Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution under the custody and control of the Department of Corrections. Respondent stipulated at final hearing that Petitioners have "standing" to maintain this rule challenge proceeding. During 1982 Respondent amended its Rule 33-3.045, Florida Administrative Code, entitled Package Permits. The final version of the amended rule was filed with the office of the Secretary of State on December 23, 1982, and became effective January 12, 1983. The text of the proposed rule was published in the October 22, 1982, issue of the Florida Administrative Weekly. Subsequent thereto, changes were made in the text of the proposed rule which had the effect of deleting from the list of items which inmates could receive in Christmas packages the following: apples, candies, chewing gum, cookies, and nuts. No person affected by the proposed rule requested a public hearing pursuant to Section 120.54(3) Florida Statutes. Respondent filed with the office of the Secretary of State a Statement of Changes and a Notice of Changes indicating the above-referenced deletions apparently at the time the rule was filed for adoption. In addition, Respondent filed with the proposed rule an economic impact statement which estimated that there would be no cost or economic benefit to persons affected by the rule as a result of the proposed amendments. Although the record in this cause establishes, and common sense confirms, that some cost saving might result to persons wishing to send the deleted items to inmates, there is no evidence of record in this cause to establish how Respondent's failure to take this factor into account affected the fairness of the rule adoption proceeding. At the time of final hearing in this cause there were approximately 2,500 inmates incarcerated at Union Correctional Institution. Each of these inmates is entitled to two Christmas package permits during the months of November and December. As a result as many as 5,000 Christmas packages could be received by the institution during that time period. Respondent's experience with Christmas packages has shown that apples, candies, chewing gum, cookies, fruit cakes, and nuts lend themselves to the introduction of contraband into correctional facilities. Because of the volume and character of Christmas packages, Respondent experienced both staffing and liability problems, particularly in the area of food stuffs. Respondent found that it was particularly difficult to examine food stuffs for contraband because it often would require chemical analysis to determine whether contraband items, such as drugs or alcohol, were baked or otherwise placed into the food stuff themselves. In addition, because of the volume of packages received Respondent often had to transfer employees from other areas of operation into the mailroom in order to process the packages, thus creating additional problems because employees had to be taken from their assigned tasks. Further, Respondent received notification from the Division of Risk Management indicating a precipitous rise in claims for damages from inmates whose food stuffs had been necessarily damaged in checking for contraband items. Finally, Respondent determined that most, if not all, of the items deleted from the Christmas package permit list were available to inmates through institution canteens.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Health Care and Retirement Corporation of America owns and operates some forty nursing homes and retirement centers in approximately six states. It currently has twenty-six applications pending for Certificates of Need to establish new nursing homes in Florida. In preparing each application, it has been necessary to provide HRS with information regarding the accessibility of the proposed project to low income persons, racial and ethnic minorities, women, handicapped persons and other underserved groups. The Certificate of Need application also requires an applicant to project revenues and utilization on the basis of types of patients (i.e., Medicaid, Medicare, insurance, private pay, and indigent) which the applicant expects to serve. Petitioner Whitehall Boca operates a nursing home located in Boca Raton, Florida. This facility is presently licensed for 69 skilled nursing home beds, and desires to expand the number of skilled beds. The patients at Whitehall Boca are 100 percent private pay patients. This petitioner has never served and does not intend to serve Medicare or Medicaid patients or the medically indigent. Its financing is conditioned upon serving only private pay patients. The entire concept of this facility is to provide services to those persons in the upper income bracket who wish to continue an elite life-style in their later years. Petitioner Health Quest Corporation presently has several applications pending for Certificates of Need to establish and operate nursing homes in Florida. It has been the practice and policy of HRS in the past to consider the issue of geographic and economic accessibility when reviewing applications for a Certificate of Need. As noted in Paragraph 1 above, the printed instruction and application form requires information from an applicant regarding the economic accessibility of the proposal to minorities and low income groups. In documenting the financial feasibility of a proposal, the applicant is required to include a projection of income and expenses on a pro forma basis for the first two years of operation. after completion of the project. In order to project income, an applicant would have to project the percent of its total revenue to be derived from Medicaid, Medicare, and indigent patients as opposed to private pay and third-party insurance pay patients. These projections are also required in providing information to HRS regarding the projected total facility utilization. Rule 10-5.11, Florida Administrative Code, lists twelve general criteria against which applications for a Certificate of Need are to be evaluated. More specific criteria for specific health services are also provided in later portions of that Rule. The first twelve subsections of Rule 10-5.11 generally track the statutory criteria set forth in Section 381.494(6)(c), Florida Statutes. Prior to the challenged amendment, Rule 10- 5.11(3), Florida Administrative Code, read as follows "(3) The need that the population served or to be served has for such proposed health or hospice services." As a result of another rule-challenge proceeding, the District Court of Appeal, First District, invalidated Rule 10-5.11, Florida Administrative Code, to the extent that it did not explicitly contain any criterion which addressed the extent to which an applicant could meet the needs of minority and low income persons. Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 430 So.2d 1 (Fla. 1st DCA, 1983). The court noted that Section 381.494(7)(a), Florida Statutes, (now Section 381.494(8)(a)) requires HRS rules to be in accordance with federal statutes, and that federal statutes and regulations require Certificate of Need agencies to consider the degree to which medically underserved persons, including low income and minorities, have access to the services under review. Comparing the federal "access" requirements with HRS's Rule 10-5.11(3) (cited in Paragraph 5 above), the Court concluded that that subsection was not broad enough to include consideration of the criteria mandated by federal regulation and allowed HRS to ignore the federally mandated "access" criterion. To that extent, the Court found Rule 10- 5.11 to be inconsistent with federal regulations and statutes, and thus invalid. In response to the Court's decision in Farmworker, supra, and in order to codify its prior policy and practice, respondent HRS seeks to amend Rule 10- 5.11(3), Florida Administrative Code, with the following language: "(3)(a) The need that the population served or to be served has for the health or hospice services proposed to be offered or changed, and the extent to which all resi- dents of the district, and in particular low income persons, racial and ethnic minorities, women, handicapped persons, other underserved groups and the elderly, are likely to have access to those services. The extent to which that need will be met adequately under a proposed reduction, elimination or relocation of a service, under a proposed substantial change in admissions policies or practices, or by alternative arrangements, and the effect of the proposed change on the ability of members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health services to obtain needed health care. The contribution of the proposed service in meeting the health needs of members of such medically underserved groups, particu- larly those needs identified in the appli- cable district plan and State health plan as deserving of priority. In determining the extent to which a proposed service will be accessible, the following will be considered: The extent to which medically underserved individuals currently use the applicant's services as a proportion of the medically underserved population in the applicant's proposed service area(s), and the extent to which medically underserved individuals are expected to use the proposed services, if approved; The performance of the applicant in meeting any applicable Federal regulations requiring uncompensated care, community ser- vice, or access by minorities and handicapped persons to programs receiving Federal financial assistance, including the existence of any civil rights access complaints against the applicant; The extent to which Medicare, Medicaid and medically indigent patients are served by the applicant; and Tile extent to which the applicant offers a range of means by which a person will have access to its services. In any case where it is determined that an approved project does not satisfy the cri- teria specified in subparagraphs (3)(a) through (d), the Department may, if it approves the application, impose the condi- tion that the applicant must take affirmative steps to meet those criteria. In evaluating the accessibility of a proposed project, the accessibility of the current facility as a whole must be taken into consideration. If the proposed project is disapproved because it fails to meet the need and access criteria specified herein, the Department will so state in its written findings. In any case where a project does not satisfy the criteria specified in sub- paragraph (3)(a) through (d) above, the Department shall so notify in writing the applicant and the appropriate Regional Office of the United States Department of Health and Human Services." In preparing this proposed rule amendment, respondent reviewed and considered the "access" rules effective in eight other States, portions of the "Model Access Provisions for State Certificate of Need Statutes or Regulations" and the federal regulations and statutes. The language contained in subparagraphs 3(a) - (d)4 of the respondent's proposed rule substantially tracks the language contained in 42 C.F.R. Section 123.412(a)(5) and (6), with changes made only for clarity or to reflect the different terminology utilized in the Florida Certificate of Need program. The language contained in subparagraphs (e) and (f) of the respondent's proposed rule is substantially identical to the language in federal regulations 42 C.F.R. Section 123.413(b) - (d) and 42 C.F.R. Section 123.410(a)(6) (1982). The federal regulations require the States to adopt, and use as applicable, specific criteria based upon the general considerations set forth in 42 C.F.R. Section 123.412 (1982). An economic impact statement was prepared by respondent for proposed Rule 10-5.11(3). The respondent concluded that, other than the normal costs to the agency of processing a rule amendment, no economic impact was expected as a result of the amendment's implementation. As the estimated costs or economic benefit to persons directly affected by the proposed amendment, the economic impact statement provides: "The proposed amendment is not expected to have an additional economic impact on existing health care providers, health care consumers, or certificate of need applicants who prepared applications under existing rules. Previous and current certificate of need decisions by the department have been made in consideration of existing Federal regulations and the criterion contained in 10-5.11(3) has been interpreted in accordance with Federal regulations." It was noted that the proposed amendment would affect competition among providers and certificate of need applicants consistent with existing rules and the proposed amendments. After discussions with others charged with the responsibility of implementing the Certificate of Need program, and based upon her own experience as a health planner, the author of the economic impact statement explained the "data and method of estimating costs" as follows: "Immediate costs for implementing the pro- posed amendment were calculated based on cur- rent data available. Printing and distri- bution costs were based on similar experiences with HRS printing and distribution costs." This approach was utilized based upon the author's understanding that the proposed rule imposed no additional or new criteria for review of certificate of need applications.
Findings Of Fact The Respondent, Department of Health and Rehabilitative Services is the state agency charged with the responsibility of monitoring the Aid For Families with Dependent Children, (AFDC), program in Florida. Petitioner Nola Little and the Intervenors, are recipients of services under that program and subject to the terms of the existing and proposed rules. The Department published notice of Proposed Rules 10C-1.080, 10C-1.082, and 10C-1.107 in Volume 15, Florida Administrative Weekly, at pages 3082-3083, on July 21, 1989. The rules in question deal with the issue of entitlement to payment to eligible applicants for AFDC. Rule 10C-1.080(10)(b) has been amended to change the definition of the date of entitlement to the date of authorization or the 30th day from the date of application, whichever is earlier. Rule 10C- 1.080(11) has been amended to provide that the first payment to an eligible applicant must be made for the date of authorization or the 30th day from the date of application, whichever is earlier, and provides for a prorated payment based on the date of entitlement. Rule 10C-1.082 has been amended to provide that grants of applicants will be prorated for the initial month of entitlement. The increase in grant for the needs of persons added to the grant will be prorated for the initial month of grant increase. Rule 10C-1.107 has been amended to provide that the initial month's grant will be prorated from the date of entitlement. The initial month of grant increase for adding the needs of individuals to the grants will be prorated from the add date. Thereafter, on August 10, 1989, Petitioner Little filed a petition to determine the invalidity of the proposed rules alleging that: They violate Section 409.235, Florida Statutes, which requires the Department to furnish monthly financial assistance, and They provide an inadequate statement of economic impact. At the time she filed her Petition, Nola Little was a pregnant AFDC applicant residing in Pensacola, Florida. Intervenor Perez and his wife reside in Miami, Florida with Mrs. Perez' son by a former marriage. Mrs. Perez and her son were found to be eligible for AFDC. Mr. Perez and his natural children have not been approved due to pending consideration of Mr. Perez' determination of incapacity as a result of a back injury. He is, otherwise, eligible for AFDC. All Petitioners will receive prorated benefits under the proposed rule. Prior to the 1988 legislative session, the Department had been requested by the President of the Florida Senate to identify programs for a possible 5% reduction. The date of entitlement for new applicants for AFDC, the subject matter of one rule in question, was identified as one of those programs. Though the Governor agreed with the Department's proposal and recommended it, the Legislature did not adopt that program for cuts in the 1988 session. Again, prior to the 1989 legislative session, the Governor directed each department to identify programs for possible cuts up to 10% for a total of $23.9 million. As a part of his directive, he hypothetically identified cuts in programs to reach that figure. One item so identified was a change in the date of entitlement to AFDC. After considering various ways to implement the cuts, (4 different program alternatives), all of which had an unpleasant effect, Mr. Don Winstead, Assistant Secretary of DHRS for Economic Services, chose the current method of reduction and recommended it to the Department's Deputy Secretary for Administration who incorporated it as a part of the entire Department submittal to the Governor. A 5% cut list was ultimately forwarded to the Governor in December 1988, which included two of those alternatives on the 10% list. The instant program cuts were not recommended by the Governor. Mr. Winstead and his staff generated substantial input to the Legislature, its committees, and its staffers about the subject. Ultimately, the Legislature, in conference, agreed to certain cuts. Economic Services was reduced by some $17,476,531.00, including the programs covered by the proposed rules in question. It was clear to Mr. Winstead that the Legislature mandated the reduction as proposed. In July 1988, the Department's District Directors were told to implement the change. In Mr. Winstead's opinion, if the Department had "its druthers," it would not have made the change. The Department's policies are driven by the Governor's direction. Since the Governor did not recommend the cut, the official position of the Department is, and was, against it. In fact, Mr. Winstead felt it was not a good idea and testified against cuts in committee hearing. He indicated there that neither he nor the Department supported this cut or recommended it. Though he did not agree, the lawmakers possessed the authority to make the change and the cuts were passed by the Legislature and signed by the Governor. He is, therefore, obliged to implement them. Since the passage of the act which mandates the cuts, Mr. Winstead has not considered alternatives to direct budget deficit reduction, nor has the Department applied to the Governor to transfer social and economic program funds to address budgeting problems with the AFDC budget. Mr. Winstead's position is that the Appropriations Act mandates him to modify the AFDC grant date and the specific basis therefor is Appropriation Number 864 which gives general revenue and trust fund amounts which, when considered with the Legislature's statement of intent, indicates what has to be done. Admittedly, there is no specific mandate from the Legislature or the Governor to cut this specific program. However, when the list of possible program reductions was prepared in an in-house memorandum, the cut in AFDC funds was identified as #3. Mr. Winstead's position with regard to this cut is supported by Jennifer Lange, a program administrator with the Department whose unit wrote the proposed rule. She felt the Department had no option but to promulgate the rule due to the Legislative mandate. Considering the evidence as a whole, it is found that a logical conclusion to be drawn from the pronouncements, documents, and directives coming from the Legislature through the entire appropriations process, is that drawn by the Department here, to wit: cuts were mandated by the Legislature in this and other programs and action must be taken to implement them. The drafting and promulgation of the rule in question is but an appropriate extension of that conclusion. Assuming the rule is ultimately promulgated and funds are saved thereby, it is the intention of the Department to continue with the mandate of the Legislature until that body affirmatively changes its direction, even if more money is found somewhere else. Under the proposed rule, an applicant would be issued a check for the first period 30 days after application or after approval of the application, whichever came first. Since the Department routinely runs three payrolls a month, it would probably be one third of a month after the cutoff date that an applicant would receive his or her first check. Ms. Lange also was instrumental in drafting the Economic Impact Statement (EIS) to accompany the rules, utilizing in doing so, information garnered from a number of sources. Some figures utilized therein are a generalized estimate only. The majority of applications are accomplished within the 30 day period. Ms. Lange is satisfied that in the preparation of the EIS, all pertinent information required to be considered was considered and nothing that would materially effect the probity of the EIS was eliminated. The actual EIS was drafted by Mr. Greenwood and his team in late May or early June 1989. In doing so, Mr. Greenwood did not consider population additives. While the drafters of the EIS considered the entire subject matter, including legislative policy, no impacts, other than those ultimately addressed therein, were considered. The 6,000 case per month figure was used because it was the information provided by the Department's data unit and as a figure that was being used elsewhere in the Department. This was not the latest figure available, however. Current figures available reflected a potential for slightly in excess of 8,000 cases per month. The difference of over 2,000 cases per month is substantial. Mr. Greenwood concludes that the maximum which can be lost to any applicant is 30 days benefit, and the Department presumed, for the EIS, that all would lose that amount. In reality, that is unlikely. There is no doubt that the implementation of the proposed rule will have an impact on the economic welfare of those currently receiving AFDC and those who may receive it in the future. Rosemary Gallagher, an associate with the Florida Catholic Conference and a lobbyist in the area of social services, is very familiar with the social service agencies available to the poor in this state. In her opinion, having studied the proposed rules, almost all agencies will be adversely affected by their implementation. Clients will require more agency help as a result of the rule implementation and homeless shelters will be hit the hardest. The homeless population in Florida is composed of approximately 1/3 single women with children who need financial assistance to be self-sufficient. Reduction in AFDC benefits will require the client to stay in the shelter longer to accumulate rent money and funds for other required expenditures. By the same token, other organizations will similarly be affected. In addition, less money will have a devastating effect on the agencies , and the delay in receipt of payments, occasioned by the proposed change, will, in her opinion, hurt hundreds of thousands who are affected. This cutback is, she believes, the worst thing to happen in a long time, and she lobbied against the basic legislation calling for cutbacks. Ms. Gallagher has never been a case worker and has no degree or course work in either economics or social work. It is her opinion, however, that the legislative statement relied on by the Department calls for modification to AFDC, not necessarily a cut. As a matter of history, she relates, the Department has been asked for the last several years to list items for cut and historically has always identified those items it felt certain the Legislature would never cut. When, in this current year, it listed the currently considered program, in her opinion, this was done with the belief the Legislature would not approve any cuts, a position consistent with that indicated by Mr. Winstead, but cuts were nonetheless made by that body without, she believes, a proper public hearing. Dr. Frederick Bell, an economist on the faculty of Florida State University and an expert in economics, micro-economics, and the techniques of economic impact statement preparation, reviewed the instant EIS along with depositions and the transcript of public hearing on the matter. He has done some rudimentary research into the effect of the proposed rules and considered therewith the spending patterns of low income people in the areas of housing, clothing, and transportation. He has also looked at small businesses in Florida and feels that the EIS as drafted does not accurately reflect the situation and its method of preparation is poor. In his opinion, it is inadequate to show the effect on the economy since it failed to consider all factors pertinent thereto. He objects to the use of the term "negative cost" as used in the document, which he does not considers to be a proper economic concept. He assumes it is another term for savings. He assumes the EIS reference to 6,000 applications which are those approved per month. Other pertinent documentation, however, refers to a substantially larger number of applications (8,042) yet neither figure is sourced, and Dr. Bell is unable to verify their accuracy. The parties stipulated that in formulating the EIS, the Department utilized figures provided by the Legislature, but Dr. Bell's complaint regarding his inability to check their accuracy is still valid. Dr. Bell also questions the average grant amounts and notes that the Department assumes that the determination of eligibility is always going to be accomplished within 30 days. In his opinion, this is neither reasonable nor substantiated. He believes it is a "monumental" error to put into the EIS entirely different numbers than are actually expected. In the instant case, this resulted in a difference of $6.4 million which is substantial. With regard to that section of the EIS that starts, "Changing the effective date of grant increases," on the one hand, it indicates a cost of increased benefits as a result of adding individuals to the household, and on the other hand claims a reduced cost resulting from the loss of benefits to newborns. Dr. Bell professes to be "flabbergasted" by the conclusion drawn in the EIS that the additional costs to the agency will be balanced out by the benefits saved. In his opinion, there is absolutely no justification for that conclusion. He also disputes agency figure of $17.5 million in resultant cuts, concluding it would actually be more in the area of $23.9 million. As a result, he believes the impact will be substantially greater to individuals than that indicated. He also contends the state should have considered the cumulative effect on the economy of governmental program cuts, otherwise known as the "multiplier effect." A reduction in amounts spent will have a resultant double effect on the businesses where this money would normally be spent. There is nothing shown in the EIS to indicate this factor was considered. Dr. Bell also believes the agency should have considered the effects of its cutback on the counties and their support agencies as well as the nongovernmental charities involved in providing assistance to the underprivileged who will have to pick up the slack resulting from the cut in public money. He feels the EIS estimate of the cut's minimal effect on small minority businesses is not supported. It appears to him that the agency failed to utilize the services of the small and minority business advocate attached to the Florida Department of Commerce who could have provided input on whether a cutback in spending would have had a major effect on minority business enterprises. Dr. Bell is convinced that it will and his opinion is diametrically opposed to that of the Department. In substance, Dr. Bell was convinced that the EIS was "completely inadequate." In his cross examination of Dr. Bell, Respondent's counsel indicated there would be no impact on small and minority business and urges that Dr. Bell was stretching when he claims there would be. Such argument is ingenuous however. Regardless of which of the two impact figures cited is used, such a sum cannot help but have some impact on an economy which includes small businesses. The degree thereof and whether or not that impact constitutes grounds to invalidate the rule is another question altogether. Nothing in the statute or the rules relating to the sufficiency of an EIS requires that there be unanimity of opinion as to the conclusions drawn therein. Taken as a whole, the evidence appears to show, and it is so found, that while the EIS may well be subject to some disagreement as to a number of the provisions therein, and while some provisions may well be contra to the weight of the best evidence available, it is, nonetheless, basically adequate in content and form to constitute an acceptable economic impact statement in support of the proposed rules here.
The Issue The issue in this case is whether Respondent, Steve E. Montgomery, committed the violations alleged in the Second Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Steve Montgomery has been employed with the School Board since May 13, 1988. He last held the position of a Plumber II Journeyman in Miami-Dade County Florida. Montgomery's job description and the maintenance employee's handbook mandated that he maintain a valid driver's license and Certificate of Competency in order to remain employed by the School Board. During the hearing, Montgomery admitted that he was aware that he had to maintain such minimum qualifications for his job. Montgomery started a pattern in 2003 of his driver's license getting suspended and then being reinstated again. Montgomery admitted during hearing that his driver's license had been suspended at least four times. Each time, the School Board notified Montgomery that his license was not valid and provided him five working days to get a valid license. Montgomery was placed in an alternative work assignment whenever he did not have the valid credentials. The School Board kept a record of the occurrences in Montgomery's personnel file. The file contained a December 15, 2003, memorandum entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY JOB DESCRIPTION" directing Montgomery that his license was suspended and/or revoked and detailing that his job description requires that he maintain a valid State of Florida Class D license as one of the minimum qualifications of the position. The memorandum also stated that Montgomery had five days until December 22, 2003, to present evidence of a valid license. A May 24, 2004, memorandum almost identical to the one dated December 15, 2003, except for the deadline dates, was also in Montgomery's personnel file. The memorandum provided a deadline of June 1, 2004, to present evidence of a valid driver's license and indicated that, if there was a failure to satisfy the requirement in the allotted time period, a Conference-for-the Record ("CFR") would be scheduled to discuss the matter further. A July 26, 2005, memo identical to the two previous memorandums except for the dates was also in Montgomery's personnel file. The memorandum gave a deadline of August 2, 2005, to present evidence of a valid driver's license. Mr. Palacio personally gave the invalid driver's license memorandums to Respondent and verbally notified Montgomery of the requirement to get a valid license. Montgomery signed the memorandum dated September 15, 2005, entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY JOB DESCRIPTION." As in the previous memos, it stated: Attached please find a report dated September 15, 2005 that indicates your driver's license has been suspended and/or revoked. Your official job description requires you to maintain a valid State of Florida CDL Class D* driver's license as one of the minimum qualifications of this position. (Effective July 1, 2005, Class D licenses were converted to Class E.) You are advised that this requirement is a condition of your continued employment with Miami-Dade County Public Schools. Without a valid driver's license you are no longer qualified to perform the requirements of your position with the District. Effective immediately, you are being placed on an alternate work assignment. Accordingly, you are directed to present evidence of this required license to your Satellite Director or designee within five (5) working days from the date of this memorandum, which will be September 23, 2005. Until such time, you are not authorized to operate any District vehicle or motorized equipment that requires possession of a driver's license. If you fail to satisfy this requirement within the allotted time period, a Conference-for-the-Record will be scheduled to address this matter further. Please review your Maintenance Operations handbook (Trades Chapter, Page 4) for further details. A CFR was held with Montgomery on September 30, 2005, because he did not obtain a valid driver's license by September 23, 2005. Montgomery was provided a copy of the job description for plumber II and the September 15, 2005, memorandum. At the CFR, Montgomery was again informed that maintaining his valid driver's license is a minimum qualification of his position and that "Without a valid driver's license, you are no longer qualified to perform the requirements of your position with the District." Montgomery signed the summary of the CFR on October 3, 2005. On October 13, 2005, the School Board notified Montgomery by memorandum that he had failed to maintain his Certificate of Competency and it had expired on August 31, 2005. Montgomery signed the memorandum and was instructed to present a valid certificate no later than October 17, 2005, at 8:00 a.m. Montgomery was aware that it was his responsibility to know when his qualifying documents expired and keep them valid as a minimum requirement for his job. A CFR was held on February 11, 2006, regarding Montgomery not possessing a renewed Certificate of Competency and a valid driver's license. At the CFR, Montgomery produced a renewed certificate but did still did not have a valid license. On May 4, 2006, Montgomery still did not have a valid driver's license and Mr. Palacio recommended Montgomery's termination. In Palacio's memorandum, the grounds for such discipline were as follows: Mr. Montgomery is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, members of the non-instructional staff shall maintain all certifications, licenses and job requirements as a condition of employment. Failure to do so shall warrant disciplinary action. On May 9, 2006, Mr. Brown and the maintenance officer signed a memo entitled Recommendation for Termination Mr. Steve E. Montgomery Employee # 169252 Plumber II, Region Maintenance Center II providing grounds for disciplinary measures inasmuch as Montgomery was unable to produce a valid Florida's driver's license, a condition of employment. The memo stated: As a Plumber II, Mr. Montgomery must maintain all certifications, licenses and job requirements. Failure to comply with minimum job requirements warrants dismissal. Montgomery let the Certificate of Competency expire again on August 31, 2007. Subsequently, on September 17, 2008, another CFR was held with Montgomery notifying him of the recommendation for suspension and termination because Montgomery's license and Certificate of Competency were not valid. During the CFR, Montgomery did not offer any explanation as to why his license was still suspended or submit proof of his Certificate of Competency but only commented he "will have [both] soon."4 Montgomery also did not complain about any working conditions during the CFR. At a regularly scheduled meeting on January 14, 2009, the School Board suspended Montgomery without pay and initiated dismissal proceedings against him from all employment with Miami-Dade County Public Schools for just cause, including, but not limited to: violation of School Board Rules 6Gx13-4A-1.21 Responsibilities and Duties, 6Gx13-4A-1.213 Code of Ethics, and Sections 1001.32(2), 1012.22(1)(f), 1012.40, and 447.209, Florida Statutes. Montgomery's license was suspended at the time of his suspension and termination. Likewise, Montgomery's Certificate of Competency had still not been renewed at the time of his suspension and termination. No other School Board employee had his/her license suspended as many times as Montgomery with an expired Certificate of Competency at the same time. Further, the School Board has disciplined employees by termination for having a suspended driver's license. Montgomery had a valid Florida driver's license and a renewed valid Certificate of Competency at the hearing. On August 20, 2009, the School Board filed its Second Amended Notice of Specific Charges charging Respondent with violating School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, School Board Rule 6Gx13-4A-1.213, Code of Ethics, and State Board Rules 6B-1.001 and 6B-1.006 by failing to maintain a valid driver's license and Certificate of Competency.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order that: (a) dismisses Count I; (b) finds Respondent in violation of Count II as charged; and (c) upholds Respondent's suspension without pay and termination. DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 26th day of February, 2010.
The Issue Whether respondent's rules of conduct contained in Department of Law Enforcement Directive #200.08 constitute an invalid exercise of delegated legislative authority on the ground that they were not promulgated in accordance with Chapter 120, Florida Statutes (1979)
Findings Of Fact Petitioner Maggie L. Allen was a Career Service employee (with permanent status) of the Department of Law Enforcement until she was terminated from her position or about June 15, 1981. She has appealed her termination to the Florida Career Service Commission. (Prehearing Stipulation, p. 2; Respondent's Admissions.) The reason given for her termination was, in part, her alleged violation of Department Directive #200.08(5), Rules of Conduct ("Directive") . More specifically, the Department charged her with violating specific rules of conduct contained in the Directive: Rule 10, entitled, "Insubordination"; Rule 22, entitled, "Departmental Reports"; Rule 23, entitled, "Performance of Lawful Duty"; and Rule 34, entitled, "Truthfulness." (Prehearing Stipulation, p. 2; Respondent's Admissions; Exhibit No. 3.) The Directive, effective November 27, 1978, is an official statement of Department policy and is generally applicable to all employees of the Department. Its stated purpose is "to provide each Departmental employee with clear examples of acts which would violate the above personnel rules or statutes." (Emphasis supplied.) (Exhibit No. 1.) Essentially, the Directive defines acceptable conduct for Department employees by specifically enumerating 35 standards of conduct. By its terms, breach of one or more of those standards constitutes employee misconduct and may result in disciplinary action against an employee ranging from oral reprimand to discharge. However, these standards are not intended to be an exclusive, or exhaustive listing of impermissible conduct. (Respondent's Admissions; Exhibit No. 1.) The Directive is part of the Department's Duty Manual, a volume containing directives on personnel, administrative, training, and fiscal matters as well as the operations of the Department's divisions. The stated purpose of the Duty Manual is to "inform and guide . . . [Department] officers and employees in the performance of their official duties." (Exhibit No. 2.) The Duty Manual recites that it is "promulgated" pursuant to Chapter 120, Florida Statutes, that copies are disseminated to all employees and that employees must obey, comply with, and follow the Manual's directives. The Manual has been incorporated, by reference, in Department Rule 11-1.12, Florida Administrative Code. All formalities concerning publication of Rule 11-1.12 were complied with prior to its publication in the Florida Administrative Code. (Prehearing Stipulation; Exhibit No. 2.) Department Rule 11-1.12, incorporating--by reference--the Duty Manual, was adopted on March 20, 1979, for the purpose of validating those portions (unspecified) of the Manual which constituted "rules" under the APA. At the time, the Department anticipated that adopting the Manual, by rule, would "lead to greater efficiency." (Exhibit No. 2.)
