The Issue This matter was referred by the Public Employees Relations Commission to the Division of Administrative Hearings for hearing to determine: Whether the Respondent, Seminole County, is a Public Employer within the meaning of Chapter 447, Florida Statutes. Whether the Petitioner, Union, is an employee organization within the meaning of Chapter 447, Florida Statutes. Whether there has been a sufficient showing of interest has required for the filing of a representation election petition under Chapter 447, Florida Statutes. Whether the employer organization is a properly registered organization with the Public Employees Relations Commission. What is the appropriate unit of public employees within the Public Employer? PRE-HEARING MATTERS Prior to the commencement of the hearing, Respondent filed the following motions with the Hearing Officer who made the indicated disposition of the motion: Motion for Discovery; denied on the basis of prior PERC rulings. Motion to Transfer Jurisdiction to Local PERC; denied because the local ordinance had not been approved by the Public Employees Relations Commission. Motion for Oral Argument on Motion to Transfer Jurisdiction; denied, see Petitioner's Motion to Amend, below. Motion to Dismiss Based on Employer Not Having Denied Recognition; denied. Motion to Dismiss or Limit Hearing on the Basis that Local PERC Ordinate Controls; denied. Motion to Dismiss on the Basis of Inappropriateness of Units Sought; denied. Motion to Quash Hearing on Basis that Acting Chairman Lacked Authority to Notice Hearing; denied. Motion to Dismiss on Basis of Lack of Due Process and Lack of Authority; denied. The Petitioner moved orally in response to the suggestion that paragraph 11 of the Petition indicated concurrence in local PERC authority to amend paragraph 11 to "no". Motion was granted by the Hearing Officer. After having presented its motions the Respondent thereafter filed its Answer, asserting therein certain affirmative defenses. Succinctly stated the position of the Respondent was that the county had defined the appropriate units within the Public Employer by local ordinances as professional, supervisory and blue collar, and that the unit sought by the Petitioner did not conform to the units the County had defined by ordinance. The Petitioner sought all employees of the Road and Arthopod Divisions of Seminole County excluding officers, clericals, supervisory and guard employees.
Findings Of Fact The Hearing Officer directed the Employer to go forward and present its evidence in support of its definition of the units. The Employer sought to call Pat Hill and Jack McLean, both previously subpoenaed by the Employer. Neither of the individuals were present in the hearing room. The Hearing Officer, noting that the time had not expired to oppose the subpoenas but that no opposition had been filed, allowed the Employer to proffer the testimony these witnesses would have given if present. The Hearing Officer notes that subsequently these subpoenas were quashed. Therefore, the proffered testimony will not be considered by the Hearing Officer. The Hearing Officer would, in light of the fact that the Commission's file was not present at the hearing, direct the Commission's attention to the proffer as it relates to the Commission's file for resolution of any matters appropriately raised. The Employer then called Carl Crosslin who was present but whose subpoena had been timely opposed by his Counsel. The subpoena having been issued by the Acting Chairman, the Hearing Officer deferred to the Acting Chairman for his ruling on the subpoena in question. The Hearing Officer allowed the Employer to proffer the testimony which would have been presented by Carl Crosslin and Commissioner Paul Parker. Thereafter, the Employer moved for a continuance which motion was denied by the Hearing Officer. The Employer then made a demand for presentation of the authorization cards, which were not present at the hearing. The Employer then sought to introduce the affidavit of Chris Haughee which was rejected by the Hearing Officer. The Employer then filed its motion for Determination of Managerial and Confidential Employees. This motion is preserved for consideration by the Commission. It is appropriate to note at this point that upon the conclusion of the taking of testimony the Petitioner amended its petition to seek a unit composed of non-exempt employees of the Road Construction and Maintenance Division, the Heavy Equipment and Vehicle Maintenance Division, and Arthopod Division of the Public Works Department of the County of Seminole, or in the alternative, all non-exempt employees of the Public Works Division and as a final alternative, a unit of all blue collar workers of the Public Employer who are in construction, maintenance and trades, but excludes clerical, secretarial and similar positions. The parties also stipulated to the managerial status of division directors within the Administrative Services Department and their secretaries. However, in light of the fact that not all division directors within the employ of the Public Employer were not included within the stipulation, and further, because the Employer has filed a motion for Determination of Managerial and Confidential Status and because the stipulation between the parties would not be binding upon others who might have an interest, the facts relating to the duties and functions of division directors and similar positions are set forth so that the Public Employees Relations Commission may resolve the status of these employees as it relates to the motion filed by the Public Employer. The general organization of the Public Employer is indicated on Exhibit 6. The Board of County Commissioners, as the elected representatives of the citizens of Seminole County, head the Public Employer. An executive assistant manages the office and staff of the Board of County Commissioners and functions as general coordinator for the other department heads of the county government. Each of the several departments of government is headed by a department head. Each department head is directly responsible for the management of his department to the Board of County Commissioners. Although the executive assistant, as a coordinator, would have some coordinating function with the department heads, the department heads are the first level of management below the Board of County Commissioners. The department heads prepare the budgets for their department, manage and direct their personal staffs and their division heads, make policy within their department, and participate in the resolution of grievances. They have the authority to hire and fire all employees making less than $10,000 per year and they participate in evaluations of all employees. Department heads have the ability to effectively recommend the employment and discharge of division heads and employees making more than $10,000 per year. All of the department heads meet on Mondays to discuss their joint duties and coordinate their activities. The division heads or directors have the authority to effectively recommend hiring and firing of personnel. The division heads assign work and determine the manner in which work shall be done by their subordinates. The division heads have the authority to discipline their personnel or effectively recommend disciplinary measures dependent upon the action taken. Division directors prepare and submit budget data to the department heads upon which the departmental budget is based. The division heads constitute the second level of supervision or management in county employment. Among their other functions they make determinations regarding the manner in which programs will be accomplished and participate in the resolution of grievances. In all but the smallest divisions and in all of the departments, the department heads and division directors have secretaries assigned to them to handle their personal correspondence, In the larger divisions and in the majority of the departments there are additional clerical personnel assigned to handle general typing and filing and to maintain fiscal records. The parties with regard to the RC petition in question have stipulated that the secretaries to the department heads and division directors should be excluded as confidential. There are divisions within the county government whose function is primarily administrative and whose employees perform administrative duties. These divisions or activities would include the Personnel Division, Microfilm Division, Division of Manpower Planning, Purchasing Division, Office of Management and Evaluation, Veterans' Service Officer, Division of Social Services and Seminole County Industrial Development Authority. In the aforelisted activities, all of the personnel are involved in totally administrative functions. In addition to these totally administrative divisions or activities, there are additional divisions in which there are mixed administrative and other functions. The administrative employees of these divisions would include Switchboard Operators and the Mail Clerk in Support Services Division; the Biologists in Operations Division of the Department of Environmental Services; the Operator Inspector, Pollution Control Technician, Account Clerk in the Division of Environmental Control of the Department of Environmental Services; Cashiers within the Division of Motor Vehicles of the Department of Public Safety; the Deputy Civil Defense Director in the Division of Civil Defense, Department of Public Safety; Permit Clerks and a Secretary II of the Building Division of the Department of County Development; two Secretaries and a Site Planner within the Office of the Land Development Administrator, Division of Land Development, Department of County Development; a Secretary, two Draftsmen, two Planners, Drafting Technician II, Planner (current plans), Senior Planner, Principal Planner and County Planner within the Planning Division of the Department of County Development. The following personnel hold positions within the county government below that of division director and perform functions which are not clerical or administrative in nature. These remaining personnel will be discussed by division. Within the Building Maintenance Division there is a Supervisor of Custodial Services, Supervisor of Courthouse Custodians, and Building Custodian Supervisor, all of whom report to the Director of Building Maintenance. The Supervisor of Courthouse Custodians directly supervises the fifteen custodians assigned to the Seminole County Courthouse. The Supervisor of Custodial Services supervises the custodians assigned to the maintenance of the other county buildings. The Building Custodian Supervisor supervises the electrical, carpentry, plumbing and air conditioning foremen under whose direction maintenance workers perform such maintenance as is required upon the various county buildings. These three supervisors have the authority to effectively recommend hiring, firing and disciplinary action and assign specific work to those employees under their direction. These supervisors constitute the first level of direct supervision over the county employees for although there are trades foremen designated they function as lead workers. Within the Support Services Division there are three Night Watchmen who are responsible for security of the County Courthouse and one Senior Night Watchman who assigns the work shifts of the Watchman. The testimony would indicate that the Senior Night Watchman functions in the role of a lead worker. It should be noted that this Division does not have a division director but is under the control of the acting executive assistant. Within the Division of Human Services is the Office of Animal Control which is headed by the Animal Control Officer. The Animal Control Officer is responsible for the operation of the County Pound and the supervision of the work of the four Animal Control Officers. He is assisted in his functions by the Animal Control Supervisor who is specifically charged with maintenance of the County Pound. The Animal Control Officer has authority to recommend hiring, firing and discipline of these employees who he evaluates. Within the Operations Division of the Department of Environmental Services there is a Chief Operator and three Operator Trainees who are responsible for the operation and maintenance of the county's water and sewage treatment facilities. The Operator Trainees are under the direct supervision of the Chief Operator whose responsibility is to train then to operate the system and to assign their duties. The Operator Trainees perform maintenance, read meters, and perform such other duties as the Chief Operator assigns necessary to the operation of these facilities. Within the Office of the Director of Public Safety and under the Director's control is Fire Prevention and Arson Investigator, a Training Officer, and two Mechanics. The Investigator and the Training Officer are trained firefighters. The two Mechanics are physically located at Station 14 and are responsible for the maintenance of the County Fire Department's Vehicles. The Fire Department is divided into three shifts or platoons. Each shift or platoon being supervised by a Sector Fire Coordinator. The Sector Fire Coordinator prepares the budget for his shift, establishes field operating procedures, and directs fire fighting, and has access to the personnel files of the employees. Also within the Department of Public Safety is the Communications Division which at present relates primarily to the Fire Department but which will in the future also encompass the 911 telephone number. The Communications' personnel are under the supervision of the Communications supervisor. The Communications' personnel are generally not firefighters, but receive emergency calls and dispatch equipment. Within the Motor Vehicle Inspection Division of the Department of Public Safety there are three Inspection Stations located within the county. The Motor Vehicles Inspection function is under the supervision of the Motor Vehicles Inspection Supervisor who acts as a division director and effectively recommends hiring and firing and discipline of employees and who helps prepare the budget for the Motor Vehicles Inspection activities. He is also responsible for work assignments and development of work procedures. Each Inspection Station is under the direction of a Chief Inspector who is responsible for assigning work at each station and responsible for the function thereof. There are four Motor Vehicle Inspectors at each Inspection Station and one Cashier. Within the Division of Parks and Recreation of the Department of County Development there is a Parks Coordinator/Designer who can effectively recommend hiring and firing and disciplinary action of personnel within the Division. The Parks Coordinator/Designer is also responsible for the direct or specific supervision of work. He functions as an assistant division director. The Parks Supervisor is also able to effectively recommend hiring, firing and disciplinary action. The Parks Supervisor provides direct supervision of the five Maintenance Workers, the Equipment Operator II, and three Trades Workers assigned to the Parks and Recreation Division. In addition to the positions enumerated above there are an additional twenty-nine CETA Workers assigned to Parks and Recreation primarily in the grades of Maintenance Worker and Equipment Operator. Within the Building Division of the Department of County Development the construction inspection function within the county is the responsibility of the Building Official who functions as the division director of the Building Division. He is assisted in his duties by the Plans Examiner who functions as the Deputy Building Official. Both employees have the authority to effectively recommend the hiring, firing and discipline of their subordinate employees. The actual inspection of construction is carried out by one of ten inspectors. There are three Chief Building Inspectors; one assigned to general construction, one to electrical, and one to plumbing, There are six Inspectors who work under the three Chief Inspectors and one Trailer or Mobile Home Inspector who reports directly to the Building Official. Within the Land Development Division of the Department of County Development is the Zoning Department. The Land Development Administrator functions as the division director. He is assisted in his Duties by the Zoning Administrator who acts as the Assistant Division Director. Both employees have the authority to effectively recommend hiring, firing and disciplinary actions. There are three Inspectors assigned to the Land Development Division. One inspects for compliance with the County Tree Ordinance, one inspects with regard to commitments made to the county by developers and the third inspects for violations of the county zoning code. The Engineering Division of the Department of Public Works is responsible for three basic functions: Traffic engineering, design and survey, and survey and inspection. The Traffic Engineer is responsible for the traffic engineering activity and supervises the other employees directly. Signs are prepared in the County Sign Shop which is under the supervision of the Sign Shop Foreman. An Electrician is also assigned to this activity together with an Electronics Technician. They are responsible for the installation and maintenance of traffic signals. A Radio Technician is also assigned to the Traffic Engineer activity. The Radio Technician is responsible for the repair of all county radios. The Design and Survey activity consists of a Design Engineer and a Design Technician who design and draft plans for county construction projects. The Assistant County Engineer heads up the survey and inspection type activity for the Engineering Division. He is responsible for the county's two survey crews which are made up of a Party Chief and three to four crew members. The Assistant County Engineer is responsible for directing the work functions and activities of his subordinates and has the authority to effectively recommend hiring, firing and discipline. The Assistant Road Superintendent is in charge of the Road Construction and Maintenance Division of the Department of Public Works. He is assisted in the performance of his duties by two foremen and three to four crew leaders. The Road Maintenance function contains three supervisors, two of which supervise a foreman and two crew leaders and the third supervisor who supervises a crew leader. Under each crew leader there are from four to six maintenance workers or equipment operators. The Assistant Road Superintendent and the three supervisors in maintenance all function in assigning work to crews and individuals and supervising the work activity. In addition, the Assistant Road Superintendent acts as the assistant to the Road Superintendent who functions as the division director. Both men would have authority to effectively recommend hiring, firing, and disciplinary action together with the three supervisors, The Division of Heavy Equipment Maintenance is under the supervision of the Shop Foreman who functions as a division director, He is assisted by the Parts Manager who acts as the assistant division director. The position of Chief Mechanic is currently vacant and the duties are being performed by the Assistant Chief Mechanic. The primary function of the Parts Manager is the purchasing and stockage of spare parts. The Shop Foreman, Parts Manager and Assistant Chief Mechanic all have the authority to effectively hire, fire and recommend discipline. These three individuals would also provide evaluations of the mechanics, mechanic helpers and equipment servicemen assigned to the Heavy Equipment Maintenance Division. The Arthropod Division of Seminole County is responsible for refuse disposal. The division director is the Refuse Superintendent. Working under him are the Refuse Supervisor and a Landfill Foreman. The Landfill Foreman is responsible for supervision of the actual landfill operations and directly is responsible for three Equipment Operator III's and an Equipment Operator IV. The Landfill Foreman is also responsible for supervision of truck drivers while they are at the landfill area. The Landfill Foreman, Refuse Supervisor and Refuse Superintendent (division director) all have the authority to effectively recommend hiring, firing and discipline and to make work assignments and to evaluate performance. There were approximately twenty-eight employees within the Arthropod Division at the time of hearing. With regard to the employees of the county generally the testimony indicates that all employees of the county are entitled to the same vacation, retirement, and insurance benefits and that their salaries are established within the framework of the pay classification plan. The Petitioner has argued that each division is a totally independent unit, therefore, a unit composed of employees of the Arthropod and Road Construction and Maintenance Divisions of the Department of Public Works would be appropriate. The Employer has urged that the employees of the county be divided into three units: (1) all professional employees (2) all supervisory employees and (3) all employees not contained in the first two units. The Employer's proposal would appear to lump all the clerical employees, all custodial and maintenance employees, and certain highly skilled or specially trained employees in the same unit. The record does not support the Petitioner's contention that the divisions of Seminole County government are independent. The record clearly indicates that divisions are subordinate to the departments of which they are a part. The record further indicates that even departments are not totally independent or autonomous since the department heads are responsible to the County Commission which in turn establishes the salaries and other benefits of employment for all employees of the county. The record clearly indicates that a unit limited to the Arthropod and Road Divisions or even to the Public Works Department would not encompass many employees with essentially the same job functions and in some instances the same job titles and pay classifications. There are maintenance workers, equipment operators and certain custodial personnel and mechanics located in other divisions of county government. The position of the Employer fails to recognize the disparity of interest between the employees which would be "left over" and compose the third unit it has proposed. The record indicates that there are essentially three types of employees below the grade or position of division director as follows: (1) Clerical, (2) Maintenance/Custodial, and (3) Highly skilled. A large portion of the total number of county employees would fall into the clerical category to include secretaries, clerk typists, filing clerks, and fiscal assistants. The maintenance/custodial category would appear to be the next largest grouping of employees and would include custodial and maintenance workers, vehicle operators, watchmen, and mechanics. The highly or specially skilled category would include various planners, biologists, draftsmen, personnel specialists, zoning and building inspectors, and the highest level of skilled trades workers and sanitariums. Based upon the foregoing categorization of county employees, the unit composed of maintenance/custodial employees would encompass all of the job titles and job classifications sought by the Petitioner within the Department of Public Works and consolidate a substantial portion of the total number of county employees who share similar duties and work environments. A unit composed of this category would be almost identical to the last alternative unit sought by Petitioner. At the same time it would prevent fractionalization within county government and better meet the criteria stated in Section 447.009(4), Florida Statutes. This report is respectfully submitted this 11th day of April, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Thomas J. Pilacek, Esquire Bowels & Pilacek 131 Hark Lake Street Orlando, Florida 32803 David Richeson, Esquire Alley, Alley & Blue 205 Brush Avenue Tampa, Florida Henry Swann, Esquire Alley, Alley & Blue 205 Brush Avenue Tampa, Florida Chairman Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue in this case is whether Petitioner’s employment position was properly reclassified from Career Service to the Select Exempt Service (SES) on July 1, 2001, pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact In 1985, Petitioner was employed by the Department as an Engineer III. He was eventually promoted to Engineer IV and then to Engineer IV coordinator. Prior to July 1, 2001, Petitioner’s positions were classified as career service. On July 1, 2001, Petitioner’s position was changed from a career service classification to an SES classification and designated as an Engineer Supervisor IV. A knew job description was also prepared. Throughout his employment, Petitioner’s main duty was to inspect, maintain and repair fire and security alarm systems in State office buildings. In that capacity and depending on the particular system, Petitioner worked as part of and coordinated with a team of one to two other inspectors. Petitioner’s position as an Engineer IV was a position within the PERC certified Professional Career Service collective bargaining unit, represented by Florida Public Employees Council 79, Association of Federal, State, County and Municipal Employees Union (AFSCME). For inclusion within such a unit the position was considered to not involve managerial or supervisory functions. In fact, Petitioner’s positions as an Engineer III and IV did not involve supervisory functions. However, when he became an Engineer IV coordinator, Petitioner had some supervisory duties. Those duties were primarily approving time sheets and performing annual employee performance evaluations. Employee assignments and training were handled as a team with a particular employee’s specific equipment knowledge and building knowledge being key factors. When work was performed together, the employee with the greater expertise with the system directed the work. Prior to his termination, Petitioner supervised Ed McCann and Richard Lamberto. Approximately 90 percent of Petitioner’s time was spent responding to calls regarding the malfunctioning of fire and security systems. About five percent of his time was spent performing routine maintenance on such systems and another two to four percent on responding to fire marshall’s inspection reports. Less than one percent of his time was spent on supervisory duties. Petitioner’s primary duties involved the exercise of independent judgment. His duties were not routine or clerical in nature. Petitioner did not have the power to hire and fire an employee or the power to make purchase decisions. He could make effective recommendations regarding those decisions. He did not have authority over any budgetary matters. There was no evidence that Petitioner’s position dealt with confidential matters. In fact, Petitioner’s actual job performance did not change after his position was reclassified to Engineer Supervisor IV, SES. His day-to-day performance did not change primarily because his office was seriously understaffed for the statewide duties of their office. However, the new SES description expanded the supervisory or managerial duties of Petitioner’s old career service position description. In pertinent part, the position description as of July 2, 2001, stated the following: 20% Supervisory: Supervision of Fire & Safety employees in their duties and responsibilities. Evaluations and review of job performance, recommendation of disciplinary action if necessary, training and continued education. Supervise the project management duties that include the approval of timesheets, project specification, drawings, purchase orders, requisitions, correspondence, travel, purchase order completion of contract pay requests. Meet regularly with subordinate staff to discuss office procedures, work assignments and Division issues and goals. Addresses performance issues promptly and uses progressive and corrective action to resolve employee performance problems. Updates, discusses and presents Performance Planning and review forms, position descriptions and office procedures to subordinate staff. Provides each employee with a performance review within the designated time period in accordance with established rules and procedures. Ensure staff attend necessary training with designated time frames. Follows established rules, regulations and procedures for attendance and leave, travel reimbursements, appointment procedures, affirmative action and invoice processing. Duties contained in numbers three through eight were expanded from his earlier 1999 position description. The 2001 position description also had expanded supervisory or managerial duties contained in its other sections. The description stated, in relevant part: 40% preventive Maintenance: * * * * 2. Ensure the desired maintenance is being performed on a timely basis that does not fall within normal operations. * * * * Assist in providing engineering direction on system modifications, installations, upgrades and also see that the actual preventive maintenance efforts are being carried out. Set priorities for maintenance projects; * * *. * * * * 10% Specifications: * * * * 2. Monitor contractors through contract period for compliance with specifications. * * * * Instruct user personnel on the prescribed utilization, operation, testing and maintenance of alarms on the alarm systems installed. * * * * 10% Other: * * * * Keeps supervisor fully informed regarding work-related activities, relevant issues, upcoming events and potential problems. Ensures requests for leave are submitted and approved in accordance with established rules and Division procedures. * * * * Petitioner remained employed under the new classification until his termination on August 12, 2002. Petitioner was terminated in part for failing to perform his duties as a supervisor in overseeing the timely performance of repairs and setting priorities for accomplishing those tasks. The evidence demonstrated that Petitioner’s supervisory duties were expanded to include a significant amount of supervision and management. However, the evidence did not demonstrate that Petitioner actually spent a majority of his time supervising his staff. The evidence did show that he did spend some amount of time engaged in non-routine, non-clerical activities that involved the exercise of independent judgment, combined with a significant role in employee personnel administration in that he had the authority to effectivey recommend employment actions. The fact that he did not exercise such authority is not controlling and only demonstrates that the need for such action had not arisen. Given these duties, the reclassification of Petitioner’s position was appropriate under the Service First Initiative.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached it is RECOMMENDED that a final order be entered finding that Petitioner's position was appropriately reclassified as Select Exempt Service. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 5th day of January, 2007. COPIES FURNISHED: Avery McKnight, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Steven S. Ferst, General Counsel Department of Management Services 4050 Esplanade Way 2900 Apalachee Parkway Tallahassee, Florida 32399-0950 Linda South, Secretary Department of Management Services 4050 Esplanade Way 2900 Apalachee Parkway Tallahassee, Florida 32399-0950
Findings Of Fact Gary Antonissen holds residential contractor's license No. RR 0029550 and at all times here relevant was the qualifying contractor for Rogart Development Corp. (Rogart). He received this license in 1976. Rogart is owned by Arthur Antonissen, the father of Respondent. Arthur Antonissen constructed residences in Long Island, New York from 1962 until he moved to Florida in 1976, shortly before Gary was licensed. In New York he constructed an average of 80 homes per year. Rogart commenced doing business in 1976 with Gary Antonissen as the qualifying contractor. Rogart generally developed tract homes and used subcontractors for the work. Upon arrival in Florida in 1976, Rogart found subcontractors readily available in Collier County and work progressed satisfactorily. However, in late 1977 and 1978 as the construction industry expanded Rogart found subcontractors more difficult to get to do the work they had previously done. This resulted in Rogart delaying the completion of homes from the four months promised the buyer to as much as 18 months and in inferior workmanship and complaints from buyers. Although Gary Antonissen was the qualifying contractor for Rogart, it clearly appears that Arthur Antonissen directed the operations of the company and actually supervised the construction of many of the homes. Between August 1977 and August 1978, Rogart built 80 homes. It was during this period that Rogart began having trouble with subcontractors and buyers started complaining to the Collier County Building Department and to the Collier County Contractors Licensing Board. The Collier County building inspectors found numerous instances of poor workmanship in the construction of residences and some of these were corrected by the contractor. Three buyers of homes from Rogart testified to defects in the construction of their homes and of their efforts to get Rogart to correct these defects. These workmanship deficiencies were corroborated by the Collier County Building Inspector and were not rebutted by Respondent. Differences arose between buyers and developer resulting from the former seeing cabinets or equipment in a model house and expecting the same in the house they bought, whether the plans actually called for it or not. The one contract entered into evidence did not have attached thereto the plans and specifications the contract stated would be attached, and the testimony was silent whether or not the buyers actually received a copy of the plans and specifications for the home each purchased. No evidence was submitted that code violations existed in the construction of these homes. All were issued certificates of occupancy and the Collier County Building Inspector testified that a certificate of occupancy would not be issued if code violations existed. Gary Antonissen was not a qualified carpenter, electrician or plumber, nor did he have the mechanical skills needed to himself correct defective workmanship left by the subcontractors. Supervising the construction of some 50 homes under construction at one time taxed his abilities to the utmost. Following several meetings by the Collier County Contractors Licensing Board at which complaints were received from buyers of Rogart's homes, the Board on August 15, 1978 voted to revoke the Certificate of Competency of Gary Antonissen (Exhibit 3) Although the Collier County Contractors Licensing Board revoked Respondent's license for, inter alia, departing in material respect from plans or specifications without the consent of the owner, no evidence of such departure was here presented. No plans or specifications were submitted into evidence from which a departure there from could be ascertained.
Findings Of Fact Respondent was employed as building inspector of Suwannee County on or about November, 1974. and was terminated by action of Petitioner at a meeting on or about September 18, 1980. Respondent received a letter dated October 14, 1980 from Claude McDonald, Chairman, Suwannee County Board of County Commissioners, listing the following reasons for his termination: Gross neglect of duty. Absence without leave. Incompetence or unwillingness to render satisfactory services. Insubordination or serious breach of discipline. Habitual absences, tardiness or abuse of sick leave. Substantial violations of personnel regulations. Falsifying travel records. Fraudulent claims filed with the Board of County Commissioners `for reimbursement of travel expenses to job sites for inspections when, in fact, such inspections were not made, or in the alternative, making inspections which were not documented by signing building permits as required by established procedures. Respondent was the first building inspector for Suwannee County and established all of the procedures and forms used in the building department. He was bound by the personnel and fiscal regulations of Suwannee County, but was given a substantial degree of independence in setting up the building department, and thereafter in conducting the daily work of the department. In establishing and administering the department, Respondent consulted with other building inspectors and officials. In January, 1975 Respondent hired Connie Robinson as his secretary, and in February, 1979 he hired Pat Sura to be his assistant building inspector. Sura is now building inspector for Suwannee County. The evidence establishes that the regular business hours of the building department while Respondent was building inspector were from 5:00 a.m. to 5:00 p.m. This is consistent with the county's policy and with the practice of other county offices. Both Connie Robinson and Pat Sura, "employees" of the building department, testified that they worked from 8:00 a.m. to 5:00 p.m. Respondent would regularly arrive at the office at about 5:30 a.m., but he frequently conducted official county business both before arriving at the office and after leaving in the evening by visiting job sites. The building inspector is a "department head" as that term is defined in Part I, Suwannee County Personnel Regulations, and as such is exempt from a 8:00 a.m. to 5:00 p.m. work day and the 40 hours per week required by Part XIV, Section C, Suwannee County Personnel Regulations. Therefore, the evidence establishes that the "employees" of the building department maintained work hours consistent with applicable personnel rules at all times relevant herein, and also that Respondent's own work hours were not violative of applicable personnel rules. As a "department head", Respondent did not accrue compensatory time or earn over-time pay for hours worked beyond forty hours a week. Department heads were expected, when the need existed, to work more than forty hours a week. Respondent did earn vacation and sick leave. In order to use earned vacation or sick leave, Respondent was required to submit a request for leave as provided in Part XVI, Sections A4 and 55, Suwannee County Personnel Regulations. The evidence establishes that Respondent was absent from his office and did not perform official duties for the county on the following dates, although he was paid for work on these dates and did not submit a request to use either vacation or sick leave: February 5-12, 1980; June 3-13, 1980; September 15-16, 1980. This finding is based on the testimony of Connie Robinson and Pat Sura. Although Respondent called the office once during the February absence, notified the Board of County Commissioners in advance that he would be gone for two days during the June absence to attend an educational seminar in Orlando and also that he would need some additional time off due to his son's medical emergency, and had his wife call the office and leave a phone number where he could be reached during the September absence, Respondent never submitted a request for leave for any of this time. This failure followed a formal written warning concerning the use of leave issued by the Chairman of the Board of County Commissioners to Respondent on December 6, 1979. Despite being absent from the office without claiming leave on the dates specified in finding of fact 7 above, Respondent submitted false reports to the county indicating that he had conducted inspections on June 6 and 9, 1980 when in fact he was in Orlando for his son's medical emergency and for an educational seminar. From February 24, 1979 to November 21, 1979, Respondent was in the process of building his house. He did not use a general contractor, but rather acted as an owner-builder. There is conflicting testimony as to whether Respondent was absent from his job without claiming leave during this time, and whether he spent time during his normal working hours working on his house, rather than as building inspector for Suwannee County. After considering all of the evidence, it is specifically found that Respondent did take unreported time off during his normal work day to either work on his house, receive materials on site, or check on contractors who were working on his house. The frequency of his visits with these contractors indicates that these were not normal inspections made during the course of his duties as building inspector. This finding is based upon the testimony of Connie Robinson, Pat Sura, Respondent himself, and also Buddy McCall, Anthony Donald Selph, Jan Touchton and James Benton who either worked on Respondent's house or delivered materials to the job site between 5:00 a.m. and 5:00 p.m. during this time, and who testified that Respondent was regularly present on the site between the hours of 8:00 a.m. and 5:00 p.m. This finding is specifically made after considering the contrary testimony of Raymond Key, and Alfred Smith, and Respondent's denial that he took unreported leave to build, or worked on his home during his normal work hours. Although the exact number of unreported days off which Respondent took to work on his house in 1979 cannot be determined, there is competent substantial evidence based on the testimony of Connie Robinson and Pat Sura that Respondent took between 15 and 20 work days off between May and August, 1979 and did not report these absences. Respondent was paid his normal salary for these days by Petitioner. In May, 1980 Respondent was asked to submit a report to the Board of County Commissioners on the number of inspections he had personally made during the preceding twelve months, and thereafter to submit monthly inspection reports to the Board. This request was made on behalf of the Board by Jerry Scarborough, Clerk of the Court and Clerk to the Board. Claude McDonald, Chairman of the Board in 1950, testified that Commissioners had been receiving some complaints from the public that Respondent was frequently absent from his office, and that he was spending time at the real estate office of Robert Mahan where his wife worked. Robert Mahan confirmed that Respondent visited his wife during normal work hours quite often. Respondent reported to the Board of County Commissioners that he had made between 200 and 250 inspections during the preceding year while Pat Sura had made approximately 1200. He explained the difference was due to the fact that he had other duties, such as Public relations and administration, while Sura's sole job was to make inspections. However, subsequent to the request for regular reports which was made in May, 1980, the number of days per month when Respondent reported that he had conducted inspections increased substantially. Specifically, from January to April, 1980 he averaged inspections on 3 days per month while from May to August he averaged inspections on 11 days per month, according to his reports. From the evidence presented, it is found that Respondent did copy Pat Sura's inspection reports and submit them as his own regarding some of the inspections he reported after May, 1980. The exact number of falsified inspection reports cannot be determined, but it is clear that Respondent falsely reported an increased number of personal inspections in response to the request by the Board. From the evidence presented, it is also found that Respondent falsely claimed travel expense reimbursement for inspections which, in fact, he did not make on April 14 and 15, 1980 and September 2-4, 8, 9, 1980. The reimbursement received for travel associated with inspections during this time was less than $100, but it cannot be determined exactly how much of this claim was false. It is clear, however, from an independent audit conducted by Steven Collins, C.P.A., that the system for documenting travel expenses does not support a substantial number of the inspection trips claimed by Respondent on these vouchers. Respondent sought to explain the matters in findings of fact 12 and 13 by contending that on most of the inspections he made, he did not sign the building permit. However, he acknowledged that it was standard practice for the inspector to sign the permit when he made an inspection. Respondent indicated that his visits to a building site were not always formal inspections and that he might simply stop by to check up on a contractor or on the work of Pat Sura, or to make a public relations visit. Notwithstanding the possibility that some of his site visits and reported inspections may have, in fact, occurred as uncalled, surprise visits, a substantial number of these visits and inspections, as well as associated travel vouchers, were falsified by copying Pat Sura's inspection reports. On May 22, 1981, Lynn B. Martin, Appeals Referee, Unemployment Compensation Section, determined that Respondent was disqualified from receiving benefits for having been discharged for misconduct connected with his work. Respondent was not represented by counsel in that proceeding.
The Issue The issue presented is whether Petitioner's application for licensure as an assisted living facility should be granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered granting Petitioner's application for a license to operate an ALF, subject only to Petitioner providing the required inspection report from the Palm Beach County Public Health Unit. DONE AND ENTERED this 18th day of July, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1997. COPIES FURNISHED: Brian M. O'Connell, Esquire Boose, Casey, Ciklin, Lubitz, Martens, McBane & O'Connell Post Office Box 4626 West Palm Beach, Florida 33401 Jennifer Stewart, Esquire Agency for Health Care Administration 3810 Inverrary Boulevard Lauderhill, Florida 33319 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32309
The Issue Whether Petitioner, David Riggins, was subject to an unlawful employment practice by Respondent, Hillsborough County, based on his disability (handicap) in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner brings this action alleging that his current employer, the County’s Public Utilities Department, discriminated against him based on his disability and in retaliation for his challenge to his job reassignment. Petitioner started working for the County in January 2008. Petitioner was hired as an Electrician 3 in the Public Utilities Department. On January 18, 2011, Petitioner was promoted to Electronic Technician III. Generally, Petitioner’s job was to inspect, maintain, and repair field instrumentation related to the County’s water treatment and wastewater facilities. By all accounts, he was a competent, knowledgeable, and reliable employee without any issues in his performance. In January 2014, Petitioner’s position was reclassified from Electronic Technician III to Industrial Instrumentation and Controls Technician (“IIC Technician”). The job duties for Electronic Technician III and IIC Technician were substantially similar. With the reclassification, Petitioner’s pay was increased to $28.48 per hour (effective October 1, 2013). On October 1, 2014, Petitioner received a market equity pay increase to $29.33 per hour. On March 2, 2011, Petitioner suffered a serious work- related accident. Petitioner was electrocuted while he was servicing modules at a water treatment plant. The electric shock left Petitioner with two medical conditions identified as Syncope and Collapse. Syncope causes a loss of consciousness resulting from insufficient blood flow to the brain. Collapse causes an individual to fall down or become unconscious due to sickness or exhaustion. At the final hearing, Petitioner explained that the shock he received caused the electrical impulses in his heart to stop functioning efficiently. Petitioner relayed that his medical condition causes him to experience episodes of dizziness and light-headedness. He also periodically suffers from blurred vision, tunnel vision, and on several occasions, loss of consciousness. Petitioner cannot predict when he will experience the symptoms of Syncope or Collapse. An episode could happen at any time. In a medical evaluation in July 2012 with his treating cardiologist, Dr. J. Thompson Sullebarger, Petitioner recounted that since his electric shock, he “had several spontaneous episoded [sic] of syncope with similar symptoms and still has dizziness sometimes when he gets up in the morning.” Petitioner also complained of dizziness, paresthesia (a tingling or numbness on the skin), and vertigo. Dr. Sullebarger opined that Petitioner “is unsafe to work on ladders or in buckets or high places.” Dr. Sullebarger further instructed Petitioner to “[a]void ladders and working in high places.” On September 25, 2012, Petitioner returned to Dr. Sullebarger. Petitioner “continued to complain of dizziness and episodes of near syncope.” Petitioner relayed that he “is dizzy almost every day.” On August 14, 2013, Petitioner submitted a “Request for Reasonable Accommodation” to the County based on his medical conditions. Petitioner relayed that he should avoid working from heights, elevated platforms, or catwalks, as well as working around open wet wells. In a follow-up letter to the County clarifying his request, Petitioner represented that he could perform his IIC Technician duties if he was allowed to wear a safety harness and lanyard when working at heights and elevated platforms. In January 2014, at the County’s request, Petitioner’s job of Electronic Technician III was analyzed to determine the essential physical requirements of his job. The study found that “climbing in [the Electronic Technician III] position is required.” However, “the frequency of climbing ladders was determined to be approximately 10%.” On June 20, 2014, the County notified Petitioner that, in light of his medical limitations, it would no longer allow him to work as an Electronic Technician III/IIC Technician. The County determined that climbing ladders of various heights was an essential function of Petitioner’s duties. Therefore, because Petitioner’s medical provider had instructed him to “avoid climbing on ladders,” the County determined that Petitioner could no longer perform the duties of an IIC Technician. The County offered Petitioner three months to search for another job with the County. The County informed Petitioner that if he did not find another job within the allotted time, the County would proceed with a Due Process Hearing to terminate his employment. Petitioner valued his IIC Technician job very much and did not want to lose it. Consequently, over the ensuing three months, Petitioner neither applied for nor requested another job with the County. Instead, Petitioner elected to challenge the County’s employment decision at a Due Process Hearing. The Due Process Hearing was held on February 9, 2015. Petitioner did not prevail. Thereafter, on March 20, 2015, George Cassady, the Director of the County’s Public Utilities Department, formally removed Petitioner from his IIC Technician job. However, rather than terminate Petitioner, Mr. Cassady offered to place him in the position of Business Analyst II. Mr. Cassady wrote in a letter to Petitioner, “I have decided to accommodate your restriction(s) by transferring you to the job of Business Analyst II in the Maintenance Planning Support Team. Your salary will be $26.00 per hour. Your transfer is effective Monday, March 23, 2015.” Petitioner was very disappointed to lose his IIC Technician job. He was also distressed that his salary was to be reduced from $29.33 to $26.00 per hour. Therefore, before he accepted the transfer, in June 2015, Petitioner appealed the Due Process Hearing determination to the Hillsborough County Civil Service Board. Petitioner argued that his reassignment to Business Analyst II was a “demotion.” The Civil Service Board held an evidentiary hearing on March 16, 2016. The Civil Service Board agreed with Petitioner that, because his salary was reduced, his placement in the Business Analyst II position should be considered a demotion. However, the Civil Service Board concluded that Petitioner failed to prove that the County “acted without just cause” to demote him to Business Analyst II. Subsequent to the Civil Service Board decision, on May 4, 2016, Petitioner and the County entered into a settlement agreement to amicably resolve the issue of his reassignment. Through the settlement agreement, the County agreed to increase Petitioner’s base hourly rate of pay to $28.00 per hour (up from $26.75). The County also agreed to pay Petitioner a lump sum of $5,000. For his part, Petitioner agreed to “release and/or withdraw . . . [a]ny and all claims, grievances, appeals in any forum associated with the placement of [Petitioner] in the Business Analyst II position as of March 23, 2015.” Petitioner also assented that his placement as a Business Analyst II was a “transfer of his employment and not a demotion.” Petitioner’s current action focuses, not on his placement in the Business Analyst II position, but on the County’s subsequent refusal to hire him back in his previous job as an IIC Technician. On two separate occasions, Petitioner applied with the County for an IIC Technician position. In February 2015, the County advertised an IIC Technician opening. The advertisement did not list any physical requirements for the position. The County did not interview Petitioner for the job. In July 2016, the County advertised to fill another IIC Technician position. In this advertisement, the County expressly listed that the job specific competencies included, “[a]bility to climb ladders.” Petitioner applied again. In September 2016, the County notified Petitioner that he would not be considered for the IIC Technician position. Petitioner received an e-mail from the County Human Resources office stating, “[w]e were very impressed with your qualities as an applicant and even though other candidates overall Qualifications were deemed most compatible with the duties and responsibilities of this position, we hope your interest in career opportunities with Hillsborough County will continue.” Petitioner asserts that, based on the County’s hiring matrix, he was the most qualified candidate given his years of experience and his possession of the required certified central system technician license, which no other candidate possessed. Nevertheless, he was excluded from consideration for the position. Petitioner asserts that no legitimate reason existed for the County to reject his application to fill the IIC Technician position. Petitioner disputes that his current medical restrictions prevent him from performing the essential functions of an IIC Technician. At the final hearing, Petitioner expressed that he is no longer medically prohibited from climbing ladders. On September 21, 2015, following another medical examination, Dr. Sullebarger stated that Petitioner’s only restriction was “Harness at Heights (otherwise no restrictions).” Petitioner’s understanding is that Dr. Sullebarger will allow him to climb ladders if he wears a safety harness. On March 3, 2016, Dr. Sullebarger completed a Medical Certification Form for the Commission. On this form, Dr. Sullebarger wrote that Petitioner is “at risk for dizziness or fainting.” Dr. Sullebarger opined that Petitioner’s use of a safety harness was reasonably necessary in order for him to perform the required functions of an IIC Technician. Dr. Sullebarger specified that “working with a harness at heights will reduce [Petitioner’s] risk of injury due to falls.” Despite the apparent improvement of his condition, at the final hearing, Petitioner affirmed that he still suffers from Syncope and Collapse. Petitioner further acknowledged that his medical condition could make performing the IIC Technician duties more risky. For instance, if an IIC Technician needed to climb a ladder to access a device, and the location did not support the use of a safety harness, then Petitioner would have to work at heights without the medically required safety equipment. However, despite his unpredictable episodes of dizziness and his need to use a safety harness, Petitioner argued that he can competently perform the IIC Technician job. Initially, Petitioner disputed that climbing ladders is an essential function of an IIC Technician. Petitioner expressed that an IIC Technician typically programs and calibrates electronic equipment on level ground. Petitioner relayed that for the months prior to losing his IIC Technician position, he satisfactorily performed his responsibilities without climbing ladders. At the final hearing, Petitioner insisted that, at most, ten percent of the IIC Technician job involves climbing ladders. Furthermore, to the extent that climbing ladders is required, reasonable accommodations exist to allow him to perform the essential functions of the job. These accommodations include hydraulic lifts, as well as the use of a safety harness at heights. Petitioner asserted that neither preventive measure would change the scope of the IIC Technician responsibilities. Consequently, his medical condition poses no safety threat. Petitioner further argued that his medical restriction should not preclude him from the IIC Technician job because every IIC Technician is required to use a safety harness.3/ Therefore, because Petitioner’s need to use a “safety harness at heights” is a precaution that every IIC Technician must exercise, his medical condition should not prevent the County from hiring him as an IIC Technician. Finally, Petitioner disputed the County’s position that situations exist in which IIC Technicians are not able to use a safety harness to perform their duties. In particular, Petitioner argued that it is standard industry practice for technicians to wear a harness with two lanyards when transitioning at heights, such as from a ladder to a platform. Further, no County employee can perform inspections or repair work six feet or more above any work surface without a safety harness or some other approved means of fall protection, such as guardrails. Therefore, Petitioner’s medical restriction would not affect his job performance in any way. Petitioner pursues four results with his action. First, Petitioner seeks an immediate return to his IIC Technician position. Next, Petitioner wants his salary restored to its previous rate ($29.33 per hour) along with any lost merit increases. Third, Petitioner desires to have his seniority status restored. Prior to his demotion, he was the most senior member of his team. He has no seniority as a Business Analyst II. Finally, Petitioner seeks the ability to renew his professional certifications. He alleged that the Business Analyst II job severely hinders his professional prospects by making it more difficult for him to renew and maintain his professional certifications. Mr. Cassady testified at the final hearing regarding the County’s refusal to rehire Petitioner as an IIC Technician. Mr. Cassady, as the Director of the Public Utilities Department, oversees the division in which Petitioner works. Mr. Cassady made the ultimate decision regarding Petitioner’s current employment status. Mr. Cassady described the County’s public works facilities as an “industrial work environment.” The County oversees and monitors 17 separate water treatment and water reclamation plants. Mr. Cassady commented that some chemical storage tanks “exceed 40 feet in height and have limited guardrails around them.” Mr. Cassady recounted that he reviewed Petitioner’s situation at great length. Mr. Cassady imparted that he is constantly aware of, and watching out for, the safety of his employees. Mr. Cassady relayed that an IIC Technician is responsible for working around high voltages and in close proximity to large machinery that includes rotating pieces of equipment motors and pumps. In considering Petitioner’s medical restrictions, Mr. Cassady determined that climbing ladders and working at heights to access or inspect electronic controls and components is an essential function of the IIC Technician job. Mr. Cassady explained that, although the frequency of the use of ladders might vary amongst assignments, all IIC Technicians must be able to climb and use ladders. Mr. Cassady described several routine tasks in which an IIC Technician operates in or on elevated equipment that do not support the use of a safety harness. These situations include climbing ladders to service electronic instruments located on top of raised pipes. In addition, IIC Technicians regularly ascend ladders to small platforms located on top of the 40-foot-tall treatment tanks to calibrate level control devices within the tank. Consequently, Mr. Cassady concluded that the responsibilities of the IIC Technician position would directly expose Petitioner to the inherent dangers associated with working at heights. Mr. Cassady did not dispute that Petitioner possesses the skills and qualifications to perform the job of ICC Technician (not considering his disability). However, he was (and is) very concerned about the possibility that Petitioner could be injured if he were to experience a sudden or unexpected dizzy or fainting spell while climbing a ladder or accessing a high platform. Mr. Cassady adamantly believes that Petitioner’s unfortunate medical condition creates unacceptable safety hazard for both Petitioner and the County should he return to the IIC Technician position. Mr. Cassady admitted that the County purposely did not interview Petitioner for the IIC Technician job openings. However, he denied that the County refused to consider Petitioner just because he has a disability. Instead, the County’s overriding concern was that Petitioner could not work safely at heights due to his medical condition, which causes him to experience unpredictable dizziness or loss of consciousness. On the other hand, while Petitioner was unable to perform the job of IIC Technician, Mr. Cassady believed that Petitioner’s analytical and practical skills remain an asset to the County. Therefore, Mr. Cassady offered Petitioner the Business Analyst II position. A Business Analyst focuses on data collecting and analyzing as opposed to operations. Not only does the Business Analyst II position provide Petitioner the opportunity to use his knowledge and training in the same field as an IIC Technician, but Petitioner can perform the job on the ground and is not required to climb ladders or work at heights. The Business Analyst II position includes a higher pay scale than the IIC Technician. However, Mr. Cassady set Petitioner’s initial salary at a lower rate ($26 per hour) to maintain equity with the four other County employees who had been assigned to the same position for a longer period of time. Mr. Cassady denied that the County refused to hire Petitioner as an IIC Technician job in retaliation for his request for a Civil Service Board review of his placement in a Business Analyst II position. On the contrary, Mr. Cassady believed that Petitioner was a valuable employee with the Public Utilities Department. Mr. Cassady offered Petitioner the Business Analyst II job specifically as a way for the County to retain his services. Mr. Cassady explained that he has always been supportive of Petitioner’s career development with the Public Utilities Department. In fact, he rejected Human Resources’ initial recommendation to terminate Petitioner’s employment when the County determined that Petitioner was unable to perform the essential functions of his IIC Technician job. Mr. Cassady has also encouraged Petitioner to improve his marketable skills by furthering his education, courtesy of a County scholarship program. Finally, Mr. Cassady testified that implementing the accommodations that Petitioner suggests is unworkable. Mr. Cassady contended that a number of the locations in which an IIC Technician must work do not support the use of a safety harness and lanyard. For example, the treatment tanks are not equipped to enable the use of a safety harness while climbing up the 40-foot-tall ladder or when transitioning from the ladder to the platform. Mr. Cassady asserted that any such modifications would be prohibitively expensive or impractical to install. Several County employees who are currently employed as IIC Technicians testified at the final hearing regarding their job requirements. These witnesses discussed the role of climbing ladders and working in high places in performing their duties. Mark Maples, an IIC Technician with the County, testified that he regularly climbs ladders while performing his job. Mr. Maples stated that he must use a ladder during several of his routine work responsibilities, such as checking a flow meter device at a water treatment plant. Mr. Maples estimated that he uses a ladder approximately 40 percent of the time he works. Mr. Maples also remarked that he routinely climbs ladders in work settings that do not offer a mechanism to tie off a safety harness. Consequently, a safety harness would not provide an IIC Technician complete protection while working at heights. Mr. Maples also expressed his discomfort with the idea of working with an IIC Technician who was not medically cleared to work on elevated equipment. As an example, Mr. Maples described how IIC Technicians are responsible for inspecting and calibrating the level control devices situated on top of each large treatment tank. Each tank is 40 feet high. To accomplish such an inspection, the IIC Technician must scale a ladder attached to the side of the tank. The tank provides no apparatus to which a safety harness may be fastened. Based on Petitioner’s medical condition, which could cause sudden and unanticipated dizziness, Mr. Maples was concerned whether Petitioner could safely accomplish the required inspection. Mr. Maples would be worried that Petitioner might faint and fall down the ladder or tumble off the top of the tank. Mr. Maples declared that a “one- time fall is one time too many.” Michael Newsome, another IIC Technician, testified that he regularly uses a ladder to perform his job. Mr. Newsome explained that his job requires him to work in elevated places, and he has to climb a ladder to get there. Mr. Newsome estimated that he needs a ladder less than five percent of the time. Louis Ocampo has worked as an IIC Technician for the County for approximately two years. Mr. Ocampo testified that he regularly uses a ladder in his job. He works at heights and elevated areas, such as treatment tanks and on video cameras. Mr. Ocampo estimated that he needs a ladder approximately ten percent of the time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the County discriminated against Petitioner based on his disability (handicap). Accordingly, Petitioner failed to meet his burden of proving that the County discriminated against him in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: finding that Petitioner, David Riggins, did not prove that Respondent, Hillsborough County, committed an unlawful employment practice against him; and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 29th day of November, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 29th day of November, 2017.
The Issue Whether the refusal by the Respondent District School Board of Madison County to sign a contract prepared by a representative of the Madison County Education Association after a meeting of the Parties held for the purpose of reaching a collective bargaining agreement on November 18, 1975 was an unfair labor practice.
Findings Of Fact The Madison County Education Association was recognized by the District School Board of Madison County as exclusive bargaining agent for a unit of instructional employees of Madison County Schools on April 1, 1975. Formal negotiations for the purpose of reaching a collective bargaining agreement commenced on or about July 3, 1975. An impasse was reached on or about August 1, 1975 and the controversy was submitted to a special master under Section 447.403, Florida Statutes. A Special Master, Marvin A. Griffin, was appointed by Curtis L. Mack, Chairman, Public Employees Relations Commission, "to investigate the disagreement between the Madison County School Board and the Madison County Teachers Association." After a hearing on August 29, 1975 and September 12, 1975, Mr. Griffin filed a report dated September 26, 1975. He then offered to write a synthesized agreement and presented a draft of an agreement (hereinafter designated Contract 1) entitled "Agreement between Madison County Education Association and District School Board of Madison County, Madison, Florida, October 1, 1975." The Superintendent of Public Instruction, Gene Stokes, formally rejected the Special Master's recommendations concerning a number of articles in the agreement and made recommendations on disputed items in the Special Master's report. The District School Board of Madison County met with the Madison County Education Association and the School superintendent on November 13, 1975, at which meeting the School superintendent and the Teachers Association explained their positions. No final action was taken, and the item was tabled until November 18, 1975. At the meeting on November 18, 1975, the proposed agreement of the Special Master was modified by the superintendent's recommendation and was further modified by a Motion of school board member Eugene P. Bowie to Article XVII. (TR. 44) The agreement as modified was not reduced to writing at the meeting on November 18, 1975. The President of the Teachers Association, Florise Whittemore, used the special Master's agreement and her notes and reduced the agreement to writing (hereinafter called Contract 2 ), as she had understood the agreement. After the agreement was typed, it was presented to the teachers on November 25, 1976 and ratified by them. The pertinent portion of the official minutes of District School Board of Madison County adopted at its regular meeting, December 1975, reads: "Article XVII, $500 increase in base pay for each teacher." An unsigned copy of the contract prepared by Mrs. Whittemore was delivered to school Board Member Pickles through his daughter. A copy was also delivered to Mr. Bowie in person. A signed copy was delivered in December to the Chairman of the School Board and the negotiator Lloyd Day. Upon presentation of the contract agreement as drafted by the Madison County Education Association, member Albert W. Waldrep refused to sign the contract contending that the interpretation as shown in the teachers contract of the Motion by School Board member Bowie was in error. Member Bowie meant by his Motion that the raise should be from June 30, 1975 and Member Albert W. Waldrep understood that Member Bowie's Motion meant from November 1, 1975. Respondent then instructed its attorney to redraft the provisions of the contract pertaining to salary and said redraft (hereinafter called Contract 3) was adopted by the Respondent and signed by Chairman C. W. Pickles and attested to by Gene Stokes, Superintendent. The Charging Party refused to accept Contract 3 as redrafted by Respondent. The Charging Party thereafter filed an unfair labor charge which resulted in a formal Complaint and Notice of Hearing being issued by Public Employees Relations Commission on April 21, 1976. The Hearing Officer further finds: The Motion by Member Bowie relative to the dispute in this cause was voice recorded "Here I recommend a $500 raise per year for each teacher." It was amended by Member Pickles and concurred in by Mr. Bowie to state "base pay" and then seconded by Mr. Pickles. There was no mention of what date the raise was to be effective. There was no discussion of "retroactive pay" or "bonus pay", although the pay increase as intended by Member Bowie would have involved an increase of $150 per month for each of the three months of July, August and September. Member Bowie, cognizant of Contract 1 and prior negotiations, meant the raise to begin June 30, 1975. His Motion was intended to encompass Contract 1 as submitted by the Special Master and recommended by Superintendent Stokes. Mr. Waldrep, cognizant of the prohibition against retroactive pay and the shortage of funds, believed that he voted for a raise beginning November 1, 1975. Teacher salary checks for July, August and September, 1975, had been cut prior to the November 1975 Meeting. The words of the Motion "Here I recommend $500 raise per year for each teacher" together with the amendment or clarification "base pay" does not speak to the point in controversy and is consistent with either an interpretation to mean "fiscal year" or "calendar year." The contract as rewritten, typed and submitted to the members of the School Board [designated Contract 2] was the understanding of the Madison County Education Association of an agreement reached by the Parties at the November 18, 1975 meeting. The contract as rewritten, typed and submitted to the teachers [designated Contract 3] was the understanding of a majority of the five-member District School Board of Madison County of an agreement reached by the Parties at the November 18, 1975 meeting. There was no final agreement between the Parties as to the disputed salary increase effective date. After the November 18, 1975 meeting, Contract 2 was written by the Charging Party without the aid of the Respondent. It reflected an interpretation of the Motion most favorable to Charging Party's financial interests. After the November 18, 1975 meeting, Contract 3 was written by the Respondent without the aid of the Charging Party. It reflected an interpretation of the Motion most favorable to Respondent's financial interests. The facts of the cause do not reflect an unfair labor practice under Section 447.501, F.S., for the reason that the refusal by the parties to sign either Contract II or Contract III was based on the fact that no final agreement had been reached on the disputed issues at the collective bargaining meeting of November 18, 1975.
Recommendation Dismiss the complaint. DONE and ENTERED this 15th day of October, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Leonard Carson, Chairman Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301 Edwin B. Browning, Esquire Post Office Drawer 652 Madison, Florida 32340 R. T. Donelan, Jr., Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Rod W. Smith, Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Florise Whittemore, President Madison County Education Association Madison, Florida Tobias Simon, Esquire and Elizabeth deFresne, Esquire 208 West Pensacola Street Tallahassee, Florida 32304
The Issue Whether or not the Petitioner satisfied the requirements to be classified as a tenured teacher and was thereby entitled to the privileges and rights, afforded to persons employed by Respondent pursuant to the Duval County Teachers Tenure Act. Chapter 21-197, Laws of Florida, Acts of 1941, as amended by Chapter 70-671 and further amended by Chapter 72-576; and the education laws of the State of Florida and the rules and regulations promulgated pursuant thereto.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Petitioner, Mary C. Gristina (formerly Mary Helen Campbell), was employed as a full-time teacher from September, 1960 through June, 1964, by the Duval County School Board (Respondent). Petitioner was granted an approved professional leave of absence without pay beginning on August 21, 1964, through June 11, 1965, to pursue graduate studies toward her masters degree. (Joint Exhibit 2) Petitioner was granted an extension of professional leave without pay from August 23, 1965 through June 15, 1966, to continue studies toward completion of her masters degree requirements at Florida State University. The above facts are not herein disputed. What is in dispute however is Petitioner's assertion that during the period in which she was on an approved professional leave of absence from August 21, 1964 through June 15, 1966, she completed all of the requirements for establishing tenure, including teaching (for Respondent) for three (3) consecutive years and securing the requisite hours of continuing education during such time frame, thereby establishing her tenure rights. Respondent, on the other hand, contends that Petitioner failed to establish that she completed the requisite hours of continuing education to be qualified for tenure in the Duval County School System, either while employed or between consecutive years that she was employed. In further support of this contention that the Petitioner failed to qualify as a tenured teacher, Respondent points to the fact that Petitioner was reemployed as an instructional employee pursuant to an annual contract during the 1979-80 school year. (Joint Exhibit 8) Respondent failed to renew Petitioner's contract for the 1980-81 school year and further refused to employ Petitioner in any other capacity since the 1979-80 school year. Petitioner received notice of Respondent's non-renewal of her employment contract during the late spring of 1980 and at the conclusion of the 1979-80 school year, both orally from her principal and in writing from the personnel department of the Duval County School Board. (Joint Exhibit 9) In this regard, Petitioner was advised by letter dated July 31, 1980, in response to a follow-up of a telephone conversation with Gary Simmons, Respondent's Director of Personnel Systems, that the personnel office had no record of Petitioner having completed six (6) semester hours of college work during any three (3) consecutive years of employment with the School Board. In support of her position that she in fact satisfied the requirements for appointment as a tenured teacher pursuant to the requirements set forth in the Duval County Teacher Tenure Act, Respondent offered a transcript from Wagner College, Staten Island, New York, for three (3) semester hours' credit for Exploring Art in New York. That transcript shows an entrance date of July, 1964. Respondent rejected Petitioner's application for credit for the Wagner College course based on the fact that the entrance date of the art course was neither during any school year that she was employed nor between consecutive years that she was employed by the Respondent School System. (Joint Exhibit 5) During times material herein, Respondent had a procedure whereby instructional employees could request permission to substitute other educational work in lieu of the tenure law summer school course work requirements. 1/ Finally, Petitioner points out that she was handed a contract by a secretary while teaching during December, 1979, which she was not afforded an opportunity to review before executing. She was not therefore aware that she was in fact signing an annual contract for employment with the Respondent School Board. Petitioner contends that she completed her course work necessary to be qualified for a tenured teacher during the summer of 1964; however, she did not submit a transcript reflecting completion of such course work to Respondent because of her belief that she felt that she was employed as a tenured teacher and therefore, submission of the transcript was not required. In this connection, Personnel Systems Director Gary Simmons noted that if Petitioner had returned for employment and had taught during the 1964-65 school year, her services would have been continuous and she would have been employed as a tenured teacher under such a contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Duval County School Board enter an order denying Petitioner's claim to be afforded the rights and privileges afforded teachers who have satisfied the Duval County Teachers Tenure Act and, in accordance therewith, that she be denied all additional relief requested such as reinstatement with back pay etc., pursuant to the Amended Petition for administrative hearing filed herein. RECOMMENDED this 9th day of September, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1982.
