Findings Of Fact Petitioner is a permanent Career Service employee of the Department of Offender Rehabilitation (DOR), State of Florida, who was serving as a Planner and Evaluator II, Class Code 5291, Position No. 04038, Planning and Development Section, Bureau of Planning, Research and Statistics, in July, 1977. (Composite Exhibit 3) The 1977 Florida Legislature reduced the number of authorized positions in the DOR through "productivity adjustment," effective July 1, 1977. By letter of July 26, 1977, the Secretary of the DOR requested the Secretary of Administration to approve a statewide competitive area for the positions to be abolished. By letter of July 27, the Secretary of Administration approved the requested competitive area to include all organizational units on a statewide basis within the Department. At that time, the DOR had four positions in the class of Planner and Evaluator II. These were then held by Petitioner, Sunil Nath, Position 00053, Edward M. Teuton, Position 07974, and Bill C. Schnitzer, Position Number 03756. All of these positions except Position 07974 were abolished as a result of the legislative mandate. The incumbents of the four positions met with Mr. James A. Ball, DOR Personnel Officer, on or about July 28, 1977. At that time, he informed them of the position deletions and consequent necessary layoffs. Ball indicated in his comments to the group that the Petitioner would not be adversely affected because he had the greatest number of retention points of the four individuals. It was further indicated by Ball to Petitioner at this meeting and in later discussions that Petitioner would assume the duties of the remaining Position 07974 and proceed to "phase in" to the job. By letters dated August 5, 1977, Nath, Teuton and Schnitzer were notified by the Secretary of the DOR of their layoff under State Personnel Rule 22A-7.11, and advised of their options and rights under pertinent law. (Composite Exhibits 1-4, Testimony of Ball, Fitzgibbon) By letter of August 31, 1977, to the State Personnel Director, the Secretary of the DOR requested that selective competition be approved under State Personnel Rule 22A-7.11(3) for the position of Planner and Evaluator II, DOR, Class Code 5291, Position Number 07974, among persons affected by layoff in the Department. The letter stated: The specific background necessary to perform the job requirements of this unique position of Mutual Participation Program Administrator are reflected below and relate directly to the duties of the position as reflected on the official Position Description, a copy of which is attached. The letter further indicated the particular qualifications for the position. The Position Description attached to the letter set forth the duties and responsibilities of the job, but did not specify particular qualifications required of the incumbent. Conley M. Kennison, State Personnel Director, in a letter of September 8, 1977, approved selective competition for the position in question "In accordance with Section 22A-7.11(3), Personnel Rules and Regulations, F.A.C., and based on the specific qualifications required of this position to function as the coordinator for the Mutual Participation Program as substantiated by the Position Description you submitted." The concept of selective competition for a position arises only in layoff situations. Under normal layoff procedures, an employee's number of retention points computed under Rule 22A-7.11 determines priority for available remaining positions. However, if selective competition is used, only those employees possessing the special qualifications for a particular position are eligible to compete therefor, and if several have the necessary qualifications, the employee with the highest retention points is selected. Approval for selective competition is based on special qualifications that must be derived from the official Position Description. In such cases, an economic impact statement is not prepared nor are the normal procedures for promulgation of a rule. Neither are Position Descriptions promulgated as rules under Chapter 120, Florida Statutes. Minimum qualifications for a particular class of positions are set forth in separate documents called Class Specifications. Position Descriptions are prepared by the affected agency and approved by the Department of Administration. In the instant case, the Deputy State Personnel Director approved selective competition for Position 07974 based upon qualifications considered necessary from the duties and responsibilities shown in the Position Description. (Composite Exhibit 2, Testimony of Dean) After approval had been obtained for selective competition for Position 07974, it was determined by DOR that only Edward M. Teuton, the incumbent of that position, possessed the necessary qualifications. As a result, Petitioner, who had no prior knowledge that selective competition was to be applied, was orally informed by his supervisor on September 13 or 14 that he would not receive the position and that Teuton would retain the same. On September 19, he received a letter dated September 14, 1977, from the Secretary of the DOR, which provided formal notice of layoff, and informed him of his right to appeal such action and to request demotion or reassignment to a position for which he might be eligible. He thereafter appealed the layoff and requested demotion in lieu thereof based on information received from the Department Personnel Officer who told him that he would have to take such action in order to retain state employment. (Composite Exhibit 4, Testimony of Petitioner)
Findings Of Fact 1. Mrs. Dunham began her employment with the Respondent School Board in 1959. When she began her first position was Accounting Clerk, Pay Grade 12. Presently, she holds the position of Accountant, Pay Grade 23. In August of 1972 the Petitioner was promoted to the position of Accounting Contract Specialist. The individual who had held this position, Mr. Ray Groseclose resigned and Petitioner was promoted to that position. While Mr. Groseclose was in that position it was classified as Pay Grade 26 with a salary of $3.90 per hour. When the Petitioner was promoted to that position she had been classified as Pay Grade 15. Shortly after the Petitioner's promotion to the Accounting Contract Specialist the position was downgraded from a Grade 26 to a Pay Grade Actually, the Petitioner was never paid at the Grade 26 level and her first increased pay check reflected the Grade 21 classification. The Petitioner contends that the failure to promote her into this position at the same pay grade that was enjoyed by her male predecessor indicates sexual discrimination against her for which she should be granted relief in the form of back pay due. The Accounting Contract Specialist position required one holding that position to monitor contracts entered into by the school board and determine that payments were made when required and that a bookkeeping system was maintained to keep track of the status of school board contracts. Ray Groseclose, who held the position prior to the Petitioner's appointment, had no formal education in the field of accounting or bookkeeping, however, he did receive some training in that area while with the Armed Forces. Likewise, the Petitioner had no accounting background, but her experience and initiative were enough for her to perform very satisfactorily in this position. All witnesses who testified regarding the Petitioner's ability stated that she did equally well, if not better, than Mr. Groseclose and assumed more duties than he had in that position. The Petitioner testified that she did not learn until September of 1973, a year after her promotion, that the position was previously classified as a Grade 26. However, when receiving her appointment papers in September of 1972, the Petitioner did sign a notice of reclassification for which indicated that the job was being downgraded. On behalf of the Respondent, testimony was received from Dr. D.J. Harrison, who was now the superintendent of the Savannah-Chatham School Board, Savannah, Georgia. Previously, between 1971 and 1973, he was employed by the Brevard County School Board and among his duties he was supervisor over the Accounting Contract Specialist. Dr. Harrison testified that while Ray Groseclose held that position he had intended to downgrade it, but had not done so before Ray Groseclose resigned. He stated that the position as originally assigned, included the administration of contracts. After Groseclose resigned it was decided to limit the job to accounting and that a Mr. Campbell would handle the administration of contracts. Other testimony, however, indicated that Ray Groseclose never handled the administration of contracts and that the Petitioner actually performed more responsibilities than were assigned to Ray Groseclose. In any case, it appears that the school board came to a realization that the Accounting Contract Specialist position could be filled by a competent individual at a Pay Grade 21 rather than Pay Grade 26 and that when Ray Groseclose resigned it appeared to be a convenient opportunity to downgrade the position. The evidence presented at this hearing does not affirmatively establish discrimination against the petitioner. It is possible the position in question was downgraded because of the petitioner's sex, but a finding of fact cannot be based on a mere possibility. All the evidence presented at this proceeding is consistent with valid administrative practiced on the part of the school board. No evidence was presented on behalf of the petitioner to indicate other examples of possible sexual discrimination on the part of the School Board which could establish a coarse of conduct. In fact, evidence was presented that the U.S. Department of Labor investigated the respondent school board and concluded, with the possible exception of the petitioner, there were no examples of sex discrimination evident. If there was any sexual discrimination practiced against the Petitioner, none was proven. All that is indicated by the evidence taken in this case is that the Petitioner was promoted from a position with the Brevard County Board from a Grade 15 to a Grade 21. The position to which she was promoted was downgraded at approximately the time of her promotion but it does not appear that the Petitioner's sex had anything to do with the downgrading of this position.
Findings Of Fact William H. Mathias was initially employed by SWFWMD as Director of Employee Relations on January 30, 1980, at pay grade At the time of Petitioner's employment William C. Tatum was Executive Director of SWFWMD. Petitioner has over ten years' experience in personnel relations and security and holds two master's degrees. Due partly to Petitioner's aggressiveness and strong personality, he began exerting influence in the personnel division in pushing the Personnel Department in directions not necessarily approved by Tatum. Tatum wanted to reduce the influence the Personnel Department was having on SWFWMD. On July 26, 1982, Petitioner was transferred to the Field Operations Division with no change in grade. Exhibit 5, which announced this transfer, stated Petitioner was transferred as Assistant Director. On July 28, 1982, a subsequent memorandum, Exhibit 6, was issued by Tatum changing Petitioner's title from Assistant Director to Acting Administrative Assistant. Prior to this transfer Tatum spoke with William F. Sietman, Director of Field Operations, who advised Tatum that he had no need for Petitioner in the Field Operations Division however, Tatum insisted that Petitioner, with his two master's degrees, could make a valuable contribution to SWFWMD if placed in the right niche. Shortly thereafter, Tatum was replaced as Executive Director by Gary W. Kuhl, who was promoted to that position from Assistant Executive Director. The first evaluation report submitted by Sietman on Petitioner, at the end of his first six months on the job, was unsatisfactory. Petitioner appealed to Kuhl, who withdrew his evaluation partly because no job description had been prepared for the position occupied by Petitioner. Kuhl directed the preparation of a job description for the work to be done by Petitioner. When the job description_ was prepared, the position was given the title of Program Management Analyst and the duties to be performed are as contained in Exhibit 1. Principally, Petitioner's function was to do some coordinating of the budgets prepared by the various sections in Field Operations, coordinate planning and negotiate and oversee the building maintenance contract. This position was a staff function as opposed to a line function in which the incumbent would exercise direction, or command, over the section heads. As a staff function his duties were coordination as opposed to direction. Subsequent to his initial unsatisfactory evaluation at the end of his six months probationary period, Petitioner's evaluations improved each evaluating period and at the time of his termination his performance can be described as very good. However, on several occasions complaints about Petitioner giving personnel advice to Respondent's employees regarding overtime, job classifications, and pay grades reached Kuhl. This was the subject of a memorandum addressed to Petitioner and Sietman by Kuhl on May 15, 1984 (Exhibit 7). Petitioner was told to leave personnel matters and advice to the Personnel Department or face disciplinary action. Changes in the functions imposed on Respondent in 1984 necessitated the employment of additional technical people and the establishment of additional technical positions at SWFWMD. The Governing Board indicated to the Executive Director that the budget could not be raised by the amount needed to fund all of these positions and that cuts would have to be made. Kuhl met with the various division heads to require more justification for the proposed new positions and to ascertain which existing positions they could eliminate. This resulted in a proposed list of positions including the librarian, Petitioner's position, and other positions currently unoccupied. As a result of these discussions it was concluded the unfilled positions and the position of Program Management Analyst could be eliminated. By memorandum dated August 17, 1984 (Exhibit 4), Kuhl advised the Governing Board of the proposed reduction in work force. By letter dated August 20, 1984 (Exhibit 15), Kuhl advised Petitioner that the position of Program Management Analyst was eliminated effective immediately and that he was eligible to apply for any other position in SWFWMD for which he was qualified. Petitioner appealed the termination to the Governing Board and, when the Board affirmed his termination, he filed the instant petition. Prior to the transfer of Petitioner to the Field Operations Division, the budget was prepared by each section chief for his section, and the division director coordinated the budgets. While Petitioner was assigned to Field Operations, he performed this budget coordination role previously taken by the director. When Petitioner's position was eliminated, the division reverted to the way it operated before Petitioner's arrival, with little, if any, noticeable effect. The role Petitioner had assumed in supervising the maintenance contract also reverted back to where it was before Petitioner's arrival, again with no noticeable effect.
Findings Of Fact The parties stipulated that respondent, Lavern W. Burroughs, began work with the Department of Health and Rehabilitative Services (HRS) on July 1, 1987, and that she was not present for work on July 22, 25, or 26 of 1988. Between March 3, 1988, and July 7, 1988, Ms. Burroughs, a clerk typist, was absent on fourteen occasions. Each time "LW" was entered beside her name on an attendance and leave sheet. "LW" is used when an employee has used up all sick and annual leave, but is nevertheless authorized to take leave. The designation LW means leave without pay, but it does not indicate whether leave was authorized or unauthorized. In December of 1987, Ms. Burroughs had received a "conference letter," HRS' Exhibit No. 1, after discussing her attendance problems with Mr. Weston and his immediate supervisor, Mr. Mathis. On April 15, 1988, Mr. Weston sent her a letter in 4 which he reprimanded her for being absent without leave. HRS' Exhibit No. 2. The letter stated: It is hoped that you will view this disciplinary measure in a constructive manner and there will not be a recurrence of this nature. However, you are cautioned that further offenses of this standard will result in more stringent disciplinary measure of a ten (10) days suspension without pay up to dismissal. Mr. Mathis testified that the ordinary practice, if petitioner's absenteeism had been handled as a career service matter, would have seen a ten (10) day suspension as HRS' next response, in the event of another unauthorized absence; and that dismissal would not have occurred, unless the ten (10) day suspension failed to cure the problem. On Thursday, July 14, 1988, Ms. Burroughs went to work, as it turned out, for the last time. The next morning she called in, shortly after 9:00 o'clock, to report that she had received notice of judicial proceedings designed to foreclose on her house. Unable to reach Mr. Weston, she asked for his supervisor, Mr. Mathis. Unable to reach him, she spoke to Ms. Evan Gibson, Mr. Mathis' secretary, and told her that she would not be coming to work. Ms. Gibson said she would relay the message. Ms. Burroughs left for Georgia in an effort to obtain money from a cousin with which to retain a lawyer to represent her in the foreclosure proceedings. The next Monday, July 18, 1988, Ms. Burroughs' daughter, Sheronda, telephoned HRS' Jacksonville offices. Apparently she spoke to Mr. Weston when she reported that Ms. Burroughs had trouble with her eye. On July 20, 1988, Ms. Burroughs telephoned herself. Again unable to reach Mr. Weston, she ended up telling Ms. Gibson that her eye was running and painful. Also on July 20, 1988, she visited the Riverside Clinic, received a prescription for erythromycin, and filled it that day. A nurse filled out a form employee's medical excuse saying that Ms. Burroughs had been under the care of a doctor at the clinic "and may return to work on 7/21/88." Joint Exhibit No. 1. Mr. Weston has never denied an employee's request for sick leave. Ms. Burroughs had been granted sick leave on more than three occasions and had produced a doctor's statement on each occasion. On Thursday, July 21, 1988, Ms. Burroughs called and spoke to Mr. Weston. In a telephone conversation that lasted perhaps two minutes, she told him about the problem with her eye, and also spoke to him about the threatened foreclosure. She did not say when she would return to work, but it was clear that she was not coming in that day. After Mr. Weston responded, "Okay," his only contribution to the conversation, Ms. Burroughs said goodbye and hung up. She did not explicitly ask for leave, even as she had never done before. Her eye stopped running on July 25, 1988, a Monday. On July 26, 1988, Ms. Burroughs set out for work, having spent, she testified, all her money, except for a quarter she had with her, on gasoline, for transportation to and from work that week. When her car overheated on 1-495 she was obliged to cut her journey short. She used her only quarter to telephone her brother's house, where a sister also lived. She asked this sister to call work to tell them what had happened. Instead, a friend, Wanda Stewart, learned the circumstances from Ms. Burroughs' sister, and made the telephone call to report why petitioner would not be in that day. Anna Williams, who worked in Mr. Weston's unit last summer, took the call. Because he was not in the office, she relayed the message to Mr. Mathis' secretary. When Ms. Burroughs' called herself, on July 27, 1988, she was informed she no longer had a job.
The Issue Did Respondent, Highlands County Board of County Commissioners (County), discriminate against Petitioner, Annette Whitner, on account of her age?
Findings Of Fact At the time of the alleged discrimination, Ms. Whitner was 71 years old. Ms. Whitner claims that the County discriminated against her by not interviewing her for its business services director position due to her age. Ms. Whitner claims that she was discriminated against because the position required an applicant to be a Certified Public Accountant (CPA). She argues that older people are less likely to hold a CPA certification. The weight of the credible evidence did not establish this claim. Ms. Whitner did not establish any connection between possessing a CPA certification and age. On November 10, 2014, the County posted the position online. It was a newly created position, established as part of a reorganization by the County. Because of previous audit errors and the departments the position would oversee, the County determined the minimum qualifications for the position should be: Bachelor’s degree with major course work in public administration, business administration, accounting, finance or related field and possession of Certified Public Accountant (CPA) professional certification or equivalent is required. Master degree in business administration, finance management, public administration, or related discipline is preferred. In determining the equivalent to a CPA, the County referred to the Guide for Certifications for Accounting, Finance and Operations Management (Guide). This was a reasonable non- discriminatory decision. Based on the Guide, the County determined a Certified Government Auditing Professional, Certified Governmental Financial Manager, and Certified Internal Auditor would constitute an equivalent to a CPA certification. The certifications were deemed equivalent because they required similar education, experience, and completion of an examination, similar to one taken for a CPA certification. The closing date for all applicants was December 15, 2014. Ms. Whitner submitted her application near midnight of December 15. Ms. Whitner is not a CPA. In addition, Ms. Whitner did not follow the instructions on the application. She scratched out the instructions on the application and wrote “first” above where it read “current or most recent employer.” Ms. Whitner’s application contained typed and handwritten information. Ms. Whitner’s application did not provide her complete work history as the application instructed. In one of the fields of employment, after 1992, Ms. Whitner wrote “various employers.” Ms. Whitner’s application left an unexplained gap in work history, from 1992 to the present. Ms. Whitner’s application included copies of her Bachelor of Science in Business Administration degree, Master of Public Affairs degree, certification as a Certified District Manager, Certificate of Recognition from the Indiana Executive Program, and a letter of reference from Al Grieshaber, General Manager at Sun ‘N Lake of Sebring, dated February 8, 2010. Ms. Whitner’s application indicated she had a certification as a Certified Professional Government Accountant. Ms. Whitner asserts that a certification as a Certified Professional Government Accountant should be equivalent to a CPA certification. However, the Guide does not include a certification for a Certified Professional Government Accountant as a CPA equivalent, nor does the County consider it equivalent. Additionally, Ms. Whitner did not attach a copy of her certification or provide persuasive evidence of the certification criteria and their similarity to CPA criteria. The County could not determine if Ms. Whitner had worked since 1992. Ms. Whitner argues that her letter of reference from Al Grieshaber demonstrated her employment since 1992. However, the letter did not include the dates Ms. Whitner worked, the position held, or her duties and the type of work she performed at Sun ‘N Lake of Sebring. Randal Vosburg, Assistant County Administrator, was involved in the hiring and selection process for the position. The primary criteria he was looking for when reviewing the applications was whether the applicant had a CPA. Mr. Vosburg did not have any contact with Ms. Whitner and did not know her age when reviewing her application. Mr. Vosburg did not consider Ms. Whitner’s age when reviewing her application. The County did not select Ms. Whitner for an interview because she was not a CPA and did not possess a certificate that is equivalent to a CPA certification. Additionally, Ms. Whitner presented an unprofessional application, did not provide a complete work history so that there appeared to be more than a twenty-year gap in employment, and did not follow the instructions on the employment application. These were all reasonable non-discriminatory bases for deciding not to interview Ms. Whitner. On January 5, 2015, Ms. Whitner submitted an addendum to her employment application. This was after the application deadline and after the County had selected candidates to interview. Ms. Whitner’s addendum did not provide documentation or certification that she possessed a CPA certification or the equivalent. The County selected Tanya Cannady and Stanoil Raley for interviews. Both possessed CPAs. Both were reasonably deemed to be more qualified than Ms. Whitner. A panel of three people interviewed Ms. Cannady and Mr. Raley. Randal Vosburg, June Fisher, County Administrator, and Mark Hill, then-Development Services Director, served on the panel. Ms. Cannady performed much better than Mr. Raley during the interview. Additionally, Ms. Cannady’s work experience was more relevant to the position than Mr. Raley’s work experience. The County selected Ms. Cannady for the position because she met the requirement of having a minimum of five-years of progressively responsible relevant experience, was a CPA, and was more qualified than Mr. Raley and the other applicants. The County offered the position to Ms. Cannady. She did not accept the offer and withdrew her application. On August 5, 2015, the County re-posted the position online. The county changed the CPA requirement from “required” to “preferred” because the County was having trouble finding CPA applicants. Ms. Whitner did not reapply for the position. The County conducted additional interviews and selected Tasha Morgan. Ms. Morgan was female and was a CPA. The preponderance of the credible, persuasive evidence did not establish that the County discriminated against Ms. Whitner due to her age. The preponderance of the credible, persuasive evidence established that the County had legitimate non-discriminatory reasons for not interviewing Ms. Whitner.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the petitioner's action of suspending respondent for three days without pay be AFFIRMED. DONE and ORDERED this 9th day of December, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: George L. Waas, Esquire Staff Attorney, HRS 1323 Winewood Boulevard Suite 406 Tallahassee, Florida 32303 William J. Manikas, Esquire 1215 Thomasville Road Jacksonville, Florida 32303 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact The State of Florida, acting through Petitioner, certified Respondent as a correctional officer and, on February 17, 1988, issued to her Certificate number 03-87-502-08. On September 21, 1987, Respondent began employment with the Florida Department of Corrections as a correctional officer at Broward Correctional Institution (BCI). On May 16, 1988, Respondent's employment with BCI was terminated. Since Respondent was still in the probationary period with BCI, it was not necessary for BCI to provide an official reason for the termination of Respondent's employment. The unofficial reason for the termination was that Respondent had failed to report to work. BCI routinely uses an attendance and leave report form covering two calendar weeks as the basis for the issuance of salary warrants and for the accruement of leave and other benefits associated with state employment. These Attendance and Leave forms have a space for the hours worked during each day of the two week period, a space for the number of hours of authorized leave taken for each scheduled work day of the two week period, a space for scheduled days off, and a place to insert the code number for the type of leave taken. Among the several types of leave available to an employee (assuming that the employee had accrued leave available) were "annual leave", "family sick leave", "sick leave", and "unauthorized leave without pay." These leave forms are usually kept in the Lieutenants' complex in books according to shifts. Each correctional officer normally completes his or her form at the end of the pay period. It is not unusual for a correctional officer to sign and to postdate the leave form if the officer does not anticipate being at work on the last day of the pay period. Thursday, April 14, 1988, was the end of a two week pay period. On April 14, 1988, Respondent received a telephone call from her husband and was told by her husband that their two year old child, who had a history of extended illnesses, was sick and would require hospitalization. Respondent informed her supervisor, Lieutenant Bernstein of her child's illness. At that time, Respondent did not know how much time she would miss because of the child's illness. Lieutenant Bernstein told Respondent to be sure to sign her Attendance and Leave Form before she left. The form Lieutenant Bernstein referred to was for the period that ended April 14, 1988. Respondent misunderstood his instructions and thought he meant that she should sign the form for the upcoming two week pay period. For the two week period beginning Friday, April 15, 1988, Respondent was scheduled to work an 8-hour shift at BCI on each of the following days April 15, 16, 17, 18, 21, 22, 23, 24, 25, and 28, and was scheduled to be off April 19, 20, 26, and 27. Respondent did not report for work at BCI at any time during this two week period. On April 14, 1988, Respondent partially completed and signed an attendance and leave form covering the period April 15-28, 1988. She signed the form on April 14, 1988, but she wrote the date April 28, 1988, next to her signature. Her signature was directly underneath the following declaration: I HEREBY CERTIFY THAT I HAVE REVIEWED THIS REPORT AND THAT IT REPRESENTS A TRUE AND CORRECT RECORD OF THE REGULAR HOURS WORKED, AUTHORIZED OVERTIME AND AUTHORIZED LEAVE. Respondent left the form she had signed April 14, 1988, and dated April 28, 1988, in the book in the Lieutenants' complex. After Respondent completed her full shift on April 14, 1988, she left work and she did not again have access to her work area or to the leave form. Respondent partially completed the form before she left work on April She filled out the portions of the form that identified the form as being her form for the period April 15-28, she marked the days she was scheduled to be off, and she marked on the form the notation "4/15 - 4/28 Baby in Hospital" as the reason for the requested leave. There were three areas of dispute between the parties relating to the completion of the leave form. First, Petitioner contends that Respondent wrote on the form the notation "4/15 - 4/28 Baby in Hospital" in the space reserved for the insertion of the reason for the administrative leave. Respondent denies making that insertion. This dispute is resolved by finding, as contended by Petitioner, that Respondent did make that insertion on the form. The testimony of Petitioner's handwriting expert, who positively identified the handwriting "4/15 - 4/28 Baby in Hospital" as being the handwriting of Petitioner is found to be more credible than the denial by Respondent that she did not make that insertion. Consequently, the testimony of Petitioner's expert is accepted and the testimony of Respondent, on this matter, is rejected. Next, Respondent disputes Petitioner's contention that she inserted on the leave form the request for either family sick leave or sick leave for each of her scheduled work days during the two week period. Finally, Respondent disputes Petitioner's contention that she inserted on the form the number of hours of leave requested for each scheduled work day. These last two areas of dispute are resolved by finding that someone other than Respondent completed these portions of the form. Petitioner's handwriting expert did not refute Respondent's denial that she completed these portions of the form. Additionally, Respondent knew at the time that she signed the leave form on April 14, 1988, and dated it April 28, 1988, that she had only six hours of sick leave available for her use and that she had 40 hours of accrued annual leave. Respondent would have had no reason to fill out the forms so as to claim some 80 hours of sick leave when she knew that she had such a limited amount of sick leave. Upon termination, correctional officers are entitled to accrued annual leave, but not for accrued sick leave. Respondent's child was not hospitalized between April 15-18, but Respondent was home attending to her sick child on those days. Respondent spoke with Lieutenant Bernstein or Lieutenant Jackson, another supervisor, to keep them advised of her situation during these four days. April 19 and 20 were her regularly scheduled days off, so she made no effort to contact BCI. On April 20, 1988, Respondent was contacted by Metro Dade Corrections and Rehabilitation (MDC) about a job for which she had applied prior to her employment with BCI. Respondent was excited about this job opportunity because she had wanted to work for MDC for a long time. She reported to the MDC personnel office as instructed late on the afternoon of April 20, 1988. On April 21, Respondent began full-time employment with MDC and began orientation and training with MDC as a correctional officer. The reason for the short notice to Respondent was that there had been an unexpected vacancy in the MDC training class. Respondent's full-time employment with MDC continued until May 16, 1988. Respondent told MDC at some undetermined point in time that she had terminated her employment with BCI by the time she was hired by MDC on April 21. Respondent attempted to contact Lieutenant Bernstein on April 21 to advise him of her change in employment, but she was unable to reach him. The representation made by Respondent to MDC that she had in fact resigned her position at BCI by the time she was hired by MDC was false. On April 22, 1988, Respondent wrote a letter of resignation to BCI, had the letter notarized, and mailed the letter to BCI. BCI did not receive this letter and was not aware that Respondent was employed at MDC until an investigator with MDC contacted the BCI personnel office during the course of a routine background investigation of Respondent. On Saturday, April 23, Respondent attempted to return her uniform to BCI, but the booth officer told her that uniforms could only be returned to the personnel office between 8:00 A.M. and 4:00 P.M., Monday through Friday. Following the close of the April 15-28, 1988, period, Lt. Jackson, another of Respondent's supervisors, reviewed the form that Respondent had left in the book in the Lieutenant's complex and affixed his initials to the form to indicate his approval of the requested leave. Lt. Jackson later changed the leave from authorized sick leave to unauthorized leave without pay after it was determined that Respondent had failed to submit a doctor's certificate following three days of sick leave as was required by BCI's personnel rules. Respondent did not receive compensation for her employment with BCI after she became employed by MDC. On April 28, 1990, Respondent talked by telephone with Joan McKinley, a personnel technician at BCI, and discussed with her overtime pay for a prior pay period. During the conversation, Respondent stated that she was out of town for two or three weeks. Respondent did not state the reasons she was out of town, and the record is not clear that Respondent made that statement to justify her absence from BCI. Respondent did not discuss her new job at MDC, nor did she ask whether her letter of resignation had been received. Respondent assumed that her letter of resignation had been received. On or about May 9, 1989, Respondent talked by telephone with Paula Bussier, the personnel manager at BCI. Respondent told Ms. Bussier that she was looking forward to returning to work soon and that her child's health had improved. Respondent did not discuss her new job at MDC, nor did she ask whether her letter of resignation had been received. Officials at BCI learned of Respondent's new job when a MDC background investigator appeared at BCI to check Respondent's work record there. On May 16, 1989, Respondent's employment was terminated by BCI and by MDC. On August 29, 1988, Respondent was rehired by MDC. Since that time her job performance evaluations have been satisfactory or better and she has earned a reputation for honesty and integrity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which dismisses the Administrative Complaint filed against Respondent. DONE AND ENTERED this 1st day of June, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2771 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact submitted by Petitioner in Paragraph 5 are rejected to the extent the findings conflict with the findings made in Paragraphs 6-9 of the Recommended Order. The proposed findings of fact submitted by Petitioner in the first sentence of Paragraph 6 are rejected as being contrary to the findings made in Paragraph 9 of the Recommended Order. All other proposed findings of fact submitted by Petitioner are adopted in material part. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact submitted by Respondent in Paragraphs 13- 15 are rejected as being subordinate to the findings made in Paragraphs 6-9 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraph 16 are rejected as being subordinate to the findings made in Paragraph 14 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraph 23 are rejected as being subordinate to the findings made in Paragraph 11-12 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraphs 24, 25, 29, and 33 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact submitted by Respondent in Paragraphs 37- 45 are rejected as being subordinate to the findings made in Paragraph 19 of the Recommended Order. All other proposed findings of fact submitted by Respondent are accepted in material part. Copies furnished: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard E. Lober, Esquire 10680 N.W. 25th Street Suite 202 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Criminal Justice Standards Training Commssion Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner, Steven A. Ramunni (Petitioner), employed by a city as a part-time city attorney, is entitled to membership and service credit in the Florida Retirement System (FRS) from October 1, 2003, through the present.
Findings Of Fact Based on the evidence, the following Findings of Fact are determined. The City is a Florida municipal corporation classified as a local agency, which participates in the FRS. The city attorney is a regularly-established position, pursuant to Article IV of the Charter of the City. The City has no legal department. The cost for legal services rendered by its city attorney is included as a line item in the City's annual budget. The position is part-time, and Petitioner is permitted to engage in the private practice of law. The city attorney's immediate supervisors are the mayor and City Council of Moore Haven (City Council). Petitioner's primary legal duties consist of mandatory appearances at two regularly-scheduled monthly meetings and attendance at special meetings or workshops, scheduled by the mayor. The meetings always take place in City Council chambers in Moore Haven, Florida. Petitioner's legal duties and the dates and times of all meetings are subject to the discretion and control of the City Council. Petitioner regularly reports to City Council at each meeting. Petitioner provides legal advice/opinions to the mayor, City Council, and to all city department heads. City Council prioritizes all matters assigned to Petitioner. Petitioner represents the City in all litigation and official business. The Petitioner is paid a monthly salary for attendance at the above-described meetings and is obligated to be available, as needed, by city staff or individual council members on a daily basis, if necessary. The salary paid to Petitioner is in the form of W-2 wages, pursuant to the Internal Revenue Service classification. Other legal work is billed to the City by invoice in a pay-as-you-go basis for legal services requested beyond the scope of Petitioner's regular part-time services. The City provides administrative assistance to Petitioner when he is engaged in legal projects for the City and some supplies. Petitioner has no equipment and has limited office space on City premises. More recently, the City hired a city manager whose responsibility, in part, is to draft proposed legislation for review by Petitioner. All costs or expenses incurred by Petitioner are reimbursed by the City. The City hires and supervises the administrative staff. The City pays for legal seminars attended by Petitioner that are related to administrative and local government law. Petitioner is reimbursed for any per diem expenses incurred while performing the City's official business, including travel to and from those seminars. Petitioner has continuously performed legal services as the part-time city attorney since November 25, 1986. Petitioner is hired annually on October 1st (the beginning of the fiscal year), by the majority vote of City Council. Petitioner's services can be ended at will. Likewise, Petitioner can resign at will; there is no written employment contract with Petitioner. The City may not instruct Petitioner how to do his job as an attorney, although the City does have some control over what course of action or inaction he may take in a particular case. As a part-time city attorney, Petitioner may not substitute another attorney to provide legal services assigned to him by the City without expressed authority and approval of the proposed new attorney from City Council and the mayor. Pursuant to an oral employment agreement between Petitioner and City Council on October 1, 2003, Petitioner was included in the FRS. In addition, Social Security and Medicare taxes were paid by the City, and Petitioner was classified as a W-2 employee. The oral employment agreement has been renewed annually since October 1, 2003. However, on October 1, 2007, Petitioner was elevated to Senior Management Classification, under the State of Florida Classification System. Petitioner is paid as an employee. The City reports to state and Federal agencies that annual earned income to Petitioner as "wages for income tax purposes by form W-2." As such, Federal income taxes are withheld and Federal Social Security and Medicare deductions are withheld from Petitioner's annual pay. The City matches contributions for Petitioner's Social Security and Medicare payments. When not engaged in city business, Petitioner is a partner in a law firm, with its principal place of business in Ft. Myers, Florida, from which he offers his legal services to the general public. The City employs other part-time employees, who are all included in the FRS. All part-time employees, including Petitioner, do not receive any additional benefits from the City. Some of these part-time employees have "side jobs" while not in the employ of the City. At least one similarly-situated person, E. Dan Stevens (Stevens), who was employed as the part-time Hendry County attorney prior to 1997 and again in 1999, was not included in the FRS. Stevens, while serving as part-time Hendry County attorney, also maintained a private law practice in the State of Florida and also in the State of Michigan. The evidence demonstrates that the position of city attorney is a regularly-established position as defined by law and the rules of Respondent. The evidence demonstrates that Petitioner's relationship as the part-time city attorney is that of an "independent contractor" with the City, as that term is defined by law and rule. Therefore, he is not eligible for participation in the FRS from October 1, 2003, through present.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for membership and service credit in the FRS from October 1, 2003, through the present. DONE AND ENTERED this 3rd day of November, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2010.
Findings Of Fact On July 7, 1978, Petitioner, Amelia M. Park (Park), was hired as District VI Legal Counsel of Respondent, Department of Health and Rehabilitative Services (Department). The position was included in the Florida Career Service System, and Park obtained permanent status in the position in January 1979. The Legislature exempted the position from the Career Service System and made it a Senior Management Service position on November 12, 1981. On the morning of November 9, 1984, Park was in Bradenton to attend a hearing for the Department in Manatee County Court. She had scheduled a meeting with Bill Presmeyer at the Manatee Health Department, but the meeting was cancelled at the last minute. Because Park had pre-approved annual leave for the afternoon, she went to her vacation home located in Holmes Beach on Anna Maria Island. Late in the morning, Park received a telephone call from her secretary, Muriel Pages, who informed Park that Assistant District Legal Counsel, Dennis Palso, who had been on the job only one week, and District Program Manager, Stephanie Watson Judd, wanted to talk to her. Park knew or should have known that the matter to be discussed was considered important by the Department staff or they would not have telephoned her at her home. Judd told Park that the Department had received a court order committing a juvenile to the Department but that they were not sure what the Department properly should do in response to the Order. Palso, who only had been on the job for one week, pointed out internal inconsistencies in the Order. The Order found the juvenile both incompetent to stand trial and not guilty by reason of insanity. The Order also cited the rules of criminal procedure instead of the rules of juvenile procedure. At the request of Carl Neill, the Department's District Administrator, Park's immediate supervisor, Judd and Palso relayed this information to Park and sought her advice on several questions: (1) whether the Order was legal; (2) whether the juvenile could be placed in a mental health facility based on the Order alone without bringing a Baker Act proceeding; and (3) whether and how the Department should take the child into custody. Park responded that the Order was sufficient for the Department to take the juvenile into custody and place him in a mental health facility. Notwithstanding the questions Park was being asked, she assumed that the juvenile was in custody because she would not have expected the judge to release such a juvenile into the community. Park told Palso that he or she would be able to clear up the internal inconsistencies and problems in the Order the following week by filing a motion in court. Park recommended that the Department's staff telephone "central admissions" in Tallahassee since Park believed that office of the Department had experience with similar orders and would know how to proceed. After talking to Park, Judd telephoned Sam Ashdown in Tallahassee to discuss the case and receive advice on how to proceed. In the course of their discussion, Judd read the Order to Ashdown over the telephone and, to her surprise, Ashdown took the position that the Order was illegal and that the Department could not act upon it. Judd informed Ashdown that Park, as District VI's legal counsel, had given the District VI staff a contrary opinion and suggested that Ashdown talk directly with Park, giving him the telephone number at Park's vacation house. Later in the afternoon of November 9, Judd telephoned Park again to inform her about Judd's conversation with Ashdown and to prepare her to receive a telephone call from Ashdown. Park became angry at Judd for having given Ashdown her telephone number. She denied ever having given a legal opinion that the Order was legal, but told Judd that there was nothing that could be done about it by the end of Friday afternoon. Park told Judd to call Ashdown back and tell him not to telephone Park about the matter. In the face of Park's tirade, Judd informed Carl Neill of what Park had said and telephoned Ashdown to relay Park's message and tell him not to call Park. Neill became very concerned about the manner in which Park handled the matter earlier in the afternoon of November 9, 1984. Although Park was a knowledgeable lawyer and able advocate for the Department, she had a history of difficulty working, relating, and communicating with certain members of the Department's District VI staff. This history included several occasions in which Park's personal relationships with Department staff deteriorated to the point of affecting Park's ability to work with or even talk to staff. Neill suspected that a recent deterioration in the personal relationship between Judd and Park may have been partially responsible for the manner in which Park handled the juvenile matter on November 9. Park's work relationship with each of the two assistant attorneys working under her before Palso had deteriorated to the point that Park could communicate with them only in writing and not very well. Park's personality and deficient interpersonal skills was at least partially responsible for those problems in District VI's legal office. Park also had a deserved reputation among District VI's staff for being unpredictable. For no apparent reason, Park would sometimes be unreasonably irritable and rude. For example: Park has chastised Joseph Tagliarini in front of other staff for operational (not legal) difficulties in dealing with the local Sheriff's Office. This rebuff was hostile and angry, inappropriate and unwarranted. On another occasion, Park refused to dis- cuss a personnel matter with Allen Mundy and William Stanley, became rude and directed them to leave her office. Personnel officer, David Stoops, had asked Mundy and Stanley to discuss the matter with Park. At a training session she was giving on child support enforcement, Park became angered by questions being asked by one of the partici- pants, became progressively more hostile and angry, and ended up yelling at the employee from the podium in the middle of the training session. James Freyfogel, one of Park's own wit- nesses, was unfairly accused by Park with having concealed information material to a real estate transaction entered into by the Depart- ment. Because of Park's conduct, Freyfogel tried to avoid any contact with her for about a year and a half. Another of Park's witnesses, Judy Wichter- man, testified that Park was "a nasty person" and that she and other counselors avoided con- tact with Park whenever possible. Park was not even aware of the effect of her personality on Freyfogel and Wichterman. The strained work relationships described in paragraph 9 above (and others) do not typify all of Park's relationships with members of the staff of the Department's District VI. Park had many good days and many positive working relationships. However, Neill was aware that Park's personality had caused several problems in work relationships at District VI and that it was not a matter of one or two isolated incidents. At least part of the blame for these problems rests with Park's personality. Problems caused by Park's personality were not limited to lower staff members whom Park intimidated. For example: Neill also was aware that Park had unknow- ingly offended Larry Overton, then Deputy As- sistant Secretary For Operations for the De- partment in Tallahassee. Overton related to Neill that Park had become hysterical during a meeting he had with her concerning problems with a nursing home in District VI. In the fall of 1984, Park insisted on be- ginning a letter to a private attorney with whom she was dealing on behalf of the Depart- ment by stating that she was "outraged" at some of the attorney's tactics and conduct. Neill had specifically requested that Park, as representative of a State agency, not express "outrage." Neill told Park that he thought this form of expression was inappropriate, and he directed that the letter be reworded. Despite Neill's direct request, Park sent the letter as originally written with the justifi- cation that she was indeed "outraged." Park also angered two judges before whom she appeared as attorney for the Department, a Judge Pope and a Judge Calhoun. In compliance with Neill's suggestion and request, Park wrote a letter of apology to Judge Pope. When Park returned to work after the weekend and Monday holiday on Tuesday, November 13, 1984, Neill asked her into his office to discuss the events of November 9. During the discussion, Neill referred to the events of November 9 as an emergency, and Park attempted without success to learn from Neill why it was an emergency. Neill explained his position that it is unacceptable for senior managers on leave to refuse to permit HRS staff to contact them to discuss matters staff believes need to be discussed. Neill stated that senior managers must be available in such circumstances. Park became very angry and upset at having been accused of less than satisfactory performance. She lost her temper in front of Neill. She stated that she was incensed that Judd had given her home telephone number to Ashdown and stated that, in the future, she would avoid this situation by not leaving a telephone number where she could be reached. Park then stormed out of Neill's office. As a result of all of the events referred to in these Findings of Fact, including Neill's meeting with Park on November 13, 1984, Neill's confidence and trust in Park was shaken. Neill did not believe he could continue to function with Park as his legal counsel. Neill did not think he could count on Park to make herself available to Neill and his staff when needed. Neill also believed he could retain competent legal counsel who would be able to get along better with a larger part of Neill's staff so that Neill's staff could function more smoothly and effectively as a whole. Neill telephoned HRS supervisors in Tallahassee for advice and was told that he had authority to terminate Park in his discretion. After spending the rest of the day and evening of November 13 making up his mind, Neill decided to terminate Park as his legal counsel. On November 14, 1984, Neill again met with Park and informed her that he intended to make a change in the position of legal counsel and asked for Park's assistance in making the transition smooth. Park interpreted Neill's comment as a request for Park's resignation, and Park responded that she could not agree to resign without giving the matter further thought and discussing it with her husband, Park's counsel in this case. Because of Park's work schedule she requested until Monday, November 19, 1984, to give Neill an answer, and Neill agreed. On November 19, 1984, Park and her husband met with Neill as scheduled at 8:30 in the morning. Neill handed Mr. Park a letter informing Park of Neill's intent to terminate Park's employment effective November 27, 1984. Mr. Park asked if the meeting was a pre-termination conference. Neill stated that he did not believe a pre-termination conference was required for senior management but that he was willing to treat the meeting as a pre-termination conference and would consider anything Mr. or Mrs. Park had to say about the matter. Mr. Park suggested to Neill that Neill was exposing himself to possible personal liability by terminating Mrs. Park but had nothing else to say about the matter. The Parks stated that they had all they needed and left Neill's office. Towards the end of the final hearing, Park stipulated that she was not dismissed for political reasons.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Health and Rehabilitative Services, enter a Final Order consistent with the previous exercise of its discretion to terminate Petitioner, Amelia M. Park, from her Senior Management Service position. RECOMMENDED this 15th day of November, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4443 Rulings on Petitioner's Proposed Findings of Fact Adopted. See Finding 1. Rejected as unnecessary, irrelevant and subordinate. As reflected in the Conclusions Of Law, the ultimate issues of fact are narrower than Petitioner perceives. Unless the subordinate facts in proposed Finding 2 persuade the finder of fact that the alleged legitimate reasons for termination of Petitioner's employment were mere fabrications, they are unnecessary and irrelevant. In any event, they are subordinate. Covered by Findings 2 through 6. Covered by Finding 12. Covered by Finding 14. Covered by Finding 15. See Paragraph 1 above. See Paragraph 1 above. Also covered in part by Findings 9 and 10. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. Covered by Findings 2 through 4. See Paragraph 8 above. Also covered in part by Findings 2 through 6. Rulings on Respondent's Proposed Findings Of Fact Covered by Finding 1. Rejected in part as being subordinate. Also covered in part by Finding 11(a). Covered by Finding 9(a).* Covered by Finding 9(b). Covered by Finding 9(c). Rejected in part as subordinate or cumulative. Covered in part by Finding 8. See Paragraph 6 above. See Paragraph 6 above. Covered by Finding 11(b). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 9. Covered by Finding 8. Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 8. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. Also covered in part by Finding 7. Rejected in part as subordinate. Covered in part by Finding 11(c). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Findings 8 thorough 11. See Paragraph 20 above. Covered by Finding 9(d). Rejected in part as subordinate and cumulative. Covered in part by Finding 9. See Paragraph 23 above. Covered by Finding 9(e). Rejected as subordinate, unnecessary, and argumentative. Rejected in part as subordinate, cumulative, unnecessary, and argumentative. Covered in part by Finding 10. Covered by Findings 7 through 10. Rejected as subordinate and unnecessary. 30-35 Covered b Findings 2 through 6. Covered by Finding 12. Rejected in part because Rule SM-1.09, Florida Administrative Code, is a conclusion of law, not a finding of fact. Rejected in part because there was no evidence of HRS Regulation 60-49. In part covered by the Findings 2 through 6. Covered by Finding 14. Covered by Finding 15. Covered by Finding 15. Rejected as subordinate and unnecessary. Covered by Finding 16. *It should be noted that parts of this proposed finding of fact and many others have been rejected to the extent that they contain excessive argument. COPIES FURNISHED: William M. Park, Esquire Building 501, Suite A 8001 N. Dale Mabry Tampa, Florida 33614 Jay Adams, Esquire Deputy General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Respondent, Lamar S. Green's, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent was certified by Petitioner on November 18, 1998. He holds law enforcement Certificate No. 197843. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a bailiff with the Polk County Sheriff's Office. On October 15, 2006, Deputy Jeff Blair of the Polk County Sheriff's Office responded to a residence in Lakeland regarding a child custody dispute. Upon arrival at the residence, Deputy Blair met with Tracy Fields. Ms. Fields wanted Deputy Blair to get her children back from her ex-husband, Mr. Fields. Based on the initial information he obtained, Deputy Blair told Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. (Apparently, it was later determined that a restraining order as a result of domestic violence had been issued against Mr. Fields. It appeared that the restraining order had been issued prior to October 15, 2006. It is also similarly unclear as to whether the restraining order awarded custodial responsibility and visitation and would have provided the "court order" Deputy Blair required.) Subsequently, Respondent, Ms. Fields' boyfriend, arrived on the scene. Deputy Blair did not know Respondent and Respondent was not in uniform. Deputy Blair repeated his statement to Respondent and Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. Respondent reacted angrily to Deputy Blair, became confrontational, and questioned Deputy Blair as to his time in service as a law enforcement officer by telling him that given his identification number, he had not been a deputy very long. Respondent subsequently apologized to Deputy Blair and identified himself as a deputy sheriff, serving as a bailiff. While Deputy Blair was discussing the matter with Ms. Fields and Respondent, Deputy Blair received a report that a "911" call had been made reporting Ms. Fields at Mr. Fields' house, which was obviously untrue since she was with him. In addition, Mr. Fields agreed to meet Deputy Blair and his watch commander at a gas station to return the Fields' children. He failed to meet them. Neither of these incidents resulted in an incident report; however, Deputy Blair was directed to author an Incident Report regarding Respondent's conduct. In June 2006, Respondent was re-assigned from his post as a court bailiff to the court holding section based on a memorandum from a judge to Respondent's supervisor regarding Respondent's work performance. The stated reason for Respondent's reassignment was his reported absenteeism from his courtroom duties. Respondent was told this by his Captain, and he acknowledged that he understood. Respondent explained to his Captain that he had been having difficulties with his bowels that made it necessary to be absent from the courtroom from time to time. On September 15, 2006, Respondent testified as a witness before Polk County Circuit Court Judge Carpanini in a domestic violence injunction hearing in Fields v. Fields, Polk County Circuit Court Case No. 2006DR-6613. During direct examination, Respondent was questioned about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of the testimony: T. Fields: Has there been any other type of harassment that you feel Mr. Fields has employed upon you? Respondent: He's contacted the Polk County Sheriff's Office and filed a complaint with the internal affairs against me, which is not true. I have documentation and we'll have testimony from the deputy that was at the Kroger's Dance Studio that what he alleges in the complaint is not factual, also he alleged a, tried to put an injunction of protection against me, stating I threatened his secretary that I didn't (inaudible) him. It was denied. He then entered a voluntary dismissal up of [sic] that injunction, but there still is an investigation at the sheriff's office that's going to be followed up on where he filed a bogus complaint against me there. T. Fields: And because of this harassment Mr. Green, you've had to hire an attorney haven't you? Respondent: That's correct. T. Fields: And you've been removed from your current position as a bailiff here at the courthouse? Respondent: That's correct. T. Fields: And was that on or before- Judge Carpanini: Mrs. Fields is this; this case doesn't involve Mr. Green. It involves you so please move on. During cross-examination, Respondent was questioned further about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of that testimony: ML: You know, you mentioned with Mrs. Fields earlier that you've been removed from your job, your current job here at the courthouse because of Mr. Fields. Respondent: Believe so. That investigation isn't complete. Respondent's testimony set forth hereinabove is ancillary to the matter at issue before the Circuit Court and not dispositive of any issue in the domestic violence case involving Mr. and Mrs. Fields, and, as pointed out by the presiding Circuit Court Judge, this testimony is not germane to the issue being considered by the Court. In addition, it clearly expresses Respondent's opinion or belief on why his job was changed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Lamar S. Green, be found not guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes; and that no disciplinary action be taken against Respondent's law enforcement certification. This matter should be dismissed. DONE AND ENTERED this 22nd day of May, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2008. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
