The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2013.
Findings Of Fact The parties stipulated that the Petitioner submitted a request for extension of employment after reaching age 65 and that the Agency routinely processed said request, which was denied by the Agency. The Petitioner testified that he was over 65 years of age, eligible for retirement benefits, a career service system employee, was in good health, had a fine employment record, and desired to continue work until November 1976. Continuing work until November 1976, according to the Petitioner, would allow him to meet certain financial obligations which he had. He further testified that he had thought that the general policy of the Department of Transportation was to allow such extentions until the January following to an employee's 65th birthday and that he had planned on that additional employment. Without an extention, the Petitioner would retire effective May 28, 1976. The Agency did not controvert these facts, but pointed out that there was no policy regarding retention of personnel until the end of the year in which an employee reached age 65. The Hearing Officer notes that s. 112.051, Florida Statutes, creates the right in a state agency to retire personnel who are members of a merit system or similar tenure system on the basis of age and without specifying charges if the employee has reached age 65 and is eligible for retirement. The right to continue to employ such an employee is discretionary with the Agency. The facts establish that Petitioner is over 65 years of age and eligible for state retirement benefits. Therefore, Petitioner's retention was totally discretionary. There was no evidence that the Agency abused its statutory discretion in denying the Petitioner's request, or discriminated against the Petitioner in any fashion.
Recommendation Based on the foregoing findings of fact and conclusion of law, the Hearing Officer recommends that the Agency take no further action on the Petition, and not reconsider the Petitioner's request for retention. DONE and ORDERED this 26th day of May, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether certain payments received by the Petitioner, James Gomia, from the Leon County Clerk of Court subsequent to July 1, 1989, constitute creditable "compensation" within the meaning of Rule 22B-6.001(16), Florida Administrative Code, for purposes of determining Mr. Gomia's retirement benefits.
Findings Of Fact Mr. Gomia's Employment. The Petitioner, James Gomia, has been employed by the Clerk of Court in and for Leon County, Florida, for the past eleven years. At all times relevant to this proceeding, Mr. Gomia has been employed as an Assistant Finance Director and Deputy Clerk. By virtue of his employment with the Clerk's office Mr. Gomia is eligible to participate in the Florida Retirement System pursuant to Chapter 121, Florida Statutes. Mr. Gomia's Compensation. At all times relevant to this proceeding, Mr. Gomia received a monthly base salary from his employment with the Clerk's office. The Clerk's office operates for budget purposes on a fiscal year which begins October 1st and ends September 30th. In addition to his base salary, Mr. Gomia has been paid the following amounts (hereinafter referred to as "Additional Compensation"), during the following months: Month Amount September, 1989 $1,750.00 May, 1990 500.00 September, 1990 1,750.00 May, 1991 600.00 September, 1991 2,150.00 Mr. Gomia has been paid Additional Compensation twice a year since he was employed by the Clerk's office. The Clerk's Policy of Paying Additional Compensation. It has been the policy of Paul F. Hartsfield, Leon County Clerk of Court, to pay Additional Compensation to employees of the Clerk's office, with one exception not relevant to this proceeding, for at least the past twenty years. Additional Compensation has been paid to Clerk's office employees twice a year. One payment is made in May/June and the other payment is made in September/October/November. The amount of Additional Compensation paid to each employee is the same. For example, in May, 1991, all employees received $600.00 as Additional Compensation. The amount to be paid as Additional Compensation is included in the budget submitted by the Clerk's office each year for approval by the Board of County Commissioners. The amount requested is included as part of a lump-sum request for the amount of funds necessary to pay all salary, including employees' base salary. Although the amount of the payments to be made as Additional Compensation is broken out in the work papers to the budget each year, those figures are only seen by the financial personnel and not the Board of County Commissioners. Lack of Written Policy. The decision of whether Additional Compensation is paid is within the sound discretion of the Clerk to make. The Clerk of Court is under no legal obligation to make such payments even if included in an approved budget. The policy of paying Additional Compensation has not been reduced to writing. Nowhere has the Clerk stated in writing that the Clerk's office has a policy: That applies all employees will receive Additional Compensation equally; Additional Compensation will be paid no later than the eleventh year of employment; Additional Compensation will be paid for as long as an employee continues employment; and Additional Compensation will be paid at least annually. The only written indication that Additional Compensation will be paid to employees is the inclusion of the dollar amount necessary to make the payments in the work papers of the Clerk's office budget. Nowhere in the work papers to the budget or the budget itself are the conditions set out in finding of fact 13 included. Even if the work papers (or the budget) of the Clerk's office were sufficient to constitute a formal written policy, the policy evidenced in the work papers only applies to the fiscal year the work papers relate to. Therefore, if the work papers or budget constitute a written policy it is only a policy to pay Additional Compensation for the upcoming fiscal year and not on a recurring basis. Although a policy of paying Additional Compensation to Clerk's office employees exists, that policy has not formally been reduced to writing. Mr. Hartsfield, the Leon County Clerk of Court, admitted that there was no formal written policy during his deposition and in a letter dated November 12, 1991, attached as Respondent's exhibit 1 to Mr. Hartsfield's deposition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order declaring that the Additional Compensation paid to James Gomia between September, 1989, and September, 1991, was not paid as "average final compensation" for purposes of Rule 22B-6.001(6), Florida Administrative Code, and dismissing Mr. Gomia's Amended Petition with prejudice. DONE and ENTERED this 2nd day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 2nd day of September, 1992. APPENDIX Case Number 92-2504 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Gomia's Proposed Findings of Fact Findings of fact 1, 4 and 6-11. Hereby accepted. The Department's Proposed Findings of Fact Findings of fact 1-3. Findings of fact 4 and 6. Finding of fact 16. Conclusion of law. Findings of fact 4, 6 11 and 13. Finding of fact 4 and 6. Whether the payments come within the Department's rules is a conclusion of law. COPIES FURNISHED: Harry H. Mitchell, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Burton M. Michaels Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1566 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 Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Susan Kirkland General counsel Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
Findings Of Fact The Respondent, Robert Lowenthal as Trustee, trading as Cotton Apartments, is licensed by the Petitioner, the Division of Hotels and Restaurants, Department of Business Regulation, and is in business at 41 East Eighth Street in Hialeah, Florida. Robert Lowenthal is the owner and trustee of said business. A Notice to Show Cause was issued by Petitioner on September 1, 1978, notifying Respondent that certain evidence, which, if true, is good and sufficient cause pursuant to Section 509.261, Florida Statutes, to assess a civil penalty against the Respondent, or to suspend or revoke the license, for failure to return a security deposit of $215.00 to Juana Abijalil and failure to provide a written notice to tell said tenant how the security deposit was being held. The Notice to Show Cause indicated at that date five (5) percent interest, or a total of $44.70, was due. No answer was received by Petitioner, and an Administrative Hearing was requested. Juana Abijalil rented an apartment at Respondent Cotton Apartments on June 16, 1974, from the then manager of said apartments, Howard Jenkins. She rented apartment #17 and paid a rental of $165.00 for the month of June 16, 1974, to July 16, 1974. At the same time she paid $165.00 on her last month's rent. Ms. Abijalil lived in said apartment until May of 1978, when she moved. Prior to April 16, 1978, she told the then manager of said apartment and his wife, Mr. and Mrs. Blanco, that she intended to move and wanted to use the last month's rent she had previously paid on June 16, 1974, for payment for the month of April 16, 1978, to May 16, 1978. She was assured that there would be no problem with a refund, and she then paid the regular monthly rental on April 16, 1978. Prior to her move, and prior to May 16, 1978, Ms. Abijalil again orally requested to be reimbursed in the amount she had prepaid in 1974. She was not paid, but she moved from the apartment owned by Respondent Lowenthal on May 15, 1978. She has made numerous oral demands upon Respondent to be reimbursed, but she has not been reimbursed for the amount she prepaid. The testimony of the witness as to the foregoing facts was unchallenged. Submitted into evidence without objection was a receipt for rental payments dated June 16, 1974, on which it was stated "Received from Juana Abijalil $165.00 for rent on last month's rent." Said receipt was signed by Howard Jenkins, who is now dead. It is obvious that said receipt was altered, and "$50.00 security" was written in, hence the demand for $215.00. The Petitioner Division submitted a memorandum of law. This instrument was considered in the writing of this order. To the extent the proposed memorandum has not been adopted in, or is inconsistent with, factual findings in this order it has been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, Robert Lowenthal, be assessed a fine of $500.00. DONE and ORDERED this 19th day of December, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Bernard F. Siegel, Esquire 370 Minorca Avenue Coral Gables, Florida 33134
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner, Anthony McFarlane, was overpaid in the amount of $978.69 as a result of utilizing more administrative leave than that to which he was entitled.
Findings Of Fact Petitioner was an employee of the Agency's Central Office during the pay periods of February 14, 2014, to February 27, 2014; February 28, 2014, to March 13, 2014; and March 14, 2014, to March 27, 2014. Although the exact dates of Petitioner's employment by the Agency are unknown, he was also employed by the Agency and its predecessor entities prior to, and subsequent to, those dates for a total of approximately eighteen years. Petitioner retired from the Agency on April 4, 2014. Petitioner, prior to his retirement, attempted to use the surplusage of leave time he had accumulated for which he would not be compensated upon retiring. The Agency uses the People First system for the submittal of employee time sheets and tracking of individual employees' accrued paid leave time. The system maintains the amount of Annual Leave, Sick Leave, and Special Compensation Leave available to each individual employee. Further, although Sick Leave can be used at any time, Annual Leave cannot be used until Special Compensation Leave is depleted. Administrative Leave--Other is not maintained on an individual level and employees are not automatically prohibited from using more Administrative Leave--Other than that to which they are entitled nor are they required to deplete their Special Compensation Leave prior to using Administrative Leave. Administrative Leave--Other is made available to employees only in special circumstances such as an office closure due to a hurricane, plumbing leak, or air conditioner failure, or an unscheduled paid holiday authorized by the Governor. During the pay period of February 14, 2014, to February 27, 2014, Petitioner used sixteen hours of Special Compensation Leave (Code 0055) and sixteen hours of Sick Leave (Code 0052). During the pay period of February 28, 2014, to March 13, 2014, Petitioner used seventy-two hours of Administrative Leave-- Other (Code 0056). No special circumstances entitling Petitioner to take Administrative Leave--Other hours occurred during this pay period. During the pay period of March 14, 2014, to March 27, 2014, Petitioner used five hours of Special Compensation Leave (Code 0055) and seventy-five hours of Annual Leave (Code 0051). In February of 2015, the Office of the Inspector General published an audit of the Agency's human resources practices at its Central Office. The audit showed that seventy-two hours of Annual Leave were miscoded as Administrative Leave--Other, resulting in a $1,059.84 leave balance overpayment. The Agency then determined that Petitioner was the individual whose Annual Leave time had been miscoded as Administrative Leave--Other and had therefore been overpaid $1,059.84. After adjusting the amount for taxes and benefits withheld, the Agency concluded that the amount overpaid directly to Petitioner was $978.69. During the hearing, Petitioner for the first time realized and admitted that in his attempt to deplete his Special Compensation Leave before using his Annual Leave, he made an error in using Code 0056 (Administrative Leave--Other) when he intended to use Code 0055 (Special Compensation Leave).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner repay $100.00 per month to the Agency until the $978.69 balance is repaid in full. DONE AND ENTERED this 5th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2015. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony McFarlane 7971 Northwest 11th Street Plantation, Florida 33322-5158 David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue At issue in this proceeding is whether Petitioner overpaid Respondent in the amount of $14,190.41 for the pay periods between July 10, 2009, and October 15, 2009, and, if so, whether Respondent should be required to reimburse Petitioner for those overpayments.
Findings Of Fact On October 16, 2008, Respondent signed an employment contract with FAMU to act as the coordinator of statistical research for the "Teachers for a New Era" ("TNE") initiative, a project funded at FAMU and other universities by a grant from the Carnegie Corporation of New York. Dr. Gwendolyn Trotter is the director of the Carnegie-funded portion of the TNE initiative at FAMU. The contract signed by Respondent was an "Administrative and Professional (A&P) Employment Contract." The contract stated as follows, in relevant part: This employment contract between Florida A&M University (FAMU) Board of Trustees and the below-named employee is subject to the Constitution and Laws of the State of Florida as constitutionally permissible, and the regulations, policies, and procedures of the Board of Governors and Florida A&M University Board of Trustees (BOT), as now existing or hereafter promulgated... An employee's contract may be non-renewed and/or the employee may be separated from employment as set forth in University Regulation 10.106, regardless of the above appointment dates. Employment will cease on the date indicated, and no further notice of cessation of employment is required for the following categories of employees: (1) employees holding visiting appointments; (2) those appointed for less than one academic year; or (3) those who are paid from contracts, grants, auxiliaries, or local funds. The appointment dates set forth in Respondent's employment contract were October 10, 2008, through June 30, 2009. The contract stated that Respondent would be paid at an "annual salary rate" of $55,000. The contract further stated that the amount to be paid to Respondent during his appointment period would be $39,615.00, and that Respondent's bi-weekly salary would be $2,107.27. Respondent was an employee "paid from . . . grants" for purposes of the cessation of employment paragraph of the employment contract, as set forth in the third inset paragraph of Finding of Fact 2, supra. Under the heading "Appointment Status," the employment contract stated, "Regular." FAMU Regulation 10.106 provides, in relevant part: The President or President's designee may choose not to renew the employment of Administrative and Professional (A&P) employees, including the Executive Service. The notice of non-reappointment or intention not to reappoint an A&P employee shall be in writing. On or before March 1st of each contract year, the President or President's designee shall notify any employee who will be non-reappointed. * * * A&P employees who are appointed to established positions with an appointment status modifier or type, other than Regular (for example, Acting, Temporary or Visiting) are not entitled to a notice of non- reappointment. A&P employees who are issued an employment contract with a clause providing that employment will cease on the date indicated and further notice is not required, are not entitled to the notice of non-reappointment referenced in this regulation.1/ FAMU Regulation 3.019, relating to delinquent accounts, provides in relevant part that FAMU "shall use due diligence and make every effort in the collection of all accounts owed to the University by employees, students, vendors and other parties." FAMU Board of Trustees Policy 2005-19 provides that FAMU will seek reimbursement for salary overpayments. Respondent testified that when he was hired for the coordinator of statistical research position, Dr. Trotter told him that the TNE project would last for two years, but that his initial employment period would be for one year with a second year contingent upon his initial performance. This testimony was plausible, credible, and not contradicted by any testimony or documentary evidence presented by FAMU. The written A&P employment contract signed by Respondent was not for one year, but for the period from October 10, 2008 through June 30, 2009. Respondent testified that the provost's administrative assistant explained that no contract could extend beyond the end of the current fiscal year on June 30, 2009, and that he would be issued a second contract to cover the period from July 1, 2009, through October 9, 2009. Respondent was never given a second written contract extending beyond June 30, 2009, nor was he ever given written confirmation of the terms that he said were communicated orally to him by Dr. Trotter. FAMU's associate director of payroll, Jacqueline Lester, testified at the hearing and essentially confirmed Respondent's testimony that the university does not issue contracts that extend beyond the current fiscal year. Ms. Lester stated that if an A&P employee such as Respondent is to work beyond the end of the current fiscal year, he will be issued a new contract that covers the carryover portion of his engagement. Ms. Lester further testified that if a new contract is not issued, then the employee is expected to stop work at the end of the current fiscal year. Respondent testified that he and Dr. Trotter found themselves at odds over research protocols, and that this disagreement completely fouled their professional relationship. Respondent stated that Dr. Trotter thereafter set out to humiliate and intimidate him, and to isolate him professionally from the other members of the TNE initiative. As the end of the fiscal year approached in June 2009, Respondent noticed that his fellow employees were receiving new contracts for the upcoming fiscal year. On June 29, 2009, Respondent sent an e-mail to Dr. Trotter inquiring as to the status of his contract. Dr. Trotter responded on the same date with an e-mail informing Respondent that TNE would "take on an extremely targeted direction for the coming year." The e-mail went on to state the following: I am in the process of working through contracts starting July 1, 2009. Your contract does end on June 30, 2009. Your 2008-2009 contracted pay was based on a 12-month pay scale. However, your contract started in September 2008, and ends June 30, 2009. I am working with Mr. Herbert Bailey in Academic Affairs to conclude contracts ending on June 30, 2009. Dr. Trotter's e-mail twice stated that Respondent's contract would end on June 30, 2009, but also stated that she was "working through" contracts that would start on July 1, 2009, leaving open, in Respondent's mind, the possibility that his was one of the new contracts still being processed. Dr. Trotter did not unequivocally state that Respondent's services would no longer be required on the TNE initiative after June 30, 2009. On the morning of July 6, 2009, Respondent sent the following e-mail to Dr. Trotter: I am following up on the email I sent you regarding my contract. I received a reply from you stating that you were working on contracts ending June 30, 2009. I continue to come to work under the 12-month contractual agreement since October 10, 2008. I am therefore requesting definitive information about the status of my contract. Telephone discussions and further e-mail exchanges occurred between Respondent and Dr. Trotter over the course of the next two days. Respondent continued to insist that he had a 12-month contractual agreement, and attributed the misunderstanding to the fact that FAMU never issued an official letter of employment that explained the terms under which he had been hired. Finally, on the afternoon of July 8, 2009, Dr. Trotter sent the following e-mail to Respondent: As noted in an earlier e-mail your contract did end on June 30, 2009. You will be compensated for the days worked beyond June 30, 2009. You should not continue to work beyond tomorrow. Thanks for working with Teachers for a New Era. July 9, 2009, was the last day that Respondent worked pursuant to his A&P employment contract. Respondent was paid by FAMU pursuant to his A&P employment contract for all days worked through July 9, 2009. Due to an error on the part of FAMU, Respondent continued to receive regular bi-weekly gross pay of $2,107.28 from FAMU through the pay period ending October 18, 2009. At the hearing, Respondent conceded that he received these payments despite the fact that he had stopped working for FAMU as the TNE coordinator for statistical research on July 9, 2009. Respondent testified that he believed the university was paying him for the remainder of his one-year contract. On June 30, 2009, Respondent accepted an Other Personal Services ("OPS") appointment to work as an adjunct instructor in the FAMU Department of Economics. The OPS appointment was to teach one economics class per week. Respondent was to be paid $25.00 per hour, five hours per week, for a biweekly gross pay of $250.00. The appointment was for the sixteen-week fall semester, from August 24, 2009, through December 11, 2009, with Respondent receiving total gross pay of $2,000.00 for the period. However, Respondent worked in the OPS position for only one week before starting a full-time faculty position at Savannah State University in Georgia on September 11, 2009. Respondent was correctly paid by FAMU for the one week he worked in the OPS position. Due to an error on the part of FAMU, Respondent continued to receive regular bi-weekly gross pay of $250.00 through the pay period ending October 18, 2009. In total, Respondent received $14,190.41 in unearned compensation from FAMU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered requiring Respondent to repay $14,190.41 to FAMU. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
Findings Of Fact For calendar year 1989 and until November 11, 1990, petitioner worked for respondent. As of January 5, 1989, having exhausted accumulated leave balances, petitioner was not entitled either to sick leave or to annual leave. After January 5, 1989, and until her employment with respondent ended on November 11, 1990, petitioner earned 192 hours of sick leave and 192 hours of annual leave. During the pay period ended January 19, 1989, she took 1.75 hours of leave. During the pay period ended February 2, 1989, she took 3.5 hours of leave. During the pay period ended February 16, 1989, she took 1.5 hours of leave. During the pay period ended March 2, 1989, she took 18.25 hours of leave. During the pay period ended March 16, 1989, she took 16 hours of leave. During the pay period ended March 30, 1989, she took 1.5 hours of leave. During the pay period ended April 13, 1989, she took 36 hours of leave. During the pay period ended April 27, 1989, she took 22 hours of leave. During the pay period ended May 11, 1989, she took 20.75 hours of leave. During the pay period ended May 25, 1989, she took 6 hours of leave. During the pay period ended June 8, 1989, she took 8.75 hours of leave. During the pay period ended June 22, 1989, she took 17.25 hours of leave. During the pay period ended July 6, 1989, she took 16 hours of leave. During the pay period ended July 20, 1989, she took 1 hour of leave. During the pay period ended August 3, 1989, she took 9 hours of leave. During the pay period ended August 17, 1989, she took 10 hours of leave. During the pay period ended August 31, 1989, she took 4 hours of leave. During the pay period ended September 14, 1989, she took 12 hours of leave. During the pay period ended September 28, 1989, she took 8.5 hours of leave. During the pay period ended October 12, 1989, she took 10.5 hours of leave. During the pay period ended October 26, 1989, she took 8.5 hours of leave. During the pay period ended November 9, 1989, she took 26.25 hours of leave. During the pay period ended November 23, 1989, she took one hour of leave. During the pay period ended December 7, 1989, there was no leave taken. During the pay period ended December 21, 1989, she took .5 hours of leave. During the pay period ended January 4, 1990, she took 18 hours of leave. During the pay period ended January 18, 1990, she took 10.5 hours of leave. During the pay period ended February 1, 1990, she took 1.5 hours of leave. During the pay period ended February 15, 1990, she took 1.5 hours of leave. During the pay period ended March 1, 1990, she took 3 hours of leave. During the pay period ended March 15, 1990, she took 27 hours of leave. During the pay period ended March 29, 1990, she took 11.5 hours of leave. During the pay period ended April 12, 1990, she took 36 hours of leave. During the pay period ended April 26, 1990, she took 24 hours of leave. During the pay period ended May 10, 1990, she took 34.25 hours of leave. During the pay period ended May 24, 1990, she took .5 hours of leave. During the pay period ended June 7, 1990, she took 2 hours of leave. During the pay period ended June 21, 1990, she took 27.5 hours of leave. During the pay period ended July 5, 1990, there was no leave taken. During the pay period ended July 19, 1990, she took 8 hours of leave. During the pay period ended August 2, 1990, she took 26 hours of leave. During the pay period ended August 16, 1990, she took 31 hours of leave. During the pay period ended August 30, 1990, she took 8 hours of leave. During the pay period ended September 13, 1990, she took 16 hours of leave. During the pay period ended September 27, 1990, she took 24.5 hours of leave. During the pay period ended October 11, 1990, she took 13.25 hours of leave. Because petitioner's time sheets were not always processed in a timely manner, leave balances stated on contemporaneous print outs were not always accurate. (In 1989, respondent had no official mechanism for notifying employees that time sheets were missing.) After petitioner's situation came to the attention of payroll specialists at HRS, a manual audit was performed. For the period ending March 30, 1989, petitioner had an annual leave balance of 6.5 hours. During the next pay period, she used the entire balance, but at the end of the pay period, at the close of business on April 13, 1989, four more hours of annual leave were credited, all of which she used before the succeeding period ended. During the period ended May 25, 1989, she was also out on leave two hours for which she was not entitled to pay. In all, the audit established that respondent had taken some 563 hours of leave after January 5, 1989. This exceeded paid leave she was entitled to by 179 hours. Nothing in the evidence suggests she was docked for more than 135.25 hours' pay.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's request for refund. DONE and ENTERED this 19th day of April, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 19th day of April, 1991. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert L. Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Ruby Bush 3111-21 Mahan Drive, #113 Tallahassee, FL 32308
The Issue Whether Respondent resigned from her position in Career Service by abandonment while employed by the Department of Health and Rehabilitative Services.
Findings Of Fact Prior to August 7, 1989, Gladys Dozier was employed by HRS as a clerk typist. On this date she was absent without authorized leave. On August 7, Respondent called her supervisor to tell her that she wasn't feeling well and would be late coming in. She came in at 9:57 a.m., and at 11:15 a.m. told her supervisor she wasn't feeling well and needed to go home. She left work around 11:20 a.m. On August 8, Respondent again called her supervisor to advise her that she wasn't feeling well but would come in later that morning. Respondent did not come to work that day and was not authorized leave. On August 9, Respondent again called in to say she wasn't feeling well and would not be in for the remainder of the week, but would report to work on August 14, 1989. She was then advised that she needed to bring in a medical statement from her doctor that she was unable to come to work those days she had missed. On August 11, 1989, Respondent again called the office and was reminded that she needed a medical statement for the time she had been absent. By certified letter dated August 15, 1989, and received by Respondent on August 16, 1989, Respondent's immediate supervisor, Mary Simmons, advised Respondent that she was expected at work not later than August 17, 1989, that the medical statement she had sent to the office August 14, 1989 was insufficient to justify more than one day's absence and that if she did not return to work by August 17, 1989, action would be taken to terminate her employment with HRS. Respondent did not return to work. By certified mail dated September 6, 1989 Respondent was advised that she had been absent from work without approved leave since August 14, 1989 and that pursuant to Rule 22A-7.010(2)(c), Florida Administrative Code, she is deemed to have abandoned her position with HRS and to have resigned from the career service system as of the close of business September 7, 1989. Thereafter Respondent submitted her undated letter which was received at the Division of Administrative Hearings on October 26, 1989, and these proceedings followed.
Recommendation It is recommended that the appeal of Gladys Dozier from the determination by HRS that she abandoned her position with the department be dismissed and her resignation from the Career Service be affirmed. ENTERED this 17th day of January, 1990, in Tallahassee, Florida. K. N. AYERS 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 17th day of January, 1990. COPIES FURNISHED: Thomas C. Caufman, Esquire Aletta Shutes Department of Health and Secretary Rehabilitative Services Department of Administration 701 94th Avenue North 435 Carlton Building St. Petersburg, FL 33702 Tallahassee, FL 32399-1550 Gladys Dozier Augustus D. Aikens, Jr. 2032 Quincy Street General Counsel St. Petersburg, FL 33711 Department of Administration 435 Carlton Building William A. Frieder, Esquire Tallahassee, FL 32399-1550 Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
