08-004095
Florida A And M University vs.
Robert L. Thomas
Status: Closed
Recommended Order on Monday, January 26, 2009.
Recommended Order on Monday, January 26, 2009.
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 Petitioners
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 Respondents 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
345hard 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.
385Petitioners 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. Respondents 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
598President/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] Presidents 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 FAMUs
935presidents 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. Respondents 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 Respondents 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. Lewiss retroactive appointment as
1591Dean of COPPS for the period July 1, 2007, through June 30, 2008,
1604the same period as was set forth in Respondents 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
1653Respondents 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 employees return to his or her
1769original responsibilities, the pay may be
1775adjusted to the employees 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 Presidents 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,
2019Respondents 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 Deans 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), Respondents 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, FAMUs payroll office took steps to correct
2531Petitioners 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,
2583FAMUs 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, FAMUs 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. Lesters 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. Lesters 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 Respondents 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. Lesters subordinate who had in-put Respondents salary
3000information. Respondent did not then, and does not now, disagree
3010with FAMUs 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 FAMUs 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 provosts and
3158university attorneys 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 FAMUs
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 Respondents 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 Respondents right to the interim
3739deans salary ended on July 2, 2007, when President Ammons
3749announced the appointment of Dr. Lewis as Dean; that Respondent
3759was overpaid at the interim deans 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 FAMUs
3793president signed one of the associate professor contracts,
3801Respondent had a valid interim dean contract. Since FAMUs
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, Respondents 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 deans 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 Petitioners 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
4312Respondents signing that contract clearly labeled revised,
4320which specifies a term of employment as associate professor from
4330July 1, 2007, to June 30, 2008, and Respondents acceptance of
4341pay pursuant to that contracts specified salary for an
4350associate professor, including FAMUs 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 partys 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 Respondents 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. Respondents 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 Respondents 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 FAMUs 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.
- Date
- Proceedings
- PDF:
- Date: 01/26/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 01/15/2009
- Proceedings: Regulations of Florida A&M University (Nonreappointment of Non-tenured or Non-permanent Status Faculty) filed.
- 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).
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
-
Avery McKnight, General Counsel
Address of Record -
Robert L. Thomas
Address of Record -
Avery D. McKnight, General Counsel
Address of Record -
Avery D. McKnight, Esquire
Address of Record