The Issue The issue in the case is whether Petitioner’s reclassification and transfer from career service to the selected exempt service pursuant to Section 110.205(2)(x), Florida Statutes (2001), was valid and lawful. All citations are to Florida Statutes (2001) unless otherwise stated.
Findings Of Fact Prior to July 1, 2001, Petitioner was a career service employee of Respondent, for whom she had worked since 1988. On that date, Petitioner was involuntarily reclassified as a selected exempt employee of Respondent. Both before and after her reclassification, Petitioner’s job required her to act as a liaison and contract administrator for technical consulting contracts relating to Respondent’s information technology systems. Respondent contends that it reclassified Ms. Georgalis to selected exempt service in July 2001 as a result of amendments to Section 110.205(2)(x), Florida Statues. Consequently, the Section then read, in pertinent part, as follows: (2) EXEMPT POSITIONS.--The exempt positions that are not covered by this part include the following: * * * (x) Effective July 1, 2001, managerial employees, as defined in s. 447.203(4), confidential employees, as defined in s. 447.203(5), and supervisory employees who spend the majority of their time communicating with, motivating, training, and evaluating employees, and planning and directing employees' work, and who have the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees or effectively recommend such action, including all employees serving as supervisors, administrators, and directors. Respondent reclassified all persons who were "Level VI managers and Level 5 supervisors" to select exempt service as a result of the content of Section 110.205(2)(x), Florida Statutes. Respondent did not confirm that the responsibilities and duties of the position occupied by Petitioner necessitated reclassification to select exempt employee status. Petitioner’s job duties were substantively different from other persons within the DP Level VI occupational group.1 Petitioner did not primarily oversee the work of Respondent's employees as required by the career service exemption. Moreover, she did not even oversee the work of non-governmental supplemental or augment persons who were providing services that could otherwise be provided by departmental employees, assuming such oversight is relevant to the statutory exemption. Petitioner's role was primarily that of liaison and coordinator between Respondent's management and end users of Respondent’s planned technology services, including Respondent's employees who would use the technology that was being developed, as well as construction companies and engineers outside Respondent's department who would ultimately use such technology in working on department's construction projects in the future. Another part of her duties was the administration of contracts between the Department and outside contractors, and in doing so she dealt with independent subcontractor technical consultants who had subcontracts with those outside contractors. These technical subcontractor consultants were not augment employees, and Petitioner was not knowledgeable enough to supervise them on a technical basis. In Petitioner's words, "They spoke an entirely different language." She presented them with broad goals formulated by higher management and served as the conduit to inform them as to whether their work product was acceptable to Respondent and other end users. Petitioner’s job description, both before and after her transfer, confirmed that her position was a “senior level career service data processing position.” She was not required to spend the majority of her time “communicating with, motivating, training, and evaluating employees, and planning and directing employees’ work.” Petitioner was only expected to spend approximately 10 percent of her time overseeing the work of the two state employees working in her area. As established by her testimony, Petitioner never spent more than 3 percent of her time supervising those state employees. Furthermore, the two state employees assigned to specialized technologies were supervised by another employee after the Summer of 2001. At hearing, Respondent's only witness, suggested that Petitioner spent 60 percent of her time supervising “employees,” but he did not know what percentage of that time was spent overseeing the work of career service employees. Testimony of Respondent's witness, Nelson Hill, in this regard is not credited in view of his admission that he was not housed in the Rhynne Building in 2001, where Petitioner was located, and thus had no first-hand knowledge of the day-to-day activities of Petitioner or the other persons working at that building. In any event, a majority of the persons which Hill contends were “supervised” by Petitioner (six out of eight) were not employees of Respondent, but were rather independent subcontractors whose services Respondent retained through contracts with outside third parties. These technical consultants were subcontractors under state approved contracts. They were not “hired” by Respondent. Further, they were not paid by the State, but were rather compensated pursuant to their agreement with the third party state contractor. They were not provided with any insurance, pension, unemployment or worker’s compensation benefits, but were instead treated as true independent contractors; and, most importantly, they were not protected by career service protections, as would have been required if they were indeed state employees. In sum, Respondent's position, as expounded by Hill at the final hearing, is that the application of the exemption provided in Section 110.205(2)(x), Florida Statutes, may be justifiably applied to Petitioner due to Petitioner's alleged oversight of the independent subcontractors even though they were not “employees” of Respondent.2 The evidence does not support a conclusion that Petitioner spent a majority of her time “supervising” anyone. Petitioner’s position description confirms that her contract administration activities consumed no more than 35 percent of her time. By that description, Petitioner was required to provide “daily direction of consultant activities” and “manage, direct, and supervise technical and administrative staff." In actuality, Petitioner spent less than 25 percent of her time in such activities. Petitioner spent the vast majority of her time gathering and transmitting information regarding technological and budgetary needs and facilitating the flow of information from the end users (i.e., Respondent's employees or outside construction contractors and engineers who would use the proposed technology) to Respondent management and back again. Any oversight provided by Petitioner to the technical consultants was exactly the same as that provided to other third-party companies with which Respondent had contracts. These outside companies and technical consultants were engaged by Respondent because they had the skill to achieve the goals that were presented to them within the budget that was established by Respondent. Petitioner's interaction with these persons was not “supervision” of a state employee, but rather “contract administration.” Petitioner’s position descriptions specifically confirm that she was not a “managerial” or “confidential” employee as that term is defined in Section 447.203(4) and (5), Florida Statutes. Accordingly, based on the duties and responsibilities contained in Petitioner’s position description and the actual duties she performed, there is no basis for concluding that Petitioner was subject to exemption from career service as concluded by Respondent in July 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Department of Transportation should enter a final order finding that the position held by Petitioner Mavis R. Georgalis on July 1, 2001, was not properly classified into the selected exempt service. Petitioner was, and should continue to be, classified as a career service employee. DONE AND ENTERED this 2nd day of July, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 2nd day of July, 2004.
The Issue The issue in this proceeding is whether Petitioner's position was properly reclassified from Career Service status to Selected Exempt status.
Findings Of Fact Prior to July 1, 2001, Petitioner, Cooper was employed in the Office of the Secretary of the Department of Children and Family Services (DCFS) as a quality control analyst in a Career Service Employment Position classified and titled Administrative Assistant II Career Service. At the time, Petitioner held permanent Career Service status. The Administrative Assistant II position was certified by the Public Employees Relations Commission (PERC) as within the Career Service Administrative-Clerical collective bargaining unit, represented by the Florida Public Employees Council 79, AFSCME. In her position, Petitioner performed clerical functions. She did not supervise other employees, perform any managerial functions, or perform any confidential duties. She had no role in labor relations, collective bargaining, the adjustment of grievances filed by employees, or the imposition of discipline upon other employees for breaches of conduct. Similarly, Petitioner had no role in the preparation of agency budgets for collective bargaining, or for other purposes. Sometime around June 15, 2001, Petitioner was notified by DCFS that her position as an Administrative Assistant II would be reclassified as a position within the Selected Exempt Service (SES). The reclassification was effective July 1, 2001. No input from the Petitioner regarding the duties of her position was sought by the Department in its decision to reclassify Petitioner's position. Indeed, the Department reclassified the position based on the fact that Petitioner assisted or aided managerial employees and allegedly had access to confidential material. However, there was no evidence in the record that Petitioner's position involved any confidential matters. Petitioner was terminated from employment with DCFS, without explanation, on June 28, 2002. In terminating her employment as an Administrative Assistant II, DCFS represented that Petitioner had no appeal rights either to PERC or under the bargaining agreement between AFSCME and the State of Florida because her position had been reclassified. However, the evidence does not demonstrate that Petitioner's position was managerial, confidential or supervisory. Therefore, Petitioner's position should not have been reclassified to SES and she is entitled to her rights as a Career Service employee.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was an employee of the state of Florida employed by the Department. On May 10, 1991 the Petitioner was arrested and placed in isolation without any outside contact except in the evenings by phone. By letter dated May 15, 1991, mailed to Petitioner's home address, the Department advised Petitioner that having been absence from work for three consecutive days without authorized leave of absence the Department assumed that the Petitioner had abandoned his position and resigned from career services. Additionally, this letter advised the Petitioner that he had 20 calendar days from receipt of the notice to petition the State Personnel Director for a review of the facts to determine if the circumstances constituted abandonment of position. The return receipt for this letter appears to be signed by Vickie Carpenter but does not indicate the date it was signed by her. A copy of this same letter was mailed by the Department to the Petitioner at the jail but no return receipt was ever received by the Department. However, the Petitioner testified at having received the letter around May 23, 1991. On May 23, 1991 the Respondent was released from jail and was available for work beginning on May 24, 1991. However, the Department had already terminated the Petitioner based on abandonment of position. By letter dated June 6, 1991 the Petitioner requested the State Personnel Director to review his case. By letter dated June 12, 1991 and received by Petitioner on June 14, 1991, the Department again advised Petitioner that the Department assumed that he had abandoned his position and again outlined the review process. On June 20, 1991 the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. By letter dated August 27, 1991 the Department advised Petitioner that it was withdrawing the action of abandonment of position, and that he was reinstated to his position effective August 30, 1991. However, by letter dated August 29, 1991 the Department advised Petitioner that he was to report for work on September 3, 1991 rather than August 30, 1991, and that he was to report to Ft. Myers rather than to his old job in Punta Gorda. Additionally, Mark M. Geisler, Subdistrict Administrator, the author of the letter, advised the Petitioner that since the issue of back pay had been discussed with DeLuccia it was best for Petitioner to contact him in that regard. Petitioner was reinstated by the Department on September 3, 1991. Petitioner did not at any time agree to forego any back pay in order for the Department to reinstate him. The Petitioner has never received any back pay for the period beginning Friday, May 24, 1991 (the day he was able and ready to return to work) through Monday, September 2, 1991 (the day before Petitioner returned to work). Petitioner's wife, Vickie L. Carpenter was, at all times material to this proceeding, employed by the state of Florida, and because she and Petitioner both were employed by the state of Florida their health insurance was furnished by the state of Florida at no cost to them. Upon the Department terminating the Petitioner his wife was required to pay for her health insurance until Petitioner was reinstated on September 3, 1991. Petitioner was unable to report to work during the period from May 10, 1991 through May 23, 1991, inclusive, due to being incarcerated, and was on unauthorized leave of absence during this period. Therefore, Petitioner is not entitled to any back pay for this period, and so stipulated at the hearing. However, Petitioner is entitled to receive back pay for the period from May 24, 1991 through September 2, 1991, inclusive. There is sufficient competent substantial evidence to establish that the Department was aware of Petitioner's incarceration and that it was not Petitioner's intent to abandon his position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Administration enter a Final Order (1) confirming the action of the Department that Petitioner did not abandon his position with the Department, and (2) reimbursing Petitioner for back pay for the period from May 24, 1991 through September 2, 1991, inclusive, and for any other benefit that Petitioner was entitled to during this period, including, but not limited to, health insurance benefits. DONE and ENTERED this 12th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1991. COPIES FURNISHED: Thomas J. Carpenter 1669 Flamingo Blvd. Bradenton, FL 34207 Susan E. Vacca, Qualified Representative Department of Health and Rehabilitative Services P.O. Box 1415 Punta Gorda, FL 33951-1415 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Robert B. Williams, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Anthony N. DeLuccia, Esquire Department of Health and Rehabilitative Services P.O. Box 06085 Fort Myers, FL 33906
Recommendation The Hearing Officer would, based on the foregoing Findings of Fact and Conclusions of Law, recommend that no action be taken because Dr. Evangelakis has not suffered a demotion or other personnel action appealable to the Career Service Commission. DONE and ENTERED this 24th day of August, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1976. COPIES FURNISHED: Douglas E. Whitney, Esquire HRS, Legal Services 1323 Winewood Blvd. Tallahassee, Florida 32301 E. Leonard Fleet, Esquire 4001 Hollywood Blvd. Hollywood, Florida 33021 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel & Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether the Stop Work Order issued on July 27, 2007, and the Amended Order of Penalty Assessment were lawful.
Findings Of Fact The Division is a component of the Department of Financial Services. The Department is charged with the administration of portions of the "Workers' Compensation Law." Versa-Tile is a corporation headquartered in Mary Esther, Florida. Versa-Tile is engaged in flooring, which is a construction activity. Michelle Newcomer is an Insurance Analyst II with the working title of Workers' Compensation Compliance Investigator. She maintains an office in Pensacola, Florida. It is her job to travel to work sites and to verify compliance with the Workers' Compensation Law. She is authorized by the Division to issue an SWO and to calculate and assess penalties. On July 24, 2007, Ms. Newcomer was conducting compliance investigations at random sites in the Alys Beach area of Walton County, Florida. While doing so she noticed three individuals in the garage at the rear of a house at 23 Whitby. They were removing tools from a toolbox and "working." Ms. Newcomer identified the men as Adrian Womack and Kent Degallerie. The third man on the site was named "Barker." Barker asserted that he was not doing any work, but was there just to give the men a ride. He was deemed not involved in the work being accomplished at the site. Ms. Newcomer interviewed Adrian Womack and Kent Degallerie. They both told her that they were exempt officers of Versa-Tile. It is found as a fact that the 2006 For Profit Corporate Annual Report of Versa-Tile signed on April 26, 2006, and filed with the Department of State on May 1, 2006, listed Adrian Womack and Kent Degallerie as corporate officers of Versa-Tile. They were not corporate officers of Versa-Tile prior to April 26, 2006. Adrian Womack worked for Versa-Tile from July 29, 2005, until April 25, 2006, as an employee. He was not an officer and was not, and could not be, exempt. Kent Degallerie worked for Versa-Tile from May 6, 2005, until April 25, 2006, as an employee. He was not an officer and was not, and could not be, exempt. Nicholas Womack, who was not present at the Alys Beach site, is listed therein as president of Versa-Tile and has been exempt during all times pertinent. As corporate officers, Adrian Womack and Kent Degallerie could be exempt from the usual requirement that workers be covered by workers' compensation insurance even though they were also employees of Versa-Tile who were paid wages. Ms. Newcomer obtained their full names and social security numbers so that she could verify their claimed exemption. She determined from the Department's Coverage and Compliance Automated System that there were no records of exemption being obtained for them. Ms. Newcomer confirmed with an examiner in the Pensacola office that Adrian Womack and Kent Degallerie were not on the list of exempt persons. She issued a Request for Production of Business Records dated July 24, 2007. She personally served these documents on Adrian Womack and Kent Degallerie. She issued an SWO, dated July 27, 2007, and personally served it on Nicholas Womack. If a person is a ten percent owner of a corporation or limited liability company they are entitled to obtain an exemption from the Department. An exemption is obtained by completing the "Notice of Election to be Exempt" form. This form when properly completed and accompanied by certain required documents, a $50 application fee, and submitted to the Division, will cause the Division to grant an exemption. If the Department determines that a person is exempt upon receiving a properly submitted form and payment, the Department will issue a card reflecting exemption. Neither Adrian Womack nor Kent Degallerie had such a card on July 24, 2007. During all times pertinent, the Department had no record indicating it had received any payment from Nicholas Womack, Adrian Womack, or Kent Degallerie that would have been tendered on behalf of Adrian Womack or Kent Degallerie. On July 27, 2007, Ms. Newcomer met with Nicholas Womack, president of Versa-Tile in her office in Pensacola and personally served him a Request for Production of Business Records. Later, Nicholas Womack provided employment records to Ms. Newcomer. On July 30, 2007, the Department and Versa-Tile entered into an agreement that permitted Versa-Tile to go back to work. Using workers' compensation class code 5348 for employees Adrian Womack and Kent Degallerie, Ms. Newcomer correctly calculated the premium that should have been paid, if they were mere employees, as $8,455.56, and multiplied that figure by the statutory penalty of 1.5. She correctly determined the total to be $12,683.35. The parties stipulated that to the extent the figure applies, it is correct. Nicholas Womack at all times pertinent had an exemption. Adrian Womack and Kent Degallerie were granted exemptions by the Department on July 30, 2007. These were the first exemptions from workers' compensation coverage that they had ever received while in a business relationship with Versa- Tile. The Division receives from 90,000 to 96,000 construction exemption applications yearly. They also receive between 30,000 to 35,000 non-construction exemption applications annually. The applications may be provided by applicants to the Department by hand-delivery at a field office or to the Department headquarters in Tallahassee, or by mail to a field office or to the Department headquarters in Tallahassee. Errors may occur in this process because of mistakes or omissions in the applications filed by the applicant or because of data entry errors by personnel in the Department. However, the process is sufficiently simple and automated that usually, when a complete application is filed, the exemption issues, and the applicant is, thereafter, provided a card reflecting the exemption via mail. There are ten field offices in the state to which applicants may file applications for exemptions. The field office in Panama City, Florida, at least the portion that accepted exemption applications, closed in 2005. However, the forms still listed Panama City as an address to which one might mail an application for exemption. The president of Versa-Tile, Nicholas Womack, has filed for and obtained three exemptions since he created Versa- Tile. Prior to incorporating Versa-Tile, he owned another business by the name of Nicholas Womack Flooring, Inc. He previously had two officers, Michael Smith and Mitchell Smedley, working with him at Versa-Tile, but he removed them as corporate officers so that Adrian Womack and Kent Degallerie could be corporate officers. Mr. Smith's exemption was revoked April 27, 2006, by the filing of a Notice of Revocation of Election to be Exempt with the Department. This roughly coincided with the naming of Adrian Womack and Kent Degallerie as corporate officers. Department of State corporate records, as of May 1, 2006, reflected that Versa-Tile had three officers: Nicholas Womack, Adrian Womack, and Kent Degallerie. In order to obtain a certificate of exemption, Nicholas Womack filed the appropriate form with the Department, along with proof that he held a contractor's license, stock certificates, and $50.00. He followed this process on three occasions while president of Versa-Tile. The evidence of record reveals exemptions granted to Nicholas Womack on January 25, 2005, and May 18, 2006, while president of Versa-Tile. He claims not to ever have received a certificate evidencing exemption from the Department while president of Versa-Tile. Nicholas Womack testified that on only one of the occasions, when he was operating Nicholas Womack Flooring, Inc., did the Department mail him a card reflecting his exemption and stated that occurred in 2001 or 2002. Nicholas Womack understands that by not obtaining coverage under workers' compensation insurance he and the other two corporate officers of Versa-Tile would not be compensated should they be injured on the job. Nicholas Womack explained to Adrian Womack and Kent Degallerie that they were eligible for an exemption, and if they got an exemption and were injured, they would not be covered by workers' compensation insurance. Nicholas Womack testified that thereafter he helped the two men fill out the appropriate forms and ensured that all necessary attachments, including two money orders in the correct amount, were present and then mailed the applications, one in each envelope, to the Department's Panama City office. As soon as the applications were mailed, Nicholas continued allowing the men to work for Versa-Tile without waiting for the exemptions to be granted. Adrian Womack and Kent Degallerie first received exemption on July 30, 2007. Subsequent to July 30, 2007, Nicholas asked Adrian Womack if he had received an exemption card. Adrian Womack said that he had not. Adrian Womack and Kent Degallerie both stated that they had not received an exemption card after filing for exemption in July 2007. Nicholas Womack's testimony that he only received one certificate of exemption in seven years of enjoying an exempt status lacks credibility. Even considering that the Department is large and it annually processes huge amounts of paperwork, it is quite improbable that on six occasions they would fail to send Nicholas Womack a certificate. That being the case, Nicholas Womack's testimony that he mailed completed applications for Adrian Womack and Kent Degallerie to the Department's Panama City office and never received any type of response, when considered in concert with his other testimony, is not credible. It is a fact that Nicholas Womack, Adrian Womack, and Kent Degallerie were eligible for an exemption subsequent to April 26, 2006. If exempt, they were responsible for their own expenses should they suffer an injury while on the job. If they failed to get an exemption, they were likewise responsible for their own expenses should they suffer an injury while on the job. This situation is very different from that where an employer fails to obtain coverage for workers not having an ownership interest in the employer, as was the case with Versa- Tile prior to April 26, 2006.
Recommendation Based upon the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order requiring Versa-Tile and Marble, Inc., to pay a penalty of $12,683.35. DONE AND ENTERED this 25th day of January, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of January, 2008. COPIES FURNISHED: Kristian E. Dunn, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Michael James Rudicell, Esquire Michael J. Rudicell, P.A. 4303 B Spanish Trail Road Pensacola, Florida 32504 Daniel Sumner, General Counsel Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact The findings of fact in the recommended order are supported by competent, substantial evidence. They are adopted with modification together with the following supplemental findings of fact and as such both constitute the complete set of findings of fact for purposes of this final order. Albury also engages in the private practice of law as a member of a law firm. He devotes a majority of his working hours in that practice and is prohibited from representing other school boards because of his work relationship with the Monroe County School Board (the School Board). Until 1980 or 1981, Albury utilized his private law office and his private secretary to perform his duties as school board attorney. There is no evidence that this was for the convenience of the School Board, and it was a known fact that he performed his work from his private law office. The new school board office was renovated in 1980 or 1981, but no office was set up for Albury until late 1983. At that time, one room was made available to both the school board members and to Albury as school board attorney who jointly shared the one room. Prior to late 1983, that room was used by a school board employee who retired in mid-1983. Albury spends very little time in this office since a majority of his duties are performed elsewhere. Until relatively recently, Albury's private secretary did most of his secretarial work in connection with his school board representation. She was a long time employee and very familiar with his working habits, etc. When he left his employment, his new secretary who was less familiar with his habits and school board matters did less work in this area. Consequently, Albury used any one of three school board secretaries for assistance. He does not supervise any of the three secretaries and must request permission from their supervisors before having them perform work for him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order declaring Hilary U. Albury eligible for membership in the Florida Retirement System both before and after July 1, 1979. RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 22nd day of May, 1984.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner was formerly employed by Respondent as a Human Services Worker assigned to the Landmark Learning Center, a residential facility located in Dade County. She began her employment on May 10, 1985. On January 13, 1989, Petitioner received the following memorandum from the Residential Services Director of Facility I at Landmark: In reviewing your time and attendance record from August, 1988, I have observed that you are exhibiting excessive absences and/or tardiness. These frequent absences place an unfair burden on your coworkers and interfere with the operations of this center. Therefore they will no longer be tolerated. Effective on the date you receive this communication, the following restrictions will be in effect: As always, you are expected to have all leave time approved in advance by your immediate supervisor. You are expected to submit a doctor's statement justifying your absence prior to the approval of any sick leave, annual-sick leave, or family-sick leave. You will not be allowed to substitute any other type of leave for these absences. Failure to comply with the above restrictions will result in disapproved leave without pay for the dates in question, and a recommendation for disciplinary action based on absence without authorized leave. In addition a continued pattern of excessive absence could result in disciplinary action for excessive absence/tardiness. All disciplinary [action] will be in accordance with HRS-P-60-1, Employee's handbook. I am confident that you will correct this situation in a satisfactory manner. At no time prior to the termination of Petitioner's employment with Respondent were the "restrictions" imposed by this memorandum lifted. In early 1990, Petitioner sustained an on-the-job injury. As a result of the injury, Petitioner was on authorized leave from February 25, 1990, until April 4, 1990. When she returned to work on April 5, 1990, Petitioner was assigned to "light duty" in the field office of which Sylvia Davis, a Senior Residential Unit Supervisor, was in charge. Petitioner's working hours were 6:00 a.m. to 2:30 p.m. Petitioner was advised that Roberta Barnes would be her immediate supervisor during her "light duty" assignment. On April 5, 1990, Petitioner worked six and a half hours. She was on authorized leave the remainder of her shift. On April 6 and 7, 1990, she worked her full shift. On April 8 and 9, 1990, Petitioner did not report to work. She telephoned the field office before the beginning of her shift on each of these days and left word that she would not be at work because she was experiencing pain in her lower back and right leg; however, she never received supervisory authorization to be absent from work on these days. April 10 and 11, 1990, were scheduled days off for Petitioner. At approximately 11:00 p.m. on April 11, 1990, Petitioner telephoned the field office and gave notice that, inasmuch as her physical condition remained unchanged, she would not be at work the following day. Petitioner did not report to work on April 12, 1990. Although she had telephoned the field office the night before to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on April 12, 1990. On April 13, 14, 15 and 16, 1990, Petitioner did not report to work because she was still not feeling well. She neither telephoned the field office to give advance notice of her absences, nor obtained supervisory authorization to be absent on these days. April 17 and 18, 1990, were scheduled days off for Petitioner. Prior to the scheduled commencement of her shift on April 19, 1990, Petitioner telephoned the field office to indicate that she would not be at work that day because she had a doctor's appointment, but that she hoped to return to work on April 20, 1990. Petitioner did not report to work on April 19, 1990. Although she had telephoned the field office to give advance notice of her absence, at no time had she received supervisory authorization to be absent from work on that day. On April 19, 1990, Petitioner was sent the following letter by the Superintendent of Landmark: You have not called in or reported to work since April 12, 1990 and therefore you have abandoned your position as a Human Services Worker II and are deemed to have resigned from the Career Service according to Chapter 22A-7.010(2)(a) of Personnel Rules and Regulations of the Career Service System. Your resignation will be effective on the date that you receive this letter or on the date we receive the undelivered letter advising you of your abandonment. You have the right to petition the State Personnel Director, 530 Carlton Building, Tallahassee, Florida 32304 for review of the facts. Such petition must be filed within twenty (20) calendar days after receipt of this letter. At approximately 12:40 a.m. on Friday, April 20, 1990, unaware that she had been deemed to have resigned her position, Petitioner telephoned the field office to give notice that she would be out of work until after her doctor's appointment on Monday, April 23, 1990. On April 23, 1990, Petitioner again telephoned the field office to advise that she had to undergo further medical testing and therefore would remain out of work until the required tests were performed. Petitioner's call was transferred to Elaine Olsen, a Personnel Technician II at Landmark, who told Petitioner about the letter the Superintendent had sent to Petitioner the previous Thursday. Petitioner received the letter on April 30, 1990. Petitioner did not report to work during the period referenced in the Superintendent's letter because she was not feeling well. She did not intend, by not reporting to work on these days, to resign or abandon her position. It was her intention to return to work when she felt well enough to do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order (1) finding that Petitioner did not abandon her career service position, and (2) directing Respondent to reinstate Petitioner with back pay. DONE and ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1991. 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 16th day of May, 1991.
Findings Of Fact Respondent employs petitioner as a youth counselor II in Ft. Pierce, Florida. Petitioner attained permanent career service status in May of 1972. In addition to "carrying a normal caseload," i.e., supervising 85 to 88 youngsters in the customary fashion, petitioner met four times weekly with children who had been referred by courts or school authorities for intensive counseling. These groups counseling sessions began at six o'clock in the evening and lasted from one to one and a half hours. John B. Romano became petitioner's immediate supervisor on March 18, 1977. With the acquiescence of Mr. Romano's immediate predecessor, Ben Robinson, petitioner ordinarily reported for work between half past nine and half past ten in the morning. The week Mr. Romano started as petitioner's supervisor, he noticed that petitioner arrived for work between half past nine and ten in the morning. When he spoke to petitioner about this, petitioner told him of an accommodation that had been reached with Mr. Robinson, on account of petitioner's staying at work late to conduct group counseling. Mr. Romano told petitioner that he should report for work at half past eight in the morning, until a youth counselor's vacancy that then existed in the office could be filled. Subsequently, on at least one occasion before May 31, 1977, Mr. Romano spoke to petitioner about being late for work. On May 31, 1977, by which time another counselor had been hired, petitioner reported for work at approximately half past ten. On June 7, 1977, after petitioner had been suspended, Mr. Romano issued a written reprimand to petitioner, characterizing petitioner's arrival at half past ten on May 31, 1977, as "an insubordinate offense." Respondent's exhibit No. 5. One Harry Greene told Earl Stout, a service network manager for respondent and Mr. Romano's superior, that a boy whom petitioner had supervised had accused petitioner in open court of selling drugs and smoking marijuana. Messrs. Greene, Stout and Romano visited the facility at which petitioner's accuser was incarcerated and interrogated him. On May 13, 1977, a Friday, Mr. Romano told petitioner to meet him at nine o'clock the following Monday, but did not explain why. Present at the meeting on May 16, 1977, were petitioner, Mr. Romano, Mr. Greene and Mr. Stout. Petitioner was told of the accusations against him, but the accuser's identity was withheld. Mr. Stout gave petitioner the choice of resigning his position or taking annual leave for the duration of a formal investigation. Petitioner refused to resign. Mr. Stout instructed petitioner to tell no one that he had been asked to take leave or that he would be the subject of an investigation. When petitioner left this meeting he promptly told his fellow youth counselors that the had been suspended. For this petitioner received a written reprimand dated June 7, 1977. Respondent's exhibit No. 6. Petitioner subsequently availed himself of grievance procedures to raise the question whether he should have been permitted to take administrative leave instead of annual leave; and it was decided that he was entitled to take administrative leave. On June 8, 1977, Earl Stout wrote petitioner a letter which began "On June 1, you were advised by me that effective June 2, you were being suspended for insubordinate acts . . . ." This letter was sent to petitioner by certified mail. Mr. Stout testified without contradiction that blanket authority had been delegated to him to suspend employees under him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the suspension be upheld. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. J. Wayne Jennings, Esq. 2871 Forth-Fifth Street Gifford, Florida 32960 Mr. K.C. Collette, Esquire Forum 3, Suite 800 1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
Findings Of Fact On July 9, 1986 Petitioner, a Clerk Typist Specialist employed by the Department of Health and Rehabilitative Services, signed a receipt acknowledging that she had received a copy of the Department's Employee Handbook which contains the information that an employee who is absent for three consecutive workdays without authorization may be considered to have abandoned his or her position and thereby to have resigned. On September 3, 1987 Petitioner telephoned her supervisor to advise him that she had an interview scheduled and that she would be at work by 9:30 a.m. She, however, thereafter failed to appear at work and failed to make any further contact with her supervisor on September 3, 4, 8, 9, 10, and 11, 1987. On September 11, 1987 by certified letter the Department advised Petitioner that, as of the close of business on September 9, she was deemed to have abandoned her position and to have resigned from the Career Service due to her unauthorized absence for three consecutive workdays, i.e., September 3, 4, and 8, 1987.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is, RECOMMENDED that a Final Order be entered deeming Petitioner to have abandoned her position and to have resigned from the Career Service. DONE AND ORDERED this 30th day of November, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1987. COPIES FURNISHED: Ruby Holloway-Jenkins 649 West 4th Street Riviera Beach, Florida 33404 K. C. Collette, Esquire District IX Legal Counsel 111 Georgia Avenue West Palm Beach, Florida 33401 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact William Marcum is a career service employee with appeal rights to the Career Service Commission. In April, 1977, Marcum received a written reprimand from his supervisor, Alphonso Crowell, for being asleep on the job. On July 19, 1977, Alphonso Crowell observed Marcum, who was on duty in the dormitory of the Okeechobee School for Boys, from outside the dormitory through a large window. Crowell observed Marcum seated at his desk with his head leaning against the wall. Crowell could not see Marcum's face, but Marcum did not move for approximately twenty (20) minutes during which time Crowell observed him. Crowell directed Mr. George LaGrange, Marcum's direct supervisor, to relieve Marcum immediately. This incident resulted in counseling by the superintendent of the school, who determined that Marcum was suffering from arthritis and taking aspirin for this problem. Marcum was counseled but no disciplinary action was taken because he had been taking medication and was scheduled to be hospitalized. On August 15, 1977, Marcum returned to work having been pronounced fit for duty by his doctor and the agency's doctor. On August 17, 1977, George LaGrange walked into the dormitory to which Marcum was assigned at approximately 4 A.M. and approached Marcum from the right rear. LaGrange, wearing boots, walked to within six (6) feet of Marcum and observed Marcum for about five (5) minutes. Marcum was slumped forward in his seat and did not move during this period. LaGrange then spoke to Marcum and Marcum immediately returned and replied to LaGrange. Marcum denies that he was asleep on either occasion, but asserts that he was absorbed in thought about his personal affairs. Marcum pointed out that neither Crowell nor LaGrange observed his face and therefore could not tell whether he was asleep. Marcum's duties were direct custodial supervision of the children in the dormitory to which he was assigned.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends to the Career Service Commission that they sustain the disciplinary action taken by the agency against William Marcum. DONE and ORDERED this 28th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1978. COPIES FURNISHED: William Marcum Route 3, Box 3575 Okeechobee, Florida 33472 K. C. Collette, Esquire 1665 Palm Beach Lakes Boulevard Suite 800 West Palm Beach, Florida 33401 Dorothy Roberts, Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304 Art Adams, Director Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301
