08-004095 Florida A And M University vs. Robert L. Thomas Status: Closed Recommended Order on Monday, January 26, 2009.

Summary: FAMU policies, regulations, general contract law, and the parties` course of dealing required a salary payback by an associate professor, who was overpaid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA A AND M UNIVERSITY, )

)

Petitioner, )

)

vs. )

) Case No. 08-4095

ROBERT L. THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

case on October 22, 2008, in Tallahassee, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Avery D. McKnight, Esquire

Florida A and M University

Office of the General Counsel

Suite 300, Lee Hall

Tallahassee, Florida 32307

For Respondent: Dr. Robert L. Thomas, pro se

10548 Coral Key Avenue

Tampa, Florida 33647

STATEMENT OF THE ISSUE

Whether Respondent should be required to pay Petitioner’s

claimed overpayment of salary as calculated in the amount of

$2,603.86, for the pay periods between July 2, 2007, and

July 26, 2007, and whether the effective date for modification

in salary as assigned by Petitioner should be consistent with

the date of Respondent’s amended contract.

PRELIMINARY STATEMENT

Respondent, an employee of Petitioner, Florida Agricultural

and Mechanical University (FAMU), requested a disputed-fact

hearing as more fully described in the following Findings of

Fact. The cause was referred to the Division of Administrative

Hearings (DOAH) on or about August 20, 2008.

On August 28, 2008, the case was noticed for hearing on

October 8, 2008, in Tallahassee, Florida. A Motion for

Continuance, filed October 3, 2008, was granted by an Order

entered October 7, 2008.

At the disputed-fact hearing, held October 22, 2008, FAMU

presented first, as appropriate to the burden of proof herein.

FAMU presented the oral testimony of Jacqueline Lester, Dr. Henry

Lewis III, and Respondent, and had FAMU Exhibits 1-13 admitted in

evidence. Respondent was permitted to examine Ms. Lester out of

order and testified on his own behalf. He had Thomas Exhibits 1-

7 admitted in evidence. Additionally, the Prehearing Stipulation

was admitted as Joint Exhibit A, and FAMU Regulations 10.102,

10.105, and 10.209, and FAMU Board of Trustees Policy 2005-15, as

stipulated correct and applicable to this case, were admitted in

“hard copy” as Joint Exhibit B.

A Transcript was filed on November 5, 2008.

A November 21, 2008, Order amended the style of this cause,

as set out above, to reflect the burden of proof and duty to go

forward.

Petitioner’s Proposed Recommended Order, filed November 25,

2008, has been considered in preparation of this Recommended

Order. Respondent filed no proposed recommended order, despite

having been sent an instructional Post-Hearing Order dated

November 5, 2008.

FINDINGS OF FACT

1. Respondent is currently employed as a tenured associate

professor in the FAMU College of Pharmacy and Pharmaceutical

Sciences (COPPS). At all times material, he has been a tenured

employee of FAMU. He currently resides in Tampa and is

responsible for developing a professional experience program from

Tampa to Orlando, Florida.

2. Although at hearing Respondent orally requested

reimbursement of his travel expenses to the hearing, at no time

prior to hearing did he object to the scheduling of hearing in

Tallahassee, Florida. His oral request is here treated as a

motion, to be resolved in the following Conclusions of Law.

3. Herein, FAMU contends that $2,603.86, 1/ amounting to 1.9

pay periods (July 2, 2007-July 26, 2007), constitutes an

overpayment of salary FAMU made to Respondent in the capacity of

interim dean, together with concomitant federal tax

considerations. FAMU now seeks reimbursement from Respondent.

4. Respondent’s first employment contract appointing him to

serve in an administrative capacity as interim dean and associate

professor for COPPS shows a signature on a line provided for

“President/Provost/Vice-President” on June 16, 2004, acceptance

by Respondent on July 1, 2004, and appointment dates of August 8,

2004, through August 7, 2005. That contract provided for an

approval by the president or the president's designee. Prior to

that first interim appointment, Respondent was employed in COPPS

as an associate dean and associate professor, and Dr. Henry Lewis

III was employed as Dean of COPPS.

5. In 2007, Respondent signed three contracts, only the

first of which was for employment as interim dean.

6. All 2007 employment contracts referenced throughout this

Recommended Order specified that:

This employment contract between Florida A&M

University Board of Trustees and the employee

is subject to the constitution and laws of

the State of Florida, the rules and

guidelines of the Board of Governors, the

regulations of the University Board of

Trustees (BOT), and in accordance with

Article 6, Nondiscrimination, Article 1.3,

Employment Contract, and Article 20,

Grievance Procedure and Arbitration of the

United Faculty of Florida (UFF) contract with

Florida A&M University. Neither this

employment contract nor any action or

commitment taken pursuant to it, is final or

binding upon the parties until, and unless,

the signature of the University President,

[sic] President’s designee, as approving

authority and the signature of the employee

have been affixed and the employment contract

has been returned to the appropriate

authority as specified herein. The signature

of the employee affixed hereto shall not be

deemed a waiver of the right to process a

grievance with respect hereto.

* * *

... This offer of employment will be

withdrawn and not processed for payroll if

this employment contract is not signed and

returned to the appropriate authority within

twenty (20) days from the date of offer.

(Emphasis supplied.)

7. Faculty employment contracts are prepared by the Office

of the Provost and Vice President of Academic Affairs and

forwarded to the FAMU Payroll Office for appropriate processing

and payment. All contracts in evidence have been treated by all

parties as valid, regardless of whether they bear FAMU’s

president’s signature or the signature of anyone on his behalf

signed on the president's "line." Presumably, this is because

the signator for the vice-president/provost was the president's

"designee" with final approval authority on behalf of the

president.

8. At no time has Respondent ever filed a grievance with

regard to any 2007, employment contract.

9. Respondent’s first 2007, employment contract reflected

an administrative appointment as interim dean and associate

professor. It was offered on May 31, 2007; was executed by

Respondent on June 15, 2007; and was signed by someone on FAMU's

President's signature line on June 22, 2007. Thereby, Respondent

was employed at an annual salary rate of $158,417.00, and a

biweekly amount of $6,069.61. The period of appointment

specified was from July 1, 2007, through June 30, 2008.

10. At all times material, FAMU Board of Trustees Policy

No. 2005-15 has provided, in pertinent part:

II. Application

This policy applies to employees holding

both a tenured faculty position and serving

as a senior administrative and academic

officer of the University, but who are

leaving their senior administrative and

academic office to return to the tenured

faculty or an administrative position.

Examples of such positions are the vice

presidents, assistant or associate vice

presidents, deans and directors.

III. Lack of Property Interest in Office

Senior Academic and Administrative

Officers are employees “at will”; thus, the

President may not purport to confer on any

officer a period of employment of fixed

duration or otherwise confer any property

interest in such employment. However, such

an officer may be appointed to a period of

employment as provided in Rule 6C3-10.105

Florida Administrative Code, so long as the

instrument accomplishing such an appointment

status states clearly that the incumbent

officer is subject to removal at any time,

during that period, at the option of the

President.

III. [sic] Joint Appointments

Tenure status as a member of the faculty,

held concurrently by any Senior Academic and

Administrative Officer of the University is

separate and distinct from the administrative

office, and such tenure status is governed by

the provisions of Rule 6C-10.211, Florida

Administrative Code. Those tenure rules and

regulations have no bearing upon and do not

govern the administrative appointment covered

by these regulations, and the Senior Academic

and Administrative Officer does not have

tenure in his or her administrative

positions.

IV. Return to a Faculty Position

A Senior Academic and Administrative Officer

who holds a concurrent tenured faculty

appointment may return to that appointment

with all the rights and responsibilities of

faculty in his or her original department . .

. The salary of the administrator shall be

adjusted . . . to a . . . faculty salary .

(Emphasis supplied.)

11. None of Respondent’s 2007, contracts contain any

language about "subject to removal at any time at the option of

the President," but both parties herein have signed new contracts

on that basis.

12. At all times material, FAMU Board of Trustees Policy

Number 2005-19, has provided, in pertinent part:

4. Salary Overpayments

The University will seek reimbursement for

salary overpayments and as stated in federal [2/]

and state laws and policies.

13. In a letter dated June 28, 2007, FAMU President-Elect

James H. Ammons offered Dr. Henry Lewis III the position of Dean

of COPPS.

14. Dr. Lewis accepted the position as dean in a letter

dated July 2, 2007.

15. Also on July 2, 2007, a general faculty meeting was

held. At that time, President Ammons introduced his leadership

team and announced that Dr. Lewis had been reinstated as Dean of

COPPS. Respondent was present when this announcement was made.

16. A contract as Dean of COPPS was offered by the

Provost/Vice-President to Dr. Lewis on July 3, 2007. Dr. Lewis

executed the contract on July 3, 2007. The copy in evidence does

not show any signature by the President or on his signature line.

This contract reflects Dr. Lewis’s retroactive appointment as

Dean of COPPS for the period July 1, 2007, through June 30, 2008,

the same period as was set forth in Respondent’s then-existing

contract as interim dean. ( See Finding of Fact 9.)

17. In a letter dated July 9, 2007, and received by

Respondent on July 12, 2007, President Ammons notified

Respondent, “pursuant to FAMU Regulations 10.102 and 10.105,” of

Respondent’s “change-in-assignment and removal of administrative

Respondent was further informed thereby that his duties and

responsibilities as an associate professor would be provided to

him by Dean Lewis. The letter also states, in pertinent part:

In addition, your annual salary will be

adjusted in accordance with the rules and

regulations of the FAMU Board of Trustees. A

new employment contract reflecting this

employment action will be subsequently

provided to you. (Emphasis supplied).

18. FAMU Regulation 10.102, provides, in pertinent part:

* * *

(9) An employee assigned to an acting

appointment (temporary change in assignment),

in instances in which responsibilities have

changed, may be provided a pay increase.

Upon the employee’s return to his or her

original responsibilities, the pay may be

adjusted to the employee’s responsibilities.

(Emphasis supplied.)

* * *

(11) When the assignment of Faculty serving

in an administrative position such as Vice

President, Dean, Director, or Department

Chair is changed, the pay and appointment

period shall be adjusted to reflect the new

responsibilities. Pay adjustments shall be

completed in accordance with the Board of

Trustees Policy No. 2005-15 (Separation and

Return of Senior Administrative and Academic

Officers to Faculty ), as now or hereafter

amended. (Title underlined in original; other

emphasis supplied.)

19. FAMU Regulation 10.105, provides, in pertinent part:

(3) Appointments

(e) No appointment shall create any right,

interest, or expectancy of continued

employment. . . .

20. FAMU Regulation 10.209, provides, in pertinent part:

Change-in-Assignment of Faculty and

administrative and Professional Employees

The President or President’s designee may for

the best interests of the University, at any

time, assign a Faculty or Administrative and

Professional (A&P) employee to other

institutional assignments only after

consultation with the employee and the

departments or other units affected.

Regardless of the change-in-assignment,

however, the University is committed to

compensate the employee. Employees whose

assignments are being made in conjunction

with a nonreappointment [sic] shall be [3/]

reassigned pursuant to Regulation 10.207.

This regulation shall only apply to a change

in assignment when nonreappointment [sic] is

not intended by the University. Work

assignments are grievable pursuant to

Regulation 10.206.

21. Dean Lewis testified credibly that, following some

conversations between himself and Pharmacy Director Angela Hill,

Respondent’s class and teaching assignments were made on his

behalf by Director Hill.

22. Dean Lewis expected Respondent to immediately begin to

prepare to teach four sections of medical terminology for the

2007, fall semester, as referenced on an Assignment of

Responsibility Form. The date of the first of these classes was

August 27, 2007, and there is no evidence that Respondent did not

start teaching that class on that date. However, Respondent did

not acknowledge the Assignment of Responsibility Form by signing

it until August 29, 2007. Director Hill did not sign it until

August 30, 2007, and Dean Lewis signed it on September 7, 2007.

23. Respondent was not assigned any administrative duties

or responsibilities as interim dean after July 2, 2007, inclusive

of the period in dispute, July 2, 2007, through July 26, 2007.

24. Although he testified that between July 2, 2007, and

August 27, 2007, Respondent did some work in the Dean’s office,

closing out unspecified administrative matters left in his tray,

the greater weight of the evidence reflects that Respondent did

not perform any identifiable administrative duties or

responsibilities as interim dean after July 2, 2007. Moreover,

Respondent requested, and Dean Lewis granted him 88 hours of

annual leave for the dates of July 9, and July 16-27, 2007.

25. A new faculty employment contract administratively

appointing Respondent as associate professor was offered/signed

by the provost/vice-president, on August 10, 2007, and signed by

Respondent on either August 10, or August 22, 2007 (the date has

been scribbled over), for the period from July 1, 2007, through

June 30, 2008. It bears no signature on President Ammons'

signature line. This contract reflects an annual associate

professor salary rate of $106,442.00, and biweekly amount of

$4,078.23.

26. Based upon that first 2007, associate professor

contract ( see Finding of Fact 25), Respondent’s biweekly salary

was supposed to be modified to $4,078.24, beginning with the

August 17, 2007, pay-date. However, for the pay-dates between

July 2, 2007, and July 26, 2007, FAMU continued to pay Respondent

a biweekly amount of $6,069.61, as if he were still interim dean.

( See Finding of Fact 9.)

27. Due to a salary amount error made on the first 2007

associate professor contract ( see Finding of Fact 25), a revised

contract was generated by Academic Affairs. It is clearly

labeled “revised” and shows an offering date of September 20,

2007, signed by the provost/vice-president; was signed by

Respondent on September 21, 2007; and bears no signature on the

president's line. This second, revised 2007, associate professor

contract, yet again reflects the appointment dates of July 1,

2007, to June 30, 2008, as did the 2007, interim dean contract

( see Finding of Fact 9), and the same appointment dates as the

first 2007, associate professor contract ( see Finding of Fact

25), but it bears a corrected annual salary rate for associate

professor of $122,648.00, and biweekly amount of $4,699.15.

28. Pursuant to this second/revised 2007, associate

professor contract, FAMU’s payroll office took steps to correct

Petitioner’s salary information, and Respondent began receiving

the corrected weekly amount of $4,699.15, beginning with his

October 12, 2007, pay-date. Respondent did not then, and does

not now, contest the annual salary rate or biweekly amount

reflected on this revised contract.

29. In a letter dated October 4, 2007, Jacqueline Lester,

FAMU’s associate director of payroll, informed Respondent that,

due to an administrative error, FAMU had overpaid him (at the

rate of interim dean) by a net amount of $1,748.07. Her letter

also informed Respondent that, “Pursuant to Volume V, Section VI

of The Bureau of State Payrolls Manual, Office of the State

Comptroller,” FAMU’s payroll department was required to recover

the overpayment from him. She requested that Respondent refund

the overpayment amount, and provided him options of how to

accomplish repayment. If he selected neither option, there would

be involuntary reductions from his future salary checks.

30. Respondent was obliquely advised of the federal tax

consequences of a delay in repayment by a blank form attached to

Ms. Lester’s October 4, 2007, letter, which blank form Respondent

was requested to fill out and sign in acknowledgment that:

I understand that if the full payment is not

made by 12-31-2007, the payment amount will

be recalculated to include withholding taxes

that were deducted from the overpayment.

This recalculation will result in an increase

in the amount due because the withholding

taxes paid cannot be recovered by the state.

31. Petitioner never signed the foregoing form.

32. Ms. Lester’s October 4, 2007, letter also informed

Respondent that he had a right to request an administrative

hearing, pursuant to Section 120.57, Florida Statutes.

33. By a letter dated October 15, 2007, Respondent

requested an administrative hearing.

34. On October 12, 2007, before Respondent requested his

hearing, FAMU paid Respondent additional gross pay in the amount

of $2,483.68. FAMU provided this additional payment to pay

Respondent the wages construed as underpayment beginning with the

August 17, 2007, pay-date, due to the annual salary error on his

first 2007 associate professor contract. In other words, the

October 12, 2007, payment brought Respondent’s biweekly salary up

to the appropriate amount of $4,699.16, for an associate

professor ( see Finding of Fact 27) and reimbursed him for the

lesser and incorrect salary amount listed in the first 2007,

associate professor contract( see Finding of Fact 25), which

incorrect amount had been paid out between the August 17, 2007,

and October 12, 2007, pay-dates, apparently covering the period

of July 27, 2007, to September 20, 2007. Respondent accepted

this money from FAMU.

35. Respondent did not immediately get a Section 120.57(1),

hearing upon his October 15, 2007, request. Instead, he got a

meeting with Ms. Lester and Ms. Carucha Nelson. Ms. Nelson was

Ms. Lester’s subordinate who had in-put Respondent’s salary

information. Respondent did not then, and does not now, disagree

with FAMU’s salary calculations. He only disagreed/disagrees

with "the period that the [revised] contract covered." During

their meeting, Ms. Lester told Respondent that he needed to talk

to someone in FAMU’s Academic Affairs Department about his

primary dispute over the beginning date of his faculty employment

contract and that she would take no final action to recoup any

money from him until his contractual concerns were resolved. She

further told him that his questions about his contract

commencement date had to be resolved in order for her to re-

calculate, and orally advised him of the tax consequences if the

dispute were not resolved by December 31, 2007. Although Ms.

Lester testified that she considered this meeting to constitute

the administrative hearing Respondent had requested, 4/ it is

clear that both Ms. Lester and Respondent assumed Respondent

would have to get some additional action from the provost’s and

university attorney’s office(s) before any FAMU decision about

the money became final.

36. On November 8, 2007, Respondent e-mailed the provost.

Respondent received no response by November 16, 2007, so on

November 16, 2007, Respondent e-mailed Ms. Lester, inquiring what

else he could do to get a hearing. She e-mailed him back to the

effect that contractual issues should be referred to FAMU’s

Academic Affairs and Human Resources Departments, and gave him a

hierarchy and/or chronology of persons to contact. On November

19, 2007, she warned him that the matter must be resolved before

December 31, 2007. Respondent copied appropriate persons with

the foregoing series of e-mails, without specifically requesting

an administrative hearing.

37. No one contacted Respondent about this again in 2007.

Ms. Lester continued to hold the recoupment in abeyance. FAMU

took no final agency action throughout 2007.

38. After an exchange of letters in March 2008, Ms. Lester

once again requested that Respondent repay salary overpayments

for the period of July 2, 2007, through July 26, 2007, in the

amount of $2,603.86. Apparently, this corrected amount included

withheld amounts of 2007, federal income tax, which FAMU remitted

to the Internal Revenue Service on Respondent’s behalf during

2007, and which amounts Respondent had not reimbursed to FAMU

before the end of that year.

39. FAMU ultimately recognized a March 25, 2008, letter

from Respondent as a request for formal hearing, and on or about

August 20, 2008, the case was referred to DOAH, resulting in this

proceeding.

40. Respondent has not refunded any money to FAMU.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2007).

42. Respondent has cited no authority, and there are no

legal grounds upon which he can be awarded travel expenses to

the formal hearing. Consequently, his oral motion to that

effect is denied.

43. On the merits, FAMU has the duty to go forward and the

burden of proof by a preponderance of the evidence. See

§ 120.57(1)(j), Fla. Stat.; Department of Corrections v. Career

Service Comm. , 429 So. 2d 1244, 1246 (Fla. 1st DCA 1983);

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

1977).

44. Section 1012.80(1)(b), Florida Statutes, states in

pertinent part:

Any person who accepts the privilege

extended by the laws of the state of

employment at any state university shall, by

working at such institution, be deemed to

have given his or her consent to the

policies of that institution, the policies

of the Board of Governors, and the laws of

this state . . . .

Accordingly, Respondent's employment contracts were subject to

the regulations and policies of FAMU and the Department of

Financial Services Bureau of State Payrolls.

45. The Department of Financial Services, Bureau of State

Payrolls' Manual, Volume V, Section 6, defines a salary

overpayment as "compensation greater than the maximum authorized

for payment in accordance with the provisions of applicable

personnel rules and regulations."

46. Pursuant to the aforementioned Manual and FAMU Policy

2005-19, Petitioner FAMU is responsible for collecting and

seeking reimbursement for salary overpayments in a timely

manner, but before a salary overpayment can be collected, it

must be proven that there was an overpayment in the first place.

47. FAMU contends that Respondent’s right to the interim

dean’s salary ended on July 2, 2007, when President Ammons

announced the appointment of Dr. Lewis as Dean; that Respondent

was overpaid at the interim dean’s salary level for the period

between July 2, 2007, and July 26, 2007; and that Respondent

should pay back the overpayment.

48. Respondent initially suggested that until FAMU’s

president signed one of the associate professor contracts,

Respondent had a valid interim dean contract. Since FAMU’s

president did not sign any of the contracts herein, it is

conceivable that all of the contracts could be declared void ab

initio . Under that reasoning, if any of the contracts herein

could be said to meet all its required internal 2007 criteria

for validity, Respondent’s initial 2007, contract as interim

dean, at least signed by someone other than the president on the

president's signature line, might prevail. ( See Finding of Fact

9.) However, due to the parties' course of doing business ( see

all Findings of Facts, particularly Findings of Fact 4, 7, and

11; and Conclusion of Law 49), that argument is without merit.

49. “A course of dealing between parties and any usage of

trade in the vocation or trade in which they are engaged or of

which they are or should be aware give particular meaning to,

and supplement or qualify the terms of, an agreement.” 11 Fla.

Jur. 2d Section 166, and cases cited therein. Herein, all

contracts, including that of Dr. Lewis, were signed by someone

up the chain of command who, presumably, had been designated by

the president to perform that ministerial act. Moreover, it is

a long-established principle of contract law that one who

actually signs a contract (herein, Respondent) when another does

not sign (herein, the president), is estopped to deny the

validity of the contract. In this case, Respondent personally

signed each successive contract, including two contracts as

associate professor, both of which commenced retroactive to

July 1, 2007.

50. Respondent finally contended that he had a valid

employment contract at the Interim dean’s salary at least until

he received formal, written notification on July 12, 2007, of

his removal from that position, but his proposed resolution of

all issues argued at page 111 of the Transcript does not

mathematically meet that reasoning.

51. Respondent does not dispute that FAMU has complied

with FAMU Policy 2005-19, and the guidelines of the Department

of Financial Services, Bureau of State Payrolls. At no time has

he contested Petitioner’s salary calculation. Even though

Respondent contends that he performed some “dean” duties after

July 2, 2007, Respondent stipulated as fact in the Joint Pre-

hearing Stipulation that by July 2, 2007, his duties and

responsibilities as interim dean had been removed, and the

evidence bears this out. Further, he agrees that he is required

to repay the amount of his salary overpayments. He contends

that the calculation of any overpayment could not begin until

July 12, 2007, when he physically received President Ammons’

June 9, 2007, letter, concerning his removal from administrative

duties as interim dean and change-in-assignment to associate

professor, but even so, he has signed two associate professor

contracts, each of which specify a term of July 1, 2007, to

June 30, 2008, and he has taken no steps to repay amounts he

apparently agrees are incorrect, running July 13, 2007, to

July 26, 2007.

52. The parties, by their actions and reliance upon their

final associate professor contract, and specifically by

Respondent’s signing that contract clearly labeled “revised,”

which specifies a term of employment as associate professor from

July 1, 2007, to June 30, 2008, and Respondent’s acceptance of

pay pursuant to that contract’s specified salary for an

associate professor, including FAMU’s lump sum payment to

correct errors in the first associate professor contract ( see

Findings of Fact 9, 25, 27, 34, and 40), establish that the

parties, including Respondent, intended to be bound by the terms

of the second/revised associate professor contract retroactive

to July 1, 2007. Having signed that revised contract which

established his associate professor employment dates; having

accepted payment pursuant to that contract; and having twice not

timely pursued a grievance concerning his transfer to associate

professor/non-dean status retroactive to July 1, 2007,

Respondent is hard put to now claim that July 12, 2007, or any

date other than July 1, 2007, is the date that he was reassigned

from the interim dean position to a tenured teaching position.

The fact that he has not reimbursed FAMU for overpayments from

July 12, 2007, (the date he now contends might be appropriate)

to July 26, 2007, diminishes his argument.

53. Respondent's argument herein is further diminished by

his retention of the lump sum reimbursement by FAMU to reconcile

underpayments to the amount in the revised associate professor

contract. ( See Findings of Fact 27 and 34.) “A party’s right

to rescind is subject to waiver if he retains the benefits of

the contract after discovering the grounds for recission.”

Mazzoni Farms, Inc. v. E.I. DuPont DeNemours and Co. , 761 So. 2d

306 (Fla. 2000), answer to certified question conformed to 221

F.3d 1199 (11th Cir. 2000), and answer to certified question

conformed to , 223 F.3d 1275 (11th Cir. 2000).

54. Pursuant to FAMU Board of Trustees Policy No. 2005-15,

adopted June 30, 2005, which has been in effect at all times

material, Respondent had no property interest or tenure in his

administrative capacity as interim dean and could have his

administrative responsibilities removed at any time by the

university president.

55. Although Respondent disputes the beginning date of his

faculty employment contract as an associate professor, the

evidence clearly shows that his duties and responsibilities as

interim dean were removed effective July 2, 2007. Such

employment action was consistent with the provisions of FAMU

Regulation 2005-15 and Rule 10-209. In fact, Respondent

acknowledges that he became aware on Monday July 2, 2007, of

President Ammons' decision to reinstate Dr. Lewis as the Dean of

COPPS. Thus, Respondent knew that his services as interim dean

were no longer required by FAMU on July 2, 2007, and he

acknowledged, in two successive contracts, a beginning date of

July 1, 2007, as associate professor.

56. Respondent resists any obligation to repay FAMU for

the portion of its claim that constitutes the federal tax

consequences of Respondent’s failure to pay back, before

December 31, 2007, the amounts requested by FAMU, because he

contends that the tax consequences are the result of FAMU not

referring him for an administrative hearing before December 31,

2007.

57. Respondent’s chagrin over the delay in getting to

hearing is understandable, but there is no guarantee that an

immediate referral to DOAH in October 2007, would have resulted

in a favorable resolution for Respondent or even a resolution

sufficiently speedy to allow him to pay the money he owed before

the end of 2007.

58. Pursuant to the pertinent provisions of Volume V,

Section 6, of the Bureau of State Payrolls' Manual, calculations

for salary overpayments not repaid in the same calendar year are

resolved as follows:

The agency will have to re-enter the salary

refund record in the new year and advise the

employee of the amount owed to the agency.

When a salary overpayment is repaid and

fully processed in the same year in which

the overpayment occurred, the employee's

taxable gross, social security gross,

Medicare gross, federal withholding tax,

social security taxes, and Medicare taxes

are adjusted. Overpayment not repaid in the

same calendar year in which the overpayment

occurred will NOT have taxable gross of

federal withholding tax adjusted.

59. Due to Respondent's failure to repay the instant

salary overpayment prior to December 31, 2007, FAMU

appropriately re-entered the salary refund record in the new

year 2008, and advised Respondent of the new amount owed to FAMU

totaling $2,603.86. This new payment amount is consistent with

the requirements of the Bureau of State Payrolls' Manual to not

have taxable gross of federal withholding taxes adjusted.

60. Filing an amended federal tax return after he has paid

the amount due to FAMU is not out of the question and may

resolve some of Respondent’s money troubles.

61. The evidence clearly shows that Respondent received

inappropriate salary overpayments. There is no dispute that

these overpayments total $2,603.86. Petitioner has the

authority to recoup salary overpayments from Respondent. New v.

Department of Banking and Finance , 554 So. 2d 1203 (Fla. 1st DCA

1989).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered requiring

Respondent to repay $2,603.86, to Florida Agricultural and

Mechanical University.

DONE AND ENTERED this 26th day of January, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of January, 2009.

ENDNOTES

1/ The Pre-hearing Stipulation, admitted as Joint Exhibit A,

owed. However, that was not stipulated as a “fact, requiring no

further proof”, and the evidence herein shows that the figure of

$2,603.86, was acknowledged and addressed by both parties

throughout trial of the case.

2/ “Hard copy” of Policy 2005-19, was admitted in evidence as

FAMU Exhibit 6.

3/ FAMU Regulation 10.207 was not provided nor offered in

evidence. In the course of preparing this Recommended Order,

and after giving telephone notice to Respondent, the undersigned

requested a copy of the regulation and received a copy thereof

from FAMU’s counsel. This regulation requires various types of

written notice in cases of non-reappointment, and is irrelevant

to the instant case.

4/ This is a clearly erroneous concept.

COPIES FURNISHED:

Avery D. McKnight, Esquire

Florida A&M University

Office of the General Counsel

Suite 300, Lee Hall

Tallahassee, Florida 32307

Dr. Robert L. Thomas

10548 Coral Key Avenue

Tampa, Florida 33647

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.