Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, including June 28, 1993, through January 27, 1994, an employee of the Department working in the economic services unit of the Department's District XI (hereinafter referred to as the "District"). In 1990, Petitioner occupied a PAS (Public Assistance Specialist) I position that, in or around June of that year, was one of 182 such positions in the District to be reclassified to a PAS II position as part of the Department's implementation of the new FLORIDA computer system. 2/ Those employees occupying these reclassified positions (hereinafter referred to as the "upgraded employees") whose salaries were below the minimum salary for a PAS II received a salary increase to raise their salary to the minimum. Petitioner was among the employees who received such a salary increase. Such action was taken in accordance with the following Department policy set forth at page 11 of HRSP 60-1: When an employee is promoted, a salary in- crease to at least the minimum salary of the higher level position will be made. However, an increase of up to ten percent above the current base salary or ten percent above the minimum for the new class may be approved. An increase of up to ten percent of the current base salary is normally used when the employee's salary is the same or nearly the same as the minimum for the new class. An increase of up to ten percent above the minimum for the new class may be granted when an employee possesses training or experience substantially above the minimum training and experience required for the higher class and it is determined that the employee is exceptionally well qualified for the position. These increases must be approved by an assistant secretary or district administrator. Because of funding constraints that existed at the time, no other salary increases were given to the upgraded employees. Funds for such additional salary increases became available toward the end of the 1992-1993 fiscal year. The increases were approved at both the Department and District level. Petitioner and the other upgraded employees were advised of the increases by a memorandum dated July 7, 1993, from the District XI District Administrator. The District Administrator's memorandum read as follows: Your position has been identified as one which was upgraded as a result of the FLORIDA implementation in 1990/1991. At the time, our records indicate that you received a partial increase, or none at all, because of budgetary constraints. Due to the identification of available monies prior to the end of the Fiscal Year, we are pleased to inform you that you will be receiving a pay increase in your salary warrant on July 9, 1993. The amount of the increase will be either 10[percent] or the difference between what you received in 1990/1991 and 10 [percent], and was effective June 28, 1993. Should you have any questions about this increase or how it was calculated, please call Arelis Valero at 377-5197. Your continued dedication and service to HRS is sincerely appreciated. District personnel miscalculated the amount of Petitioner's approved salary increase (which was "the difference between what [he had] received in 1990 . . . and 10[percent]" of his pre-reclassification base salary). As a result, following June 28, 1993, the effective date of the increase, for the pay periods ending January 27, 1994, Petitioner was overpaid a total of $1,148.35. The District discovered the error and revised its payroll records to reflect Petitioner's correct salary. In addition, by memorandum, it notified Petitioner of the mistake that had been made and advised him that it was his responsibility to repay the amount he had been overpaid. By letter dated November 1, 1995, the District XI District Administrator informed Petitioner that the overpayment would be recovered through payroll deductions beginning January 12, 1996, amounting to "10[percent] of [his] gross salary each pay period, unless [he] prefer[red] a single lump sum, until the balance [was] paid." The letter further provided, in part, as follows: If you do not dispute the overpayment, but feel that the repayment schedule of 10 [percent] of your gross salary per pay period is overly burdensome, please call Thomas Franklin at 377-5055 Number135 and he will review with you what must be documented and submitted to the Comptroller's Office (Capitol Building, Suite 1201, Tallahassee, Florida 32399-0350) to request a modification. While the total amount eventually repaid to the State cannot be adjusted, the Comptroller may be convinced to lengthen the repayment schedule by lessening the percentage withheld each pay period. If you do not agree that you were overpaid this amount, you have the right to an administrative hearing under 120.57(1) or (2), Florida Statutes, and Rules 10-2.036 and 28-5, Florida Administrative Code. You may request a formal or an informal hearing. If a request for a formal hearing is made, your petition must be in compliance with Rule 28-5.021, Florida Administrative Code. Please note that Rule 28-5.201(2) specifies that your petition should contain a concise discussion of the specific item in dispute. Informal hearings are governed by Rules 28-5.501-503, Florida Administrative Code. Your request for either a formal or informal hearing must be received by this office, attention Thomas Franklin, within thirty (30) days of your receipt of this letter, in accordance with Rule 10-2.036, Florida Administrative Code. Failure to request a timely hearing shall be deemed a waiver of your right to hearing. After receiving this November 1, 1995, letter, from the District XI District Administrator, Petitioner spoke with Thomas Franklin, the Department employee referenced in the letter. Franklin told Petitioner that he could request both a modification in the repayment schedule and an administrative hearing. In a memorandum to Franklin dated December 3, 1995, Petitioner requested an administrative hearing "due to the fact that [he did] not agree that an overpayment [had] ever occurred." In another December 3, 1995, memorandum to Franklin, Petitioner requested that only "$10.00 biweekly [be deducted] from [his] paycheck" if it was ultimately determined that an overpayment had indeed been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department: find that, from June 28, 1993, until January 27, 1994, Petitioner was overpaid a total of $1,148.35; notify the Department of Management Services of this finding; and refer the matter to the Comptroller so that the Comptroller may take appropriate action to recover these moneys owed to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1996.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $2,000.00 in administrative fines. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 1 Filed February 21, 2012 2:59 PM Division of Administrative Hearings 3. Conditional licensure status is imposed on the Respondent beginning on May 13, 2011 and ending on June 13, 2011. ORDERED at Tallahassee, Florida, on this_|“)_ day offfeoru we , 2012. Bue udek, Sec we Agency for Health C dministration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this BoP tny of , 2012. Richard Shoop, Agency € Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas J. Walsh II R. Davis Thomas, Jr. Office of the General Counsel : Respondent’s Qualified Representative Agency for Health Care Administration 2 North Palafox Street (Electronic Mail) Pensacola, Florida 32502 (U.S. Mail) J. D. Parrish Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her age, as alleged in her charge of discrimination dated June 6, 1984, and in her petition for relief dated March 6, 1985.
Findings Of Fact Based on the admissions of the parties and on the exhibits received in evidence and the testimony of the witnesses at hearing, I make the following findings of fact: The Petitioner has been employed by the Respondent from July 1, 1980 to the present. She was first employed with the Respondent as a Staff Assistant II following the abolition of the Crimes Compensation Commission by the Legislature, effective June 30, 1980. The crimes compensation program was transferred to the Respondent at that time. As a Staff Assistant, Petitioner's duties included reviewing claims submitted by field investigators. After approximately two months in this position, the Petitioner requested permission to do the actual investigation of claims. The Petitioner's Bureau Chief, Herbert Parker, authorized Petitioner to investigate claims because her duties as a Staff Assistant did not keep her busy full time. Respondent's Monthly Field Representative Reports, maintained by Mr. Parker, reflect that the "Claims Examiners," i.e., Staff Assistants, including the Petitioner and Betty Cureton, completed a combined total of 13 reports in August 1980. In October 1980 these Reports began to break out the investigation work performed by the Petitioner and Ms. Cureton, showing the number of reports they completed as well as those completed by the actual Field Representatives. The Monthly Field Representative Reports show that Petitioner's investigations gradually increased in number over the next two years, so that in the six months from May 1983 through October 1983, she averaged almost 15 reports per month. A Field Representative was expected to produce at least 25 reports per month. In October 1983, Petitioner's position was reclassified from Staff Assistant II to Field Representative, reflecting the continuing transition in the Petitioner's duties from those of a Staff Assistant to the duties of a Field Representative. When her position was reclassified in October 1983, the Petitioner's salary was $1,570.S2 per month. The minimum salary for a Field Representative was $1,139.70 per month and the maximum was $1,635.60 per month. Petitioner's salary was not increased at that time. The reason Petitioner's salary was not increased at that time is that she was already earning over the minimum for the new classification and the Respondent was experiencing budget problems. In response to its budget problems, Respondent had taken a number of corrective measures, including a freeze on promotional pay increases. Within the Division of Worker's Compensation, the freeze was lifted in December 1983 but the Bureau Chiefs within the Division were admonished to be sure their respective units had "rate" and "salary" available before granting any increases. Rate Reports for the Bureau of Crimes Compensation show that that Bureau did not have any available rate from the time of Petitioner's promotion in October 1983 through March l984when she received a salary increase. The Rate Reports reflect a rate deficit occurred in March 1984 equal to the amount of Respondent's and Betty Cureton's combined salary increases. By Waiting until March to award pay increases to Petitioner and Ms. Cureton, the Respondent was better able to project its budget status through the end of the fiscal year and determine that the Division of Worker's Compensation would be able to offset the Bureau's rate deficit. In deciding whether to give promotional increases and, if so, in what amount, the Respondent considers a person's individual qualifications, along with budget considerations. Some employees do not receive any increase at all when they are promoted others have received less than Petitioner's five per cent and some have received more. The class specifications for the class of Field Representative contain the minimum training and experience requirements, which include: "graduation from an accredited four-year college or university and two years of professional experience directly involved in the juvenile or adult criminal justice system." The Petitioner had only two years of college and she did not have any past employment that would have satisfied the requirement for two years of professional experience in the criminal justice system. Respondent obtained a substitution of required training and experience for Petitioner by counting the field investigation work she did between August 1980 and October 1983, while employed as a Staff Assistant. This substitution enabled her to qualify as a Field Representative once the position was reclassified. A similar substitution was obtained for another employee, Ms. Cureton. Petitioner is a very capable efficient employee who has always received outstanding evaluations, receiving a score of thirty-six out of a possible thirty-six evaluative points on the performance of her duties on her performance ratings by her superiors. The Petitioner's age was not a factor in any of the Respondent's personnel decisions affecting the Petitioner's promotion or promotional pay increases.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Geneva Roberts. DONE AND ORDERED this 11th day of December, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 11th day of December, 1985. APPENDIX The following are the specific rulings on each of the proposed findings of fact submitted by the parties. Rulings on Petitioner's proposed findings: Accepted in part and rejected in part. The accepted portions are incorporated in findings proposed by the Respondent. The rejected portions are rejected either as irrelevant details or because they are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Accepted and incorporated in other findings. The portion up to the first comma is accepted. The portion after the first comma is rejected as irrelevant in light of other evidence in the record, especially when note is taken of the fact that a new employee at ten per cent above the minimum was making substantially less than Petitioner. First sentence is accepted in substance. Second sentence is rejected as irrelevant. Rejected because it incorporates irrelevant details and because to the extent it proposes comparisons between Petitioner and Ms. Raker it incorporates opinions, inferences, and conclusions which are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Further, the ultimate conclusion asserted in paragraph 8 of the Petitioner's proposed findings is not supported by the evidence. Rejected as irrelevant and also as misleading in light of other evidence. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The first unnumbered paragraph under the caption SUMMARY OF FACTS is rejected because most of it is not supported by persuasive competent substantial evidence and the remainder is inconsistent with the greater weight of the evidence. The first sentence of the second unnumbered paragraph under the caption SUMMARY OF FACTS is rejected as contrary to the greater weight of the evidence. The last sentence of that paragraph is accepted. Rulings on Respondent's proposed findings: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Most of the first six lines are rejected as constituting summaries of the parties' contentions rather than proposed findings. The substance of lines 7 through 11 is accepted. The last sixteen lines of this paragraph are rejected on the grounds that for the most part they constitute legal argument, conclusions of law, and explication of reasons for making findings of fact, but are not themselves findings of fact. [Some of the material on the last sixteen lines is accepted and incorporated in the Conclusions of Law portion of this Recommended Order.] The substance of this paragraph is accepted, with certain minor corrections and deletions. Accepted. COPIES FURNISHED: Joseph C. Jacobs, Esquire ERVIN, YARN, JACOBS, ODOM & KITCHEN Post Office Drawer 1170 Tallahassee, Florida 32302 Kenneth H. Hart, Jr., Esquire General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue in this case is the amount of attorney’s fees and reasonable expenses to be awarded to Petitioner's counsel pursuant to section 766.31(1)(c), Florida Statutes.
Findings Of Fact As noted in the Preliminary Statement, the parties filed an Amended Joint Stipulation on May 20, 2015. The parties stipulated to the amount and manner of payment of an award to Petitioners. Specifically, the parties agreed to an award of: Actual expenses for ambulance in the amount of $320; lump sum award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury in the amount of $100,000; and a death benefit in the amount of $10,000. The parties further stipulated to Petitioners’ entitlement to $631.05 in costs which includes the $15.00 DOAH filing fee and $616.05 for medical records. The parties also stipulated that the only remaining costs which are at issue are costs for a nursing consultant in the amount of $1,200 for Karla Olson & Associates, LLC, and expert witness costs for Donald Hinkle, Esquire. Petitioners also seek reasonable attorney’s fees. In the Amended Joint Stipulation, Petitioners’ counsel agreed to withdraw their request for time expended in seeking attorney’s fees from NICA and preparing for the fee hearing. Despite this, the parties were still unable to agree on the amount of reasonable attorney’s fees. Petitioners’ attorneys assert an entitlement to attorney’s fees in the amount of $34,728.27; $1,870 for the services of a paralegal; costs for a nurse’s review of the medical records in the amount of $1,200; and an expert witness fee for Donald Hinkle, Esquire, in the amount of $2,400. The total amount of attorney’s fees sought by Petitioners is broken down as follows: 82.2 hours for Ellen Burno at a rate of $275.19 per hour; 20.2 hours for Peter Van den Boom at a rate of $350 per hour; 12.9 hours for David Anderson at a rate of $225 per hour; and 11.2 hours for Saray Noda at a rate of $190.64 per hour. In addition to seeking $2,400 for their expert witness, Donald Hinkle, and $1,200 for a nurse consultant’s review of medical records, Petitioners seek costs for paralegal Ruthie Romero, at $110 per hour for 17 hours. Ellen Burno is the sole attorney in the Gainesville office of Frost Van den Boom, P.A. She has been licensed as an attorney in Florida since 2013 and has been licensed to practice law in the state of Kentucky since 2004. She has represented clients in medical malpractice cases and has extensive experience in litigation and health care law. She first met with Petitioners in October 2014 after the case was transferred from the firm’s Bartow office by senior attorney, David Anderson. Ms. Burno’s initial meeting with Petitioners took place not long after the death of their infant son, Ryan Michael Jolley. According to the Petition filed in this case, the Petitioners resided in Lake City. It is noted that Gainesville is considerably closer to Lake City than Bartow. Despite having represented multiple personal injury and malpractice clients, NICA was a first impression issue for her and for the other attorneys with the firm. Ms. Burno collaborated with Mr. Anderson on the case until he left the firm on March 7, 2014, when Peter Van den Boom became the senior attorney and partner on the case. Mr. Van den Boom has been licensed as an attorney in Florida since 1998. He has considerable experience handling medical malpractice and personal injury cases, including catastrophic injury due to medical malpractice. Ms. Burno took a 12-week maternity leave in October 2014 at which time Saray Noda began working on the case. Ms. Noda has been a licensed attorney in Florida since 2013. NICA objects to portions of Petitioners’ request for fees on numerous grounds including: that much of the time billed by Petitioners’ attorneys was unreasonable and unnecessary; that reasonableness of the task and time billed by counsel cannot be ascertained because of vagueness or block-billing; that much of the time billed involves intercommunication among Petitioners’ four lawyers; that much of the time billed represented duplication of efforts; that Petitioners’ need for a particular structure of the settlement agreement in order to amicably split the award of NICA benefits should not be awarded; and that time billed by a paralegal was clerical in nature and should not be awarded. As stated previously, David Anderson initially received the case. Mr. Anderson has been licensed as an attorney in Florida since 2007. Mr. Anderson, who is no longer with the firm, seeks compensation for 12.9 hours of work from October 28, 2013, through February 13, 2014. Included in the 12.9 total is an entry for 2.0 hours for “review and analyze case law re: NICA statute” and 2.7 hours for “research regarding filing claim under NICA statute.” Mr. Anderson’s time entries begin October 28, 2013, and conclude on February 13, 2014. Mr. Anderson’s affidavit noted that the case was taken on a contingent fee basis. Ellen Burno initially met with Petitioners in the Gainesville office. She handled the bulk of the case after it was assigned to her by Mr. Anderson. Ms. Burno seeks compensation for 82.2 hours for time spent on the case from October 23, 2013, through October 7, 2014. Ms. Burno’s time entries include entries on October 23, 24, and 25 which all reference research of NICA statute and/or NICA case law. Time entries on December 20, 2013, and January 15, 2014, reference numerous tasks including review of NICA case law. These and many other time entries of Ms. Burno’s include multiple tasks. These entries do not set forth with particularity the nature of the service provided, making it impossible for the undersigned to determine reasonableness of the entries. A time entry on February 6, 2014, for 6.4 hours references “research NICA issues re nurse liability,” which is not related to a NICA claim for compensation. Mr. Van den Boom began working on the case about two months after Mr. Anderson left the firm. The first two time entries on Mr. Van den Boom’s time report reflect dates that are in error in that they reference time in 2012. Those first two entries totaling 0.5 hours must be excluded. The third time entry dated October 25, 2013, indicates that he expended two hours of time reviewing the NICA statute and case law. There are no time entries from the October 25, 2013, entry until an entry on March 25, 2014, described as “review file, NICA” reflecting 4.9 hours, until March 25, 2014, which contains an entry described as “review summary; legal research NICA; review file in its entirety. Telephone conference with EB” reflecting 8.6 hours expended. Following those entries, there are many entries from July 2014 through October 7, 2014, reflecting receipt and review of e-mails or telephone conferences with Ms. Burno, many of which match entries on Ms. Burno’s time sheet for times they were exchanging e-mails or having a telephone status conference. Thus these entries are duplicative. Moreover, while each attorney working on the case understandably wanted to be familiar with NICA law, the number of total hours for research was excessive. Ms. Noda seeks attorney’s fees for 11.2 hours. Her time entries begin November 4, 2014, through December 23, 2014. It is noted that all of the entries on Ms. Noda’s time report were made subsequent to the entry of the Summary Final Order on compensability entered on October 16, 2014. Some of her time entries concerned the settlement agreement which involved the uneven distribution of funds between the parents, who are not married.1/ In any event, since compensability had already been determined, Ms. Noda’s hours have been excluded in calculating the fee award. Petitioners seek paralegal fees for 17 hours of paralegal work by Ruthie Romero. Her time entries begin on October 28, 2013. Other than a final time entry for one hour on July 16, 2014, Ms. Romero’s time entries end on April 29, 2014, just prior to the filing of the Petition for Benefits. Virtually all of the time entries for Ms. Romero deal with requesting medical records, bates numbering of the medical records, and scaning, copying and redacting the medical records. These tasks are clerical in nature. Donald Hinkle, Esquire, testified as Petitioners’ expert witness on attorney’s rates and hours. Mr. Hinkle is a board-certified civil trial lawyer who practices law in Tallahassee. He has been practicing law since 1980. He is familiar with the NICA statutes and NICA cases and has testified in a previous NICA case as an expert witness. He specializes in civil trial practice, primarily in medical malpractice. Mr. Hinkle reviewed the file materials from the claimants’ file, but did not review the medical records. He also reviewed the time records of the four attorneys who represented Petitioners in this case, as well as the NICA statutes and case law. Mr. Hinkle opined that the time billed by all four of Petitioners’ attorneys was reasonable and that the respective rate for each attorney was reasonable, and actually low in comparison to fee awards given in the community to attorneys of comparable experience. Mr. Hinkle is claiming a rate of $600 per hour for four hours as his expert witness fee, despite the fact that he had already expended 4.2 hours on this case prior to the hearing, and was present throughout most of the hearing which lasted three hours. Petitioners seek $2,400 for his time which, taking into consideration the time he actually spent, comes to less than $350 per hour. Based on Mr. Hinkle's experience and expertise, a total fee of $2,400 is quite reasonable. Additionally, Mr. Hinkle is of the opinion that the hiring of a nurse consultant to review the medical records was reasonable to determine whether a birth-related neurological injury occurred. Regarding the paralegal fees, it was Mr. Hinkle’s opinion that the tasks performed were those typically done by a paralegal, but acknowledged that the tasks were not tasks that an attorney typically performs. John Kelner, Esquire, testified on behalf of the Respondent as an expert in attorney's fees. Mr. Kelner has been practicing law since 1980. He practices in the area of civil litigation, primarily medical negligence, and he has experience with NICA claims and also testified in a previous NICA hearing. Mr. Kelner approached the case from the aspect of what would be reasonable time to expend in light of the facts of the case. Mr. Kelner opined that it would be reasonable to allocate between 5 to 8 hours over the course of the case to communicate with Petitioners; it would be reasonable to allocate between 1 to 3 hours to researching the law pertaining to NICA; and it would be reasonable to allocate between 3 to 5 hours to reviewing pleadings filed. In total, Mr. Kelner opined that a reasonable amount of time to attribute to this case is 16 hours, and that a reasonable fee for an experienced attorney to handle this matter is $300 per hour. In reaching this opinion, Mr. Kelner took into consideration that there was no discovery conducted in this case, no depositions taken, and no hearings held. The Motion for Summary Final order was unopposed. Given the closeness of the hourly rates claimed by Petitioners’ attorneys, NICA urges that the average of $260 per hour should be assigned to Petitioners’ counsel’s work in this case. In consideration of Mr. Hinkle and Mr. Kelner’s testimony in this regard, that suggestion is accepted. However, since the fees attributable to Ms. Noda have been excluded, her rate has also been excluded in calculating the average fee rate. Petitioners’ counsel request $34,728.27 in attorney’s fees. NICA suggests an award of $3,536 in attorney’s fees. In consideration of the evidence presented by the parties, including the testimony of the respective fee experts and in light of the prevailing case law which will be more fully explained in the Conclusions of Law, and having removed excessive, vague, block- billed, intercommunication, and duplicative time, the undersigned finds that Petitioners’ counsel is entitled to 58.5 hours of time at $283 per hour for a total of $16,555.50 as attorney’s fees from NICA. Respondent does not object to the following expenses incurred by Petitioners: $15 for the DOAH filing fee and $616.05 for medical records, for a total of $631.05. Petitioners seek payment of $2,400 to Donald Hinkle, Esquire. The undersigned agrees that Petitioners are entitled to these expert witness fees. Petitioners seek payment of $1,200 for a nurse consultant. Mr. Kelner noted that the nurse’s review of the medical records was conducted after the claim was filed, indicating that she may have been hired for reasons other than compensability. Mr. Hinkle acknowledged that he would have had the nursing expert review done before filing the Petition. The undersigned notes that within Ms. Burno’s time records are found entries regarding research on issues regarding “nurse liability.” This indicates that the nurse consultant was, at least in part, advising on matters not related to a NICA claim for compensation. The undersigned concludes that Petitioners are not entitled to the $1,200 sought for the nurse consultant.
The Issue The issue is the amount of attorney's fees and costs owed to Petitioner by Respondent, Jian Deng Bao, d/b/a China Gardens Restaurant ("China Gardens").
Findings Of Fact Petitioner initially filed a Statement for Attorney's Fees on May 16, 2012, requesting fees in the amount of $14,162.50 and costs of $252.21. On the same date, Sharon Caserta, counsel for Petitioner, filed an affidavit attesting that the total time for which reimbursement is sought for fees in this case is 56.65 hours. These hours commenced on March 22, 2011, when Ms. Caserta drafted the initial complaint that Petitioner filed with the FCHR, and ended on April 25, 2012, when Ms. Caserta briefly reviewed the FCHR Order No. 12-019 on behalf of her client. Ms. Caserta attested that she is the unit manager for the Deaf/Hard of Hearing Advocacy Program of Jacksonville Area Legal Aid, Inc. and that her caseload consists solely of disability discrimination cases for deaf, hard of hearing, and deaf/blind clients. Ms. Caserta is fluent in American Sign Language and is certified by the National Registry of Interpreters for the Deaf. She has published scholarly articles and conducted training sessions on legal representation of deaf and blind clients. Ms. Caserta's skills and expertise were directly related to her representation of Petitioner, who is deaf and blind. Ms. Caserta attested that her hourly fee is $250.00, which is commensurate for an attorney with her skill and ability in the Jacksonville area. She therefore requested an attorney's fee of $14,162.50, which is the product of her hourly fee and the 56.65 hours she spent in representing Petitioner. She also requested $252.21 in costs inclusive of certified mail costs, subpoena service, and witness fees. Ms. Caserta also submitted the affidavit of Stephen F. Albee, a practicing lawyer with 19 years of experience. Mr. Albee is a partner/shareholder in the Jacksonville firm of Espenship, Schlax & Albee LLC. Mr. Albee previously worked in the predatory lending department of Jacksonville Area Legal Aid, Inc. He has also served as in-house attorney for OSI Portfolio Services Inc., n/k/a NCO Group, Inc. Mr. Albee attested that he inspected the files of Ms. Caserta and considered all of the factors in Rule 4-1.5(b) of the Rules Regulating The Florida Bar. Mr. Albee concluded that 56.65 hours is a reasonable number of hours for the work required in this action. Of that amount, Mr. Albee concluded that 47.85 hours of attorney time at $250.00 per hour is reasonable and that 8.8 hours of paralegal time at $90.00 per hour is reasonable. Therefore, Mr. Albee concluded that $12,754.50 is a reasonable fee for Petitioner's attorney's fees in this case. At the hearing, Ms. Caserta stated that she would defer to Mr. Albee's opinion and would accept the amount of $12,754.50 in attorney's fees. Ms. Caserta also corrected her request for costs to $212.21. China Gardens has not challenged the reasonableness of the attorney's fees and costs claimed by Petitioner. The undersigned finds that an attorney's fee of $12,754.50 and costs of $212.21 are reasonable under all of the circumstances presented in this case.
Conclusions For Petitioner: Sharon Caserta, Esquire Jacksonville Area Legal Aid, Deaf/Hard of Hearing Legal Advocacy Program 126 West Adams Street Jacksonville, Florida 32202 For Respondent: No appearance
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order awarding Petitioner attorney's fees in the amount of $12,754.50 and costs in the amount of $212.21. DONE AND ENTERED this 26th day of October, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 26th day of October, 2012. COPIES FURNISHED: Jian Bao China Gardens Restaurant Apartment 2202 12250 Atlantic Boulevard Jacksonville, Florida 32225-5807 Sharon Caserta, Esquire Jacksonville Area Legal Aid, Deaf/Hard of Hearing Legal Advocacy Program 126 West Adams Street Jacksonville, Florida 32202 Jian Bao China Gardens Restaurant 1573 Par Street, Northeast Palm Bay, Florida 32905 Jian Bao China Gardens Restaurant 10550 Old St. Augustine Road Jacksonville, Florida 32257 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issues in this case are whether former Hillsborough County Administrator Patricia G. Bean (Respondent) violated section 112.313(6), Florida Statutes (2011),1/ and, if so, what penalty, if any, should be imposed.
Findings Of Fact Beginning in 2003, and at all times material to this case, the Respondent was employed as the county administrator for Hillsborough County, Florida. In Spring 2006, various departments of the Hillsborough County government were engaged in reviewing their responsibilities and developing proposals to increase efficiencies and reduce costs for upcoming budget years. An "executive team" of county employees met periodically to determine which of the proposals met or exceeded efficiency goals that were targeted towards reducing costs while maintaining services. In the Summer or Fall of 2006, the Respondent, Deputy County Administrator Walter Hill, and County Budget Director Eric Johnson began to discuss ways to encourage and reward department directors who met efficiency goals. At that time, the county government had three existing "award" options that could be used to reward employees for exceptional service. One award consisted of a paper certificate called the "Extra Mile Award." There was no monetary gain associated with receiving an "Extra Mile Award." The second award (the "Productivity Award") included a monetary bonus and was available to most employees (with some exceptions) for exceptional performance. The third award was the "Discretionary 1% Merit Increase" available to senior management employees. This award consisted of a one percent "merit" salary increase over and above any regular pay raise that the employee would have received. The Respondent, along with Deputy County Administrator Hill and County Budget Director Johnson, decided to use the "Extra Mile Award" and the merit salary increase to reward department directors who met efficiency goals. The Respondent was responsible for the final determination as to which employees would receive awards. The "Extra Mile Certificate" awards were announced at a budget "kick-off" meeting on the morning of February 1, 2007. After the meeting, the Respondent issued a written congratulatory memo to each employee who received a certificate. She also used the memo to notify those employees who had been awarded the salary increase. The Respondent's department met the efficiency goals. At the time of the budget kick-off meeting, the Respondent believed that her employment contract with Hillsborough County precluded her from accepting it, and she excluded herself from the salary increase. The Charter of Hillsborough County provided that the "compensation" for the county administrator "shall be fixed by the Board of County Commissioners by ordinance" and that such compensation "may be set by contract if allowed by and pursuant to ordinance." The Respondent's employment contract with Hillsborough County established her initial salary as $179,000. According to Section 6 of the contract, the Respondent was entitled to receive the same "annual market equity increase" provided to "all other unclassified managerial employees of the County." The section also stated that additional salary or benefit increases could be granted by action of the BCC within 60 days of her annual performance evaluation. Hillsborough County Attorney Renee Lee and Director of the Hillsborough County Environmental Protection Commission Richard Garrity also met the efficiency goals, but their employment contracts with the county contained provisions similar to those of the Respondent, and, so, the Respondent excluded Ms. Lee and Mr. Garrity from receiving the salary increase. Both received the "Extra Mile Award" at the budget kick-off meeting. After the meeting had concluded, Ms. Lee sent an email addressed to the Respondent and Deputy County Administrator Hill wherein she asserted that the terms of her contract allowed her to receive "the award." In the email, Ms. Lee cited a provision in her contract that referenced entitlement to "such other benefits" as were made available to other county employees. Although there appears to have been some confusion regarding the names of the awards available to recognize county employees for their performance, it was clear that the reference to the "Extra Mile Award" in Ms. Lee's email referred to the salary increase. The Respondent's employment contract contained language similar to that cited in Ms. Lee's email, whereby the Respondent was entitled to the "benefits" available to other managerial employees in the county. As the county attorney, Ms. Lee reported directly to the BCC and, pursuant to the county charter, was the chief legal advisor for the BCC on all matters of county business, including personnel matters. The Respondent had no managerial authority over the county attorney at any time relevant to this proceeding. There is no evidence that the Respondent discussed the matter with Ms. Lee. After receiving Ms. Lee's email, the Respondent directed Deputy County Administrator Hill to contact Christina Swanson (director of the Employee Benefits Division in the county's Human Resources Department) and ask her to evaluate Ms. Lee's email. Deputy County Administrator Hill apparently did so, and Ms. Swanson thereafter asked Ms. Lee to provide a written legal opinion addressing whether the salary increase could be awarded under the terms of the contracts. On February 2, 2007, Ms. Lee issued a written legal opinion addressed to Ms. Swanson, stating that both Ms. Lee and the Respondent could receive the salary increases under the terms of their respective contracts. Although she had received a law degree, Ms. Swanson had not worked as a practicing attorney. The issues of the whether the salary increases underlying this case constituted a "benefit" of employment with Hillsborough County, and whether Ms. Lee's written legal opinion was correct, are not at issue in this proceeding. After Ms. Swanson received Ms. Lee's written legal opinion, the Human Resources Department processed the forms required to implement the salary increases for the Respondent and for Ms. Lee. The Respondent testified that she discussed the matter with Ms. Swanson after Ms. Lee issued the legal opinion. Ms. Swanson did not recall the conversation. In any event, the evidence fails to establish that the Respondent directed Ms. Swanson, or any other employee in the Human Resources Department, to process the paperwork required to implement the salary increases. On February 7, 2007, George Williams, the director of the county's Human Resources Department, signed the form ("Report of Change of Status"), approving the one percent salary increase awarded to the Respondent. The Respondent's hourly salary rate was increased from $101.82 to $102.84, effective January 7, 2007. The Respondent did not receive a copy of the form. Deb Dahma, a staff member in the Human Resources Department, signed the form approving the one percent salary increase awarded to Ms. Lee. The signature on that form was undated. There is no evidence that the Respondent directed either Mr. Williams or Ms. Dahma to sign the forms. The executed forms were sent to the county's payroll department, and their salary increases were implemented. On February 8, 2007, Ms. Lee authored another email to Ms. Swanson wherein she opined that, upon review of Mr. Garrity's contract, he was also eligible for the salary increase. There is no evidence that the Respondent participated in any effort to award the salary increase to Mr. Garrity, or that he accepted or received the salary increase. Both the Respondent and Ms. Lee accepted the salary increases. The county administrator's staff was responsible for preparation of agendas for BCC meetings. The Respondent participated in the preparation process and could direct placement of items on the agenda. The Respondent did not provide the BCC with an opportunity to consider the salary increases referenced herein and did not seek the explicit approval of the salary increases from the BCC either prior to or after they were implemented. The Respondent believed that the Human Resources Department, which handled personnel matters, would seek any approval of the salary increases required from the BCC, but the Human Resources Department did not bring the matter to the BCC for review. Although the BCC approved the Respondent's salary, including the increase underlying this case, during the Respondent's subsequent performance review, the evidence fails to establish that the BCC was advised that the salary included an increase that had not been approved by the BCC. At some later point, the Respondent's salary increase apparently became a matter of conflict with the BCC, and her salary was reduced to negate the one percent increase. The Respondent reimbursed Hillsborough County for the funds she received through the salary increase. The Respondent's employment as the Hillsborough County administrator was eventually terminated. An investigation of the circumstances of the raise that was conducted by the Florida Department of Law Enforcement resulted in no criminal charges being filed against the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that Patricia G. Bean did not violate section 112.313(6) and dismissing the complaint filed in this case. DONE AND ENTERED this 31st day of May, 2012, 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 31st day of May, 2012.
Findings Of Fact Upon consideration of the relevant oral and documentary evidence, the following facts are found with regard to the issues in dispute. Overall organization. Exhibit No. 5, prepared by the City Manager, is an organizational chart of employees of the City. Excluding the first block of employees under the city commission, the office manager, library director, the police department chief and uniformed officers, the fire department (which consists of volunteers only) and the superintendents of the remaining five departments, there are approximately fifty-two employees of the City. The City Manager is the chief administrative officer of the City, and all employees are ultimately responsible to him. There is a uniform pay grade classification plan throughout the City and all full time employees work a forty hour week, though their actual working schedules may differ. There are two pay schedules. Most employees are paid weekly, though some, including the office manager department, are paid biweekly. Employees receive their pay checks either at the City Hall or the city warehouse, whichever is closer to their place of employment. If an employee desires to wear a uniform, the City pays one-half of the cost of such uniform. Office manager department staff. There are nine staff members of the office manager department who are hired and fired by the office manager. The basic function of this department is finance and accounting, and the employees do basically clerical type work.. Typical responsibilities of this department include preparation of the payroll, collection of utility bills, payment of bills for purchase and supplies, and record-keeping. Eight staff members work in City Hall and one works at the city warehouse. These employees share the same hours and fringe benefits -- vacations, sick leave policy, group hospitalization, retirement plan -- as other city employees, and are paid every other week. The office manager herself does the City Manager's confidential work. Another secretary of this department devotes approximately twenty-five percent of her time doing typing or other work for the City Manager. No college degree or other specialized training is required for a position within the office manager department. All office manager staff employees have access to city personnel records, as does everyone else who inquires. It was not known whether or not such employees would have access to labor relations policy data, inasmuch as the City has no prior bargaining history. Library assistants. There are two library assistants, one full time and one part time, under the direct supervision of the library director. The full time assistant works a forty hour week and participates in the same benefits as other full time city employees. The library is open a half day on Saturday. The old library building has been torn down and a new library building is planned. During the interim, one assistant is detailed to do clerical work in the city warehouse. The City Manager testified that there is presently no job description for library assistants, but that there is no educational or previous training requirement for the positions. Their duties include assisting the public and the library director. It was not known whether they actually and independently participated in the ordering of new books for the library. Radio dispatchers. There are six radio dispatchers who are housed in the police station and are under the direct supervision of the Chief of Police, who hires, fires and disciplines them. These employees share the same benefits and work the same number of hours as other city employees. They rotate their schedules so that one dispatcher is always on duty, twenty-four hours a day, seven days a week. All emergency calls, including police, fire and general government utility calls, are relayed through a radio dispatcher. Standard operating procedures are furnished them by the superintendents of the various departments. Dispatchers do not wear uniforms and do not carry weapons. There is no formal training requirement to qualify as a dispatcher, though apparently they must be federally registered in much the same manner as a CB operator. There is no ranking system among them and no head or chief dispatcher. While there is a jail at the police station, dispatchers have no contact with or authority over prisoners housed therein. The City Manager knew of no dispatcher duties other than receiving and relaying emergency calls. In accordance with F.S. s447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Done and entered this 2nd day of June, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Suite 300 Tallahassee, Florida Mr. Stanley E. Marable Frank and Meyer, P.A. 500 Flagship Bank Building Tampa, Florida 33602 Mr. Harrison C. Thompson, Jr. Shackleford, Farrior, Stallings & Evans, P.A. P.O. Box 3324 Tampa, Florida 33601
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, including June 28, 1993, through January 27, 1994, an employee of the Department working in the economic services unit of the Department's District XI (hereinafter referred to as the "District"). In 1990, Petitioner occupied a PAS (Public Assistance Specialist) I position that, in or around June of that year, was one of 182 such positions in the District to be reclassified to a PAS II position as part of the Department's implementation of the new FLORIDA computer system. 2/ Those employees occupying these reclassified positions (hereinafter referred to as the "upgraded employees") whose salaries were below the minimum salary for a PAS II received a salary increase to raise their salary to the minimum. Petitioner was among the employees who received such a salary increase. Such action was taken in accordance with the following Department policy set forth at page 11 of HRSP 60-1: When an employee is promoted, a salary increase to at least the minimum salary of the higher level position will be made. How- ever, an increase of up to ten percent above the current base salary or ten percent above the minimum for the new class may be approved. An increase of up to ten percent of the current base salary is normally used when the employee's salary is the same or nearly the same as the minimum for the new class. An increase of up to ten percent above the minimum for the new class may be granted when an employee possesses training or experience substantially above the minimum training and experience required for the higher class and it is determined that the employee is exceptionally well qualified for the position. These increases must be approved by an assistant secretary or district administrator. Because of funding constraints that existed at the time, no other salary increases were given to the upgraded employees. Funds for such additional salary increases became available toward the end of the 1992-1993 fiscal year. The increases were approved at both the Department and District level. Petitioner and the other upgraded employees were advised of the increases by a memorandum dated July 7, 1993, from the District XI District Administrator. The District Administrator's memorandum read as follows: Your position has been identified as one which was upgraded as a result of the FLORIDA implementation in 1990/1991. At the time, our records indicate that you received a partial increase, or none at all, because of budgetary constraints. Due to the identification of available monies prior to the end of the Fiscal Year, we are pleased to inform you that you will be receiving a pay increase in your salary war- rant on July 9, 1993. The amount of the in- crease will be either 10[percent] or the difference between what you received in 1990/1991 and 10[percent], and was effective June 28, 1993. Should you have any questions about this in- crease or how it was calculated, please call Arelis Valero at 377-5197. Your continued dedication and service to HRS is sincerely appreciated. District personnel miscalculated the amount of Petitioner's approved salary increase (which was "the difference between what [she had] received in 1990 . . . and 10[percent]" of her pre-reclassification base salary). As a result, following June 28, 1993, the effective date of the increase, for the pay periods ending January 27, 1994, Petitioner was overpaid a total of $769.39. The District discovered the error and revised its payroll records to reflect Petitioner's correct salary. In addition, by memorandum, it notified Petitioner of the mistake that had been made and advised her that it was her responsibility to repay the amount she had been overpaid. By letter dated November 1, 1995, the District XI District Administrator informed Petitioner that the overpayment would be recovered through payroll deductions beginning January 12, 1996, amounting to "10[percent] of [her] gross salary each pay period, unless [she] prefer[red] a single lump sum, until the balance [was] paid." The letter further provided, in part, as follows: If you do not dispute the overpayment, but feel that the repayment schedule of 10 [percent] of your gross salary per pay period is overly burdensome, please call Thomas Franklin at 377-5055 Number135 and he will review with you what must be documented and submitted to the Comptroller's Office (Capitol Building, Suite 1201, Tallahassee, Florida 32399-0350) to request a modification. While the total amount eventually repaid to the State cannot be adjusted, the Comptroller may be convinced to lengthen the repayment schedule by lessen- ing the percentage withheld each pay period. If you do not agree that you were overpaid this amount, you have the right to an adminis- trative hearing under 120.57(1) or (2), Florida Statutes, and Rules 10-2.036 and 28-5, Florida Administrative Code. You may request a formal or an informal hearing. If a request for a formal hearing is made, your petition must be in compliance with Rule 28-5.021, Florida Administrative Code. Please note that Rule 28-5.201(2) specifies that your petition should contain a concise discussion of the specific item in dispute. Informal hearings are governed by Rules 28-5.501-503, Florida Administrative Code. Your request for either a formal or informal hearing must be received by this office, attention Thomas Franklin, within thirty (30) days of your receipt of this letter, in accordance with Rule 10-2.036, Florida Administrative Code. Failure to request a timely hearing shall be deemed a waiver of your right to hearing. By letter dated November 6, 1995, Petitioner advised the Department that that she was not in agreement with the "content" of the District Administrator's November 1, 1995, letter, and that she desired to have a hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department: find that, from June 28, 1993, until January 27, 1994, Petitioner was overpaid a total of $769.39; notify the Department of Management Services of this finding; and refer the matter to the Comptroller so that the Comptroller may take appropriate action to recover these moneys owed to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1996.
Findings Of Fact Petitioner, Robert L. Hazlett, Jr., has been a career service employee of the State of Florida for more than twenty years and is employed by the Department of Transportation (DOT) in the Division of Tolls. In 1988, Petitioner was classified as a Regional Toll Manager with the Pay Grade 20. In the spring of 1988, DOT requested that the Department of Administration (DOA) adjust the pay grade for Regional Toll Managers from Pay Grade 20 to Pay Grade 23. This adjustment was granted on May 3, 1988. The instructions which accompanied this adjustment specified that no employee whose position was allocated to the class of Regional Toll Manager on the effective date of the pay grade change was to receive an increase in base rate of pay. Said adjustment in pay was not communicated to the DOT personnel office for several months and on June 17, 1988, based on the assumption that DOA had not approved the pay adjustment for Regional Toll Managers, DOT reclassified the position of Regional Toll Manager to the class of Operations and Management Consultant I, Pay Grade 21. Effective June 17, 1988, Petitioner's job classification was changed from Regional Toll Manager, pay grade 20, to Operations and Management Consultant I, Pay Grade 21. As a result, his biweekly salary changed from $965.06 to $1,093.42. On September 7, 1988, the Secretary of Administration advised that the Department of Transportation's action on June 17, 1988 reclassifying Petitioner's job classification actually resulted in a demotion from pay grade 23 to pay grade 21, but with an increase in his base rate of pay. This action was in violation of Section 22A-2.004(3)(d), Florida Administrative Code. In the letter, the Secretary of the Department of Administration directed the Respondent to take corrective action by reducing the Petitioner's salary to the amount he was receiving prior to the Respondent's June 17 pay action and recalculate all proper subsequent changes to his base rate of pay. On October 18, 1988, Respondent reversed the promotional actions, implemented the pay grade adjustments as approved by the Department of Administration, recalculated the Petitioner's July 1 pay increase, and notified Petitioner of the corrective action taken. In addition, Respondent's Personnel Officer filed a request with the Department of Administration, on November 9, 1988, for a special pay increase for Petitioner, and others, because the reclassification of Petitioner's position was processed as a promotion, not a demotion. This request was denied on December 29, 1988. Petitioner, through no fault of his own, has been overpaid for the period of June 17, 1988 through October 13, 1988 the total sum of $204.26. This sum must be repaid to the treasury of the State of Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended Petitioner reimburse the State of Florida the sum of $204.26 for overpayment of salary in the fiscal years 1988 and 1989. RECOMMENDED this 19th day of November, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: R. Lou Hazlett, Sr. Post Office Box 1415 Green Cove Springs, FL 32043 DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1990. Charles G. Gardner, Esquire Senior Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns building Tallahassee, FL 32399-0458
