Findings Of Fact Petitioner Robert Landers was employed by Broward County from February 10, 1987, until August 4, 1987, as a probationary employee in the County's Utilities Division. His job classification was Engineering Inspector II. Prior to his employment, he submitted a resume to Broward County. That resume represented that his health was "excellent". On the Broward County employment application form he represented that he had "fully recovered" from an automobile accident in 1963. He successfully passed Broward County's standard pre- employment physical examination. Petitioner is proud of the fact that he possesses a Broward County Master Plumber Certificate. The position of Engineering Inspector II in the Broward County Utilities Division does not require such a certificate. Petitioner served his six-month probationary period under the successive supervision of three field supervisors -- Robert Harper, John Graham, and Patrick Sweet. At the end of his probationary period each of these three supervisors individually evaluated Petitioner's job performance as unsatisfactory. At the midpoint of his probationary period, Petitioner was counseled regarding his performance and was advised that he needed to get along with people better, that he needed to get out of his vehicle in order to make inspections at the job sites, and that he needed to use the required Broward County Specifications Manual rather than relying on his past knowledge of various plumbing codes. Petitioner's job required use of engineering code concepts, and Petitioner did not gain sufficient familiarity with the Broward County Specifications Manual to properly perform his job. During the six-month probationary period, Petitioner failed to follow proper procedures and failed to properly perform his job duties on several occasions. He went home without permission; he allowed a contractor to lay defective piping; he verbalized his reluctance to utilize the Broward County Specifications Manual and took the position that his way of doing things was better; he obtained permission to go to a medical appointment in advance and then changed the appointment time without notifying anyone that he would be going at a time other than a time for which he had permission so that no other employee covered his duties while he was absent; he complained about specific assignments and questioned the necessity of doing tasks assigned to him; he kept his paper work in the wrong location; and his claims for overtime overstated the actual amount of overtime worked on two occasions. Petitioner was terminated from his employment with Broward County at the end of his probationary period for his failure to meet minimum requirements for his job classification. Petitioner has not applied for any other employment positions with Broward County following his termination. During his probationary period, Petitioner was diagnosed as having diabetes. Petitioner does not walk with an observable limp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered finding that Respondent Broward County has not committed an unlawful employment practice against Petitioner and dismissing the Petition for Relief from an Unlawful Employment Practice filed in this cause. DONE and ENTERED this 22nd day of August, 1989, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN DOA NO. 88-4908 Petitioner's Proposed Findings of Fact numbered 1-3, 5, and 7 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's Proposed Findings of Fact numbered 4 and 10 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or conclusions of law. Petitioner's Proposed Findings of Fact numbered 6, 8, and 9 have been rejected as being contrary to the weight of the evidence in this cause. Respondent's Proposed Findings of Fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's Proposed Finding of Fact numbered 9 has been rejected as not constituting a finding a fact but rather as constituting conclusions of law. COPIES FURNISHED: James Thomas, Esquire Governmental Center Suite 423 115 South Andrews Fort Lauderdale, FL 33301 Robin L. Kozin, Esquire 8101 Biscayne Boulevard Suite 500 Miami, FL 33138 Donald A. Griffin, Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
The Issue Whether Amanda’s Childcare and Preschool is subject to a civil penalty and licensure action for failing to comply with staff-to-student ratios and for having tools on the daycare playground, in violation of Florida Administrative Code Rules 65C-22.001(4) and 65C-22.002(1)(a), and chapter 402, Florida Statutes.
Findings Of Fact Respondent is licensed by the Department to operate a facility known as Amanda’s Childcare & Preschool located at 123 West Rhode Island Avenue, Orange City, Florida 32763. Respondent is owned by Joseph Corneck. During the morning of January 28, 2013, Mr. Corneck was working on the construction of a climbing apparatus in a playground at Respondent’s daycare facility. There were no children playing on the playground at the time of Mr. Corneck’s construction activities. Rather, there were 20 kindergarten-aged children inside an adjacent classroom while Mr. Corneck was outside working. Near lunchtime, Ms. Carolyn, a staff member who was supervising the classroom, lined the children up so that they could use the two available bathrooms and wash up for lunch. Because of crowding by the number of children lining up for only two bathrooms, Ms. Carolyn asked seven boys in the group to line up outside the classroom along the exterior wall near the door adjacent to the playground. Ms. Carolyn asked Mr. Corneck to assist in watching the boys while they were in line. Mr. Corneck left the apparatus that he was working on, which was approximately 30 feet away, and came over to the boys to watch over them while they were in the line. Mr. Corneck left the tools that he was working with, consisting of a hammer and a cordless drill gun, back on a platform of the apparatus. The platform where he left the tools was approximately four to six feet high. He also left the materials he was working with and a ladder near the apparatus. While Mr. Corneck was watching the boys, Department family services counselor Kalyn Yeager stopped by for a routine inspection. She noticed the boys outside the classroom and apparently concluded that they had access to the tools and materials. Mr. Corneck, however, did not allow the boys to play on the playground that day. There is no evidence that the children were allowed access to the tools or playground apparatus, and there is insufficient evidence to suggest that the children otherwise had access to those tools or materials, or that they were ever in danger or potential danger because of his construction activities. After the inspection, Ms. Yeager had a conversation with Mr. Corneck in which he advised that he had shown some of the day care students how to use tools. Mr. Corneck, however, never told Ms. Yeager that he had given a demonstration to the kindergarten-aged children who were present on the day of the inspection. Rather, his reference to a tool demonstration was about another occasion or occasions when he had demonstrated the use of tools to some of the older boys in Respondent’s after- school care. At the final hearing, Ms. Yeager could not recall the number of children who were there the day of her inspection. The evidence is otherwise inadequate to show that Respondent violated any applicable staff-to-child ratio standards. In sum, the Department failed to prove the alleged violations set forth in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED 15th day of October, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 15th day of October, 2013.
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 The issue in this case is whether the City of Clearwater properly dismissed Respondent, Diane C. Hashil, from her employment as a Toll Booth Attendant for inefficiency in the performance of duties, in violation of Rule 14, Section 1, paragraph (c), of the Civil Service Rules and Regulations of the City of Clearwater.
Findings Of Fact Respondent, Diane C. Hashil, was employed as a Toll Booth Attendant at the Sand Key Tollbooth by Petitioner, City of Clearwater, (the City), from July of 1992 until May 24, 1995. During the course of Respondent's employment with the City, Respondent has been the subject of numerous disciplinary actions, resulting in counseling, written reprimands, and suspensions. Beginning on December 6, 1993, and continuing through May 24, 1995, twelve disciplinary actions were taken against Respondent for charges including repeated discourtesy to customers, insubordination, failure to comply with verbal instructions, failure to follow policies regarding nonpayment of tolls, and entering the cash drawer of another employee without permission. Respondent's disciplinary action history includes the following actions: 1) On December 7, 1993, Respondent received a written warning for a Level 4, #2 offense (insubordination); 2) On December 21, 1993, Respondent was suspended for two days for a Level 2, #2 offense (discourtesy); 3) On January 26, 1994, Respondent was suspended for three days for a Level 2, #2 offense (discourtesy); 4) On August 10, 1994, Respondent received a letter of reprimand for a Level 1, #1 offense; 5) On January 12, 1995, Respondent received a letter of reprimand for a Level 4, #2 offense (insubordination); 6) On January 17, 1995, Respondent was given a letter of reprimand for a Level 2, #1 offense; 7) On March 9, 1995, Respondent was suspended for two days for a Level 3 offense (productivity); and, 8) On March 15, 1995, Respondent was suspended for five days for a Level 4, #2 offense (insubordination). In April of 1994, Respondent's employment with the City was terminated; however, the City reversed this decision, and Respondent subsequently remained in her position. On November 1, 1994, Respondent received an unsatisfactory performance evaluation. The primary basis for this evaluation was Respondent's continued discourtesy to patrons which had resulted in disciplinary actions against Respondent during the evaluation period. The City's employee performance ratings policy requires that an employee receiving an unsatisfactory rating be reevaluated in three months. On February 13, 1995, at her three-month follow-up reevaluation, Respondent again received an unsatisfactory performance rating. The basis for this evaluation was that Respondent had received repeated reprimands for insubordination, failure to follow rules, and entering the cash drawer of another employee without permission. On March 9, 1995, as a result of her unsatisfactory reevaluation, Respondent received a two-day suspension, and twenty disciplinary points. On March 15, 1995, Respondent was suspended for five days for insubordination. Respondent's appeal of these suspensions was upheld through the City Manager stage. Respondent did not seek further review of these suspensions. On May 5, 1995, at her second follow-up reevaluation, Respondent again received an unsatisfactory performance rating. Under the City's policy this unsatisfactory rating was automatic because Respondent had been suspended for five or more days during the rating period. In addition the second follow-up performance evaluation stated that Respondent filed a false police report alleging a customer had defrauded her, that Respondent entered the cash drawer of another employee without permission, and that Respondent was responsible for low morale of the other employees at the Sand Key Tollbooth. Respondent admits that she entered the cash drawer of another employee without permission, and that she kept a daily log of the activities of other employees which contributed to the low morale at the Sand Key Tollbooth; however, Respondent believed other employees were allowed to violate rules, and that she was being unfairly disciplined because she was female and not a member of the union. The evidence does not support a finding that other employees were allowed to violate rules, nor that Respondent was treated differently than other employees. The evidence does not reflect that Respondent was subjected to disciplinary actions because of her gender or her failure to join a union. During her employment at the Sand Key Tollbooth, Respondent received more complaints from customers and other employees than any other tollbooth attendant. Because Respondent had received two consecutive three-month reevaluations with an unsatisfactory rating, she was subject to termination under the City's policy. In addition, because Respondent had accumulated excessive disciplinary points she was subject to termination under the City's Guidelines for Disciplinary Action. The performance evaluations and the disciplinary actions taken with regard to Respondent were appropriate and consistent with those given other employees. Following her five-day suspension, Respondent filed a report alleging various rule violations of other employees. The City investigated Respondent's allegations and required three employees to attend counseling with regard to cash drawer procedures. The evidence does not support a finding that the City singled out Respondent for disciplinary actions. The City allowed Respondent to serve her five-day suspension over two pay periods to lessen the financial impact of her suspension. The City Harbormaster has employed other females within the department without incident. As of October 1995, the City has eliminated the position of tollbooth attendant because of the construction of a new Sand Key bridge which will, upon completion, be toll free. The City has assisted former tollbooth attendants in attempting to secure other positions of employment with the City. Subsequent to her termination, Respondent applied for a meter reading position with the City, but was not hired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The City of Clearwater Civil Service Board enter a Final Order dismissing Respondent from her position of employment with the City of Clearwater. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of November, 1995. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1995. APPENDIX As to Petitioner's Proposed Findings: 1 - 12. Accepted and Incorporated. As to Respondent's Proposed Statement of Facts: Accepted, except that unauthorized entry into another employee's cash drawer violated City rules and regulations. Rejected as irrelevant. Rejected as not supported by the evidence. COPIES FURNISHED: Leslie K. Dougall-Sides, Esquire Paul Richard Hull, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Diane C. Hashil 1527 South Prospect Avenue Clearwater, Florida 34616 Ms. Cynthia Goudeau City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: An Overview of Petitioner's Employment with the District Petitioner was employed by the District from June of 1988, until his termination, which was effective January 14, 1992. Prior to his termination he had an unblemished disciplinary record. Petitioner was initially hired by the District as a Construction Representative. In January of 1989, he assumed the duties of a Regulatory Professional I. He was promoted in 1990 to a Regulatory Professional II, a position he held until he was terminated. At the time of his termination, Petitioner had attained regular employee status inasmuch as he had successfully completed his probationary period. As a Regulatory Professional II, Petitioner was responsible for monitoring the public's compliance with the District's regulatory programs, a task that involved the exercise of considerable discretion with minimal supervision as well as frequent and substantial contact with citizens in his assigned territory, which covered all of Okeechobee and St. Lucie Counties and parts of Glades and Highlands Counties. Petitioner also supervised one subordinate employee, Donald Hagan, a Regulatory Professional I, who assisted Petitioner in his monitoring activities. Petitioner was assigned a District vehicle for official use during the workday. After hours, the vehicle was secured in the parking lot outside the District field station in Okeechobee where Petitioner was headquartered. Petitioner worked an eight-hour day. His normal work hours were 7:30 a.m. to 4:00 p.m., however, he occasionally deviated from this schedule when necessary to accommodate his workload. In addition to a lunch break, Petitioner was allowed to take two 15 minute work breaks during his eight-hour workday, one in the morning and one in the afternoon. He was permitted to take these breaks whether he was in the field station or out in the field. In September and most of October of 1991, Petitioner's immediate supervisor was Edward Maciejko. Maciejko was headquartered in West Palm Beach, approximately 60 to 65 miles from the Okeechobee field station out of which Petitioner worked. On October 23, 1991, Alan Goldstein became Petitioner's immediate supervisor. Goldstein's work station was located in Okeechobee approximately three miles from Petitioner's work station. Goldstein remained Petitioner's immediate supervisor until Petitioner's termination. The Employee Handbook The District has an Employee Handbook that is designed to provide information and guidance to District employees regarding employment-related matters. As do all new District employees, Petitioner received a copy of the Employee Handbook upon being hired and its contents were reviewed with him during his orientation. The Employee Handbook contains the District's Attendance and Leave Policy (Policy No. 300), which addresses the subjects of "normal work hours" and "work breaks" as follows: NORMAL WORK HOURS All full-time regular and initial probationary employees shall perform their assigned duties for 40 hours each work week unless otherwise authorized. All part-time regular and temporary employees shall perform their assigned duties for the total number of hours for which compensation is received. The normal workday shall be 8 hours unless otherwise authorized by the employee's Division Director. WORK BREAKS All District employees are provided one work break during the first half of their workday and one work break during the second half of their workday, except in extreme emergency. No single work break shall exceed 15 minutes. An employee is not permitted to accumulate unused work breaks nor may the work break be used to cover an employee's late arrival or early departure from duty. All employees shall take a minimum of one half hour lunch break each workday. The following discussion is found in the Employee Handbook concerning the "Code of Ethics:" Florida has been a leader among the states in establishing ethical standards for public officials and employees and recognizing the right of her people to protect the public trust against abuse. Our state constitution was revised in 1968 to require that (a)a code of ethics for all state employees and non-judicial officers prohibiting conflict between public duty and private interests shall be prescribed by law. Art III, Sec. 18, Fla. Constitution. The "Code of Ethics for Public Officers and Employees" by which the Legislature carried out this constitutional mandate is found in Chapter 112 (Part III) of the Florida Statutes. The purpose of the Code is to ensure that public officials and employees conduct themselves independently and impartially, not using their offices or positions for private gains other than remuneration provided by law and to avoid conflicts between public duties and private interest. . . . The standards of conduct summarized below generally apply to all District employees. The types of conduct prohibited are: Gifts- No public employee shall solicit or accept anything of value- including a gift, loan, reward, promise of future employment, favor, or service- that is based on any understanding that the vote, official action, or judgment of the employee would be influenced by such gift. Sec. 112.313(2), Fla. Stat. (1991). Unauthorized Compensation- No public employee or his/her spouse or minor child shall accept any compensation, payment or thing of value which, with the exercise of reasonable care, is known or should be known to influence the official action of such employee. Sec. 112.313(4), Fla. Stat. (1991). Doing Business with One's Agency- No public employee acting as a purchasing agent or acting in his/her official capacity shall, directly or indirectly, purchase, rent, or lease any realty, goods, or services from a business entity in which his/her spouse, or child is an officer, partner, director, or proprietor, or in which his/her spouse, or child (or any combination of them) has a material interest. Nor shall a public employee, acting in a private capacity, rent, lease, or sell any realty, goods or services to his/her own agency. Sec. 112.313(3), Fla. Stat. (1991). Conflicting Employment or Contractual Relationship- No public employee shall hold any employment or contractual relationship with any business entity or agency which is subject to the regulation of, or doing business with, the employee's agency. Nor shall an employee hold any employment or contractual relationship which will pose a recurring conflict between his/her private interests and his/her public duties or which would impede the full and faithful discharge of his/her duties. Sec. 112.313(7), Fla. Stat. (1991). Exemptions- Under certain circumstances the prohibitions of subsections (3) and (7) of Section 112.313, Florida Statutes, may not apply. Misuse of Public Position- No public employee shall corruptly use or attempt to use his/her official position or any property or resource within his/her trust, or perform his/her official duties, to obtain a special privilege, benefit or exemption for himself/ herself or others. Sec. 112.313(6), Fla. Stat. (1991). Disclosure or Use Of Certain Information- No public employee shall disclose or use information not available to the general public and gained by reason of his/her public position for his/her personal gain or benefit or the gain or benefit of others. Sec. 112.313(8), Fla. Stat.(1991). More specific ethics laws address financial disclosure and the reporting requirements which apply to Governing Board members, senior management, and employees with contracting authority. The above information has been provided to help you understand State Ethics Laws. The District supports and enforces these laws to the best of its ability and expects each employee to conduct their activities in a lawful manner. Conflicts of interest may be avoided by greater awareness of these Ethics Laws. If you are in doubt about the applicability of the ethics laws to your own circumstances or the circumstances of a subordinate or co-worker, contact the District's Office of Counsel. They will answer your questions or assist you in obtaining an opinion from the Commission on Ethics. Also included in the Employee Handbook is the District's Corrective Action Policy (Policy No. 803), which establishes standards governing non- executive employee conduct and discipline. Section F. of Policy No. 803 lists those acts of misconduct for which a non-executive District employee who has attained regular status may be disciplined. It provides in pertinent part as follows: The following forms of misconduct are unacceptable and subject an employee to corrective action based on the particular circumstances surrounding the incident. The list is provided merely as examples and is not intended to be all inclusive. The identification of these examples does not preclude the District's right to discipline or dismiss employees for other causes, including acts of misconduct which breach the requirements inherent in the employment relationship. 1. Unbecoming conduct: Any action or conduct by an employee which impedes the District's efforts, brings discredit on the District, impairs the operation or efficiency of the District or any employee, or impairs the employee's ability to perform his or her job. . . . 5. Absence Without Authorized Leave: Failure to obtain approval from the proper authority prior to any absence from work, except in the case of an emergency, illness or accident which requires the employee to be absent prior to receiving approval; Inexcusable or repeated failure to notify the appropriate Supervisor or division office of absence, due to sickness, within ten (10) minutes from the start of the normal work day; Being more than ten (10) minutes late to work for an inexcusable reason or on a repeated basis without notifying the appropriate Supervisor, or division office. . . . Unauthorized Use of District Property, Services, Equipment or Personnel: The use of any District property, services, equipment or personnel for any purpose other than District business. Employees shall be required to reimburse the District for the cost incurred by the District as a result of the unauthorized use of equipment or property. Improper or Careless Use of District Property, Including Vehicles: Failure to care for or properly use District property or equipment such as the failure to observe the proper speed limit while driving a District vehicle. . . . 11. Lying or Failure to Give Truthful or Requested Information: Oral or written statements that are deliberately inaccurate, incorrect or misleading but which do not constitute falsification of records. This includes lying or failure to provide information during an internal investigation. . . . 24. Violation or Disregard of Safety Practices: The failure to follow established safety practices as outlined in the District's Accident Prevention Manual. This includes failure to report any injury or accident; the performance of unsafe acts; or the failure to wear or use appropriate safety equipment. . . . Negligence: The failure to use ordinary or reasonable care, caution, attention, diligence or discretion in the performance of assigned duties and responsibilities. Falsification of a District Record: The intentional issuance of a false or incomplete report or record, either oral or written, or the intentional failure to issue a record regarding the performance of work duties, attendance, injury, illness, job qualifications or other work related matters. Policy No. 803 specifically provides for four basic types of "corrective action" to deal with acts of misconduct. They are, in order of severity: oral reprimand (OR); written reprimand (WR); suspension (S); and dismissal (D). In determining the appropriate "corrective action" to be taken in a particular situation, supervisory personnel must follow the "standards" set forth in Section G. of Policy No. 803, which provides as follows: This section has been established as a guide for use by Supervisors to help ensure that all employees receive similar treatment in like circumstances. The guidelines on severity of corrective action outlined in Section H. is not meant to be an exhaustive listing of all possible acts of misconduct or forms of corrective action. Appropriate corrective action of unlisted acts of misconduct may be derived by comparing the nature and seriousness of the offense to those listed in Section H. In many cases, the guidelines on severity of corrective action are based on the number of occurrences and the seriousness of the offense and are presented as a range of action which covers more than one form of corrective action. The use of a particular form of corrective action is not mandatory simply because it is listed in Section H. Realizing that some of the offenses listed will be more or less serious in certain cases, the supervisor taking the corrective action shall utilize good judgment in light of all available facts. The corrective action selected must ultimately be appropriate in light of the particular circumstances surrounding the incident and the employee's past performance and conduct record. For example, even for offenses where dismissal is not indicated for a first offense, dismissal on a first occurrence may be assessed for an aggravated offense or a continuous pattern of misconduct. Similarly, where dismissal is indicated, a less severe form of corrective action may be taken. This action may be taken so long as it is more severe than that given in the most recent prior occurrence that is still active, and is reasonably consistent with other cases of misconduct for other employees. Temporary and initial probationary employees may be suspended or dismissed without regard to the standards of corrective action. In determining the severity of corrective action to be applied, the authorized Supervisor should take into account the following variables: The severity of the specific act of misconduct. The circumstances under which the violation occurred. The consequences of the employee's actions in regard to its affect on the District operation and on other employees. The guidelines on severity of corrective action outlined in Section H. of this policy. The overall work record of the employee; length of employment; and the employee's prior history of other similar or unrelated corrective actions, including active and inactive offenses. The length of time since earlier corrective action, the similarity or dissimilarity of the offense, and the severity of earlier offenses. The following are among "the guidelines on severity of corrective action outlined in Section H." of Policy No. 803: 1. Unbecoming conduct: 1st occurrence- WR, S or D . . 5. Absence Without Authorized Leave (Does not affect scheduling or work of others): 1st occurrence- OR; 2nd occurrence- WR . . Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 1) Cost to District of less than $50.00): 1st occurrence- S; 2nd occurrence- S or D; 3rd occurrence: D Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 2) Cost to District of more than $50.00): 1st occurrence- S or D; 2nd occurrence- D Improper or Careless Use of District Property (Not involving personal injury or property damage): 1st occurrence: OR . . . 11. Lying or Failure to Give Truthful or Requested Information: 1st occurrence- WR or S; 2nd occurrence- S or D; 3rd occurrence- D . . . 24. Violation or Disregard of Safety Practices (Not involving personal injury or property damage): 1st occurrence- OR . . . Negligence (Not involving personal injury or property damage): 1st occurrence- OR . . . Falsification of District Record: 1st occurrence- S or D; 2nd occurrence- D The Accident and Related Events In the latter part of September of 1991, Petitioner's personal vehicle was in an automotive repair shop in Stuart. On September 17, 1991, at Petitioner's request, Donald Hagan, Petitioner's subordinate, drove Petitioner to the repair shop in Stuart, which was outside of their assigned territory, in a District vehicle. The purpose of the trip was to ascertain whether the repairs on Petitioner's personal vehicle had been completed. Upon his arrival at the repair shop, Petitioner was advised that the necessary parts had not come in and that therefore it would be another week until he would be able to pick up his vehicle. A week later, on September 24, 1991, at approximately 1:00 p.m., Hagan was in his District vehicle in the parking lot outside the Okeechobee field station when Petitioner walked up to him. Petitioner told Hagan that the repairs on Petitioner's personal vehicle had been completed. He then asked if Hagan would give him a ride to the repair shop in Stuart so that he could pick up the vehicle. Hagan responded in the affirmative. Petitioner thereupon entered Hagan's District vehicle and sat down in the front passenger seat. After Petitioner was situated, Hagan drove off, headed in the direction of the repair shop. Before reaching their destination, Hagan and Petitioner were involved in an automobile accident when Hagan lost control of the vehicle and it ended up in a ditch. The vehicle was damaged and it was towed to West Palm Beach for repairs. Hagan sustained two fractured ribs as a result of the accident. Petitioner was also injured, but not as seriously as Hagan. Both received medical treatment for their injuries. Hagan's and Petitioner's ill-fated trip did not have any District- related purpose. Nonetheless, following the accident, Petitioner reported otherwise, notwithstanding that he knew that he was providing false information to the District. On the night of the accident, he told his then immediate supervisor, Edward Maciejko, over the telephone that he and Hagan were on their way to conduct an inspection of distressed cypress trees in St. Lucie County when the accident occurred. Petitioner also prepared an accident report in which he made the same misrepresentation. A workers' compensation claim was filed on behalf of Petitioner in reliance upon this misrepresentation. Initially, Hagan corroborated Petitioner's story about the purpose of their September 24, 1991, trip. Later, however, he told supervisory personnel the truth about the matter. For his part in the incident and the subsequent cover-up, he was reprimanded and received a two-day suspension. On two occasions following Hagan's revelation regarding the true purpose of the trip, Petitioner was provided an opportunity by Alan Goldstein, who had recently become Petitioner's immediate supervisor and was looking into allegations of misconduct against Petitioner, to recant the statements he had previously made regarding the matter. Petitioner, however, declined to do so and instead repeated what he had said earlier on the subject. 2/ The Speeding Ticket and Related Events On October 3, 1991, while driving his District vehicle to a work- related meeting in Lake Placid, Florida, to which he did not want to be late, Petitioner was stopped by a Florida Highway Patrol trooper and given a traffic citation for travelling 84 miles per hour in a 55-mile per hour zone. Petitioner had exceeded the posted 55-mile per hour speed limit, but by less than the trooper indicated on the citation. Nonetheless, for convenience sake, Petitioner did not contest the citation. On the day he received the citation, Petitioner telephoned Edward Maciejko, who was still his immediate supervisor at the time, and told Maciejko that he had been "flagged down" by a trooper earlier that day while on his way to Lake Placid in his District vehicle. Subsequently, during an investigation of alleged wrongdoing on Petitioner's part conducted after Alan Goldstein, had become Petitioner's immediate supervisor, Goldstein asked Petitioner if he had informed Maciejko about the traffic citation he had received on October 3, 1991. Petitioner responded in the affirmative to this inquiry. To the best of his recollection, he had so informed Maciejko and therefore believed that he was being truthful in his response to Goldstein's inquiry. The Loan and Related Events Dry Lake Dairy (Dairy) is an Okeechobee dairy farm that has been owned and operated by the Rucks family since 1958. J. Boyd Rucks is President of the Dairy. As President, it is his responsibility to deal with governmental agencies that exercise regulatory authority over the Dairy and its operations. The District is one of these governmental agencies. In or sometime prior to 1990, the Dairy received a surface water management permit from the District. It subsequently obtained a modification to the permit to engage in a ditch clearing operation. In November of 1990, the District issued a Notice of Violation (NOV) alleging that the Dairy had violated the terms of its permit. Petitioner was actively involved in the investigation that led to the issuance of the NOV. Following the issuance of the NOV, it was his responsibility to make sure that the necessary steps were being taken by the Dairy to correct the problems identified in the NOV. At first, he visited the Dairy on a regular basis to monitor its compliance efforts. Thereafter, these regular visits ceased and his monitoring activities were confined to flying over the Dairy during his monthly aerial inspection of his territory. By the middle of October of 1991, the Dairy had made substantial progress toward correcting the violation with which it had been charged by the District, but the matter had not been finally resolved. 3/ At the time, Petitioner needed to borrow $500.00. Notwithstanding that the enforcement action against the Dairy, in which he played an integral role, was still ongoing, Petitioner ill-advisedly decided to approach the Dairy's President and its representative in its dealings with the District, J. Boyd Rucks, about loaning him the money. Petitioner knew Rucks through Petitioner's work with the District. Their relationship was purely a professional one. They did not socialize. While Rucks, on behalf of the Dairy, often made cash advances to its employees, neither he nor the Dairy was in the business of making loans to members of the general public. Never before had either of them made a loan to a District employee. At around noon on October 14, 1991, Petitioner was in his District vehicle on his way back from a field inspection when he stopped by Rucks' home and asked Rucks if he would lend Petitioner $500.00. Rucks told Petitioner that he would have to discuss the matter with other members of his family and that Petitioner should return later in the day for an answer. At around 3:30 or 4:00 p.m. that afternoon, Petitioner returned to Rucks' home in his District vehicle. 4/ Having obtained the approval of the family members to whom he had spoken, Rucks gave Petitioner $500.00 from the Dairy's petty cash fund. Petitioner was to repay the money within ten days. There was no interest charged. Petitioner did not believe that he was doing anything wrong in soliciting and accepting this loan from Rucks. There was no understanding on the part of either Petitioner or Rucks that the making of this loan to Petitioner would in any way influence Petitioner in the discharge of his duties as an employee of the District. Petitioner never suggested, nor did Rucks expect, that the Dairy would receive favorable treatment in its dealings with the District as a result of the loan. The two viewed the transaction as a personal matter unrelated to District business. Because of illness that required hospitalization, Petitioner was unable to repay the loan within ten days. The loan was repaid in full within three weeks. Petitioner's Personal Circumstances During the period of time in which the alleged acts of misconduct in the instant case were committed, Petitioner was experiencing a significant amount of stress in his personal life. He was having money problems. In addition, his relationship with his wife was deteriorating. The day after he received the loan from Rucks, Petitioner was admitted to a psychiatric hospital for treatment. He remained hospitalized for two weeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the District enter a final order (1) finding that disciplinary action, in the form of a suspension covering the period from January 9, 1992, to the date of the issuance of said final order, should be taken against Petitioner, but based only upon those acts of misconduct described in Conclusion of Law 70 of this Recommended Order, (2) reducing Petitioner's dismissal to such a suspension, and (3) reinstating Petitioner to the position he previously held or a comparable position. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3101 The following are the Hearing Officer's specific rulings on what the parties have labelled as "findings of facts" in their proposed recommended orders: Petitioner's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To the extent that this proposed finding states that "[e]mployees receive the Handbook at new employee orientation," it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 4-7. Accepted and incorporated in substance. 8. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 9-11. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding references Edward Muldowney's participation in the internal investigation and Muldowney's "extensive investigative experience," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 15-16. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 20-22. Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of legal argument. Accepted and incorporated in substance. Rejected because it is not supported by persuasive competent substantial evidence. 25a.-25b. To the extent that these proposed findings state that Petitioner was absent during non-break periods of the workday on September 24, 1991, and on October 14, 1991, without the authorization and approval of the appropriate authority, they have been rejected because they are not supported by persuasive competent substantial evidence. Otherwise, they have been adopted and incorporated in substance. 25c.-26a. Accepted and incorporated in substance. 26b. Last sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Accepted and incorporated in substance. 26c. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony. 26d. Accepted and incorporated in substance. 26e. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence. 26f. Accepted and incorporated in substance. This proposed finding, which states that Petitioner lied or failed to give truthful or requested information on six, rather than three, occasions, has been rejected because it is not supported by persuasive competent substantial evidence. 27a. Accepted and incorporated in substance. 27b. First, second and sixth sentences: Accepted and incorporated in substance; Third and fourth sentences: To the extent that these proposed findings state that Goldstein "specifically asked [Petitioner] if any part of the trip on the day of the accident was for personal reasons" and Petitioner "lied when he responded 'no'" to this question, they have been accepted and incorporated in substance. Otherwise, they have been rejected because they are not supported by persuasive competent substantial evidence. 27c. To the extent that this proposed finding states that Goldstein talked to Petitioner about the September 17, 1991, trip to Stuart during the discussion referenced therein, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. 27e. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. First, second, third and sixth sentences: Accepted and incorporated in substance; Fourth sentence: To the extent that this proposed finding states that Hagan "was a passenger in the vehicle at the time," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony; Fifth sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony. 30-32d. Accepted and incorporated in substance. 32e. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed suggests that Petitioner did not perform "his regulatory functions, including those at the Dry Lake Dairy, in an unbiased manner" as a result of the loan, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. 10/ Third and fourth sentences: Rejected because they are not supported by persuasive competent substantial evidence. 11/ 33-33b. Rejected because they concern alleged misconduct outside the scope of the charges specified in the notice of termination. 33c. Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Petitioner's Proposed Findings of Fact Accepted and incorporated in substance. To the extent that this proposed finding states that Petitioner's assigned territory included Martin County, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. To the extent that this proposed finding recites verbatim the "Grievance Resolution," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding states that Respondent was "summarily" dismissed upon given his notice of termination without the opportunity to respond and that he never before "had an evaluation which was less than satisfactory," it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding states that Petitioner was deprived of "due process," that he was terminated "arbitrarily" and that the charges against him "are so vague as to make them void," it has been rejected as a finding of fact because it is more in the nature of legal argument. Otherwise, it has been accepted and incorporated in substance.
The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's refusal to renew Petitioner's license.
Findings Of Fact Petitioner Linda Stewart, on behalf of Stewart Family Day Care (Petitioner), received the business’ first license to operate a family day care center for no more than 10 children on December 20, 1996. Annual renewals of the license followed until January 2002, following Stewart Family Day Care’s renewal application filed the first of that month. On January 22, 2002, Petitioner was notified that the Department of Children and Family Services (Respondent) had declined to renew Stewart Family Day Care’s license to operate as a family day care. Denial was based on Petitioner’s September 24, 2000, arrest and subsequent conviction for Driving Under the Influence of Alcohol (DUI). License denial was also based on a report made to Respondent of domestic violence (Report No. 2000-075894) in the home in which Petitioner operated the Stewart Family Day Care. An additional report, Report No. 2001-04761, which made allegations that Petitioner was intoxicated while caring for children was closed as unfounded. At the time of both occurrences for which Respondent had concerns, there were no children in the care of Petitioner Stewart with the exception of her son, who was at the time of the alleged domestic violence 16 years of age. As established by the evidence, Petitioner was not the first aggressor and did not initiate the altercation that occurred in her home when a guest, not a live-in as alleged in the report, with too much to drink became violent, hitting Petitioner. Petitioner’s son went next door at his mother’s request and called law enforcement. Following Respondent’s refusal to renew Petitioner’s license, Petitioner has become actively involved with Alcoholics Anonymous (AA). Petitioner’s sponsor in AA testified that Petitioner attends meetings and is sincere in her commitment to AA. Petitioner, it is specifically found, has effectively rebutted through clear and convincing evidence, the allegations of domestic violence upon which Respondent relied for denial of re-licensure. Additionally, the evidence convincingly establishes that the DUI offense committed by Petitioner, at night, was unrelated in any way to her day care business. Further, as established by testimony of parents at the final hearing, Petitioner enjoys their full confidence with regard to the care afforded their children. Licensure renewal has never been denied to Petitioner in the past. Additionally, she has attended, through the years, numerous seminars and short courses to compliment and increase her proficiency in the area of child care.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is Recommended that a final order be entered granting renewal of Petitioner’s license to operate a day care center. DONE AND ENTERED this 4th day of June, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 4th day of June, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 R. Eric Rubio, Esquire 2407 East Bloomingdale Avenue Valrico, Florida 33594-6404 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
