The Issue Whether Petitioner abandoned her position of employment with Respondent and resigned from the career service.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was employed the Department of Health and Rehabilitative Services (DHRS) at South Florida State Hospital (SFSH) as a Human Services Worker I, a career service position. Petitioner was absent without authorized leave or explanation on February 6, 7, 8, 9, 10, and 13, 1991. Petitioner was not at work on February 11 and 12, 1991, but those were scheduled days off. On February 13, 1991, David A. Sofferin, Hospital Administrator at SFSH, notified Petitioner by letter that DHRS had no choice but "... to consider you to have abandoned your Human Services Worker I position and resigned from the State of Florida Career Service at South Florida State Hospital. ..." This letter also advised Petitioner of her right to challenge this action. Petitioner wrote DHRS a letter which was received by DHRS on February 25, 1991. In this letter Petitioner admitted that she had violated the personnel rules and asked for a second chance. Petitioner's letter stated that she had been abducted by a boyfriend on February 11, 1990 (sic), 1/ and taken to Bradenton. The letter did not attempt to explain her absences on February 6, 7, 8, 9, and 10. 1991. Petitioner was provided a copy of DHRS' Employee Handbook on April 20, 1990. Petitioner had been previously advised of Respondent's attendance policies and she had been previously reprimanded for failing to adhere to those policies. The following is found on page 13 of the Employee Handbook under the paragraph entitled "Absences": If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absences without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. (Emphasis added.) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in pertinent part, as follows: An employee who is without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the career service . ... . The foregoing rule creates a rebuttable presumption. DHRS has established that Petitioner was absent without authorized leave so that she is rebuttably presumed to have abandoned her position of employment and to have resigned from the career service. Petitioner has failed to rebut that presumption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner, Carol Wheeler, has abandoned her position of employment with the Department of Health and Rehabilitative Services and which further finds that she has resigned from the career service. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of November, 1991. CLAUDE B. ARRINGTON 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 13th day of November, 1991.
The Issue Whether Petitioner meets the qualifications prescribed by Chapter 475, Florida Statutes for licensure as a real estate salesman?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is a 1986 graduate of Florida State University. He has a degree in urban politics and real estate. In November, 1989, Petitioner entered a plea of guilty in Palm Beach County Circuit Court to two counts of burglary of a dwelling, one count of petty larceny, and one count of dealing in stolen property. Adjudication of guilt was withheld and Petitioner was placed on five years probation, which, the court specified, was not subject to "early termination." In addition, Petitioner was ordered to pay $360.00 in restitution and $265.00 in court costs. These crimes were all committed in June, 1989, after Petitioner had returned to Palm Beach County from a two or three-month vacation in Colorado. The two counts of burglary involved the same dwelling: the townhouse that Petitioner had lived in, with others, prior to his Colorado vacation. The lease to the townhouse, which was in the name of one of his roommates, had expired before his return from vacation. Contrary to the instructions of the landlord, Petitioner entered the dwelling on at least two separate occasions after coming back from Colorado in order to retrieve personal belongings that remained in the townhouse. The stolen property involved in the dealing in stolen property charge was a stereo that belonged to Petitioner's friend. Petitioner tried to pawn the stereo for $45.00. The petty theft charge involved the taking of ten CD's that were on top of a CD player located in a bar in the vicinity of the townhouse. Since these incidents, Petitioner has not run afoul of the law. Petitioner presently owns and operates the South Florida Adventure Club, a business which plans and organizes social activities for single professionals. In his spare time, he serves as an advisor to two youth groups. Petitioner is still on probation. He has paid in full the restitution ordered by the court. His court costs, however, have not yet been paid in full. He still owes $50.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order finding that Petitioner is not qualified for licensure as a real estate salesman because of his criminal record and denying his application for licensure based upon such a finding, without prejudice to Petitioner filing a subsequent application supported by a showing that, "because of the lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears . . . that the interest of the public and investors will not likely be endangered by granting" the application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September, 1991. 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 5th day of September, 1991. APPENDIX TO RECOMMENDED ORDER The following are the Hearing Officer's specific rulings on the findings of fact proposed by Respondent: 1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. 2-4. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 5. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance. 6-10. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony. 11. Rejected because it is more in the nature of a statement of the case than a finding of fact. COPIES FURNISHED: Greg Allen Hinds 2016 Broward Avenue # 3 West Palm Beach, Florida 33407-6112 Joselyn M. Price, Esquire Assistant Attorney General 400 West Robinson Street Suite 107, South Orlando, Florida 32801 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue The issues in this proceeding are whether the Petitioner abandoned an employment position with the Florida Parole and Probation Commission, and whether she was properly separated from employment with the Commission based upon abandonment. Petitioner contends that her failure to report for work with the Commission did not constitute an abandonment because the Commission's offer of employment was presented in such a manner as to make it impossible for the Petitioner to appear for work. The Commission contends that the Petitioner failed to report for work with the Commission for three consecutive workdays, that her failure to report was not authorized, and that she therefore abandoned her position with the Commission.
Findings Of Fact Prior to 1980, Petitioner had been employed with the Florida Parole and Probation Commission at its Pensacola office as a Parole Agent. Her employment was terminated, and she pursued a proceeding before the Florida Career Service Commission. The Career Service Commission ordered that the Parole and Probation Commission reinstate her to her former position and that she receive back pay and benefits. The Petitioner had moved to Tallahassee, and the Commission sought to accommodate her by offering her a position in Tallahassee. There were no immediate vacancies. The Petitioner was offered a position as Administrative Assistant to the Chairperson of the Commission. The position was at a lower pay grade than Petitioner had been in, and she declined the position. The Commission considered itself to be under an obligation to place Petitioner in a position similar to the one she had held previously. The 1980 session of the Florida Legislature authorized ten new positions to the Commission. Although the effective date of the authorization was July 1, 1980, the positions were only funded to commence in October, 1980, and to run through the remainder of the fiscal year. The Commission concluded that an emergency existed for filling two of the authorized positions. The Commission decided to take steps to fill a "Parole Examiner I" position and, a "Revocation Specialist" position immediately, rather than to wait until October In order to accommodate the immediate filling of those positions, the filling of other newly authorized positions would be delayed until subsequent to October. The Commission advertised for the Parole Examiner I and Revocation Specialist, positions by Job Opportunity Announcements dated July 7, 1980. The application deadline was July 18, 1980. These were the first professional level vacancies that the Commission had had in its staff other than the Administrative Assistant position since the time that the Career Service Commission ordered that Petitioner be reinstated. Commission personnel commenced to interview qualified applicants after July 18. At some point, consideration was given to offering one or both of the positions to the Petitioner. Commission personnel contacted Petitioner on July 28, 1980, and offered her the Parole Examiner I position. Petitioner was also advised that she could be considered for the Revocation Specialist position, which was at a higher pay grade than the position that Petitioner previously held. A letter confirming this was sent by the Commission to the Petitioner. The letter was dated July 28, 1980. By letter dated August 1, Petitioner stated that she would like to be considered for the Revocation Specialist position. On Wednesday, August 6, 1980, the Commission's Personnel Manager advised Petitioner that she was being offered the Revocation Specialist position and that she would be expected to report to her supervisor the following Monday, August 11, 1980, at 8:00 A.M. A letter confirming the offer and the conditions, dated August 6, 1980, was delivered to Petitioner by hand delivery on August 7. These letters formally confirmed conversations that had taken place among Petitioner and various employees of the Commission. On August 8, 1980, the Petitioner contacted the Commission's Personnel Manager and expressed a desire to take annual leave so that she could report to work in the new position subsequent to August 11. The Personnel Manager informed Petitioner that she would need to make her leave request directly to Harry P. Dodd, the Commission's Revocation Administrator, who would be Petitioner's supervisor. The Petitioner was able to contact Mr. Dodd in Starke, Florida, where he was performing Commission duties. She initially indicated that she would like to take two weeks' annual leave commencing on August 11. During the conversation, she scaled this request down to three days. Mr. Dodd was unclear as to the extent of his authority to grant or deny the leave request. He contacted the Commission's Personnel Manager and legal counsel and was advised that the decision of whether to grant or deny the leave request should be made by Mr. Dodd as a management decision. Mr. Dodd concluded that the leave request should be denied, and he contacted the Petitioner by telephone and advised her of that. Petitioner did not at that time advise Mr. Dodd that she would not report for work on August 11. By letter dated August 8, 1980, Petitioner advised the Chairperson of the Commission that she would not be able to report on August 11. She did not state her intentions to report at any future date. Petitioner did not report for work on August 11, 12, or 13, 1980. By letter dated August 13, the Commission advised Petitioner that it regarded her failure to report on August 11 as a refusal of the position. Thereafter, by letter dated October 15, 1980, the Commission advised Petitioner that if she were considered an employee rather than a prospective employee in view of the Career Service Commission's reinstatement order, that she had been absent without authorized leave for three days, and deemed to have abandoned her position. She was advised of her right to seek review of that decision through a petition to the Department of Administration. Petitioner filed such a petition, and this proceeding ensued. During July and August, 1980, the petitioner was employed on a part- time basis with the Federal Public Defender's Office in Tallahassee. Petitioner did not take any steps to advise anyone at her office as to the possibility of her accepting a position with the Parole and Probation Commission. While Petitioner testified that it would have been appropriate for her to give at least two weeks' notice before leaving the Federal Public Defender's Office, it does not appear from the evidence that her failure to give such notice would have unduly burdened her employer. Furthermore, if Petitioner had immediately advised her employer when she became aware that she may obtain full-time employment with the Commission, adequate notice could have been given. Petitioner and her husband had planned a vacation for August 11 and 12, 1980. While reporting to work on August 11 would have frustrated those plans, it does not appear that Petitioner would have incurred any significant expense or unhappiness from frustration of the vacation plans other than disappointment. It would have been difficult for the Petitioner to make arrangements for day care for her children in order to report for full-time employment with the Commission on August 11. It does not appear that those difficulties were insurmountable, however, and Petitioner could, albeit with difficulty, have made such arrangements. It was not impossible for the Petitioner to report for work with the Commission on August 11, 1980. The Commission's Revocations Section was severely understaffed during the summer of 1980. Legislation had been enacted which dramatically increased the number of parole revocations, and the Commission's staff had not been increased to handle the increase. During July and August, the Revocations Section had a severe backlog. It is for this reason that the Commission decided to take immediate steps to fill a newly authorized Revocation Specialist position. In addition to the increased workload and backlog, the Revocations Section had some peculiar personnel difficulties which increased the need to immediately fill the newly authorized position. One of the Revocation Specialists was seriously ill and frequently absent. Another was scheduled for military leave, which was not discretionary. Mr. Dodd had made plans to be on annual leave which could not be changed because he was using the leave to close a real estate transaction. In view of these difficulties, Mr. Dodd's refusal to grant the Petitioner's annual leave request was justified. It does not appear that the refusal of the leave request was made on any basis other than a sound management decision. After the Petitioner failed to report for work by August 13, the Commission took immediate steps to fill the Revocation Specialist position. While there were unexplained delays in accomplishing that, the position was filled effective August 26, 1980. There is no evidence from which it could be concluded that the Commission's offer of the Revocation Specialist position to the Petitioner was other than a bona fide offer. There is no evidence from which it could be concluded that any of the persons involved in offering the position to Petitioner felt any ill will toward her. The denial of the Petitioner's request that she not be required to report on August 11, as she had been directed, was based on a sound management decision. There is no evidence from which it could be concluded that the denial was generated by any ill feeling toward Petitioner or any desire that she not take the position. Taking the position on such short notice undoubtedly would have caused the Petitioner some inconvenience in leaving the position that she had held with the Federal Public Defender's Office and arranging child care. The frustration of vacation plans would have been disappointing. These factors do not, however, justify the Petitioner's failure to report as directed, nor could it be concluded that it was impossible for the Petitioner to report as directed. In view of the fact that the petitioner was offered the Revocation Specialist position in order that the Commission could comply with its responsibility to reinstate the Petitioner and the fact that the Petitioner was receiving back pay from the Commission, the Petitioner should be viewed as having been employed by the Commission. Her failure to report for work for three consecutive days as she had been directed to do constitutes an abandonment of her position with the Commission.
The Issue Whether Petitioner is entitled to an award of attorney’s fees pursuant to Section 57.105(5), Florida Statutes, and, if so, what amount?
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. § 57.105(5), Fla. Stat.; and Order and Mandate in Case No. 1D04-4167, First District Court of Appeal. Section 57.105(5), Florida Statutes, reads as follows: (5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney's fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party's attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection. Subsection (5) of Section 57.105, Florida Statutes, directs the undersigned to the preceding subsections which set forth standards to be applied in the analysis of entitlement to attorney’s fees. Subsection (1) provides that reasonable attorney’s fees shall be awarded to the prevailing party to be paid by the losing party where the losing party or the losing party’s attorney knew or should have known that a claim or defense, when initially presented to the administrative tribunal or at any time before the administrative hearing, “[w]as not supported by the material facts necessary to establish the claim or defense or [w]ould not be supported by the application of then-existing law to those material facts.” The standards set forth in Subsection (1) and incorporated by reference in Subsection (5) were the result of an amendment to Section 57.105, Florida Statutes, in 1999. s. 4, Ch. 99-225, Laws of Florida. Prior to that amendment, the statute provided for the award of attorney’s fees when “there was a complete absence of justiciable issue of either law or fact raised by the complaint or defense of the losing party.” These new standards became applicable to administrative hearings in 2003 by s. 9, Ch. 2003-94, Laws of Florida, with an effective date of June 4, 2003. Petitioner filed his Petition for Administrative Hearing in September 2003. Accordingly, the newer standards of Section 57.105, Florida Statutes, apply to this case. In the case of Wendy’s v. Vandergriff, 865 So. 2d 520, (Fla. 1st DCA 2003), the court discussed the legislative changes to Section 57.105: [T]his statute was amended in 1999 as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available. See Ch. 99- 225, s. 4, Laws of Florida. Unlike its predecessor, the 1999 version of the statute no longer requires a party to show a complete absence of a justiciable issue of fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported. (Citations omitted) However, this Court cautioned that section 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings. (Citations omitted) In determining whether a party is entitled to statutory attorney's fees under section 57.105, Florida Statutes, frivolousness is determined when the claim or defense was initially filed; if the claim or defense is not initially frivolous, the court must then determine whether the claim or defense became frivolous after the suit was filed. (Citation omitted) In so doing, the court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.(Citation omitted) An award of fees is not always appropriate under section 57.105, even when the party seeking fees was successful in obtaining the dismissal of the action or summary judgment in an action. (Citation omitted) Wendy's v. Vandergriff, 865 So. 2d 520, 523. The court in Wendy’s recognized that the new standard is difficult to define and must be applied on a case-by-case basis: While the revised statute incorporates the ‘not supported by the material facts or would not be supported by application of then-existing law to those material facts’ standard instead of the ‘frivolous’ standard of the earlier statute, an all encompassing definition of the new standard defies us. It is clear that the bar for imposition of sanctions has been lowered, but just how far it has been lowered is an open question requiring a case by case analysis. Wendy’s v. Vandergriff, 865 So. 2d 520, 524 citing Mullins v. Kennelly, 847 So. 2d at 1155, n.4. (Fla. 5th DCA 2003). More recently, the First District Court of Appeal further described the legislative change: The 1999 version lowered the bar a party must overcome before becoming entitled to attorney’s fees pursuant to section 57.105, Florida Statutes . . . Significantly, the 1999 version of 57.105 ‘applies to any claim or defense, and does not require that the entire action be frivolous.’ Albritton v. Ferrera, 913 So. 2d 5, 6 (Fla. 1st DCA 2005), quoting Mullins v. Kennelly, supra. The Florida Supreme Court has noted that the 1999 amendments to Section 57.105, Florida Statutes, “greatly expand the statute’s potential use.” Boca Burger, Inc. v. Richard Forum, 912 So. 2d 561, 570, (Fla. 2005). The phrase “supported by the material facts” found in Section 57.105(1)(a), Florida Statutes, was defined by the court in Albritton to mean that the “party possesses admissible evidence sufficient to establish the fact if accepted by the finder of fact.” Albritton, 913 So. 2d 5, at 7, n.1. Therefore, the first question is whether FAMU or its attorneys knew or should have known that its defense of Dr. Jain’s claim was not supported by the material facts necessary to establish the defense when the case was initially filed or at any time before trial. That is, did FAMU possess admissible evidence sufficient to establish its defense. The parties filed a Pretrial Stipulation the day before the hearing. The Pretrial Stipulation characterized FAMU’s position as follows: It is the position of the University that Dr. Babu Jain retired at the close of business on May 30, 2003, pursuant to the provision of the DROP retirement program. Dr. Jain did not have the right, nor the authority, to unilaterally rescind his resignation and retirement date. In a letter dated May 5, 2003, the Division of Retirement informed Dr. Jain that it was providing him with the “DROP VOID” form that had to be signed by himself and the University, for his participation in DROP to be rescinded. No University official signed that form nor agreed to rescind his retirement. On May 30, 2003, Dr. Babu Jain knew that his retirement through DROP had not been voided and that he had in-fact retired. The University included the position that Dr. Jain occupied in its vacancy announcement in the ‘Chronicle of Higher Education.’ The University, through Dr. Larry Robinson notified Dr. Jain that his retirement rescission was not accepted. Dr. Jain did not work past May 30, 2003. Finally, there was never a ‘meeting of the minds’, nor any other agreement between the University and Dr. Jain to void his retirement commitment. It [is] the University’s position that Dr. Babu Jain retired from Florida Agricultural and Mechanical University effective at the close of business on May 30, 2003. Pretrial Stipulation at 14-15. (emphasis in original) The material facts known by FAMU necessary to establish its defense against Petitioner's claim at the time the case was filed included: Petitioner’s initial Notice of Election to Participate in DROP and Resignation of Employment in which Dr. Jain resigned effective the date he terminated from DROP (designated as May 30, 2003); Dr. Robinson’s letter dated May 27, 2003, which asserted that the University was not in agreement with Dr. Jain's decision and that the decision to terminate from DROP is a mutual one; Dr. Robinson's letter of May 30, 2003, which informed Dr. Jain that the two summer semester employment contracts were issued to him in error and informing Dr. Jain that he would be paid through May 30, 2003, his designated DROP date; the refusal of anyone from FAMU to sign the DROP-VOID form provided to Dr. Jain by the Division of Retirement; the reassignment of another instructor to take over Dr. Jain’s classes the first Monday following the designated DROP termination date; and the Refund of Overpayment of Salary Form and resulting salary deduction from Dr. Jain’s sick leave payout. It is difficult to determine what, if any, additional facts FAMU learned through discovery. That is, whether deposition testimony of FAMU officials enlightened FAMU or its attorneys as to material facts not known at the time the case was filed by Dr. Jain, is not readily apparent. However, a review of the pre-trial depositions reveals material facts which supported FAMU’s defense that the summer contracts were issued in error and that there was no meeting of the minds between the parties regarding voiding Dr. Jain’s DROP participation. In particular, Dr. Robinson, Provost and Vice- President for Academic Affairs, testified in deposition that when he signed Dr. Jain’s summer employment contracts on May 20, 2003, he had no knowledge of Dr. Jain’s participation in the DROP program; that he first became aware that Dr. Jain was in DROP with a DROP termination date of May 30, 2003, upon receiving a May 21, 2003, memorandum from Nellie Woodruff, Director of the FAMU Personnel Office; and that Dean Larry Rivers did not have the authority to issue work assignments for any of his faculty beyond their DROP dates. Additionally, Dr. Henry Williams, Assistant Dean for Science and Technology, testified in deposition that when he signed the Recommendation for Summer Employment on May 5, 2003, which recommended Dr. Jain for teaching summer courses beginning May 12, 2003, he was unaware that there was a 30-day window during which a DROP participant could not be employed. Obviously, when the undersigned weighed all of the evidence, including evidence presented at hearing which is not part of this analysis, it was determined that the preponderance of the evidence was in favor of Dr. Jain’s position. However, that is not the standard to be applied here. The undersigned concludes that at the time the case was filed and prior to the commencement of the hearing, FAMU possessed admissible evidence sufficient to establish the fact that it did not give written agreement to his decision to abandon DROP and resume employment if accepted by the finder of fact. While the finder of fact ultimately did not agree with FAMU, FAMU possessed the material facts necessary to establish the defense, i.e., admissible evidence sufficient to establish the fact if accepted by the trier of fact, when the case was filed and prior to the final hearing. The second question is whether FAMU’s defense would not be supported by the application of then existing law to those material facts, when the case was initially filed or at any time before the final hearing. In the Pretrial Stipulation, the parties referenced Sections 121.091(13) and 121.021(39), Florida Statutes, as provisions of law relevant to the determination of the issues in the case.2/ These statutory provisions were also referenced by the undersigned in the Recommended Order as “two competing statutory provisions.” Recommended Order at 15. Subsection 121.091(13), Florida Statutes, establishing the DROP program, was created by s. 8, Ch. 97-180, Laws of Florida, with an effective date of January 1, 1999.3/ Section 121.091(13), Florida Statutes (2003), read as follows: DEFERRED RETIREMENT OPTION PROGRAM.--In general, and subject to the provisions of this section, the Deferred Retirement Option Program, hereinafter referred to as the DROP, is a program under which an eligible member of the Florida Retirement System may elect to participate, deferring receipt of retirement benefits while continuing employment with his or her Florida Retirement System employer. The deferred monthly benefits shall accrue in the System Trust Fund on behalf of the participant, plus interest compounded monthly, for the specified period of the DROP participation, as provided in paragraph (c). Upon termination of employment, the participant shall receive the total DROP benefits and begin to receive the previously determined normal retirement benefits. Participation in the DROP does not guarantee employment for the specified period of DROP. Participation in the DROP by an eligible member beyond the initial 60-month period as authorized in this subsection shall be on an annual contractual basis for all participants. Section 121.021(39)(b), Florida Statutes (2003), read as follows: 'Termination' for a member electing to participate under the Deferred Retirement Option Program occurs when the Deferred Retirement Option Program participant ceases all employment relationships with employers under this system in accordance with s. 121.091(13), but in the event the Deferred Retirement Option Program participant should be employed by any such employer within the next calendar month, termination will be deemed not to have occurred, except as provided in s. 121.091(13)(b)4.c. A leave of absence shall constitute a continuation of the employment relationship. Unlike the situation in Albritton, supra, the DROP program was relatively new and the statutes creating the same were not well established provisions of law. Dr. Jain was in the first “class” of DROP for FAMU. FAMU and its lawyers did not have the benefit of established case law that discussed DROP and its provisions when this case was filed or at any time before the hearing. While general contract law also came into play, it had to be considered in the context of the DROP program, which had no precedent of case law. FAMU argues in its Response to the Motion for Attorney's Fees that it interpreted the provision in Section 121.091(13), Florida Statutes, that requires written approval of the employer to be either the DROP VOID form provided by the Division of Retirement or a written document, executed by the designated University official, specifically approving Petitioner's decision. "The University did not believe the employment contracts that were issued to Petitioner in error, would constitute written approval." FAMU's Response at 5. This argument is consistent with the position FAMU took in the Pretrial Statement quoted above, that there was never a meeting of the minds "or any other agreement" that Dr. Jain's retirement rescission was accepted. A critical conclusion in the Recommended Order is found in paragraph 38: "Moreover, while the FAMU administration did not sign the DROP-VOID form, the contracts issued to Dr. Jain constitute written approval of Dr. Jain's employer regarding modification of his termination date." FAMU also took the position in the Pretrial Stipulation that Dr. Jain did not work past May 30, 2003, based upon the material facts recited above. Under that reading of the facts, Dr. Jain did not work during the next calendar month after DROP, and, therefore terminated employment consistent with the definition of "termination" in Section 121.021(39)(b), Florida Statutes. Again, while the undersigned did not agree with FAMU's application of the material facts to the then-existing law, FAMU's interpretation was not completely without merit. See Mullins v. Kennerly, 847 So. 2d 1151, 1155. (Case completely without merit in law and cannot be supported by reasonable argument for extension, modification or reversal of existing law is a guideline for determining if an action is frivolous.) Accordingly, the undersigned concludes that at the time the case was filed and prior to the commencement of the hearing, FAMU did not know and could not be expected to know that its defense would not be supported by the application of then-existing law to the material facts necessary to establish the defense. Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is ORDERED: Petitioner’s Motion for Attorney’s Fees is denied. DONE AND ORDERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 1st day of March, 2006.
The Issue Whether Petitioner forfeits his rights to benefits under the Florida Retirement System.
Findings Of Fact On May 5, 2011, Petitioner was mayor of North Miami Beach, Florida. During Petitioner’s employment as mayor with North Miami Beach, he was a member of the Florida Retirement System. On or about October 17, 2012, Petitioner was charged by Information with nine criminal counts in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. On February 24, 2016, pursuant to a written Plea Agreement, Rosner entered a plea of guilty to Count 11/ Unlawful Compensation [or] Reward for Official Behavior, in violation of section 838.016(2), in Eleventh Circuit case F12023663. That same day in the Eleventh Circuit case F12023663, Judge Martin Bidwill issued the following orders: an Order Ratifying Terms of Plea Agreement; a Disposition Order specifying Rosner’s plea to Count 1 Unlawful Compensation [or] Reward for Official Behavior; and a Finding of Guilt Order to Count 1 Compensation [or] Reward for Official Behav[ior]/Influence. The October 17, 2012, Information detailed the factual basis of Rosner’s plea and conviction in Count 1.2/ Petitioner illegally received unpaid campaign advertising from Martin Outdoor Media, which had a continuing contract with the City of North Miami Beach while Petitioner served as mayor. Count 1 provides in relevant part, the following: COUNT 1 MYRON JOEL ROSNER, on or about May 5, 2011, in the County and State aforesaid, being a public servant to wit: MAYOR OF NORTH MIAMI BEACH did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept any pecuniary or other benefit not authorized by law, to wit; UNPAID CAMPAIGN ADS, for the past, future, or future exertion of any influence upon or with any other public servant regarding any act or omission which said public servant represented as being within the official discretion of a public servant, to wit: CONTINUE ALL MARTIN OUTDOOR MEDIA CONTRACTS WITH THE CITY OF NORTH MIAMI BEACH, in violation of s. 838.016(2), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.3/ Rosner was notified by certified letter dated April 20, 2016, of the Division's proposed action to forfeit his Florida Retirement System rights and benefits pursuant to sections 112.3173 and 121.091(5)(f). The notice provided the following basis for the proposed action: . . . . as a result of your guilty plea in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, for acts committed in connection with your employment with the City of North Miami Beach. Specifically, on or about October 18, 2012, in Case Number F12-023663 (2012-CF_023663), you were charged by information, in relevant part, with unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, based on conduct which occurred on or about May 5, 2011. On or about February 24, 2016, you entered a guilty plea for one count of unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, and adjudication of guilt was withheld. By Petition dated May 9, 2016, Rosner contested the Notice and challenged the forfeiture.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, Florida Statutes, and directing the forfeiture of his Florida Retirement System rights and benefits. DONE AND ENTERED this 15th day of June, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2017.
The Issue Whether or not Petitioner may be presumed, pursuant to Rules 22A- 7.0l0(2)(a) and 22A-8.002(5)(a)3 F.A.C. to have abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact Petitioner started working for Florida State Hospital, a residential facility owned and operated by HRS, on August 8, 1986. On June 22, 1987, Petitioner was assigned to Unit 14, at Florida State Hospital, a unit which treated geriatric mentally ill patients. In that assignment, Petitioner's immediate supervisor was Senior Registered Nurse Supervisor Shirley Greggly. It is an established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. During her employment, Petitioner had been a less-than-exemplary employee with regard to absenteeism, tardiness and timely notification and had been counselled prior to April 1989 that she should make contact with the Hospital within seven minutes of the time she was due on shift if an absence was necessary. Only after review of such contact initiated by an employee can a superior determine to approve or disapprove the requested leave. If no contact were initiated by the employee, it was Ms. Greggly's standard procedure to attempt to initiate contact herself with the missing employee. Failure of an employee to notify Ms. Greggly or delayed notification of Ms. Greggly by an employee creates great hardship for the patients who may receive delayed care as a result, and also it creates considerable administrative turmoil for Ms. Greggly in rounding up a substitute employee. Petitioner had been disciplined with a ten-day suspension in September 1988 for failure to notify. She had received a prior written reprimand for absence without authorized leave in June 1988 and an oral reprimand for excessive absenteeism in December 1987. Petitioner had been frequently counselled in regard to these shortcomings. During the first few months of 1989, Petitioner was absent from work due to a work-related injury and, if not already filed, a workers' compensation claim pursuant to Chapter 440 F.S. was at least imminent. Petitioner's primary treating physician was Daniel Bontrager, D.C. By April 1989, Dr. Bontrager had determined that Petitioner could return to light duty work. On April 7, 1989 and again on April 13, 1989, Dr. Bontrager orally informed Petitioner that she could return to light duty work as of April 17, 1989. On April 13, 1989, Ms. Hobbs stated that she would not return to work. Dr. Bontrager communicated his advice to the Hospital. The best diagnostic evidence obtainable by Dr. Bontrager indicated that there was no valid medical reason why Petitioner could not return to work. Ms. Greggly expected Petitioner back at work on April 17, 1989. From that date until April 28, 1989, when Petitioner was deemed to have abandoned her position, Petitioner initiated no contact with her employer or Ms. Greggly, and therefore no leave was authorized for her. On the dates between April 17, 1989 and April 28, 1989, inclusive, Petitioner neither appeared at work nor informed the hospital that she was going to be absent. This period constitutes in excess of three consecutive workdays of absence without approved leave.
Recommendation Upon the foregoing Findings and Fact and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order ratifying its previous presumption that Petitioner has abandoned her position and resigned from the Career Service. DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 4th day of January, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: None filed. Respondent' PFOF: 1-3, 8, 10, 12-14 Accepted. 4-5 Immaterial. 6-7, 9 Accepted as modified; unnecessary argument and detail is rejected as such. 11 Modified to reflect the record; rejected where it is not true to the record. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Ms. Clara Hobbs Route l, Box 186B Sneads, Florida 32460 John R. Perry, Esquire Department of Health and Rehabilitative Services Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303-4082 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
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.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that with the exception of Item (7)(a) previously agreed upon by the parties, Respondent repay all costs recommended for disallowance in Petitioner's Final Determination dated November 24, 1982. DONE and ENTERED this 22nd day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1982.
Findings Of Fact At all times relevant hereto, Petitioner was employed as a Clerk Specialist in the Medical Records Department of Respondent's Mental Health Institute and held permanent status in the Florida career service system. On June 3, 1986, Petitioner received a telephone call from her mother relating the substance of a bizarre telephone call she had received the previous night from her son-in-law, Petitioner's estranged husband. This caused Petitioner to fear for the safety of her children and she left her job around 3:00 P.M., went to school and to a day nursery to pick up her children and took them to her mother's house where she stayed while away from work. Petitioner frequently left the office during working hours but made up the time so lost by working through her lunch hour or before or after her regular working hours. Sometimes she took annual leave for this time off. Petitioner and her supervisor expected Petitioner to return to work June 4, 1986. During the next few days Petitioner or her mother frequently called Petitioner's supervisor to report that Petitioner was still concerned about the safety of her children but would return to work. On June 9, Petitioner spoke to the office supervisor, Carol Foster, who had just returned from a week long HRS convention in Miami, and told Foster that she would not return to work until Wednesday, June 11. Foster asked if she could come in and work that night (Monday), to which Petitioner agreed. Petitioner later called and said she could not come in that night. On Tuesday, June 10, 1986, Petitioner's mother called in and advised Foster that Petitioner would not return to work until the following Monday, June 16, 1986. Foster replied that no leave was authorized and Petitioner was expected to report to work the following day, Wednesday, June 11, at 8:00 a.m. Later on this same day Foster repeated this message to Petitioner. On Wednesday, June 11, 1986, Petitioner called Foster and said she could not come in to work. Foster replied that no leave was authorized. On Thursday, June 12, 1986, Foster told Petitioner that unless she reported to work on Friday, June 13, 1986, she would have no choice but to consider Petitioner to have abandoned her job. On Friday, June 19, 1986, Petitioner did not report to work and made no effort to contact Foster. On the morning of June 13, Petitioner attended a job interview for another position on Respondent's campus. Upon learning of this, Foster then prepared and sent to Petitioner by certified mail a letter containing notification that she was deemed to have resigned her position by abandonment and notifying Petitioner of her right to petition for review. (Exhibit 2)
