a drug prescribed by some physician. Petitioner was treated, not just by Dr. Rawlings, but by Doctors Florek, Bridges, Seay, Willis, Hogan, and Perkins. At some point in time, Dr. Willis, a chiropractic physician, became Petitioner's primary treating physician. Moreover, it is clear that Dean Lathrop, who was Petitioner's only superior with authority to determine the sufficiency of the letter of certification (R-6), was concerned about Petitioner's ability or inability to drive herself, not whether someone else could or would drive her to work. In addition to the oral communications to Mr. Loewy on November 20, FSU had directly advised Petitioner concerning the general nature of its abandonment rule and of FSU's requirements for prior approval of all leave requests, first by circulating standard informational documents to all employees, and secondly, by its various letters to Petitioner which are described supra. The parties stipulated that in the event abandonment was not proven, any back wages awarded to Petitioner should be subject to all appropriate class pay increases, and should be reduced by the workers' compensation and unemployment compensation already paid to Petitioner, and should be further reduced by any income earned by her.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered: Finding Petitioner has not abandoned her position. Reinstating Petitioner to her position. Ordering payment of backpay and emoluments from November 25, 1987, less unemployment and workers compensation paid by Respondent and less mitigation earnings of Petitioner, pursuant to the parties' stipulation. Denying any attorney's fees. DONE and ENTERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. ELLA JANE P. 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 5th day of October, 1989.
The Issue Whether Petitioner, Anthony McFarlane, was overpaid in the amount of $978.69 as a result of utilizing more administrative leave than that to which he was entitled.
Findings Of Fact Petitioner was an employee of the Agency's Central Office during the pay periods of February 14, 2014, to February 27, 2014; February 28, 2014, to March 13, 2014; and March 14, 2014, to March 27, 2014. Although the exact dates of Petitioner's employment by the Agency are unknown, he was also employed by the Agency and its predecessor entities prior to, and subsequent to, those dates for a total of approximately eighteen years. Petitioner retired from the Agency on April 4, 2014. Petitioner, prior to his retirement, attempted to use the surplusage of leave time he had accumulated for which he would not be compensated upon retiring. The Agency uses the People First system for the submittal of employee time sheets and tracking of individual employees' accrued paid leave time. The system maintains the amount of Annual Leave, Sick Leave, and Special Compensation Leave available to each individual employee. Further, although Sick Leave can be used at any time, Annual Leave cannot be used until Special Compensation Leave is depleted. Administrative Leave--Other is not maintained on an individual level and employees are not automatically prohibited from using more Administrative Leave--Other than that to which they are entitled nor are they required to deplete their Special Compensation Leave prior to using Administrative Leave. Administrative Leave--Other is made available to employees only in special circumstances such as an office closure due to a hurricane, plumbing leak, or air conditioner failure, or an unscheduled paid holiday authorized by the Governor. During the pay period of February 14, 2014, to February 27, 2014, Petitioner used sixteen hours of Special Compensation Leave (Code 0055) and sixteen hours of Sick Leave (Code 0052). During the pay period of February 28, 2014, to March 13, 2014, Petitioner used seventy-two hours of Administrative Leave-- Other (Code 0056). No special circumstances entitling Petitioner to take Administrative Leave--Other hours occurred during this pay period. During the pay period of March 14, 2014, to March 27, 2014, Petitioner used five hours of Special Compensation Leave (Code 0055) and seventy-five hours of Annual Leave (Code 0051). In February of 2015, the Office of the Inspector General published an audit of the Agency's human resources practices at its Central Office. The audit showed that seventy-two hours of Annual Leave were miscoded as Administrative Leave--Other, resulting in a $1,059.84 leave balance overpayment. The Agency then determined that Petitioner was the individual whose Annual Leave time had been miscoded as Administrative Leave--Other and had therefore been overpaid $1,059.84. After adjusting the amount for taxes and benefits withheld, the Agency concluded that the amount overpaid directly to Petitioner was $978.69. During the hearing, Petitioner for the first time realized and admitted that in his attempt to deplete his Special Compensation Leave before using his Annual Leave, he made an error in using Code 0056 (Administrative Leave--Other) when he intended to use Code 0055 (Special Compensation Leave).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner repay $100.00 per month to the Agency until the $978.69 balance is repaid in full. DONE AND ENTERED this 5th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 5th day of June, 2015. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony McFarlane 7971 Northwest 11th Street Plantation, Florida 33322-5158 David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue is whether the Department of Financial Services properly assessed a penalty on Petitioner for working in violation of a reinstated Stop-Work Order.
Findings Of Fact The Division is charged with the regulation of workers' compensation insurance in the State of Florida. Petitioner, Extraordinaire Home Improvements, Inc. (Extraordinaire Homes), is a corporation located in Jacksonville, Florida, and is engaged in the business of building construction, primarily roofing. Charlie Sakakini is the owner of Extraordinaire Homes. On October 20, 2004, the Division issued a Stop-Work Order and Order of Penalty Assessment. On October 29, 2004, the Department issued an Amended Order of Penalty Assessment to Petitioner in the amount of $8,079.29. Also on October 29, 2004, the parties entered into a Payment Agreement Schedule for Periodic Payment of Penalty wherein Mr. Sakakini agreed to remit monthly payments on behalf of Extraordinaire Homes to the Division in the amount of $589.95 for 11 months. The payment schedule informed Petitioner that failure to comply with the terms of the agreement would result in the immediate reinstatement of the Stop-Work Order. The Division issued an Order of Conditional Release from Stop-Work Order the same day the agreement was signed. Petitioner, through its owner, Mr. Sakakini, failed to make the payments required by the agreed payment schedule. Accordingly, the Division issued an Order Reinstating Stop-Work Order (Reinstatement Order) on July 27, 2006. The Reinstatement Order informed Petitioner that it must cease all business operations in the State of Florida until an order releasing the Reinstatement Order was issued. Mr. Sakakini acknowledges that Petitioner was actively conducting business operations, i.e., roofing work, on 100 days in the Fall of 2007, despite the Reinstatement Order having been issued. On September 28, 2007, the Division issued an Order Assessing Penalty for Working in Violation of Reinstated Stop-Work Order assessing a penalty of $406,000.00. The amount of the assessed penalty was reduced to $100,000.00 in a Second Amended Order of Penalty Assessment as a result of an Order Granting Motion to Amend Order of Penalty Assessment entered by the undersigned on April 28, 2008. Of the 100 days worked during the pendency of the Reinstatement Order, 25 of those days involved work on Mr. Sakikini's personal residence. During this time, business was slow, and he was trying to give his workers "something to do so that they can make some money." Mr. Sakikini continues to live in the home where this work took place. Mr. Sakikini paid the workers who worked on his personal residence with checks from the business account of Extraordinaire Homes. Mr. Sakikini considers the amount of the penalty, i.e., $1,000.00 per day of violation, to be excessively harsh when applied to a small businessman like himself.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Respondent, Department of Financial Services, Division of Workers' Compensation, enter a final order amending the Second Amended Order of Penalty Assessment, assigning a penalty of $75,000.00. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2008.
The Issue Whether Petitioner, Sharon Fleita, made a valid “second election” to transfer from the Florida Retirement System (“FRS”) Pension Plan to the Investment Plan, pursuant to section 121.4501, Florida Statutes (2016).1/
Findings Of Fact Petitioner, Sharon Fleita, was, at all times relevant hereto, an employee of the Jefferson County School Board (“School Board”) and enrolled as a member of the FRS Pension Plan. Respondent, SBA, is the state agency tasked with administering the FRS Investment Plan. § 121.4501(8), Fla. Stat. Petitioner’s Employment History Petitioner was employed by the School Board as a full- time teaching assistant from early 2011 through May 31, 2017. The last day Petitioner performed work for the School Board was on April 19, 2017. As of that date, Petitioner had exhausted her allotted paid sick leave. On April 21, 2017, Petitioner underwent ankle surgery. The recovery period was about three months, during which time Petitioner was required to use a wheelchair. From April 20 through May 31, 2017, Petitioner was on unpaid “Family Medical Leave Without Pay” as designated by the School Board on a form titled “Application for Leave of Absence,” which was signed by Petitioner. Realizing that her medical condition would prevent her from returning to work, Petitioner officially resigned on May 31, 2017.2/ At the time of her resignation, Petitioner had earned 7.27 years of FRS service credits and was a “vested” member of the FRS.3/ See § 121.021(45), Fla. Stat. Petitioner did not return to work after her leave of absence, nor did she retire on disability through FRS. Petitioner was found to be disabled by the Social Security Administration with a date of disability of April 21, 2017, but she never applied for disability with FRS.4/ On May 31, 2017, Petitioner received a paycheck from the School Board in the amount of $82.13, after deductions and taxes, indicating a pay period of May 1, 2017 through May 26, 2017. The paycheck was compensation for work performed prior to May 2017. Petitioner’s Second Election Ms. Fleita’s employer, the School Board, did not have a human resources director to help her through the second election process. Seeking guidance, Petitioner placed a number of calls to the Division of Retirement and the MyFRS hotline over the course of about five months, beginning in March 2017. Before she made her second election, several representatives informed Petitioner during these phone calls that she needed to be actively employed, earning a salary, and earning FRS service credits at the time the second election was made. On March 20, 2017, a representative with the MyFRS hotline informed Petitioner that she could not make a valid second election while on “unpaid leave of absence or summer break or anything like that.” The representative also recommended that Petitioner make her second election a month or so before her last day of work, in order to make sure the election was valid. On May 10, 2017, a representative with the MyFRS hotline explained to Petitioner that a salary and FRS service credits are distinct, and that it is possible to receive a paycheck but no FRS service credit for a given month. The representative also informed Petitioner that if she were to submit a second election while not earning service credit, the election might be processed but ultimately would not be considered valid. On May 10, 2017, while on FMLA (Family Medical Leave Act) leave, Petitioner completed a “2nd Election Retirement Plan Enrollment Form” to switch from the FRS Pension Plan to the Investment Plan. The Plan Choice Administrator processed the election on May 11, 2017. On July 28, 2017, a representative with the Division of Retirement informed Petitioner that she had earned service credit for May 2017, the month in which she made her second election. Later that same day, a different representative informed Petitioner that her election into the Investment Plan had been approved. However, soon thereafter, the representative called Petitioner back and informed her that her election was invalid because, according to the SBA, Petitioner was not earning service credits in May 2017. Service Credit During FMLA Leave Monthly service credit is awarded for “each month salary is paid for service performed.” § 121.021(17)(b)4., Fla. Stat. Section 121.021(58) defines “leave of absence” as “a leave of absence from employment under the Florida Retirement System, subsequent to November 30, 1970, for which retirement credit [i.e., FRS service credit] may be received in accordance with s. 121.121.” This definition is reiterated in Florida Administrative Code Rule 60S-6.001, which provides: LEAVE OF ABSENCE (Authorized Leave of Absence) – Means a leave of absence from employment under the Florida Retirement System, subsequent to November 30, 1970, for which retirement credit may be received in accordance with Rule 60S-2.006, F.A.C. By default, FRS members do not earn service credits while on an unpaid leave of absence. Service credits may be earned, however, if the member meets the following requirements of rule 60S-2.006: A member may receive retirement credit for a total of two work years of creditable service for authorized leaves of absence under the Florida Retirement System, subject to the following: A leave of absence must be authorized in writing by a member’s employer prior to or during the leave of absence. The member must satisfy the service requirements for vesting, excluding any periods of leave of absence, except for military leaves of absence as provided in subsection 60S-2.005(1), F.A.C., prior to receiving retirement credit for leaves of absence. The member must return to active employment performing service with a Florida Retirement System employer in a regularly established position immediately upon termination of the leave of absence and remain on the employer’s payroll for one calendar month. The exceptions to this requirement are: A member placed on a leave of absence for medical reasons who retires on disability while on the leave of absence shall not be required to return to employment in order to be eligible to receive credit for the leave of absence; and A member whose work year is less than 12 months and whose leave of absence terminates between school years shall be eligible to receive credit for the leave of absence as long as he or she returns to covered employment at the beginning of the next school year and remains on the employer’s payroll for one calendar month. Petitioner did not return to work after her leave of absence (or at the beginning of the following school year), or retire on disability during her leave of absence. Petitioner did not earn service credit during her leave of absence in May 2017. Id. It appears Petitioner misunderstood the distinction between salary and FRS service credit, believing that the paycheck she received in May 2017 meant that she also earned FRS service credits for that month. The delay between the date on which her second election form was processed and the date on which it was invalidated exacerbated this problem, and perhaps gave Petitioner false hope that her second election was valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, State Board of Administration, issue a final order denying Petitioner’s request to transfer from the FRS Pension Plan to the Investment Plan. DONE AND ENTERED this 23rd day of February, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2018.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Louis C. Germain, has been employed with the Department of Health and Rehabilitative Services, Foster Care Unit-452 since late 1984 or early 1985. On the morning of February 3, 1986, the Petitioner was involved in an automobile accident during the course of his employment while enroute to pick up a client who had a court appointment. As a result of the accident the Petitioner sustained several injuries, including a nose injury, back pains, headaches and blurred vision. The Petitioner was taken to his physician's office. At approximately 4:30 p.m. on February 3, 1986, the Petitioner called his immediate supervisor, Ms. Shelia Weiner, and advised her of the accident and of his injuries. On Friday, February 7, 1986, the Petitioner went to his office to pick up his pay check. The Petitioner spoke with Ms. Weiner and informed her that he did not know when his physician would allow him to return to work. On Monday, February 17, 1986, the Petitioner returned to the office once more to pick up a pay check. Ms. Weiner told the Petitioner that he had to report to work on Thursday, February 20, 1986. The Petitioner told Ms. Weiner that he was still suffering from injuries sustained in the February 3, 1986 accident and that he did not know when he would be able to return to work. On February 20, 1986, Ms. Weiner wrote the Petitioner a letter stating that his absence from work since February 17, 1986 had not been authorized. The letter stated in part that: "You are directed to report to work immediately and provide an explanation for your absences." The Petitioner received Ms. Weiner's letter on Saturday, February 22, 1986. On Tuesday, February 25, 1986, the Petitioner had an appointment with his physician and obtained a medical statement from her. The Petitioner's physician indicated in the medical statement that Petitioner had been under her care since the automobile accident of February 3, 1986, that Petitioner sustained multiple injuries in the accident and that Petitioner was now able to return to work. The Petitioner returned to work on February 25, 1986 and was advised that he needed to speak with Mr. Carlos Baptiste, supervisor of the personnel department. The Petitioner presented the letter from his doctor to Mr. Baptiste, but Baptiste was not satisfied with the doctor's statement and felt that it was "insufficient." Baptiste asked the Petitioner if he had a towing receipt or an accident report to confirm the accident of February 3, 1986. The Petitioner replied that he did not. The Petitioner was not allowed to return to work. At the final hearing, Mr. Baptiste stated that: "If Mr. Germain had produced an accident report, he would still be working with HRS." The Petitioner's leave and attendance record maintained by DHRS reflected that the Petitioner was given sick leave from February 3 to February 6, 1986. From February 7 to February 20, 1986 the Petitioner was placed on leave without pay. On March 3, 1986, Ms. Sylvia Williams notified the Petitioner by certified mail that due to his absence from work since "February 17, 1986", he was deemed to have abandoned his position and to have resigned from the Career Service.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Administration enter a final order reinstating Petitioner to his position with the Department of Health and Rehabilitative Services, Foster Care Unit-452 in Miami, Florida. DONE and ORDERED this 4th day of February, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3319 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 to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 11. Matters not contained therein rejected as argument. Addressed in Conclusions of Law section. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as argument. Rejected as argument. Rejected as argument. Rejected as argument. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a recitation of testimony and/or argument. Adopted in substance in Finding of Fact 6. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as mis- leading. Rejected as subordinate. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: Louis C. Germain 308 Northeast 117 Street Miami, Florida 33161 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue - Suite 790 Miami, Florida 33128 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue Whether the Department of Juvenile Justice overpaid Christopher Stokes for pay periods ending May 25, 2000, for 34.5 hours amounting to $274.91; June 8, 2000, for 9.25 hours amounting to $73.81; and June 30, 2000, for 8.0 hours amounting to $63.71.
Findings Of Fact Petitioner, Christopher Stokes, was employed by the Department of Juvenile Justice (Respondent) as a painter at the Dozier School for Boys in Marianna during the period at issue, May 12, 2000, through June 30, 2000. Petitioner continues to be employed by Respondent in the same capacity. Respondent's Policy and Procedure 3.26 (FDJJ 3.26), which is available in hard copy at the workplace and via the internet, delineates the agency's Sick Leave Transfer Policy.1 FDJJ 3.26 is based upon the requirements and provisions of Rule 60L-5.030(3), Florida Administrative Code. FDJJ 3.26, Procedure A provides that in order to donate sick leave, the donor must complete the Interagency Sick Leave Transfer (Request to Donate) form and submit it to the Bureau of Personnel. FDJJ 3.26, Procedure B provides that in order to receive donated sick leave, the employee must complete the Interagency Sick Leave Transfer (Request to Use) form and submit it to the Bureau of Personnel.2 The Department of Juvenile Justice is a centralized agency and the Bureau of Personnel is located in Tallahassee. A request to donate or to use donated sick leave may be made directly to the Bureau of Personnel via U.S. Mail, courier, or fax. FDJJ 3.26, Procedure C provides that sick leave credits donated to the receiving employee shall be credited on the last day of the pay period. Transferred leave must be processed by the last day of the pay period in order to be credited to the employee. This includes checking to see if the donor has leave to transfer and is permitted to transfer it by the donor's employer. The Department of Juvenile Justice has 26 pay periods per year. Requests to donate leave to use donated sick leave that are timely submitted to the Department of Juvenile Justice, Bureau of Personnel, located in Tallahassee, will be accepted by the Department of Juvenile Justice even when the request may be incomplete or incorrectly submitted. Requests to donate leave or to use donated sick leave will be processed by the Department when the error or delay is attributable to the Bureau of Personnel. During the pay period ending May 25, 2000, Petitioner had a medical emergency requiring him to miss several days of work during that period and those that followed. Lynn R. Price, a Department of Children and Families employee, completed a request to donate 25.5 hours of sick leave to Christopher Stokes on May 24, 2000. Christopher Stokes submitted the Lynn Price Request to Donate Sick Leave Hours to the personnel office at Dozier School on May 25, 2000, the last day of the pay period. The Department of Children and Family Services, donator's agency, approved the donation of the leave on June 29, 2000, seven days after the last day of the three pay periods in question. The leave donated by Lynn Price was "not approved per criteria" by the Department of Juvenile Justice on September 12, 2000. This leave could not be credited to the employee's leave account for the next pay period. Earma J. Hendrix, Department of Children and Family Services employee, completed a request to donate 8 hours of sick leave to Christopher Stokes on June 8, 2000, the last day of the period. The Department of Children and Family Services, Donator's Agency, approved the donation of the leave on June 9, 2000, the day after the last of the second pay period at issue. The leave donated by Earma Hendrix was "not approved per criteria" by the Department of Juvenile Justice on September 11, 2000. This leave could not be credited to the employee's leave account for the next pay period. The Department of Juvenile Justice paid Christopher Stokes for 34.5 hours of donated sick leave during the pay period of May 12 through May 24, 2000. Because the attempt to donate sick leave by Earma Hendrix during that pay period was not approved as untimely submitted, Mr. Stokes should not have been paid for the 34.5 hours of donated sick leave, totaling $274.91, on the June 2, 2000, warrant. The Department of Juvenile Justice paid Christopher Stokes for 9.25 hours of donated sick leave during the pay period of May 26 through June 8, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 9.25 hours donated sick leave hours of donated sick leave, totaling $73.81, on the June 16, 2000, warrant. DJJ paid Christopher Stokes for 8 hours of donated sick leave during the pay period of June 9 through June 22, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 8 hours of donated sick leave, totaling $63.71, on the June 30, 2000, warrant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order upholding the Agency's determination of a salary overpayment. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2001.
The Issue The issues are whether Petitioner became an employee of an FRS employer within a calendar month after completing his participation in the Deferred Retirement Option Program (DROP) in violation of Subsection 121.091(13)(c)5.d., Florida Statutes (2006)1; whether Respondent's interpretation of relevant statutes is an unadopted rule; and whether Respondent's interpretation of relevant statutes is an invalid exercise of delegated legislative authority.
Findings Of Fact The parties stipulated to several facts in this proceeding. Respondent is the state agency responsible for administering the FRS. Petitioner was employed as an equipment operator (street sweeper) by the City of Venice, Florida (the City), for more than 35 years until he completed his participation in DROP on January 11, 2007. At that time Petitioner was earning approximately $38,000.00 annually. The City revoked its participation in the FRS effective January 1, 1996, and established a new City retirement plan. The new City retirement plan applies to all employees hired after January 1, 1996. However, the City continued its participation in the FRS for all employees who were members of the FRS prior to January 1, 1996. Petitioner elected to participate in DROP on March 31, 2002. At the conclusion of DROP, Petitioner received a lump-sum payment of approximately $84,279.00 and received monthly benefits until Respondent ceased paying benefits in accordance with the proposed agency action. Petitioner's efforts at reemployment were unsuccessful. On January 31, 2007, the City employed Petitioner to perform the same work he previously performed at a base salary as a "new hire."2 The City assured Petitioner that reemployment would not adversely affect Petitioner's FRS retirement benefits because the City does not consider itself an FRS employer. A member of the City's human resources department contacted a representative for Respondent to verify the City's statutory interpretation. The conversation eventually led to this proceeding. Petitioner was not employed by an employer under the FRS during the next calendar month after completing his participation in DROP on January 11, 2007. Judicial decisions discussed in the Conclusions of Law hold that the issue of whether Petitioner is an employee of an FRS employer is a factual finding. When Petitioner began employment with the City on January 31, 2007, Petitioner was not a member of the FRS within the meaning of Subsection 121.021(12). He was not an employee covered under the FRS because he was hired after January 1, 1996, when the City revoked its participation in FRS. On January 31, 2007, Petitioner was not an employee within the meaning of Subsection 121.021(11). Petitioner was not employed in a covered group within the meaning of Subsection 121.021(34). Petitioner did not become a member under Chapter 121, and the City was not a "city for which coverage under this chapter" was applied for and approved for Petitioner. On January 11, 2007, Petitioner ceased all employment relationships with "employers under this system" within the meaning of Subsection 121.021(39). When Petitioner resumed employment on January 31, 2007, Petitioner did not fail to terminate employment with an employer under the FRS system. Petitioner's new employer was not an employer under the FRS system and had not been such an employer after January 1, 1996. After January 1, 1996, the City was not a covered employer for any employees employed after that date, including Petitioner. On January 31, 2007, Petitioner was not an employee of an employer within the meaning of Subsection 121.021(10). The City did not participate in the FRS system for the benefit of Petitioner. The employment of Petitioner by the City on January 31, 2007, had no financial impact on the FRS, and Petitioner did not begin to accrue new benefits with the FRS. Respondent did not demonstrate in the record why the agency's proposed statutory interpretation requires special agency insight or expertise and did not articulate in the record any underlying technical reasons for deference to agency expertise. Nor did the agency explain in the record or its PRO why the issue of whether Petitioner is an employee of an FRS employer is not an issue of fact that is within the exclusive province of the fact-finder. Respondent proposes a literal interpretation of selected statutory terms without explaining legislative intent for the prohibition against reemployment within the next calendar month.3 Respondent's proposed statutory interpretation also fails to distinguish the economic impact in situations involving what may be fairly characterized as a dual-purpose employer; that is one like the City which is part covered employer and part non-covered employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order reinstating Petitioner's monthly retirement benefits, paying all past due amounts to Petitioner, with interest, and dismissing its request for reimbursement of past FRS benefits from Petitioner. DONE AND ENTERED this 3rd day of June, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 3rd day of June, 2008.
