The Issue Whether petitioner should be removed from the Florida Retirement System, as of July 1, 1979, on grounds of ineligibility.
Findings Of Fact Petitioner, a licensed attorney, practices law in Clewiston, Hendry County, Florida. Since at least September 1, 1970, he has continuously engaged in the private practice of law in Clewiston. On September 1, 1970, the Glades County School Board ("School Board" or "Board") hired him as the School Board attorney, a position which he continues to hold. This is a part-time position, since the Board has no need for a full-time attorney. The School Board is headquartered at Moore Haven, 16 miles northwest of Clewiston, in neighboring Glades County. The terms and conditions of petitioner's employment with the School Board have remained virtually unchanged since he was originally hired. Each year, the School Board sets his salary consisting of a monthly retainer or salary, plus a fixed amount per hour for any additional professional services or litigation required by the School Board. For the 1979-80 school year, the Board set his salary or retainer--terms which the School Board used interchangeably-- as shown by the Minutes of the July 11, 1979, meeting: 3. SALARY/SCHOOL BOARD ATTORNEY - 1979-80 Chairman Hilliard opened the floor for discussion on the salary for the school board attorney for the 1979-80 school year. After some discussion between the board and Mr. Potter, the board proposed a retainer of $750.00 per month. (annual salary of $9,000.00) plus $50.00 per hour for additional pro fessional services or litigation required by the board. ON MOTION by Sapp, seconded by Johnson, the board approved this pro- posal for school board attorney for the 1979-80 school year. (Vote: Arnold, yes; Johnson, yes; Taylor, yes; Sapp, yes; Hilliard, yes.) His salary is paid from the School Board's regular employee salary account. But as the School Board's attorney, unlike other School Board employees, he does not accrue annual leave, sick leave, or pay during vacations, holidays or illness, though when he is sick or on vacation, there is no adjustment to his salary. He is reimbursed for work-related travel and meals at the rates provided by Section 112.061, Florida Statutes (1983), and is covered by the School Board's group health and life insurance, and Workers' Compensation. Since 1970, the Board has withheld his Social Security contributions from his fixed monthly salary payments; has paid the employer's Social Security contributions on his salary payments; and has annually reported his monthly salary payments on Internal Revenue Service Form W-2. To this extent, the School Board considered him an employee and treated him the same as it treated its other employees. The legal services which he furnished the School Board are described in his employment agreement and the School Board's job description for the position: TYPICAL DUTIES: Attend all regular Board meetings and such special meetings as deemed advisable by Board Chairman or Superintendent. Be available for routine telephone or personal consultations with Board Chairman, Superintendent and Staff members. Perform legal research. Prepare or approve leases or agreements prior to execution by Board. Prepare and prosecute law suits in behalf of Board and defend law suits against Board, including any actions against Superintendent, Staff or other school district employees allegedly arising etc., unless special counsel is deemed necessary by Board Attorney with Board's concurrence. Attend the quarterly seminars/meetings of Florida School Board Attorneys Association; and any other approved by Board. Represent Board and/or Superintendent in personnel matters where appropriate, as well as student discipline matters. School Board meetings, held monthly, last approximately one and one-half hours. Litigation, although described as a typical duty, is considered extra work, and an hourly rate is charged over and above the monthly salary. Petitioner agrees that he would not knowingly accept any new clients which would cause a conflict of interest with his School Board employment. Although he has been free to turn down work assigned by the School Board, he never has--at least through 1976. As explained by Mr. Strope, Superintendent of Schools from 1968 to 1976, although petitioner was free to turn down work, he "shouldn't have." Petitioner is not required to maintain any set office hours, and his monthly salary does not vary with the number of hours' work. He is not furnished office space by the School Board. The majority of his legal work for the Board is performed at his private law office, in Clewiston. The cost of operating his law office is not a budget item in the School Board's budget. Under his employment arrangement with the School Board, he furnishes all personnel, equipment, and facilities needed to perform his services. He is responsible for supervising the secretaries who work in his private office. Occasionally, when he is at School Board headquarters in Moore Haven he will ask a School Board employee to type a document. At his request, however, the School Board will furnish him pencils, legal pads, legal periodicals and stationery. It also pays for his travel; for per diem expenses incurred while attending legal seminars or meetings; and for long distance telephone calls made in connection with his School Board employment. He is neither responsible for, nor supervises, any employee of the School Board. The School Board does not furnish him any legal secretaries or part-time attorney assistants. He has not shown what percentage, or amount, of his working hours are devoted to performing legal services for the School Board, as opposed to legal services which he performs for his other clients. Other than assigning specific legal tasks, the School Board exercises no more control over the means, methods, and manner by which petitioner performs the legal work given him than is ordinarily exercised by any client over an attorney. Because of ethical constraints and the nature of legal work, petitioner must exercise independent professional judgment. Since September 1, 1970 2/, petitioner has been enrolled in the FRS. This was accomplished by his filling out a prescribed form which the School Board then filed with the Division. The Board then began reporting him on its employee rolls. There is no evidence that the initial FRS entry form, filed with the Division, described petitioner's work duties or the nature of his employment with the School Board. Both the Board and the Division enrolled him in the FRS, believing that he was eligible for membership. The Division did not question or investigate the nature of his employment relationship with the Board until 1983. From his initial enrollment until January 1, 1975, when FRS became a non-contributory system, petitioner contributed one-half of the the required FRS contribution, while the School Board contributed the other half. Since January 1, 1975, the School Board has contributed 100 percent of his contributions to FRS. During the 1970s petitioner's membership in the FRS prevented him from participating in any other tax sheltered retirement plan. 3/ Since July 1, 1979, the Division has, by rule, given notice that consultants and other professional persons contracting with public employers are, ordinarily, ineligible for membership in the FRS. All public employers, including the School Board, have been asked to remove such persons from their retirement payrolls. Since at least July 8, 1981, petitioner was on notice that his status as an employee, and his eligibility for continued membership in the FRS, were in question. Both the parties stipulate that part-time electricians, plumbers, painters, combustion engine mechanics, air conditioning mechanics, janitors or sewage plant operators (and even other occupations) employed in 1983 by the Glades County School Board on a year-round salary basis (i.e., at least 10 consecutive months), and paid out of the School Board's regular salary and wage account, would be mandatory members of FRS by statute. (Prehearing Stip., para. E. 6)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order removing petitioner from membership in the Florida Retirement System, as of July 1, 1979; and That the Division return to petitioner and the School Board their respective FRS contributions, mistakenly made to his account. DONE and RECOMMENDED this 14th day of February, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 14th day of February, 1984.
Recommendation In light of the foregoing, it is hereby RECOMMENDED that the Department issue a final order dismissing Petitioner’s amended petition on the grounds that Petitioner lacks standing to administratively challenge the Department’s decision not to disapprove McLaughlin’s proposed appointment to Sunniland’s board of directors and that the Department, having failed to act within the time frame prescribed by Rule 3C-100.0385, Florida Administrative Code, does not have the authority to reconsider its decision and issue a letter of disapproval, as requested by Petitioner.16 DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April 1997.
The Issue The issue for consideration is whether the Respondent has violated the sections cited in the Administrative Complaint as alleged. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact The Respondent, Paul R. Ashe, is a certified public accountant who was issued a license number 1968 by the Board of Accountants. (See Respondent's admissions.) The Respondent was found guilty in the United States District Court, Las Vegas, Nevada, of fraud by wire and of the interstate transportation of false and forged securities. The Respondent is currently under a pending sentence of three years in prison on each count, to run concurrently, and a fine of $10,000. (See Respondent's admissions). The licensure file of the Respondent maintained by the Board of Accountants (Petitioner's Exhibit 2) reveals that the Respondent was licensed as a certified public accountant in the State of Florida on December 3, 1965. The file further reveals that the Respondent's licensure to practice public accounting was placed in an inoperative (inactive) status at the request of the Respondent on or about February 28, 1977. While in an inoperative status, a certified public accountant may not practice and is not issued a license. However, the accountant is not required to keep up his continuing professional education credits or to pay annual license fees. An accountant in an inoperative status may reactive his license upon paying all back annual licensure fees and demonstrating that he has completed all required continuing professional education course hours. On September 26, 1982, the Respondent requested and received conditional reactivation of his license to practice public accounting in the State of Florida, which was made permanent on February 8, 1983. In this proceeding, the Respondent testified in his own behalf. His testimony was credible and uncontroverted. The Respondent received his certified public accountant certificate on December 3, 1965. He worked for the Internal Revenue Service for three years and subsequently practiced public accounting while working with a life insurance company and attending law school. After obtaining a law degree and admission to the Bar, Respondent practiced tax law and maintained his active license as a certified public accountant. In 1977, because the continuing professional education requirements for both professions were becoming burdensome, the Respondent placed his certified public accountant license in an inoperative status. Since he was a child, the Respondent has suffered from pathologic compulsive gambling. It was this compulsion which gave rise to his conviction on the federal charges referenced above. The Respondent now has this disorder under control after receiving professional counseling and is a member of Gamblers' Anonymous. As an attorney practicing tax law and providing investment counseling services, the Respondent maintained large trust accounts during the entire period he was actively gambling. Audits of his personal trust accounts reveal no shortage of any client's account. The Respondent stated, and his testimony was uncontroverted, that he had never violated any client's trust account or any trust relationship. The charges on which the Respondent was convicted arose out of a series of events which began in 1974 on a gambling trip to Las Vegas, Nevada. At that time, the Respondent became deeply indebted to various casinos in Las Vegas. Some of those casinos relieved the Respondent of his indebtedness upon his promise not to gamble further in their casinos. (Tr. 136, 173.) The Respondent paid his gambling debts at other casinos to maintain his right to continue to gamble there. In 1975, the Respondent returned to Las Vegas with his step-father. At that time, a line of credit was established in the step-father's name, and the Respondent and his step-father gambled on the step-father's line of credit. Respondent's step-father was worried about the Respondent's gambling problems and, at the conclusion of this gambling junket, took several checks from his checkbook, signed them in blank, and gave them to the Respondent with instructions that should the Respondent get into trouble the Respondent should use them. Upon returning home from this gambling junket, the Respondent's step- father died. On the weekend of July 4, 1976, the Respondent went to Las Vegas on a gambling junket. Prior to arriving there, he had established a line of credit of $54,000. Near the conclusion of his junket, he had lost the $54,000 and, in seeking to win back his losses, used the checks given to him by his step-father. The Respondent issued three checks totaling $55,000 to three different casinos to pay off the gambling debts he had incurred and to reestablish his line of credit. It was the uttering of these checks on his deceased step-father's checking account which gave rise to the federal charges of interstate transport of a forged or false security, and the casinos' subsequent use of the telephone to check the Respondent's credit which gave rise to the federal charges of fraud by wire. The Respondent believed that the account upon which the checks were drawn contained sufficient funds to cover the checks and that the account was active. However, several weeks or months before, the Respondent's mother had closed the account without his knowledge. In 1977, the Suma Corporation (Hughes' hotels) initiated charges through the U.S. Attorney on one of the checks in the amount of $11,250. When the Respondent made this check good, Suma Corporation withdrew its complaint against him and made him persona non grata at the Hughes' hotels. By this time, the Respondent's family had become quite concerned about his gambling, and he had been divorced from his wife and lost custody of his children. The Respondent sought to conceal his further gambling from his family. In November 1977, the Respondent was overcome by the urge to gamble. Having settled a substantial case, he opened a bank account under the assumed name of Paul Allen and went to Las Vegas. The Respondent used this assumed name because he did not want his family to find out he was gambling in Las Vegas. While at the MGM Hotel, his real identify was discovered, and he was compelled to pay the MGM Hotel all the monies which he owed it. This event initiated a reinvestigation of the previous 1976 check-passing incident, which resulted in his indictment in 1979-1980 and his subsequent conviction. Lawrence Dale Scheaffer was a client of Respondent from 1976 until the present. The Respondent provided Scheaffer with information and professional advice concerning Scheaffer's retirement plan, both as an attorney and later as a certified public accountant. Scheaffer and others testified concerning the Respondent's reputation in the community, where the Respondent is reputed to be honest and of good character.
Recommendation Having found that the Respondent did not violate the statutes as alleged in Counts I, II or III of the Administrative Complaint, the Hearing Officer recommends that the charges against the Respondent be dismissed. DONE AND RECOMMENDED this 22nd day of February 1984 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February 1984. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jeffrey J. Fitos, Esquire One East Silver Springs Boulevard Ocala, Florida 32670 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Martha Willis, Executive Director Board of Accountancy 4001 NW 43rd Street, Suite 16 Gainesville, Florida 32306 =================================================================
Findings Of Fact The hearing officer's findings of fact are hereby approved and adopted. There is competent, substantial evidence to support the the hearing officer's findings of fact. Petitioner takes his vacation between school board meetings or by asking the school board to be excused from attending said meetings. No leave time is actually used for such absences. (Petitioner's Exhibit O) Prior to 1979 the Division had not determined Cooney was an employee being paid from a regular salaries account who was eligible for FRS membership. His actual position and employment status was not questioned until 1980. Following an extensive review of Cooney's position, which had not changed since 1965, the Division determined Cooney was not eligible for FRS membership because he was not filling a regularly, established position. The 1979 rule changes defined "regularly established position", but did not redefine employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order declaring Richard W. Cooney eligible for membership in the Florida Retirement System both before and after July 1, 1979. RECOMMENDED this 6th day of September, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 6th day of September, 1984.
Findings Of Fact Joshua A. Freedman was issued a certificate in accounting from Temple University in 1945 (Exhibit 3). He attended evening classes at Temple during the periods 1937-1940 and 1944-1946. Transcript of Freedman's scholastic record at Temple University (Exhibit 1) shows he completed 56 semester hours during this period. The testimony of Dr. Laibstain (Exhibit 15) is that he completed 58 hours, includes 2 hours earned in 1965. Of the courses completed 26 semester hours were in accounting and 24 semester hours were classified as business courses. Requirements for a certificate in accounting are shown in Exhibit 23 to be completion of 12 one-year courses, or a total of 48 credits. The courses so outlined meet three evenings a week for four years but the time period may be altered if the student attends more or less classes than three evenings a week. A total of 124 semester hours is required by Temple University for a baccalaureate degree in accounting and the requirement has not been less than 120 semester hours since prior to Petitioner's matriculation. Petitioner was issued CPA Certificate Number 2872 on 4-26-50 after having successfully passed the AICPA examination in Pennsylvania with grades of 75 in Law (1947) and 69 in Practice (1949) Respondent stipulated that the only grounds for denying Petitioner's application for a reciprocal CPA certificate was his failure to complete the requirements for a baccalaureate degree and his failure to make a grade of at least 75 on the AI CPA examination- he took in 1949. With this stipulation the evidence regarding Petitioner's experience, professional qualifications and moral character become irrelevant to these proceedings. In 1949-1950 Florida required its applicants for CPA certification to pass examinations in subjects including Auditing, Commercial Law, Theory of Accounts and Accounting Practices with a minimum grade of 75 in each subject. Florida has always required a passing grade of not less than 75 on CPA examinations given. As a result of difficulties in obtaining information from certain states regarding the examinations and grades obtained for those seeking reciprocal CPA certificates in Florida, the Florida Board of Accountancy stopped accepting applications from applicants from these states for reciprocal CPA certification. This led to a meeting between the Pennsylvania Board and the Florida Board in 1974 at which the former agreed to provide all requested information to Florida and Florida agreed to accept the examination grades in which a mark of at least 75 was received as equivalent to the Florida examination even though the same subjects were not covered by the examination. Prior to 1969 the Florida Board of Accountancy had certain discretions in granting reciprocal CPA certificates. The statute was amended in 1969 by what is now Section 473.201 F.S.
The Issue Whether petitioner abandoned her position and is deemed to have resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact The petitioner was first employed by the State of Florida with the Department of Health and Rehabilitative Services on May 2, 1980. At the time, the petitioner owned her own accounting firm. However because she intended to remain in State employment for a minimum of ten years and did not want to jeopardize her position with HRS, she closed out her accounting firm transferring her clients to another member of Florida State Accounting Association. On October 28, 1985, petitioner became ill with acute bronchitis. She did not return to work until November 8, 1985. During that period of time, she was on authorized leave. On Saturday, November 23, the petitioner had a relapse. After calling her doctor, petitioner resumed taking the medication that had previously been prescribed and stayed in bed. On November 25, 1985, Angela Gary, a co-worker, went by Petitioner's home to give her a ride to work. Petitioner informed Ms. Gary that she would not be going to work that day. Petitioner did not explain to Ms. Gary that she was ill and did not ask Ms. Gary to take any message to the petitioner's supervisor, Ms. Matson, or to the District Fiscal Officer, Mr. Fisher, who was in charge of the entire accounting section. 1/ Mr. Fisher was aware that Ms. Gary was to provide a ride for petitioner on November 25, 1985. Therefore when petitioner did not report to work, Mr. Fisher asked Ms. Gary if she had remembered to go by petitioner's house. Ms. Gary told Mr. Fisher that she had remembered to go by the house but that petitioner said that she wasn't going to work. On Tuesday, November 26, Ms. Gary again went by petitioner's home to drive her to work. At that time, petitioner told Ms. Gary that she wouldn't be going to work and that Ms. Gary did not have to come by her house on Wednesday unless the petitioner called her. Because petitioner did not feel capable of returning to work on Wednesday, she did not call Ms. Gary. Therefore, Ms. Gary did not go by petitioner's house on Wednesday November 27, 1985. At no time during the three day period that she was absent from work did the petitioner telephone her supervisor to inform her of the situation. Prior to this three-day period, petitioner had been absent on several occasions and had always called her supervisor to inform the supervisor that she would be unable to report to work. She was quite familiar with the procedure that she needed to follow. Petitioner had received a copy of the HRS Employee Handbook, HRSP 60-1, which includes procedures to be followed to obtain authorized leave. The procedure for sick leave includes the following: As soon as possible on the first day of absence, it is your responsibility to notify your supervisor that the absence is due to illness....Your supervisor should also be given an estimate of the length of the absence. Medical certification may be required. Further, within the accounting section, the employees had been specifically advised that they had to speak directly to their immediate supervisor when calling in sick. Although petitioner was aware of the sick leave procedure, she did not attempt to call her supervisor at any time during the three-day period she was absent. Her only reason for not calling was that the medication she was taking made her "woozy" and that she slept most of the time. There was no evidence to suggest that petitioner was incapacitated to the degree that she was unable to call her supervisor. 1O. November 27-28 were holidays. On December 2; 1985, the following Monday, petitioner called her supervisor in the morning to inform the supervisor that she would be late to work. At that time, petitioner was informed that she was no longer employed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Health and Rehabilitative Services in deeming Virginia I. Lee to have abandoned her position and resigned from the Career Service. DONE and ENTERED this 29th day of April, 1986, in Tallahassee Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1986.
Findings Of Fact The parties stipulated to certain facts in Case No. 76-2002 and they are adopted for the purposes of this proceeding, as follow: That the Certificate Holder received an undergraduate degree in accounting from the University of Cincinnati in August of 1968. That the Certificate Holder was employed by major CPA firms from August of 1968 to September of 1970 as an accountant; That the Certificate Holder passed the uniform CPA exam in California in 1969, and was granted CPA license by California upon completion of the necessary experience requirements in May of 1971; That the Certificate Holder attended law school at the Ohio State University from September, 1970 through December 1972. In December, 1972, he was awarded a Juris Doctor Degree from that institution; That prior to graduating from law school, the Certificate Holder made application to secure a position in accounting. He secured a Position with the certified public accounting firm of Arthur Young and Co. in Cincinnati, Ohio, which position commenced on January 1, 1973; That while employed as a certified public accountant by Arthur Young and Co., the Certificate Holder, in the summer of 1973, was offered a position with a certified public accounting firm in Miami, Florida; That in July, 1973, the Certificate Holder accepted that position with McClain and Co., CPA's, of Miami, Florida, which position was to begin in August, 1973; That during the summer of 1973, the Certificate Holder requested the Florida State Board of Accountancy to forward him an application to apply for a reciprocal CPA certificate and the Board responded that an application would not be sent to anyone who was not a resident of the State of Florida; That during the summer of 1973, the Certificate Holder made an application with the Florida Bar to become a member of the Florida Bar; That the Certificate Holder moved his family from Cincinnati, Ohio to Fort Lauderdale, Florida, in July, 1973, and began working on a full-time basis for the Florida CPA firm of McClain and Co. in August of 1973. At that time he again requested an application for a reciprocal CPA certificate; said application being received by the Certificate Holder in late September of 1973; That the Certificate Holder completed the application for a reciprocal CPA certificate and Submitted the same to the Florida State Board of Accountancy in October, 1973; That in November, 1973, the Certificate Holder took the Florida Bar examination in Tampa, Florida; That the Certificate Holder was admitted to the Florida Bar In December, 1973, and was granted a reciprocal CPA certificate by the Florida State Board of Accountancy in January, 1974; That the Certificate Holder was discharged by the Florida certified public accounting firm of McClain and Co. in May, 1974. That the Certificate Holder taught part-time in the Accounting Department of Florida International University beginning in January, 1974 thru 1976. After his discharge from the public accounting firm of McClain and Co., he continued at Florida International University on a substantially full-time basis thru the summer of 1974 and into the fall of 1974; That in August, 1974, the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, but this office was staffed only on a part-time basis as the Certificate Holder was devoting the great bulk of his time to his teaching activities at Florida International University in Miami, Florida; That in February, 1975, the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, (200 SE 6th Street, Suite 100- B), which office was from that time staffed on a full-time basis by the Certificate Holder; That since February, 1975, the Certificate Holder has been actively engaged in the full-time practice of law in the city of Fort Lauderdale, Florida; and That the Certificate Holder has been a resident of and domiciled in the State of Florida from August, 1973 thru and including the date of this Stipulation.
Findings Of Fact 1. Mrs. Dunham began her employment with the Respondent School Board in 1959. When she began her first position was Accounting Clerk, Pay Grade 12. Presently, she holds the position of Accountant, Pay Grade 23. In August of 1972 the Petitioner was promoted to the position of Accounting Contract Specialist. The individual who had held this position, Mr. Ray Groseclose resigned and Petitioner was promoted to that position. While Mr. Groseclose was in that position it was classified as Pay Grade 26 with a salary of $3.90 per hour. When the Petitioner was promoted to that position she had been classified as Pay Grade 15. Shortly after the Petitioner's promotion to the Accounting Contract Specialist the position was downgraded from a Grade 26 to a Pay Grade Actually, the Petitioner was never paid at the Grade 26 level and her first increased pay check reflected the Grade 21 classification. The Petitioner contends that the failure to promote her into this position at the same pay grade that was enjoyed by her male predecessor indicates sexual discrimination against her for which she should be granted relief in the form of back pay due. The Accounting Contract Specialist position required one holding that position to monitor contracts entered into by the school board and determine that payments were made when required and that a bookkeeping system was maintained to keep track of the status of school board contracts. Ray Groseclose, who held the position prior to the Petitioner's appointment, had no formal education in the field of accounting or bookkeeping, however, he did receive some training in that area while with the Armed Forces. Likewise, the Petitioner had no accounting background, but her experience and initiative were enough for her to perform very satisfactorily in this position. All witnesses who testified regarding the Petitioner's ability stated that she did equally well, if not better, than Mr. Groseclose and assumed more duties than he had in that position. The Petitioner testified that she did not learn until September of 1973, a year after her promotion, that the position was previously classified as a Grade 26. However, when receiving her appointment papers in September of 1972, the Petitioner did sign a notice of reclassification for which indicated that the job was being downgraded. On behalf of the Respondent, testimony was received from Dr. D.J. Harrison, who was now the superintendent of the Savannah-Chatham School Board, Savannah, Georgia. Previously, between 1971 and 1973, he was employed by the Brevard County School Board and among his duties he was supervisor over the Accounting Contract Specialist. Dr. Harrison testified that while Ray Groseclose held that position he had intended to downgrade it, but had not done so before Ray Groseclose resigned. He stated that the position as originally assigned, included the administration of contracts. After Groseclose resigned it was decided to limit the job to accounting and that a Mr. Campbell would handle the administration of contracts. Other testimony, however, indicated that Ray Groseclose never handled the administration of contracts and that the Petitioner actually performed more responsibilities than were assigned to Ray Groseclose. In any case, it appears that the school board came to a realization that the Accounting Contract Specialist position could be filled by a competent individual at a Pay Grade 21 rather than Pay Grade 26 and that when Ray Groseclose resigned it appeared to be a convenient opportunity to downgrade the position. The evidence presented at this hearing does not affirmatively establish discrimination against the petitioner. It is possible the position in question was downgraded because of the petitioner's sex, but a finding of fact cannot be based on a mere possibility. All the evidence presented at this proceeding is consistent with valid administrative practiced on the part of the school board. No evidence was presented on behalf of the petitioner to indicate other examples of possible sexual discrimination on the part of the School Board which could establish a coarse of conduct. In fact, evidence was presented that the U.S. Department of Labor investigated the respondent school board and concluded, with the possible exception of the petitioner, there were no examples of sex discrimination evident. If there was any sexual discrimination practiced against the Petitioner, none was proven. All that is indicated by the evidence taken in this case is that the Petitioner was promoted from a position with the Brevard County Board from a Grade 15 to a Grade 21. The position to which she was promoted was downgraded at approximately the time of her promotion but it does not appear that the Petitioner's sex had anything to do with the downgrading of this position.
