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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8FLORIDA A AND M UNIVERSITY, )

14)

15Petitioner, )

17)

18vs. )

20) Case No. 08-4095

24ROBERT L. THOMAS, )

28)

29Respondent. )

31)

32RECOMMENDED ORDER

34Upon due notice, a disputed-fact hearing was held in this

44case on October 22, 2008, in Tallahassee, Florida, before

53Ella Jane P. Davis, a duly-assigned Administrative Law Judge of

63the Division of Administrative Hearings.

68APPEARANCES

69For Petitioner: Avery D. McKnight, Esquire

75Florida A and M University

80Office of the General Counsel

85Suite 300, Lee Hall

89Tallahassee, Florida 32307

92For Respondent: Dr. Robert L. Thomas, pro se

10010548 Coral Key Avenue

104Tampa, Florida 33647

107STATEMENT OF THE ISSUE

111Whether Respondent should be required to pay Petitioner’s

119claimed overpayment of salary as calculated in the amount of

129$2,603.86, for the pay periods between July 2, 2007, and

140July 26, 2007, and whether the effective date for modification

150in salary as assigned by Petitioner should be consistent with

160the date of Respondent’s amended contract.

166PRELIMINARY STATEMENT

168Respondent, an employee of Petitioner, Florida Agricultural

175and Mechanical University (FAMU), requested a disputed-fact

182hearing as more fully described in the following Findings of

192Fact. The cause was referred to the Division of Administrative

202Hearings (DOAH) on or about August 20, 2008.

210On August 28, 2008, the case was noticed for hearing on

221October 8, 2008, in Tallahassee, Florida. A Motion for

230Continuance, filed October 3, 2008, was granted by an Order

240entered October 7, 2008.

244At the disputed-fact hearing, held October 22, 2008, FAMU

253presented first, as appropriate to the burden of proof herein.

263FAMU presented the oral testimony of Jacqueline Lester, Dr. Henry

273Lewis III, and Respondent, and had FAMU Exhibits 1-13 admitted in

284evidence. Respondent was permitted to examine Ms. Lester out of

294order and testified on his own behalf. He had Thomas Exhibits 1-

3067 admitted in evidence. Additionally, the Prehearing Stipulation

314was admitted as Joint Exhibit A, and FAMU Regulations 10.102,

32410.105, and 10.209, and FAMU Board of Trustees Policy 2005-15, as

335stipulated correct and applicable to this case, were admitted in

345“hard copy” as Joint Exhibit B.

351A Transcript was filed on November 5, 2008.

359A November 21, 2008, Order amended the style of this cause,

370as set out above, to reflect the burden of proof and duty to go

384forward.

385Petitioner’s Proposed Recommended Order, filed November 25,

3922008, has been considered in preparation of this Recommended

401Order. Respondent filed no proposed recommended order, despite

409having been sent an instructional Post-Hearing Order dated

417November 5, 2008.

420FINDINGS OF FACT

4231. Respondent is currently employed as a tenured associate

432professor in the FAMU College of Pharmacy and Pharmaceutical

441Sciences (COPPS). At all times material, he has been a tenured

452employee of FAMU. He currently resides in Tampa and is

462responsible for developing a professional experience program from

470Tampa to Orlando, Florida.

4742. Although at hearing Respondent orally requested

481reimbursement of his travel expenses to the hearing, at no time

492prior to hearing did he object to the scheduling of hearing in

504Tallahassee, Florida. His oral request is here treated as a

514motion, to be resolved in the following Conclusions of Law.

5243. Herein, FAMU contends that $2,603.86, 1/ amounting to 1.9

535pay periods (July 2, 2007-July 26, 2007), constitutes an

544overpayment of salary FAMU made to Respondent in the capacity of

555interim dean, together with concomitant federal tax

562considerations. FAMU now seeks reimbursement from Respondent.

5694. Respondent’s first employment contract appointing him to

577serve in an administrative capacity as interim dean and associate

587professor for COPPS shows a signature on a line provided for

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

604by Respondent on July 1, 2004, and appointment dates of August 8,

6162004, through August 7, 2005. That contract provided for an

626approval by the president or the president's designee. Prior to

636that first interim appointment, Respondent was employed in COPPS

645as an associate dean and associate professor, and Dr. Henry Lewis

656III was employed as Dean of COPPS.

6635. In 2007, Respondent signed three contracts, only the

672first of which was for employment as interim dean.

6816. All 2007 employment contracts referenced throughout this

689Recommended Order specified that:

693This employment contract between Florida A&M

699University Board of Trustees and the employee

706is subject to the constitution and laws of

714the State of Florida, the rules and

721guidelines of the Board of Governors, the

728regulations of the University Board of

734Trustees (BOT), and in accordance with

740Article 6, Nondiscrimination, Article 1.3,

745Employment Contract, and Article 20,

750Grievance Procedure and Arbitration of the

756United Faculty of Florida (UFF) contract with

763Florida A&M University. Neither this

768employment contract nor any action or

774commitment taken pursuant to it, is final or

782binding upon the parties until, and unless,

789the signature of the University President,

795[sic] President’s designee, as approving

800authority and the signature of the employee

807have been affixed and the employment contract

814has been returned to the appropriate

820authority as specified herein. The signature

826of the employee affixed hereto shall not be

834deemed a waiver of the right to process a

843grievance with respect hereto.

847* * *

850... This offer of employment will be

857withdrawn and not processed for payroll if

864this employment contract is not signed and

871returned to the appropriate authority within

877twenty (20) days from the date of offer.

885(Emphasis supplied.)

8877. Faculty employment contracts are prepared by the Office

896of the Provost and Vice President of Academic Affairs and

906forwarded to the FAMU Payroll Office for appropriate processing

915and payment. All contracts in evidence have been treated by all

926parties as valid, regardless of whether they bear FAMU’s

935president’s signature or the signature of anyone on his behalf

945signed on the president's "line." Presumably, this is because

954the signator for the vice-president/provost was the president's

"962designee" with final approval authority on behalf of the

971president.

9728. At no time has Respondent ever filed a grievance with

983regard to any 2007, employment contract.

9899. Respondent’s first 2007, employment contract reflected

996an administrative appointment as interim dean and associate

1004professor. It was offered on May 31, 2007; was executed by

1015Respondent on June 15, 2007; and was signed by someone on FAMU's

1027President's signature line on June 22, 2007. Thereby, Respondent

1036was employed at an annual salary rate of $158,417.00, and a

1048biweekly amount of $6,069.61. The period of appointment

1057specified was from July 1, 2007, through June 30, 2008.

106710. At all times material, FAMU Board of Trustees Policy

1077No. 2005-15 has provided, in pertinent part:

1084II. Application

1086This policy applies to employees holding

1092both a tenured faculty position and serving

1099as a senior administrative and academic

1105officer of the University, but who are

1112leaving their senior administrative and

1117academic office to return to the tenured

1124faculty or an administrative position.

1129Examples of such positions are the vice

1136presidents, assistant or associate vice

1141presidents, deans and directors.

1145III. Lack of Property Interest in Office

1152Senior Academic and Administrative

1156Officers are employees “at will”; thus, the

1163President may not purport to confer on any

1171officer a period of employment of fixed

1178duration or otherwise confer any property

1184interest in such employment. However, such

1190an officer may be appointed to a period of

1199employment as provided in Rule 6C3-10.105

1205Florida Administrative Code, so long as the

1212instrument accomplishing such an appointment

1217status states clearly that the incumbent

1223officer is subject to removal at any time,

1231during that period, at the option of the

1239President.

1240III. [sic] Joint Appointments

1244Tenure status as a member of the faculty,

1252held concurrently by any Senior Academic and

1259Administrative Officer of the University is

1265separate and distinct from the administrative

1271office, and such tenure status is governed by

1279the provisions of Rule 6C-10.211, Florida

1285Administrative Code. Those tenure rules and

1291regulations have no bearing upon and do not

1299govern the administrative appointment covered

1304by these regulations, and the Senior Academic

1311and Administrative Officer does not have

1317tenure in his or her administrative

1323positions.

1324IV. Return to a Faculty Position

1330A Senior Academic and Administrative Officer

1336who holds a concurrent tenured faculty

1342appointment may return to that appointment

1348with all the rights and responsibilities of

1355faculty in his or her original department . .

1364. The salary of the administrator shall be

1372adjusted . . . to a . . . faculty salary .

1384(Emphasis supplied.)

138611. None of Respondent’s 2007, contracts contain any

1394language about "subject to removal at any time at the option of

1406the President," but both parties herein have signed new contracts

1416on that basis.

141912. At all times material, FAMU Board of Trustees Policy

1429Number 2005-19, has provided, in pertinent part:

14364. Salary Overpayments

1439The University will seek reimbursement for

1445salary overpayments and as stated in federal [2/]

1453and state laws and policies.

145813. In a letter dated June 28, 2007, FAMU President-Elect

1468James H. Ammons offered Dr. Henry Lewis III the position of Dean

1480of COPPS.

148214. Dr. Lewis accepted the position as dean in a letter

1493dated July 2, 2007.

149715. Also on July 2, 2007, a general faculty meeting was

1508held. At that time, President Ammons introduced his leadership

1517team and announced that Dr. Lewis had been reinstated as Dean of

1529COPPS. Respondent was present when this announcement was made.

153816. A contract as Dean of COPPS was offered by the

1549Provost/Vice-President to Dr. Lewis on July 3, 2007. Dr. Lewis

1559executed the contract on July 3, 2007. The copy in evidence does

1571not show any signature by the President or on his signature line.

1583This contract reflects Dr. Lewis’s retroactive appointment as

1591Dean of COPPS for the period July 1, 2007, through June 30, 2008,

1604the same period as was set forth in Respondent’s then-existing

1614contract as interim dean. ( See Finding of Fact 9.)

162417. In a letter dated July 9, 2007, and received by

1635Respondent on July 12, 2007, President Ammons notified

1643Respondent, “pursuant to FAMU Regulations 10.102 and 10.105,” of

1653Respondent’s “change-in-assignment and removal of administrative

1659Respondent was further informed thereby that his duties and

1668responsibilities as an associate professor would be provided to

1677him by Dean Lewis. The letter also states, in pertinent part:

1688In addition, your annual salary will be

1695adjusted in accordance with the rules and

1702regulations of the FAMU Board of Trustees. A

1710new employment contract reflecting this

1715employment action will be subsequently

1720provided to you. (Emphasis supplied).

172518. FAMU Regulation 10.102, provides, in pertinent part:

1733* * *

1736(9) An employee assigned to an acting

1743appointment (temporary change in assignment),

1748in instances in which responsibilities have

1754changed, may be provided a pay increase.

1761Upon the employee’s return to his or her

1769original responsibilities, the pay may be

1775adjusted to the employee’s responsibilities.

1780(Emphasis supplied.)

1782* * *

1785(11) When the assignment of Faculty serving

1792in an administrative position such as Vice

1799President, Dean, Director, or Department

1804Chair is changed, the pay and appointment

1811period shall be adjusted to reflect the new

1819responsibilities. Pay adjustments shall be

1824completed in accordance with the Board of

1831Trustees Policy No. 2005-15 (Separation and

1837Return of Senior Administrative and Academic

1843Officers to Faculty ), as now or hereafter

1851amended. (Title underlined in original; other

1857emphasis supplied.)

185919. FAMU Regulation 10.105, provides, in pertinent part:

1867(3) Appointments

1869(e) No appointment shall create any right,

1876interest, or expectancy of continued

1881employment. . . .

188520. FAMU Regulation 10.209, provides, in pertinent part:

1893Change-in-Assignment of Faculty and

1897administrative and Professional Employees

1901The President or President’s designee may for

1908the best interests of the University, at any

1916time, assign a Faculty or Administrative and

1923Professional (A&P) employee to other

1928institutional assignments only after

1932consultation with the employee and the

1938departments or other units affected.

1943Regardless of the change-in-assignment,

1947however, the University is committed to

1953compensate the employee. Employees whose

1958assignments are being made in conjunction

1964with a nonreappointment [sic] shall be [3/]

1971reassigned pursuant to Regulation 10.207.

1976This regulation shall only apply to a change

1984in assignment when nonreappointment [sic] is

1990not intended by the University. Work

1996assignments are grievable pursuant to

2001Regulation 10.206.

200321. Dean Lewis testified credibly that, following some

2011conversations between himself and Pharmacy Director Angela Hill,

2019Respondent’s class and teaching assignments were made on his

2028behalf by Director Hill.

203222. Dean Lewis expected Respondent to immediately begin to

2041prepare to teach four sections of medical terminology for the

20512007, fall semester, as referenced on an Assignment of

2060Responsibility Form. The date of the first of these classes was

2071August 27, 2007, and there is no evidence that Respondent did not

2083start teaching that class on that date. However, Respondent did

2093not acknowledge the Assignment of Responsibility Form by signing

2102it until August 29, 2007. Director Hill did not sign it until

2114August 30, 2007, and Dean Lewis signed it on September 7, 2007.

212623. Respondent was not assigned any administrative duties

2134or responsibilities as interim dean after July 2, 2007, inclusive

2144of the period in dispute, July 2, 2007, through July 26, 2007.

215624. Although he testified that between July 2, 2007, and

2166August 27, 2007, Respondent did some work in the Dean’s office,

2177closing out unspecified administrative matters left in his tray,

2186the greater weight of the evidence reflects that Respondent did

2196not perform any identifiable administrative duties or

2203responsibilities as interim dean after July 2, 2007. Moreover,

2212Respondent requested, and Dean Lewis granted him 88 hours of

2222annual leave for the dates of July 9, and July 16-27, 2007.

223425. A new faculty employment contract administratively

2241appointing Respondent as associate professor was offered/signed

2248by the provost/vice-president, on August 10, 2007, and signed by

2258Respondent on either August 10, or August 22, 2007 (the date has

2270been scribbled over), for the period from July 1, 2007, through

2281June 30, 2008. It bears no signature on President Ammons'

2291signature line. This contract reflects an annual associate

2299professor salary rate of $106,442.00, and biweekly amount of

2309$4,078.23.

231126. Based upon that first 2007, associate professor

2319contract ( see Finding of Fact 25), Respondent’s biweekly salary

2329was supposed to be modified to $4,078.24, beginning with the

2340August 17, 2007, pay-date. However, for the pay-dates between

2349July 2, 2007, and July 26, 2007, FAMU continued to pay Respondent

2361a biweekly amount of $6,069.61, as if he were still interim dean.

2374( See Finding of Fact 9.)

238027. Due to a salary amount error made on the first 2007

2392associate professor contract ( see Finding of Fact 25), a revised

2403contract was generated by Academic Affairs. It is clearly

2412labeled “revised” and shows an offering date of September 20,

24222007, signed by the provost/vice-president; was signed by

2430Respondent on September 21, 2007; and bears no signature on the

2441president's line. This second, revised 2007, associate professor

2449contract, yet again reflects the appointment dates of July 1,

24592007, to June 30, 2008, as did the 2007, interim dean contract

2471( see Finding of Fact 9), and the same appointment dates as the

2484first 2007, associate professor contract ( see Finding of Fact

249425), but it bears a corrected annual salary rate for associate

2505professor of $122,648.00, and biweekly amount of $4,699.15.

251528. Pursuant to this second/revised 2007, associate

2522professor contract, FAMU’s payroll office took steps to correct

2531Petitioner’s salary information, and Respondent began receiving

2538the corrected weekly amount of $4,699.15, beginning with his

2548October 12, 2007, pay-date. Respondent did not then, and does

2558not now, contest the annual salary rate or biweekly amount

2568reflected on this revised contract.

257329. In a letter dated October 4, 2007, Jacqueline Lester,

2583FAMU’s associate director of payroll, informed Respondent that,

2591due to an administrative error, FAMU had overpaid him (at the

2602rate of interim dean) by a net amount of $1,748.07. Her letter

2615also informed Respondent that, “Pursuant to Volume V, Section VI

2625of The Bureau of State Payrolls Manual, Office of the State

2636Comptroller,” FAMU’s payroll department was required to recover

2645the overpayment from him. She requested that Respondent refund

2654the overpayment amount, and provided him options of how to

2664accomplish repayment. If he selected neither option, there would

2673be involuntary reductions from his future salary checks.

268130. Respondent was obliquely advised of the federal tax

2690consequences of a delay in repayment by a blank form attached to

2702Ms. Lester’s October 4, 2007, letter, which blank form Respondent

2712was requested to fill out and sign in acknowledgment that:

2722I understand that if the full payment is not

2731made by 12-31-2007, the payment amount will

2738be recalculated to include withholding taxes

2744that were deducted from the overpayment.

2750This recalculation will result in an increase

2757in the amount due because the withholding

2764taxes paid cannot be recovered by the state.

277231. Petitioner never signed the foregoing form.

277932. Ms. Lester’s October 4, 2007, letter also informed

2788Respondent that he had a right to request an administrative

2798hearing, pursuant to Section 120.57, Florida Statutes.

280533. By a letter dated October 15, 2007, Respondent

2814requested an administrative hearing.

281834. On October 12, 2007, before Respondent requested his

2827hearing, FAMU paid Respondent additional gross pay in the amount

2837of $2,483.68. FAMU provided this additional payment to pay

2847Respondent the wages construed as underpayment beginning with the

2856August 17, 2007, pay-date, due to the annual salary error on his

2868first 2007 associate professor contract. In other words, the

2877October 12, 2007, payment brought Respondent’s biweekly salary up

2886to the appropriate amount of $4,699.16, for an associate

2896professor ( see Finding of Fact 27) and reimbursed him for the

2908lesser and incorrect salary amount listed in the first 2007,

2918associate professor contract( see Finding of Fact 25), which

2927incorrect amount had been paid out between the August 17, 2007,

2938and October 12, 2007, pay-dates, apparently covering the period

2947of July 27, 2007, to September 20, 2007. Respondent accepted

2957this money from FAMU.

296135. Respondent did not immediately get a Section 120.57(1),

2970hearing upon his October 15, 2007, request. Instead, he got a

2981meeting with Ms. Lester and Ms. Carucha Nelson. Ms. Nelson was

2992Ms. Lester’s subordinate who had in-put Respondent’s salary

3000information. Respondent did not then, and does not now, disagree

3010with FAMU’s salary calculations. He only disagreed/disagrees

3017with "the period that the [revised] contract covered." During

3026their meeting, Ms. Lester told Respondent that he needed to talk

3037to someone in FAMU’s Academic Affairs Department about his

3046primary dispute over the beginning date of his faculty employment

3056contract and that she would take no final action to recoup any

3068money from him until his contractual concerns were resolved. She

3078further told him that his questions about his contract

3087commencement date had to be resolved in order for her to re-

3099calculate, and orally advised him of the tax consequences if the

3110dispute were not resolved by December 31, 2007. Although Ms.

3120Lester testified that she considered this meeting to constitute

3129the administrative hearing Respondent had requested, 4/ it is

3138clear that both Ms. Lester and Respondent assumed Respondent

3147would have to get some additional action from the provost’s and

3158university attorney’s office(s) before any FAMU decision about

3166the money became final.

317036. On November 8, 2007, Respondent e-mailed the provost.

3179Respondent received no response by November 16, 2007, so on

3189November 16, 2007, Respondent e-mailed Ms. Lester, inquiring what

3198else he could do to get a hearing. She e-mailed him back to the

3212effect that contractual issues should be referred to FAMU’s

3221Academic Affairs and Human Resources Departments, and gave him a

3231hierarchy and/or chronology of persons to contact. On November

324019, 2007, she warned him that the matter must be resolved before

3252December 31, 2007. Respondent copied appropriate persons with

3260the foregoing series of e-mails, without specifically requesting

3268an administrative hearing.

327137. No one contacted Respondent about this again in 2007.

3281Ms. Lester continued to hold the recoupment in abeyance. FAMU

3291took no final agency action throughout 2007.

329838. After an exchange of letters in March 2008, Ms. Lester

3309once again requested that Respondent repay salary overpayments

3317for the period of July 2, 2007, through July 26, 2007, in the

3330amount of $2,603.86. Apparently, this corrected amount included

3339withheld amounts of 2007, federal income tax, which FAMU remitted

3349to the Internal Revenue Service on Respondent’s behalf during

33582007, and which amounts Respondent had not reimbursed to FAMU

3368before the end of that year.

337439. FAMU ultimately recognized a March 25, 2008, letter

3383from Respondent as a request for formal hearing, and on or about

3395August 20, 2008, the case was referred to DOAH, resulting in this

3407proceeding.

340840. Respondent has not refunded any money to FAMU.

3417CONCLUSIONS OF LAW

342041. The Division of Administrative Hearings has

3427jurisdiction over the parties and subject matter of this cause,

3437pursuant to Sections 120.569 and 120.57(1), Florida Statutes

3445(2007).

344642. Respondent has cited no authority, and there are no

3456legal grounds upon which he can be awarded travel expenses to

3467the formal hearing. Consequently, his oral motion to that

3476effect is denied.

347943. On the merits, FAMU has the duty to go forward and the

3492burden of proof by a preponderance of the evidence. See

3502§ 120.57(1)(j), Fla. Stat.; Department of Corrections v. Career

3511Service Comm. , 429 So. 2d 1244, 1246 (Fla. 1st DCA 1983);

3522Florida Department of Transportation v. J.W.C. Company, Inc. ,

3530396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of

3543Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

35541977).

355544. Section 1012.80(1)(b), Florida Statutes, states in

3562pertinent part:

3564Any person who accepts the privilege

3570extended by the laws of the state of

3578employment at any state university shall, by

3585working at such institution, be deemed to

3592have given his or her consent to the

3600policies of that institution, the policies

3606of the Board of Governors, and the laws of

3615this state . . . .

3621Accordingly, Respondent's employment contracts were subject to

3628the regulations and policies of FAMU and the Department of

3638Financial Services Bureau of State Payrolls.

364445. The Department of Financial Services, Bureau of State

3653Payrolls' Manual, Volume V, Section 6, defines a salary

3662overpayment as "compensation greater than the maximum authorized

3670for payment in accordance with the provisions of applicable

3679personnel rules and regulations."

368346. Pursuant to the aforementioned Manual and FAMU Policy

36922005-19, Petitioner FAMU is responsible for collecting and

3700seeking reimbursement for salary overpayments in a timely

3708manner, but before a salary overpayment can be collected, it

3718must be proven that there was an overpayment in the first place.

373047. FAMU contends that Respondent’s right to the interim

3739dean’s salary ended on July 2, 2007, when President Ammons

3749announced the appointment of Dr. Lewis as Dean; that Respondent

3759was overpaid at the interim dean’s salary level for the period

3770between July 2, 2007, and July 26, 2007; and that Respondent

3781should pay back the overpayment.

378648. Respondent initially suggested that until FAMU’s

3793president signed one of the associate professor contracts,

3801Respondent had a valid interim dean contract. Since FAMU’s

3810president did not sign any of the contracts herein, it is

3821conceivable that all of the contracts could be declared void ab

3832initio . Under that reasoning, if any of the contracts herein

3843could be said to meet all its required internal 2007 criteria

3854for validity, Respondent’s initial 2007, contract as interim

3862dean, at least signed by someone other than the president on the

3874president's signature line, might prevail. ( See Finding of Fact

38849.) However, due to the parties' course of doing business ( see

3896all Findings of Facts, particularly Findings of Fact 4, 7, and

390711; and Conclusion of Law 49), that argument is without merit.

391849. “A course of dealing between parties and any usage of

3929trade in the vocation or trade in which they are engaged or of

3942which they are or should be aware give particular meaning to,

3953and supplement or qualify the terms of, an agreement.” 11 Fla.

3964Jur. 2d Section 166, and cases cited therein. Herein, all

3974contracts, including that of Dr. Lewis, were signed by someone

3984up the chain of command who, presumably, had been designated by

3995the president to perform that ministerial act. Moreover, it is

4005a long-established principle of contract law that one who

4014actually signs a contract (herein, Respondent) when another does

4023not sign (herein, the president), is estopped to deny the

4033validity of the contract. In this case, Respondent personally

4042signed each successive contract, including two contracts as

4050associate professor, both of which commenced retroactive to

4058July 1, 2007.

406150. Respondent finally contended that he had a valid

4070employment contract at the Interim dean’s salary at least until

4080he received formal, written notification on July 12, 2007, of

4090his removal from that position, but his proposed resolution of

4100all issues argued at page 111 of the Transcript does not

4111mathematically meet that reasoning.

411551. Respondent does not dispute that FAMU has complied

4124with FAMU Policy 2005-19, and the guidelines of the Department

4134of Financial Services, Bureau of State Payrolls. At no time has

4145he contested Petitioner’s salary calculation. Even though

4152Respondent contends that he performed some “dean” duties after

4161July 2, 2007, Respondent stipulated as fact in the Joint Pre-

4172hearing Stipulation that by July 2, 2007, his duties and

4182responsibilities as interim dean had been removed, and the

4191evidence bears this out. Further, he agrees that he is required

4202to repay the amount of his salary overpayments. He contends

4212that the calculation of any overpayment could not begin until

4222July 12, 2007, when he physically received President Ammons’

4231June 9, 2007, letter, concerning his removal from administrative

4240duties as interim dean and change-in-assignment to associate

4248professor, but even so, he has signed two associate professor

4258contracts, each of which specify a term of July 1, 2007, to

4270June 30, 2008, and he has taken no steps to repay amounts he

4283apparently agrees are incorrect, running July 13, 2007, to

4292July 26, 2007.

429552. The parties, by their actions and reliance upon their

4305final associate professor contract, and specifically by

4312Respondent’s signing that contract clearly labeled “revised,”

4320which specifies a term of employment as associate professor from

4330July 1, 2007, to June 30, 2008, and Respondent’s acceptance of

4341pay pursuant to that contract’s specified salary for an

4350associate professor, including FAMU’s lump sum payment to

4358correct errors in the first associate professor contract ( see

4368Findings of Fact 9, 25, 27, 34, and 40), establish that the

4380parties, including Respondent, intended to be bound by the terms

4390of the second/revised associate professor contract retroactive

4397to July 1, 2007. Having signed that revised contract which

4407established his associate professor employment dates; having

4414accepted payment pursuant to that contract; and having twice not

4424timely pursued a grievance concerning his transfer to associate

4433professor/non-dean status retroactive to July 1, 2007,

4440Respondent is hard put to now claim that July 12, 2007, or any

4453date other than July 1, 2007, is the date that he was reassigned

4466from the interim dean position to a tenured teaching position.

4476The fact that he has not reimbursed FAMU for overpayments from

4487July 12, 2007, (the date he now contends might be appropriate)

4498to July 26, 2007, diminishes his argument.

450553. Respondent's argument herein is further diminished by

4513his retention of the lump sum reimbursement by FAMU to reconcile

4524underpayments to the amount in the revised associate professor

4533contract. ( See Findings of Fact 27 and 34.) “A party’s right

4545to rescind is subject to waiver if he retains the benefits of

4557the contract after discovering the grounds for recission.”

4565Mazzoni Farms, Inc. v. E.I. DuPont DeNemours and Co. , 761 So. 2d

4577306 (Fla. 2000), answer to certified question conformed to 221

4587F.3d 1199 (11th Cir. 2000), and answer to certified question

4597conformed to , 223 F.3d 1275 (11th Cir. 2000).

460554. Pursuant to FAMU Board of Trustees Policy No. 2005-15,

4615adopted June 30, 2005, which has been in effect at all times

4627material, Respondent had no property interest or tenure in his

4637administrative capacity as interim dean and could have his

4646administrative responsibilities removed at any time by the

4654university president.

465655. Although Respondent disputes the beginning date of his

4665faculty employment contract as an associate professor, the

4673evidence clearly shows that his duties and responsibilities as

4682interim dean were removed effective July 2, 2007. Such

4691employment action was consistent with the provisions of FAMU

4700Regulation 2005-15 and Rule 10-209. In fact, Respondent

4708acknowledges that he became aware on Monday July 2, 2007, of

4719President Ammons' decision to reinstate Dr. Lewis as the Dean of

4730COPPS. Thus, Respondent knew that his services as interim dean

4740were no longer required by FAMU on July 2, 2007, and he

4752acknowledged, in two successive contracts, a beginning date of

4761July 1, 2007, as associate professor.

476756. Respondent resists any obligation to repay FAMU for

4776the portion of its claim that constitutes the federal tax

4786consequences of Respondent’s failure to pay back, before

4794December 31, 2007, the amounts requested by FAMU, because he

4804contends that the tax consequences are the result of FAMU not

4815referring him for an administrative hearing before December 31,

48242007.

482557. Respondent’s chagrin over the delay in getting to

4834hearing is understandable, but there is no guarantee that an

4844immediate referral to DOAH in October 2007, would have resulted

4854in a favorable resolution for Respondent or even a resolution

4864sufficiently speedy to allow him to pay the money he owed before

4876the end of 2007.

488058. Pursuant to the pertinent provisions of Volume V,

4889Section 6, of the Bureau of State Payrolls' Manual, calculations

4899for salary overpayments not repaid in the same calendar year are

4910resolved as follows:

4913The agency will have to re-enter the salary

4921refund record in the new year and advise the

4930employee of the amount owed to the agency.

4938When a salary overpayment is repaid and

4945fully processed in the same year in which

4953the overpayment occurred, the employee's

4958taxable gross, social security gross,

4963Medicare gross, federal withholding tax,

4968social security taxes, and Medicare taxes

4974are adjusted. Overpayment not repaid in the

4981same calendar year in which the overpayment

4988occurred will NOT have taxable gross of

4995federal withholding tax adjusted.

499959. Due to Respondent's failure to repay the instant

5008salary overpayment prior to December 31, 2007, FAMU

5016appropriately re-entered the salary refund record in the new

5025year 2008, and advised Respondent of the new amount owed to FAMU

5037totaling $2,603.86. This new payment amount is consistent with

5047the requirements of the Bureau of State Payrolls' Manual to not

5058have taxable gross of federal withholding taxes adjusted.

506660. Filing an amended federal tax return after he has paid

5077the amount due to FAMU is not out of the question and may

5090resolve some of Respondent’s money troubles.

509661. The evidence clearly shows that Respondent received

5104inappropriate salary overpayments. There is no dispute that

5112these overpayments total $2,603.86. Petitioner has the

5120authority to recoup salary overpayments from Respondent. New v.

5129Department of Banking and Finance , 554 So. 2d 1203 (Fla. 1st DCA

51411989).

5142RECOMMENDATION

5143Based on the foregoing Findings of Fact and Conclusions of

5153Law, it is

5156RECOMMENDED that a final order be entered requiring

5164Respondent to repay $2,603.86, to Florida Agricultural and

5173Mechanical University.

5175DONE AND ENTERED this 26th day of January, 2009, in

5185Tallahassee, Leon County, Florida.

5189S

5190___________________________________

5191ELLA JANE P. DAVIS

5195Administrative Law Judge

5198Division of Administrative Hearings

5202The DeSoto Building

52051230 Apalachee Parkway

5208Tallahassee, Florida 32399-3060

5211(850) 488-9675 SUNCOM 278-9675

5215Fax Filing (850) 921-6847

5219www.doah.state.fl.us

5220Filed with the Clerk of the

5226Division of Administrative Hearings

5230this 26th day of January, 2009.

5236ENDNOTES

52371/ The Pre-hearing Stipulation, admitted as Joint Exhibit A,

5246owed. However, that was not stipulated as a “fact, requiring no

5257further proof”, and the evidence herein shows that the figure of

5268$2,603.86, was acknowledged and addressed by both parties

5277throughout trial of the case.

52822/ “Hard copy” of Policy 2005-19, was admitted in evidence as

5293FAMU Exhibit 6.

52963/ FAMU Regulation 10.207 was not provided nor offered in

5306evidence. In the course of preparing this Recommended Order,

5315and after giving telephone notice to Respondent, the undersigned

5324requested a copy of the regulation and received a copy thereof

5335from FAMU’s counsel. This regulation requires various types of

5344written notice in cases of non-reappointment, and is irrelevant

5353to the instant case.

53574/ This is a clearly erroneous concept.

5364COPIES FURNISHED:

5366Avery D. McKnight, Esquire

5370Florida A&M University

5373Office of the General Counsel

5378Suite 300, Lee Hall

5382Tallahassee, Florida 32307

5385Dr. Robert L. Thomas

538910548 Coral Key Avenue

5393Tampa, Florida 33647

5396Deborah K. Kearney, General Counsel

5401Department of Education

5404Turlington Building, Suite 1244

5408325 West Gaines Street

5412Tallahassee, Florida 32399-0400

5415Dr. Eric J. Smith

5419Commissioner of Education

5422Department of Education

5425Turlington Building, Suite 1514

5429325 West Gaines Street

5433Tallahassee, Florida 32399-0400

5436NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5442All parties have the right to submit written exceptions within

545215 days from the date of this Recommended Order. Any exceptions

5463to this Recommended Order should be filed with the agency that

5474will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/18/2009
Proceedings: Final Order filed.
PDF:
Date: 02/12/2009
Proceedings: Agency Final Order
PDF:
Date: 01/26/2009
Proceedings: Recommended Order
PDF:
Date: 01/26/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/26/2009
Proceedings: Recommended Order (hearing held October 22, 2008). CASE CLOSED.
PDF:
Date: 01/15/2009
Proceedings: Regulations of Florida A&M University (Nonreappointment of Non-tenured or Non-permanent Status Faculty) filed.
PDF:
Date: 11/25/2008
Proceedings: (Petitioner`s) Proposed Recommended Order filed.
PDF:
Date: 11/21/2008
Proceedings: Order (style is amended).
PDF:
Date: 11/06/2008
Proceedings: Post-hearing Order.
Date: 11/05/2008
Proceedings: Transcript filed.
Date: 10/22/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/07/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 22, 2008; 10:00 a.m.; Tallahassee, FL).
PDF:
Date: 10/03/2008
Proceedings: Motion for Continuance filed.
PDF:
Date: 09/18/2008
Proceedings: Pre-hearing Stipulation filed.
PDF:
Date: 08/28/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/28/2008
Proceedings: Notice of Hearing (hearing set for October 8, 2008; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 08/25/2008
Proceedings: Response to Initial Order filed.
PDF:
Date: 08/20/2008
Proceedings: Initial Order.
PDF:
Date: 08/20/2008
Proceedings: Notice of Salary Overpayment filed.
PDF:
Date: 08/20/2008
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 08/20/2008
Proceedings: Agency referral filed.

Case Information

Judge:
ELLA JANE P. DAVIS
Date Filed:
08/20/2008
Date Assignment:
08/20/2008
Last Docket Entry:
02/18/2009
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

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Related Florida Statute(s) (3):

Related Florida Rule(s) (1):