The Issue The issue to be resolved is whether Petitioner received more than one increase in pay in any twelve-month period for the category of added duties and responsibilities, Rule 60K-2.006, Florida Administrative Code.
Findings Of Fact Stephen C. Metzler is an Environmental Specialist II in a leadworker position with the Department. Stephen C. Metzler received an Increase to Base Rate of Pay for added duties in the amount of $69.39, on April 7, 1998. Thereafter, Robert Merritt was promoted and there was no one to supervise the employees that he had previously supervised. He asked Petitioner to continue to perform the duties he had been performing, and assume the supervisory duties that Merritt had previously performed. Merritt advised Petitioner that he would be given additional compensation for performing these duties. Petitioner assumed and performed these added supervisory duties, and Merritt administratively initiated the pay increase. Subsequently, the paperwork was prepared by one of Respondent's clerical personnel, reviewed by the personnel officer, and signed by Petitioner's superiors. Petitioner did not see this paperwork at any time prior to its submission and had no part in its preparation. Both of Petitioner's supervisors who had signed and approved the pay-raise testified. They were aware that Petitioner was performing supervisory, leadworker duties and it was their intent to increase his compensation for performing those duties. Metzler received an increase to his base rate of pay for added duties in the amount of $75.86, on October 2, 1998. The Escambia County Health Department was not aware of the rule of prohibiting more than one pay increase in twelve consecutive months for the same category. The Department of Management Services audited the payroll of the Department of Health and found several deficiencies including overpayment to Metzler. The Personnel Action Request Form dated April 7, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. Under the section of the form relating to "Salary," there is no selection under "Salary Additive." The Personnel Action Request Form dated October 2, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. However, under the section of the form relating to "Salary," salary additive, the block "leadworker" was checked. It was testimony of the personnel officer that, had they known of the Rule restricting two pay increases within twelve consecutive months, they would have checked the block under increase in base rate of pay, Internal Pay Relationships. That, together with the selection of "Leadworker" under "Salary Additive," would have been administratively correct. Both payroll request forms authorize the increase of pay by placing an "X" in the box "added duties." Personnel Action Request one authorized a raise on April 7, 1999, and Personnel Action Request two authorized a raise on October 2, 1999, which is within twelve months of the first raise. McCulough calculated the $1,010.80 overpayment by determining the increases paid prior to the expiration of the twelve-month period of the preceding raise for the same category, added duties and responsibilities. McCullough calculated the amount of overpayment and drafted a letter for the Director of the Health Department's signature. McCullough drafted the letter seeking reimbursement of the $1,010.80, because of the audit exception and the demand of the Department of Management Services to correct the administrative error that had been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent correct its paperwork and not attempt to collect the monies involved. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2000. COPIES FURNISHED: Stephen C. Metzler 4048 Charles Circle Pace, Florida 32571 Rodney M. Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
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 Petitioner, Shirley Gibson, is a permanent status employee of the Department of Health and Rehabilitative Services (HRS) in Clearwater, Florida. She has been employed by HRS for over five years. On June 19, 1982, Petitioner took a voluntary demotion from the position of clerk typist III (pay grade 07) to secretary II (pay grade 06). The demotion appointment was properly made with permanent status, and she retained her full salary of $403.82 biweekly. On August 27, 1982, Gibson was promoted to the position of personnel aide (bay grade 10). In conjunction with her promotion she received a ten percent promotional increase which raised her salary to $442.52 biweekly. The minimum pay grade for the personnel aide class at that time was $396.80. Therefore, at the time of promotion, Gibson's salary exceeded the minimum salary for the class to which she was promoted. On September 1, 1982, Petitioner received the seven percent pay increase granted all state employees. This pay adjustment raised her compensation to $473.50 biweekly. In February, 1983 Respondent, Department of Administration (DOA), completed a comprehensive personnel program review whose purpose was to ensure that the overall administration of HRS's personnel program in Clearwater was in compliance with the Respondent's personnel rules. During the course of that review Gibson's personnel file was randomly selected for inspection, and the promotional increase given on August 27, 1982, was found to be in violation of Rule 22A-2.07(1)(c), Florida Administrative Code. The Department concluded that based upon the provisions of the rule, Petitioner's salary should have remained at $403.82 since she was ineligible for a promotional increase on August 27. Thereafter, it directed that her biweekly salary be reduced to $432.09 1/ effective April 8, 1983, and that she refund the difference ($561.91) between that amount and the $473.40 biweekly pay she received for the period August 27, 1982, through April 7, 1983. This refund is to be accomplished by payroll deductions from Gibson's salary over eight pay periods. On May 11, 1983, Petitioner filed a petition to have Rule 22A- 2.07(1)(c) declared invalid, and the entry of an order requiring the comptroller to refund all funds paid on the alleged overpayment of $561.91. Rule 22A-2.07, Florida Administrative Code, generally relates to the pay plan for career service employees. Subpara-graph (1)(c) thereof provides generally that once an employee is demoted without a reduction in salary, and is subsequently promoted within six months, he or she is not eligible for a promotional increase unless the salary is below the minimum for the class to which the employee is promoted. The purpose of this provision is to ensure that demotions and promotions are not artificially created to give salary increases not authorized in other parts of the personnel rules. Petitioner contends the rule is unfair and discriminatory because it does not distinguish between multi-step and single step promotions in its application. She also contended that HRS had given promotional increases to several other individuals in the past under similar circumstances. This was confirmed by a representative of HRS who noted that such increases had indeed been given until DOA had advised it was incorrect.
The Issue The issue presented is whether Petitioner is entitled to retirement service credit for certain additional periods of time.
Findings Of Fact Petitioner was employed by the Miami-Dade County Public Health Trust--Jackson Memorial Hospital (Dade County) in September 1970 as a full-time employee. As such, he was eligible to earn service credit for retirement. Dade County is an employer in the Florida Retirement System (FRS). Petitioner is a member of the FRS. There are approximately 870 employers within the FRS, and approximately 600,000 employees are members of the FRS. In the late 1990s the FRS began sending to each member an annual statement regarding that member's retirement account. The statement also advised that a member of the FRS could request an audit of that member's account at any time. The FRS sent these statements to the employing agency for distribution to that agency's employees who were members of the FRS. The procedure changed in 2000 after the FRS obtained member-employees' addresses. Statements were subsequently sent by the FRS directly to each member-employee. Prior to July 1, 1979, the employing agency determined which of its employees were eligible for membership in the FRS. On that date a new rule promulgated by Respondent became effective. Thereafter, the FRS determined which employees were eligible. At the time of the final hearing in this cause, Petitioner had 34.83 years of service for which he had obtained retirement service credit. He was not given retirement service credit, however, for the time periods of January 11, 1976, through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. In this proceeding, Petitioner seeks retirement service credit for these additional three time periods. What benefits an employee receives is within the discretion of the employing agency. Similarly, how an employee is categorized, and what budgetary item or code an employee is paid from, is within the discretion of the employing agency. During the time periods in question Dade County used four different budget codes or statuses for paying its employees. Budget codes 1 and 2 signified regular full-time employees. However, budget codes 3 and 4 signified employees in temporary, part-time, or summer positions, the equivalent of the State of Florida's other personnel services category. Those employees within budget codes 1 and 2 received retirement service credit, but those within budget codes 3 and 4 did not and were not eligible. Petitioner's personnel file contains a copy of Dade County's Advice of Personnel Action form dated January 11, 1976, changing his status from full-time to part-time and placing him in budget status 3. Another Advice of Personnel Action form dated May 2, 1976, changed his status from part-time back to full-time and placed him in budget status 1. A third Advice of Personnel Action form dated August 22, 1976, changed Petitioner's status from full-time back to part-time and placed him in budget status 3. A Payroll--Employee Master Record shows that on May 29, 1977, Petitioner was promoted from a respiratory therapy tech 2 to a respiratory therapist, but his status remained part-time. A second Payroll--Employee Master Record shows that Petitioner was changed from part-time back to full- time on August 7, 1977. Petitioner admitted during the final hearing in this cause that there were times when he was given reduced hours of work at his request. His personnel file indicates the impact of his requests. Although he had been hired as a regular, full- time employee, during the time periods in question, he was only a part-time employee. Contrary to his testimony, Petitioner's personnel file reflects that he was aware at the time that his periods of part- time employment did not provide him with retirement service credit. His file contains a copy of a form enrolling him in the FRS signed by him on August 17, 1977. The form provides that Petitioner was employed by Jackson Memorial Hospital from September 14, 1970, through January 11, 1976, and again from May 16, 1976, through August 22, 1976. The file also contains a second FRS form which he signed on September 17, 1976, indicating that the reason he was submitting it was that he was going to full-time employment from part-time. Accordingly, Petitioner knew that he was not accruing continuous retirement service credit and understood that he needed to enroll in the FRS whenever he changed from part-time employment back to full- time. A one-page payroll register submitted by Petitioner as one of his exhibits in this proceeding covers one of the time periods in question. Although it shows that Petitioner paid for insurance and union dues, it does not reflect any information regarding retirement and, therefore, cannot support the implication that Petitioner suggests, i.e., that he is entitled to retirement service credit. Petitioner was careful to re-enroll in the FRS whenever he changed to full-time employment with Dade County. Similarly, Dade County changed the budget code each time Petitioner changed his employment status, which indicates an appropriate budget code was specifically selected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for retirement service credit for the time periods of January 11, 1976 through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. DONE AND ENTERED this 27th of October, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 27th of October, 2006. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Luis J. Morrina 6211 Southwest 161 Avenue Southwest Ranches, Florida 33331 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Steven S. Ferst, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times material to these proceedings, Petitioner Rodriguez has been employed by the Hillsborough County Board of County Commissioners as the Director of the Department of Emergency Support Services. This position is exempt from the Hillsborough County Civil Service Act because it is a managerial/executive position under the jurisdiction of the County Administrator. Petitioner's employment with the County allows him to participate in the Florida Retirement System administered by the Division. On January 1, 1988, the County implemented a classification and compensation system for all positions under the jurisdiction of the County Administrator that are exempt from the Civil Service Act. This system is known as the Hillsborough County Exempt Service Classification and Compensation Plan (the Plan). As an incumbent employee, Petitioner's salary was not reviewed or subjected to the compensation structure set forth in the Plan until October 1, 1988. Effective October 1, 1988, Petitioner's compensation with the County was structured according to the Plan, as revised May 1988. During his performance rating prepared December 12, 1988, Petitioner's job performance from October 1, 1987 through September 30, 1988 was found to exceed standards. Under the Plan, this meant that his current annual salary could be increased. The salary action permitted by the Plan was a combination of salary adjustment "merit increase" and a one-year "performance pay" increase. The salary adjustment under the "merit increase" category became part of Petitioner's adjusted base salary. The "performance pay" was an increase created for a one- year term. It was not part of Petitioner's base salary. This method of creating a pay increase applied to Petitioner because his pay was already above the midpoint of the pay grade the Plan dictated the County was willing to pay for the performance of his particular job when completed to the required standard. The division of salary increases above the midpoint into two separate categories was placed into the Plan in order to balance two distinct County interests. The first was to keep the maximum salary range in a pay grade aligned with the competitive salary indicators in the geographical area for the same type of work. The second was to annually reward each employee whose performance exceeded standards over the past year and to motivate continued high performance on a personalized basis. The compensation approved for Petitioner for October 1, 1988 through September 30, 1989, was a "merit increase" of three percent of his current annual salary along with a one-year "performance payment" of eight percent of his current annual salary. This created an annual salary of $58,177,00 base pay with a one-year performance increase of $4,514.00. Petitioner's total compensation for the time period was $62,691.00. The pay increase approved for Petitioner for October 1, 1989 through September 30, 1990, was a five percent "merit increase" and a four percent "performance payment" of his current salary. This gave Petitioner a new base pay of $61,090.00 with a one-year performance increase of $2,330.00. Petitioner's total compensation for the time period was $63,419.00. From October 1, 1990 through September 30, 1991, Petitioner had the same base pay and one year performance increase as the year before. So did every other employee subject to the Plan. This salary designation violated the Plan because a "merit increase" was required before a one year "performance pay" increase could occur. However, "performance pay" was still classified in the usual manner and was not pledged by the County as a payment that would be reoccurring. From October 1, 1991 to September 30, 1992, Petitioner's base salary is $66,020.42. The County no longer pays the "performance pay" previously in effect under the Plan. Instead, the part of Petitioner's salary designated as "performance pay" the year before was added into his base salary. As a result, retirement benefits are earned on Petitioner's entire salary in this pay period.
Recommendation Based upon the foregoing, it is RECOMMENDED: Petitioner's "performance pay" received from October 1, 1988 through September 30, 1991, should be excluded from the calculation of his "average final compensation" by the Division. DONE and ENTERED this 9th day of July, 1992, in Tallahassee, Florida. VERONICA E. DONNELLY 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 9th day of July, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. Accepted. See HO #5. Rejected. Contrary to fact. Accepted. See HO #10. Accepted. Rejected. Contrary to fact. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Reestablished each year. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #5, #6 and #10. Accepted. Accepted. Accepted. Accepted. See HO #10. Accepted. See HO #7. Accepted. Evidence is rejected because calculations are incorrect. Accepted. Accepted. COPIES FURNISHED: GILBERT M RODRIGUEZ 18506 TURTLE DR LUTZ FL 33549 STANLEY M DANEK ESQ DIVISION OF RETIREMENT CEDARS EXECUTIVE CENTER/BLDG C 2639 N MONROE ST TALLAHASSEE FL 32399 1560 A J McMULLIAN III DIRECTOR DIVISION OF RETIREMENT CEDARS EXECUTIVE CENTER/BLDG C 2639 N MONROE ST TALLAHASSEE FL 32399 1560 AUGUSTUS AIKENS ESQ JOHN PIENO GENERAL COUNSEL SECRETARY OF ADMINISTRATION DEPT OF ADMINISTRATION 435 CARLTON BLDG 435 CARLTON BLDG TALLAHASSEE FL 32399 1560 TALLAHASSEE FL 32399 1560
The Issue The issues in this case are whether or not Respondent: During the course of its negotiations for collective bargaining agreements for the above charging parties which are certified employee organizations representing various units of Respondent's employees, interfered with restrained or otherwise coerced employees in violation of Chapter 447.501(1)(a), Florida Statutes, (herein sometimes called the Act). Refused to bargain in good faith with the charging parties as certified bargaining agents of its employees, in violation of Chapter 447.501(1)(c) of the Act. Refused to discuss grievances in good faith pursuant to the terms of collective bargaining agreements in violation of Chapter 447.501(1)(f) of the Act. At the close of the testimony all parties waived oral argument, but briefs were filed by the General Counsel of the Public Employees Relations Commission (herein sometimes referred to as the Commission), Counsels for the International Association of Firefighters, Local number 747 (herein IAFF) and the Respondent which have been carefully considered by me in preparation of this recommended order which will be distributed to the parties in the usual course. Upon the entire record in this case, observation of witnesses on the stand, and consideration of arguments of counsel, I make the following:
Findings Of Fact The complaints allege, the parties admit and I find that the Respondent is a public employer within the meaning of Chapter 447. The complaints allege further, the parties admit and I find that the Charging Parties are certified employee organizations which represent various employees of the Respondent in units which will be set forth in detail hereinafter. During 1976, all three employee organizations were parties to collective bargaining agreements with the employer which expired on September 30, 1976. Respondent began negotiation with the Pinellas County Police Benevolent Association, PBA, herein, on March 10, 1976, with the IAFF on April 29, 1976 and with the International Brotherhood of Firemen & Oilers, Local 1220 (IBF&O herein) on August 9, 1976. After numerous negotiation sessions, the statutory impasse procedures were invoked and hearings were held before a special master on September 27 and 28, 1976. However, subsequent to the invocation of the impasse procedures and prior to the special master hearings, the parties proceeded through mediation and continued bargaining sessions until or about September 16, 1976. On August 4, 1976, the City Council met in a "workshop session" and abolished the step-merit increase pay plan which had been in effect for several years. The step-merit increase pay plan had been a principle item of contention between the parties in bargaining and was one of the three issues submitted to the special master during hearings on September 27 and 28. Other issues of whether or not changes should be made in the pay plan provisions for firefighters and lieutenants and whether changes should be made in the acting officer pay policy provisions were also submitted to the special master. The following day, on August 5, the City's chief negotiator, Robert DuVernoy, was instructed by the City Manager that the City Council had directed the step-merit increase pay plan be abolished. On September 29, 1976, the Respondent, through its chief negotiator Robert E. DuVernoy, notified the presidents of all three Charging Parties that wages would be frozen at September 30th levels allegedly due to expiration of the various contracts. Additionally, on October 6, 1976, Respondent informed the IAFF that effective October 4, 1976, the following terms and conditions of employment would be unilaterally altered: increase in "checkoff" fee from $.04 per individual to $500.00 for processing all payroll deductions for fiscal year 1976-77; the employee organization grievance procedure, the sick leave provision for family illness, the "step- merit increase pay plan" and the withholding of increments arising under said plan, the acting officers program, insurance coverage for non-high risk on-duty injury and the physical exam program were all deleted. Respondent announced its plan to reduce from $5,000.00 to $2,000.00 its life and accidental death and dismemberment insurance. All of these changes were in fact implemented as reported by Respondent. Subsequent to September 29, 1976, the Respondent refused to process grievances concerning nonpayment of step increments filed by employees represented by IBF&O stating that the subject matter of such grievances was nongrievable and inappropriate. Pursuant to the step-merit increase pay plan contained in each of the parties' collective bargaining agreements, employees were eligible for an evaluation on their anniversary date and assuming that their evaluation was satisfactory, they were entitled to a step increase pursuant to a contractual salary schedule. Testimony reveals that these increases were granted almost automatically and that the plan had been operative since 1972. THE POSITION OF THE RESPONDENT The Respondent, in its answer and during the course of the hearing, denied the commission of any unfair labor practices. Respondent urges that pursuant to its inherent managerial rights in the procedure delineated in the impasse resolution provisions of the statute, the legislative body through its political process determined the level of services to be offered to the City August 5, 1976, and the substantive conditions of employment for bargaining units when they took final contract action in "the public interest". Respondent alleges further that the executive branch geared to the legislative process, conducted meaningful negotiations at the table which continued through the special master's proceedings with the PBA and IAFF and that only when the opportunity to reach agreement at the table was exhausted, an agreement had to be reached and with the budget having been determined, the City had no alternative but to eliminate the merit step plan, the grievance procedure and checkoff fee once the contract expired. With respect to the other changes, Respondent insists that such changes amounted only to implementation of its last best offer at the bargaining table and was therefore legitimate and proper. As regards the IAFF, Respondent urges that it has no standing to now complain since it waived any rights it had under the expired 75-76 collective bargaining agreement. Respecting the allegations of the IBF&O, the Respondent alleges that that organization recognized the circumstantial dilemma that the City faced and hammered out a collective bargaining agreement through the negotiating sessions. All parties agreed that after invocation of the statutory impasse procedures, the parties continued to negotiate and in fact movement was made with respect to those issues pending. The parties recognized and agreed that based on the newness of the Florida Statute which regulates collective bargaining in the public sector i.e., Chapter 447, that lessons gained from other state boards and the federal sector are instructive and are useful in resolving similar issues arising in this state. Turning to such cases, the NLRB has long recognized that an employer's unilateral action with respect to a mandatory subject of bargaining is a per se violation of Section 8(a)5 of the National Labor Relations Act, 29 U.S.C.A., Section 151 et seq. Such a position was sustained by the United States Supreme Court in NLRB v. Katz, 369 U.S. 736 (1962). In Katz, the Supreme Court was confronted with the issue of whether an employer could unilaterally change its sick leave plan and system of wage increase reached during negotiations between the employer and the bargaining agent. In reaching its decision, the court found that the employer was not at liberty to institute changes respecting mandatory subjects of bargaining during the course of negotiations. 369 U.S. at 737. The court disregarded the necessity of establishing whether or not the employer's conduct evidenced an absence of objective good faith and aid such conduct amounted to per se violations and was a circumvention of the duty to negotiate. Other states have reached a similar result in assessing whether or not such conduct amounted to a violation of the duty to bargain. The undersigned has considered the exceptions which have been recognized i.e., waiver, necessity and impasse, and concludes that they are not operative based on evidence adduced herein. Evidence reveals that while the changes were implemented herein, negotiations were ongoing and the Respondent admits that movement was in fact made while the negotiating process was occurring. It was also noted that the matters in which the Respondent unilaterally changed were principle subjects affecting the terms and conditions of employment of its employees. For example, the step-merit increase pay plan had been operative for at least 5 years and in view of the customary grant of the increase, the employees continued to expect such increases. Based thereon, and in view of the fact that negotiations were ongoing and no exceptions to the per se rule were established as being operative herein, I find that the employer's conduct in unilaterally implementing the changes except as noted hereinafter, amounted to a violation of its duty to bargain in good faith within the meaning of Chapter 447.501(1)(c) and derivatively a violation of Chapter 447.501(1)(a), Florida Statutes. Respecting the allegation that the Respondent refused to process a grievance which arose after the expiration of the parties' bargaining agreement, the undersigned is of the opinion that the employer was not obliged to continue to process grievances pursuant to the grievance arbitration machinery provision contained in an expired contract since such obligations have been universally recognized to be contractual in nature which may be terminated during the contract hiatus. (See for example Hilton Davis Chemical Co., Division of Sterling Drugs 185 NLRB No. 58.) Based on the foregoing findings and conclusions, I hereby make the following:
Recommendation Based on the foregoing findings of fact and conclusions of law I shall therefore recommend that the Respondent: Make whole any affected employees by returning to them any and all benefits, financial or otherwise, lost as a result of its unilateral action which is or has not been presently restored. Post at its facilities in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain in good faith by changing terms and conditions of employment and thereby altering the status quo during the period in which the collective bargaining process is continuing. In all other respects, I hereby recommend that the complaint be dismissed. DONE AND ENTERED this 3rd day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anthony Cleveland, Esquire Staff Attorney for William E. Powers, Jr. General Counsel Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Rod W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 John C. Wolfe, Esquire Post Office Box 2842 St. Petersburg, Florida 33731 Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue Miami, Florida 33132
The Issue Whether Respondent committed the unlawful employment practices alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR), and if so, what relief should be granted.
Findings Of Fact At all times relevant to this proceeding, Mr. Grasso was employed by the Agency as a fire protection specialist. Mr. Grasso was born on December 27, 1953. When he was 46 years old, he was hired by the Agency as a health facility evaluator, above base salary. When he was 48 years old, Mr. Grasso was promoted to the fire protection specialist position, above base salary. When he was 54 years old, he received a special pay increase. Fire protection specialists survey health care facilities for fire safety. These surveys can be pursuant to federal guidelines and state guidelines; they include off-site preparation, entrance conferences, a tour of the facility, records review, and staff and resident interviews. Fire protection specialists also must adhere to the Agency's protocol, which provides guidelines as to the amount of time that should be devoted to a facility, given its type and size. By all accounts, Mr. Grasso is passionate about his work, but is difficult to manage because he challenges management directives at every turn. In the summer of 2010, after Mr. Grasso was transferred from the Bureau of Plans and Construction to the Bureau of Field Operations, the management team noticed some deficiencies in Mr. Grasso's job performance. In this new assignment, his direct supervisor was Lorna Howell, who reported to Arlene Mayo-Davis, who in turn reported to Bureau Chief Polly Weaver. On one occasion, Ms. Davis asked Mr. Grasso to assist with a survey in Tampa, although Mr. Grasso was stationed in the Delray Beach office. Mr. Grasso indicated that he was unavailable for the dates requested and that, if he did do the work, he wanted additional compensation. In September 2010, problems arose regarding Mr. Grasso's upcoming October schedule; he was requesting overtime pay for the work he was scheduled to complete. The Agency responded that no overtime was necessary because his schedule could be adjusted to limit his work to regular work hours. Mr. Grasso threatened to file a grievance. The three management witnesses credibly testified to a pattern that existed: Mr. Grasso failed to properly manage his time. He frequently took longer to conduct surveys that his colleagues could complete in shorter timeframes, he often had logged in 40 hours of work by the fourth day of a five-day work week, he requested changes to his survey schedules and deviated from the schedule without seeking permission, and he often failed to adhere to the scheduling and staffing protocols. He requested overtime almost weekly, and his colleagues rarely did so. His requests were often found in emails sent to management that were written in such a way as to reflect disdain for management and an inability to accept a management decision. In August of 2013, Mr. Grasso requested a pay raise based on the fact that he had received a competitive job offer. Ms. Weaver, who processes these types of requests, decided not to recommend Mr. Grasso for a pay raise because he did not exhibit team player attributes, he often challenged management decisions, and he had yet to resolve his time management issues. Ms. Weaver found Mr. Grasso to be unwilling to perform his job as requested by the Agency; therefore, he was denied the pay raise. Ms. Weaver had, in 2012, recommended a pay raise for a different fire protection specialist, Mr. Pescatrice. Mr. Pescatrice worked in a different field office than Mr. Grasso, had perfect evaluations, worked well with others, had garnered positive feedback from everyone he worked with, and had received a competitive job offer. His supervisor had expressed a need to keep Mr. Pescatrice in the Agency's employ. Ms. Weaver, when deciding whether to recommend both Mr. Grasso and Mr. Pescatrice for a competitive pay raise, was unaware of their respective ages. At the time they requested the raises, Mr. Grasso was 59, and Mr. Pescatrice was 51. In October 2013, Mr. Grasso exchanged emails with management questioning the decision to not send staff to a seminar. Management viewed Mr. Grasso's emails as disrespectful, and asked Mr. Grasso to cease communication regarding the subject. Later that month, pursuant to the Agency's leave policy, Mr. Grasso was asked to provide a doctor's note to document the need for sick leave, as he had been absent four days in a 30-day period. He was unable to provide a medical note; management asked him to consider the request a reminder of the Agency's leave policy; and no discipline was imposed. In November 2013, Ms. Davis convened an informal counseling session with Mr. Grasso. She was unaware that Mr. Grasso had filed a Complaint with FCHR. At the session, Mr. Grasso was notified of the Agency's concerns regarding time management and disrespectful communications with management. He was given counseling and a plan to correct the behavior in those areas. Two days after the counseling session, Mr. Grasso notified his supervisor that he would be adjusting his work hours, despite the fact that he had not followed Agency policy seeking prior approval. The record is replete with emails from Mr. Grasso to management that are argumentative and reflect a disdain for management decisions. Mr. Grasso's rendition of the alleged age discrimination presented through his testimony at hearing is not found credible and is belied by the credible testimony provided by the Agency's witnesses. He was denied a pay raise for legitimate reasons and not due to his age. His documentary evidence, a "statistical" report purporting to reflect age discrimination, was created by Mr. Grasso himself and was not supported by testimony to provide some statistical context; the undersigned finds it wholly unreliable. Similarly, absent from the record is any credible evidence that Mr. Grasso was subjected to retaliation after filing the Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 27th day of October, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 27th day of October, 2014. COPIES FURNISHED: William H. Roberts, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 (eServed) Dominic A. Grasso 22500 Middleton Drive Boca Raton, Florida 33428 (eServed)
The Issue At issue in this proceeding is whether Petitioner, an employee of the Department of Children and Family Services (the "Department"), was overpaid in the amount of $826.82 and should be required to repay that amount to the Department.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the following findings of fact are made: On June 5, 1995, Petitioner entered into a settlement agreement with Respondent to resolve certain disciplinary matters not directly relevant to this case. For purposes of this proceeding, the key element of the settlement agreement was that Petitioner would accept a voluntary demotion. The terms of the settlement agreement provided that Petitioner would retain his current salary status for a period not to exceed five years, though it would exceed the maximum for his new pay grade. On June 7, 1995, the Public Employees Relations Commission ("PERC") entered a final order approving the settlement agreement in disposition of Petitioner's complaint. Petitioner did not appeal the final order. Rule 60K-2.004(4)(a), Florida Administrative Code, provides that a demoted state employee's base rate of pay may exceed the maximum of the salary range to which the employee has been demoted for a maximum of five years. Petitioner's base rate of pay was allowed to exceed the maximum of his new pay grade for the full five years. During this period, Petitioner benefited from pay grade increases, received a reclassification of his position, and was not promoted. The five-year period ended in June 2000. Respondent's main office in Tallahassee twice per year issues a computer-generated list of employees receiving pay over the maximum of their pay grades. Human resources employees in Respondent's branch offices then examine the list to determine whether these employees' base rate of pay should continue to exceed the maximum. Respondent issued an "Employees Over Maximum" list in September 2000. Rex Duley of the District 8 human resources office examined the approximately 15 listed names of persons working in District 8. Mr. Duley determined that the applicable five-year period for Petitioner's receipt of pay above his grade had expired in June 2000. Mr. Duley prepared a letter, dated September 11, 2000, notifying Petitioner of the overpayments. The letter stated that Petitioner had received $1,316.11 in gross overpayments since June 2000. Respondent subsequently completed the full computation through the Bureau of State Payroll's automated system, and determined that the net overpayment to Petitioner was $826.82. At the hearing, Petitioner did not dispute the amount of the net overpayment. Petitioner testified that he would be able to repay the money at a rate of $25 to $50 per pay period. Instead, Petitioner sought to introduce evidence calling into question the validity of the 1995 settlement agreement. This evidence was deemed irrelevant and was not admitted. The evidence established that Petitioner voluntarily entered the settlement agreement, did not appeal from the PERC final order adopting the settlement agreement, and accepted the benefits of the settlement agreement for a period of five years. The time for contesting that agreement has long passed. Petitioner also questioned Respondent's diligence in discovering the overpayments. Petitioner was well aware of the five-year limitation on the salary arrangement established by the settlement agreement, and was in at least as good a position as Respondent to know that he was being overpaid between June and September 2000. Petitioner accepted the overpayments without questioning them or calling Respondent's attention to them. Petitioner's contention that he is being penalized for Respondent's lax bookkeeping is thus without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent repay $50 per pay period to the Department of Children and Family Services beginning with the pay period immediately following entry of a final order in this case and continuing each pay period thereafter until the overpayment is repaid. DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2001. COPIES FURNISHED: Eugenie Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Robert J. Richmond 5411 Loyloa Lane Southwest Fort Myers, Florida 33908 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact In March 1988 Ilene Lieberman (Lieberman) was elected Mayor of the City of Lauderhill (City). She defeated the incumbent mayor, David Kaminsky (Kaminsky), in a very hard fought election. At all times relevant to this proceeding, Lieberman served as the City's mayor. On or about December 31, 1991, Kaminsky filed an ethics complaint ("Complaint") with the Commission on Ethics (Commission) against Lieberman, alleging that she violated Section 112.313(6), Florida Statutes. The Complaint consisted of the following four parts: Kaminsky claimed that Lieberman had expended over $40,000 for "personal legal fees to defend herself" in an action brought before the Commission by Michael Arciola. Kaminsky alleged that the expenditure of these funds was in violation of Sections 19-51(b)(2) and (h) and 2-141(b) of the City Code of Ordinances ("City Code"). Kaminsky claimed that Lieberman violated Article III, Section 3.05, of the City Charter by sponsoring and passing Ordinance Nos. 89-197 and 91-90 which granted ten percent increases in compensation for the City Council. Kaminsky claimed Lieberman violated Article V, Section 5.02(d), of the City Charter by passing Ordinance No. 91-109, which provides sick leave and vacation pay for the mayor. Kaminsky claimed that Lieberman used City stationery and City personnel for correspondence that did not deal with City business. On or about February 27, 1992, Kaminsky filed an amendment to the Complaint which restated and clarified the portion of the Complaint which dealt with the issue of use of City stationery for letters unrelated to City business. Kaminsky stated that the letters were dictated, typed and reproduced on City time and using City equipment. He also indicated that the letters were typed by a City employee, Rusty Roberts. On or about April 14, 1992, Kaminsky filed a second amendment to the Complaint concerning the ordinance increasing the pay for the City Council and the ordinance providing sick and vacation pay for the mayor. With regard to the two ten percent pay increases for the City Council, Kaminsky stated, "whereas the Charter . . . specifically limited a compensation increase to the 'U.S. Consumer Price Index for the month prior to the preparation of the annual budget' . . . at the time Ordinance No. 89-197 and Ordinance No. 91-90 were passed, the controlling C.P.I.'s were below 10 percent, being 4.7 in 1989 and 3.7 in 1991." With regard to the mayor's vacation and sick pay, Kaminsky stated that the City Charter provided that no ordinance increasing the salary of the mayor shall take effect unless it has been one year since the last salary increase and that no ordinance shall increase the mayor's salary more than ten percent. Kaminsky further stated that on March 4, 1991, the mayor had received a ten percent salary increase and that on April 8, 1991, the mayor was authorized to receive sick pay and vacation pay "which effectively surpasses the 10 percent maximum salary increase in any one year." Along with the second amendment, Kaminsky provided the Commission with the two letters purportedly typed by City personnel on City time. On June 30, 1992, Kaminsky filed two additional amendments to the Complaint. In the third amendment, Kaminsky advised the Commission that on January 27, 1992, the City had enacted Ordinance No. 92-106, which revised Section 19-51(b) of the City Code. Kaminsky claimed that this section was previously used as authority to hire a private attorney to represent Lieberman in the Arciola ethics complaint. In the fourth amendment, Kaminsky advised that on May 26, 1992, the City passed on second reading Ordinance No. 92-143, revising Section 19-51(h) of the City Code to state that the employment of outside counsel pursuant to that section would not be subject to City Council approval as required in Section 2-141(b) of the City Code. Kaminsky alleged that this amendment clearly indicated that Lieberman knew that she was violating the City Code when outside counsel was hired in the Arciola matter. Furthermore, Kaminsky alleged that Lieberman further violated that City Code when outside counsel was hired to represent her in an elections complaint on May 11, 1992. LEGAL FEES IN THE ARCIOLA CASE In 1990 Lieberman was notified that Michael Arciola had filed an ethics complaint against her. When Lieberman presented the Arciola complaint to the City Attorney, he advised her that he could not represent her in the matter because he would likely be a material witness in the case due to his role in the City's investigation of Arciola. Lieberman advised the City Attorney that she wished to maintain confidentiality relating to the ethics complaint. Her desire to maintain confidentiality was based on legal advice. She was not "anxious to keep the expenditure from the City Council" as alleged by Kaminsky. At the time Kaminsky filed the Complaint, Section 19-51 of the City Code provided as follows: There is hereby created a fund of the city which shall be known as the insurance services fund. The purpose of this fund is to provide a source of funds to pay all costs of insurance coverage, insurance-related services required by the city and the settle- ment of claims against the city which are not otherwise covered by policies of insurance which shall be purchased by the city from time to time. The city may purchase insurance which shall provide coverage for those services enumerated in subsection (b) herein, which shall be in excess of coverage provided by the city. The insurance services to be provided by this fund shall be as follows: Damage to personal property or real estate owned by the city. Liability for property damage, personal injury and other tort claims against the city or any elected official, department head, official, member of an advisory board or employee thereof when acting in the scope of his or her employment or official duties and subject to the conditions of section 2-20, Indemnification of city officers and employees. Worker's compensation. Monies in this fund may be expended for all costs of insurance coverage, all insurance-related services required by the city and all settlements of claims against the city, as well as for the purchase of any policies of insurance and the payment of any insurance premiums. * * * * (h) All claims against the city which are insured by the city and which result in litigation shall be referred to the city attorney immediately upon service of the summons and complaint. The city attorney shall represent the city in all litigation unless the decision is made to employ outside counsel upon consultation with the mayor. For claims covered by Section 19-51 of the City Code, the City is self-insured for the first $50,000 and maintains excess insurance for coverage for all expenses over $50,000. The City Attorney advised Lieberman that he interpreted Section 19-51 of the City Code to mean that outside counsel could be retained pursuant to that section to provide legal defense of an ethics claim against the mayor without requiring approval from the City Council. It was also the City Attorney's opinion that this interpretation maintained the confidentiality of the Complaint. The City Attorney hired Samuel Goren to represent Lieberman in the Arciola matter. The City spent less than $35,000 in defending Lieberman in her official capacity against the ethics complaint filed by Michael Arciola. At the August 26, 1991 City Council meeting, there was a discussion of the legal fees which had been incurred in the Arciola ethics complaint. In a memorandum dated August 29, 1991, the City Council president, Jim O'Brian, questioned the City Attorney's interpretation of the City Code as it related to the retaining of Samuel Goren to represent Lieberman in the Arciola ethics complaint. Kaminsky read the memorandum from O'Brien to the City Attorney. Kaminsky never spoke to the City Attorney concerning the City Attorney's interpretation of the City Code as it related to the Arciola matter. If Kaminsky had inquired, the City Attorney would have explained the basis for his interpretation. On May 12, 1992, the Commission on Ethics entered its Determination of Investigative Jurisdiction and Order to Investigate, finding that Kaminsky's complaint as to the retention of the law firm of Josias & Goren to represent Lieberman in the Arciola ethics complaint was legally insufficient. AMENDMENTS TO SECTION 19 OF CITY CODE On January 27, 1992, the City Council passed Ordinance No. 92-106, which amended Section 19-51(b) of the City Code to read: (b) The insurance services to be provided by this fund shall include any lawsuit, complaint, or claim of any kind, whether through the courts or any administrative procedure, wherein, the City, any employee thereof, or any official thereof, whether elected or appointed, shall be a subject of the complaint or claim. Notice of the complaint or claim shall be sufficient to authorize the utilization of this section. On May 11, 1992, and May 26, 1992, the City Council passed Ordinance 92-143, on first and second reading, respectively. This ordinance amended Section 19-51(h) of the City Code to read: All claims against the city which are insured by the city and which result in litigation shall be referred to the city attorney immediately upon service of the summons and complaint. The city attorney shall represent the city in all litigation unless the decision is made to employ outside counsel upon consultation with the mayor. The employment of outside counsel pursuant to this section shall not be subject to approval of the City Commission as might otherwise be required in Section 2-141(b) of the Code or any other section thereof. If the Mayor or any commissioner is the subject of a criminal complaint or a complaint by an administrative agency, the elected official who is the subject of the complaint may designate outside counsel to represent that elected official in that matter. On May 11, 1992, Lieberman authorized the retention of outside counsel to represent her in an elections Complaint filed against her by Kaminsky. Kaminsky had alleged in an amendment to the Complaint that Lieberman was guilty of an ethics violation by retaining such outside counsel. On August 4, 1992, the Commission on Ethics issued Amendment to Determination of Investigative Jurisdiction and Order to Investigate, finding that the allegations in Kaminsky's Amendments to the Complaint concerning the passage of Ordinance Nos. 92-106 and 92-143 were legally insufficient to indicate a possible ethics violation by Lieberman. Additionally, Kaminsky's allegations concerning Lieberman's retention of outside counsel on May 11, 1992, were deemed legally insufficient to indicate a violation of Section 112.313(6), Florida Statutes. CITY COUNCIL SALARY INCREASE On November 13, 1989, pursuant to Section 3.05 of the City Charter, the City Council passed Ordinance No 89-197 which increased the City Council members' salaries from $330 per month to $363 per month. On November 12, 1991, the City Council passed Ordinance 91-90 which increased the City Council members' salaries from $363 per month to $399 per month. Both ordinances passed unanimously. Lieberman did not vote on the ordinances. The City Charter authorizes the mayor to vote only when there is a tie. The City Charter provides that the mayor may veto any ordinance passed by the City Council within three working days of the effective date of the passage of the ordinance. An ordinance which has been vetoed may be overridden by a four-fifths vote of the City Council. An ordinance not vetoed within the three day period becomes effective without the signature or approval of the mayor. Lieberman did not veto Ordinance Nos. 89-197 and 91-190. At the time Ordinance Nos. 89-197 and 91-90 were passed, Article III, Section 3.05 of the City Charter provided: The council may, through the passage of an ordinance passed by the minimum of a four- fifths (4/5) of all council members, determine the annual salary of the council members at the time they adopt each fiscal budget. But in no event shall any such ordinance which increases the salary of council members currently serving in office become effective until said council has served at least one full year of the term of office for which they were elected. Any increase in the council members' salary shall be based upon the U.S. Consumer Price Index for the month prior to the preparation of the annual budget; but in no event shall any increase exceed ten (10) per cent of the current salary. And further, in no event shall there be more than one raise during one elective term of the council members. The City Attorney interpreted Article III, Section 3.05, to mean that the words "based upon" did not limit a salary increase to the amount of the U.S. Consumer Price Index not to exceed ten percent but rather provided that the Consumer Price Index was the starting point to calculate the salary increase which could not exceed ten percent. His interpretation was based on a definition of "based upon" found in Black's Law Dictionary which stated "an initial or starting point for calculation." Kaminsky did not speak to the City Attorney concerning the City Attorney's interpretation of the section. Kaminsky interpreted Article III, Section 3.05, to mean that a salary increase was limited to the U.S. Consumer Price Index or ten percent, whichever was lower. The City Charter did not state which Consumer Price Index was to be used. Kaminsky's complained that Lieberman should not have presented the ordinances to the City Council for passage and that she should have vetoed the ordinances once they were passed. The City's mayor is the "default sponsor" of any proposed legislation emanating from one of the departments of the City and not from a specific council member. Proposed ordinances coming from the finance department are automatically assigned sponsorship by the mayor. Based on the transcript of discussions by the City Council members during the budget workshop meetings which occurred prior to the ordinances being placed on the agenda for a vote, the City Council members had determined that they wanted a ten percent salary increase. Thus, the idea for ten percent salary increases came from the City Council and not from Lieberman. Kaminsky did not file an ethics complaint against any of the City Council members who voted on the salary increases. He felt that Lieberman was more culpable than the City Council members. Lieberman did not gain any personal benefit from the enactment of Ordinance Nos. 89-197 and 91-190. Kaminsky did not know of any personal benefit that Lieberman may have gained from the passage of the ordinances but merely speculated that she may have gained some political IOU's. Kaminsky never had any personal knowledge that Lieberman thought the ordinances were in violation of the Charter. He felt that because he interpreted the City Charter to mean that the raises were limited by the U.S. Consumer Price Index that she should have come to the same conclusion. His investigation of the issue consisted of reading the ordinances and the City Charter. On May 12, 1992, the Commission on Ethics issued a Determination of Investigative Jurisdiction and Order to Investigate, finding that allegations concerning the salary increases for the City Council members were legally sufficient to indicate a possible violation of Sections 112.313(6) and 112.3143(3), Florida Statutes. This finding was based on the Commission's belief that Lieberman had voted on the salary increases. On November 20, 1992, the Report of Investigation was issued finding that Lieberman did not vote on the salary increases. On December 15, 1992, the Advocate's Recommendation was filed with the Commission, recommending that no probable cause of a violation of Section 112.3143(3) be found because Lieberman did not vote on the increases and that no probable cause of a violation of Section 112.313(6) be found because the Report of Investigation did not reveal that Lieberman received any personal benefit from the ordinances. On February 2, 1993, the Commission issued a Public Report finding there was no probable cause to believe that Lieberman violated Sections 112.313(6) and 112.3143(3), Florida Statutes, concerning the pay increases for the City Council members. MAYOR'S SICK AND VACATION PAY On April 8, 1991, the City Council passed Ordinance 91-109 which created Sections 2-17(c) and (d) of the City Code to read: The Mayor shall receive all benefits relating to sick pay, vacation pay and health insurance as are received by department heads with maximum senority; and shall be defined as a general employee for purposes of Chapter 2, Article II, Division 3, Retirement, of the Code. The retirement benefits as provided for herein, to the extent that, after January 1, 1977, they have been funded and determined to be actuarially sound, are ratified and confirmed effective November 1, 1973. Because the ordinance dealt in part with retirement benefits, Lieberman instructed the City Attorney to contact former mayors, Cippoloni and Kaminsky, prior to the enactment of the ordinance and inform them that the ordinance would not diminish or affect in any way the pensions that the mayors were receiving from the City. The City Attorney explained the ordinance to Kaminsky; thus, Kaminsky had an opportunity to discuss the ordinance with the City Attorney and to ask any questions and make any objections that he might have prior to the enactment of the ordinance. Kaminsky never asked the City Attorney any questions concerning the ordinance prior to filing the Complaint. Kaminsky argues that the ordinance violated Article V, Section 5.02(d), of the City Charter which provided: The salary of the mayor shall be set by the city council through the passage of an ordinance. No ordinance shall be effective to reduce or increase the salary of the mayor by more than ten (10) percent of the then existing salary for the office of the mayor. Further, no salary increase and/or decrease for the office of the mayor shall be effective unless it has been at least one year since the last ordinance setting forth a salary adjustment. Kaminsky reasoned that because Lieberman could cash in her sick and vacation leave she was in effect getting an increase in her salary above the annual ten percent increase authorized in the City Charter. Lieberman did not vote on Ordinance 91-109 and she did not veto the ordinance. The ordinance was passed by a unanimous vote of the City Council. Prior to Lieberman becoming mayor, the practice of the City had been to pay the mayor's salary whether the mayor was sick or on vacation. The administrative policy was to have the mayor indicate on the time sheet that the mayor was present even if the mayor was sick or on vacation. Thus, the mayor would receive his salary whether he worked or not. Kaminsky participated in this practice when he was mayor. It had been the practice of the City Council to grant by ordinance a salary increase to the mayor and to City Council members and to grant a separate fixed amount for expenses. The mayor and City Council members were not required to account for expenses which they incurred. The mayor and the City Council members received the allocated amount for expenses regardless of whether the actual expenses incurred were greater or lesser than the allocated amount. This was a way that the mayor and City Council members could receive a salary increase in excess of the ten percent authorized by the City Charter. Kaminsky had participated in and approved of this practice when he was mayor. Kaminsky had received information from someone that Lieberman had drawn down salary and vacation pay in excess of a ten percent increase of her annual salary. He did not know who gave him the information and he did not verify the information. He could not tell when Lieberman was supposed to have cashed in her leave nor could he tell what amount had been received by Lieberman. He assumed it was in excess of ten percent of her annual salary. Kaminsky alleged in the Complaint that "no one keeps track of when the mayor arrives at her office, when she leaves or where she is when she is not in her office." Lieberman's secretary, Ms. Roberts, had the responsibility of keeping track of Lieberman's attendance at her City Hall office. Ms. Roberts maintained public records of Lieberman's attendance. On May 12, 1992, the Commission on Ethics issued a Determination and Order finding that the allegations in Kaminsky's Complaint concerning sick leave and vacation benefits were legally insufficient to indicate a possible violation of Section 112.313(6), Florida Statutes. CITY STATIONERY Kaminsky alleged that Lieberman used City stationery for correspondence unrelated to City business, and that such correspondence was typed by Rusty Roberts on City time and using City equipment. Kaminsky attached two letters to an amendment to his Complaint, alleging that they were prepared in violation of the Code of Ethics. One letter was from Lieberman to Nova University, transmitting two draft letters dealing with a fund raiser. The other letter was from Lieberman to then Governor Bob Martinez, advising him of her views on additional legislation restricting abortion rights. She copied members of the City Council, members of the Broward Legislative Delegation, and the National Organization of Women with the letter to Governor Martinez. At the bottom of both letters were stamped the words, "Not Paid for With City Funds." On the letter to Nova University, below the signature of Lieberman appeared the notation, "IL/rr." Kaminsky surmised from this notation that the letter had been dictated by Lieberman and typed by Rusty Roberts on City time and using City equipment. Had he made an inquiry concerning the letter, he would have learned that the letter was typed by Lieberman at her home and on her personal time and that Ms. Roberts had given Lieberman permission to place her initials on the letter. The letter was not prepared by City employees on City time using City equipment. The letter to Governor Martinez was typed by Ms. Roberts on City time and using City equipment. Ms. Roberts inadvertently duplicated the letter on Lieberman's personal stationery rather than City stationery. The letter did serve a public purpose. Kaminsky never spoke with Lieberman or the City Attorney about the stationery issue prior to filing the Complaint. If he had he would have been advised that the use of this type of stationery by Lieberman had been previously raised and resolved by the Commission on Ethics in an ethics Complaint which had been filed against Lieberman. Prior to filing the Complaint, Kaminsky made no investigation or inquiry to learn the circumstances in which the letters were prepared. On May 12, 1992, the Commission on Ethics issued a Determination and Order finding that Kaminsky's allegations concerning the two letters were legally insufficient to indicate a violation of Section 112.313(6), Florida Statutes. ATTORNEYS' FEES AND COSTS After Kaminsky filed the Complaint against Lieberman, City Attorney Dick Michelson retained Samuel S. Goren of the law firm of Josias & Goren to represent Lieberman in the proceedings. Thereafter, the City hired Stuart Michelson to replace Samuel Goren as Lieberman's attorney because Kaminsky's attorney had indicated that Mr. Goren would be a material witness in the fee proceedings. Samuel Goren and Stuart Michelson charged $125 per hour for their services, and Stuart Michelson billed $50 per hour for paralegal time. The $125 rate was below the market rate for such services in the community. Dick Michelson billed the City at the rate of $100 per hours for 8.5 hours of service from July 20, 1992 through September 24, 1992. He billed the City at the rate of $125 per hour for 1.8 hours of service from December 2, 1992 through January 27, 1993. From March 5, 1993 through October 19, 1993, he billed the City for 21.5 hours at $125 per hour. The rate of $125 per hour for the services which were provided for services rendered from March 5, 1993 through October 19, 1993 was a reasonable rate and 21.5 hours was a reasonable amount of time spent for the services provided during this time period. The rate of $125 per hour is a reasonable rate for the services provided by Samuel Goren in his representation of Lieberman in relation to the Kaminsky Complaint and this fee proceeding and 61.5 hours is a reasonable number of hours spent by Mr. Goren in relation to the Kaminsky Complaint and this fee proceeding. The rate of $125 per hour is a reasonable rate for the services provided by Stuart Michelson in his representation during this fee proceeding. The rate of $50 per hour is a reasonable rate for paralegal services provided by Stuart Michelson's paralegal in this fee proceeding. It was reasonable for Stuart Michelson to spend 104.3 hours for services provided through March 7, 1994. It was reasonable for a paralegal to spend 106.8 hours for services provided through March 7, 1994. Stuart Michelson spent 37.5 hours at the final hearing in this proceeding which is a reasonable amount of time for the services provided at the final hearing. Mr. Jeffery Pheterson testified as an expert witness in this case on behalf of Lieberman. He billed the City at the rate of $125 per hour for 25.4 hours of service rendered as an expert witness. The costs billed to the City by Goren and Stuart Michelson relating to this case were $665.89 as of March 8, 1993. Those costs are reasonable. ILL WILL AND HOSTILITY After Lieberman defeated Kaminsky in 1988, Kaminsky in referring to Lieberman told Al Geraffi, the mayor of Lauderdale Lakes, that the "G D bitch, f ing beat me. She isn't worth a shit." Kaminsky made similar remarks about Lieberman to Mayor Geraffi on three different occasions. On the day of the 1988 mayoral election, Kaminsky had a heated discussion with the president of the firefighter's union concerning campaign literature that was derogatory to Lieberman. Kaminsky wanted to know why the union members were not being allowed to pass out the campaign literature. During the conversation, Kaminsky referred to Lieberman as a bitch. Shortly after the 1988 election, Lieberman contacted Kaminsky to set up a meeting to discuss projects that Kaminsky had initiated as mayor. Kaminsky told her that he harbored ill will toward her and had harsh feelings, thus, he did not want to meet with her. Senator Matthew J. Meadows, who was a former City Commissioner, heard Kaminsky refer to Lieberman as the "f g bitch and the f g broad" before, during and after the 1988 mayoral election. Senator Meadows did not understand the remarks to have been made jokingly. Kaminsky did not think that it would serve any purpose for him to know whether Lieberman relied on legal advice regarding the issues in the Complaint because he felt that she dictated the City Attorney's legal opinions. KAMINSKY'S RELIANCE ON LEGAL ADVISE Having judged the credibility of the witnesses, I find that Kaminsky informally discussed the Complaint with his brother-in-law, Joseph Pardo, prior to filing the Complaint. The discussions took place in Mr. Pardo's and Kaminsky's homes. When Kaminsky was asked at his deposition whether he formally retained Mr. Pardo or just consulted with him informally, Kaminsky replied: "Just very informally. We visit. We are family." Kaminsky knew that Mr. Pardo, an attorney, was not experienced in matters dealing with Chapter 112, Part III of the Florida Statutes, and had no experience practicing before the Florida Commission on Ethics. Mr. Pardo was not familiar with the City Code and Kaminsky knew it. Kaminsky told Mr. Pardo what the code was and let Pardo read portions of the code. Kaminsky told Pardo what he felt was occurring and told Pardo that he intended to file an ethics complaint. Mr. Pardo advised Kaminsky that he thought Kaminsky was following the proper procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED Ilene Lieberman be awarded attorney's fees and costs of $37,280.89. It is further recommended that jurisdiction not be retained by the Division of Administrative Hearings to determine fees incurred after March 8, 1993. The recommended amount includes Stuart Michelson's actual time spent at hearing. DONE AND ENTERED this 18th day of January, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 18th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1181EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraphs 1-6: Accepted in substance. Paragraph 7: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraphs 8-10: Accepted in substance. Paragraph 11: The last sentence is rejected as constituting a conclusion of law. The remainder is accepted in substance. Paragraph 12: The second sentence is accepted in substance. The third sentence is rejected as constituting a conclusion of law. The remainder is rejected as constituting argument. Paragraph 13: The first sentence is rejected as constituting argument. The second sentence is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: Rejected as unnecessary. Paragraph 17: Accepted in substance. Paragraph 18: The first two sentences are rejected as constituting argument. Paragraphs 19-20: Accepted in substance. Paragraph 21: Rejected as unnecessary. Paragraph 22: Rejected as constituting argument. Paragraph 23: Accepted in substance. Paragraphs 24-25: Rejected as constituting argument. Paragraph 26: The first sentence is accepted in substance. The remainder is rejected as constituting argument. Paragraphs 27-37: Accepted in substance. Paragraph 38: Rejected as unnecessary. Paragraph 39: Accepted in substance. Paragraph 40: Rejected as unnecessary. Paragraphs 41-45: Accepted in substance. Paragraph 46: Rejected as unnecessary. Paragraphs 47-58: Accepted in substance. Paragraphs 59-62: Accepted in substance. Paragraph 63: Rejected as constituting argument. Paragraphs 64-67: Accepted in substance. Paragraph 68: Accepted to the extent that that is what he testified but rejected to the extent that that is what is reflected in Lieberman's Exhibit No. 20. Paragraph 69: Rejected to the extent that he testified that the amount reflected costs and fees. Paragraph 70: Accepted in substance. Paragraph 71: Accepted in substance. Paragraph 72: Accepted that that was his testimony but rejected to the extent that that number of hours is not reflected in the invoices submitted in evidence. Paragraphs 73-77: Accepted in substance. Paragraph 78: Rejected as constituting argument. Paragraphs 79-83: Rejected as unnecessary. Paragraph 84: Accepted in substance. Paragraphs 85-87: Rejected as constituting argument. Paragraphs 88-91: Accepted in substance. Paragraphs 92-93: Rejected as constituting argument. Paragraphs 94-96: Accepted in substance. Paragraph 97: Rejected as unnecessary. Paragraphs 98-99: Accepted in substance. Paragraphs 100-103: Rejected as unnecessary. Paragraphs 104-110: Accepted in substance. Paragraph 111: Rejected as unnecessary. Paragraphs 112-113: Rejected as constituting argument. Paragraphs 114-118: Rejected as unnecessary. Paragraph 119: Rejected as constituting argument. Paragraphs 120-122: Rejected as unnecessary. Paragraph 123: Rejected as constituting argument. Paragraphs 124-125: Accepted in substance. Paragraphs 126-128: Rejected as unnecessary. Paragraphs 129-130: Accepted in substance. Paragraphs 131-139: Rejected as unnecessary. Paragraphs 140-141: Accepted in substance. Paragraph 142: Rejected as unnecessary. Paragraph 143: Rejected as constituting argument. Paragraph 144. Accepted in substance. Paragraph 145: Rejected as constituting argument. Paragraph 146: Rejected as unnecessary. Paragraph 147: Rejected as constituting argument. Paragraph 148: Rejected as unnecessary. Paragraphs 149-152: Rejected as constituting argument. Paragraphs 153-170 Accepted in substance. Paragraph 171: Rejected as constituting argument. Paragraph 172: Accepted in substance. Paragraphs 173-174: Rejected as constituting argument. Paragraph 175: Accepted in substance. 68: Paragraph 176: Rejected as unnecessary. 69 Paragraphs 177-178: Rejected as constituting argument. Paragraphs 179-184: Accepted in substance. Paragraphs 185-186: Rejected as constituting argument. Paragraphs 187-188: Rejected as subordinate to the facts actually found. Paragraphs 189-191: Accepted in substance. Paragraph 192-201: Rejected as subordinate to the facts actually found. Paragraphs 202-209: Rejected as irrelevant. Paragraphs 210-212: Rejected as subordinate to the facts actually found. Paragraphs 213-218: Rejected as constituting argument. Complainant's Proposed Findings of Fact. Paragraph 1: Accepted in substance to the extent that Kaminsky may have thought that Lieberman violated the City Code and Charter but rejected to the extent that such statement implies that Lieberman did violate the law. Paragraph 2: Accepted in substance. Paragraph 3: Accepted in substance to the extent that Kaminsky believed when he filed the Complaint that Lieberman violated the City Code and Charter for her own personal benefit with the exception of the allegations relating to the salary increases for the City Council members. Rejected to the extent that the statement implies that Lieberman did violate the law for her personal benefit. Paragraph 4: Accepted to the extent that Ms. Striker and Mr. O'Brien had voiced their objections to the payment of the legals fees related to the Aricola ethics complaint. Paragraph 5: Accepted in substance to the extent that Kaminsky talked informally with his brother-in-law who was an attorney pertaining to the Complaint. Having judged the credibility of the witnesses, rejected that Pardo reviewed all the materials pertaining to the Complaint. Paragraph 6: Accepted in substance with the exception of the allegations as to personal benefit relating to the City Council salary increase. However, rejected to the extent that such a statement implies that Kaminsky's belief was reasonably based on fact or law. Paragraph 7: Rejected to the extent that Mr. Stracher's opinion is based on competent substantial evidence. Paragraph 8: Accepted to the extent that there were ordinances passed but rejected to the extent that such ordinances allowed for the expenditure of legal fees and the salary increases which were previously prohibited prior to the passage of the amendments. The ordinances merely clarified City's existing policy and interpretation relating to the unamended ordinances. Paragraph 9: Having judged the credibility of Kaminsky, the paragraph is rejected. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as not supported by the greater weight of the evidence. Paragraphs 12-14: Rejected as not supported by competent, substantial and credible evidence. COPIES FURNISHED: Stuart R. Michelson, Esquire 1111 Kane Concourse, Suite 517 Bay Harbor Islands, Florida 33154 Anthony J. Titone, Esquire 7471 West Oakland Park Blvd., Suite 110 Ft. Lauderdale, Florida 33319 Kerrie Stillman Clerk & Complaint Coordinator Ethics Commission Post Office Box 6 Tallahassee, Florida 32399-0006 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Sutton is a "small business party" incorporated under the laws of Florida and has its principal office located at 3054 Skyview Drive, Lakeland, Florida with less than 25 employees and a net worth of less than $2 million dollars. The Department previously initiated action against Sutton by denying an application for renewal of its license to operate a group home in Lakeland, Florida. A timely request for a hearing on the denial was filed by Sutton, and the matter transferred by the Department to the Division of Administrative Hearings where it was assigned Case Number 90-2928. The final hearing was held in Lakeland, Florida, on August 16, 1990, before K. N. Ayers, Hearing Officer, and thereafter a Recommended Order was filed on August 30, 1990, which recommended that Department enter a Final Order granting Sutton a license to operate a group home. The Department approved and adopted this recommendation in its Final Order entered on October 17, 1990, by the terms of which Sutton prevailed in the prior action initiated by the Department. The Department was not a nominal party to the prior proceedings, and there is nothing in the record to show that the Department was substantially justified in denying Sutton's application for renewal of license to operate a group home, or that any special circumstances exist which would make an award of fees and costs unjust. On December 24, 1990, a Motion For Attorney's Fees and Costs was filed with the Division of Administrative Hearings by Sutton. The authority cited for the award was Section 57.111, Florida Statutes. Therefore, the motion was treated as a petition under Rule 22I-6.035, Florida Statutes, and by order of January 16, 1991 was dismissed for failure to comply with that rule, with leave to amend within twenty days. On January 24, 1991, an Amended Motion For Attorney's Fees and Costs was filed with the Division of Administrative Hearings by Sutton. The motion is accompanied by an affidavit and supporting documents which are uncontroverted, and which establish that Sutton incurred legal fees in the amount of $3,945.00 and costs of $369.72, as a result of the prior proceedings in Case Number 90-2928. No evidentiary hearing was requested by either Sutton or the Department. The Department was advised by order dated January 16, 1991 that if Sutton filed an amended petition the Department would have twenty days from the date that Sutton filed the amended petition to file its response in accordance with Rule 22I-6.035(5), Florida Administrative Code, and that failure to timely respond would result in the waiver of the opportunity to dispute the allegations contained in the petition. No responsive pleading of any kind has been filed with the Division of Administrative Hearings on behalf of the Department to the Amended Motion For Attorney's Fees and Costs.
