Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978 Richard Fisher was employed by Acco Mechanical Contractors; Inc. on this project as a plumber. During this time Fisher was paid at the rate of $6.50 per hour for regular time and $9.75 per hour for overtime. The difference between the amount paid the Petitioner for regular time hours worked and the prevailing wage is $3.57 and the difference between the amount paid the Petitioner for overtime and the prevailing wage is $5.35 per hour. The Respondent also controverts the number of hours asserted to have been worked by Fisher. The Respondent asserts in its hearing brief that Fisher worked 459 regular hours and 50 overtime hours. The claim presented by Fisher indicated that he worked 512 regular hours and 50 overtime hours. Exhibit 8 reflects that Fisher worked 459 regular hours and 55 overtime hours. Exhibit 8 further reflects that Fisher received $6.50 per hour for regular time worked and $9.75 per hour for overtime worked. The prevailing wage rate established by the division was $10.07 per hour. The difference between the wage paid Fisher for regular time hours and the prevailing wage was $3.57. The difference paid Fisher between time and a half computed on the prevailing wage and time and a half paid Fisher is $5.35 per hour. The amount Fisher was underpaid is equal to the sum of the regular hours worked (459) times $3.57 end the overtime hours worked (55) times $5.35, or a total of $1,941.13. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. Said affidavit was filed within the time prescribed by statute. Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Service is presently withholding $2,322.35 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
Conclusions Petitioner has established that he was hired and worked for Acco, Inc. as a plumber and that he was paid $6.50 per hour rather than the prevailing wage of $10.07 for plumbers on the project in question. Petitioner is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employee be paid "not less than the prevailing wage." Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime pay, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage for the total number of hours worked at a rate less than the prevailing wage. Therefore, Petitioner is entitled to $1,638.63. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rates, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay the Petitioner, from the amount it is withholding in this claim, the amount of $1,638.63, and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December, 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32304 Telephone No.: (904) 488-7396 COPIES FURNISHED: DEWEY H. VARNER, JR., ESQUIRE Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. BYRD BOOTH, JR., ESQUIRE Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 LUTHER J. MOORE, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 THOMAS A. KOVAL, ESQUIRE Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 STEPHEN F. DEAN, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $1,941.13 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 Byrd Booth, Jr., Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR RICHARD E. FISHER, Petitioner, vs. CASE NO. 78-1283 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978 in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: Petitioner, Richard E. Fisher, filed a claim against Respondent, Acco, Inc., alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, Richard E. Fisher, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the Regional Juvenile Detention Center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978, Richard E. Fisher was employed by Acco, Inc. on this project as a plumber. During this time, Fisher was paid at the rate of $6.50 per hour. The difference between the amount paid Petitioner and the prevailing wage is $3.57. The Petitioner has complied with the prOvisions of se6ion 215.19(3)(a) 1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was timely filed. Exhibit No. 8, the Weekly Time Reports for Richard E. Fisher, establish that Fisher corked 459 hours at the rate of $6.50 and 55 hours at the rate of $9.75. The difference between what Petitioner was paid and what he should have been paid at the prevailing wage rate is equal to the sum of hours worked (459) times $3.57 or a total of $1,638.63. Pursuant to the statute, the Department of Health and Rehabilitative Services is withholding $2,322.35 from Acco, Inc. pending the outcome of this claim.
Findings Of Fact Mr. Vann was employed by the Department as a counselor for its Division of Children Youth and Family. On August 8, 1987, Mr. Vann was involved in an accident in which a truck hit the car he was driving. He had an acute cervical and lumbar sprain of the back and contusions of the right arm and right foot; he had no fractures or dislocations. He received workers' compensation benefits as the result of his injuries. He was treated by an orthopedic surgeon, Dr. Pedro Bermann. By January 21, 1988, Dr. Bermann was of the opinion that Mr. Vann had reached maximum medical improvement. On March 27, 1988, Mr. Vann was admitted to the University of Miami Comprehensive Pain and Rehabilitation Center at South Shore Hospital and Medical Center for an intensive treatment program. For two weeks he was treated as an in-patient, for the following two weeks he was treated on an out-patient basis. When Mr. Vann was discharged from the Pain and Rehabilitation Center he had a zero percent impairment rating. When released from that program, Dr. Serge Podrizki wrote a letter stating that Mr. Vann had "successfully completed treatment at our center for a work-related injury and was able to resume full- time employment. He is being discharged with no restrictions according to the guidelines of his job requirements. We would suggest that his driving be limited for at least the first month." Mr. Vann then returned to his work as a counselor for Children Youth and Family on April 25, 1988. Mr. Vann's supervisor wrote a memo to him on May 20, 1988, which reassigned cases to him based on Dr. Podrizki's April 23, 1988 letter. He was not required to drive, which was consistent with Dr. Podrizki's recommendation. Problems with Mr. Vann's job performance resulted in a memo from his supervisor dated May 13, 1988, requiring him to sign in and out each day, to inform his supervisor of doctor's appointments and to provide copies of any doctor's reports to his supervisor. On June 8, 1988, Mr. Vann reported to work but he did not report to work at any time thereafter. Mr. Vann never was authorized to take leave and never provided any doctor's statements justifying his absence from work on the grounds that he was unable to work. Mr. Vann maintains that he was unable to work due to his injuries. The depositions of three doctors who treated Mr. Vann are the only medical evidence in the record. In their opinion, Mr. Vann is able to work. The greater weight of the evidence shows that there is no medical reason why Mr. Vann could not perform the duties of his job as a counselor in June 1988. On June 16, 1988, Vann received a letter advising him that he was not authorized to be absent from work and directing him to report for work. Mr. Vann did not respond to this letter. On September 27, 1988, another letter was sent to Mr. Vann advising him that because he had failed to contact the Department since June 9, 1988, or to report for work since that time, his resignation from the career service had been accepted under Rule 22A- 7.010(2)(a), Florida Administrative Code. Mr. Vann was absent from work without authorized leave for more than three consecutive work days beginning June 8, 1988.
Recommendation Based upon the foregoing, it is RECOMMENDED that a final order be entered by the Secretary of the Department of Administration finding that Mr. Vann abandoned his career service position. DONE and ENTERED this 28th day of April, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 28th day of April, 1989. APPENDIX The following are the rulings on proposed findings required by Section 120.59(2), Florida Statutes. Petitioner's Proposed Findings Adopted in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 4. Covered in finding of fact 4. Rejected as unnecessary. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 6. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 8. Rejected as unnecessary. Adopted in finding of fact 9. Respondent's Proposed Findings Respondent submitted a letter rather than findings of fact. The contention that this proceeding is an attempt to avoid the Department's duties under the workers compensation laws is rejected as unsupported in the record. The medical evidence Respondent refers to in his letter was not submitted at the hearing; the evidence submitted by the Department was persuasive. COPIES FURNISHED: Carmen Dominguez Frick, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Suite 5424 Miami, Florida 33128 Herman Lewis Vann 671 Northwest 179 Street Miami, Florida 33169 Larry D. Scott, Esquire Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R.S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact Ms. Osteen is employed by the School Board as a content staffing specialist in the Exceptional Student Education (E.S.E.) program. Her duties include the placement and monitoring of students in the Leesburg area that are identified as exceptional students. Ms. Osteen is responsible for declaring she student's eligibility for the program and for effectuating placement of those students. At times, in her duties as a staffing specialist, Ms. Osteen determines the number of hours of instructions that E.S.E. students are to receive and prepares individual educational plans (IEPs). As an additional duty, Ms. Osteen is employed as a homebound teacher, carrying out those tasks after the completion of her normal work day which is from 8:00 a.m. until 3:30 p.m. She was the homebound teacher assigned to William (Billy) Vickery during February and March, 1988. Homebound teachers in the Lake County School System are compensated by submitting a monthly time sheet to the Exceptional Student Education Office. They are paid on an hourly basis cumulative over the month based upon the number of hours actually worked. Payment is only for instructional time with the student, not driving or commuting time. NOTE: PAGE 4 OF THIS RECOMMENDED ORDER IS UNAVAILABLE The composite of the four (4) different F.T.E. weeks determines the money a particular child earns in the system. Instruction of Billy Vickery by Ms. Osteen from February 17, 1988, through February 29, 1988, would have no impact on the F.T.E. count for the Lake County School System because it was after the count and the window period. There is no window period after the F.T.E. week. The entire staff is notified of the F.T.E. periods as they are published near the beginning of the school year. Teachers typically are not, however, involved in reporting the F.T.E. Nancy Vickery, Billy Vickery's mother, made a complaint to the Superintendent's office, in early February concerning Ms. Osteen's performance. Ms. Vickery explained that her concern was the amount of time Billy was receiving in homebound instruction. Ms. Vickery knew that Billy was to receive eleven (11) hours from Ms. Osteen weekly. After Ms. Vickery's conference with the school personnel, she began keeping, at their request, a record of the amount of time Ms. Osteen actually spent instructing Billy. Subsequently, Ms. Vickery created a summary of her time records and submitted it to the School Board. From February 10, 1988, through February 16, 1988, Ms. Vickery reported that Ms. Osteen spent approximately two (2) hours in homebound instruction of Billy. From February 17, 1988 through February 29, 1988, Ms. Vickery reported approximately three (3) hours by spent by Ms. Osteen in homebound instruction of Billy Vickery. After Ms. Vickery's complaint, the School Board hired an independent investigator to make a surveillance report of the number of hours that Ms. Osteen was in fact at the Vickery residence from February 17, 1988, through the end of the month. The surveillance report showed that Ms. Osteen spent two (2) hours and fifty-seven (57) minutes at the Vickery home from February 17, 1988, through the end of the month. Ms. Osteen submitted a time record to the School Board indicating that she had worked a total of forty-four (44) hours during February in the homebound program of instruction of Billy Vickery. Ms. Osteen claimed eleven (11) hours during the week of February 10, 1988, through February 16, 1988, and nineteen (19) hours from February 17, 1988, through the end of the month. Ms. Osteen admitted that she did not put in the hours claimed. In fact, she also admitted not working during the F.T.E. week, February 8, 1988, through February 12, 1988, and not giving Billy Vickery eleven (11) hours a week instruction from February 1, 1988, through February 17, 1988. The homebound teacher keeps a daily planning book, an attendance register, and a copy of the individual education plan as well as time sheets. Ms. Osteen conceded that homebound teachers are required to keep an attendance register, but that she used her register as a grade book instead. Ms. Osteen claimed that she used her plan book as an attendance registry, but acknowledged that it did not accurately reflect the days that Billy was instructed. Ms. Osteen did not keep an attendance record. Ms. Osteen's plan book is filled in retroactively, meaning that she makes entries for what she had done with Billy, as opposed to planning what she will do. The plan book does not accurately reflect the times or dates spent on the material and Ms. Osteen conceded she filled in the February plan in March with work done partly in March. Mr. Osteen made retroactive entries in the registry, coordinating it with the plan book, and the registry did not reflect what happened on any particular day. Ms. Osteen's testimony was confusing and contradictory regarding the actual instruction given Billy, especially in math. From the records presented and Ms. Osteen's testimony, it cannot be determined what actual instruction hours were given to Billy. Eight (8) witnesses testified either that Ms. Osteen's reputation was that of a truthful person or that they would believe her. Ms. Osteen was described as meticulous, conscientious, thorough and as one who follows the book. Ms. Osteen expected to be paid for the time that she turned in for February claiming that she planned to complete the work and make up the time before pay day. Ms. Osteen claimed that she did not intend to defraud the school system of any money. Ms. Vickery kept a time record for Ms. Osteen's visits to the Vickery home from March 1, 1988, through March 11, 1988, noting that Ms. Osteen made one visit for four (4) minutes and one other visit to have Ms. Vickery sign the time sheet. Ms. Osteen disputed Ms. Vickery's records, claiming that in March she had made up eight (8) hours of the time turned in for February. However, even Ms. Osteen admitted that by the end of the first week in March, she would have owed Billy the eleven (11) additional hours he was entitled to for that week. According to Ms. Osteen's own computations, she still owed Billy ten (10) hours from February. Thus, by March 10, 1988, Billy Vickery was behind twenty-one (21) hours in instruction by Ms. Osteen's own admission. Ms. Osteen's computations are, however, incredible in view of the surveillance report and testimony of Mrs. Vickery. In fact, by March 10, 1988, Billy Vickery was owed at least sixteen (16) hours of instruction for the time period of February 11, 1988 through February 29, 1988, additional hours for the F.T.E. week, and eleven (11) hours for the first seven (7) days of March. The March time records refute Ms. Osteen's claim that she intended to make up the February time. She continued instead to fall further behind with the hours of instruction due. Ms. Osteen attempted to explain her reporting of hours not spent with Billy Vickery by claiming that if she had not, the child would have been denied his entitlement and the County would have lost its F.T.E. There was no basis in fact for these assertions. Ms. Osteen may have believed this, but was incorrect. Ms. Vickery kept a child during the month of February that was ill with Scarletina. Ms. Vickery also conceded that Sandy had illnesses during the time that she taught Billy and had advised her that Ms. Osteen's son had pink eye. However, illness is not relevant to the issues of falsification of the time or attendance records. Ms. Osteen claimed that there was precedence for her falsification of the records, including the fact that she had falsified the time records before for Billy Vickery as well as for another child. Further, Ms. Osteen claimed that School Board personnel falsified records all of the time. The Lake County School Supervisor of Exceptional Student Education conceded that a teacher on occasion is allowed to swap time, but that the practice was not encouraged. Such a request must be written and signed by both the teacher and the supervisor. That was not done in this case. Homebound teachers sometimes extend the time sheet forms to include Saturdays and Sundays as well as holidays in order to accurately report hours worked. Homebound teachers are encouraged to perform the homebound instruction on Monday through Friday and to consider the educational principles that it is better to do small chunks at a time rather than one extended day on a Saturday. Ms. Osteen had turned in a time sheet the last day of school before Christmas vacation reflecting hours not given at that time for a previous student. Additionally, in 1987, Ms. Osteen had been unable to complete the last week in May for Billy Vickery but turned in the time sheet claiming the hours as she had in the past. Ms. Osteen stated that she went back in June to give the additional instruction and that this procedure was approved by her supervisor. Apparently, it was common practice in the Lake County School System for IEPs to be corrected by back-dating, obtaining signatures at a later date, and placing check marks in appropriate places. These corrections were made to reflect what actually had happened. Information known not to comport with the facts was not, however, placed on forms. While it is a common practice for employees to make corrections in forms, it is not an accepted practice to create false statements on forms or records. Witnesses testifying concerning record corrections consistently drew a distinction between falsifying documents and making corrections to reflect what had actually occurred. No falsification of documents was reported.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lake County enter a Final Order finding Sandra Osteen guilty of the violations set forth above and dismissing her from her employment in the school system. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2029 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, SCHOOL BOARD OF LAKE COUNTY Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-16(1- 16); 18-39(17-38); 41(39); 42 & 43(40); and 44(41). Proposed finding of fact 17 is unnecessary. Proposed findings of fact 40, 45 and 46 are rejected as being argument and as relating to legal conclusions. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, SANDRA OSTEEN Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(1 & 2); 7(8); 10(17); 12 & 13(32); 19 & 20(38); and 22(39). Proposed findings of fact 3-6 and 11 are unnecessary. Proposed findings of fact 8, 9, 14-18, and 23-26 are subordinate to the facts actually found in this Recommended Order. Proposed findings of facts 27 and 28 are rejected as being argument and as relating to legal conclusions. COPIES FURNISHED: Walter S. McLin, III, Attorney at Law Post Office Drawer 1357 Leesburg, Florida 32749-1357 Richard H. Langley, Attorney at Law Post Office Box 188 Clermont, Florida 32711 Freddie G. Garner, Superintendent The School Board of Lake County, Florida 201 West Burleigh Boulevard Tavares, Florida 32778 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 ================================================================= SETTLEMENT AGREEMENT =================================================================
The Issue The issue in this case is whether Respondent's employment contract with Petitioner should be terminated for violation of School Board policies.
Findings Of Fact Petitioner is the local school board responsible for hiring, firing and overseeing all employees working for the School Board and/or within the Lee County Public School system (also called the "School District" herein). Respondent is an employee of the School Board, serving as an electronics field technician in the School Board's maintenance department. Respondent has worked for the School Board off and on since 1996, when he was a school bus driver. He has been an electronics technician since 2000. In that position, Respondent oversees the maintenance and repair of clocks, alarms, intercoms, scoreboards, sound and lighting systems, burglary systems, and the like for all schools within the School District. Respondent has never received any form of discipline from the School Board. His record is clear, and he has been commended for his work. His work ethic was viewed by others as consistent with that of similarly-situated employees (although Respondent may take more breaks than others). School District maintenance workers work an eight-hour work day, commencing at 7:00 a.m. (per provisions of the SPALC Contract and Collective Bargaining Agreement). Each worker is expected to arrive at the maintenance area on Canal Street (hereinafter "Canal Street") and be ready to commence work by 7:00 a.m., each morning. The work day generally starts with a briefing of sorts to make sure each worker is aware of his/her tasks for the day. After the briefing, workers pick up tools and supplies from various locations around the Canal Street area and then proceed to the first school site requiring performance of an assigned task. A work day for Respondent could involve driving to any one of the numerous school campuses within the School Board's jurisdiction. Workers are given 30 minutes for lunch each day, including the time it takes to drive to and from the lunch site. In addition, workers are allowed two 15-minute breaks, one in the morning and another in the afternoon. Again, the break time includes the time taken to drive to a break site, if the employee decides to take a break at other than the place he/she is working at that time. Employees are not permitted to do personal business or make unauthorized stops during the work day without prior permission from a supervisor. Respondent is a member of the U.S. Naval Reserve and currently holds the rank/level of E5. He attends regular weekend drills each month and also spends two weeks each year on temporary active duty. Respondent has been in the reserves throughout his tenure with the School Board. There has never been an issue between Petitioner and Respondent concerning Respondent's military status or his taking two weeks each summer to attend to his military duties. Respondent is proud of his military service, as evidenced by the fact that he wore his military uniform during both days of the final hearing.1 In May 2008, Respondent spent 17 days on active duty, serving in Bahrain. This was Respondent's active duty requirement for calendar year 2008. However, he then volunteered for an additional period of active duty in July 2008. This second active duty stint was done in furtherance of his military career and at the suggestion of a superior officer. It was strictly voluntary, but Respondent felt somewhat compelled to "volunteer" based on his superior's comments. Respondent then did his second active duty stint beginning June 28, 2008, and ending July 27, 2008. This period of time coincided with the maintenance department's busiest time for its electronics technicians. The maintenance department annually used the time in between school terms to get various maintenance items completed while it would be the least disruptive to students in the classrooms. The summer period is used to "clean up" things that remain pending from the school year. It is clear that Respondent's supervisors were not happy that Respondent had volunteered to be absent during this busy time, but Respondent was allowed to go on active duty anyway. This left the School Board short-handed as to its needed electronics technicians for that period of time. Respondent's supervisor expressed concern to Respondent about this second period of active duty, specifically that it was occurring during the summer break. Respondent recognized the strain this additional leave put on his co-workers and apologized for that fact. Respondent assured his supervisor it would not happen again. Upon his return from the voluntary active duty, Respondent was told that he was being placed on "suspension of driving privileges," meaning that he could not drive School Board vehicles until further notice. This suspension was based on information gleaned from review of data generated by a new tracking system being used in School Board maintenance vehicles (which will be discussed below). Respondent is of the opinion that the suspension was some sort of retaliation for his having gone on the second active duty tour during June and July. The Global Positioning System--Background Beginning in May 2008, the School Board decided to install global positioning system (GPS) devices in all of its maintenance vehicles. The installation began with 50 randomly selected vehicles of the 150-vehicle fleet. The purpose of the GPS devices was to track School Board vehicles and assure that all vehicles were being utilized properly and in accordance with School Board policies. This measure was prompted by repeated complaints from the public about maintenance vehicles being seen involved in non-school activities or at non-school locations. The GPS system in Respondent's maintenance vehicle was installed on May 22, 2008. The signal from the GPS was instantaneous, but required calibration and installation of certain software before it could be effectively utilized. The GPS became fully functional on June 20, 2008, at 10:07 a.m. The GPS system tracked the location, speed, and duration of stops for the vehicle. This data was maintained on a computer server which could print maps showing a vehicle's movements on any given day or time. The maps could be annotated with the vehicle's speed, length of stay at any one location, and actual driving route. On or about June 27, 2008, William G. Moore, director of School Support for the School Board, was being given a course on the use of the new GPS system and how it worked. During his training, Moore randomly selected some vehicles to review, solely for the purpose of ascertaining how the system tracked and recorded information. One of the vehicles Moore randomly selected was vehicle No. 423, which turned out to be Respondent's work van. Moore did not know Respondent personally and did not know to which of the 150 or so School Board vehicles any one person was assigned. Moore then selected June 26, 2008, randomly as a record to review as part of his training. The June 26, 2008, record for vehicle No. 423 immediately raised red flags in Moore's mind. He observed that the vehicle was at a non-school site for over three hours (although it was later determined to be a training site and a legitimate stop). The vehicle was also shown entering a residential community (although again it was later determined that the driver had permission for that trip). However, based on his initial determination that something was amiss and not having any explanation for those instances, Moore decided to more fully examine the route history for vehicle No. 423. First, he determined that this vehicle was assigned to Respondent. (The vehicle will hereinafter be referred to as the work van.) Moore's further investigation turned up a number of questionable stops and trips by the work van during the period June 20 through June 27, 2008. The findings of his investigation will be set forth in pertinent part below on a day-by-day basis, coupled with explanations from Respondent as to each day's activities. Friday, June 20, 2008 At 10:07 a.m. (when the GPS first started working), the work van was departing from Ft. Myers High School ("Ft. Myers High") en route to Estero High School ("Estero"). Upon arrival at Estero, the van remained parked for five minutes, then left the parking lot and drove around the building to the front entrance of Estero for a period of one minute. Leaving Estero, the work van headed to a residential neighborhood known as the Bimini Circle Subdivision, where it stayed for 11 minutes. The work van then proceeded to a 7-11 Store where it remained for 35 minutes. The next stop was back at Estero where the work van remained for one hour and 46 minutes. At 2:00 p.m., the work van left Estero, stopped briefly at the 7-11 Store, then returned to Canal Street at 2:59 p.m. The School Board perceived several violations of policy gleaned from the information on the GPS for the work van during the June 20, 2008, work day: First, the work van was at Estero for a total of two hours and 13 minutes on this date. The total time at Ft. Myers High for this date is not detailed by the GPS, but would presumably be approximately two and a half hours, i.e., allotting time for driving from Canal Street up until the GPS turned on at 10:07 a.m. Respondent's daily activity log indicates five hours at Estero and three hours at Ft. Myers High. Respondent took two unauthorized stops at a store, presumably for personal reasons, and then spent 11 minutes at a residence during work hours. Respondent took in excess of 30 minutes for his lunch hour (35 minutes at a location, plus an undisclosed amount of time driving to and from that location). Respondent took a longer route back to Canal Street than necessary, presumably wasting time. (Employees were expected to work the entire day, then return to Canal Street precisely at 3:00 p.m. A 30-minute debriefing session, return of tools, etc., would occur and then employees would be released from duty at 3:30 p.m. Employees were told repeatedly NOT to return to Canal Street until 3:00 p.m.) Respondent explained his actions and refuted the School Board's concerns as follows: Upon leaving Canal Street that morning, Respondent went directly to Ft. Myers High and remained there until 10:07 a.m. The rest of his day, approximately five hours, was dedicated to work at Estero, but included travel time, breaks, and lunch. The two hours and 13 minutes actually at Estero should be supplemented by driving time to the school from Ft. Myers, driving time to his breaks and lunch, driving time to and from his personal errand, and driving time back to Canal Street. Respondent remembers asking for and receiving permission to stop by his wife's house (the residence in the Bimini Circle Subdivision) to retrieve his wallet. The stops at 7-11 Stores were for lunch and two allowable breaks. The longer route back to Canal Street was taken in order to avoid an accident on the shorter route. During June of 2008, technicians would fill out their daily work logs using rounded estimates of time. They made no attempt to precisely state exact periods of time spent at any one job site. Rather, the daily logs were a very general statement of which job sites had been involved in the employee's work that day. (This procedure has subsequently changed, but was extant at all times relevant hereto.) It is clear Respondent took a longer than allowable lunch break on this date. Further, the time taken for breaks, if drive time was included, was in excess of the allotted amounts. It is clear Respondent was actually at Estero for only about half the time recorded on the daily work log. However, under the procedures in place at that time, the work log time entry was not dispositive of his actual time at the site. Monday, June 23, 2008 On this date, the School Board gleaned the following violations of policies from its review of the GPS log: Respondent was at Estero for two hours and nine minutes, but his daily work log indicates six hours at Estero and two hours at Gateway Elementary. The work van made stops at McDonalds and Bank of America on the way to Estero, then at the Bimini Circle address for eight and a half minutes after leaving Estero. Petitioner says any stops for personal business are strictly prohibited while in a School Board vehicle. After a 47-minute stop at Dairy Queen, the work van then proceeded to Gateway where it stayed for approximately two hours. Upon leaving Gateway, the work van stopped at Home Depot--an unauthorized stop--for about 18 minutes. Respondent provides the following explanation and rebuttal concerning the School Board's concerns for that day: Again, his work sheet indicates the correct amount of time actually at Gateway. The remainder of his day, including all travel, breaks, and lunch, was allocated on this time sheet to Estero no matter how long he was actually there. The stops at McDonalds and Bank of America were simply to allow his co-worker (Sheryl Reed) to get an iced tea and to get money for lunch. Respondent maintains that these types of stops were not specifically prohibited and were common practice. Respondent maintains the stop at his wife's house was his break time (although a stop at McDonalds and Bank of America had already occurred that morning). The 47-minute lunch hour was caused by Respondent simply losing track of time. That is, he admits that it was a longer lunch break than allowed, but it was not done intentionally. The stop at Home Depot was to obtain a coaxial wire needed for the Estero job, but the wire was not available. Employees are allowed to shop at local retail stores to acquire equipment or supplies not available through the School Board. However, all such purchases must be made by way of a purchase card (P-Card) so that purchases can be tracked. There is no P-Card receipt for the Home Depot visit on this date, but Respondent maintains that is because no purchase was made. That is, the coaxial wire he was looking for was not available. Reed said that Respondent made personal purchases from Home Depot and Lowe's on occasion during the summer of 2008 (because he was in the process of remodeling his house). He had purchased floor tiles and other items a couple of times a week that summer. However, she cannot remember whether he purchased anything on that particular date. Respondent admits that he did make purchases of home improvement products during work hours and transported the products in the work van to his house. He does not remember making any such stops for purposes during the week of June 20 through 27, 2008. Tuesday, June 24, 2008 On this date, Respondent's daily work log indicates three hours spent at Gateway and five hours spent at Island Coast.2 The GPS indicates the work van was at Gateway for three hours and at Island Coast for one hour and 40 minutes. The School Board also found the following other policy violations: A stop at Weaver's Corner for 36 minutes and 40 seconds, presumably a long lunch made longer by travel time to and from the lunch venue. An unauthorized visit for eight minutes and 40 seconds at a bank. A visit to a gas station for eight minutes, then a short drive to another gas station for five minutes. Respondent provides the following explanation and rebuttal to the School Board's findings: As before, the extended period of time for the Island Coast job site includes travel, breaks, and lunch. However, it would have been more accurate on this day to have split the two job sites equally. The stops at the gas stations were intentionally made so as not to return to Canal Street before the allotted 3:00 p.m., return time. Respondent does not provide any explanation for the longer than allowable lunch break. Wednesday, June 25, 2008 There were three stops on this date listed on Respondent's daily work log: Island Coast (4 hours), Dunbar Community (2 hours), and Ft. Myers High (2 hours). The GPS indicates the work van was at Island Coast for two hours and 11 minutes; at Dunbar Community for 11 minutes and 20 seconds; at Villas Elementary for one hour and 14 minutes; then at Ft. Myers High for four minutes and 40 seconds. Other perceived policy violations included: A short stop at a bank in the Wal-Mart parking lot upon leaving Canal Street. A lunch stop of 42 minutes and 30 seconds, not counting driving time to and from the restaurant. Another stop at Bank of America for in excess of ten minutes. A short, seven and a half-minute stop at a shopping center. Respondent provided the following in rebuttal and response to the School Board's perceived violations of policy: The quick stops at the banks were not prohibited and were common practice. They may have been part of Respondent's break time on that date. The lunch hour ran over, but was not excessive or intentional. It may have also included part of a break he never took that day. Thursday, June 26, 2008 This is the date that Moore initially reviewed in his training session that raised red flags concerning Respondent's time issues. On this date, the daily work log indicates seven hours in training and one hour at Villas Elementary. The School Board's concerns about this date are set forth above, but would also include: An authorized trip during the lunch hour for Respondent to retrieve a lap top which was being delivered by overnight delivery (so the computer would not be left sitting on the front porch). This trip which took approximately 18 minutes, of which 30 seconds was spent stopped at his house. Respondent also took time for lunch before returning to the training site. A circuitous, out-of-the-way route between the training site and the next job site (Villas Elementary). A short stop at a 7-11 Store and then a longer-than- usual route back to Canal Street. Respondent's explanation and rebuttal to the School Board's concerns were as follows: Respondent had permission to make a quick visit to his home during the lunch hour to see why his home alarm had activated. (He does not remember anything about a lap top or a need to retrieve it.) Respondent says that in the 30 seconds his work van was at the house, he exited the vehicle, walked to the house, unlocked the door and entered, turned off the alarm (which had been activated by his dog, who had escaped from his kennel), put his dog back in its kennel, re-set the alarm and left. Respondent was able to do his personal errand and get to the restaurant and eat lunch with his co-workers within the time (one hour) allotted for lunch that day by the trainer. The circuitous route was for the purpose of delivering some money to his daughter at her school. She was waiting for him outside, and he didn't even have to stop the work van to hand off the money. Rather, his daughter reached out and grabbed the money as he rolled past. The stop at the 7-11 Store was to use the rest room. Respondent's testimony concerning the stop at his house is not entirely believable. It would seem to take more than 30 seconds to accomplish the things that he did. However, inasmuch as he made the stop and was still able to join his co-workers in time for lunch, the reason for his home visit is immaterial. Also, the rolling delivery of money to his daughter is very unusual, but there is no evidence that the exchange did not take place in that fashion. Friday, June 27, 2008 This day's daily work log indicates three work sites: Dunbar Middle School (4 hours), Ft. Myers High (2 hours), and Cypress High School (Cypress High)(2 hours). The GPS indicates 33 minutes and 50 seconds at Dunbar; one hour and 47 minutes at Ft. Myers High; and five minutes and 50 seconds at Cypress High. The work van then went back to Dunbar for one hour, 51 minutes and 30 seconds. The School Board's other concerns about time and travel on this date are as follows: After leaving Canal Street that morning, the work van made stops at McDonalds for three minutes and at Lowe's for 15 minutes. There is a stop of one hour and eight minutes at a shopping plaza, presumably a long lunch hour. Respondent's response to the allegations of policy violations for this day are as follows: The McDonalds visit was again an allowable stop (as he understood the policies) for his assistant to get an iced tea. The Lowe's stop was for the purpose of getting concrete anchors needed for a School Board job, but none were available and so no purchase was made on the P-Card. The long lunch hour was just that; he was not thinking clearly because this was just one day prior to going on active duty and he was preoccupied with those thoughts. The extra driving time was due to the fact that after leaving Dunbar, Respondent was called on the radio to go back there for an emergency job. The daily work logs do not correspond exactly with Respondent's work day because that was not the purpose of the logs. The logs were, at that time, simply an indicator of which schools had been visited on any given day. There was no effort by anyone to be exact or precise with the times recorded on the daily logs. The daily logs are essentially of no value in determining where an employee might have been at any point in time on any given day. There is no way to reconcile the GPS times with the daily work logs. Each employee is expected to work a full day. If the number of tasks assigned during the morning meetings at Canal Street did not fill a technician's day, he/she was expected to locate additional work or do work on an on-going project to fill the day.3 Nonetheless, it is often difficult to coordinate a day's activities to make the assignments equate to the exact hours and minutes in a work day. A large part of an employee's time during the work day is spent driving his/her vehicle. The driving time is supposed to be factored into the time spent on a particular work site. Thus, if it took 30 minutes to get to a work site, that time would be added to the time spent actually at the site. Then, when driving to a subsequent work site, the drive time would be assigned to that next site, etc. Employees are on their honor to take breaks and lunch only when allowed and for the time allotted. There is no time clock, so each person must attempt to keep time themselves so as to honor the allotted times. This is often difficult due to slow service at a restaurant, inability to take breaks at a particular time, or other factors. The GPS system has provided the School Board with an effective tool for monitoring its employees' movements and location. However, at all times relevant hereto, the GPS system was in its infancy and the School Board was still learning how to assimilate and read the data generated by the system. Thus, Respondent's activities from June 20 through June 27, 2008, were examined in a way no other employee's had been looked at heretofore. It is, therefore, hard to make a comparative determination of Respondent's actions versus an established norm. Nonetheless, the School Board's findings are supported by the GPS data. That is, the daily work logs are not consistent with time actually spent at particular job sites. Respondent's lunch breaks exceed the allotted 30-minute time period almost every day that was examined. There are stops at local establishments that are not part of the employee's work duties. Some of the routes taken by an employee are not the shortest routes, although it is impossible to ascertain whether they are the best routes based on other extraneous factors. The time spent on breaks, versus travel time, is hard to ascertain with any degree of certainty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, rescinding the notice of termination and imposing a less stringent penalty, e.g., a period of probation, a letter of reprimand and/or some remedial training, against Respondent, Christopher Rasmussen. DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 22nd day of June, 2009.
Findings Of Fact Respondent was employed as building inspector of Suwannee County on or about November, 1974. and was terminated by action of Petitioner at a meeting on or about September 18, 1980. Respondent received a letter dated October 14, 1980 from Claude McDonald, Chairman, Suwannee County Board of County Commissioners, listing the following reasons for his termination: Gross neglect of duty. Absence without leave. Incompetence or unwillingness to render satisfactory services. Insubordination or serious breach of discipline. Habitual absences, tardiness or abuse of sick leave. Substantial violations of personnel regulations. Falsifying travel records. Fraudulent claims filed with the Board of County Commissioners `for reimbursement of travel expenses to job sites for inspections when, in fact, such inspections were not made, or in the alternative, making inspections which were not documented by signing building permits as required by established procedures. Respondent was the first building inspector for Suwannee County and established all of the procedures and forms used in the building department. He was bound by the personnel and fiscal regulations of Suwannee County, but was given a substantial degree of independence in setting up the building department, and thereafter in conducting the daily work of the department. In establishing and administering the department, Respondent consulted with other building inspectors and officials. In January, 1975 Respondent hired Connie Robinson as his secretary, and in February, 1979 he hired Pat Sura to be his assistant building inspector. Sura is now building inspector for Suwannee County. The evidence establishes that the regular business hours of the building department while Respondent was building inspector were from 5:00 a.m. to 5:00 p.m. This is consistent with the county's policy and with the practice of other county offices. Both Connie Robinson and Pat Sura, "employees" of the building department, testified that they worked from 8:00 a.m. to 5:00 p.m. Respondent would regularly arrive at the office at about 5:30 a.m., but he frequently conducted official county business both before arriving at the office and after leaving in the evening by visiting job sites. The building inspector is a "department head" as that term is defined in Part I, Suwannee County Personnel Regulations, and as such is exempt from a 8:00 a.m. to 5:00 p.m. work day and the 40 hours per week required by Part XIV, Section C, Suwannee County Personnel Regulations. Therefore, the evidence establishes that the "employees" of the building department maintained work hours consistent with applicable personnel rules at all times relevant herein, and also that Respondent's own work hours were not violative of applicable personnel rules. As a "department head", Respondent did not accrue compensatory time or earn over-time pay for hours worked beyond forty hours a week. Department heads were expected, when the need existed, to work more than forty hours a week. Respondent did earn vacation and sick leave. In order to use earned vacation or sick leave, Respondent was required to submit a request for leave as provided in Part XVI, Sections A4 and 55, Suwannee County Personnel Regulations. The evidence establishes that Respondent was absent from his office and did not perform official duties for the county on the following dates, although he was paid for work on these dates and did not submit a request to use either vacation or sick leave: February 5-12, 1980; June 3-13, 1980; September 15-16, 1980. This finding is based on the testimony of Connie Robinson and Pat Sura. Although Respondent called the office once during the February absence, notified the Board of County Commissioners in advance that he would be gone for two days during the June absence to attend an educational seminar in Orlando and also that he would need some additional time off due to his son's medical emergency, and had his wife call the office and leave a phone number where he could be reached during the September absence, Respondent never submitted a request for leave for any of this time. This failure followed a formal written warning concerning the use of leave issued by the Chairman of the Board of County Commissioners to Respondent on December 6, 1979. Despite being absent from the office without claiming leave on the dates specified in finding of fact 7 above, Respondent submitted false reports to the county indicating that he had conducted inspections on June 6 and 9, 1980 when in fact he was in Orlando for his son's medical emergency and for an educational seminar. From February 24, 1979 to November 21, 1979, Respondent was in the process of building his house. He did not use a general contractor, but rather acted as an owner-builder. There is conflicting testimony as to whether Respondent was absent from his job without claiming leave during this time, and whether he spent time during his normal working hours working on his house, rather than as building inspector for Suwannee County. After considering all of the evidence, it is specifically found that Respondent did take unreported time off during his normal work day to either work on his house, receive materials on site, or check on contractors who were working on his house. The frequency of his visits with these contractors indicates that these were not normal inspections made during the course of his duties as building inspector. This finding is based upon the testimony of Connie Robinson, Pat Sura, Respondent himself, and also Buddy McCall, Anthony Donald Selph, Jan Touchton and James Benton who either worked on Respondent's house or delivered materials to the job site between 5:00 a.m. and 5:00 p.m. during this time, and who testified that Respondent was regularly present on the site between the hours of 8:00 a.m. and 5:00 p.m. This finding is specifically made after considering the contrary testimony of Raymond Key, and Alfred Smith, and Respondent's denial that he took unreported leave to build, or worked on his home during his normal work hours. Although the exact number of unreported days off which Respondent took to work on his house in 1979 cannot be determined, there is competent substantial evidence based on the testimony of Connie Robinson and Pat Sura that Respondent took between 15 and 20 work days off between May and August, 1979 and did not report these absences. Respondent was paid his normal salary for these days by Petitioner. In May, 1980 Respondent was asked to submit a report to the Board of County Commissioners on the number of inspections he had personally made during the preceding twelve months, and thereafter to submit monthly inspection reports to the Board. This request was made on behalf of the Board by Jerry Scarborough, Clerk of the Court and Clerk to the Board. Claude McDonald, Chairman of the Board in 1950, testified that Commissioners had been receiving some complaints from the public that Respondent was frequently absent from his office, and that he was spending time at the real estate office of Robert Mahan where his wife worked. Robert Mahan confirmed that Respondent visited his wife during normal work hours quite often. Respondent reported to the Board of County Commissioners that he had made between 200 and 250 inspections during the preceding year while Pat Sura had made approximately 1200. He explained the difference was due to the fact that he had other duties, such as Public relations and administration, while Sura's sole job was to make inspections. However, subsequent to the request for regular reports which was made in May, 1980, the number of days per month when Respondent reported that he had conducted inspections increased substantially. Specifically, from January to April, 1980 he averaged inspections on 3 days per month while from May to August he averaged inspections on 11 days per month, according to his reports. From the evidence presented, it is found that Respondent did copy Pat Sura's inspection reports and submit them as his own regarding some of the inspections he reported after May, 1980. The exact number of falsified inspection reports cannot be determined, but it is clear that Respondent falsely reported an increased number of personal inspections in response to the request by the Board. From the evidence presented, it is also found that Respondent falsely claimed travel expense reimbursement for inspections which, in fact, he did not make on April 14 and 15, 1980 and September 2-4, 8, 9, 1980. The reimbursement received for travel associated with inspections during this time was less than $100, but it cannot be determined exactly how much of this claim was false. It is clear, however, from an independent audit conducted by Steven Collins, C.P.A., that the system for documenting travel expenses does not support a substantial number of the inspection trips claimed by Respondent on these vouchers. Respondent sought to explain the matters in findings of fact 12 and 13 by contending that on most of the inspections he made, he did not sign the building permit. However, he acknowledged that it was standard practice for the inspector to sign the permit when he made an inspection. Respondent indicated that his visits to a building site were not always formal inspections and that he might simply stop by to check up on a contractor or on the work of Pat Sura, or to make a public relations visit. Notwithstanding the possibility that some of his site visits and reported inspections may have, in fact, occurred as uncalled, surprise visits, a substantial number of these visits and inspections, as well as associated travel vouchers, were falsified by copying Pat Sura's inspection reports. On May 22, 1981, Lynn B. Martin, Appeals Referee, Unemployment Compensation Section, determined that Respondent was disqualified from receiving benefits for having been discharged for misconduct connected with his work. Respondent was not represented by counsel in that proceeding.
The Issue The issue at hearing was whether Respondent Department of Health and Rehabilitative Services correctly denied Petitioner Michelle King's application for emergency assistance to needy families with dependent children under Title IV-A of the Social Security Act.
Findings Of Fact Petitioner is the single mother of a son, three and one-half years old. At all times material to this proceeding, Petitioner was a full-time employee of a state agency. Her income was approximately $1,150 per month. She received no child support for her son. Her rent at Azalea Gardens Apartments was $385 per month. Petitioner's child attended day care at the Child Development Center of Central Florida Community College (CFCC Lab School). The child's father paid the cost of day care in the amount of $245 per month. In June of 1995, the child's father suffered an injury and was unable to work. He no longer paid the day care bill. At the same time, Petitioner had to pay some medical bills for her son. As a result, Petitioner was behind on her day care payments. On July 7, 1995, Petitioner's landlord notified her that she had until July 12, 1995 to pay her rent and late fees. At that time, Petitioner owed rent in the amount of $385 together with a $22 late fee and two dollars per day until the rent was paid in full. On July 25, 1995, Petitioner's landlord notified her that she had until noon the next day to pay $443 in rent and late fees to avoid eviction proceedings. In the meantime, Petitioner contacted Respondent seeking assistance to pay her delinquent rent, utilities and day care costs. Respondent's caseworker initially referred Petitioner to the Salvation Army and other local charities. However, there were no community resources available to meet Petitioner's past due bills. On the advice of Respondent's caseworker, Petitioner applied for cheaper housing at Hilltop Manor Apartments and for a cheaper day care program. Petitioner was placed on waiting lists for federally subsidized housing and child care programs. On July 31, 1995, Petitioner applied for emergency assistance for needy families with children under Title IV-A of the Social Security Act. The application requested retroactive payment of one month's rent in the amount of $455 and prospective payment of day care cost for two months in the amount of $945. While Petitioner's application was pending, she was able to pay her landlord enough money to forestall eviction. However her total debt increased. The application was amended to include a request for three months day care cost and additional late fees for failure to pay rent in a timely manner. Petitioner's lease at Azalea Garden Apartments expired at the end of August, 1995. About that time, Petitioner learned that she would be able to move into Hilltop Manor Apartments at a significantly lower rental. She informed Respondent's caseworker about her success in securing more affordable housing. Petitioner anticipated moving into her new apartment on September 1, 1995. She withdrew her child from day care and sent him to visit with his father while she made the move. By letter dated September 1, 1995, Respondent's caseworker informed Petitioner that her application for funding had been denied because she was no longer living at Azalea Gardens Apartments and her son no longer attended day care at the CFCC Lab School. This letter did not advise Petitioner that she was entitled to a hearing if she believed Respondent improperly denied her application. Petitioner was able to move into her new home on or about September 4, 1995. She enrolled her child in a day care program near her residence. Petitioner forfeited her security deposit at Azalea Gardens Apartments when she moved out. She continues to owe an undetermined amount of money to Azalea Gardens Apartments and the CFCC Lab School. Respondent sent Petitioner a Notice of Disposition dated September 8, 1995, as a formal determination that she was not eligible for emergency assistance. This notice explains that Petitioner was not approved because she was able to make other arrangements for housing and day care. The notice also advised Petitioner of her right to a hearing.
The Issue Whether Petitioner is eligible to participate in the Florida Retirement System based on his employment from January 29, 2001, through June 30, 2004.
Findings Of Fact The Secretary of the Department of Management Services through the Division is the administrator for the FRS. FRS was established by the State of Florida to provide pension benefits to eligible employees of the State of Florida and county agencies, including county school boards. Petitioner, George Tamalavich ("Petitioner" or "Mr. Tamalavich"), attended Fitchburg State College in Massachusetts, where he received a certificate for teaching in the trade industry. Prior to coming to Florida, Petitioner taught at the Worchester County Trade School for eight years, and participated in the Massachusetts State Pension Plan. In 1990, Petitioner relocated to Florida and obtained a part-time position, first for two days a week, then increasing to four days a week, teaching a computer-aided manufacturing and design course at McFatter Vocational Technical School (“McFatter”) in the Broward County School District (BCSD). In his initial position at McFatter, Petitioner testified that he knew he did not qualify for annual leave or other fringe benefits, including FRS membership, although he claimed not to remember that anyone specifically told him he was not receiving pension credit. From October 1993 until June 1999, Petitioner was employed by the BCSD in a full-time position under the terms of an annual contract. He testified that, with the annual contract, he had a salary, received fringe benefits and did not have to submit time sheets. Because he was employed in a regularly established position, Mr. Tamalavich was eligible for membership in the FRS and received service credit for 5 years and 9 months, through the end of his contract in September 1999. In September 1999, Petitioner requested and received a leave of absence for the 1999-2000 school year. The letter advising Mr. Tamalavich of the approval of his leave included a requirement that he notify the BCSB of his plans for the following year by March 1, 2000. In a letter dated February 14, 2000, the BCSB sent a reminder of the March 1, 2000, deadline. On April 3, 2000, the BCSB sent notice to Mr. Tamalavich by certified mail, with a receipt returned to the BCSB, that his termination would be recommended for failure to respond to the February 14, 2000, letter. Mr. Tamalavich testified that he received notice of his termination after the fact but not the letters setting the March 1 deadline. The notice of termination did not include information on appealing that decision. Mr. Tamalavich was hired at a different school in 2001. When he returned to work he signed agreements dated August 28, 2001, for the 2001-2002 school year; January 27, 2003, for the 2002-2003 school year; and August 25, 2003, for the 2003-2004 school year. Petitioner was employed as a part- time adult vocational education instructor at Atlantic Technical Center (“Atlantic”) in the BCSD during these school years. During his employment at Atlantic, Petitioner submitted time sheets and was compensated on an hourly basis. He acknowledged in his testimony that he was in a temporary position when he returned to work in August 2001. The agreements for part time employment at Atlantic provided that: THE ADMINISTRATOR MAY INITIATE OR TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the program/course “assigned” or the class will be canceled and this agreement shall be null and void. The employee's signature below indicates acceptance of the appointment subject to all that: terms and conditions of Board Policy 6Gx6- 4107. BCSD policy 6Gx6-4107 provides, in pertinent part, 2. The conditions of employment listed herein apply only to those personnel employed on a part-time, temporary basis to teach courses on a course-by-course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. . . . . Part-time temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. . . . . 7. Part-time temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time, temporary employees. . . . . 9. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits regardless of the time of service as a part-time employee. Mr. Tamalavich testified that he saw BCSD policy 6Gx6- 4107 for the first time at the hearing in this case, although he worked at Atlantic from August 2001, until he was forced to leave due to a serious illness on March 12, 2004. The principal of Atlantic, who hired Petitioner, testified that he would determine every nine or eighteen weeks whether enrollment was sufficient and then give Mr. Tamalavich his schedule. Because Petitioner did not have six years in the FRS prior to July 1, 2001, and was not employed in a regularly established position on July 1, 2001, when vesting requirements were reduced from ten to six years, the Division determined that he is not vested in the FRS and therefore he is not eligible to receive retirement benefits from the FRS. Mr. Tamalavich claims entitlement to more FRS service credit because of errors made by the BCSD, which reflected that he was enrolled in the FRS from July 1, 2003, until August 25, 2004, although initially his counsel asserted that the contested period of time extended to June 30, 2005. As a result of a computer programming error, the BCSB incorrectly grouped together all personnel who had worked for more than six months and notified them, including temporary adult vocational education instructors, that they were eligible for FRS service credit. The notice dated May 7, 2003, was sent to "Identified Employees" in temporary positions existing beyond six months advising the employees that they would be enrolled in FRS effective July 1, 2003. Mr. Tamalavich testified that he received the notice. After the notice of May 7, 2003, several temporary adult vocational education instructors began to request the Division to review their entire employment history to determine their FRS service credit. After receiving an inordinate number of these requests and reviewing on a case-by-case basis personnel documents provided by the BCSB, the Division determined that temporary adult vocational education instructors were being reported in error by the BCSD for FRS service credit. In a letter dated June 7, 2004, the Interim State Retirement Director wrote to the Superintendent of the BCSD, citing Florida Administrative Code Rule 60S-1.004(5)(d)(3), which excludes positions established with no expectation of continuation beyond one semester or one trimester. The letter also included other factors related to ineligibility for FRS credit, including compensation at an hourly rate, and employment based on enrollment and funding contingencies. The Superintendent was advised specifically that "[a]dult vocational education instructors are essentially temporary in nature, where there is no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach." On June 23, 2004, the Director of the Benefits Department responded for the BCSD conceding that part-time adult vocational education instructors, including those filling temporary positions, were inadvertently enrolled in the FRS beginning on July 1, 2003, and that the FRS contributions would be retroactively reversed. On August 25, 2004, a notice was sent by the BCSB to "identified employees" advising them that adult vocational education teachers were erroneously enrolled in the FRS, and that they would be removed retroactively to July 1, 2003. Mr. Tamalavich received the notice that did not include any information on appealing the decision. There was no claim of erroneous deductions from Mr. Tamalavich’s pay, despite his testimony that FRS contributions were taken out of his paycheck. Employee funds are not withheld for payments into the FRS plan. It is and has been, since 1975, solely employer-funded. For temporary employees who are not eligible for enrollment in the FRS, the BCSB provides a FICA Alternative Retirement Plan administered by Bencor. Contributions to the Bencor-administered plan were made on behalf of Mr. Tamalavich, who requested and received a distribution from that fund in January 2007.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner’s request to participate in FRS from January 29, 2001, through June 30, 2004. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 8th day of April, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Jane Letwin, Esquire The Law Office of Jane Letwin 10540 La Placida Drive, North Coral Springs, Florida 33065 J. Leonard Fleet, Esquire Fleet Dispute Resolution 625 32nd Avenue, Southwest Vero Beach, Florida 32968 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
