Findings Of Fact At all times, material to this case, Petitioner has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 6200 West Fairfield Drive, Pensacola, Florida, and is known as the Warrington House. Francis Cooper is the sole shareholder and operator of the Warrington House. Prior to 1984, the Warrington House was known as the Heritage House and was owned by a Mr. Mitchell. Sometime in 1984, Mr. Mitchell was criminally charged with elderly abuse on his residents and the Heritage House went into receivership. Another branch of HRS who was represented by Esther Ward, asked Ms. Francis Cooper to take over the facility. HRS was apparently well satisfied with Ms. Cooper's qualifications in running an ACLF since she had another such facility. When Ms. Cooper took over the Heritage House the electrical power to the facility was about to be turned off. Only by Ms. Cooper's pleading with Gulf Power was that circumstance forestalled. There were only thirteen (13) patients at the facility out of the sixteen (16) that were supposed to have been there. Three (3) of the patients had been mysteriously removed during the night. The residents that were at the house could not identify themselves and very few resident records were at the facility. The building was infested with roaches, there was raw sewage in the yard and the sewage system was completely blocked to the extent that sewage came up through the showers when a toilet was flushed. There was urine in every carpet. None of the appliances in the house worked. There were no air conditioners, fans or plastic dishes. The floors were in bad shape. In fact, Ms. Cooper fell through two of the bathroom floors. When Ms. Cooper questioned HRS representatives about the appalling conditions of the facility, she received no responsive answer. After Ms. Cooper had taken over the facility, she discovered that Mr. Mitchell had absconded with three months advance rent from the residents. Ms. Cooper, therefore, had to operate the premises for three months without income from the residents that were there. She used her own money. Ms. Cooper started with the air conditioning, flooring and carpeting. All these items were replaced. The bathrooms were tiled and additional bathrooms were added. She put in a $6,000.00 sewage system, a lift station and paid $1,000.00 to hook the building onto city sewage. She also brought in an exterminator to get rid of the bugs. All of this took place over a period of two years wherein Ms. Cooper worked diligently to bring the building up to "snuff." In fact, in the time since she has had the facility she has accomplished wonders in improving conditions at the house. These conditions clearly did not appear overnight, but over several years and were apparently overlooked by Respondent until the crisis with Mr. Mitchell had occurred. Ms. Cooper went into the house with the understanding that the corporation would eventually build another facility and close what had become the Warrington House. The reason for the new construction was that the current building, regardless of the amount of repair, was still an old building not worth maintaining and which was allowed to deteriorate badly prior to her stewardship. However, due to a falling out with her brother, who was then a co- shareholder of the corporation, Ms. Cooper was unable to complete her plans for moving the residents of the Warrington House to a new facility. She continues to attempt to obtain financing to build a new facility. At least once a year, HRS does a full survey on a ACLF like the Warrington House. A full survey is simply an inspection of the property in order to determine the degree of compliance with HRS rules and regulations. Upon completing the inspection, the inspector goes through an exit briefing with the ACLF's management. During the exit briefing, the inspector will go over any deficiencies he or she has discovered and attempt to establish mutually agreeable correction dates. The inspector also explains that these time periods are the best estimates that they can come up with at that point to allow a reasonable amount of time for the required corrections to be made. If any problems should arise, the inspector requests that the manager communicate with his or her office and ask for an extension. Extensions are not always forthcoming. After the full survey inspection is done, a follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. If, after the follow-up survey there are items that are still not corrected, the inspector will explain to the person in charge that they are subject to administrative action and that he or she will report he facility's noncompliance to his or her office. Whether or not administrative action is taken is determined at a level above the inspector. However, it appears that the customary practice of the office is to pursue an administrative fine for any noncompliance after the correction date has been passed. After the first follow-up survey has been made it depends on the particular factual situation whether or not further follow-up surveys are made until compliance is achieved. If there are efforts being made to correct the problems further follow-up surveys will be made. If not, further follow-up surveys may not be made. In this case, James Temkin, an HRS Fire Protection Specialist, performed a full survey fire safety inspection on the Warrington House on September 24, 1986. During that survey, he cited 11 deficiencies. Various compliance dates were established for the deficiencies. A follow-up survey was conducted by Mr. Temkin on January 14, 1987. During that survey, he noted that 6 of the previously cited deficiencies had not been corrected. He recommended administrative action on all the uncorrected deficiencies. The six remaining uncorrected deficiencies were as follows: No up to date fire plan and the July 7th fire drills were not documented; No fire alarm test since July 1986 and fire alarm zones were not shown on the actuator panel; Smoke detectors not working in four (4) rooms; Exit sign lights burned out at the front and center exits, emergency lights not working at the front, rear and upstairs exit halls; Sleeping rooms had hollow core doors; and There was no documentation of fire safety on the wood paneling and tile ceilings on the first and second floors. All other deficiencies cited during the September 24, 1986 full survey were corrected. As to the alleged deficiencies contained in the latter half of (b) and (c)-(f) above, none appear at any point in HRS' rules governing ACLF's. Supposedly, these deficiencies are cited in the NFPA life safety code, which is incorporated by reference in the Fire Marshal's rule on ACLF's, Rule 4A-40, Florida Administrative Code. The 1984 version of Rule 4A-40, Florida Administrative Code is incorporated by reference in HRS' rule, Rule 10A-5, Florida Administrative Code. Both HRS' rule and the Fire Marshal's rule are contained in the Florida Administrative Code. However, the 1984 version of NFPA is nowhere to be found in the Administrative Code. The current Fire Marshal's rule adopts portions of the 1985 NFPA life safety code. However, the HRS' rule adopts the 1984 version of the Fire Marshal's rule. No showing was made by Respondent as to what the 1984 version of the NFPA code contained. The HRS inspector's testimony regarding a particular deficiency's inclusion in the NFPA cannot be relied on since both inspectors apparently used the 1985 version of the NFPA which is not the 1984 version included in HRS's rule. Without proof of the contents of the NFPA, HRS has failed to prove any deficiencies for which it may take administrative actions. As to the other deficiencies, attempts to comply were in fact made by the Warrington House. The facility's personnel in fact thought they had complied with HRS' desires based upon previous inspections. However, for one reason or another, these attempts were rejected by the HRS inspector and the deficiency was cited again, but because of another reason. The lack of an up- to-date fire plan (cited in (a) above) was met by the Warrington House when they obtained a fire plan prior to the established correction date from another arm of HRS responsible for devising such plans. However, upon the January 14th follow-up inspection, the plan obtained from HRS by Petitioner was considered insufficient in that it did not outline staff responsibilities during a fire. The same thing occurred with the lack of fire alarm tests, cited in the latter part of (a) and the first part of (b) above. The Warrington House obtained the testing document and test from another branch of HRS responsible for such testing. However, the inspector at the follow up survey did not deem his own agency's testing documents sufficient since it did not show a different type sending unit was being tested at least once a year. 1/ These are simply not repeat deficiencies since in each instance the earlier grievance had been met and it was another grievance which cropped up. On July 9, 1987, a second follow-up survey to the Temkin September 24, 1986, full survey was performed by O.B. Walton, an HRS fire safety inspector. The evidence was not clear as to any remaining uncorrected deficiencies, if any, he found. Therefore, Respondent failed to establish any repetitive deficiencies as a result of the July 9 follow-up survey. Apparently, however, Mr. Walton, did perform another full survey on July 9, 1987. Several additional deficiencies were cited by him. A follow-up visit was conducted by Mr. Walton on October 23, 1987. Four alleged deficiencies remained uncorrected as follows: Ceiling not repaired in hot water heater closet, i.e. not taped; Kitchen fire door latch was jammed open so it would not latch, but it would stay closed; Plug by hot water heater had no cover; No documentation that drapes were fire retardant. Again, none of the above alleged deficiencies appear in HRS' rules or in the fire marshal's rule and a reasonable person could not glean from any of the other provisions contained in HRS' rules that the above conditions might be included in these provisions. The lack of clarity or uniformity in interpretation of HRS' rules is especially born out in this case since two different inspectors while inspecting the same building cited different deficiencies under their respective interpretation of the rules. When the experts differ it is difficult to see how a reasonable lay person could even begin to know or understand the contents of HRS or the Fire Marshal's rules. This lack is especially true since the relevant contents of the 1984 NFPA life safety code are not contained in the Florida Administrative Code and were not demonstrated by HRS. HRS, therefore, failed to prove any repeat deficiencies from the October 23, 1987 follow-up survey. A third fire safety follow-up visit was conducted by Pat Reid, a human services program analyst, on January 21, 1988. She has no expertise or license to perform fire safety inspections. She found all of the earlier cited uncorrected deficiencies corrected except for the documentation on the drapes. That alleged deficiency was partially corrected since Petitioner was replacing the drapery with metal blinds. However, as indicated earlier the lack of documentation for fire retardant drapes was not proven to be a violation by Respondent. Ms. Reid had previously conducted a full survey of Petitioner on August 17 and 18, 1987 in her area of expertise operation and general maintenance of an ACLF. Several deficiencies were cited and correction dates were established. Ms. Reid conducted a follow-up survey to the August 17 and 18 full survey on October 23, 1987. The following alleged deficiencies had not been corrected: Facility staff do not have documentation of being free of communicable diseases; The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease; Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom; Faucet of first floor bathroom is loose; Carpeting in first floor resident room (#7) is badly stained; Three vinyl chairs in dining room have tears, exposing foam padding; Second floor bathroom faucet nearest exit does not clearly distinguish between hot and cold water taps. As to the alleged deficiency contained in (a) above, the regulations do not contain a requirement that any documentation be kept regarding staff members being free of communicable disease. The regulations only require that the facility administrator assure that staff is free of communicable disease. The evidence showed that Petitioner had in fact assured that the staff was free of communicable disease. Therefore, no violation occurred. The alleged deficiency cited in (b) above does constitute a violation of Rules 10-5.081(1)(b), (2)(a)4.d., and (2)(b), Florida Administrative Code. However, in this instance, there are several mitigating circumstances. Foremost is the fact that Petitioner attempted on several occasions to obtain this information from another arm of HRS who had M. B. under its care prior to his admission to Petitioner's facility and had actually failed to complete M. B.'s Health Assessment form properly. Petitioner received many assurances from HRS that it would obtain and forward the information. HRS failed to do so. Moreover, after several years of M. B. living at the Warrington House and after several years of HRS care prior to his admission, common sense would dictate that M. B. is free of communicable diseases. Petitioner has in fact received confirmation of that fact from an examining physician who certified M. B. free of communicable diseases. 2/ As to (c) above, the evidence showed that the windows were only cracked and not broken. No evidence was presented as to the severity of the cracks. Cracked windows are not included in Rule 10A-5.022(a), Florida Administrative Code, which only addresses broken window panes. Moreover, cracked windows without proof of the severity of the cracks is not sufficient evidence of the lack of good repair or other hazardous conditions similar to those listed in Rule 10A-5.022(a), Florida Administrative Code. The Rule requires proof of the hazardous nature of such a condition. Cracked windows are not hazardous in and of themselves and no showing was made that these cracked panes constituted a hazard. Nor do cracked window panes standing alone constitute a violation of Rule 10A-5.022(d). The rule requires evidence that such cracked panes are unreasonably unattractive and no showing was made that the cracks were unreasonably unattractive. Likewise, the missing shower tile in (d) above fails to constitute a violation of Rule 10A-5.022(a) since the deficiency is not listed, and no showing was made that the missing tile constituted a hazardous condition. Similarly, the missing tile, by itself, does not constitute a violation under Rule 10A-5.022(d) since no showing was made that the missing tile was unreasonably unattractive. The same failure of proof occurs with the alleged deficiencies listed in (e), (f), (g), (h) and (i). See Rules 10A-5.022(c), (e) and (i). The alleged deficiency cited in (j) above does constitute a violation of 10A-5.023(9)(e). However, the violation was not repeated after October 1, 1987, the effective date of Section 400.414(2)(d), Florida Statutes. Ms. Reid conducted a second follow-up survey to the August 17 and 18 full survey when she performed the fire safety follow-up on January 21, 1988. All previously cited deficiencies had been corrected except for: Facility staff do not have documentation of being free of communicable diseases. The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable diseases. The following maintenance problems exist: broken or cracked window panes in windows of second floor exit door, both first floor bathrooms and resident room identified as W. S. A third follow-up was conducted by Ms. Reid on April 15, 1988. All the previously cited deficiencies had been corrected except for: The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease. Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom. All of the alleged deficiencies cited in the January 21, 1988 follow- up and the April 15, 1988 follow-up survey were carried forward from the alleged deficiencies discussed above, cited in the October 23, 1987 follow-up survey. The same findings are made as to the alleged deficiencies which were carried forward. Only the physical health assessment of M. B. was cited by Respondent and shown to be a repeated deficiency since the information was not obtained by the established correction dates occurring after October 1, 1987. By the date of the hearing all the above alleged deficiencies had been corrected. Respondent notified Petitioner that it proposed to deny renewal of Petitioner's license to operate the Warrington House on December 23, 1987. The basis for the denial was Section 400.414(1) and (2)(d) which states: 400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds. The department may deny, revoke or suspend a license or impose an administrative fine in the manner provided in chapter 120. Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee: * * * (d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part. The language of Subsection (d) was added to Section 400.414 F.S. on October 1, 1987. Prior to that date Respondent had no authority to take punitive action against the license of an ACLF licensee for multiple and repeated violations of Respondent's statutes and rules. The only action Respondent could take against a facility for such violations was in the form of a civil fine the amount of which could be raised if the violation was repetitive. Section 400.426, Florida Statutes. No multiple violations were shown by the evidence through the April 15, 1988 follow-up survey. More importantly, however, no multiple violations were shown by Respondent after October 1, 1987, the effective date of the statutory language at issue in this case. No showing was made by Respondent as to any legislative intent that the statute operate retrospectively. The statute operates only prospectively. Therefore, any alleged deficiencies cited prior to October 1, 1987 are irrelevant for purposes of imposing the punishment contemplated under Section 400.414, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services renew Petitioner's license. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988.
Findings Of Fact At all times material hereto, Respondent was employed as a fire inspector by the City of Clearwater with permanent status in the civil service system. Respondent has approximately nine years experience with the City of Clearwater as a fire inspector, and prior to this incident had never been the subject of disciplinary action. As a permanent civil service employee, Ordinance 1831 of the City of Clearwater, Guidelines of Disciplinary Action dated October 23, 1978, and Civil Service Rule 14 dealing with Suspensions, Demotions and Dismissals are applicable to the facts of this case and govern disciplinary action taken against Respondent. On September 17, 1985, Respondent was suspended for three (3) working days, without pay, and given forty (40) disciplinary points. In the Notice of Suspension the grounds for this action are stated as follows: Inspector Christopher Kingsley violated Rule 14, Section 1, Paragraph (k) of the Civil Service Rules and Regulations: "Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public. * * * On June 15, Captain Yaudes dispatched Inspector Kingsley to 1468 Belleair Road to observe and assist Inspector Mattheus with the fire investigation. When Inspector Kingsley arrived at the fire scene he more or less worked independently. He did not provide the assistance or opinion to Inspector Mattheus when requested. This is further violation of the Guidelines for Disciplinary Action, Level 4, #3 offense: "Insubordination by refusal to perform work assigned or by failure to comply with written or verbal instructions of the supervisory force." Based upon the testimony and documentary evidence presented, the following findings of fact are made about Respondent's actions relative to the fire at 1468 Belleair Road on June 15, 1985: Between approximately 7:30 a.m. and 7:40 a.m. on June 15, 1985 Respondent arrived at work, although his shift did not begin until 8:00 a.m. When Respondent arrived, Captain Gordan Yaudes was talking with Captain Coleman about a radio transmission they had just overheard indicating that Inspector Harry Mattheus had been dispatched to investigate the Belleair Road fire. Since neither Captain Yaudes or Captain Coleman knew Inspector Mattheus, Captain Yaudes called Respondent into the office to see if Respondent knew anything about Mattheus' qualifications or background. Although Respondent and Mattheus had been working out of the same office for two months at the time, Respondent had only a brief acquaintance with Mattheus. They had never been introduced after Mattheus had been hired, their shifts and assignments were different and Mattheus had not yet done a fire scene investigation in the City of Clearwater. Therefore, Respondent told Captain Yaudes he did not know about Mattheus' qualifications. Captain Yaudes ordered Respondent to go to the Belleair fire scene, find out what was going on, and assist Inspector Mattheus, if necessary. Captain Yaudes testified that he wanted Respondent to take command of the investigation if Respondent determined that Mattheus was not properly certified. He specifically denied that he ordered Respondent to do a joint investigation with Mattheus. This order was given prior to 8:00 a.m., and thus prior to either Respondent or Captain Yaudes being on duty. Captain Coleman, who was on duty at the time, concurred in the order. Mattheus had been on the scene for thirty minutes before Respondent arrived. When Respondent arrived he put on protective pants, boots and gloves and entered the premises, a small flower shop. The fire had already been extinguished. Fire damage was confined to a twelve foot by twelve foot area at the front of the store where the cash register had been. Mattheus was not wearing protective gear since he had not been issued any at the time, although he was wearing his own steel reinforced boots. Upon approaching Mattheus at the scene, Respondent asked why he was there and on whose authority. Mattheus indicated he had been placed on the "call list" the night before by Fire Marshal Nic Lewis, and he was responding to a call to investigate the scene he received that morning at home. In making this inquiry, Respondent was responsive to Captain Yaudes' order that he go to the scene, find out what was going on and assume command of the investigation if he determined Mattheus was not qualified. Inspector Mattheus had been employed as a life safety inspector approximately two months prior to this incident. He is a certified fire inspector and was therefore qualified to be on the "call list" and to investigate fires. This was his first investigation for the City of Clearwater. After determining what was going on at the scene and that Mattheus was qualified to do the investigation, Respondent proceeded to assist Mattheus in several ways, including: surveying and discussing the scene together examining electrical wire and sockets, as well as the floor at the scene for possible causes of the fire clearing the area where the cash register had been and suggesting initially that Mattheus keep an aerosol can that had been punctured by a nail as possible evidence. Later, when arson was ruled out, he concurred in Mattheus' decision to discard the can. Respondent also helped clean up the scene since he was wearing protective clothing and Mattheus was not, and discussed an early morning thunderstorm with Mattheus as a possible cause of the fire. In this manner Respondent was responsive to Captain Yaudes' order that he render assistance, if necessary. On several occasions during the approximately thirty minutes when Respondent was at the fire scene, Inspector Mattheus asked him his opinion on the cause of the fire. Respondent responded by saying he did not know, or by shrugging his shoulders. He told Mattheus to list the cause as "unknown" if Mattheus could not determine a cause. Respondent also said to Mattheus on several occasions, "This is your fire." When Mattheus asked if Respondent was going to write a report on this fire, Respondent replied in the negative since this was Mattheus' fire. It is standard operating procedure for the first inspector on the scene to be the primary investigator who writes the report, and for other inspectors to assist the primary investigator. Mattheus was the primary investigator in this fire, and was in charge of the investigation. The terminology, "It's your fire," is commonly understood among firefighters and inspectors to mean that "you are in charge and will write the report." Respondent's use of this phrase in responding to Mattheus was therefore accurate and in recognition of standard operating procedures, and does not indicate any lack of cooperation on his part. Respondent was not ordered to conduct a "joint investigation," according to Captain Yaudes. When the term "joint investigation" is used, it is understood by firefighters and inspectors to mean an investigation which involves another agency, such as the State Fire Marshal's Office or the Electrical Department, in which the other department assists the Fire Department in trying to determine the cause of a fire. On June 14, 1985, the day prior to the Belleair fire, Respondent had called Inspector Jeff Daniels and expressed concern that life safety inspectors would be used to investigate fires since he felt they were not qualified. He also expressed concern about Inspector Mattheus' qualifications. Despite this prior expression of concern, when Respondent was ordered to the fire scene the next day, he did determine that Mattheus was qualified and assisted him as ordered. The testimony of Lieutenant Frank Hill and Firefighters John Milano and Charles Daniels, who were all at the scene on June 15, 1985, specifically confirms that Respondent and Mattheus worked together on the investigation without discord.
Recommendation Based upon the foregoing, it is recommended that the disciplinary charge against Respondent be dismissed, and that Respondent receive three days back-pay and the removal of all disciplinary points in his record arising from this charge. DONE and ENTERED this 27th day of January, 1986, at Tallahassee, Florida. DONALD D. CONN, 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 27th day of January, 1986. COPIES FURNISHED: Miles Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518 Stuart M. Rosenblum, Esquire, 220 South Garden Avenue.C3 Clearwater, Florida 33516 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in part in Finding of Fact 4(c) and rejected in part in Finding of Fact 4(g). Adopted in Finding of Fact 4(a). Adopted in Finding of Fact 4(f). 4-6 Adopted in part in Finding of Fact 8, but otherwise rejected as irrelevant, unnecessary and not based on competent substantial evidence. Rejected in Finding of Fact 4. Adopted in Findings of Fact 4(h) and 6. Rejected in Finding of Fact 4(g). 10,11 Adopted in part in Finding of Fact 4(h), but otherwise rejected as irrelevant. Adopted in Finding of Fact 4(i). Rejected in Finding of Fact 4. Respondent did cooperate and assist as necessary. Adopted in Finding of Fact 4(h) and 6, but otherwise rejected as erroneously stating Respondent failed to aid Inspector Mattheus. 15,16 Rejected as simply a summation of testimony rather than a proposed finding of fact. 17 Adopted in part in Finding of Fact 4(e), but otherwise rejected as irrelevant and unnecessary. 18,19 Rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 8 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Rulings on Respondent's Proposed Findings of Fact, as contained in Sections A and B of Respondent's Memorandum, Proposed Findings and Conclusions of Law: Adopted in part in Finding of Fact 4 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. 4,5 Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 1 and 2. Rejected as irrelevant and unnecessary. 8-12 Adopted in Findings of Fact 4(a)-(e). Adopted in part in Finding of Fact 4(g), but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 4(h), (i). Adopted in Finding of Fact 6, but otherwise rejected as irrelevant. Adopted in Finding of Fact 3.
The Issue The issue in this case is whether the Petitioner's application for supplemental compensation pursuant to Section 633.382, Florida Statutes, should be granted or denied.
Findings Of Fact 1. The Petitioner holds a Bachelor of Arts degree from Michigan State University. The degree was earned in the College of Communication Arts and Science. The major on the Petitioner's degree is advertising. 2. The transcript of the courses taken by the Petitioner to earn his bachelor's degree does not list any courses that appear to come within the criteria listed at Rule 4A- 37.084(5) (b)1, Florida Administrative Code. 3. The transcript of the courses taken by the Petitioner to earn his bachelor's degree lists several courses that appear to come within the criteria listed at Rule 4A-37.084(5) (b)2, Florida Administrative Code. However, there are not enough of such courses to comprise a major. 4. The transcript of the courses taken by the Petitioner to earn his bachelor's degree lists one course that appears to come within the criteria listed at Rule 4A.37.084(5) (b)3, Florida Administrative Code. 5. The Petitioner is presently employed by the Miami Beach Fire Department as a Firefighter I. The Petitioner has been employed full-time in his present firefighter position at all times material to the pending application. 6. The Petitioner's fire department duties are described in a written position description for the Firefighter I position. It is clear from the description of those duties that a Firefighter I position with the Miami Beach Fire Department is not one of the "management positions within a fire department," nor is it a position that includes "arson investigators." Such a position is also not one of the "special positions" contemplated by Rule 4A-37.084(5) (b)4, Florida Administrative Code. 7. When the Petitioner submitted his present application, Floyd Jordan, the Fire Chief of the Miami Beach Fire Department, by letter dated November 15, 2000, advised the Bureau of Fire Standards and Training as follows: After review of the attached college transcript and the City of Miami Beach Job Description for Firefighter I, it is my conclusion that this request does not meet the requirements of the Firefighters Supplemental Compensation Program. As of the date of the final hearing, Chief Jordan continued to be of the same view of the matter. 8. The Petitioner was previously employed by the Boca Raton Fire-Rescue Services as a firefighter/paramedic. The Petitioner's job duties in the Boca Raton position were essentially the same as his job duties in his present position. While employed with the Boca Raton Fire-Rescue Services, the Petitioner applied for supplemental compensation on the basis of the same bachelor's degree on which he bases his present application. The Petitioner's prior application was approved and he received supplemental compensation while employed with the Boca Raton Fire-Rescue Services.
Conclusions For Petitioner: Chuck Pereny, pro se 259 Northwest 90th Avenue Coral Springs, Florida 33071 For Respondent: Elenita Gomez, Esquire James B. Morrison, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333
Recommendation On the basis of the foregoing, it is RECOMMENDED that the Department issue a final order denying the Petitioner's application and dismissing the petition in this case. Tallahassee, Leon County, Florida. = DONE AND ENTERED this CS “day of June, 2001, in CH heseu Loe € MICHAEL M. PARRISH 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 Q — day of June, 2001.
Findings Of Fact The following quoted provisions of the joint stipulations of fact entered into by the parties, as attached to this recommended order, constitutes the underlying evidential facts to be considered by the undersigned in deliberating the charges in this case. The exhibits mentioned in the quoted provision may be found as a part of the attached joint stipulations of fact and exhibits, which have been made a part of the record herein. The quotation is as follows: JOINT STIPULATIONS OF FACT The charge herein attached as cumulative exhibit #1 was filed by the Charging party on October 21, 1976 and a copy was simultaneously served on Respondent. Pursuant to Florida Administrative Rule 8H-4.03 a copy of the charge is hereby attached. The trial and presentment of the above-captioned cause was assigned to Rodney W. Smith, attorney for the Charging Party on or about February 25, 1977. Respondent is a public employer within the meaning of F.S. 447.203(2) and has its principal place of business in the City of Jacksonville, Duval County, Florida where it is engaged in the business of operating a consolidated municipal government. Respondent is created directly by the legislature of the State of Florida so as to constitute a consolidated government administered by individuals who are responsible to public officials and/or the general electorate. Charging Party is now and has been at all times material herein an employee organization within the meaning of 447.203(l0) of the Act. On March 4, 1976 Respondent filed a PETITION FOR CERTIORARI with the opinion that said petition would stay the "proposed CERTIFICATION ORDER by the Public Employees Relations Commission until final determination of the case was resolved. On or about May 18, 1976 the Public Employees Relations Commission issued a CERTIFICATION ORDER certifying the Charging Party as the exclusive bargaining representative for the Public Employees in the following unit: INCLUDED: Firefighters Lieutenants Captains Employed by the City of Jacksonville Fire Department EXCLUDED: All officers above the rank of captain employed by the City of Jacksonville Fire Department and all other employees of the City of Jacksonville On or about June, 1976 the Respondent filed an APPEAL of the above- stated certification order by PETITION FOR REVIEW in the First District Court of Appeal in and for the State of Florida. At no time was a stay of the certification order sought or obtained by the Respondent. Although the CERTIFICATION ORDER was challenged by PETITION FOR REVIEW, the Charging Party has been the certified representative for purposes of collective-bargaining of all public employees in the unit described in the above paragraph since May 18, 1976. It has been the continuous policy, and most recently by special ordinance, for the City of Jacksonville to extend dues- deductions to firefighters, lieutenants and captains authorizing such deductions since on or about 1969. This policy of extending dues-deductions to captains, lieutenants and firefighters has continued at all times until October 15, 1976. On October 15, 1976 the biweekly paychecks of the captains (sic) and lieutenants employed by the, Respondent did not reflect the usual dues- deduction. The Charging Party was notified of the City's intention to discontinue dues-deductions for the employees "in the ranks of lieutenants and captains during contract negotiations in late September, 1976. On or about October 18, 1976 agents for the City, including Dave Thompson, Administrative Aide for the Public Safety Department and John Waters, Director of Department of Public Safety informed Robert Carver, President of the Charging Party, that the Respondent would not extend dues-deductions to the captains or lieutenants since the Respondent did not feel these positions were properly included in the certified bargaining unit. The action of the Respondent in discontinuing the dues-deductions on October 15, 1976 was resultant from the attached cumulative exhibit B, Memorandum of September 24, 1976 from John M. Waters to Jack Parker, City Accountant for the City of Jacksonville, which directs that positions above the rank of firefighter are to no longer receive dues-deductions. The Director of Employee Relations and chief negotiator for the Respondent, William Davis, was officially notified of the proposed discontinuation on September 29, 1976 by action of the attached cumulative exhibit c." The act complained of by the Charging Party, is the act of the Respondent in discontinuing the dues-deductions for the ranks of lieutenant and captain effective October 15, 1976. (The facts that led up to that action are established in the stipulations of fact entered into by the parties.) In the mind of the Charging Party the discontinuation of the dues-deductions on October 15, 1976, constituted: (1) an interference with the rights of employees as described in 447.501(1)(a), F.S.; (2) a unilateral change during the bargaining process in violation of 447.50l(1)(c), F.S.; and (3) a specific refusal to comply with the provisions of 447.303, F.S. The Respondent disputes and joins issue with that claim. To resolve the conflict, the case is best discussed by dividing the consideration into two broad categories. The first category is concerned with the question of whether the Respondent's initial petition for writ of certiorari filed with the First District Court of Appeal, State of Florida, on March 4, 1976, and/or the Respondent's appeal of the Public Employees Relations Commission's certification order, which was filed with the First District Court of Appeal, State of Florida; imposed an automatic stay of the effect of the proposed certification order by the Public Employees Relations Commission, and/or a stay of the certification order of May 18, 1976, entered by the Public Employees Relations Commission. Any stay of the proposed certification order and subsequent certification order by the Public Employees Relations Commission must have been effectuated by the filing of the initial petition for writ of certiorari on March 4, 1976, and the appeal of June, 1976, because the facts establish that no specific request was ever made of the First District Court of Appeal or the Public Employees Relations Commission to grant a stay. To that end, the Respondent contends that it could justifiably rely on the Florida Appellate Rule to grant an automatic stay in both the initial petition for writ of certiorari of March 4, 1976, and the appeal of June, 1976 Pertinent provisions of Rule 5.12 state: "Rule 5.12 Supersedeas Bond not Required of the State and its Political Subdivisions and their Boards, Commissions, etc.; Security when Required When Security Not Required. When the state or any of its political subdivisions, or any officer, board, commission or other public body of the state or any of its political subdivisions, in a purely official capacity, takes an appeal or petitions for certiorari, the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execu tion or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court. Court May Require Bond. The court may, on motion for good cause shown, require a super sedeas bond or other security, in such amount, form and manner as it may prescribe as a condition for the further prosecution of the appeal or certiorari." On the face of the language of Florida Appellate Rule 5.12, it would appear that the Respondent is correct in its assumption of having an automatic stay; however, there is a subsequent appellate decision which defeats the Respondent's right to rely on the theory it offers as standing for the proposition that an automatic stay is granted. That case is Panama City v. Florida Public Employees Relations Commission, 333 So.2d 470, (1st DCA 1976, Fla.). The decision in this case was initially rendered on May 5, 1976, and a rehearing denied on June 29, 1976. The effective date of the decision is July 14, 1976. The Panama City case, supra, concerns the determination by the Public Employees Relations Commission of an appropriate bargaining unit and direction of an election. Those actions by PERC were not found to be final orders and in discussing the position of that Petitioner requesting a writ of certiorari, the Court stated that a stay of the effect of the enforcement of the agency action does not transpire merely by filing the petition for writ of certiorari. Under the ruling, in the decision, the stay may be granted by the agency or by the Court upon appropriate terms and in keeping with the authority of 120.68(3), F.S. That section of Chapter 120 indicated the following: "(3) The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state. The agency may grant, or the reviewing court may order, a stay upon appropriate terms, but, in any event, the order shall specify the conditions upon which the stay or supersedeas is granted." Moreover, in the opinion of the Court in the Panama City case, under Florida Appellate Rule 5.5, the Petitioner for writ of certiorari shall apply to the agency for supersedeas to forestall the terms of the agency action. Through its memorandum the Respondent in this cause has concluded that there is a distinction in the facts of the Panama City case and the facts sub judice, in that the Panama City case dealt with determination of an appropriate bargaining unit and direction of an election which were interlocutory matters, whereas the question here deals with a certification order which is final agency action on the part of the Public Employes Relations Commission. As an adjunct to this argument, Respondent indicated that it is the June, 1976, appeal taken by the Respondent, challenging the Public Employees Relations Commission order of certification, that becomes the focal point of the inquiry upon the subject of an automatic stay. This latter phase of the argument is accepted and it is the June, 1976, appeal that should be addressed. With that fact in mind, the language of the Court's opinion in the Panama City case on a petition for rehearing clarifies any distinction which might be drawn between the right to stay in an interlocutory situation, and the right to a stay of final action by an agency. The Court, in its discussion on rehearing, stated that the PERC order certifying an employee organization's exclusive collective bargaining representative of employees is a final order, which is subject to judicial review, together with all prior interlocutory orders. The Court goes on to say that if PERC refuses to stay any bargaining pending the Court review, the Court would have authority to grant that relief, in A order to make the Court's jurisdiction effective. For this proposition it cites to Article V, Section (4)(b) 3, Florida Constitution. A close analysis of the Court's statement on the rehearing in the Panama City case, supra, points out that the party who takes an appeal of the final order of certification by the Public Employees Relations Commission should look to the Public Employees Relations Commission to grant a stay prior to turning to the Court for such relief. This is in keeping with the requirements of 120.68(3), F.S. It can be seen by an examination of the facts stipulated to in this cause that the Respondent has failed at any point to request of the Public Employees Relations Commission that the effect of the order of certification be stayed pending the outcome of the consideration of the appeal on its merits. Consequently, in keeping with the decision of the Panama-City case, supra, the effect of the certification order is not stayed and any action which the Respondent took in derrogation of the decision of the First District Court of Appeal in Panama City, supra, subsequent to July 14, 1976, the date the decision became binding, may constitute an unfair labor practice. See also, Duval Cty School Bd v. Fla. Pub. Emp. etc., 346 So.2d 1086 (1st DCA 1977, Fla.) Having determined that the effect of the certification order of the Public Employees Relations Commission has not been stayed, consideration of the effect of the Respondent's action which discontinued the dues-deduction after October 15, 1976 for those ranks of lieutenant and captain can be made. It is clear from the facts In the record that it had been the practice of the employer to authorize the dues-deduction for lieutenants and captains since 1969 and there is no showing that the employees in those ranks who requested the dues- deduction ever asked that the deductions be discontinued. The conclusion on the part of the Respondent that the dues-deduction should be discontinued was a unilateral action, premised upon Respondent's individual evaluation of the propriety of including lieutenants and captains in a unit with firefighters. In view of the history of the dues-deduction process for lieutenants and captains in the City of Jacksonville, and the outstanding unit certification by PERC which includes such employees, it is concluded that deductions should have been continued beyond October 15, 1976. This is authorized under the opinion of United Faculty of Palm Beach Jr. College, Case No. 8H-CA- 754-1158. The failure to continue this deduction program beyond October 15, 1976 constituted an action by the Respondent in regard to conditions of employment and was per se a violation of the duty to collectively bargain. See 447.309(1), F.S., and NLRB v. Katz, 396 U.S.736 (1962). This responsibility on the part of Respondent to continue the dues-deduction has now been specifically established in 447.303, F.S., as amended at 77-343, Laws of Florida which reads: "Any employee organization which has been certified as a bargaining agent shall have the right to, upon request, have its dues and uniform assessments deducted and collected by the employer from the salary of those employees who authorized the deductions, set dues and uniform assessments In a related argument, the Respondent attempts to suggest that the Public Employees Relations Commission has unilaterally expanded and redefined the bargaining unit that had been previously agreed to between the City of Jacksonville and Local 1884 IAFF. Specifically, the Respondent claims that the City of Jacksonville and Local 1884 IAFF had agreed that only fire privates be included in the unit in 1973-1974 and 1974-1975, and that thereafter the Commission expanded and redefined the bargaining unit to include firemen and fire officers. Although this may be a fact, this fact is not in evidence through the stipulation of facts and in view of the limitations imposed by the agreement of the parties through their stipulation, the above-referenced information may not be utilized in reaching conclusions in this case. However, assuming arguendo the propriety of those facts, they would not seem to promote a different result in this cause. This conclusion is drawn from an examination of Clearwater Firefighters Association; Local 1158, IAFF and City of Clearwater, Case No. 8H- RC-766-1O68, 77E-377, reported at 3 FPER 177 (1977) and City of Titusville v. PERC, 3,30 So.2d 733 (1st DCA 1976, Fla.) Even though the Commission and the Court seemed to be stating that the Public Employees Relations Commission may not extend the unit which has voluntarily been recognized by the parties, or offered for recognition by the Petitioner for unit determination, these cases demonstrate that each case that occurs should be examined on an individual basis. Applying that process, it would be necessary to request the Public Employees Relations Commission to reconsider their position in the instant case on the question of the appropriateness of the inclusion of lieutenants and captains in the certified bargaining unit, and that decision could be subject to appeal to the appropriate appellate court. Because a determination has not been rendered on the merits of excluding lieutenants and captains from the certified bargaining unit, either by the Public Employees Relations Commission or an appellate court, the certification order remains in effect and all rights and entitlements for ,the unit employees remain in force and effect until amended by a Perc order. Consequently, the act of discontinuing the dues-deduction for lieutenants and captains in the bargaining unit after October 15, 1976, constituted a specific refusal to comply with the provision of 447.303, F.S.; an interference with the rights of employees in violation of 447.501(1)(a), and an unilateral change during the bargaining process, in violation of 447.501(1)(c) , F.S.
Recommendation It is recommended that the Respondent, City of Jacksonville, be required to reinstate the dues-deduction authorizations of those lieutenants and captains in the certified bargaining unit. DONE and ENTERED this 4th day of November, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 Robert G. Brown, Esquire Assistant Counsel Office of General Counsel City Of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Leonard A. Carson, Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, FLORIDA Exhibit A STATE OF FLORIDA
Findings Of Fact In the fall of 1976, James McKnight was fire chief for respondent City of Lauderhill. At that time there was a vacancy in respondent's fire department for a fire lieutenant. Respondent's mayor gave Chief McKnight a list of three names which had been given to the mayor by the civil service board. The mayor told the fire chief to pick a person from the list for the fire lieutenant position and said "that he had been advised that the lieutenants were not eligible or allowable to belong to the union." (R17) The names on the list were those of Messrs. Scheiblich, Farmer and Schwartz, in that order, all of whom worked for respondent as firefighters. On September 30, 1976, Chief McKnight summoned Mr. Scheiblich to his office and discussed promoting him to fire lieutenant. The fire chief told Mr. Scheiblich that he could not be active in the union while service as a fire lieutenant and that he would have to resign from the union at the conclusion of his probationary period as a fire lieutenant. Mr. Scheiblich answered that he was under the impression that, although he would have to leave the bargaining unit, he could remain an active member of the union, but that, if a promotion would require his leaving the union, he would rather forego the promotion and remain a member of the union. Chief McKnight said he would consult the city attorney for his advice on whether Mr. Scheiblich's promotion would require his resignation from the union. Chief McKnight telephoned the city attorney, Mr. Titone, who told him that Mr. Scheiblich's serving in the rank of fire lieutenant would necessitate his resigning from the union. This advice was based in part on PERC's decision in its Case No. 8H-RC-756-1240. In that case, On June 23, 1976, PERC voted two to one to exclude fire lieutenants from the bargaining unit; because, as was subsequently explained, in the written order entered in Case No. 8H-RC-756-1240 on October 4, 1986, "the lieutenants manage the men on a day-to-day basis and will provide the basic input for promulgating and evaluating collective bargaining proposals submitted during negotiations." Although the record does not reflect that respondent had made a separate application for determination of the managerial or confidential status of fire lieutenants, respondent's attorney acted in good faith in advising Chief McKnight that Mr. Scheiblich would not be eligible for promotion to fire lieutenant if he was unwilling to resign from the union; and Chief McKnight acted in good faith in following Mr. Titone's advice. Acting on instructions from the mayor, whom he had apprised of the situation, Chief McKnight next interviewed Mr. Farmer. Among the questions he asked Mr. Farmer was one "about having to get out of the union in order to be able to accept lieutenant's promotion; and he said, it was all right with him" (R19) After this interview, Chief McKnight recommended Mr. Farmer's promotion, just as he had earlier recommended Mr. Scheiblich's promotion. The mayor was pleased with Mr. Farmer's selection. He nevertheless told the fire chief to interview the only other person listed, Mr. Schwartz, which Chief McKnight did even though he "couldn't see the necessity." (R29) The question of fire lieutenants' union membership came up in the Schwartz interview, too, and Chief McKnight indicated he was relying on what he had been told by the mayor and by the city attorney. At the time of these events, Mr. Scheiblich was union president and Mr. Schwartz was secretary-treasurer of the union. Chief McKnight and Mayor Cipolloni were aware of this because a letter from Mr. Schwartz, dated August 16, 1976, had so informed them. After Chief McKnight had interviewed Mr. Scheiblich for the fire lieutenant's job, he saw for the first time and read a petition signed by most of the firemen in respondent's employ, including all three persons listed as possibilities for promotion to fire lieutenant. This petition was critical of the management of the fire department, and "was a pretty strong petition. It was ultimately very successful. It got [Chief McKnight] fired." (R18) After reading the petition, Chief McKnight was unsure how long he would remain fire chief, and he told Mr. Scheiblich "to just sit tight [because Chief McKnight] wasn't going to do anything about promoting somebody to lieutenant until [he] was sure whether [he] was still working [for the fire department himself]." (R18-19) The firemen's petition upset Chief McKnight, but did not influence his recommendations for fire lieutenant. Chief McKnight withdrew his recommendation that Mr. Scheiblich be promoted to fire lieutenant, because Mr. Scheiblich would not agree to resign from the union, which respondent's mayor and city attorney had advised Chief McKnight would be necessary. Chief McKnight recommended that Mr. Farmer be promoted to fire lieutenant because his name was next on the list and because Mr. Farmer had no objection to resigning from the union at the end of a probationary period as fire lieutenant. Chief McKnight did not recommend that Mr. Schwartz be promoted to fire lieutenant because he had already recommended Mr. Farmer for the position, and Mayor Cipolloni had indicated he was going to accept the recommendation that Mr. Farmer be promoted. Mr. Farmer was in fact promoted to fire lieutenant, while Messers. Scheiblich and Schwartz were not. The case file reflects that the union filed unfair labor practice charges against respondent and mailed a copy to respondent's counsel on October 8, 1976. In addition to alleging that the circumstances surrounding the promotion of Mr. Farmer amounted to an unfair labor practice, the union alleged that respondent's mayor, Eugene Cipolloni, had sent two letters and made a public statement that constituted unfair labor practices. On or about October 13, 1976, Eugene Cipolloni, respondent's mayor, gave Chief McKnight a verbal directive to change the fire department's temporary shift exchange policy, effective November 1, 1976. Even though respondent's city council had adopted the policy on August 13, 1976, as its Resolution No. 572, the mayor felt a memorandum under the fire chief's signature should suffice to alter the policy. Before the change, the procedure was that a fireman who wanted another fireman to fill in for him made his request in writing and secured the signature of the proposed substitute. These requests then went up through the chain of command and were routinely granted. On one occasion, a fire lieutenant failed to report as a substitute, after agreeing to do so. Since the change in policy, temporary shift exchanges have only been allowed in cases of illness or in other emergencies. This change in policy was ordered by Mayor Cipolloni in retaliation for the filing of the unfair labor practice charges, although ensuring a full complement on each shift was the ostensible reason for the change in policy. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent restore and reestablish the temporary shift exchange policy which obtained before the memorandum posted on October 13, 1976, changed the policy, effective November 1, 1976. DONE and ENTERED this 29th day of July, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: William E. Powers, Jr., Esq. General Counsel Public Employees Relations Commission 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Anthony J. Titone, Esq. City Attorney City of Lauderhill 6299 West Sunrise Boulevard Ft. Lauderdale, Florida 33313 Robert A. Sugarman, Esq. Post Office Drawer 520337 Miami, Florida 33121 APPENDIX The charging party's proposed findings of fact have been adopted, in substance, insofar as relevant, with these exceptions: There was only one opening for fire lieutenant. Chief McKnight had the authority to select the person for promotion only in the sense that he had authority to recommend somebody for promotion. Some of the details of the temporary shift exchange policy set forth in the last paragraph of page four of the charging party's proposed fact findings were recited by Mr. Schwartz in the course of examining witnesses but were not established as part of the evidence adduced at the hearing. Respondent's proposed fact findings Nos. 1, 3(b), 3(d), and 3(f)-(h), have been adopted, in substance. Respondent's proposed fact findings Nos. 2(a)-(e) have been rejected because the evidence as a whole persuaded the hearing officer that the change in temporary shift exchange policy was in retaliation for the filing of unfair labor practice charges. Both the mayor and the fire chief testified that the change was ordered by the mayor himself and that the fire chief merely carried the mayor's order out. The procedure by which the previous policy had been adopted was not followed in amending the policy. The change came at a time of upheaval, after a period of "rumors and commotion," (R19), and at a time when the mayor had just been accused of personally committing unfair labor practices. The mayor's demeanor at the hearing and the evasive manner in which he answered Mr. Schwartz's questions contributed significantly to the hearing officer's conclusion: In testifying, the mayor essentially took the tack that there had been change in the temporary shift exchange policy. The only credible testimony concerning shortcomings under the original policy concerned a single instance in which a fire lieutenant had failed to show up for a shift he had agreed to work, for which dereliction he had been disciplined. Respondent's proposed fact findings No. 3(a) and 3(c) have been rejected because the evidence showed that respondent failed to promote Mr. Scheiblich because he would not agree to resign from the union at the end of a probationary period as fire lieutenant. Respondent's proposed fact finding No. 3(e) has been rejected because Chief McKnight had also been advised by the mayor and the city attorney on the question of the fire lieutenants' managerial status.
Findings Of Fact Respondent, Jesse Leon Thomas, Jr., was first hired by the School Board of Pinellas County in January of 1974 and before his demotion, had served as a maintenance supervisor, supervising sixty-seven people for between five and five and a half years. In February, 1988, Respondent's driver's license was revoked for a period of five years. The order of revocation provided after one year that he could apply for an essential use driving permit for the purpose of driving in connection with his work. Within the office of the Executive Assistant Superintendent for Institutional Services of the Pinellas County School System, maintenance work is divided into five general sections. These include the Technical Engineering Section, the Capital Improvement Force, the SJO section, the DEIS section, and the Emergency/Service section, of which three are headed by maintenance supervisors. Respondent Thomas, at the time of his demotion, was serving as the maintenance supervisor of the Capital Improvement Force. When demoted as a result of the loss of his driver's license, he was assigned the position of general foreman, under the maintenance supervisor of the Emergency- Service section. Arthur M. Spinney is Director of Maintenance for the Pinellas County Schools and serves directly under the Executive Assistant Superintendent for Institutional Services. According to Mr. Spinney, a maintenance supervisor, supervises primarily trades people (roofers, carpenters, painters, etc.). As maintenance supervisor, Mr. Thomas reported directly to Mr. Spinney. All maintenance supervisors are issued School Board owned motor vehicles to assist in the performance of their duties. The Pinellas County School Board Maintenance Department has a twenty-four hour a day response capability, which requires that one of the several maintenance supervisors within the system be on call during off-duty hours for approximately ten days a month. The on-call maintenance supervisor is expected to insure appropriate repair personnel are dispatched to the scene where needed, and if necessary, to go to the job site himself, in a supervisory capacity. Mr. Spinney expected the maintenance supervisor of the Capital Improvement Force to visit each job site at which an active project was being accomplished by that force at least twice a week. The maintenance supervisor was charged with the responsibility of making separate, unscheduled visits to job sites on an unannounced basis as well. Capital Improvement Force projects are those on which normally more than sixteen man-hours of labor are expended and which generally cost between four and five thousand dollars. Some projects may go considerably higher. The projects are often located at more than one job site, and may be located at any school property throughout the county. More than one job is accomplished at a time. Within the Capital Improvement Force, the maintenance supervisor is assisted by a general foreman, who is assisted by several trades foremen. The maintenance supervisor is not expected to personally check daily on each project being supervised directly by a trades foreman. He has overall responsibility to insure that the general foreman and the trades foremen supervise the workers properly and is expected to make separate and unscheduled visits to the job sites to insure that the progress is appropriate. Mr. Spinney did not take immediate action when Mr. Thomas first advised him of the situation involving the driver's license. However, when presented with proof of the revocation action, effective April 4, 1988, he demoted Mr. Thomas from the position of maintenance supervisor of the Capital Improvement Force, to the position of general foreman of the Emergency Task Force. The Emergency Task Force generally works on projects involving less than sixteen man-hours. Mr. Spinney does not expect Mr. Thomas, in his capacity of general foreman of the Emergency Task Force, to routinely visit job sites because they would normally be completed before he could conduct an inspection. He is required to visit the sites on an as-needed basis and make periodic checks, but can go with the individual trade foreman. Mr. Spinney is prepared to recommend Mr. Thomas for promotion to a maintenance supervisor position as soon as his driving license is restored and a maintenance supervisor position comes open. Mr. Thomas contends that his completion of the routine office jobs while a maintenance supervisor left him only approximately eight hours per week for actual job site visits. Because of his routine office duties, and other duties such as special studies and teaching of training sessions, Mr. Thomas was rarely able to visit the job sites. As a matter of fact, during the five years immediately prior to his demotion, Respondent recalls going to a job site after regular hours on only two occasions and on both of those visits, his presence was not actually necessary. In fact, he has not driven a county vehicle home since July of 1987; Possession of a driver's license is not listed as an essential criteria in the job description for maintenance supervisor. In some other jobs such a requirement is listed in the job description. When in 1979, Mr. Spinney concluded that a driver's license requirement should be included in the job description for maintenance supervisor his efforts to effect that change were disapproved by the school board. As maintenance supervisor, Mr. Thomas dispatched qualified workers to job sites, a function he could fulfill by the use of a telephone or radio. When on call, he could be reached by telephone, mobile radio, or beeper, and when it was necessary for him to go to a job site, he could always travel with the general foreman or a trade foreman, who are in and out of the office, going to and from the various jobs sites on a continuing basis throughout the day. Any meetings he might have to attend as a maintenance supervisor are, almost without exception, conducted in the office where he worked. During the forty days after his driver's license was revoked, and before he was demoted, Mr. Thomas missed no calls requiring his presence due to his inability to drive. The acting maintenance supervisor, filling Mr. Thomas's position since his demotion, indicated he has visited job sites on very few occasions, due to the large amount of paperwork involved in the position. Since he has been serving as general foreman of the Emergency Services Section, Mr. Thomas has made more weekly visits to job sites than when he was maintenance supervisor of the Capital Improvement Force. All visits have been made as a passenger in a vehicle driven by another school board employee. Mr. Thomas's work record during the period of time he has worked with the school system has been outstanding. There is no indication that the demotion was a result of poor duty performance or other instances of misconduct. Mr. Spinney contends that Respondent's driving revocation adversely affected his ability to serve as a leader, and required his demotion from the job of maintenance supervisor, but he has been satisfied with the Respondent's leadership as a general foreman. Mr. David Jackman, in charge of the maintenance section's accounting department, has been twice convicted of driving while intoxicated. Even after his convictions, he was placed into that position and no disciplinary action was taken against him. This is explained by the fact that Mr. Jackman's job requires few visits outside the office. He can get to any meetings he is required to attend by riding with Mr. Spinney or someone else from the office. He was warned, however, after his second offense, that his conduct could affect his job. While no formal requirement exists in the job description of a maintenance supervisor that the incumbent possess a valid driver's license, the job requires that the incumbent visit the work sites on both a periodic and an unannounced basis. It would be difficult, if not impossible, to insure that visits were unannounced if the supervisor were required to rely on other employees for his transportation to the work site. Consequently, the incumbent must have the means of independent travel to effectively accomplish the requirements of the position.
Recommendation It is, therefore recommended that the demotion of Mr. Thomas to the position of general foreman, be sustained. Recommended in Tallahassee this 21st day of July, l98, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 21st day of July, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2094 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner: 1 - 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 4 - 6. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 11 - 12. Accepted and incorporated herein. 13 - 15. Accepted and incorporated herein. 16 - 17. Accepted and incorporated herein. 18 - 20. Accepted and incorporated herein. By the Respondent: 1 - 2. Accepted and incorporated herein. Accepted and incorporate herein. Accepted and incorporated herein. Accepted. Accepted, but not complete in intent. 7 - 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a misleading statement. 12 - 13. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. 17 - 18. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. 21 - 22. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not supported by evidence of record. Accepted. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618 Louis Kwall, Esquire 133 North Ft. Harrison Avenue Clearwater, Florida 34615
Findings Of Fact The parties agreed that the City of Winter Park or the City Commission was the Public Employer as defined by Chapter 477, Florida Statutes. The Public Employees Relations Commission's file contains the affidavit of Pat Hill attesting to the fact that the Winter Park Professional Fire Fighters Local #1598 was a duly registered employee organization as of the date of hearing. This affidavit was executed on May 2, 1975. The Petition recites that recognition of Petitioner was requested on January 16, 1975. The Public Employer has not responded to the request for recognition. The Winter Park Fire Department is composed of full-time and volunteer fire fighters. The Petitioner seeks to represent only full-time fire fighters, of which there are approximately 38, and would seek to represent all fire fighters in the Department except the chief. The Winter Park Fire Department is composed of the chief, fire inspector (fire marshall), three captains, three lieutenants, one mechanic, various engineers and fire fighters. There are two fire stations, Station 1 and Station 2, each station having three shifts. Station 1 is commanded by a captain and Station 2 is commanded by a lieutenant who reports to the captain who also is the shift commander. It should be noted, however, that the captain would not respond to a fire in Station 2's area, therefore, generally, a lieutenant would not work on a fire scene for the captain. Each shift has approximately eleven men, including the captain and lieutenant, assigned, and there are approximately 6-5 at Station 1 and 4-5 at Station 2. The Mechanic is a fully qualified fire fighter and the Chief feels that this dual capability makes him more valuable to the Department. The Fire Inspector (Fire Marshall) is a special staff officer who inspects building plans for compliance with fire safety codes, assist in operational planning, and directs the activities of fire safety inspectors assigned to him. The Deputy Chief acts as the second in command of the Department, assistant to the Fire Chief, and coordinates and directly supervises the shift captains. He would respond to any fire alarm in Area 1 or 2 which was other than a minor fire, and command the fire scene, except those to which the Chief responded. It was apparent that the Fire Chief was the major policy maker, but the Deputy Chief was the "detail man" charged with developing and executing major polices determined by the Chief. The Deputy Chief prepared the Standing Operating Procedures (SOP's), letters of change to the SOP's, and other letters of direction received from the Chief. Although the Chief would consult with the Deputy Chief on budgetary, personnel, and planning matters, the Chief retained the authority to determine policy. The Deputy Chief was authorized to exercise his discretion in implementing these polices particularly those related to personnel; assignments, transfers, and approval of leaves. The Mechanic is assigned to maintain and repair all the department's trucks and pumps. The Chief testified that the Mechanic had and needed knowledge of regular gasoline engines, diesel engines, and pumps. The Chief further testified that the Mechanic's position was held by a man who had been an engineer with the Department, who had the requisite skills, and the Chief had promoted him to provide him additional compensation in order that he would take the job. The Mechanic spends almost all of his 40-hour week in the performance of mechanic's duties, but as a qualified fire fighter he is qualified to perform fire fighting duties if necessary. In actuality the Mechanic does not fight fires, but has the capability if required. The Mechanic schedules his own work and reports to the Deputy Chief. He is on call when not on duty. He is assisted as required by other firemen if additional physical strength is necessary to perform a specific task. The status of the current mechanic is apparently in flux, and the Chief has referred to a study committee of firemen and officers the problem of to what rank and seniority the individual should revert. The Mechanic is not required to be a fire fighter. It was apparent from the Chief's testimony regarding various major policy decisions that he consulted with fire department personnel who would be effected by a proposed policy either by means of a group meeting, study committee or similar decision making process. Such input was obtained from personnel not so much on the basis of rank in the Department but rather on the issue involved and who it affected. The Chief was dependent upon his special staff members, i.e., the Deputy Chief and Fire Marshall, for special plans and operational advice, however, the pattern for decision making did not restrict input solely to officer personnel. The company officers provide budgetary information by preparing lists of their stations' and shifts' projected equipment, consumable, and capital outlay needs in the upcoming fiscal year. Based upon this data the Chief and Deputy Chief prepare the budget for submission to the City Manager. Items requested by company officers are reviewed by the Chief and Deputy Chief and are generally approved if they are not too expensive and appear to be justifiable. The Chief indicated that he gave careful consideration to such requests, pointing out an expensive hose dryer purchased at the request of Station 2's officers and a coffee maker needed and requested by Lt. Legarde, the latter being a direct authorization purchase from current funding. The company officers were responsible for the assignment of duties of subordinate personnel at their station on their shift both on equipment and station work details. Because of the limited numbers of personnel assigned at the stations, the company officers participated in clean up details including the handling of the light clean up duties. The company officers had only limited authority to grant leaves. Company officers would not have authority to suspend personnel except under those circumstances in which the individual would pose a hazard to himself and others such as an employee reporting to work drunk. Disciplinary cases would be referred through the Deputy Chief to the Chief for final action with appeal rights to the civil service board. The authority to grant regular leave similarly would necessitate approval by the Deputy Chief. The company officers forward the request to the Deputy Chief and explain the basis for the request. According to the testimony, officers would not generally present a recommendation regarding approval to the Deputy Chief. Company officers do have authority to grant temporary exchanges of duty although this would be reported as a courtesy to the Deputy Chief. Company officers do evaluate personnel and these evaluations would be a considerable but not determinative factor in promotion. It would be one of several things which a panel of fire officers from surrounding communities would consider in evaluating an employee's eligibility for promotion. The Chief indicated that although by law he could select from the several highest individuals recommended, he had established a policy that he would promote the highest recommended. Merit increases were authorized and dependent upon evaluations, however, because of nonavailability of funds, merit increases had not been paid for some time and no one could foresee their payment. The relationship of company officers on the table of organization would indicate that the Lieutenant at Station 2 was subordinate to the Captain at Station 1. However the Captain is more closely under the supervision of the Deputy Chief. The conduit for information is through the chain of command, however, any person who was not present or otherwise reasonably available would be skipped.
