The Issue The issue in this case is whether Respondent properly reclassified Petitioner's employment position from Career Service status to Selected Exempt Service status.
Findings Of Fact In 2001, the Florida Legislature enacted a substantial revision to Florida's civil service system commonly referred to as the "Service First" initiative. See Ch. 2001-43, Laws of Fla. Among the significant changes, the revision redefined the parameters of the Selected Exempt Service classification for public employees. In essence, the Selected Exempt Service classification was expanded to include most of the supervisory level employee classifications which had previously been identified as part of the Career Service classification. The statutory changes brought about by the Service First initiative became effective on May 14, 2001. Id. at 15. Petitioner was employed under the Career Service classification by the Department of Children and Family Services since 1990, and served as a Public Assistance Specialist Supervisor, position number 64817, in the Suncoast Region. In light of Section 110.25(2)(x), Florida Statutes (2003), Respondent reclassified Petitioner's Career Service position to Selected Exempt Service status in July 2003. Petitioner's Career Service position description remained unchanged when it was reclassified to Select Exempt Service status. The position description specifically identifies supervisory responsibilities and states: Duties and Responsibilities: This is a professional position primarily responsible for the supervision of a public assistance unit for determining the initial and ongoing eligibility of applicants for programs such as Food Stamps, Medicaid, ICP, OSS, Waiver, etc. More specifically, pursuant to the written position description, the Public Assistance Specialist Supervisor is required to "supervise the appointment and case management system" to ensure that subordinates are correctly processing applications. The position is responsible for evaluating all scheduled work and appropriately reassigning work. In addition, pursuant to the position description, the supervisor shall analyze work reports provided by subordinate employees, educate staff, schedule case reviews with supervised employees, and conduct monthly conferences with each employee. The supervisor is obligated to review their performance, identify their strengths and weaknesses, and provide supervisory assistance in achieving acceptable standards. The supervisor is required to prepare written evaluations, conduct staff meetings, and develop in-service training for under achieving employees. Petitioner's actual duties and work-load were consistent with the written position description. Petitioner interviewed applicants and recommended candidates for job vacancies in his area. He supervised subordinates, recommended and levied appropriate corrective action, and organized and distributed work. Petitioner set organizational goals, motivated employees, trained and developed their technical skills, resolved employee problems, and implemented performance and quality control standards. Petitioner was responsible for ensuring that the staff assigned to him maintained at least a 90 percent accuracy rate on case reviews processed and a 96 percent processing rate on unit assigned client applications. Petitioner admits that his supervisory duties consumed most of his time. He acknowledges that client interviews were not part of his normal duties and concedes that he regularly supervised employees, provided feedback to employees, and performed evaluations. In addition, he agrees that his recommendations regarding discipline were usually followed. Petitioner routinely led staff meetings with his subordinates and frequently met with them individually. He controlled work-flow and made changes as he deemed appropriate within his department. Petitioner admits that he functioned as the supervisor in an area that was distinct and separate from the other units. The evidence presented at hearing establishes that Petitioner's written and actual duties were supervisory in nature, and he spent the majority of his time performing those duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order approving Petitioner's reclassification. DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 31st day of March, 2004. COPIES FURNISHED: Joseph A. Conley, Jr. 8511 Sunflower Lane Bayonet Point, Florida 34667 Jennifer Lima-Smith, Esquire Department of Children and Family Services 9393 Florida Avenue, Room 902 Tampa, Florida 33612-7236 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue What amount of legal fees and costs should be awarded to Petitioner pursuant to Section 120.569(2)(e) or 57.105(5), Florida Statutes, for Respondent’s erroneous classification of Petitioner’s position and subsequent failure to correct that error and reclassify Petitioner’s position back to career service as requested by her in Georgalis v. F.D.O.T., DOAH Case No. 03-4665SED.
Findings Of Fact On April 1, 2002, Petitioner was discharged from her position with the Department without stated cause or hearing. See Petitioner’s Ex. 1-2, Dep’t of Transportation v. FCHR, 842 So. 2d 253, 256 (Fla. 1st DCA 2003). On June 11, 2003, Petitioner was temporarily reinstated by order of the Circuit Court to her position with the Department pursuant to section 112.3187(9)(f). Petitioner’s Ex. 1-3. The administrative case underlying this request for fees and costs was initiated by Petitioner through the filing of a Petition for Formal Administrative Hearing on August 15, 2002. Petitioner’s Ex. 1-4. In that Petition, Petitioner demonstrated, through reference to the position description provided to her by the Department, that she did not fit within any of the categories of employees exempted from career service by Section 110.205(2)(x), Florida Statutes. Petitioner’s Ex. 1-4, paragraph 7. Petitioner also put the Department on notice that she believed the Department’s action in reclassifying her was “frivolous and was done for an improper purpose,” since it was contradicted by the Department’s own documents. Petitioner’s Ex. 1-4, paragraph 12. She also requested that she be awarded appropriate attorneys’ fees and costs. Id. After nearly four months, the Department forwarded the Petition to the Division of Administrative Hearings for a formal administrative hearing regarding whether its decision to reclassify Petitioner was proper. Petitioner’s Ex. 1-5. By this letter, which was filed with the Division of Administrative Hearings on December 10, 2003, the Department requested a formal administrative hearing and manifested its opposition to the relief requested by Petitioner in her Petition. A hearing was held in DOAH Case No. 03-4665SED on April 15, 2004. Following the preparation of a transcript, the parties submitted Proposed Recommended Orders. Petitioner filed a Motion to Strike portions of the Department’s Proposed Recommended Order because it improperly raised an argument that Petitioner could properly be exempted from career service because she was an “administrator.” Petitioner’s Ex. 1-6. That Motion was granted. Petitioner’s Ex. 1-7.1/ On July 2, 2004, the undersigned entered a Recommended Order concluding that Petitioner was improperly reclassified into Select Exempt Service. Petitioner’s Ex. 1-8, p. 12. On September 1, 2005, the Department entered a Final Order adopting the Recommended Order entered in DOAH Case No. 03-4665SED.2/ Petitioner’s Ex. 1-11. Paragraph 13 of the fully-adopted Recommended Order states that: 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. Petitioner’s Ex. 1-8, paragraph 13. In paragraph 19 of the fully-adopted Recommended Order, the undersigned concluded that: [t]he suggestion of the Respondent’s witness that the exemption should apply if a state employee is assigned to work with anyone retained or commissioned by Respondent to perform services for Respondent, however menial the task, simply misconstrues the statutory exemption: the relevant issue for the purposes of the exemption is whether such persons are department “employees,” not whether a department has contracted or engaged their services as independent technical consultants. Such contract administration is not relevant to the issue of whether Petitioner could properly be classified as a selected exempt employee. Petitioner’s Ex. 1-8, paragraph 19. Following entry of the Recommended Order, Petitioner filed her two (2) Motions for Attorneys’ Fees. Petitioner’s Ex. 1-12 and 1-13. These motions seek an award of attorney’s fees and costs based on the lack of factual or legal support for the Department’s opposition to Petitioner’s request that the Department correct its error in reclassifying her position to Select Exempt Service. Id. Petitioner submitted an affidavit and itemized statement of the requested hours, a summary of hours by the attorney, and a summary of costs incurred in this matter. Petitioner’s Ex. 1-14. Petitioner also submitted the testimony of J. Steven Menton, Esquire, who corroborated the reasonableness of the services and time expended by Petitioner’s counsel and also confirmed the reasonableness of the fees charged and costs incurred by Petitioner’s counsel for those services. The Department did not contest the number of hours sought by Petitioner’s counsel. Respondent did offer the testimony of Michael Mattimore, Esquire, who was also counsel of record for the Department in this case, suggesting that the rates charged by Petitioner’s counsel exceeded those which are normally charged by similar attorneys in the community. Mattimore’s testimony related to fees charged in “employment” law cases in which he has been involved during his career and did not focus on administrative litigation challenging the actions of a governmental agency, such as the present case which involved more than merely examining the factual circumstances surrounding a discharge or other adverse employment action. Confirming the complexity of the underlying case was Mattimore’s testimony regarding the outcome in other reclassification cases. The great majority of reclassification challenges (more than 95 percent of them) have been resolved in favor of the governmental agency or have not been pursued by the impacted employee. Id. The outcome obtained by attorneys for Petitioner in the underlying case is suggestive of fees toward the high end of the range. Petitioner reported the following hours and rates (Petitioner’s Ex. 1-14): LAWYERS: Hours Rate Amount M. Stephen Turner, P.A. 44.40 $400 $17,760.00 David K. Miller, P. A. 1.00 $300 $ 300.00 Martin A. Fitzpatrick 228.50 $250 $57,125.00 Brooke Lewis .90 $200 $ 80.00 TOTAL ATTORNEY HOURS 274.80 $75,365.00 Paralegals: Theresa J. Everhart Hours 1.90 Rate $80 Amount $152.00 Trishia Finkey 1.00 $80 80.00 TOTAL PARALEGAL HOURS 2.90 $ 232.00 TOTAL LEGAL FEES: $75.597.00 The hours and rates requested are found to be reasonable in view of the novelty and complexity of the issues, level of legal skills required, and the result obtained for the Petitioner. The rates sought are in line with fees charged by similarly-situated attorneys for similar work in the community. The amount requested is reasonable and justified under the circumstances. Moreover, the costs and expenses for which reimbursement is sought ($1,523.25) and the expert witness fees of $1400 ($280 /hour for 5 hours) are also reasonable and are of a kind typically billed to clients in addition to the hourly rate charged.
The Issue Whether the classification of Petitioner's position from career service to selected exempt service was appropriate.
Findings Of Fact On July 22, 2003, Petitioner received notice from the Department of Children and Family Services (DFCS or the Department) of a clear point of entry to challenge the reclassification of her position from career service to select exempt service. Petitioner filed a request for hearing on August 19, 2003, which apparently lay unaddressed for some time. On March 6, 2008, the Department issued an Order on Status, advising Petitioner that her request for hearing filed August 19, 2003, did not comply with Section 120.569(2)(c), Florida Statutes, or Florida Administrative Code Rule 28- 106.201(2). The Order directed Petitioner to file an amended request for hearing within 30 days or the case would be dismissed. On May 6, 2008, the Department entered a Final Order Closing File, indicating no response had been received to its Order on Status. On May 29, 2008, Petitioner wrote to the Department indicating that the Final Order Closing File was the first correspondence she had received from the Department, and that the documents had been sent to a wrong address, notwithstanding that the Department had been supplied the correct address. On July 18, 2008, the matter was referred to the Division of Administrative Hearings and an Initial Order was issued. No timely response was received to the Initial Order from either party, and the matter was duly noticed for hearing for September 30, 2008. On September 30, 2008, the hearing commenced as scheduled at 9:30 a.m. Respondent was present and ready to proceed. Petitioner was not present. The Division had, the day before, received a telephone call from Petitioner indicating that she might not appear, and she was advised of the need to either withdraw her request for hearing or request a continuance. The undersigned recessed the hearing to give Petitioner every opportunity to arrive. In addition, the undersigned questioned her assistant and checked the official docket of the Division of Administrative Hearings to determine if any document had been filed on the docket of the Division or any telephone call was received indicating Petitioner was delayed. No such communication had been received. Counsel for Respondent represented that he had not heard from the Petitioner in the days leading up to the hearing. In light of Petitioner's failure to appear, the hearing was adjourned at 10:03 a.m.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's request for hearing. DONE AND ENTERED this 6th day of October, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2008. COPIES FURNISHED: Amelia E. Kane-Crawford 144 Durance Drive Flintstone, Georgia 30725 Juan Collins, Esquire Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 George Sheldon, Interim Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 202 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is entitled to continue to receive benefits under the Florida Teachers' Retirement System.
Findings Of Fact Petitioner was employed as a school teacher in the public school system of Broward County, Florida, prior to October 1, 1989. Petitioner had been so employed for approximately 28 years and he was a member of the Florida Teachers' Retirement System. Petitioner was born January 1939 and was, at the time of the formal hearing, 52 years of age. In addition to his employment as a school teacher, Petitioner worked part-time, on weekends, holidays, and during vacations as a longshoreman at Port Everglades. On August 21, 1988, the Petitioner suffered an injury to his left ankle and leg while working as a longshoreman on the docks at Port Everglades. This accident occurred when a piece of equipment backed over Petitioner, breaking his ankle and leg. Two operations by a Dr. Smith followed the accident. Thereafter, Petitioner was treated by Dr. William A. Morris, III, M.D., a family practitioner. Petitioner applied for disability retirement benefits under the Florida Teachers' Retirement System and asserted that the injuries he suffered on the docks rendered him unable to teach. Respondent thereafter received a certification from Dr. Morris expressing the opinion that Petitioner was disabled as a result of his injuries and unable to teach school. Respondent granted Petitioner's application for disability retirement benefits in partial reliance on Dr. Morris's certification of disability. Petitioner's official retirement date was October 1, 1989, and he thereafter began to receive disability retirement benefits from the Florida Teachers' Retirement System. As part of its operations, Respondent receives computer reports from the Florida Auditor General's Office which provides information as to income earned by retirees who receive benefits under the Florida Teachers' Retirement System. From the Auditor General's report, it became apparent to Respondent that Petitioner continued to work as a longshoreman at Port Everglades. The report reflected that Petitioner was receiving income from several shipping companies at the same time he was receiving disability retirement benefits. Mark Sadler, one of Respondent's Retirement Administrators, thereafter requested that Petitioner complete FRS Form FR-13e, entitled "Retirees' Report of Continuing Disability", so that a determination could be made as to Petitioner's continued entitlement to disability retirement benefits. Petitioner gave a negative response to the following question on Form FR13-e: "Since the date of your disability retirement, or the date you last completed a Disability Evaluation Statement, have you ever been employed in any capacity?" This response was not truthful. Respondent also requested that Dr. Morris complete Form FR-13f, entitled "Physician's Report of Re-Examination" to ascertain his opinion as to Petitioner's continued disability. Dr. Morris returned the form, dated May 7, 1991, and expressed the opinion that Petitioner was still totally and permanently disabled. Dr. Morris also wrote Mr. Sadler a letter, dated June 16, 1992, expressing his opinion that Petitioner's condition was essentially unchanged from his previous indications. On July 7, 1992, Mr. Sadler informed Dr. Morris by telephone that it appeared that Petitioner had been gainfully employed as a longshoreman. Dr. Morris had not been aware of that employment and expressed the opinion to Mr. Sadler by telephone that Petitioner could teach if he could perform the duties of a longshoreman. On August 4, 1992, Respondent advised Petitioner in writing that it had determined that Petitioner was no longer entitled to disability retirement benefits. Petitioner contested that decision and requested a formal administrative hearing. This proceeding followed. Respondent thereafter took Petitioner's deposition to determine the extent of his employment as a longshoreman. In that deposition, Petitioner described his job activities and the hours he worked. Petitioner worked as a longshoreman on the docks throughout the time he was receiving disability retirement benefits. He was employed by different shipping companies in several different capacities. He worked as a porter handling luggage, he worked with a crew loading and unloading scrap iron, he worked with a crew loading foodstuffs on passenger ships, and he worked with a crew directing the operator of a gantry crane. He drove a fork lift and served as a supervisor of various crews, a position known as a "header." Prior to his own deposition, Dr. Morris reviewed Petitioner's deposition and became familiar with Petitioner's employment history since his disability retirement. Dr. Morris expressed the opinion that Petitioner was physically capable of performing the tasks required of a school teacher. Petitioner testified that he suffered from pain in his left ankle and leg as a result of the accident and that he has difficulty at times walking or standing. Petitioner was also concerned that he would be inattentive to his students at times because of his discomfort and because of the medication he takes to alleviate that discomfort and to control his diabetes, gout, and arthritis. Petitioner argues that his employment as a longshoreman does not establish that he is able to return to teaching and that he remains disabled. Petitioner presented no medical testimony to support his arguments. Based on Dr. Morris's testimony, Petitioner's arguments are rejected, and it is found that Petitioner is capable of returning to his employment as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of facts contained herein and which terminates Petitioner's disability retirement benefits. DONE AND ORDERED this 6th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-5434 The only post-hearing submittal filed by Petitioner was a letter and attachment thereto that contains argument, but not proposed factual findings. Those arguments are contrary to the conclusions reached herein and are rejected. The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Lewis B. Tunnage 450 North West 20th Avenue Fort Lauderdale, Florida 33311 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Larry Strong, Acting Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
The Issue The issue in this case is whether Petitioner should be granted credit in the Florida Retirement System (FRS) for the period from September 1973 through September 1974.
Findings Of Fact Petitioner is a current employee of Miami-Dade County and a participant in the Deferred Retired Option Program (DROP). Petitioner has been an employee of Miami-Dade County since 1973. From 1970 until 1973, Petitioner was employed with the Florida Department of Transportation. Petitioner has 30 years of service credit in the FRS. From September 1973 through September 1974 Petitioner was employed in a position with Miami-Dade County which was funded under Budget Status Code 4. During this 13-month period, under Dade County Personnel Policy, Budget Status Code 4 denoted a "temporary or on call" position. In October of 1974, Petitioner was promoted into a full-time, regularly established position. In 2000, Petitioner was provided an estimate of benefits as he was in preparation to enter the DROP. As a result, Petitioner requested that the Division grant him credit for the September 1973 through September 1974 period. The Division denied this request and Petitioner filed a timely appeal. On March 6, 2001, Petitioner applied for and began participation in the DROP program effective April 1, 2001. Petitioner is now participating in the DROP. When Petitioner enrolled in the DROP program, two of the documents he signed included the following statement: "I cannot add additional service, change options, or change my type of retirement after my DROP begin date."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying Petitioner's request for retirement service credit for the period of his employment with Miami-Dade County from September 1973 through September 1974. DONE AND ENTERED this 18th day of October, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 18th day of October, 2001. COPIES FURNISHED: Victor Larger 4421 Southwest Third Street Miami, Florida 33134 Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Post Office Box 3900 Tallahassee, Florida 32399-3900 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Respondent committed violations of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner began working at Apalachee Correctional Institute (ACI) in 1993. ACI had about 1,600 to 1,800 inmates during times pertinent to this case. The inmates assigned to ACI are those found to be mentally disturbed. ACI is divided into the East Unit and the West Unit. Petitioner was hired as a Clerk Typist Specialist. She worked in the health services area performing typing and filing in the East Unit. In time Petitioner developed carpal tunnel syndrome. She had three surgeries, two of which involved her wrists. These medical problems prevented her from working a normal schedule and she had to expend her leave in order to cover her absences. Because of the problems with her wrists, she had, from time to time, difficulty typing without experiencing pain. Ann Lashley was employed in the West Unit. In 1995, she had a disagreement with her co-workers and, as a result, she was transferred to the East Unit. Subsequently, Petitioner was moved to the West Unit. Much of the work accomplished by the clerk-typists was related to transcribing psychiatrists' notes. The psychiatrists in the East Unit often typed their own notes. The psychiatrists in the West Unit did not. Therefore, there was more typing for the clerk-typists in the West Unit. Petitioner had difficulty keeping up with this additional typing. John Frank Williams was the overall supervisor of the East and West Units. He does not know, or in any event does not recall, why Petitioner was transferred. Petitioner filed a workers' compensation claim based on a date of accident of August 1, 1993. Petitioner's medical situation was coordinated with the Florida Division of Risk Management. A contract service, Compensation Rehabilitation Associates, was employed to audit Petitioner's work station and to determine what, if any, special equipment might assist Petitioner in accomplishing her employment duties without pain. A representative of Compensation Rehabilitation Associates opined that Petitioner required an ergonomically designed chair. Mr. Williams ordered one for her and Petitioner used it. Mr. Williams had work which had to be addressed. Nevertheless, he was aware of Petitioner's limitations and need to visit doctors and made diligent efforts to resolve the situation, including scheduling her work hours in a manner which would permit her to seek medical care. Petitioner related the following events which she contended constituted harassment: In 1994, when she first had problems with one of her wrists, she was told by Kenneth Swann to type with one hand. She was also told, at some time, by Dr. Cherry to type with one hand. She attended a meeting where Mr. Williams said, apparently in response to her continuing medical difficulties, that no one would want her. Joseph Thompson, at some point, told her she was not a team player. Dr. Loeb placed Petitioner at maximum medical improvement (MMI) on June 6, 1995 with no impairment or restrictions. Dr. Vogter placed the Petitioner at MMI on June 25, 1995, with an impairment rating of 17 percent, with restrictions of light duty and no continuous transcription work. Dr. Chason placed the Petitioner at MMI on April 7, 1998, with regard to psychological care, with a zero impairment rating. In a letter from Margaret Forehand dated August 12, 1996, a Personnel Technician II of ACI, Petitioner was informed that she was being placed on alternate duty. This letter outlined Petitioner's proposed work hours and took into consideration her need for reduced hours of typing and her need to visit her doctors. Petitioner, in response to this letter, declined to return to work. She had failed to report for work on August 15, 1996, and has been continuously absent since that date. Her sick leave was exhausted on October 4, 1996. Her Family Medical Leave Act benefits terminated on November 17, 1996. In a letter dated November 25, 1996, C. W. Sprouse, Superintendent of ACI, informed Petitioner that another position had been found for her and invited her to contact Ms. DeDe McMillian so that she could begin working. On or about December 10, 1996, Petitioner called Ms. McMillian and declined the offer. In a letter dated December 17, 1996, C.W. Sprouse informed Petitioner that a personnel action was being taken which could result in her dismissal. She was further informed that she was entitled to a predetermination conference. Petitioner did not request a predetermination conference and on January 3, 1997, her employment with ACI was terminated by Superintendent Sprouse. On May 26, 1998, a Judge of Compensation Claims entered an order adopting a stipulation between Petitioner, ACI, and the Florida Division of Risk Management whereby Petitioner received a lump sum of $50,000. The stipulation further recited that the stipulation resolved any and all issues regarding any aspect of the Petitioner's workers' compensation benefits.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition. DONE AND ENTERED this 13th day of September, 2001, in Tallahassee, Leon County, Florida. 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 13th day of September, 2001. COPIES FURNISHED: Gary Bullard, Qualified Representative 805 Shelby Avenue Alford, Florida 32420 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Dixon, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether the Respondent, Christina M. Restauri, committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating licensed community association managers pursuant to Florida law. At all times material to the allegations of this case, the Respondent was licensed as a community association manager, license number CAM 0019553. In May 1998, the Respondent became the community association manager for the Association. As such, the Respondent had duties and responsibilities in connection with the day-to-day management of the Association's business. In exchange for the performance of her manager duties, the Association paid the Respondent a salary, provided her with a condominium unit for her residence, paid her utilities, and covered her local telephone service. The Respondent's managerial duties included all office management for the Association, including the collection of fees owed to the Association, the payment of monies owed to vendors by the Association, and the accounting associated with payroll for salaries owed to employees of the Association. The Respondent and the Association entered into a written management agreement that outlined the terms of her employment. The agreement (Petitioner's Exhibit 1) did not require the Association to pay for the Respondent's family health insurance. Additionally, the agreement did not provide for paid sick leave in excess of four days per year. In connection with her responsibilities for payroll, the Respondent controlled the amount of checks made payable to herself for salary owed during the course of her employment. This authority also allowed her to control the amount of monies withheld from her salary to cover her family medical insurance and for the monies payable for federal withholding taxes and social security. On at least two occasions, the Respondent altered her withholding such that no monies were withheld for federal taxes. The Respondent failed or refused to produce a W-4 form that would have supported the change in withholding. Moreover, the Respondent did not produce a W-2 form that would have supported, after-the-fact, that the withholding forms had been modified to support the altered withholding amount. The Respondent failed or refused to produce documentation to establish that she repaid the Association for family medical benefits she received. Initially, the amount to cover the family health benefit was reportedly withheld from the Respondent's paycheck. The adequacy of the withheld amount came into question. Under the terms of her employment, the Respondent was to remit the monthly family health premium to the Association. She did not do so. In fact, copies of checks that were purportedly offered in support of her claim that she had made the payments were never deposited into the Association's account. When the Respondent was challenged as to the amounts owed for health premiums and the matter was to be further investigated, she tendered her resignation. She never produced any of the financial records requested to document any of the matters contested in this proceeding. In addition to the foregoing payroll discrepancies, the Respondent caused herself to be overpaid $125.00 for sick leave. On or about October 12, 2000, the Respondent took $700.00 from the Association's petty cash and loaned it to Sandy Schwenn. Ms. Schwenn was employed by the Association as a secretary and had agreed to repay the funds. The loan was never repaid. The Respondent was not authorized to loan monies from the Association's petty cash fund and admitted the error during a board of directors' meeting on November 15, 2000. Whether the Respondent made good on her promise to repay the loan herself is unknown. Clearly, at hearing the Respondent did not make such representation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order against the Respondent that imposes an administrative fine in the amount of $2500.00, and revokes her license as a community association manager. DONE AND ENTERED this 13th day of November 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. PARRISH 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 13th day of November 2003. COPIES FURNISHED: Julie Malone, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Christina Marie Restauri 4640 Northwest 30th Street Coconut Creek, Florida 33063 Jennifer Westermann Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202
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
The Issue Proposed transfer of Bernice Ino, as specified in letter of Anthony Ninos, Director of Division of Hotels and Restaurants, dated July 27, 1976. This is an appeal of a career service employee pursuant to Section 110.061, Florida Statutes. The appeal was referred to the Division of Administrative Hearings by the Career Service Commission on November 24, 1976.
Findings Of Fact By the General Appropriations act emanating from the 1976 state legislative session, 38 employee positions of the Respondent's Division of Hotel and Restaurants were abolished. Although the specific positions were not identified in the appropriations act, the Division director was informed by a staff representative of the legislative committee on appropriations that 25 Hotel and Restaurant Inspector I positions and six Inspector II positions should be among those eliminated. The Division previously had 103 Inspectors of the two classes. Respondent identified the positions statewide to be eliminated and requested the Secretary, Department of Administration, to approve the concept that the competitive area for layoff of employees be statewide within the Division. Approval of this plan was secured and Respondent proceeded to abolish the positions and to layoff Inspectors in its various districts throughout the state. Since the Division at the time had eight vacancies for Inspector positions only 23 employees were actually eliminated. Layoffs were carried out under a retention point system based on length of service and performance evaluations, computed and applied under the provisions of Department of Administration Emergency Rule 22AER76-1, Subject "Emergency Rule Governing Layoff of Career Service Employees". As to Inspectors I, the 83 such positions in the state were placed on a numerical list, according to total number of retention points of each employee, and those with the lowest numbers were selected for layoff. Seven employees were terminated in District I (Jacksonville) and one in District IV (Ft. Lauderdale). (Testimony of Ninos, Dorn, Exhibits 1, 9-12) As a result of the abolishment of Inspector positions, there was an imbalance in manning levels in the various state districts. In Jacksonville, there had been eight inspector positions. The abolishment of three of these left five vacancies that had to be filled. On the other hand, there were negative vacancies in the Ft. Lauderdale district. The Division director therefore instructed the Respondents' personnel officer, Lee Dorn, to reapportion the state to effectively cover all inspection areas. Specifically, he directed that five Inspector I positions be transferred to Jacksonville, 3 of them to come from the Ft. Lauderdale district. In a Memorandum to Dorn, dated July 15, 1976, the director identified the three positions in Ft. Lauderdale for transfer as those held by A. V. Maloni, Bernice N. Ino, and J. F. Friedman. The retention points of these employees had been calculated respectively at 210, 169, and 165. These three employees, and two others to be transferred to Jacksonville from District V, were those Inspectors who had the lowest number of retention points after those having less retention points had been laid off. It was stipulated by the parties that the number of retention joints calculated for Petitioner is correct based on the criteria set forth in the Department of Administration's Emergency Rule. (Testimony of Ninos, Dorn, Exhibit 2) It thereafter developed that of the three Ft. Lauderdale employees, Petitioner was the only one who would actually have had to take an involuntary transfer to Jacksonville. Mr. Friedman, who had less retention points, secured a new position with another agency. Maloni, who had more retention points than Petitioner, was reassigned to a position in the Ft. Lauderdale district that was vacated when the incumbent, in turn, was reassigned to another position made vacant by the illness and eventual separation of its incumbent, John W. Murray. The person replacing Murray, A. J. Pergament, had 792 retention points. (Testimony of Ninos, Dorn, Smith, Exhibits 4, 6-8, 14-21) Petitioner was orally informed in late June of her proposed transfer by her District Supervisor, Chauncey D. Smith. This was followed by a letter, dated July 27, 1976, from the Division director that formally advised her of the transfer of her position to the Jacksonville district, effective August 1, 1976. The letter gave as a basis for the transfer the fact that legislative abolishment of positions made it necessary for the Division to reapportion its staffing to effectively cover all inspection areas and that the proposed changes were being made to obtain "equity, effectiveness, and efficiency within our districts". The letter further advised Petitioner of her right to appeal the transfer to the Career Service Commission. Although this letter did not reach Petitioner through the mail due to an incorrect address, a copy was personally served on her on July 29. Petitioner acknowledges that the incorrect address was due to her negligence in advising Respondent correctly as to the same. In a memo to Petitioner, dated July 28, Smith had conveyed Division instructions for her to report to Jacksonville on August 2. Petitioner declined to accept the transfer. She filed her appeal by letter of July 31, 1976 and thereafter resigned, effective August 2, 1976. Her appeal letter stated that she had not been given sufficient notice to relocate and that the transfer would be a great financial hardship due to the fact that she had purchased a home in the area recently. (Testimony of Dorn, Smith, Ino, Exhibits 3, 13, 22-23) At a meeting with Smith and the Division's Chief of Enforcement, B. E. Fernandez, in early August, Petitioner was informed that she would be given the next opening in Ft. Lauderdale. In fact, Inspector Murray was not separated until November but his job had been filled on a temporary basis by Maloni. When Murray was finally separated, Maloni stayed in the position. Petitioner had been told by Smith that it would be a hardship for Maloni to suffer a transfer because of family considerations, but would not be so difficult for her because she could obtain unemployment compensation and she need not be concerned because her husband was working. When Murray finally departed, Petitioner called the Division director regarding the promise that she would have the next opening and he wrote her in December, 1976, that, although she was next in line for any vacancy, Maloni had received Murray's job because he had more retention points. Also, during this period, Fernandez and Smith offered Petitioner openings in Gainesville and Daytona Beach, but she declined to accept them because she wished to stay in Broward County. Smith also suggested that she get a job as a hostess or cocktail waitress because she was cute and petite. (Testimony of Ino, Smith, Fernandez, Exhibit 4) Petitioner testified that she was of the opinion her sex was a factor in the matter because nothing was done for her by Division personnel and because of the comments made by Smith concerning her eligibility for unemployment compensation and his comments concerning the possibility of her becoming a cocktail waitress. (Testimony of Ino) Petitioner was employed by Respondent from June 1, 1973 to August 2, 1977. She had performed her duties in an exemplary manner. (Testimony of McCulley)
Recommendation It is recommended that the Career Service Commission deny the appeal. DONE and ENTERED this 23rd of March, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Lawrence D. Winson Staff Attorney Department of Business Regulation The Capitol Tallahassee, Florida 32304 Roger D. Haagenson 800 E. Broward Building Suite 610 Ft. Lauderdale, Florida 33301
