The Issue The issues in this case are whether or not Respondent: During the course of its negotiations for collective bargaining agreements for the above charging parties which are certified employee organizations representing various units of Respondent's employees, interfered with restrained or otherwise coerced employees in violation of Chapter 447.501(1)(a), Florida Statutes, (herein sometimes called the Act). Refused to bargain in good faith with the charging parties as certified bargaining agents of its employees, in violation of Chapter 447.501(1)(c) of the Act. Refused to discuss grievances in good faith pursuant to the terms of collective bargaining agreements in violation of Chapter 447.501(1)(f) of the Act. At the close of the testimony all parties waived oral argument, but briefs were filed by the General Counsel of the Public Employees Relations Commission (herein sometimes referred to as the Commission), Counsels for the International Association of Firefighters, Local number 747 (herein IAFF) and the Respondent which have been carefully considered by me in preparation of this recommended order which will be distributed to the parties in the usual course. Upon the entire record in this case, observation of witnesses on the stand, and consideration of arguments of counsel, I make the following:
Findings Of Fact The complaints allege, the parties admit and I find that the Respondent is a public employer within the meaning of Chapter 447. The complaints allege further, the parties admit and I find that the Charging Parties are certified employee organizations which represent various employees of the Respondent in units which will be set forth in detail hereinafter. During 1976, all three employee organizations were parties to collective bargaining agreements with the employer which expired on September 30, 1976. Respondent began negotiation with the Pinellas County Police Benevolent Association, PBA, herein, on March 10, 1976, with the IAFF on April 29, 1976 and with the International Brotherhood of Firemen & Oilers, Local 1220 (IBF&O herein) on August 9, 1976. After numerous negotiation sessions, the statutory impasse procedures were invoked and hearings were held before a special master on September 27 and 28, 1976. However, subsequent to the invocation of the impasse procedures and prior to the special master hearings, the parties proceeded through mediation and continued bargaining sessions until or about September 16, 1976. On August 4, 1976, the City Council met in a "workshop session" and abolished the step-merit increase pay plan which had been in effect for several years. The step-merit increase pay plan had been a principle item of contention between the parties in bargaining and was one of the three issues submitted to the special master during hearings on September 27 and 28. Other issues of whether or not changes should be made in the pay plan provisions for firefighters and lieutenants and whether changes should be made in the acting officer pay policy provisions were also submitted to the special master. The following day, on August 5, the City's chief negotiator, Robert DuVernoy, was instructed by the City Manager that the City Council had directed the step-merit increase pay plan be abolished. On September 29, 1976, the Respondent, through its chief negotiator Robert E. DuVernoy, notified the presidents of all three Charging Parties that wages would be frozen at September 30th levels allegedly due to expiration of the various contracts. Additionally, on October 6, 1976, Respondent informed the IAFF that effective October 4, 1976, the following terms and conditions of employment would be unilaterally altered: increase in "checkoff" fee from $.04 per individual to $500.00 for processing all payroll deductions for fiscal year 1976-77; the employee organization grievance procedure, the sick leave provision for family illness, the "step- merit increase pay plan" and the withholding of increments arising under said plan, the acting officers program, insurance coverage for non-high risk on-duty injury and the physical exam program were all deleted. Respondent announced its plan to reduce from $5,000.00 to $2,000.00 its life and accidental death and dismemberment insurance. All of these changes were in fact implemented as reported by Respondent. Subsequent to September 29, 1976, the Respondent refused to process grievances concerning nonpayment of step increments filed by employees represented by IBF&O stating that the subject matter of such grievances was nongrievable and inappropriate. Pursuant to the step-merit increase pay plan contained in each of the parties' collective bargaining agreements, employees were eligible for an evaluation on their anniversary date and assuming that their evaluation was satisfactory, they were entitled to a step increase pursuant to a contractual salary schedule. Testimony reveals that these increases were granted almost automatically and that the plan had been operative since 1972. THE POSITION OF THE RESPONDENT The Respondent, in its answer and during the course of the hearing, denied the commission of any unfair labor practices. Respondent urges that pursuant to its inherent managerial rights in the procedure delineated in the impasse resolution provisions of the statute, the legislative body through its political process determined the level of services to be offered to the City August 5, 1976, and the substantive conditions of employment for bargaining units when they took final contract action in "the public interest". Respondent alleges further that the executive branch geared to the legislative process, conducted meaningful negotiations at the table which continued through the special master's proceedings with the PBA and IAFF and that only when the opportunity to reach agreement at the table was exhausted, an agreement had to be reached and with the budget having been determined, the City had no alternative but to eliminate the merit step plan, the grievance procedure and checkoff fee once the contract expired. With respect to the other changes, Respondent insists that such changes amounted only to implementation of its last best offer at the bargaining table and was therefore legitimate and proper. As regards the IAFF, Respondent urges that it has no standing to now complain since it waived any rights it had under the expired 75-76 collective bargaining agreement. Respecting the allegations of the IBF&O, the Respondent alleges that that organization recognized the circumstantial dilemma that the City faced and hammered out a collective bargaining agreement through the negotiating sessions. All parties agreed that after invocation of the statutory impasse procedures, the parties continued to negotiate and in fact movement was made with respect to those issues pending. The parties recognized and agreed that based on the newness of the Florida Statute which regulates collective bargaining in the public sector i.e., Chapter 447, that lessons gained from other state boards and the federal sector are instructive and are useful in resolving similar issues arising in this state. Turning to such cases, the NLRB has long recognized that an employer's unilateral action with respect to a mandatory subject of bargaining is a per se violation of Section 8(a)5 of the National Labor Relations Act, 29 U.S.C.A., Section 151 et seq. Such a position was sustained by the United States Supreme Court in NLRB v. Katz, 369 U.S. 736 (1962). In Katz, the Supreme Court was confronted with the issue of whether an employer could unilaterally change its sick leave plan and system of wage increase reached during negotiations between the employer and the bargaining agent. In reaching its decision, the court found that the employer was not at liberty to institute changes respecting mandatory subjects of bargaining during the course of negotiations. 369 U.S. at 737. The court disregarded the necessity of establishing whether or not the employer's conduct evidenced an absence of objective good faith and aid such conduct amounted to per se violations and was a circumvention of the duty to negotiate. Other states have reached a similar result in assessing whether or not such conduct amounted to a violation of the duty to bargain. The undersigned has considered the exceptions which have been recognized i.e., waiver, necessity and impasse, and concludes that they are not operative based on evidence adduced herein. Evidence reveals that while the changes were implemented herein, negotiations were ongoing and the Respondent admits that movement was in fact made while the negotiating process was occurring. It was also noted that the matters in which the Respondent unilaterally changed were principle subjects affecting the terms and conditions of employment of its employees. For example, the step-merit increase pay plan had been operative for at least 5 years and in view of the customary grant of the increase, the employees continued to expect such increases. Based thereon, and in view of the fact that negotiations were ongoing and no exceptions to the per se rule were established as being operative herein, I find that the employer's conduct in unilaterally implementing the changes except as noted hereinafter, amounted to a violation of its duty to bargain in good faith within the meaning of Chapter 447.501(1)(c) and derivatively a violation of Chapter 447.501(1)(a), Florida Statutes. Respecting the allegation that the Respondent refused to process a grievance which arose after the expiration of the parties' bargaining agreement, the undersigned is of the opinion that the employer was not obliged to continue to process grievances pursuant to the grievance arbitration machinery provision contained in an expired contract since such obligations have been universally recognized to be contractual in nature which may be terminated during the contract hiatus. (See for example Hilton Davis Chemical Co., Division of Sterling Drugs 185 NLRB No. 58.) Based on the foregoing findings and conclusions, I hereby make the following:
Recommendation Based on the foregoing findings of fact and conclusions of law I shall therefore recommend that the Respondent: Make whole any affected employees by returning to them any and all benefits, financial or otherwise, lost as a result of its unilateral action which is or has not been presently restored. Post at its facilities in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain in good faith by changing terms and conditions of employment and thereby altering the status quo during the period in which the collective bargaining process is continuing. In all other respects, I hereby recommend that the complaint be dismissed. DONE AND ENTERED this 3rd day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anthony Cleveland, Esquire Staff Attorney for William E. Powers, Jr. General Counsel Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Rod W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 John C. Wolfe, Esquire Post Office Box 2842 St. Petersburg, Florida 33731 Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue Miami, Florida 33132
Findings Of Fact The Petitioner filed its original petition with PERC on February 12, 1976. (Hearing Officer's Exhibit #1). An amended petition which includes attachments describing a proposed collective bargaining unit by reference to job descriptions was subsequently filed. (Hearing Officer's Exhibit #2). The Intervenor filed its Motion to Intervene with PERC on February 19, 1976. (Hearing Officer's Exhibit #6). The Motion to Intervene was granted by order entered April 19, 1976. (Hearing Officer's Exhibit #7). The final hearing was scheduled to be conducted on May 6, 1976, by Notice dated April 21, 1976. (Hearing Officer's Exhibit #3). The Hillsborough County Board of County Commissioners is a public employer within the meaning of Florida Statutes s447.002(2). (Stipulation, Transcript page 7 1/ ) The Petitioner is an Employee Organization within the meaning of Florida Statutes 447.002(10). (Stipulation, TR 8). Intervenor is an Employee Organization within the meaning of Florida Statutes s447.002(10). (Stipulation, TR 8). There is no contract bar to holding an election in this case. (Stipulation, TR 9). PERC has previously determined that the Petitioner is a duly registered Employee Organization. (Hearing Officer's Exhibit #4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit #5). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Intervenor is a duly registered Employee Organization. (Hearing Officer's Exhibit #8). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Intervenor filed the requisite showing of interest with its petition for intervention. (Hearing Officer's Exhibit #9). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The parties stipulated that those employees who hold the positions or job titles listed in the "raw data" section of Public Employer's Exhibit #1 with the letter designation "M", "C", "P", or "T" to the left of the job title should be excluded from any collective bargaining unit ultimately certified by PERC. The "raw data" section of Public Employer's Exhibit #1 includes a listing of all job titles under the Public Employer. The organizational structure of the Public Employer is accurately depicted in an organizational chart which was received in evidence as Public Employer's Exhibit #3. The Board of County Commissioners is the Public Employer's legislative body. The County Administrator is the Chief Executive Officer. The Public Employer is organized under the county administrator form of government. This structure was adopted in April, 1974. The seven major division heads answer directly to the County Administrator. There are 128 employees in the office of the County Administrator. Approximately half of the employees could be classified as "blue collar", and half as "white collar". A civil service system has been established in Hillsborough County. The system has the comprehensive responsibility for employee benefits and terms and conditions of employment. The system provides a uniform personnel system for all units of government in Hillsborough County, including the Public Employer in this case, the Airport Authority, the Hospital Authority, the Sheriff's Department, and others. Employees of each of these units of government participate in the same civil service system, and transfers from one unit to another occur without any loss of seniority and with aid benefits being retained. The act creating the civil service system and the rules of the civil service system were received in evidence at the hearing respectively as Public Employer's Exhibits #4 and #5. Transfers of employees among the various divisions of the Public Employer are common and under the civil service system all benefits including seniority rights are retained. The County Commission has the authority to overrule action taken by the civil service board, but that authority is rarely exercised. The civil service board would not have the authority to grant an across-the-board raise to employees covered by the system without approval of the Board of County Commissioners. The civil service board could, however, uplift a given classification without such approval. Job descriptions are prepared by personnel of the civil service board. All established positions of the Public Employer are classified by the Board. The job classifications and descriptions were received in evidence at the hearing as Public Employer's Exhibit #2. Reclassification is an ongoing process. In order to classify a position, the civil service board initially makes a study to determine what the employee does. The employee and his supervisor are interviewed. The job descriptions accurately reflect the qualifications, duties, and responsibilities of persons employed by the Public Employer. Both "blue collar" and "white collar" employees are covered by the civil service system. Terms and conditions of employment are established uniformly under this system. In recent history salary increases for employees of the Public Employer have been given on an across-the-board basis. Increases or changes in leave time, and vacation time, have similarly been acted upon on an across-the-board basis. It is difficult to determine whether some employees are "white collar" or "blue collar". For example, a Storekeeper II (classification number 0722) might be considered either white collar or blue collar. The civil service system has paygrades 10 - 37. Both blue collar and white collar employees might fall within these pay grades. Blue collar and white collar employees do not perform the same job tasks. There is some interchange of work among blue collar employees. When necessary a blue collar employee will perform the job tasks of another blue collar employee. There are a variety of persons employed by the Public Employer whose salaries are paid under various federally funded programs. There are a variety of grants with separate rules and regulations governing these employees. Federally funded employees are not classified under the civil service system. The salaries of such employees are determined by the Public Employer with the recommendation of the appropriate federal agency. Typically the pay rates are squared with the civil service equivalent, but this is frequently not possible either because of a lack of funding, or because of applicable federal regulations. Termination or disciplinary procedures for employees under federally funded programs are frequently set by federal regulation. Petitioner and the Public Employer have engaged in collective bargaining in the past. The bargaining unit used in past collective bargaining has included both blue collar and white collar employees. It appears, however, that this sort of unit was not a subject of active negotiation between the parties. ENTERED this 2nd day of July, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact On October 18, 1971, the Respondent through ordinance Number 201 (Respondent's Exhibit 1) established a civil service system. The ordinance in pertinent part provided that the civil service board shall "adopt, enact and amend a code of rules and regulations for each department covering, among other things, duties, hours of work, discipline and control, rules and regulations for appointment, employment, suspension and discharge of employees based on merit, efficiency, character and industry." Evidence reveals that the Civil Service Board took no action to "adopt, enact or amend a code" pursuant to Section 5 of ordinance Number 201 and, until the unilateral acts here complained of, Respondent had little in the way of written rules and regulations. However, within the Police Department there were "general rules of conduct" which had been promulgated by the Police Chief. (See G C Exhibit 8). Thereafter, the City Attorney drafted an ordinance amending ordinance Number 201 (see Respondent's Exhibit 8). Police Department representatives attended a meeting with the Mayor on June 15, 1975, for the purpose of discussing the proposed amendment to ordinance Number 201. After the meeting, George Slinkman, then President of the FOP, learned of its purpose and was given a rough draft of the proposed amendment. He was informed that the departmental representative had voiced objections to the Mayor concerning the amendment and on July 31, 1975, the proposed amendment came before the City Council at a workshop meeting. Present at that meeting was the President of the FOP who informed the council that the FOP was in favor of implementation of the original ordinance Number 201 rather than the proposed amendment to which the FOP objected. President Slinkman indicated that if the Respondent was proceeding with the new amendment as proposed, the FOP would like to provide some input into the proposal. No further action on the proposed amendment was taken by the City Council at that meeting nor did it appear on subsequent council agendas. On December 15, 1975, PERC certified the Charging Party as the exclusive bargaining representative of Lauderhill Police Department Employees in the following unit. INCLUDED: Police Detectives, Officers and Sergeants. EXCLUDED: Police Lieutenants, Captains and the Chief. (See G.C. Ex. 7). Approximately two weeks later, the City Service Rules and Regulations, first part, through implementing resolution Number 511 (G.C. Ex.2) was presented to the City Council by the Mayor as an implementation of Civil Service Ordinance Number 201. The rules contained therein governed personnel recruitment and examinations for positions within the City. The Mayor informed the Council that there had been no employee input on such rules. While members of the Council received their copies approximately five days prior to the December 30th Council meeting, they were informed at the meeting that copies had not otherwise been distributed. City resolution no. 511 was passed by the City Council at the December 30, 1975, meeting and became effective immediately. Apart from the fact that witnesses George Slinkman, the former President of the FOP and President Elect Ralph Dean testified that Respondent failed to request input from the FOP on the rules as adopted, they also testified that no agent of the Fraternal Order of Police was made aware of the existence of the newly passed resolution until several days thereafter. (TR.401-402, 420-422). On or about April 22, 1976, Richard Witt, FOP State President, wrote to Mayor Cipolloni advising that he had been asked to represent the Charging Party in collective bargaining negotiations with the Respondent. Witt requested a meeting with the Mayor for the purpose of discussing negotiations. In response, the Mayor suggested the parties meet during the morning of April 28, in the Mayor's office. On Tuesday night, April 27, the Mayor introduced the City Service Rules and Regulations, second part, along with implementing resolution Number 571 to the City Council. This document contained numerous proposed changes in terms and conditions of bargaining unit employees including changes in appointments, lay-offs re-employment, evaluations, physical and mental exams, weight regulations, hours of work, vacations, holidays, sick leave, suspensions, demotions and grievance procedures. The Council was informed that employees had not provided input on the rules although the Mayor expressed his understanding gained from a recently attended labor relations seminar that Respondent needed a base for forthcoming negotiations with the Charging Party. When it was learned that the Civil Service Board had not been consulted with regard to the document, the resolution was tabled and Civil Service Board members were invited to be present the following evening when it would be brought up again, Richard Witt, the Mayor, and Police Chief Ramsdell met as scheduled on the morning of April 28, 1976. Witt requested that prior to collective bargaining the City furnish him with budget documents and other materials pertaining to police officers' health program, welfare and other employment working conditions. The Mayor responded, according to Witt, that it would take some time for him to assemble such but that the information would be forthcoming. That night, the City Council passed resolution no. 571, which adopted the City Service Rules and 7Regulations, save the sick leave policies which became effective January 1, 1977. (See G.C. Ex. 6). Ralph Dean, the President of the Charging Party testified that Respondent was not requesting input from the FOP on the rules and regulations, second part, nor had FOP representatives been furnished copies of the documents prior to their adoption. Additionally, he testified that the Charging Party was not notified of the pending adoption of the document and did not obtain a copy of such until after passage on April 28, 1976. Corroborative testimony on this point was given by Councilwoman Hatcher and employees Dean and Slinkman. The parties' first negotiation session was held on May 22, 1976 and at that time the Charging Party advised the Mayor and the City Attorney that in their opinion, some of their proposals were in violation of existing City ordinances, including the rules and regulations first and second parts. Two days thereafter, on May 24, 1976, the Charging Party filed with the Commission the instant unfair labor practice charges. The parties were again scheduled to meet on May 28, 1976. Upon receipt of the unfair labor charges, the City Council met with the Mayor in "executive session" and it was then decided that Respondent would "suspend bargaining" until the charges were disposed of. The Mayor arrived at the May 28th session and informed the Charging Party that Respondent would not return to the bargaining table until the pending charges had been resolved. A second charge was filed against the Respondent alleging essentially that the Respondent's suspension of bargaining constitutes a refusal to bargain in good faith within the meaning of Section 447.501(a)(c) of the Act. The evidence also reveals that on approximately March 30, 1976, the Respondent adopted a pay plan for its police department employees who are in the bargaining unit in which the Charging Party was certified to represent. The pay plan, as adopted, represented a reduction in the existing pay plan. In adopting this plan, Frank C. Brown Associates, a management consulting firm, was commissioned to conduct a study to devise a pay plan for all city employees. The evidence reveals that the wage and job classification plan prepared by Frank C. Brown and Associates was not compiled based on any joint efforts by the Charging Party who had been certified to exclusively represent the police unit employees. Specifically, Ralph Dean objected to the new pay plan and in fact, Mayor Cipolloni testified that he gave no direction to Frank C. Brown and Associates to seek any input from the Charging Party and/or its agents. Based on the Charging Party's objections to the pay plan as submitted by Frank C. Brown on February 9, 1976, one pay grade was added to each of the ranks. The plan was submitted to the City Council on March 30, 1976 and was made effective immediately for all employees. Representatives of the Charging Party were present at this meeting and objected to the implementation thereof to no avail. Thereafter, and during the second negotiation session on May 28, 1976, the Respondent suspended negotiations with the Charging Party based on the fact that the Charging Party had filed unfair labor practice charges with the Commission.
Conclusions The essence of the collective bargaining relationship between public employers and its employees in the State of Florida is outlined in Chapter 447.309(1), Florida Statutes (1975). The dictates there mandates a bilateral decision making process which becomes effective after an employee organization has been certified by the Commission. At that juncture, the public employer is no longer free to make unilateral determinations with respect to items which are considered "wages, hours, and terms and conditions of employment". See for example District School Board of Hillsborough County and Hillsborough C.T.A., PERC order no. 76U-1181 (October 4, 1976). The Charging Party and/or its agents objected to the City Service Rules and Regulations first and second parts each time they were brought up before the Council. Respondent at no time requested any input from the Charging Party's agents respecting its position in fulfilling its obligation to represent the unit employees it was certified to represent. The Respondent's affirmative defense that the Charging Party's members were advised and participated in the enactment of the City Service Rules and Regulations and the pay scale as it relates to unit employees was considered. However, when an examination of the positive duty placed on the Respondent as it relates to its duty to bargain with the certified representative, such a position fails to withstand scrutiny and amounts to conduct representing an abrogation of its duty to meet with and confer with the designated certified representative. Absent an impasse, necessity or an express or implied waiver (all of which are absent here), the employer was expressly obligated to refrain from taking the unilateral action which it took on December 30, 1975, on March 30, 1976 and on May 28, 1976. Under these circumstances, and in the absence of any evidence which would permit the employer to unilaterally act as stated above, the conclusion is inescapable that the Respondent consciously abrogated its duty as set forth in Chapter 447.309(1), F.S., and engaged in conduct violative of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it be ordered to post at its facilities, in conspicuous places, on forms to be provided by the Commission, a notice substantially providing: that it will bargain collectively, upon request, with the Charging Party as the exclusive bargaining representative of the unit employees as stated above; that it will not make unilateral changes in wages, hours, and other terms and conditions of employment of said employees and that it will not suspend bargaining or fail to meet and bargain collectively with the exclusive bargaining representative unless directed to do so by the Commission. RECOMMENDED this 27th day of September, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Irving Weinsoff, Esquire Suite 804, Roberts Building 28 West Flagler Street Miami, Florida 33130 Bruce A. Leinback, Staff Attorney for William E. Powers, Jr., General Counsel 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Anthony J. Titone, Esquire 6299 West Sunrise Boulevard Suite 205 Sunrise, Florida 33313
Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 29, 1975. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by Notice dated January 22, 1976. (Hearing Officer's Exhibit 2). The City of Sunrise is a Public Employer within the meaning of Florida Statutes s447.002(2). (Stipulation, Transcript page 7) 1/ The Petitioner is an association which is seeking to represent public employees in matters relating to their employment relationship with a public employer. The Petitioner requested recognition from the Public Employer as the exclusive bargaining representative for employees in the Public Employer's Utilities Department. The request was denied by the Public Employer. There is no contractual bar to holding an election in this case. (Stipulation, TR 7, 8). There is no pertinent collective bargaining history that will affect this case. (Stipulation, TR 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer operates under the form of government commonly referred to as the "strong Mayor-Council form of government". The City Council serves as the legislative body of the Public Employer, and the Mayor is the Chief Executive Officer. Public Employer's Exhibit 1 accurately describes the organization of the Public Employer. The Public Employer is roughly divided into twelve different departments, excluding the Police and Fire Departments. Each department is headed by a department head who answers to the Mayor. The Public Employer employs approximately 200 persons, approximately 25 percent of whom are clerical employees. There are approximately 55 to 60 persons in the bargaining unit proposed by the Petitioner, 12 to 15 of whom are clerical employees. The department heads are generally responsible for the day-to-day functioning of their department. The department heads will initiate hiring, firing, discipline, and promotion of employees; however, such action must be approved by the Mayor. Respecting hiring and firing, the Mayor goes against the recommendations of the department heads approximately 30 to 40 percent of the time. With respect to disciplinary action, the department head submits recommendations to the Mayor in the form of a memorandum. In the Water and Sewer Department the recommendation would go from the Director of the Utilities Department to the City Engineer to the Mayor. The department head will make all decisions respecting shift changes, lunch hours, and vacations; however, an aggrieved employee can always go to the Mayor. The department heads regularly evaluate employees in their department, and make recommendations respecting merit pay increases based upon the evaluations. The Mayor has a practice of always approving recommendations for merit pay increases if money is available in the budget. The Mayor is responsible for preparing a proposed budget to be submitted to the City Council. The department heads provide the Mayor with information respecting the budgetary needs of their departments. The department heads meet on a monthly basis as a group to discuss safety programs. Safety policies are formulated at these meetings. The department heads are responsible for granting leave time; however, this responsibility is apparently delegated to the chief operator in the Water and Sewer Department. Public Employer's Exhibit 2 is a computer read-out of all of the Public Employer's employees other than those in the Police and Fire Departments. Those employees who the Public Employer considers to be managerial, confidential, or professional employees within the meaning of the Public Employees Relations Act are designated respectively on the exhibits by the hand written letters "M", "C", or "P". The hand written numbers on Public Employer's Exhibit 2 refer to the page number where the job description of the employee appears in Public Employer's Exhibit 3. Public Employer's Exhibit 3 is a compilation of the job descriptions of all of the Public Employer's employees other than those in the Police and Fire Departments. The descriptions were prepared in January, 1976, and accurately describe the duties, responsibilities, and day-to-day activities of the employees. All employees of the Public Employer other than those in the Police and Fire Departments are compensated under the same pay plan, and receive the same benefits. All employees are given eleven paid holidays, ten paid sick days, and ten paid vacation days annually. All employees participate in the same hospitalization and pension plans. All employees are issued uniforms and safety equipment by the city; however, clerical employees are responsible for maintaining their own uniforms. Christmas parties and other social functions for the employees are open to all employees of the city. There are no functions open to the employees of only one department. Transfers of employees from one department to another are fairly common. Job openings and promotions in a department are always advertised and made available to employees in all departments before they are advertised or made available to non-employees. The departments of the Public Employer generally work together. Many employees in the Public Works Department have the same job description as employees in the Utilities Department. When necessary, employees in one department will assist in performing the functions of another department. The Utilities Department is divided into the Gas Department, the Water and Sewer Field Maintenance Department, and the Water and Sewer Treatment Plants. These departments produce services for a fee to the inhabitants of the City of Sunrise, as do the Spring Hill Country Club and the Recreation Department. Employees in the Water and Sewer Departments are on duty 24 hours daily. Each employee works a fixed 8-hour shift. Most other employees of the Public Employer work a day-shift only. Employees in the Water and Sewer Department do not generally work in one place. Clerical employees generally work full time at City Hall. It is apparent that transfers between manual positions and clerical positions are rare, and have probably never occurred. The work performed by clerical employees is different than the work performed by employees in the Water and Sewer Departments. The only testimony presented at the hearing respecting the desires of the employees was that employees in the Water and Sewer Departments would like to have their own bargaining unit. The Utilities Department is separately budgeted, and the only employee who testified expressed an interest in using the revenue of the department for the benefit of the employees in the department. All employees of the Public Employer are eligible for membership in the Petitioner. DONE and ORDERED this 6th day of April, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Broward County and Broward County Board of County Commissioners is a Public Employer within the meaning of Section 447.203(2), F.S. (stipulation of parties). The Teamsters Local Union #769, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is an Employee Organization within the meaning of Section 447.203(10), F.S. (stipulation of parties). In January, 1974, thirty three airport security police employees of the Respondent who worked at the Ft. Lauderdale- Hollywood International Airport and North Perry Airport signed cards authorizing Teamsters Local Union #769 (hereinafter "Union") to represent them for the purpose of collective bargaining with the Respondent (Complainant's Exhibit 6, testimony of Mr. Sack). By letter of January 7, 1974, to Mr. Robert R. Kauth, Broward County Administrator, the Union advised that it represented the airport security employees police and requested that the Respondent recognize the Union as the collective-bargaining representative of the employees and enter into negotiations for the purpose of obtaining a collective bargaining agreement. The Union further offered to demonstrate evidence that it represented the aforesaid employees (Complainant's Exhibit 7, testimony of Mr. Sack). Mr. Kauth responded in a letter dated January 28, 1974, and advised the Union that its letter had been referred to the Board of County Commissioners, but in view of "existing state law", the Commission was unable to and could not recognize the Union as the collective bargaining representative of the airport employees in question (Complainant's exhibit 8). The Union responded by a letter of January 30, 1974, requesting that Mr. Kauth identify the "existing state law" referred to in his letter and advised that the International Union's Constitution specified that the Union did not assert the right to strike amoung employees in the public sector. It also informed Mr. Kauth that the Florida Constitution and statutes guarantee public employees the right to organize and to bargain collectively through a representative of their choice (Complainant's Exhibit 9). Receiving no further response from the Respondent, the Union filed a complaint for declaratory relief and mandatory injunction in the Circuit Court of the Seventeenth Judicial Circuit for Broward County requesting the Court declare that the Union be recognized by the Respondent as the collective bargaining representative for the airport security police employees who had designated the union to represent them, and directing and requiring the Respondent to enter into collective bargaining with the Union as required by Art. 1, Section 6 of the Florida Constitution, and Section 839.221(2), F.S. On July 29, 1974, the Court entered a final decree requiring Respondent to grant recognition to the Union pursuant to Art. 1 Section 6 of the Florida Constitution "as the collective bargaining representative or agent of those airport security police officers employed by the Defendants at the Ft. Lauderdale-Hollywood Airport and North Perry Airport, who, are members and who remain members of the Plaintiff or who have freely and expressly given their consent to the Plaintiff labor organization to act as their collective bargaining agent" (Complainant's Composite Exhibit 11). As a result of the court order, the parties began bargaining, and proposals and counter-proposals were exchanged during the period commencing August, 1974 (Complainant's Exhibit 13, testimony of Mr. Sacks). At one of the negotiating sessions in October, the Respondent gave the Union its proposal for a recognition clause in the eventual agreement, which provided that the Respondent recognized the Union as the collective bargaining representative for those employees who were and would remain members of the Union, and that it would continue recognition after January 1, 1975 for the term of the agreement provided that the Union complied with all state requirements pertaining to recognition as contained in Chapter 447, F.S., and that otherwise recognition and the agreement would cease forthwith (Complainant's Exhibit 14, testimony of Mr. Elster). The Union thereupon filed a motion in the Broward County Circuit Court to hold the Respondent in contempt for violation of the previous final decree. The court, on October 30, 1974, citing Sections 447.009 and .022, F.S., found that the Respondent's proposal as to recognition was not a proper subject of collective bargaining at that time and ordered that it be stricken as a proposal (Complainant's Exhibit 15). At the twelfth negotiation session held on January 8, 1975, the parties reached a proposed collective bargaining agreement, with representatives placing their initials on a rough-draft (Complainant's exhibit 16). Counsel for Respondent agreed to provide a final draft in one week which thereafter was to be submitted to the county commission and the Union membership for approval and ratification. On January 17, the employees in the unit voted to accept the, agreement and new authorization cards were executed by the employees. At this time there were 49 employees in the unit and 46 authorization cards were signed at this time (Complainant's Exhibit 18). Further correspondence and discussions ensued, resulting in agreement on a final draft of the proposed agreement (Complainant's Exhibits 17-21). Article 1 of the proposed agreement concerning recognition provided that the county recognized the Union as the collective bargaining representative of all airport security officers employed by the county at the airports in question "who are members and who remain members of the union, or who have freely and expressly given their consent to the Union to act as their collective bargaining agent". The draft was approved by telegram from the Union's Counsel on February 20th, A except for failure to put the effective date of the agreement, i.e., January 8, 1975 in the draft (Complainant's Exhibit 22). Upon request of the Union, the matter was placed on the agenda of the Board of County Commissioners for its March 4th meeting. By letter to the County Administrator, dated February 28, Respondent's counsel advised that the original recognition had been by court order to recognize the Union "for members only"; that new state labor legislation required that a labor organization register with and be certified by the Public Employees Relations Commission as the majority representative of employees in an appropriate bargaining unit before a legal obligation by a public employer to recognize and bargain with the Union is established; that the Union had not met the registration and certification requirements and that the County was currently appealing in the Fourth District Court of Appeals the order of the lower court which had stricken one of the Respondent's contract proposals during negotiations. He therefore stated that it would be appropriate for the County Commission to consider the appeal before rendering a decision on the proposed agreement (Complainant's exhibit 23). The County Commission, at its meeting, deferred action on the agreement because the Union had not been registered nor certified under current law, and directed its counsel to request an advisory opinion from PERC on the status of the Union in reference to the state statute (Respondent's Exhibit 2). By letter, dated March 12, counsel for the Respondent sought such an advisory opinion from PERC (Respondent's Exhibit 13). Notwithstanding the lack of action by the County Commission, Respondent's Director of the Division of Airports determined to observe the terms of the proposed contract as to various working conditions (Complainant's Exhibit 24). The Union had made an abortive attempt to register with PERC on June 28, 1974, but this was before PERC had been organized and apparently the request was never received (Complainant's Exhibit 12, testimony of Mr. Sack and Mr. Elster). On March 10, 1975, the Union again submitted registration materials to PERC and, by letter of March 25, 1975, the Commission advised the Union that it had met the registration requirements of the statute (Complainant's Exhibit 28). On April 18, 1975, the Union filed a Recognition - Certification petition with PERC seeking certification of the airport security police personnel (Complainant's Exhibit 30), and on May 8, 1975, the Union filed the unfair labor charge against the Respondent alleging that it had violated Section 447.016(1)(a)(c), F.S., by attempting to withdraw recognition that was previously established between the parties and by refusing to sign a final agreement which had been agreed upon on January 8, 1975, (Complainant's Exhibit 1). On or about May 16, 1975, the Union filed with PERC a Motion to Waive the Posting Requirements of Recognition Acknowledgement and Motion to Expedite Processing of Unfair Labor Practice Charges (Complainant's Exhibit 31). In this motion, the Union requested that the posting requirements of recognition acknowledgement under PERC Rule 8H-200.4 (now 8H-2.04) be waived and certification issued based on the fact that it would be inequitable and against the intent and purposes of the statute to deny certification under Section 447.009(1) because recognition had been obtained by court order and the Union represented a majority of the employees in the unit. However, the petition for Recognition - Certification was withdrawn by the Union on June 3, and by letter of June 10, PERC advised it that the withdrawal request had been approved (Complainant's Exhibit 32). The record does not disclose that PERC took any action on the Union's aforesaid motion to waive the posting requirements of recognition-acknowledgment. In April and early May, the parties met and negotiated over a "wage reopener" provision contained in the proposed collective bargaining agreement. However, on May 19, Respondent's Counsel declined to grant a request for a further meeting stating that since the Union had rejected counter-proposals of the Respondent's negotiating team on April 21, it was felt that further meetings would be unproductive (Complainant's Exhibit 25-27). On July 31, 1975, the Union filed an amended unfair labor practice charge against the Respondent and, on August 8, the Acting General Counsel of PERC issued a Complaint and Notice of Hearing which alleged unfair labor practices in violation of Section 447.501(1)(a) and (c) by reason of Respondent's refusal to execute the agreed upon contract and by unilaterally terminating negotiations with the Union thus having failed and refused to bargain in good faith (Complainant's Exhibit 1). On September 12, 1975, subsequent to the hearing, the Fourth District Court of Appeal rendered an opinion that the points on appeal were moot and that jurisdiction of the issues involved between the parties is in PERC pursuant to Section 447, F.S., and dismissed the appeal of Respondent concerning its proposed recognition clause (Hearing Officer's Exhibit 1).
Recommendation It is recommended that the Public Employees Relations Commission, pursuant to Section 447.503(4)(b) issue an order dismissing the charges. DONE and ENTERED this 7th day of November, 1975, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Elster, Esquire MAMBER, GOPMAN, EPSTEIN & FOOSANER 16870 Northeast 19th Avenue North Miami Beach, Florida 33162 Thomas W. Burke, Esquire 2005 Apalachee Parkway Suite 105 Tallahassee, Florida 32301 Joseph A. Caldwell, Sr., Esquire Suite 600, 100 Biscayne Boulevard North Miami, Florida 33132
Findings Of Fact The Orlando Police Department is organized on paramilitary lines and headed by a Director of Public Safety. Directly under him comes the Chief of Police who is the principal administrative officer of the department. His immediate staff which consists of 1 captain, 7 lieutenants, sergeants and patrolmen, includes an Administrative Aide who holds the rank of lieutenant and attends all staff meetings conducted by the Chief. In such position he is privy to all classified information received by the Chief and would appear to fit the definition of "confidential employee" under Section 447.02(5), Florida Statutes. Also in the Chief's Staff is a Research and Development Section and a Special Investigative Services Division. The former is headed by a lieutenant and is primarily responsible to research, develop and prepare all directives, regulations and general orders for the Department. The Special Investigative Services Division is headed by a Captain and contains an Internal Affairs Section, a Staff Inspection Section and an Intelligence Section, each headed by a lieutenant. The Internal Affairs Section handles all internal investigations of a confidential nature and monitors all disciplinary cases involving the police department. The staff Inspection Section conducts routine inspections of police units to insure compliance with guidelines and orders of the department. The Intelligence Section gathers information on organized crime and criminal acts on a larger scale than those routinely handled by the C.I.D. They interface with law enforcement agencies of the Federal government and keep the Chief apprised of developments. The Administrative Service Bureau is headed by a major and staffed with two captains, two lieutenants, 3 sergeants, seven patrolmen, sixteen civilians, cadets, and recruits for training. From this Bureau is assigned a patrolman as aide to the Mayor. This Aide attends all meetings involving the Mayor and the police department and is privy to all disciplinary actions within the police department that reach the attention of the Mayor. He also acts as courier between the Mayor and Police Department for confidential police records. Within the Administrative Services Bureau are numerous divisions and sections. The Personnel and Training Division handles personnel accounting, payroll records, training and records of personnel in detached service. Under this division is the Community Relations Section, Training Section and Personnel Section. The general function of the Community Relations Section is to handle public relations for the police department. This involves presentations at schools, civic associations, press releases, etc. The Training Section conducts recruit training and provides range the target practice ranges. Recruits are graded by the training officers, and these grades are based upon written exams given to all recruits. Similarly, the scores attained on the firing range are certified by the range officer and become part of the personnel record of the individual. The staff Support Bureau is headed by a major and includes two captains, one lieutenant, five sergeants, 14 patrolmen and 70 civilians. A forthcoming reorganization will reduce the number of patrolmen to two. Numerous divisions and sections come under the staff Support Bureau. In all of the above Bureaus, the personnel of which the City seeks to have excluded from the approved bargaining unit, the police officers generally wear civilian clothes and work a regular 40 hour workweek, 8:00 A.M. to 5:00 P.M., Monday through Friday. In this regard they differ from the uniformed personnel in the Field Operations Bureau who maintain personnel on duty 24 hours per day 7 days per week. The Field Operations Bureau contains the majority of the sworn officer personnel and is comprised of 1 major, 2 captains, 15 lieutenants, 44 sergeants and 285 patrolmen. In addition, there are 18 civilian positions consisting of secretarial personnel and parking meter attendants. A patrolman is assigned as aide to the major. He prepares written orders and letters put out by the major and reviews all disciplinary actions within the Bureau. One patrolman is assigned as court liaison and assists the State Attorney's office in scheduling witnesses and performing general liaison between the department and the State Attorney's office. The Field Operations Bureau consists of the Criminal Investigative Division (C.I.D.) and the Uniform Division. The former are plain clothed police officers divided into a youth section, vice section, crimes-again-person section, crimes-against-property section and the general assignment section. The latter encompasses the control section, jetport section, special operations section, and traffic section. Watches are maintained with 60-80 patrolmen assigned at one time who stand an 8-hour tour of duty with three watches assigned daily. Each watch has seven squads or sections with a sergeant in charge of each squad. The Detention Bureau has 1 lieutenant, 6 sergeants, and 61 civilians assigned. The sergeants work regular 8-hour shifts and review every arrest report to determine appropriateness and legality. One sergeant is responsible for the protection and custody of evidence in criminal cases and control of lost and found property. They supervise the performance of the assigned civilians. Since the duties and responsibilities of the various ranks are a necessary ingredient in the determination of their exclusion or inclusion in the appropriate bargaining unit, the evidence relating thereto will next be presented. Sergeants are the lowest rank the City contends should be excluded for the reason that there would be a conflict of interest between sergeants and patrolmen if they are in the same bargaining unit. Accordingly these duties and responsibilities will be first discussed. Sergeant's duties and responsibilities are generally contained in Section 100, Regulations of the Orlando Police Department Exhibit (7) which list them under Supervisory Members of the Department. Supervisors are therein described as employees having as one of their major responsibilities the general authority in the interest of the Orlando Police Department to direct other employees or members, to review grievances or the recommendations of such action, and to make effective recommendations regarding disciplinary matters, transfers, dismissals, etc. In carrying out their assignments sergeants prepare evaluation reports on patrolmen assigned under them. In order for patrolmen drawing specialist pay to continue to do so they must receive satisfactory performance ratings. Unfavorable efficiency reports affect eligibility for promotion exams and rank certification. Sergeants have authority to mete out punishment for minor transgressions. The highest level of punishment that can be awarded by a sergeant is a letter of censure which is placed in the personnel record of the recipient. The sergeant in charge of a patrol section prepares the zone assignment sheet (Ex. 31) wherein he assigns sectors and duties to the patrolmen in his section. In making these assignments independent judgment is exercised. In the event a patrolman reports out of uniform or is otherwise unprepared for assignment to duty the sergeant has the authority to relieve the man from duty without pay and send him home to get into proper uniform. Personnel requests such as transfers, leave, etc. are endorsed by those in the chain of command until they reach the approving authority. The sergeant's endorsement is effective in approving or disapproving the request. Sergeants can submit recommendations for commendation of the patrolmen under him. He also has authority to authorize up to one hour overtime without higher approval and to grant compensatory time off. Sergeants and above do not qualify for overtime pay. When the Lieutenant Watch Commander is absent from duty the senior sergeant assumes command and exercises the watch commander's authority. Sergeant's uniforms were changed from brown to white shirts in late 1974. At the same time they were authorized to discipline patrolmen for minor transgressions. Uniforms of lieutenants and above have consisted of white shirts for many years. On the other hand all members of the police force are paid at the same interval, have the same fringe benefits, all must maintain the same basic training standards, all are classified by the Civil Service System as "police officers", all are eligible for revenue sharing incentive pay from the State, all are paid from the wage classification plan, and all have the same powers of arrest. Article XIII of the Orange County PBA By-Laws provides for grievance procedures whereby a patrolman could file a grievance against a fellow member in the same union who disciplined the patrolman and seek to have the fellow member removed from the union. Art. XIII Section 2 provides: Any member of this association who voices criticism of another member, group of members or the association itself, without first seeking recourse through the provisions of Section 1 of this Article, shall be sub- ject to suspension of his membership, or ex- pulsion from the association..." This provision has not been exercised in the Orlando Police Department and the president of petitioner stated the interpretation of the bylaw provision is that grievance there refers to social rather than departmental action. Other members of petitioner testified that they didn't feel that membership in PBA would interfere with their carrying out duties that involved disciplining a fellow member of the PBA. With respect to those ranks above sergeant, little evidence was presented of specific duties and whether these duties required a finding that these officers are managerial employees. The general duties of these ranks were presented in Section 100, Exhibit 7. Furthermore, throughout the testimony was the clear import that majors had more authority and responsibility than captains who had more authority and responsibility than lieutenants who had more authority and responsibility than sergeants.
Recommendation In The Matter of City of Bridgeport (Police Department) and Bridgeport Local No. 1159, Selected Decisions [paragraph 49,868] the Connecticut Board held that the fact that sergeants, lieutenants, and captains of a city's police department exercised supervisory functions did not exclude them from the benefits of Connecticut's Municipal Employees Relations Act (MERA). Here these same officers had voted a year earlier not to be included in the overall bargaining unit and the Board appears to have affirmed the prior determination that the MERA did not preclude supervisory employees from being in the same bargaining unit as rank and file employees. The provisions of the MERA so construed does not appear in the decision. In Town of Stratford and Stratford Police Union, No. 407, 63 LRRN 1124 (1966) the Board determined that an election was proper for the captains and lieutenants to vote whether they wanted to be included in an overall police unit or to be separately represented by a unit of supervisors. The expressed policy of the Board in determining appropriate bargaining units is that the unit should be the broadest possible which will reflect a community of interest. At the same time it respects the special interests of certain groups of employees. I am not aware that such a policy has been announced by PERC. In the Matter of Borough of Rockway and Patrolmans Benevolent Association, Local 142, LLR paragraph 49,999 A.22 the New Jersey Board held that lieutenants and sergeants were properly included within a bargaining unit with patrolmen. The Board found that the lieutenants and sergeants lacked an authority to effectively hire, fire or discipline patrolmen. In the Matter of Kalamazoo Township and Lodge No. 98 F.O.P., L.L.R. paragraph 49,996.20 (1969) the Board held that although corporals had the authority to suspend patrolmen for breach of department duties this was always reviewed by higher authority; and since corporals were engaged in the exact same work as police patrolmen for the majority of their working time, they did not identify or align themselves with management. Therefore, they were not supervisors and were properly included within the proposed unit with the patrolmen. In accordance with Section 447.009(3)(a), Florida Statutes, no recommendations are submitted. DONE and ENTERED this 30th day of June, 1975. K. N. Ayers Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee, where Respondent has confessed to a felony shoplifting charge as part of a deferred prosecution agreement pursuant to which criminal charges will be dismissed if Respondent satisfactorily complies with the agreement.
Findings Of Fact The evidence presented at final hearing established the facts that follow. At all times material, Respondent Cassandre Lawrence (“Lawrence”) was employed in the Palm Beach County School District (the “District”) as a paraprofessional (teacher’s aide), a position which she had held for approximately six years before the events that gave rise to the instant proceeding.1 Lawrence was working at Northmore Elementary School during the 2000-01 school year. On December 26, 2000, Lawrence and a female companion were arrested at the Boynton Beach Mall on shoplifting charges. Lawrence was charged with grand retail theft, which is a third degree felony. Pursuant to Board Rule 6Gx50-3.13,2 all District employees must report any arrests, convictions, “commitment[s] to a pretrial diversion program,” or pleas of any kind within 48 hours after the reportable event.3 At the time of Lawrence’s arrest, however, the District’s schools were closed for Christmas vacation, so she did not report the incident immediately. Instead, on January 9, 2001——Lawrence’s first day back at work after the holidays——Lawrence submitted to the District’s Chief Personnel Officer a written disclosure of her arrest, which stated: On December 26, 2000 I was shopping in the Boynton Beach Mall with a friend. Unknowingly, she put some items in my shopping bag. I was falsely arrested. My friend has admitted doing so [sic]. I felt that being an employee of the School Board that [sic] I should report this matter. This matter would be dissolved [sic] very soon. I have never been in any trouble or accused before. This situation has really been bothering me. After this matter has been straightened out I will be forwarding you the necessary paper work. Lawrence’s statement was provided to the District’s Office of Professional Standards on January 10, 2001. That office opened a case file on Lawrence. On March 29, 2001, Lawrence reached an agreement with the state attorney that provided for her referral to a pretrial intervention program (“PTI”). See Section 948.08, Florida Statutes (governing pretrial intervention programs). This agreement was reduced to writing on April 3, 2001, when the parties executed a contract they called the Deferred Prosecution Agreement (“Agreement”). Under the Agreement, the state attorney promised, in return for Lawrence’s agreement to abide by conditions specified in the Agreement, to defer the prosecution of Lawrence for a period of 18 months from the date of April 3, 2001. Further, the state attorney agreed that if Lawrence complied with the conditions of the Agreement, then “no criminal prosecution concerning [the shoplifting] charge [would] be instituted[.]” By signing the Agreement, Lawrence expressly waived her constitutional rights to a speedy trial. On the same day she executed the Agreement, and in consideration thereof, Lawrence signed this statement: I, Cassandre Lawrence freely and voluntarily admit that I am guilty of the allegations [of grand theft] contained in [the charging document]. (This statement will be referred to hereafter as the “Confession.”)4 Sometime shortly afterwards——the evidence does not reveal the exact date——Lawrence reported to the District that she had entered into a PTI pursuant to the Agreement. As a result, on April 19, 2001, Mr. Holeva of the District's Office of Professional Standards met with Lawrence, her attorney (who participated by telephone), and her union representative,5 to investigate the circumstances surrounding the shoplifting charge against Lawrence. In this meeting, Lawrence acknowledged that, to enter into a PTI, she had signed the Confession wherein she admitted guilt to the felony theft charge——a so-called “435 offense.”6 Following this interview, the Office of Professional Standards referred Lawrence’s case to the Case Management Review Committee (the “Committee”). The Committee is composed of a dozen senior District employees who are responsible for determining whether probable cause exists to discipline an employee suspected of having engaged in misconduct. Upon review, the Committee determined that Lawrence had violated Board Rule 6Gx50-3.13 by failing to timely report her arrest and later referral to a PTI within 48 hours after these respective events had occurred. (Yet, it should be noted, Lawrence had not concealed the material facts, nor had she attempted to mislead the District.) However, the Committee considered Lawrence’s purported failures strictly to follow the notification rule to be, collectively, a minor infraction that, without more, would have warranted at most a written reprimand. Much more important, the Committee found that Lawrence was guilty of a “435 offense.” Because the District’s settled policy and consistent practice is to terminate any employee who has committed a “435 offense,” the Committee recommended that Lawrence’s employment be terminated. The Superintendent accepted the Committee’s recommendation that Lawrence be fired. By letter dated June 29, 2001, the Superintendent notified Lawrence that he would recommend to the Board at its July 11, 2001, meeting that she be suspended without pay pending dismissal. The Board subsequently accepted the Superintendent’s recommendation. Lawrence has been suspended without pay since on or about July 11, 2001.
The Issue The issue is whether the Respondent is guilty of misrepresentation, fraud, dishonest dealing, culpable negligence, or breach of trust in a business transaction contrary to Section 475.25(1)(b), Florida Statutes; and Whether, if the above allegations are proven, the Respondent is so incompetent, negligent, dishonest or untruthful that the money, property transactions and rights of investors or others with whom he may sustain a confidential relation may not be entrusted to him by virtue of a second violation of Chapter 475, Florida Statutes, contrary to Section 475.42(1)(o), Florida Statutes.
Findings Of Fact The Respondent, Robert E. McMillan, III, is and was at all times material to the administrative complaint a licensed real estate broker holding license number 0317361. The Commission is charged under Chapter 475, Florida Statutes, with regulation of real estate brokers and salesmen. The Respondent was previously disciplined by the Commission by a Final Order dated September 2, 1992 in which the Commission found the Respondent guilty of violation of Sections 475.25(1)(b),(e),(k), and 475.42(1)(e), Florida Statutes. Dr. Manuel S. Couto and his wife desired to have a home built on Block 2, Lot 12 Marineland Acres, 1st Addition, Plat Book 5, page 50. They approached Respondent's business, which was a construction and real estate development concern, and spoke with Randy Joyner, a salesman employed by the Respondent and the brother of the Respondent's late wife, who had sold the Coutos the lot. The Respondent offered to build a particular house for the Coutos for $50,000. The Coutos counteroffered to purchase the house for $30,000 cash and to convey to the Respondent two lots described in the contract as: Section 29A, Block 7, Lot 4, Palm Coast, Florida, and Section 29A, Block 7, Lot 5, Palm Coast, Florida. Dr. Couto bought Lot 4 for $3,900, and Lot 5 for $4,900; however, he paid a total, including interest, of $15,264.80 for the two lots. Palm Coast is a real estate development located in the western portion of Flagler County in which the Respondent's business was located, and he was not particularly familiar with the area in which the Coutos' lots were located. The Respondent accepted the counteroffer, above, upon the recommendation of Joyner. The Respondent believed the lots in question to be valued at $10,000 each. The Coutos paid the Respondent $30,000, and the Respondent began construction. Shortly after commencement of the project, it was determined that the Respondent would have to do considerable site work in order to install a septic tank. The costs of this work, $5,400, was paid by the Respondent, and Dr. Couto wrote the Respondent an additional check in the amount of $1,900. In addition, Dr. Couto made numerous changes to the plans which raised the costs of the construction for which he was obligated to pay under the contract. Work progressed on the project until the Respondent became aware that the lots which were to be transferred were not valued at $10,000. A dispute arose between the Respondent and the Coutos regarding the Coutos paying the difference between the value of the lots and $20,000. When the dispute went unresolved, the Respondent ceased work on the project. Thereafter, the Respondent again began work on the project because of Dr. Couto constant badgering; however, the underlying disagreement about the value of the lots was unresolved. The Respondent finished the house at a cost to him of $55,004.82, and the Coutos paid him $38,425. When the second lot at Palm Coast was to be transferred, it was arranged to have the Coutos transfer the lot directly to the new purchasers, with the money, $4,690.37, due to the Respondent to be held in escrow pending payment of the subcontractors and materialmen building the Coutos' house. Dr. Couto prepared an affidavit that all the contractors had been paid for the Respondent to sign. It is this affidavit dated January 16, 1992, which purports to bear the signature of the Respondent notarized by Martha B. Bennett, Notary Public. The Respondent denies that the document bears his signature, and asserts that Dr. Couto signed the affidavit. Dr. Couto states that he saw the Respondent sign it, and the Respondent's secretary notarize it. The authenticity of this document was put in question by Respondent's answer to the administrative complaint, and the notary was not called as a witness. Dr. Couto and his attorney had attempted unsuccessfully to obtain similar affidavits from the Respondent, who had refused to sign them. At the time the affidavit was prepared, Dr. Couto was aware that materialmen had not be paid. The purported purpose of the affidavit was to release the funds retained by the title company. However, it was Dr. Couto who prepared the affidavit, and it was not presented to the title company to obtain the release of the funds. The affidavit was retained by Dr. Couto, and presented to the title company in June 1992, by Dr. Couto together with letters from Respondent stating that he was not going to pay the subcontractors. Upon the affidavit and letters, the title company paid the $4,690.37 to Dr. Couto. Given the background of the affidavit, the contradictory testimony about its execution, and the absence of additional authentication, the signature of the Respondent is not accepted as genuine. In spring 1992, various materialmen and subcontractors filed liens on the house being built for the Coutos. In order to clear the title to his home, Dr. Couto had to settle with the lienholders and pay them $14,878.18. As stated above, Dr. Couto received the proceeds from the sale of the second lot, $4,690.37. Subsequently, the matter was brought to the attention of the state's attorney. The Respondent paid the Coutos $3,000 in cash, and the state's attorney dropped the case against the Respondent after handwriting analysis was completed on the affidavit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the administrative complaint be dismissed. DONE and ENTERED this 29th day of November, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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, 1994. APPENDIX The Petitioner submitted proposed findings which were read and considered. The following states which of the findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 9 Paragraph 5,6 Paragraph 8,9,10 Paragraph 7 Rejected as contrary to better evidence, See Paragraph 13 Paragraph 8 Paragraph 15 Paragraph 9 Paragraph 16 COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Clifford A. Taylor, Esquire 507 East Moody Boulevard Bunnell, Florida 32110 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
