The Issue Whether Petitioner, Brian’s Painting and Wall Papering, Inc., conducted operations in the State of Florida without obtaining workers’ compensation coverage, meeting the requirements of Chapter 440, Florida Statutes (2007),1 in violation of Subsection 440.107(2), Florida Statutes. If so, what penalty should be assessed by Respondent, Department of Financial Services, Division of Workers’ Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees. § 440.107, Fla. Stat. Petitioner is a corporation domiciled in Florida and engaged in the construction industry, providing painting and wallpapering services to private residences in Florida. On December 4, 2007, Investigator Ira Bender conducted a random workers’ compensation compliance check of a new home construction site located at 4009 Twenty-second Street, Southwest, in Lehigh Acres, Florida. Investigator Bender observed two men painting. He later identified the two men as Larry Zoelner and Brian Zack, who were later determined to be Petitioner’s employees. Investigator Bender continued the investigation of Petitioner, utilizing the Respondent’s Compliance and Coverage Automated System (“CCAS”) database that contained all workers’ compensation insurance policy information from the carrier to an insured and lists all the workers’ compensation exemptions in the State of Florida. Based on his search of CCAS, Investigator Bender determined that for the period, December 3, 2004, through December 4, 2007 (“assessed penalty period”), Petitioner did not have a State of Florida workers’ compensation insurance policy or a valid, current exemption for any of Petitioner’s employees, including Zoelner and Zack. Based on his search of CCAS, he also determined that Petitioner did not have a State of Florida workers’ compensation insurance policy or a valid, current exemption for Brian Galvin, Petitioner’s owner and operator, for the assessed penalty period. Galvin admitted that he did not have an exemption prior to December 4, 2007. Section 440.05, Florida Statutes, allows a corporate officer to apply for a construction certificate exemption from workers’ compensation benefits or compensation. Only the named individual on the application is exempt from carrying workers’ compensation insurance coverage. Petitioner was not in possession of a current, valid construction industry exemption for its corporate officer, Galvin, during the three-year search period. To be eligible for the exemption in the construction industry, an employer must pay a $50 processing fee and file a “notice of election to be exempt” application with Respondent for each corporate officer and have that application processed and approved by it. 7. Subsections 440.107(3) and 440.107(7)(a), Florida Statutes, authorized Respondent to issue SWOs to employers unable to provide proof of workers’ compensation coverage, including proof of a current, valid workers’ compensation exemption. Failure to provide such proof is deemed “an immediate serious danger to public health, safety, or welfare . . .” § 440.107(7)(a), Fla. Stat. Based on the lack of worker’s compensation coverage and a current, valid workers’ compensation exemption for its employees, including Galvin, Respondent issued a SWO on Petitioner on December 4, 2007. The SWO ordered Petitioner to cease all business operations for all worksites in the State of Florida. On the day the SWO was issued, Investigator Bender also served Petitioner with a “Request for Production of Business Records for Penalty Assessment Calculation,” for the purpose of enabling Respondent to determine a penalty under Subsection 440.107(7), Florida Statutes. Pursuant to Florida Administrative Code Rule 69L-6.015, Investigator Bender requested business records from Petitioner for the assessed penalty period. The requested records included payroll documents, copies of certificates of exemptions, employee leasing records, and other business records. Investigator Bender was satisfied that the records produced by Petitioner were an adequate response to the business records request. Based on Investigator Bender’s review of the business records, he determined that Galvin was dually-employed during the assessed period. Dual employment occurs when an employee is paid remuneration by two different employers. Galvin was simultaneously employed by SouthEast Personnel Leasing, Inc., as a painter and by Petitioner as its chief operating officer. In calculating the assessed penalty, Investigator Bender only took into account Petitioner’s payroll. It was determined that the payroll from the leasing company demonstrated secured payment of workers’ compensation coverage for the two painters and for Galvin, when he was operating as a painter. Pursuant to Florida Administrative Code Rule 69L- 6.035, Investigator Bender included “dividends” paid by Petitioner to Galvin during the assessed penalty period, in calculating Petitioner’s total payroll amount used in the calculation of the assessed penalty. Galvin argued that dividends paid to him by Petitioner should be excluded from the calculation. However, the dividends that Petitioner paid to Galvin constituted unsecured payment for workers’ compensation coverage, in violation of Chapter 440, Florida Statutes, and the Florida Insurance Code. Through the use of the produced records, Respondent calculated a penalty for the assessed period. The Amended Order, which assessed a penalty of $45,363.76, was issued and served to Petitioner on December 13, 2007. Based on business records Investigator Bender received from SouthEast Personnel Leasing, Inc., on December 17, 2007, Investigator Bender determined that the classification code assigned for Galvin should be changed from 5474 to 5606. Classification code 5474 represented the designation for a painter while classification code 5606 represented the designation for a manager. In the course of his investigation, Investigator Bender also deleted Charlie Galvin after he determined Charlie Galvin was not Petitioner’s employee. Investigator Bender assigned the new class code to the type of work performed by Galvin while working as a manger for Petitioner, utilizing the SCOPES Manual. He multiplied the class code’s assigned approved manual rate with the payroll per $100, and then multiplied all by 1.5. Consequently, the 2nd Amended Order, which was issued and served to Petitioner on December 18, 2007, assessed a penalty in the amount of $19,943.08. The recalculated penalty, as calculated, was consistent with the method in which the investigator had calculated the previous penalties.
Recommendation Based on the Findings of Fact and Conclusions of Law, it RECOMMENDED that Petitioner enter a final order, as follows: Petitioner failed to secure workers’ compensation coverage for its employees, including its corporate officer, as required by statute; and Petitioner be assessed a penalty of $19,943.08. DONE AND ENTERED this 22nd day of May, 2008 in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 22nd day of May, 2008
Findings Of Fact Between October 1, 1988 and September 30, 1991, Petitioner's salary as the Director of the Department of Emergency Support Services for Hillsborough County was controlled by the compensation structure set forth in the Hillsborough County Exempt Service Classification and Compensation Plan (the Plan). His retirement system benefits were governed by Chapter 121, Florida Statutes as he was a member of the Florida Retirement System administered by the Division of Retirement. The Plan utilized by the County during this period of time created a pay structure for its exempt service employees that caused annual salary increases to be divided into two categories. The Plan referred to the categories as "merit increase" and "performance pay." Any salary adjustment under the "merit increase" category became part of the employee's adjusted base salary. "Performance pay" was an increase granted for a one year term. It was based upon work performance that exceeded performance standards during the preceding year. According to the Plan, the increase in salary from each of the categories was directly tied to the employees' annual performance rating. The possible percentages of the increases were regulated at the high end of the adjustment scale by a Maximum Performance Compensation Table. The one year "performance pay" increase could only be granted if the maximum "merit increase" was granted during the same evaluation. The method used to establish the pay increases for Petitioner under the Plan were applied because his salary was already above the midpoint of the pay grade the Plan dictated the County was willing to pay for the performance of his job when completed to the required standard. Salary increases above the midpoint were divided into the two separate categories in order to balance two distinct County interests. The first was to keep the maximum salary range in a pay grade aligned with the competitive salary indicators in the geographical area for the same type of work. The second was to annually reward each employee whose performance exceeded standards over the past year and to motivate continued high performance on an individualized basis. Petitioner's salary adjustments were divided between "merit increases" and "performance pay" for the three years which are the subject of this proceeding. During the time period between October 1, 1988 and June 30, 1989, the County was required to make a contribution into the Florida Retirement System for Petitioner's benefit. This contribution was a statutorily designated percentage of his monthly salary, including the annual "performance pay" increase. The inclusion of the "performance pay" increase was required by Subsection 121.021(22), Florida Statutes, which defines "compensation". In spite of this contribution into the system by the County, Subsection 121.021(24), Florida Statutes mandated that the Division had to exclude bonuses, whether paid as salary or otherwise, from the calculation of the "average final compensation" for a member seeking to establish the amount of his or her pension benefits. Effective July 1, 1989, the Legislature removed the provision in Subsection 121.021(22), Florida Statutes, which required employers to make a contribution into the system based upon a definition of "compensation" that included "bonuses" in the calculation. The Florida Retirement Systems Act has never included a definition of the word "bonus" as used in Subsections 121.021(22) and (24), Florida Statutes. The term, as used in Subsection 121.021(24) and as previously used in Subsection 121.021(22), is not plain nor the meaning clear. The term "bonus" is defined by the Division's rules, which excludes Petitioner's "performance pay" from any calculation of his "average final compensation." In its computation of Petitioner's "average final compensation", the Division determined that the "performance pay" category of the Hillsborough County Exempt Service Classification and Compensation Plan is a "bonus", as defined by Rule 22B-6.001(11), Florida Administrative Code. A definition of the term "bonus" is necessary to allow the Division to compute the "average final compensation" for each member of the system and for the determination of an employer's contribution into the Florida Retirement System on behalf of the member based on "compensation." Subsection 121.021(22), Florida Statutes, has consistently contained a clear definition of "compensation." The definition included the term "bonuses" until July 1, 1989 and excluded "bonuses" from the definition after that date. The definitions of "bonus" and "compensation" as set forth in Rules 22B-6.001(11) and (16)(a)3, Florida Administrative Code, establish adequate standards for agency decisions regarding retirement benefits. The definitions are based on relevant factors duly considered by the agency and they have been uniformly applied to all members.
The Issue The issue presented for decision herein is whether or not the Petitioner, Margie Ann Sims, was unlawfully terminated (by Respondent), Niagara Lockport Industries, Inc., due to her age in violation of the Florida Human Rights Act of 1977, Section 760.10, Florida Statutes (1983).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is forty eight (48) years old. She commenced work for Respondent, Niagara Wires, a subsidiary of Niagara Lockport Industries, Inc., located in Quincy, Florida during 1965 as an Accounts Payable Clerk. Petitioner was terminated on August 5, 1983, as a result of a reduction in staff and unsatisfactory work performance.1 During Petitioner's job tenure, she held various accounting and secretarial positions. Petitioner's initial duties were that of an accounting clerk and she later progressed to Assistant Chief Accountant. She later served as Corporate Bookkeeper and Secretary. Throughout her employment, her job duties were very broad and encompassed many areas of responsibility including overseeing accounts receivable, billings, payroll, bank statements, journal entries, wire transfers and financial statements. During 1975, Respondent's corporate office was moved to Quincy, Florida and Petitioner handled accounting and secretarial duties for the corporate office, dealt with banks making fund transfers, loan balancing and note arrangements; managed financial consolidation of Respondent's eight companies on a quarterly basis; maintained all pension plan records for Respondent's fourteen pension plans which included calculations of pension benefits, submission of wages and credited service to actuaries in preparation of various pension reports. Petitioner's other duties involved maintenance of company minute books, typing, submission and maintenance of files for all letters of credit issued; keeping patent and trademark files and assisted with telecopy, switchboard and TWX. (Petitioner's Exhibit 2). During 1976, Petitioner worked directly for Respondent's corporate secretary/treasurer, Robert Worrall. The assignment occurred as a result of a recommendation by Respondent's manufacturing manager, Don Anderson. Petitioner was considered the best of the three employees available to work for Worrall. Thereafter, several changes were made in Respondent's corporate makeup including the addition of the Lockport Felt Division in 1977. As a result, additional employees were placed in the accounting department and Petitioner's duties became more secretarial and clerical in nature than accounting. This situation remained unchanged until Petitioner's termination in 1983. Although Petitioner worked directly for Worrall, she was also expected to perform secretarial and clerical work for others in the accounting department, specifically including Harry Kurtz, Vice-President of Finance, Bruce Kennedy, Controller and Hank Burnett, Corporate Administrative Manager. While Petitioner's primary responsibility was to complete Worrall's work, she was also expected to perform work for other accountants and fiscal employees in the accounting department as she was the only trained employee in the accounting department available for typing duties. (TR 35, 106, 133-134, 117-119, 138, 142 and 153). Respondent has not maintained a formal policy concerning employee discipline or warnings for salaried employees, as Petitioner. (Testimony of Cairns and Worrall, TR 19, 46-47, 60 and 77). Commencing in 1980, Worrall became unhappy with Petitioner's work performance. This unhappiness took the form of counseling with Petitioner during year-end annual reviews and included the following deficiencies: "away from her work station when needed; too much time spent socializing with others; unwilling to work; pushing work back on Worrall; untimeliness and failing to timely complete work as assigned." (TR 85, 110, 116- 117). Like Worrall, other employees in the accounting department for whom Petitioner worked were dissatisfied with her performance during the years 1980-1983. Harry Kurtz, Vice- President of Finance, experienced problems with Petitioner's work quality including errors in typing and formatting, misspelled words and inaccurate numbers to the point where he did not want her (Petitioner) to perform his (Kurtz) work. He was thus forced to seek assistance from persons outside the accounting department, including Pat Simmons who replaced Petitioner, to perform his work. Kurtz related these problems to Worrall. (TR 128, 129-133, 131 and 136). Bruce Kennedy, Controller, experienced similar problems with Petitioner's work quality. He noted Petitioner frequently misspelled words and transposed numbers. Kennedy experienced problems concerning timeliness and the invalid excuses by Petitioner for failing to complete assigned work as scheduled. (TR 137-139). Based on Petitioner's poor work quality, Kennedy went outside the accounting department to get assistance in performing his clerical and secretarial duties. Kennedy informed Worrall of his dissatisfaction with Petitioner's work. Hank Burnett, Corporate Administrative Manager, also experienced problems with Petitioner's work quality in regards to accuracy and neatness. Burnett related an incident where Petitioner used so much "white-out" to make corrections that numbers on ledger sheets were not legible. Burnett also experienced problems with Petitioner in getting work returned timely. He also found it necessary to go outside the accounting_ department to solicit the assistance of Pat Simmons to perform his work. Burnett related to Worrall his dissatisfaction with Petitioner's performance. (TR 128, 150). Linda Jaudzimas is presently employed with Niagara Wire Weaving Employees Credit Union. She has held that position since approximately May of 1980. During the years 1978 through May of 1980, Jaudzimas was employed as an accounting clerk in the corporate accounting office for Niagara Lockport Industries. During that time period, she worked directly with Petitioner and Worrall. Jaudzimas described Petitioner and Worrall as having a very good work relationship and that Worrall depended upon Petitioner a lot. However, since May of 1980, Jaudzimas had only limited contact with Petitioner The typical degree of contact would be only to "pick up reports; I would get information from pensions for time reporting periods." (TR 54 and 58). Don Anderson is presently employed as the Manufacturing Manager for Respondent. Anderson has been in Respondent's employ since 1971. From 1971 through January 1, 1974, Anderson was Respondent's Chief Accountant. Anderson had no direct knowledge concerning Petitioner's work performance since January of 1974. Anderson corroborated Cairns and Worrall's testimony that Respondent had no formal policy concerning disciplinary action taken against salaried employees, as Petitioner. (TR 60). Respondent conducted informal evaluations of salaried employees, including Petitioner, at the end of each year in conjunction with salary increases. During Petitioner's 1981 work performance evaluation, Worrall discussed his concerns with Petitioner including the fact that she spent too much time talking to other people; that he always had to look for her and she pushed work back on him. Petitioner's time away from her work station and her negative attitude toward the company's insurance program were items of discussion. (TR 17; 84-88). An entire list of Worrall's concerns respecting Petitioner's job performance were placed in her personnel file during the 1981 annual performance review. (Respondent's Exhibit 1). Petitioner recalls Worrall using that list during their meetings. (TR 36). Petitioner's performance did not improve during the following year and Worrall expressed the same concerns to her during her annual work performance review during 1982. (TR 115-116). Petitioner received "good" salary increases during the late 70's however, due to her poor performance from 1980-1982, Worrall recommended that she receive only the minimum cost of living increases for the years 1981, 1982 and 1983. In mid 1983, Respondent made a decision to reorganize its corporate offices by moving the sales office of Niagara Lockport from Quincy to Starkeville, Mississippi and by making a change in the research and development department. Pat Simmons, age 41, was secretary for the vice-present of research and development. Worrall was familiar with Ms. Simmons and her work having seen it first hand. Additionally, she was highly recommended by her then supervisors. Finally, she had performed work considered to be "high quality" by other employees in the accounting department including Kurtz, Kennedy and Burnett. When Simmons became available due to the reorganization, Worrall decided to replace Petitioner with Simmons. Petitioner's job had become primarily secretarial and clerical in nature and Worrall desired a competent executive secretary to replace her. (TR 88 90, 92, 94, 121-122, 127). Petitioner was 45 years of age at the time of her termination. (Respondent's Exhibit 3). Petitioner's duties were assumed by Simmons (95 percent) and Elaine Hall (5 percent) who was retained since she- possessed requisite accounting skills. Hall was able to complete the cash report in two hours, a job that had taken Petitioner the better part of a day to perform. (TR 86). As a result of the reorganization, two other employees, Loretta Hood (mid 30's) and Virginia Jeffcoat (mid 50's) were terminated. Petitioner was terminated in August, 1983 for the reasons that her performance was not satisfactory and a qualified person (Simmons) had become available due to Respondent's corporate reorganization and staff reduction. This was told to Petitioner at the time of her termination. (Respondent's Exhibit 2; TR 68, 93). Subsequent to her termination, Petitioner requested that Worrall write her a letter of recommendation. Worrall complied, however, Petitioner was not pleased and asked him to write a second one giving him an example to follow (Respondent's Exhibit 7). Petitioner wanted a "good" letter of recommendation so that she could easily obtain another job. In writing the recommendation, Worrall followed his policy of not commenting on negatives but merely set out the type of work Petitioner performed. Petitioner was still unsatisfied with Worrall's second letter and she therefore asked the Respondent's President, Malcolm Cairns, to write a letter of recommendation for her. As with Worrall, Petitioner participated in the drafting of the letter for Cairns by providing him with an example. (TR 22, 23 and 70). Cairns did not include anything negative in the letter so that it would be easier for Petitioner to obtain another job.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order finding that Petitioner was not terminated due to her age in violation of the Florida Human Rights Act of 1977, as amended. Section 760.10, Florida Statutes (1983) and that Petitioner's Petition for Relief be DISMISSED. DONE and ORDERED this 10th day of March, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1986. COPIES FURNISHED: Steven L. Seliger, Esquire 229 E. Washington Street Quincy, Florida 32351 Swift, Currie, NcGhee and Hiers, P.A., by Victor A. Cavanough 771 Spring Street, N.W. Post Office Box 54247 Atlanta, Georgia 30379-2401 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240/ Tallahassee, Florida 32303. Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue Is the Petitioner, Gaylord A. Wood, Jr., entitled to an award of fees and costs from Respondent, R.C. "Rick" Lussy, under section 106.265(6), Florida Statutes (2016),1/ for filing a complaint against Mr. Wood "with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this chapter [chapter 106] or chapter 104?" If Mr. Wood is entitled to an award of fees and costs, what is the proper amount of fees and costs to be awarded?
Findings Of Fact On August 24, 2016, Mr. Lussy filed a Complaint Affidavit against Mr. Wood with the Commission. Mr. Lussy’s Complaint Affidavit identified the person against whom the complaint was brought as “Gaylord A. Wood Jr. Esq., Florida [sic] FBN 089465, lawyer for Abraham Skinner Incumbent.” The seven-page affidavit does not allege that Mr. Wood is an elected official or that he has been a candidate for elected office. Mr. Wood is not an elected official. Mr. Wood has never run for elected office. He represented Abraham Skinner in Florida Elections Commission Case No. 16-245. The case arose out of a complaint by Mr. Lussy. Mr. Skinner was the elected property appraiser for Collier County. Mr. Wood was successful in that representation. The Commission dismissed Mr. Lussy’s complaint. Mr. Lussy is a property appraiser. He was going to be an expert witness for the plaintiff in a case where Mr. Wood represented the elected Property Appraiser for Collier County. Mr. Wood deposed Mr. Lussy. Shortly after the deposition, Mr. Lussy’s client dismissed his lawsuit. Mr. Wood also filed a complaint against Mr. Lussy with the Appraisal Institute, questioning Mr. Lussy’s fitness to provide property appraisals. Because of these experiences, Mr. Lussy holds ill will for Mr. Wood. He acted with malice in filing his complaint. This invective and vitriol of statements in the Complaint Affidavit manifest malice. The statements include referring to “empty boasting” by Mr. Wood, stating that Mr. Wood is a “cartel representative lawyer,” accusing Mr. Wood of manipulation and falsification of public records, describing a response to a public records request as malicious, describing Mr. Wood as “a classic corrupt persuader,” charging Mr. Wood with obstruction of justice, and asserting Mr. Wood participated in criminal acts. Mr. Lussy augments these claims with attacks against Mr. Wood’s client accusing him of “womanizing,” sexual harassment, boring public officials, wrongly denying portability of a homestead exemption, and by referring to him as “Dishonest Abe.” When Mr. Lussy filed the complaint against Mr. Wood, he knew that Mr. Wood was not an elected official or candidate for elected office. The letter from the Commission’s Executive Director advising Mr. Lussy that his amended Complaint Affidavit was legally insufficient accurately describes it. The letter states: “While almost impossible to discern, the essential allegation of this complaint, as amended, appears to be that Respondent conspired with Property Appraiser Abraham Skinner to manipulate and falsify public records and obstruct justice.” Mr. Lussy offered no evidence tending to prove the allegations described. Mr. Lussy’s Complaint Affidavit refers to sections 104.051, 104.011, and 104.091, Florida Statutes. Section 104.051 imposes penalties upon any official who violates the election code, performs his or her duty fraudulently or corruptly, or attempts to influence or interfere with an elector voting a ballot. Section 104.011 prohibits providing false information in connection with voting or voter registration. Section 104.091 makes knowingly aiding, abetting, or advising violation of the election code an offense. In this proceeding, Mr. Lussy offered no evidence indicating that he had reason to believe that Mr. Wood was an elected official or a candidate for elected office. His Complaint Affidavit demonstrates that he knew Mr. Wood served as a lawyer for Mr. Skinner. Mr. Wood is not an “official” as the word is used in chapter 104. Mr. Lussy offered no evidence to support the allegations of his Complaint Affidavit. He offered no evidence that Mr. Wood violated sections 104.051, 104.011, or 104.091. Mr. Lussy offered no evidence that would support a finding that he could reasonably think that Mr. Wood violated the prohibitions of those statutes. Mr. Lussy offered only his bare and assertions. Most deal with complaints about property appraisals by Mr. Skinner, responses to requests for documents under Florida’s Public Records Act, and Mr. Skinner’s maintenance of the property tax rolls. Mr. Lussy filed his Complaint Affidavit with reckless disregard for whether the complaint contained false allegations of fact. He also filed it with reckless disregard to the absence of allegations of violations of the election code by Mr. Wood. Mr. Lussy acted with ill will or malice. The statement of attorney time spent on Mr. Wood’s behalf reasonably reports time spent on routine activities such as reviewing orders and drafting motions. The time spent preparing for the hearing is also reasonable. The bulk of Mr. Lussy’s filings in this proceeding and before the Commission were lengthy, difficult to read, confusing, and disorganized. This made reading and evaluating Mr. Lussy’s filings time- consuming. The nature of Mr. Lussy’s filings and the multiple filings related to Mr. Lussy’s misuse of subpoena authority made this proceeding more time consuming than it otherwise would have been. With the exception of the entries discussed below, the time recorded as expended on the tasks and activities is reasonable. The unrebutted testimony of Mark Herron, Esquire, accepted as an expert in attorneys’ fees in administrative proceedings, establishes the reasonableness of the fees claimed. March 16 - .125 – File Amended Petition to Award Fees and Costs (time should be attributed to representation before the Commission not the Division) March 23 - .5 (reduce to .3) – Read Initial Order March 27 – 3.5 (reduce to 1.0) – Read/Dissect Respondent’s Public filing March 27 – 4.0 (reduce to 1.5) – Read/Dissect Counterclaim April 3 – 6.5 (reduce to 2.0) – Read/Dissect Lussy Emergency Answer to Scheduling Order Mr. Herron testified that the .5 hours spent on April 24 to draft and file the witness and exhibit list should be increased to 1.0 hours. The proposal is not accepted. First, the witness and exhibit list was elementary and should have been simple to prepare, as apparently it was. Second, the statute provides for award of fees incurred. The proposed increase of .5 hours does not represent a fee incurred. The hearing in this matter lasted four hours. The time was not included in the itemized statement filed before the hearing for obvious reasons. The time was, however, spent and is a reasonable amount of time for the hearing. Four hours are added to the time used to calculate attorney’s fees. Mr. Wood seeks payment for nine hours of Mr. Woolsey’s time identified as “drive time.” Florida’s Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, III(D)1, identifies attorney travel time as a litigation cost that should not be recovered. The nine hours are not included in the hours for which attorney’s fees are awarded. Mr. Lussy offered no evidence about what would be a reasonable number of hours for an attorney to work to represent Mr. Wood in the proceeding before the Commission or the proceeding at the Division. He also offered no evidence about what a reasonable hourly rate for an attorney would be. The reasonable hourly rate in this jurisdiction for proceedings before administrative agencies and the Division ranges between $250.00 to $400.00 per hour, depending on the lawyer’s degree of expertise. Mr. Woolsey is an experienced lawyer. However, he has no litigation or administrative law expertise. Handling this case also did not interfere with Mr. Woolsey’s ability to attract or retain other clients. The representation was not unduly time-consuming or difficult. Mr. Woolsey’s normal hourly rate for public officials is $200.00 per hour. His normal hourly rate for private clients is $350.00. Awarding fees based on a rate of $250.00 per hour is reasonable in this matter. The reasonable time spent on proceedings before the Commission is 8.025 hours. The reasonable time spent on proceedings before the Division is 35.425 hours. The total time reasonably spent for representation of Mr. Wood in this proceeding is 43.45 hours. The total number of hours do not reconcile with the totals shown in Petitioner’s Amended Itemized Statement of Costs and Reasonable Attorney’s Fees because the itemized statement contains mathematical errors. Mr. Wood’s Proposed Recommended Order seeks payment of costs in this matter. He, however, did not offer evidence of costs at the hearing. He only provided information about costs in a post-hearing statement filed June 16, 2017. The amount of reasonable attorney’s fees for Mr. Woolsey’s representation of Mr. Wood in this proceeding is $10,862.50.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Elections Commission enter an Order awarding Petitioner Gaylord A. Wood, Jr., attorney’s fees in the amount of $10,862.50 against Respondent, R.C. “Rick” Lussy. DONE AND ENTERED this 21st day of July, 2017, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 21st day of July, 2017.
Findings Of Fact Petitioner filed his petition and request for formal hearing approximately December 1, 1992. The attachments thereto suggest that he began requesting redress June 19, 1992. The agency referred his December 1, 1992 petition to the Division of Administrative Hearings, pursuant to Section 120.57(1) F.S. The Petitioner alleges that Petitioner's substantial interests are adversely affected by his employing agency paying other employees similarly situated more than Petitioner is paid. The Petition's attachments also obliquely put at issue the agency's refusal to process a special pay increase request for an individual exception in Petitioner's pay rate to the Department of Administration (now Department of Management Services). Such an application was refused by the agency approximately May 21, 1990. (See Petition attachments and Petitioner's Exhibit P-6.) Petitioner has not formally petitioned to invalidate any agency rule. Petitioner was hired by the Department of Corrections on April 6, 1965 in the position of guard. On September 1, 1965, he was promoted to Road Prison Officer I (RPO I), and his salary was increased. On October 27, 1989, he was promoted to Correctional Officer II (CO II). At the time of his promotion to CO II, his biweekly salary was $1,029.07. The maximum biweekly salary for that class was $1,004.14. Salary ranges for a job-class are posted on the job vacancy notice for that position. Petitioner had constructive, if not actual, knowledge of the pay grade range (maximum and minimum) at the time he accepted his October 27, 1989 promotion to CO II. Petitioner remained in the CO II class as of the date of formal hearing, however CO II is now known as Correctional Officer-Sergeant. The Petition herein has not affirmatively put at issue the Respondent agency's failure to promote Petitioner since 1989, however it is noted that at all times material, Petitioner met or exceeded all job performance requirements of a CO II. Petitioner, like all other employees similarly situated, has received salary adjustments and pay raises as appropriated by the legislature since October 27, 1989, even though he exceeded the maximum salary for the class he was occupying at the time. The testimony is clear that, as a CO II, Petitioner's salary is negotiated with the Respondent agency by a bargaining representative of the Police Benevolent Association, and that Petitioner was aware, at least by May 21, 1990, when he was denied an individual pay adjustment above the maximum for his pay grade, that he could file a grievance. He has never done so. From the foregoing, the only reasonable inference is that Petitioner has, at all times material, been subject to the terms of a collective bargaining agreement for State of Florida career service employees which provides for a grievance procedure. The terms of the collective bargaining agreement are not in evidence, however. As of the date of formal hearing, Petitioner also has filed no action before the Public Employees Relations Commission. The maximum authorized annual salary for a Correctional Officer- Sergeant as of the date of formal hearing was $29,479.84. At the present time, six employees ranked as Correctional Officer-Sergeant receive salaries in excess of Petitioner's salary. These employees in the same class are James Vaughn, Charles Williams, John C. Norman, Glynn H. Dunham, James Newsome and James Hamilton. Some of these employees have been employed by Respondent fewer years total than Petitioner. James Vaughn was promoted to CO II (now Correctional Officer-Sergeant) on April 19, 1974; Charles Williams on November 28, 1975; John C. Norman on February 20, 1976; Glynn H. Dunham on November 9, 1975; James Newsome on January 9, 1976; and James Hamilton originally on December 1, 1975 and then after a separation from employment, rehired as a CO II on January 1, 1985. As of January 1, 1987, all six of these employees were granted an across the board pay raise which equalized their salaries. The excess raise was given to the employees in a lump sum payment. Employees working in certain geographical regions of the state were granted a set pay adjustment for that region, up to $5,000. This amount may cause an employee's salary to exceed the maximum of the pay range for the CO II class. The Petitioner does not work in one of these geographic regions. By the time Petitioner was promoted to the position of CO II on October 27, 1989, the other six employees were earning $1,120.04, biweekly. Although their salaries exceeded the maximum salary for that class ($1,004.14), their pay raises were appropriated by the legislature across the board, regardless of whether the maximum range would be exceeded. Petitioner was also being paid in excess of the maximum for his class (RPO I) and in excess of the promotional class (CO II). Petitioner's biweekly salary at that time was $1,029.07. He also was given a raise in salary whenever it was authorized by a legislative appropriation bill. (See Finding of Fact 5). In early 1993, Petitioner brought to Respondent agency's attention that another employee, Richard E. Cobb, was making a salary in excess of what was permissible. Once the Department became aware of the error, it forwarded the information to the State of Florida, Office of the Comptroller for review. The error was corrected, and Richard E. Cobb's salary was reduced prospectively and the retroactive recovery of the overpayment was begun through deductions to Mr. Cobb's salary. Petitioner also complained about employee Blendage Weeks being promoted on September 1, 1989 with a 3.5 percent pay raise. Mr. Weeks is not a similarly situated employee because he is in a different job class than Petitioner. Also, although Petitioner believed that Mr. Weeks was given a raise in excess of the maximum for his class (Correctional Officer Chief I), in fact, the evidence shows that Mr. Weeks received a raise that brought him up from his then salary of $1,209.55 biweekly to the maximum for his class of $1,253.31 biweekly. 17. Rule 60K-2.002(5), F.A.C. (formerly 22A-2.001) provides: An employee shall not be paid in excess of the maximum of the salary range for a class, unless such payments are authorized by these rules or legislation. 18. Rule 60K-2.004(1)(b), F.A.C. (formerly 22A-2.004) provides: The agency head is authorized to grant a promotional appointment to an individual at a base rate of pay from the minimum to the maximum of the salary range for the class to which promoted provided such increase does not exceed 10 percent of the employee's base rate of pay prior to promotion. Pursuant to the foregoing rules, promotional pay raises are treated differently than legislatively appropriated pay raises and the agency may grant a promotional pay raise as long as it does not exceed the maximum of the salary range for the class into which the employee is being promoted. Petitioner does not fall into any of the protected classes governed by Section 760.10, F.S. and has filed no charge of discrimination with the Florida Commission on Human Relations.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the relief sought be denied and the petition therefore dismissed. RECOMMENDED this 21st day of December, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7417 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-2 Accepted, except as to month and day. Accepted as to content of Rule 60K-2.002(5) [not 60K-1.002(5)] F.A.C. The remainder of PFOF 3 is not properly cited. Accepted. Accepted as to what the salaries are and their names. The remainder of PFOF 5 is rejected as mere argument. Respondent's PFOF: 1-7,9-11,14-15 Accepted. 8,12 Accepted as modified to more accurately reflect the record evidence. 13 Covered in FOF 8; otherwise rejected as immaterial. Rejected as mere argument. Covered except as cumulative; see FOF 16. Rejected as evidentiary rulings or cumulative; see FOF 12. COPIES FURNISHED: Brian T. Hayes, P.A., Esquire 245 East Washington Street Monticello, Florida 32344 Laura S. Leve, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Harry K. Singletary, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
The Issue The issue in the case is whether David Bumgarner (Respondent) should be assessed a penalty for an alleged failure to obtain workers' compensation coverage for his employees.
Findings Of Fact The Petitioner is the state agency designated to enforce the provisions of Chapter 440, Florida Statutes (2008),1 which requires that employers in Florida obtain workers' compensation coverage for their employees. The Respondent is a sole proprietor based in North Carolina and doing business as "Builders and Assemblers." On February 25, 2009, Ira Bender, an investigator employed by the Petitioner, observed ten men assembling the iron-and-steel frame for a single story storage building being constructed at 7253 Gasparilla Road, Port Charlotte, Florida. The Respondent was present at the time Mr. Bender observed the workers, and Mr. Bender asked the Respondent about the project. The Respondent advised Mr. Bender that he was the owner of the company constructing the building, that the ten men erecting the building frame were his employees, and that they were being paid $10.00 per hour. Mr. Bender, accompanied by the Respondent, then spoke to each of the ten men at the work site and obtained their names and other relevant information. The Respondent provided to Mr. Bender a copy of a certificate of insurance from "Acord" bearing policy number BNUWC0108275. Mr. Bender reviewed the Petitioner's "Coverage and Compliance Automated System" (CCAS) database and information contained on the National Council on Compensation Insurance ("NCCI") website. Both sources are routinely used to monitor and review workers' compensation coverage. Neither the CCAS database nor the NCCI website indicated that the Respondent had workers' compensation coverage valid within Florida for any of the ten employees at the work site or that the Respondent had a valid exemption from coverage for any employee. After discussing the collected information with his supervisor, Mr. Bender issued a Stop Work Order and Order of Penalty Assessment dated February 25, 2009. The Respondent subsequently provided a copy of his workers' compensation policy to the Petitioner. The policy information page attached to the policy is an NCCI-issued form identified as "WC 00 00 01 A." The Respondent's policy's information page provides, in relevant part, as follows: 3.A. Workers Compensation Insurance: Part One of the policy applied to the Workers Compensation Law of the states listed here: NC * * * C. Other States Insurance: Part Three of the policy applies to the states, if any listed here: All states and U.S. territories except North Dakota, Ohio, Washington, Wyoming, Puerto Rico, and the U.S. Virgin islands, and states designated in Item 3.A. of the Information Page. Administrative rules adopted by the Petitioner and referenced elsewhere herein explicitly state that the coverage identified in the Respondent's policy information page is not valid within the State of Florida. Mr. Bender also issued a Request for Production of Business Records on February 25, 2009. Other than the previously referenced insurance certificate and policy, no further business records were provided to the Petitioner by the Respondent. Mr. Bender subsequently forwarded the case to Lynn Murcia, the Petitioner's penalty calculator. Because the Respondent failed to provide business records sufficient to enable computation of a penalty, Ms. Murcia computed the penalty based on an imputed payroll as provided by Florida law. The NCCI publishes the "SCOPES Manual," which contains a commonly-used system of occupational classifications used to determine workers' compensation requirements. In Florida, the SCOPES Manual has been adopted by incorporation into the Florida Administrative Code. The SCOPES Manual identifies the erection of steel or iron frames for buildings not in excess of two stories under classification code 5059. The Respondent's employees were engaged in such activities, and Ms. Murcia therefore properly classified the Respondent's employees under code 5059. Ms. Murcia utilized the SCOPES classification in determining the imputed payroll applicable to this case and, thereafter, computed the penalty according to a worksheet that has been adopted as an administrative rule by the Petitioner. The worksheet is routinely used to calculate penalties applicable to employers who fail to obtain workers' compensation coverage for employees. Based on Ms. Murcia's calculations, the penalty was identified as $1,764,643.98, as was set forth in an Amended Order of Penalty Assessment issued on March 31, 2009. Ms. Murcia's calculation of the applicable penalty, including her reliance on the applicable SCOPES classification codes and the imputation of the Respondent's payroll, was not disputed at the hearing. Her testimony has been fully credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a penalty of $1,764,643.98 against the Respondent. DONE AND ENTERED this 9th day of September, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 9th day of September, 2009.
The Issue Whether Petitioner, Moncrief Bail Bonds, Inc., conducted business operations in the State of Florida without obtaining workers' compensation coverage, meeting the requirements of Chapter 440, Florida Statutes (2005), in violation of Subsection 440.107(2), Florida Statutes (2002 through 2005). If so, what penalty should be assessed by Respondent, Department of Financial Services, Division of Workers' Compensation, pursuant to Section 440.107, Florida Statutes (2005),1 and Florida Administrative Code Rule, Chapter 69L.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. Petitioner is a corporation domiciled in Florida, and engaged in the business of issuing bail bonds. On August 3, 2005, Respondent's investigator, Robert Cerrone, visited Petitioner's office location at 3910 South John Young Parkway, Orlando, Florida, on a referral from his supervisor. He interviewed a number of persons at the office site. Cerrone documented his investigation in the narrative of his Initial Investigative Report. Based upon these field interviews, Respondent determined that the workers were employed by Petitioner. Cerrone contacted Petitioner's president, Russell Bruce Moncrief, and inquired whether Petitioner had secured the payment of workers' compensation, to which Moncrief responded that he had never secured the payment of workers' compensation for his business. Subsequent to the site visit, it was determined that Petitioner did not have a State of Florida workers' compensation insurance policy to provide workers' compensation coverage for any of its workers. Florida law requires that an employer who has four or more employees, engaged in non-construction work in Florida, obtain a Florida workers' compensation policy. Petitioner was an employer, with four or more employees, all of whom were paid remuneration, during all times material to the instant case. Florida Administrative Code Rule 69L-6.019(2) requires that in order for an employer to comply with Subsections 440.10(1)(g) and 440.38(7), Florida Statutes, any policy or endorsement used by an employer to prove coverage of workers' compensation for employees engaged in Florida work, must be issued by an insurer that holds a valid certificate of authority in the State of Florida. Chapter 440, Florida Statutes, allows an individual to apply for an election to be exempt from workers' compensation benefits. Only the named individual on the application is exempt from carrying workers' compensation insurance coverage. During the relevant time period, there were no current, valid exemptions for Petitioner. 11. Subsections 440.107(3) and 440.107(7)(a), Florida Statutes, authorize Respondent to issue Stop-Work Orders to employers unable to provide proof of workers' compensation coverage. Failure to provide such proof is deemed "an immediate serious danger to public health, safety, or welfare " On August 3, 2005, Respondent issued and served on Petitioner a SWO and Order of Penalty Assessment for failing to obtain coverage that meets the requirements of Chapter 440, Florida Statutes, and the Insurance Code, Chapter 624, Florida Statutes. Also at that time, Cerrone issued a Request for Production of Business Records for Penalty Assessment to Petitioner, seeking business records for the period August 3, 2002, through August 3, 2005. Employers conducting business in Florida are required to keep business records that enable Respondent to determine whether the employer is in compliance with the workers' compensation law. Petitioner complied with the records request and provided Respondent with the requested payroll records for the time period between August 3, 2002, and August 3, 2005. Utilizing the records provided, and applying the statutorily mandated penalty calculation methodology, the penalty for Respondent was calculated by assigning a class code to the type of work conducted by the employees, utilizing the manual approved by rule. The approved manual rate was multiplied by the wages paid to the employee per one hundred dollars, and the product therof was then multiplying by 1.5. The Amended Order, which assessed a penalty of $51,499.34, was personally served on Petitioner on August 4, 2005. On August 12, 2005, Petitioner entered into a Payment Agreement Schedule for Periodic Payment of Penalty, and was issued an Order of Conditional Release from the SWO by Respondent. Petitioner made a down payment of ten percent of the assessed penalty, provided proof of compliance with Chapter 440, Florida Statutes, by obtaining six exemptions for officers of the corporation, and agreed to pay the remaining penalty in 60 equal monthly installments. The entities listed on the Amended Order penalty worksheet were Petitioner's employees, during the relevant period, and none had valid workers' compensation exemptions or workers' compensation coverage. At the hearing, Petitioner attempted to provide an alternative class code for the calculation of the penalty that significantly reduced his penalty. Petitioner alleged that his workers were misclassified by Respondent as Class Code 7720, police officers and drivers, when in fact they should have been classified under Class Code 8810, clerical office employees. Petitioner contends that the calculation of the penalty imposed is inaccurate. Specifically, six of Respondent's employees, although these individuals held bail bonds licenses, performed only clerical duties and did not go into the field to apprehend persons in violation of their bail bond or court order. Their rate of compensation was based on their experience and knowledge, rather than their job descriptions. Petitioner introduced evidence that the current workers' compensation policy, which exempts six employees, is less than the premium calculated by Respondent. Class Code 7720, utilized by Respondent, is the most appropriate code for bail bondsmen regardless of whether their duties were mostly performed in the office. Furthermore, all of the individuals on the penalty worksheet classified under Class Code 7720 possess surety agent (bail bond) licenses, and are thus able to function as bail bondsmen in their full capacity, including, but not limited to apprehending individuals. At the final hearing, Petitioner provided information that six of its employees had obtained workers' compensation exemptions, four of which listed the employee's duties as "bail bondsman" and two as "clerical." Petitioner also alleged that his workers were independent contractors, but did not provide evidence to support that assertion.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a Final Order, as follows: Petitioner failed to secure worker's compensation coverage for its employees, as required by statute; and Petitioner be assessed a penalty of $51,499.34. DONE AND ENTERED this 16th day of February, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 16th day of February, 2007.
The Issue Whether Petitioner forfeits his rights to benefits under the Florida Retirement System.
Findings Of Fact On May 5, 2011, Petitioner was mayor of North Miami Beach, Florida. During Petitioner’s employment as mayor with North Miami Beach, he was a member of the Florida Retirement System. On or about October 17, 2012, Petitioner was charged by Information with nine criminal counts in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. On February 24, 2016, pursuant to a written Plea Agreement, Rosner entered a plea of guilty to Count 11/ Unlawful Compensation [or] Reward for Official Behavior, in violation of section 838.016(2), in Eleventh Circuit case F12023663. That same day in the Eleventh Circuit case F12023663, Judge Martin Bidwill issued the following orders: an Order Ratifying Terms of Plea Agreement; a Disposition Order specifying Rosner’s plea to Count 1 Unlawful Compensation [or] Reward for Official Behavior; and a Finding of Guilt Order to Count 1 Compensation [or] Reward for Official Behav[ior]/Influence. The October 17, 2012, Information detailed the factual basis of Rosner’s plea and conviction in Count 1.2/ Petitioner illegally received unpaid campaign advertising from Martin Outdoor Media, which had a continuing contract with the City of North Miami Beach while Petitioner served as mayor. Count 1 provides in relevant part, the following: COUNT 1 MYRON JOEL ROSNER, on or about May 5, 2011, in the County and State aforesaid, being a public servant to wit: MAYOR OF NORTH MIAMI BEACH did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept any pecuniary or other benefit not authorized by law, to wit; UNPAID CAMPAIGN ADS, for the past, future, or future exertion of any influence upon or with any other public servant regarding any act or omission which said public servant represented as being within the official discretion of a public servant, to wit: CONTINUE ALL MARTIN OUTDOOR MEDIA CONTRACTS WITH THE CITY OF NORTH MIAMI BEACH, in violation of s. 838.016(2), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.3/ Rosner was notified by certified letter dated April 20, 2016, of the Division's proposed action to forfeit his Florida Retirement System rights and benefits pursuant to sections 112.3173 and 121.091(5)(f). The notice provided the following basis for the proposed action: . . . . as a result of your guilty plea in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, for acts committed in connection with your employment with the City of North Miami Beach. Specifically, on or about October 18, 2012, in Case Number F12-023663 (2012-CF_023663), you were charged by information, in relevant part, with unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, based on conduct which occurred on or about May 5, 2011. On or about February 24, 2016, you entered a guilty plea for one count of unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, and adjudication of guilt was withheld. By Petition dated May 9, 2016, Rosner contested the Notice and challenged the forfeiture.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, Florida Statutes, and directing the forfeiture of his Florida Retirement System rights and benefits. DONE AND ENTERED this 15th day of June, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 15th day of June, 2017.
The Issue The issue for determination in this case is whether the Petitioner is entitled to purchase a retirement service credit for approximately three and one-half years pursuant to Section 121.011(3)(e), Florida Statutes. The record in this cause consists of all documents filed in this cause either with the Hearing Officer or with the Division of Retirement, including all documents received in evidence at the hearing as exhibits. After review of the record in this case, the Division accepts all the findings of fact as set forth by the Hearing Officer in his recommended order. However, the Division is unable to accept all of the conclusions of law as set forth by the Hearing Officer in his recommended order.
Findings Of Fact As a teacher with the Orange County School Board (the School Board") since 1967, Petitioner is a member of the Florida Retirement System. Petitioner was so employed in 1978 and was a member of the Florida Retirement System at that time. In January, 1978, Petitioner was on approved personal leave for her wedding. Her husband lived in Arkansas. Petitioner requested and was granted a leave of absence to join her husband in Arkansas for the balance of the school year. Petitioner and her husband intended to return to Orlando, Florida before the beginning of the next school year. Petitioner's husband intended to accept a position with a veteran's clinic in the Orlando area. Petitioner intended to resume employment with the School Board. On January 16, 1978, Petitioner properly submitted a written request for a leave of absence. The leave requested was limited to the remaining term of the school year which ended in June, 1978. The request asked for a teaching assignment in the event the request was denied. On February 14, 1993, the School Board granted Petitioner's request for a leave of absence. The School Board's written authorization was issued on a standard approval form used by the School Board for such authorizations. The one page form consisted of standard boiler plate language except for three blanks in the first paragraph stating the date of approval, the reason for the leave, and the expiration date for the leave. The boiler plate language in the standard form included the following statement: . . . A teacher who desires to return to employment at the expiration of the leave period must notify the Superintendent in writing by March 1 of the school year for which the leave was granted. . . . Petitioner notified the Superintendent in writing of her desire to return to employment. Petitioner's written request on January 16, 1978, was addressed to the School Board. The relationship of the School Board and Superintendent is that of principal and agent. Petitioner's written request expressly provided that the leave period was limited to the remainder of the school year and that Petitioner wanted a teaching assignment if the request for leave of absence was denied. The requirement for notice prior to March 1, 1978, was based on the Master Agreement, Article IX, Section L, entered into by the School Board and the teacher's union. No similar requirement appears in Respondent's rules. Florida Administrative Code Rule 60S-2.006(1)(a) requires only that: . . . A leave of absence must be authorized in writing by a member's employer prior to or during the leave of absence. Petitioner's leave of absence was authorized in writing by Petitioner's employer during her personal leave. Early in February, 1978, Petitioner telephoned Mr. Royce B. Walden, Associate Superintendent of the School Board, and informed him that she desired to return to her employment at the beginning of the next school year; in the Fall of 1978. Mr. Walden did not indicate to Petitioner that she had failed to provide timely written notice of her intent to return to employment. Later in February, 1978, Petitioner traveled to Orlando. While in Orlando, Petitioner telephoned Mr. Walden and again stated her desire to return to employment at the beginning of the next school year. The Associate Superintendent did not indicate to Petitioner that she had failed to provide timely written notice of her desire to return to employment. In May, 1988, Petitioner moved back to Orlando. Petitioner again telephoned Mr. Walden. Petitioner was informed for the first time during that telephone conversation that there may not be a teaching position available for her at the beginning of the next school year. The reason stated by the Associate Superintendent was that Petitioner had failed to notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. Petitioner immediately wrote a letter on May 25, 1978, restating her desire to return to employment at the beginning of the next school year. On the same day, Mr. Walden issued a letter to Petitioner stating that the School Board would not automatically assign Petitioner to an employment position for the 1978-1979 school year. The reason stated in Mr. Walden's letter was that Petitioner failed to comply with the requirement that she notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. On July 11, 1978, Mr. Walden issued a letter to Petitioner purporting to terminate her as an employee of the School Board. The reason given for the purported termination was that Petitioner had failed to give written notice to the Superintendent by March 1, 1978, of her desire to return to employment. The letter purporting to terminate Petitioner contained no notice of Petitioner's rights to challenge the School Board's proposed action, including the right to a proceeding under Section 120.57, Florida Statutes. After informing Petitioner of the purported termination and the reason, the letter stated: . . . Should you wish to return as an employee with the School Board of Orange County, we invite you to communicate with us in the near future. Please accept our sincere appreciation for your contribution to the educational program for children in the Orange County Public School System. 1/ Shortly after July 11, 1978, the School Board sued Petitioner for repayment of funds allegedly advanced to Petitioner for a paid sabbatical in 1973. The litigation culminated in a settlement agreement and Petitioner's reinstatement to her employment for the 1981-1982 school year with credit for nine years of service. Petitioner has been continuously employed by the School Board since that time and has maintained her continuing contract status with no loss in seniority. The settlement agreement did not pay Petitioner any back compensation and did not address Petitioner's fringe benefits, including the right to purchase the retirement service credit for the period of January, 1978 through the date of her reinstatement. Petitioner must pay the total cost of providing the retirement credit into the Retirement System Trust Fund. The economic burden of the retirement service credit falls solely on Petitioner. Petitioner's purchase of the retirement service credit will not result in any adverse economic impact on the School Board, Respondent, or the State of Florida. The proposed purchase price for the retirement service credit is sound for actuarial purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order allowing Petitioner to purchase the retirement service credit at the statutorily prescribed purchase price. RECOMMENDED this 26th day of July, 1993, in Tallahassee, Florida. DANIEL MANRY 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 26th day of July, 1993.
Findings Of Fact In early 1979, the Department of Administration, Division of Personnel, prepared for the Governor a document entitled Recommended Salaries and Benefits for Career Service Employees for the Biennium July 1, 1979, to June 30, 1981. The purpose of this document was to assist the Governor in making recommendations to the 1979 Legislature regarding salaries and benefits for the State's Career Service employees. Approximately one month after publication of its initial recommendations, the Department of Administration published a supplement to those recommendations to reflect the results of collective bargaining negotiations with various bargaining units and to clarify certain points. With respect to merit salary increases, it was recommended that all funds not distributed as guaranteed merit increases in accordance with specific collective bargaining agreements be "distributed at the discretion of management" to employees with six months satisfactory service as of September 1, 1980. For the supervisory bargaining unit of which all Petitioners are members, all merit funds were to be distributed at the discretion of management. The Governor's recommendations contained in the document prepared by the Department of Administration were furnished to legislators and all State agencies prior to adoption of the Appropriations Act. In 1979, in the Appropriations Act for the Biennium 1979-81, as supplemented in 1980 by the 1980 Supplemental General Appropriations Act, the Legislature appropriated certain funds to be used for merit salary increases for Career Service employees. These raises were to become effective September 1, 1980. Funds were allocated in a total dollar amount for each collective bargaining unit within each state agency. The Legislature, in appropriating funds for salary increases and benefits for Career Service employees, specifically provided that such funds were to be distributed in accordance with the Governor's recommendations. Ch. 79-212, Sec. 21, Laws of Florida. The Department of Environmental Regulation received merit increase monies for its Career Service employees within the following bargaining units: supervisory-professional, professional, administrative clerical, operational services, and managerial/confidential. Petitioners Leslee A. Williams, Sylvia E. Sakamoto, and Rosemary Bottcher are Career Service employees employed in the Bureau of Water Analysis, Division of Environmental Programs. Leslee Williams is a Microbiologist III. Sylvia Sakamoto and Rosemary Bottcher are Chemist III's. Petitioners are employees within the Supervsory/professional collective bargaining unit. On July 31, 1980, the Secretary of the Department of Administration sent a memorandum to all Department heads with attached instructions for implementation of salary increases for employees in all affected bargaining units, including the supervisory unit. The instructions for distribution of merit salary increases to employees in the supervisory unit provided that the distribution of funds to eligible employees was discretionary with management, subject only to a cap on the maximum amount any employee could receive. This cap of 10, 7.5, or 5 percent of an employee's salary is determined by the employee's official performance evaluation rating. With regard to "discretionary merit salary advancements", the instructions noted that: These increases are provided to reward current employees based upon their performance. These increases are intended to allow employees to progress within the salary range in recognition of their increased worth to the State as an employee. The proper implementation of merit salary advancements is critical to the State's ability to reward tie most competent, qualified and productive employees. While the funds are discretionary as to the actual amount any one employee may receive, management has no discretion as to whether the Funds may or may not be distributed. These instructions were received by DER in early August of 1980, and DER immediately began taking steps necessary to implement the salary increases in time for inclusion in employees' September paychecks. In August, 1980, the Secretary of the Department of Environmental Regulation authorized each of the directors of the three principal divisions within the Department (the Divisions of Environmental Programs, Environmental Permitting, and Administrative Services), as well as the offices of General Counsel and the Secretary, individually, to establish or determine the methods, standards for determining employee merit and employee performance and performance to be used within each division or office for identification of those Career Service employees eligible to receive a merit salary increase. By memorandum dated August 2, 1980 the Director of the Division of Environmental Programs requested that all Bureau Chiefs in his division and certain supervisors meet with him to establish a ranking of employees within the division to be used in determining the amount of merit salary increase each eligible employee would receive. This memorandum provided, in part, as follows: . . . We have available a certain amount of "discretionary" money which can be given as merit raises. This will be over and above those pay increases through pay adjustments or cost of living increases, which are mandated by the Legislature. The discretionary amounts are small; but they are significant enough that we should make every effort to insure fairness recognition of outstanding service and encouragement of those whom the Department needs to keep. The final decision on all increases will be mine alone, but the preliminary ranking and classification of the various persons will be done in collaboration with all of you. We will begin with the personnel evaluations. However, since grading standards for the evaluations differ among various supervisors, we will attempt to bring all evaluation ratings to comparable scales. We will then try to emphasize those qualities, both within the ratings and those not included in the particular categories, which most contribute to the mission of the Department. We must all try to eliminate our personal biases in this process and the biases inherent in the evaluation system. If we succeed, the raises will be both fair and perceived as fair and will be a help to Division and Department morale. I ask your complete cooperation in this process. (Emphasis added) On September 2, 1980, the Director of the Division of Environmental Programs sent a memorandum to all employees of the division explaining the process used in computing merit salary increases for division employees. The September 2, 1980, memorandum contained the following provisions: The raises were awarded based on relative scores given to each employee. This scoring was done by the Director, Deputy Director and Bureau Chiefs (together with independent office heads for those classes which contained their subordinates) in joint session. First, each employee's evaluation was considered and then related to that of ether employees in the class. The employee's other attributes and contribution to his program and the Department was then discussed. His immediate supervisor's rating tendencies were considered (and we, incidentally, gained a very good idea of how different were the different scoring scales used) and the supervisor was called and consulted if there was difficulty in reaching a consensus. In almost every case one or more of the Bureau Chiefs, other than the employee's own, had experience and opinions on that employee to share. We repeatedly examined each other on the possibility of bias and favoritism. Finally, the employee was given a weighted percentage score. Although some discussions were more protracted than others, complete consensus was reached in every case. The Director and Deputy Director then translated the relative scores into both the base salary and the dollars available within the class. Some small further subjective judgements were necessary because of rounding and some inexactness in the formula but they were extremely minor - no more than $1.00 per person and usually much less. The raises given reflect very closely the relative scores from the joint sessions. There is considerable agreement between the curve of the merit raises and the curve of the evaluations. They are far from congruent, however. Some employees with relatively high evaluations got no merit raises; others relatively low got substantial ones. In each case the discussions were very extensive and the decision was made only after all were convinced that an injustice would otherwise result. Such inflated and deflated evaluations will be the subject of much additional scrutiny in the coming year. Merit salary increases for all 192 Career Service employees within the Division of Environmental Programs were determined pursuant to the methods, standards for determining employee merit and employee performance, and procedures contained in the memoranda of August 25, 1980, and September 2, 1980. The three Division directors, the General Counsel, and the Secretary of DER each used different methods to award merit salary increases to employees in their respective offices. The method used by the Director of the Division of Environmental Programs to award merit salary increases for 1980 was different from the various methods used by DER in the past to distribute similar appropriations. Since at least 1975, DER has made a separate determination each year that funds appropriated for merit increases of the manner in which those funds would be distributed. A decision made one year was not prospectively applicable to future appropriations. Since at least 1975, the Department of Environmental Regulation has evaluated the job performance of its Career Service employees on an annual basis pursuant to procedures applicable to the entire Department. Currently, the Department follows the employee performance evaluation procedures contained in Section 3.2, Department of Environmental Regulation, Administrative Services Internal Management Policies and Procedures Manual ("ASIMPP") including exhibits attached thereto. These procedures and criteria were adopted by the Department pursuant to Rule 22A-9.02(1), Florida Administrative Code, and Section 110.201, Florida Statutes, but have never been adopted as "rules" through Section 120.54, Florida Statutes rulemaking proceedings. The policy of the Department, as stated in the ASIMPP, is to use performance evaluations ". . . to award or deny salary increases . . ." In 1976, 1977 and 1978, merit salary increases were awarded to career service employees in the Department based solely upon performance evaluations. In each of those years, the "merit" of employees was determined by the annual performance evaluations, but a differing method of computing the dollar amount was used for each year. However, within categories of employees having the same performance evaluation rating, the method of calculating the dollar amount was uniformly applied. These standards and procedures for awarding merit salary increases in 1976, 1977, and 1978 were in written form, were established by the Secretary of the Department, and were communicated to all employees. There were no merit raises in 1979. Since at least June 19, 1978, the Department of Environmental Regulation has also had in effect a written policy statement which provides in part: The personnel Rules and Regulations provide that merit/anniversary increases be based on performance evaluations Petitioners were given performance evaluations in the summer of 1980 pursuant to the procedures in Sec. 3.2, ASIMPP and each Petitioner was rated "above satisfactory." Petitioners each had at least six months continuous and satisfactory service on September 1, 1980, and were otherwise eligible to receive a merit salary increase on September 1, 1980, but were denied such a salary increase. Neither of the methods and procedures used by the Division of Environmental Programs to distribute merit salary increases to division employees for 1980, as outlined in the memoranda of August 25, 1980 and September 2, 1980, nor the methods used by the other two divisions and the General Counsel and Secretary were adopted through formal rulemaking in accordance with Section 120.54, Florida Statutes. In each case, the procedures used applied only to Career Service employees within that division or office who were eligible for a merit increase and were used only to determine the distribution of those funds appropriated by the Legislature for the biennium 1979-81. Counsel for Petitioners and Respondent stipulated that the methods used by the Division of Environmental Programs to determine merit salary increases affect the private interests of Petitioners, and further, that Petitioners have standing to bring this petition pursuant to Section 120.56, Florida Statutes. Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
