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FLORIDA EDUCATION ASSOCIATION vs DEPARTMENT OF EDUCATION, 01-001724RU (2001)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida May 04, 2001 Number: 01-001724RU Latest Update: Oct. 21, 2002

The Issue Petitioner Florida Education Association (FEA) filed a Petition to require Respondent Department of Education (DOE) to initiate rule-making and has challenged the validity of two documents issued by DOE, alleging that they are unpromulgated rules. The challenged documents are a January 22, 2001, memorandum to District Management Information System Coordinators and District Assessment Coordinators and a March 23, 2001, memorandum to District School Superintendents, regarding "Responsible Instructor--Reading, Writing, and Mathematics."

Findings Of Fact Petitioner FEA is an employee association representing over 100,000 Florida educators for collective bargaining, representation in administrative and legal proceedings, professional development, and political activity. Its standing to bring this challenge was stipulated. Two DOE memoranda are challenged herein as unpromulgated rules. It was stipulated that the memoranda were, in fact, disseminated to the recipients indicated on them. Their content is not at issue and is recited in Findings of Fact 23-25, infra. Petitioner's witnesses believe that teacher evaluations and compensation ultimately will be tied to student performance. A law is already in place providing for the award of bonuses to "outstanding" teachers, and efforts to implement evaluation of teachers based on student performance are underway in some school districts. Petitioner's witnesses have concluded that the challenged memoranda establish statewide criteria for identifying the "responsible instructor" for teacher (or educator) assessment, credit, and/or monetary rewards, and that the use of the "responsible instructor's" social security numbers will be subject to abuse of confidentiality. Petitioner's witnesses were unaware of rulemaking activities associated with amending Rule 6A-1.0014, Florida Administrative Code, in the year 2000 and were unfamiliar with the Rule itself. The Rule itself has not been challenged in this proceeding. The Commissioner of Education is charged with maintaining an integrated information system for educational management. Section 229.555(2), Florida Statutes. This is called the Comprehensive Management Information System. The system must collect data from school districts to determine student, school, and district performance, and to support management decisions at the departmental, district, and school levels. The Commissioner of Education's responsibilities include providing operational definitions for the proposed system (Section 229.555(2)(a)2., Florida Statutes), determining information and data elements required for management decisions (Section 229.555(2)(a)3., Florida Statutes) and developing standardized terminology and procedures. (Section 229.555(2)(a)4., Florida Statutes). Section 229.57, Florida Statutes, establishes the purpose, scope, and criteria of assessing student performance, and school and district accountability. The State Board of Education is authorized to adopt rules to administer the provisions of both laws. Sections 229.555(3) and 229.57, Florida Statutes. DOE's Bureau of Education, Information, and Accountability Services maintains the database established by Section 229.555, Florida Statutes. DOE has promulgated administrative rules to implement Section 229.555, Florida Statutes, which rules have been officially recognized for this proceeding. There is no DOE rule which, in and of itself, refers to "responsible instructor" or "responsible instructor data element." Those terms also are not specifically used anywhere in the Florida Statutes. Section 229.57(11)(e)1., Florida Statutes, was amended, effective upon becoming law in June 1999 (see Section 7, Session Law 99-398), to read: The statistical system shall use measures of student learning, such as the FCAT, to determine teacher, school and school district statistical distributions, which distributions: Shall be determined using available data from the FCAT, and other data collection as deemed appropriate by the Department of Education, to measure the differences in student prior year achievement against the current year achievement or lack thereof, such that the "effects" of instruction to a student by a teacher, school, and school district may be estimated on a per-student and constant basis. DOE considered that amendment to be a legislative directive to DOE to measure the "effects" of instruction by a teacher, school, and district, using data from the Florida Comprehensive Assessment Test (FCAT) "and other data collection as deemed appropriate by the Department of Education." Upon that basis, DOE set out to determine what method to use to collect the data. After considering various alternatives, DOE selected the "responsible instructor" approach. DOE held workshops and solicited input to determine the appropriate method of implementing the requirements of Section 229.57(11)(e)1., Florida Statutes. Three methodologies were considered: Using existing Management Information System components which were not adequate to meet the new statutory language; doing laborious surveys on the day each FCAT was administered, which surveys would be accurate only for that single day; or using the responsible instructor element. Ultimately, the responsible instructor element was selected by Lavan Dukes and Thomas Fisher after talking to District Management Information System officials and testing officials and key staff members. Lavan Dukes is DOE's Bureau Chief for Education, Information, and Accountability Services. Thomas Fisher is Administrator of DOE's Assessment and Evaluation Section. The "responsible instructor element" was first applicable to the 2000-2001 school year. The "responsible instructor element" was first included within the Comprehensive Management Information System in April 2000, effective July 2000. It provides a four-page form for reporting and the following instructions: Submit only for Survey Period 2 for all students in grades 3-10 to identify teacher primarily responsible for instructing the student in reading, writing end mathematics. Report Social Security Numbers for instructors in each of the categories, reading, writing and mathematics. ELEMENTARY SELF-CONTAINED: Social Security Numbers of teachers of students in elementary self-contained classes may be reported in all three responsible instructor categories. MIDDLE AND HIGH SCHOOL LANGUAGE ARTS: unless a student has separate reading and writing classes, the language arts teacher would be reported for both the reading and writing category. KEY FIELDS: the key fields for this format are item numbers 1, 4, 5, 6, and 7. If a key field needs to be changed, the record must be deleted and resubmitted as an add. (Joint Exhibit 4) As such, the "responsible instructor element" became part of a voluminous publication entitled 2000-2001 Automated Student Information System, Volume 1 ("The Manual"). (Joint Exhibit 3). Rule 6A-1.0014, Florida Administrative Code, prescribes data collection on an annual basis. The Rule was initially adopted in 1987. It has been amended 13 times between December 21, 1987, and October 17, 2000. Among other things, Rule 6A-1.0014, Florida Administrative Code, now incorporates, by reference, 2000-2001 Automated Student Information System, Volume 1 ("The Manual"). The collection of the "responsible instructor element" is contained for the first time in that publication as an automated student reporting format. Rule 6A-1.0014, Florida Administrative Code, cites as its legislative authority only Sections 228.093(3)(d), 229.555(2), 229.565.(3), and 229.781, Florida Statutes, and does not expressly purport to implement Section 229.57, Florida Statutes. Rule 6A-1.09422, pertaining to the creation, administration, and security of the FCAT, and Rule 6A-1.09981, involving implementation of Florida's system of school improvement and accountability do name Section 229.57, Florida Statutes. The evidence further shows that after the data element was included in the Rule, revised in October 2000, DOE staff conducted workshops around the state to explain and clarify changes in DOE's database requirements. Only after receiving input at its instructional workshops did DOE circulate the two memoranda at issue herein. On January 22, 2001, DOE promulgated a memorandum from Lavan Dukes and Thomas Fisher to District Management Information System Coordinators and District Assessment Coordinators throughout Florida. The memorandum's stated subject was "Responsible Instructor Data Element," and it states: Previously, you were given instructions by the Department's Education Information and Accountability Services Bureau relative to a new data element called "Responsible Instructor-Reading, Writing and Mathematics." The inclusion of this data element is related to the Department of Education's efforts to build a value-added accountability system in accordance with Section 229.57, F.S. We have received a number of inquiries concerning how districts should define and collect the requested data. This memorandum is being distributed to assist districts into [sic] submitting accurate and valid information about the "responsible instructor." The intent of the data element is to link each individual student to the person(s) primarily responsible for providing instruction in reading, writing and mathematics. While the concept is clear, in practice there may be more than one instructor identified. [T]he [sic] student at the high school level may be taking two mathematics courses, or the student may not be enrolled at the moment in either an English or mathematics course. This means that decisions about how to define and identify the "responsible instructor" must reside with the district and school staff. We are unable to provide a complete list of rules to follow since we cannot imagine all the permutations that may occur. We have received a number of specific questions that can be used to illustrate the principles that may be followed, and these are discussed in the attachment to this memorandum. Review of these examples should be of assistance to you in completing the data request. We recognize that there are other situations that will arise that have not been addressed in the attachment. Hopefully you will be able to make your local decisions within the framework established in this memorandum. After you have completed the data collection activities and have had time to think about the process, please send a note to either of us with your suggestions for improvements in the future. Thanks for your assistance. (Emphasis supplied). Attached to the foregoing memorandum was a document entitled "Questions and Answers About the Responsible Instructor Data Element": Q: Should the district inspect the student's course/class schedule to determine who the responsible instructor is? Should this be tied to a particular date? A: Each district must determine whether it will collect the data from original sources through the use of a paper form or if it will analyze existing computer files to extract the information. In either case, the data collection activity is associated with Survey 3. The "responsible instructor" will be either the person currently delivering the instruction or the person who most recently provided the instruction. The latter would be illustrated by a student who took a mathematics course in the fall semester but was not registered in a mathematics course at the time of the Survey 3. Q: In a block schedule school, a student might not currently be enrolled in either an English or mathematics course at the time of Survey 3. He/she may have taken such courses in a previous block. How should the data be returned? See previous question. The task is to identify the teacher most recently delivering instruction to the student in the specified subject area. This may well be a teacher who taught English or mathematics in the previous round of the "block schedule." Q: How should one respond if the student actually is enrolled in two English or math courses at the time of Survey 3? A: The decision must be made at the local level as to whether there is a single person who is primarily responsible for instruction in reading, writing, or mathematics. One way to handle the situation would be for one teacher's name to be entered but to understand that this person's name represents the work of two teachers. This principle could be followed in situations where the student is in a team teaching classroom. If this approach is used, backup information must be retained at the local level to interpret any future data analyses that may be disseminated. Q. If a student is not currently enrolled in a reading, writing or mathematics course how should the data element be defined? It is difficult to imagine a situation in which a student would not be receiving instruction in these areas, but if it happens, the data element should be zero filled. Q: Is the Department requesting one record per student? A: Yes. Q: Can the Department specify what course numbers to use from the MIS data fields? A: No. This is a local decision related to how your data is organized and maintained. Q: What course numbers would be used for reporting "reading and writing?" A: In most instances the student will be receiving instruction in reading and writing through the English courses. At the elementary level, either a self-contained classroom or a team teaching situation would be encountered. The former would require identification of a single teacher whereas the latter would require a solution as described above in question number 3. A high school student could be taking English as well as a special course in Reading; however most students do not take a course titled "Reading." If a student is enrolled in two such courses, the decision of how to code it should be made at the local level. Q: Should the district code the courses in which the student is enrolled at the time of Survey 3 or courses the student may have taken earlier in the school year? A: The records should reflect the current courses except as discuss [sic] question number 1 above. Q: How would the district code a student who is taking a course in the Adult Evening School to make up the credit in the regular school program? A: No courses taken in the Adult Evening School should be coded. Q: How should districts report ESE students? A: Districts have a choice of either coding all students or coding only those students who are pursuing an instructional program leading to a regular high school diploma. If you code a student who does not actually take the FCAT there will be no match and no further analysis by the department for that student. Q: Should we code students for attending Juvenile Detention Centers? A: Yes. Q: Should we code the responsible instructors for students attending Charter Schools? A: Yes. On March 23, 2001, DOE promulgated a memorandum to District School Superintendents from Betty Coxe, Deputy Commissioner for Educational Programs. That memorandum's stated subject was "Clarification of Memorandum dated January 22, 2001- Responsible Instructor-Reading, Writing and Mathematics." It reads: The new data element "responsible instructor- reading, writing, and mathematics" that is being collected will never be used by the Florida Department of Education to evaluate individual teachers. This new data is being collect [sic] at the state level for two primary reasons: to provide information to the State which allows the determination of the success of teaching programs and to track state-level educational trends. School districts have the sole responsibility of conducting teacher evaluations. Florida has a number of teacher-related initiatives that clearly need this data for program evaluation purposes. These include, but are not limited to, programs associated with teacher preparation, alternative certification, and interstate licensure reciprocity. Information must be gathered on the relative success of these programs to guide state policy. Trends must be identified in order to promote a system of ongoing quality improvement. Furthermore state law (F.S. 231.29) says that test scores are just one criteria [sic] used by school districts for evaluating teachers. Other criteria that districts should use are maintaining classroom discipline, knowledge of subject matter, ability to plan and deliver instruction, etc. In other words, there are various other criteria besides test scores that should be taken into account before school districts can evaluate teachers. Please disseminate this information as widely as possible within your district. Your assistance is, as always, much appreciated. The January 22, 2001, memorandum does not direct the school districts to submit the data element in any particular way and does not impose sanctions for any school district's failure to comply with its contents. It does contain the interesting language, for purposes of the case at bar, that DOE is "unable to provide a complete list of rules to follow since we cannot imagine all the permutations that may occur." The document issued on March 23, 2001, does not provide any directives as to the method for designating the data element or impose any sanctions. At most, it suggests possible alternatives in reporting, with final decisions left up to the reporting agency. Indeed, if any sanctions exist with regard to the two memoranda, the sanctions are imposed by existing rules or statutes. These memoranda were intended to advise districts as to possible optional methods of reporting the new data element. If they had not been generated, school districts still would be required to file the new data element. In either case, schools and school districts (not DOE) make the ultimate determination of how to report the data element. Petitioner presented no evidence to demonstrate that the challenged memoranda impose any requirements or solicited any information not already specifically required by statute or rule. The concerns of Petitioner's members related in Finding of Fact 3 are speculative. To the extent that educator assessment, credit, and/or money awards are at issue, they would be affected, if at all, by their respective district's decisions at a different level and in a function(s) subsequent to DOE data collection. These memoranda do not impinge on independent evaluations, etc., by school districts. As to concerns over confidentiality of social security numbers, there was no evidence presented that the new data element does anything other than collect data on registered educators whose social security numbers are already known to the districts and DOE for retirement and certification purposes. No reason was demonstrated to suppose that a breach in the confidentiality of those social security numbers would occur as a result of the new data element or as a result of the challenged memoranda. There was anecdotal testimony to the effect that teachers have been placed in improper competition with one another due to these memoranda (allegedly unpromulgated rules) and that, as a result of this competition, apparently based on some teachers' speculation as to what the respective school districts may ultimately do with the data collected, those teachers are teaching reading at the expense of other subjects and/or are emphasizing reading about science and other technical subjects while eliminating more worthy "hands-on" projects and laboratory experiments of greater benefit to their students. Similar anecdotal testimony suggested that all teachers are now teaching so that their students read objective textual as opposed to "fun" or subjective material and so that their students are able to answer the type of questions posed on the FCAT, instead of gaining a broader range of knowledge. While these side- effects of certain teachers' perceptions of how their respective districts may use the data gathered and processed by DOE may demonstrate that the concept of accountability of teachers via the FCAT is either good or bad or valuable or not valuable, it fails to define the memoranda at issue as rules.

Florida Laws (4) 120.52120.54120.56120.68 Florida Administrative Code (8) 6A-1.00116A-1.00146A-1.094016A-1.09426A-1.094226A-1.099816A-10.0246A-6.09091
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STATEWIDE PROCESS SERVICE OF FLORIDA, INC. vs DEPARTMENT OF TRANSPORTATION, 95-005035BID (1995)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Oct. 12, 1995 Number: 95-005035BID Latest Update: Mar. 18, 1996

The Issue This matter is a bid protest filed by STATEWIDE challenging the DEPARTMENT's decision to award a contract for service of process services to All American Legal Service, Inc., (herein after All American). The DEPARTMENT's position was chat a company could meet the two years of experience in serving legal process requirement if key personnel had at least two years of experience. All American was the lowest bidder on ITB-DOT-95/96-9003. STATEWIDE was the second-lowest bidder. STATEWIDE protested, claiming the DEPARTMENT should have rejected All American's bid on the grounds that All American did not have two years of experience and had not identified its key personnel or provided the DEPARTMENT with copies of circuit court issued certifications to serve process. During the formal hearing on October 23, 1995, testimony was received that All American is the corporate successor of a firm that was formed approximately 23 months prior to the bid being submitted and had as part of its organization an independent contractor, Robert Simmons, who was a licensed process server and who lacked two years of experience in serving process at the time the bid was submitted. All American also retained the services of the founder and former owner, Jon C. Martin, to act as an advisor. Mr. Martin lacked two years of experience in serving civil process at the time the bid was submitted. The DEPARTMENT offered testimony that it did not require the bidding entity to have been in existence for more than two years so long as the company had employees (either direct employees or independent contractors) with the requisite experience. DEPARTMENT officials also testified that no personnel were considered key personnel by the DEPARTMENT. DEPARTMENT'S EXCEPTIONS TO RECOMMENDED ORDER The DEPARTMENT's first exception is rejected as irrelevant. The DEPARTMENT's remaining exceptions are rejected and need not be individually reached inasmuch as the conclusion of this Order is chat a decision to waive the two years of experience requirement in the bid documents would be an abuse of discretion. To describe a requirement as so essential as to require no consideration of the bid when it is not met, and later construe the bid documents as allowing waiver of the requirement is, by definition, without reason and arbitrary

Findings Of Fact The DOT issued ITB-DOT-95/96-9003 (the ITB) soliciting bids from contractors to provide for one year on an as-needed-basis to its General Counsel all services necessary to effectuate service of process, service of subpoenas, and service of other papers statewide in accordance with the applicable laws to be submitted on August 16, 1995. AALSI submitted the lowest bid for the ITB. Statewide submitted the second lowest bid for the ITB. Section 1.5 of the ITB, Joint Exhibit 1, stated as follows: GENERAL Bidders should meet the following minimum qualifications. Have been actively engaged in the type of business being requested for a minimum of two years. When submitting the bid, each bidder shall submit a written statement, (FORM D), detailing their qualifications which demonstrate they meet the minimum qualifications contained in Subparagraph 1.5.1.1. Bidders' failure to prove the above item(s) will constitute a non-responsive determination. Bids found to be non-responsive shall not be considered. (Emphasis in original.) A representative of the DOT testified and both parties agree that the word "should" in the provision above is mandatory and in context means "shall." It was important to DOT that bidders have at least two years experience in the business of serving process, and DOT intended to reject any bids which did meet this requirement. Exhibit "A" to the ITB, "Scope of Services," Section B.1, "Services Required," and B.5, "Who Shall Provide Services," provided respectively that: B.1 Services Required The contractor shall provide all services necessary to effectuate service of process, subpoenas and other papers throughout the state of Florida, and shall provide such services in accordance with the laws of the state of Florida. . . B.5 Who Shall Provide Services Services shall be provided by individuals in compliance with Chapter 48, Florida Statutes, and other applicable law. Section 48.29, Florida Statutes, requires that persons serving process be certified by the chief judge of each judicial circuit. The business being requested, as the term is used in the ITB, is all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida for civil actions in accordance with the laws of the State of Florida. No evidence was received that the DOT is involved with the service of arrest or search warrants. Paragraph 1.5.2, "Qualifications of Key Personnel," provides that: Those individuals who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Project Manager. Where State of Florida registration or certification is deemed appropriate, a copy of the registration of certificate should be included in the bid package. The ITB required that a bidder demonstrate that its key personnel had experience in providing all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida in accordance with the law. Form D asked bidders to answer the following questions: How many years has your business been serving process? In what counties are your currently serving process? Describe your current capabilities to serve process in the State. If you do not have the current capability to serve process in all counties of the State of Florida, describe the changes that you will make in order to be able to serve process in all counties. Describe the means by which your business would accomplish routine services of process on a statewide basis under the Scope of Services of the Invitation to Bid. Describe the means by which your business would accomplish priority service of process on a statewide basis under the Scope of Services of the Invitation to Bid. The ITB contained a provision which permitted it to waive minor informalities or irregularities in bids received which were a matter of form and not substance. The requirement that the bidder have two years experience is not, under the terms of the ITB, a waivable provision, but was part of the essential minimal requirements which the bidder must have. In response to the first question on Form D, AALSI responded: All American Legal Service, Inc. and its predecessor firm, Jon C. Martin & Associates, have been in business over two years and provides nationwide service for its existing clients. DOT accepted the representation of AALSI in evaluating whether it possessed the required two years of experience, and concluded AALSI was qualified. DOT also evaluated the other responses by AALSI to Form D to assess its approach to providing the scope of work required by the ITB, and concluded it was qualified. Evidence presented at hearing revealed that Jon C. Martin, a former law enforcement officer, had begun a private investigation business as a sole proprietorship in September, 1993. Mr. Martin, who testified at hearing, found that it was more profitable to serve process than to conduct investigations, and changed the emphasis of the business; however, Mr. Martin was not personally authorized to serve process nor did he serve any process until May, 1994, although he had served arrest warrants as a law enforcement officer. Mr. Martin used the services of qualified process servers to serve process in the central Florida region; however, these personnel were not employees of Martin. Mr. Martin was a member of the National Association of Professional Process Servers (NAPPS), whose members are qualified to serve process; and Mr. Martin used this service to find the names of persons qualified to serve process in those counties and jurisdictions in which he did not have employees or contract personnel. Mr. Martin changed the name of his business to All American Process, and ultimately incorporated under that name. Mr. Martin sold All American Process in May, 1995 to Andrew Forness and Forness' father, who changed the name of the corporation to All American Legal Service, Inc. Mr. Martin agreed to be an unpaid advisor/consultant to Mr. Forness after the sale. Mr. Forness has virtually no experience as a process server, and had never been qualified to serve process or served process until after May, 1995. Mr. Forness is dependent upon Robert Simmons, an independent contract process server, for daily advice on service of process. Mr. Forness has continued to use the network of personnel used by Mr. Martin, who are not employees of the business, and NAPPS to serve process. The business does employ two full-time, paid certified process servers, who reside and work in central Florida area. One of these employees, Noah Medeiros, was first authorized to serve process in Orange County in September 1995, and is not authorized to serve process in any other county in Florida. No information was provided on the other employee. Mr. Forness did not identify anyone as a key individual in the bid.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That DOT not award the bid to AALSI which was determined to have been a nonresponsive bidder, and that it consider awarding the bid to the next lowest, responsive bidder, Statewide. DONE and ENTERED this 18th day of December, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-5035BID Both parties submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraphs 1,2 Paragraph 1 Paragraph 3 Paragraph 2 Paragraph 4 Paragraph 3 Paragraph 5 Paragraph 4 Paragraphs 6,7 Paragraph 5 Paragraph 8 Paragraph 6 Paragraph 9 Paragraph 8 Paragraph 10 Paragraph 9 Paragraph 11 Paragraph 6 Paragraph 12 Conclusion of Law Paragraphs 13,14 Subsumed in Paragraph 13 Paragraphs 15-20 Subsumed in Paragraphs 16-18 Paragraphs 21-26 Subsumed in Paragraphs 18-19 Paragraph 27 Subsumed in Paragraphs 7,8 Paragraph 29 Ultimate finding Paragraph 30 Paragraph 14 Paragraph 31 Irrelevant Paragraph 32 Ultimate finding Respondent's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 5 Paragraph 5 Paragraph 11 Paragraph 6 Subsumed in Paragraph 5 Paragraph 7 Subsumed in Paragraph 12 Paragraph 8 Not necessary Paragraph 9 Paragraph 13 Paragraph 10,11 Subsumed in Paragraph 14 Paragraph 12-16 Irrelevant or argument Paragraph 17 Paragraph 9 Paragraph 18-25 Irrelevant or argument Paragraph 26,27 Subsumed in Paragraphs 2,3 Paragraph 28-33 Subsumed in Paragraph 16 Paragraph 34-41 Subsumed in Paragraph 19 COPIES FURNISHED: J. Layne Smith, Esquire 2804 Remington Green Circle, Suite 4 Tallahassee, FL 32308 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450

Florida Laws (4) 120.53120.57120.6848.29
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TERRY H. MEEK vs DEPARTMENT OF MANAGEMENT SERVICES, 01-002088RU (2001)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida May 25, 2001 Number: 01-002088RU Latest Update: Feb. 01, 2002

The Issue The issue is whether Respondent's statements as set forth in a letter dated April 30, 2001, are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.

Findings Of Fact Respondent is an agency of the State of Florida. At all times relevant here, the Florida Capitol Police was a division within Respondent's Facilities Program. The Florida Capitol Police is an accredited law enforcement agency. Its purpose is to provide building security and other law enforcement services. The State of Florida employs individuals in one of four distinct, statutorily defined services: Senior Management Service, Selected Exempt Service, Career Service, or Other Personal Services. At all times relevant here, the Director of Florida Capitol Police was an employment position that was classified within the Senior Management Service. Petitioner is a sworn law enforcement officer. On February 24, 1998, Respondent offered Petitioner an appointment to the position of Director of Florida Capitol Police. At that time, Petitioner understood that the appointment was to a position classified within the Senior Management Service. To the extent possible, Petitioner negotiated the terms of his employment. However, he understood that his position as Director of Florida Capitol Police included all of the benefits and all of the terms of employment of a position established within the Senior Management Service. He knew that he would serve at the pleasure of Respondent's Secretary, as the agency head, if he accepted the job. On February 25, 1998, Petitioner accepted the appointment to Director of Florida Capitol Police. He executed a document acknowledging that he was relinquishing his career service rights. From that time forward, Petitioner was compensated and evaluated as a Senior Management Service employee. He enjoyed all the benefits of his new position. Petitioner was the highest-ranking sworn law enforcement officer in the Florida Capitol Police, holding the "rank" of colonel. He did not report to any higher sworn law enforcement officer. As Director of Florida Capitol Police, Petitioner was responsible for leading and directing the operation of a statewide law enforcement organization, including the administration and oversight of a $6.2 million-dollar budget. Part of Petitioner's duties required him to maintain appropriate relationships with the Sheriff of Leon County and the Chief of the Tallahassee Police Department for support in joint operations when necessary. Petitioner was a member of the Florida Police Chiefs' Association, the State Law Enforcement Chiefs' Association, and the National Police Chiefs' Association. In 1999, a former employee of the Florida Capitol Police commenced a legal action in the United States District Court for the Northern District of Florida against Respondent. The former employee alleged sex discrimination and sexual harassment by the Florida Capitol Police, specifically by Petitioner. A trial was conducted in the lawsuit, Goldwich v. Department of Management Services, USDC ND Fla., Case No. 99-CV-512 (1999) in early February 2001. Petitioner testified as a defense witness at the trial. Several other Florida Capitol Police officers were interviewed as potential witnesses or called to testify at the trial. Respondent prevailed in the district court action. On February 2, 2001, Respondent's Secretary transferred the internal affairs investigation function of the Florida Capitol Police from the Florida Capitol Police to Respondent's Office of Inspector General. Thereafter, the Chief Investigator, Captain Joe Wallace, worked out of the Inspector General's office. On February 15, 2001, Petitioner and Respondent's Inspector General entered into a Memorandum of Understanding regarding the "credentialing" of Chief Investigator Wallace. The purpose of the memorandum was to formulate and establish a commitment between the Office of the Inspector General and the Florida Capitol Police to support the training and educational requirements for sworn law enforcement personnel assigned to each entity. On March 2, 2001, Respondent's Office of the Inspector General received an internal complaint from Sergeant Edwin Maxwell, a subordinate officer of the Florida Capitol Police. Said complaint alleged that Petitioner had retaliated against Sergeant Maxwell for testifying at the Goldwich trial. Sergeant Maxwell's allegations also implicated Petitioner's subordinate, Major Robert G. Tippett, as having participated in the alleged retaliation. On or about March 7, 2001, Respondent's Inspector General instructed Petitioner to report to the Florida Capitol Building, specifically to the offices of the Governor's Chief Inspector General. Respondent's Inspector General, Chief Investigator Wallace, and an Assistant Florida Inspector General from the Governor's Office of Inspector General were present when Petitioner arrived at the Capitol. At that time, Petitioner was presented with a memorandum advising that he was the subject of a formal investigation. The March 7, 2001, memorandum stated that Respondent's Inspector General initiated the investigation pursuant to a complaint. According to the memorandum, the principal allegation that formed the basis of the investigation was that Petitioner had engaged in one or more of the following: retaliation, conduct unbecoming, and/or violation of law. Sergeant Maxwell's complaint and a copy of Section 112.532, Florida Statutes, was attached to the memorandum. During the March 7, 2001, meeting at the Capitol, Respondent's Inspector General advised Petitioner that he had a right to representation by counsel. After a brief discussion, Petitioner elected to seek private counsel. Later on March 7, 2001, Petitioner and his attorney returned to the Governor's suite at the Capitol. Upon their arrival, Petitioner was advised again of his rights under the law enforcement officers' and correctional officers' rights, which are codified at Section 112.532, Florida Statutes. Respondent's Inspector General and Chief Investigator Wallace then proceeded to interview Petitioner. Respondent's Inspector General inquired into the complaint against Major Tippett, performed an investigation, and issued an Executive Summary of the investigation dated March 22, 2001. This report concluded that Major Tippett's alleged violations related to conduct unbecoming, retaliation, and violation of law were unfounded. Respondent's Inspector General inquired into the complaint against Petitioner, performed an investigation, and prepared a draft report of the investigation. After consulting with the Chief Inspector General in the Office of the Governor, Respondent's Inspector General issued an Executive Summary of the investigation dated March 26, 2001. This report concluded that Petitioner had engaged in conduct unbecoming. The report also concluded that other alleged violations by Petitioner, including retaliation and violation of law, were unfounded. According to the March 26, 2001, Executive Summary, Respondent's Inspector General recommended that Petitioner be removed from his position as Director of Florida Capitol Police. The report states as follows in relevant part: This recommendation is made after carefully considering the following factors and informed by the fact that the Director serves entirely at the discretion of the secretary: The previous OIG report related to Capitol Police and the issues raised therein. (See attached) The finding of the jury in the US District Court case, filed by Officer Lisa Goldwich, that her working conditions were made so intolerable, by the defendant, that she was forced to resign. (See attached) The finding of "conduct unbecoming an employee/officer" contained in the report above. The likelihood that future retaliation will be attempted against those individuals who participated in the Goldwich trial and against those who testified in the OIG investigation reported above. The ongoing morale problem within the Florida Capitol Police. Subsequently, Respondent's Inspector General prepared a Memorandum of Investigation dated April 2, 2001. This memorandum states again that allegations against Petitioner relative to retaliation and violation of law were unfounded but that allegations relative to conduct unbecoming were founded. The April 2, 2001, memorandum cites Respondent's Policies and Procedures Manual, Section 3.27, Discipline of Career Service Employees, as it relates to conduct unbecoming a public employee. It also cites to Section 110.403(1)(a), Florida Statutes, for the proposition that Respondent's Secretary had discretion to discipline Senior Management Service employees. On or about April 3, 2001, Petitioner and Major Tippett filed a civil suit in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Case No. 01-821. This suit included an Emergency Motion for Temporary Injunctive and Declaratory Relief. It alleged violations of Sections 112.532, 112.533, and 112.534, Florida Statutes. Petitioner subsequently voluntarily dismissed this civil action. On or about April 3, 2001, the General Counsel in the Office of the Governor, requested the Florida Department of Law Enforcement (FDLE) to review and complete Respondent's internal investigation. Thereafter, FDLE's Inspector General performed an investigation into the complaint against Petitioner and Major Tippett. FDLE's Inspector General eventually prepared an undated report of its review and investigation. The FDLE report states as follows in relevant part: As mentioned previously, the OIG report concludes that the alleged violations against Major Tippett were all unfounded. The alleged violations against Colonel Meek for (1) Retaliation and (2) Violation of Law were unfounded. The violation against Colonel Meek for Conduct Unbecoming was founded. Conduct Unbecoming a public employee is a violation of DMS Policy, Section 3.27(C)(2)(e). There is no definition of "Conduct Unbecoming" in DMS' policies or administrative rules. Based upon the interview of the subordinate supervisors regarding the statements made by Colonel Meek, the conclusions rendered by OIG are reasonable. Near the completion of the OIG investigation, IG Varnado prepared a draft report and discussed it with the Chief Inspector General, Marcia Cooke. The draft report did not contain any recommendation regarding a recommended action for the founded violation of Conduct Unbecoming. CIG Cooke instructed IG Varnado to include such a recommendation. IG Varnado recommended that Colonel Meek be removed from his position and discussed the recommendation with Secretary Cynthia Henderson. This RECOMMENDATION was included in the INVESTIGATIVE REPORT dated April 2, 2001. The RECOMMENDATION contained five cited reasons to support Colonel Meek's removal. The OIG investigative report does not specifically support reasons (1), (4), and (5). However, based upon the below recommendation, further discussion of these items is rendered moot. Generally, an investigation regarding possible administrative misconduct is handled independently from the determination to impose action following a sustained finding of a violation. IG Varnado acknowledged that he does not routinely recommend action following an administrative violation. However, according to IG Varnado, the rank of the person involved led him to seek assistance from the Chief Inspector General's Office. It is recommended that the RECOMMENDATION regarding the proposed administrative action be removed from the investigative report. The determination of any action resulting from the OIG investigation should be left solely to the discretion of the Secretary for the Department of Management Services. The FDLE report also addresses Respondent's violations of Sections 112.532(1)(b), 112.532(1)(g), and 112.533, Florida Statutes, which were the subject of the civil suit filed by Petitioner and Major Tippett. The report concludes that these statutory provisions were applicable to Major Tippet but that the question whether they were applicable to Petitioner, as the head of the Florida Capitol Police, was also the subject of the civil suit. By letter dated April 30, 2001, Respondent's Secretary advised Petitioner that the investigation of Sergeant Maxwell's complaint was complete. The letter states as follows in relevant part: [B]ased on the investigation conducted by the DMS Inspector General, as reviewed and completed by the Florida Department of Law Enforcement Inspector General, it has been determined that allegations against you relating to retaliation and violation of law are unfounded, and that allegations against you relating to conduct unbecoming a public employee are founded. Attached hereto for your reference is a copy of the pertinent report of the FDLE Inspector General's Office. As set forth in the attached report (page three), the basis for the conclusions that you are guilty of conduct unbecoming a public employee is that you made statements in the days or weeks following the trial of the civil suit filed by former officer Lisa Goldwich to subordinate officers regarding the removal of duties involving Sgt. Maxwell--who testified for the plaintiff at the trial--and possible adverse action for him and others who testified. Because of this conduct unbecoming a public employee, you are hereby suspended without pay for a period of fourteen (14) days, after which you will return to your post. You are also hereby required to participate in supervisor training with (sic) ninety (90) days. Respondent's agency head, in the exercise of her discretion, made the ultimate decision to suspend Petitioner. In taking the disciplinary action, the agency head did not reference or assert any reliance on career service rules to support Petitioner's discipline. The April 30, 2001, letter was not disseminated to other agencies or to other Senior Management Service employees. The agency head's April 30, 2001, letter was an action taken exclusively regarding Petitioner. It did not affect or impact any other agency, employee, or class of employee. The administration of personnel matters regarding Respondent's Senior Management Service employees did not change following Petitioner's April 30, 2001, discipline. Respondent has not promulgated rules regarding the discipline, suspension, or termination of Senior Management Service employees because such rules are not required. Petitioner resigned his appointment as Director of Florida Capitol Police on July 31, 2001. He is no longer employed by the State of Florida.

Florida Laws (12) 110.205110.402110.403112.532112.533112.534120.52120.54120.56120.569120.57120.68
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MAVIS R. GEORGALIS vs DEPARTMENT OF TRANSPORTATION, 03-004665SED (2003)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Dec. 10, 2003 Number: 03-004665SED Latest Update: Sep. 01, 2005

The Issue The issue in the case is whether Petitioner’s reclassification and transfer from career service to the selected exempt service pursuant to Section 110.205(2)(x), Florida Statutes (2001), was valid and lawful. All citations are to Florida Statutes (2001) unless otherwise stated.

Findings Of Fact Prior to July 1, 2001, Petitioner was a career service employee of Respondent, for whom she had worked since 1988. On that date, Petitioner was involuntarily reclassified as a selected exempt employee of Respondent. Both before and after her reclassification, Petitioner’s job required her to act as a liaison and contract administrator for technical consulting contracts relating to Respondent’s information technology systems. Respondent contends that it reclassified Ms. Georgalis to selected exempt service in July 2001 as a result of amendments to Section 110.205(2)(x), Florida Statues. Consequently, the Section then read, in pertinent part, as follows: (2) EXEMPT POSITIONS.--The exempt positions that are not covered by this part include the following: * * * (x) Effective July 1, 2001, managerial employees, as defined in s. 447.203(4), confidential employees, as defined in s. 447.203(5), and supervisory employees who spend the majority of their time communicating with, motivating, training, and evaluating employees, and planning and directing employees' work, and who have the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees or effectively recommend such action, including all employees serving as supervisors, administrators, and directors. Respondent reclassified all persons who were "Level VI managers and Level 5 supervisors" to select exempt service as a result of the content of Section 110.205(2)(x), Florida Statutes. Respondent did not confirm that the responsibilities and duties of the position occupied by Petitioner necessitated reclassification to select exempt employee status. Petitioner’s job duties were substantively different from other persons within the DP Level VI occupational group.1 Petitioner did not primarily oversee the work of Respondent's employees as required by the career service exemption. Moreover, she did not even oversee the work of non-governmental supplemental or augment persons who were providing services that could otherwise be provided by departmental employees, assuming such oversight is relevant to the statutory exemption. Petitioner's role was primarily that of liaison and coordinator between Respondent's management and end users of Respondent’s planned technology services, including Respondent's employees who would use the technology that was being developed, as well as construction companies and engineers outside Respondent's department who would ultimately use such technology in working on department's construction projects in the future. Another part of her duties was the administration of contracts between the Department and outside contractors, and in doing so she dealt with independent subcontractor technical consultants who had subcontracts with those outside contractors. These technical subcontractor consultants were not augment employees, and Petitioner was not knowledgeable enough to supervise them on a technical basis. In Petitioner's words, "They spoke an entirely different language." She presented them with broad goals formulated by higher management and served as the conduit to inform them as to whether their work product was acceptable to Respondent and other end users. Petitioner’s job description, both before and after her transfer, confirmed that her position was a “senior level career service data processing position.” She was not required to spend the majority of her time “communicating with, motivating, training, and evaluating employees, and planning and directing employees’ work.” Petitioner was only expected to spend approximately 10 percent of her time overseeing the work of the two state employees working in her area. As established by her testimony, Petitioner never spent more than 3 percent of her time supervising those state employees. Furthermore, the two state employees assigned to specialized technologies were supervised by another employee after the Summer of 2001. At hearing, Respondent's only witness, suggested that Petitioner spent 60 percent of her time supervising “employees,” but he did not know what percentage of that time was spent overseeing the work of career service employees. Testimony of Respondent's witness, Nelson Hill, in this regard is not credited in view of his admission that he was not housed in the Rhynne Building in 2001, where Petitioner was located, and thus had no first-hand knowledge of the day-to-day activities of Petitioner or the other persons working at that building. In any event, a majority of the persons which Hill contends were “supervised” by Petitioner (six out of eight) were not employees of Respondent, but were rather independent subcontractors whose services Respondent retained through contracts with outside third parties. These technical consultants were subcontractors under state approved contracts. They were not “hired” by Respondent. Further, they were not paid by the State, but were rather compensated pursuant to their agreement with the third party state contractor. They were not provided with any insurance, pension, unemployment or worker’s compensation benefits, but were instead treated as true independent contractors; and, most importantly, they were not protected by career service protections, as would have been required if they were indeed state employees. In sum, Respondent's position, as expounded by Hill at the final hearing, is that the application of the exemption provided in Section 110.205(2)(x), Florida Statutes, may be justifiably applied to Petitioner due to Petitioner's alleged oversight of the independent subcontractors even though they were not “employees” of Respondent.2 The evidence does not support a conclusion that Petitioner spent a majority of her time “supervising” anyone. Petitioner’s position description confirms that her contract administration activities consumed no more than 35 percent of her time. By that description, Petitioner was required to provide “daily direction of consultant activities” and “manage, direct, and supervise technical and administrative staff." In actuality, Petitioner spent less than 25 percent of her time in such activities. Petitioner spent the vast majority of her time gathering and transmitting information regarding technological and budgetary needs and facilitating the flow of information from the end users (i.e., Respondent's employees or outside construction contractors and engineers who would use the proposed technology) to Respondent management and back again. Any oversight provided by Petitioner to the technical consultants was exactly the same as that provided to other third-party companies with which Respondent had contracts. These outside companies and technical consultants were engaged by Respondent because they had the skill to achieve the goals that were presented to them within the budget that was established by Respondent. Petitioner's interaction with these persons was not “supervision” of a state employee, but rather “contract administration.” Petitioner’s position descriptions specifically confirm that she was not a “managerial” or “confidential” employee as that term is defined in Section 447.203(4) and (5), Florida Statutes. Accordingly, based on the duties and responsibilities contained in Petitioner’s position description and the actual duties she performed, there is no basis for concluding that Petitioner was subject to exemption from career service as concluded by Respondent in July 2001.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Department of Transportation should enter a final order finding that the position held by Petitioner Mavis R. Georgalis on July 1, 2001, was not properly classified into the selected exempt service. Petitioner was, and should continue to be, classified as a career service employee. DONE AND ENTERED this 2nd day of July, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2004.

Florida Laws (3) 110.205120.57447.203
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SHARON J. PERKINS vs TALLAHASSEE COMMUNITY COLLEGE, BOARD OF TRUSTEES, 01-003302 (2001)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Aug. 17, 2001 Number: 01-003302 Latest Update: Aug. 19, 2002

The Issue The issue is whether Respondent discriminated against Petitioner by committing an unlawful employment action contrary to Section 760.10, Florida Statutes.

Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992. Petitioner, an African-American female, began working in the Financial Aid Office at Florida State University as a student from 1978 to 1983. After receiving her undergraduate degree, Petitioner worked for Florida State University as a Financial Aid Specialist, administering Pell Grants from 1983 to 1989. In September of 1989, Respondent hired Petitioner to work in its Financial Aid Office as a Financial Aid Specialist. In July 1991, Petitioner became Respondent's Director of Financial Aid; she worked in that capacity during the 1996-97 school term. Mr. Tom Hanna, Respondent's Vice President for Administrative Services, was Petitioner's supervisor after she became Director of Financial Aid. From July 1991 through June 1996, Mr. Hanna gave Petitioner an overall performance rating of "above satisfactory." During the 1996-97 school year, Respondent's President, T. K. Wetherell, became concerned that students were not receiving timely notice of their financial aid awards. Untimely receipt of financial aid awards was a problem for Respondent because many students received financial aid. Respondent formed the Enrollment Retention Committee in the Spring of 1997. The purpose of the committee was to consider issues impacting student retention, such as financial aid. Mary Coburn, Respondent's Assistant Vice President for Student Services, was the Chairperson of the Enrollment Retention Committee. From the beginning, Ms. Coburn was concerned about problems with the delivery of financial aid to students. She received complaints from students about the Financial Aid Office losing documents and the inability of the staff to answer questions. The Enrollment Retention Committee formed a subcommittee to review financial aid operations. Dr. Marge Banocy-Payne was a member of the subcommittee. Dr. Banocy-Payne also was concerned about complaints from students about delays in receiving financial aid payments and problems with the attitudes of the financial aid staff. Petitioner worked with the subcommittee to find ways to improve financial aid services. In April 1997, the committee made 30 recommendations on ways that Petitioner could improve the Financial Aid Office. Mr. Hanna met with Petitioner at least five times during the 1996-97 school year to discuss multiple issues in the operations of the Financial Aid Office. Mr. Hanna meant for these meetings to serve as counseling sessions regarding Petitioner's ineffective performance. Mr. Hanna did not memorialize these meetings in writing because he believed Petitioner had been a loyal employee. Instead, Mr. Hanna felt that the problems in the Financial Aid Office were temporary and that Petitioner's job performance would improve. In June 1997, President Wetherell and Mr. Hanna requested Ms. Carmelita Tudor, Respondent's Director of Human Resources, to investigate allegations of improprieties in the Financial Aid Office. Ms. Tudor found no evidence to support these allegations. However, Ms. Tudor concluded in a June 12, 1997, written report that Petitioner was no longer an effective director of the Financial Aid Office and that Respondent should remove Petitioner from her position immediately. Ms. Tudor's recommendations were based in part on Petitioner's procrastination in filling vacant positions in the Financial Aid Office. The failure to promptly fill the positions compounded the workload and delayed the processing of Student Aid Reports for students who were waiting for financial aid. For example, an employee in a Veteran Affairs Specialist position gave Petitioner oral notice in June 1996 that the employee intended to retire. In August 1996, the employee gave Petitioner written notice that the employee would retire in January 1997. Mr. Hanna gave Petitioner authority to hire a replacement for the Veteran Affairs Specialist before January 1997 so that the retiring employee could train the new employee. Petitioner did not request that Respondent advertise for the vacant position until May 1997. The position was re-advertised in July 1997. The position was finally filled in September 1997. Mr. Hanna decided that Respondent should be transferred from her position as Director of Financial Aid. The decision was based on Petitioner's ineffective performance during the 1996-97 school term. The office had become dysfunctional and appeared to be incapable of providing financial aid to a significant number of students in the next school year. The decision to transfer or demote Petitioner was based on the following management issues: (a) Petitioner's failure to remain current with the job knowledge that was necessary to perform her duties, specifically in the areas of staff workload and staff morale; (b) Petitioner's failure to timely fill two full-time job vacancies in the office, adversely impacting the ability of the office to function adequately; (c) Petitioner's failure to ensure that the office produced a satisfactory quantity of work, evidenced by the volume of unprocessed aid requests; (d) Petitioner's failure to establish a dependable management style, requiring only minimum supervision; (e) Petitioner's failure to establish office management practices to eliminate unnecessary stress on staff and to ensure the respect of her staff; (f) Petitioner's failure to demonstrate initiative, making it necessary for the Enrollment Management Committee and other college personnel to examine the office in order to suggest ways to improve overall office performance; and (g) Petitioner's failure to exercise management judgment to discern problems and develop solutions or to implement plans of action developed by her colleagues and Mr. Hanna. By letter dated June 16, 1997, Mr. Hanna notified Petitioner of Respondent's intention to demote Petitioner to another position. Respondent scheduled the predetermination conference for June 25, 1997, so that Petitioner could respond in writing and orally to Respondent's proposed action. Petitioner's husband subsequently informed Mr. Hanna that Petitioner had been advised by her medical doctor to avoid any activities that might engender stress, tension, or anxiety for a period of 30 days. On July 1, 1997, Respondent increased the salary of the Financial Aid Director from $45,770.50 annually to $48,059.02 annually. This raise was not related to Respondent personally or to her performance. Instead, it was the result of an effort to standardize the salary for the position compared to the salary of financial aid directors at other institutions and the salaries of peer positions. Respondent's staff insisted that the pay grade for the position of financial aid director be changed even though Petitioner's job performance was substandard. By letter dated July 2, 1997, Petitioner's medical doctor advised Mr. Hanna that Petitioner was being treated for depression and would be unable to attend a July 15, 1997, predetermination conference. Respondent conducted the conference on July 31, 1997. Petitioner authorized her husband to speak on her behalf at the conference. On or about August 4, 1997, Respondent advised Petitioner that she was being transferred to a position with the Big Bend Job and Educational Council, effective August 11, 1997. Petitioner's new job as a WAGES Administrative Assistant had a salary rate of $36,000 annually. Respondent elected to transfer Petitioner to another position rather than terminate her or offer her a probationary period in her position as director of financial aid. Respondent did not want to damage Petitioner's career or cause her to lose benefits. Respondent did not believe that Petitioner could successfully complete a probationary period in her position as director of financial Aid in which she would have been required to show significant progress. On August 13, 1997, Petitioner filed her Charge of Discrimination with FCHR. On August 15, 1997, Petitioner filed a grievance claiming that Respondent's decision to transfer her was "inappropriate and unfair." This complaint initiated the grievance process set forth in the classified staff manual. On August 28, 1997, Ms. Coburn upheld Mr. Hanna's decision to transfer/demote Petitioner. Ms. Coburn handled Petitioner's grievance at Step III because Mr. Hanna was Petitioner's direct supervisor. Mr. Hanna conducted Petitioner's annual employee evaluation for the period of July 1, 1996, through June 30, 1997. In preparing the evaluation form, Mr. Hanna noted the deficiencies in Petitioner's job performance. Mr. Hanna gave Petitioner an unsatisfactory rating regarding her knowledge of her job, the quality of her work, the quantity of her work, dependability, responsibility, initiative, judgment, attitude and attendance. Mr. Hanna attempted to furnish Petitioner with the evaluation personally but was unable to arrange an interview with Petitioner. Mr. Hanna eventually mailed the evaluation to Petitioner on or about September 4, 1997. On September 8, 1997, Petitioner filed her Step IV grievance with President Wetherell. On September 16, 1997, President Wetherell upheld the decision to transfer/demote Petitioner and denied her grievance. On October 9, 1997, Petitioner filed her Step V grievance, seeking review by the Board of Trustees. President Wetherell responded to the Step V grievance on November 14, 1997. On or about November 26, Petitioner received copies of documents to be presented to the Board of Trustees. On December 1, 1997, Petitioner and Respondent's representatives addressed the Board of Trustees. After reviewing the matter, the Board of Trustees approved the decision to transfer/demote Petitioner from her position as financial aid director to WAGES Administrative Assistant. Respondent employed Petitioner at the Big Bend Job and Education Council until May 10, 2000. During that time, Petitioner received employment promotions and salary increases. On May 10, 2000, Respondent concluded its administration of the Big Bend Job and Education Council. As of the time of the final hearing, Petitioner continued to be employed as the One-Stop Coordinator for the Big Bend Job and Education Council. The program is now administered by a private, non-profit organization. In the 1994-95 school term, Carlotta Appleman was employed as Respondent's Computer Systems Manager. She was responsible for all of Respondent's information technology services. In the 1994-95 school term, Respondent employed Norm Cave, an American Indian/Alaskan Native male, as a programmer analyst. Mr. Cave had no supervisory responsibilities or direct contact with Respondent's students. Ms. Appleman was Mr. Cave's supervisor. In the last half of 1994, Ms. Appleman placed Mr. Cave on probationary status because of issues involving interpersonal relations and insubordination. Ms. Cave's probation was not based on the quantity and quality of his work or job performance. Mr. Cave failed to resolve the issues of interpersonal relations and insubordination during his probation. Mr. Cave resigned his position effective August 31, 1995. As director of financial aid, Petitioner had supervisory responsibilities over employees and was charged with direct student contact. Petitioner was transferred/demoted because of her job performance deficiencies. There are no similarities in the employment situation involving Mr. Cave compared to the employment situation involving Petitioner.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is

USC (1) 42 U.S.C 2000e Florida Laws (3) 120.569760.10760.11
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LAURA A. WESTBROOKS vs CITY OF NORTH MIAMI, 09-001968 (2009)
Division of Administrative Hearings, Florida Filed:Miami, Florida Apr. 15, 2009 Number: 09-001968 Latest Update: Oct. 28, 2009

The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of race in violation of the Florida Civil Rights Act of 1992, as amended.

Findings Of Fact Ms. Westbrooks is an African-American female. In 2000, Ms. Westbrooks began her employment with the City in a billing position in Customer Service as an Account Clerk. She performed very well in that position and received an above satisfactory rating. In 2002, a Junior Accountant position became available, and Ms. Westbrooks applied for the position. The position description for a Junior Accountant indicates that the position’s duties included “Professional accounting work covering all fixed assets accounting and reporting.” Further, the position description indicates that the minimum qualifications consisted of the following: Associate’s degree in Accounting or related field, with some work experience in an accounting environment OR An equivalent combination of training and experience which provides the required knowledge, skills and abilities. Carlos Perez, the City’s Finance Director and a Certified Public Accountant (CPA), performed the hiring for the Junior Accountant position. He hired Ms. Westbrooks for the Junior Accountant position. Mr. Perez considered Ms. Westbrooks’ performance in the Junior Accountant position as excellent. She consistently received performance ratings of above satisfactory and merit increases. In 2006, an Accountant position became available. The City advertised the position. The announcement for the position indicated that the position’s duties included “complex technical work performing professional accounting work covering all phases of account maintenance, classification, analysis, and expenditure control of all phases of City wide fiscal transactions.” Further, the announcement indicated that the minimum requirements for the position were: Bachelors degree in Accounting, Finance or a closely related field with major coursework in accounting . . . plus one to two years experience in accounting. OR An equivalent combination of training and experience which provides the required knowledge, skills, and abilities. Moreover, the announcement provided that “Only those applicants who most closely meet the specific requirements for the position will be contacted for an interview.” Ms. Westbrooks applied for the Accountant position. No dispute exists that Ms. Westbrooks does not possess a bachelor’s degree in accounting. She has an Associates in Arts (AA) degree in Business Administration, which she obtained in 1993. At all times material hereto, the City had a tuition reimbursement program, wherein an employee of the City could obtain a degree and receive tuition reimbursement for obtaining the degree. Ms. Westbrooks was aware of the reimbursement program but chose not to avail herself of it in order to obtain a bachelor’s degree in accounting. However, she did avail herself of the program to obtain certifications associated with her position as a Junior Accountant. No dispute exists that Ms. Westbrooks met the minimum requirements for the Accountant position, satisfying the alternative requirement of equivalent combination of training and experience. Ms. Westbrooks was provided an interview. An interview panel conducted the interviews and rated the applicants, who were interviewed, on a scale of 0 through 5. The interview panel consisted of the City’s Chief Accountant, Budget Administrator, and Pension Administrator. Only the applicants who had an overall rating of 3.0 or higher on the interview were submitted by the City’s Personnel Administration Director, Rebecca Jones, to Mr. Perez. Ms. Jones is an African American and is female. Mr. Perez makes the final decision as to who is hired for accounting positions. He was the final decision-maker for this Accounting position. Mr. Perez is not African American. Only three persons received an overall interview rating of 3.0 or higher. Ms. Westbrooks was one of the three persons, and she received the highest interview score. On December 6, 2006, Ms. Jones submitted to Mr. Perez the names of the three persons, with their interview scores: Laura Westbrooks 4.0 Ronald Castrillo 3.4 Bayard Louis 3.3 Mr. Perez had never hired an accountant who did not have a four-year college degree, i.e., a bachelor’s degree, regardless of race. His position was that the person hired for the Accountant position, and all of his accountants, needed a four-year college degree because that person, as all of his accountants, would be fourth in line to head the Finance Department, as Acting Finance Director, behind himself, the Assistant Finance Director, and the Chief Accountant—at least once a year he (Mr. Perez), the Assistant Finance Director, and the Chief Accountant all attend a conference together; and that a person with a four-year college degree has the technical ability needed to perform in the position, whereas, a person without a four-year degree would not have the technical ability needed. Further, as to the accounting focus of a junior accountant position versus an accountant position, a junior accountant’s focus is fixed assets, whereas, accountants are involved with all aspects of accounting, which includes and goes beyond fixed assets. Mr. Perez had made Ms. Westbrooks aware of his position, regarding accountants, during her tenure in the Junior Accountant position. Ms. Jones did not consider Mr. Perez’s position and action, regarding the hiring of accountants, as being discriminatory. Mr. Perez’s final requirement of a four-year college degree in order to be hired by him as an accountant became the City’s requirement. Mr. Perez offered the Accountant position to Mr. Castrillo who had an AA degree in Business Administration, a Bachelor’s degree in Accounting and who was scheduled to graduate the following semester with a Master’s degree in Accounting. However, Mr. Castrillo did not accept the position due to the failure to agree on a salary. The Accountant position was re-advertised. Ms. Westbrooks remained eligible for the Accountant position and was, therefore, in the pool of applicants to be considered; but was not re-interviewed because the interview questions did not change On March 8, 2007, Ms. Jones submitted to Mr. Perez the names of the applicants who had an overall rating of 3.0 or higher on the interview, together with their interview scores: Tricia Beerom 4.0 Sampson Okeke 3.4 Mirtha Servat 3.3 Mr. Perez hired Ms. Beerom for the Accountant position. Ms. Beerom had a Bachelor of Science degree in Accounting and Management and was an African-American female. Ms. Westbrooks believed that she was not afforded an opportunity to advance because of Mr. Perez’s position regarding accountants possessing a four-year degree and that, therefore, she was discriminated against. However, even though the City had a policy against discrimination and a procedure to file discrimination complaints, she chose not to proceed through the City’s discrimination process because she had no faith in the City. Ms. Westbrooks believed that she was not going to be treated fairly by the City in any attempt by her to achieve upward mobility, which caused her to continuously experience stress, which negatively impacted her health. She eventually resigned from the City. Ms. Westbrooks’ resignation was effective May 4, 2007. At the time of her resignation, Ms. Westbrooks’ salary was $40,000. After her resignation, she received her contributions to the City’s retirement system in the amount of approximately $13,000. In September 2008, over a year after her resignation from the City, Ms. Westbrooks obtained employment with the University of Miami, School of Medicine, as a Grant and Contracts Specialist, with a salary of $41,500. Ms. Westbrooks did not identify any employees who were in classified positions as herself, who were or were not African American and who had upward mobility in positions, and who did not have four-year college degrees. Classified positions are protected by the City’s Civil Service rules and must be advertised. Ms. Westbrooks did identify City employees who were in unclassified positions, not a classified position like herself, i.e., directors and city manager, who did not have four-year college degrees, and who were and were not African American. Unclassified positions are not protected by the City’s Civil Service rules and need not be advertised. The city manager hires all department directors. No dispute exists that, at all times material hereto, a former Director of Purchasing was a white female and a long term employee, who had an AA, not a four-year degree, and who was promoted through the ranks; a Director of Public Works was a white male and a long-term employee, who had an AA, not a four- year degree, and who was promoted through the ranks. No dispute exists that the City’s City Manager is an African-American male who does not have a four-year college degree. No dispute exists that, at all times material hereto, all of the City’s Department Directors, who are African American, have four-year college degrees. The EEOC instituted an “E-RACE Initiative (Eradicating Racism and Colorism from Employment)” and developed a “set of detailed E-RACE goals and objectives to be achieved within a five-year timeframe from FY [fiscal year] 2008 to FY [fiscal year] 2013.” Included in the E-RACE Initiative, were “Best Practices for Employers and Human Resources/EEO Professionals,” which included best practices for recruitment, hiring and promotion. The E-RACE Initiative was implemented by the EEOC subsequent to the action complained of by Ms. Westbrooks and was not demonstrated to be federal law, rule, or regulation; and was, therefore, not shown to have the force or impact of law. The E-RACE Initiative is not applicable to the instant case.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that the City of North Miami did not commit a discriminating employment practice against Laura A. Westbrooks in violation of the Florida Civil Rights Act of 1992, as amended, by failing to hire her for an accounting position. DONE AND ENTERED this 1st day of September, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 September, 2009.

Florida Laws (4) 120.569120.57760.10760.11
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HILLSBOROUGH COUNTY DEVELOPMENTAL CENTER vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 87-002584BID (1987)
Division of Administrative Hearings, Florida Number: 87-002584BID Latest Update: Sep. 08, 1987

Findings Of Fact In March 1987 DHRS published a Request for Proposal (RFP) for a Comprehensive Manpower Employment Service Programs for Refugees and Entrants (Exhibit 5) which established a time frame for bidders to submit proposals to provide services for the year beginning July 1; 1987 and ending June 30, 1988; established criteria for the services to be provided; and contained all information necessary for a bidder to submit an acceptable bid. Pursuant to this RFP, Hillsborough County, Lutheran Ministries of Florida, Inc., and Catholic Social Services submitted proposals to provide the services authorized by federal statute to be provided to refugees and entrants predominantly from Cuba/Haiti and Indochina. Pursuant to this RFP; bidders are required to submit a plan which identifies the services to be provided and a line item budget of anticipated allowable costs that will be incurred in the delivery of the services. Each bid is to be reviewed by at least three HRS employees familiar with the objectives and requirements of this social services program using the rating sheet as shown in an appendix to the RFP. The raters grades are totalled, and the contract is to be awarded to the bidder whose proposal is determined, through the evaluation process, to be most advantageous to the State, taking into consideration program and organizational capability, previous experience and understanding of the project (Exhibit 5 p. 25) Five qualified raters evaluated the proposals submitted by the bidders. The totals of the grades given by these raters, four of whom testified in these proceedings, was 603 for Petitioner and 1360 for Lutheran Ministries, thereby indicating the bid by Lutheran Ministries to be far superior to the bid by Hillsborough County. For the past three years, Lutheran Ministries has held the contract to provide services to refugees and entrants while Hillsborough has held the contract, also from HRS, to operate a program intended to mitigate the impact on counties affected by the large influx of Cubans and Haitians entering this country at the time of the Mariel boat lift and after. The former funds are social services funds and the latter are designated Targeted Funds. Although both funds are operated out of the same DHRS office, they are distinct and separate appropriated funds. The 1986 Legislature failed to provide Targeted Funds for the year beginning January 1, 1988. Accordingly, there will be no Targeted Funds awarded to Hillsborough County to use after December 31, 1987. Apparently to preserve the jobs to carry out assistance to various aliens, Hillsborough County submitted its bid to provide services to refugees similar to the services it has been providing to immigrees. Petitioner's bid provided for payment of salaries totaling $40,197 for six months, travel costs for six months and specialized transportation costs for six months. Petitioner apparently intended to use the anticipated funds, if its bid was accepted, to continue the staff employed in carrying out the mission to be accomplished with Targeted Funds for the six months between January 1, 1988 and June 30, 1988, with their salaries for the first six months (July - December 1987) paid from Targeted Funds. Having submitted a bid which clearly shows only six month funding for personnel and certain travel costs, Petitioner's contention that the raters misinterpreted the proposed program year is without merit. Although the bid proposal showed it was for the period July 1 1987 to June 30, 1988, the cost for one year's operation was not shown and Petitioner's bid was properly downgraded for this reason. That Petitioner's proposal was intended as a substitution and/or continuation of the Refugees/Entrants Employment Services (REES) program which it had administered for the past three years is shown in their proposal (Exhibit 2 p. 7) that "Effective July 1; 1987; the REES program will increase its level of services by adding 0JT and day care to its comprehensive employment." It shows targeted assistance dollars funding comprehensive employment and transportation for the first six months of the program year through December 31, 1987. Such language rightfully led the raters to question what type services would be provided to the refugees under Petitioner's proposal. Petitioner's contention that bid proposals were not rated on their individual merit, but rather were compared to each other, not only is unsupported by any evidence but also every rater who testified stated that no comparison of bids was made. The remarks on the rating sheets which were relied upon by Petitioner to support this contention disclose another failure by Petitioner to comply with the RFP. The RFP (Exhibit 5) provided under Part IV General Information (p. 13) that specific questions regarding the RFP and its provisions should be addressed to Millie Coten and that an original and nine copies of the proposal are required. The Hillsborough County audit which was required as a part of the proposal comprised some 80 or 90 pages, which was nearly half of the proposal submitted. In order to eliminate the cost of reproducing 10 copies of this audit, Jimmy Keel, director, Department of Public Assistance for Hillsborough County, called Michael Simmons, district budget officer for HRS Tampa office to see if they had to include audits in all of these copies. Simmons told Keel that since there would be only five raters, if the audit was included in five copies of the bid, that would be acceptable. Simmons was not the contact officer in the RFP to answer questions regarding the RFP and no evidence was presented that he had such authority. This discrepancy in complying with the RFP came to light during a meeting of the raters when it was discovered that at least two of them did not have a complete bid from Petitioner. Petitioner's contention that it was rated on criteria not contained in the RFP is allegedly supported by raters' comment on the rating sheets that the salaries for those running the program proposed by Petitioner are too high. For the four positions proposed by Petitioner to run the program, the annualized salary is in excess of $80,000. The cost of providing the proposed services for one year is expected to be less than $80,000. In looking at proposed salaries in such bids, the raters use salaries paid HRS employees for similar duties and responsibilities as well as common sense. The fact that some such standard is used to determine the appropriateness of salaries in bids received should surprise no one. It is well understood by people bidding on HRS service projects that such a salary comparison is made to determine the appropriateness of salaries to be paid by contractors providing the contracted for service. The contention by Petitioner that it was rated on criteria not contained in the RFP is without merit. Petitioner's next contention that raters were not familiar with all of the definitions and requirements of the RFP was supported by no credible evidence. The four raters who testified all stated unequivocally that they fully understood the definitions and requirements of the RFP. The second allegation to support this position involved the fact that as a governmental agency Hillsborough County does not have a board of directors and articles of incorporation and because of this did not receive maximum points on their rating item. This position is not supported by the evidence. The grades of less than maximum on those items were changed to give Petitioner the maximum grade score before the totals were added. Finally, Petitioner's contention that the raters were confused by, and misunderstood the contents of, Petitioner's proposal yet failed to contact Petitioner for clarification not only is not supported by any credible evidence, but also ignores the RFP requirement (Part V p. 20) that: It is the responsibility of the applicant to develop the proposal as clearly and succinctly as possible in order to avoid misinterpretation of the information presented. Proposals will be reviewed and evaluated solely on the basis of the information contained therein. No evidence was submitted by Petitioner to show that even if Petitioner had been incorrectly rated on some of the rating sheets, a change in those ratings would have brought Petitioner's total score, and hence rating, up to that attained by Lutheran Ministries so as to make Petitioner the successful bidder.

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HUMAN DEVELOPMENT CENTER vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 81-002355RX (1981)
Division of Administrative Hearings, Florida Number: 81-002355RX Latest Update: Mar. 10, 1982

Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Human Development Center (HDC) is a nonprofit corporation dedicated to providing services to mildly and moderately mentally retarded clients received primarily through the respondent Department of Health and Rehabilitative Services (HRS). The services provided include transportation, education, and training for the development of daily living skills, recreation skills and work-related skills. A one-year written contract existed between HDC and HRS for the provision of and payment for the professional services of education, training and transportation for HRS clients. The termination date of this contract was September 30, 1900. As early as February of 1980, negotiations began as to the rates for a new written contract for the provision of these same services for the following year beginning on October 1, 1980. In August of 1980, petitioner was advised of the Grant Review Committee's recommendations concerning the rates which HRS would allow for the provision of services during the next contract year. A special audit review team conducted an analysis of petitioner's facility and found insufficient ground for awarding levels of funding in excess of those recommended by the Grant Review Committee. By letter dated September 22, 1980, petitioner's Executive Director was notified by respondent that respondent was in the process of preparing the contract for the following year and the contract amounts were stated. In a letter dated September 25, 1980, petitioner's Executive Director notified respondent that the proposed contract rates were unacceptable and advised respondent of the rates it would charge effective October 1, 1980. This letter stated: "Should you choose to have your HRS clients continue in the Sunrise Program beyond September 30th, 1980, you will be billed at these rates." Based upon petitioner's refusal to enter into a contract with respondent, respondent orally advised petitioner on September 29 or 30, 1980 that HRS clients would be removed from petitioner's facility. On September 30, 1980, respondent's District Program Supervisor for Developmental Services went to the petitioner's facility for the purpose of removing those clients in the custody of HRS and advising other clients of the status of the contract between petitioner and the respondent. Many clients expressed a desire to remain at the petitioner's facility. Alternative placement plans were pursued by respondent during the month of October, 1980. Petitioner's Executive Director was advised that payments for room and board, as well as for additional other services on a pre-authorized basis, would be provided for HRS clients remaining at the facility. This agreement was affirmed in writing by letter dated October 2, 1980, which stated: "To facilitate counselling clients as to their rights and plan for placement in other facilities, HRS will continue to provide Long Term Residential Care funds. These monies will provide for basic care and supervision. Any additional services will be purchased on an individual client basis and is to be pre-authorized by the social worker. (Example: transportation of employed clients to place of employment through reimbursement at 19 cents a mile.) Expiration of the 1979-80 Purchase of Services Contract prohibits any payment by HRS of services previously covered by that contract." Respondent did pay petitioner for its clients' room and board during October of 1980 in spite of the fact that no written contract existed. Although it never sought pre-authorization for the provision of additional services, petitioner continued to provide the additional services of education, training and transportation to HRS clients. Effective November 1, 1980, petitioner and respondent did enter into a new contract for the provision of such services for the following year. On or about November 3, 1980, petitioner submitted to respondent five invoices for the payment of services performed during October of 1980. Respondent refused payment by letter dated November 18, 1980, stating, in part: "Lack of a contract between HRS and the Human Development Center during the month of October prohibits payment of the purchase of service invoices submitted with your letter of November 3, 1980. . ." After various requests by petitioner for the payment of invoices for services provided in October, 1980, were denied by the respondent on the basis of lack of a written contract for that month, HDC petitioned for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The petition was referred to the Division of Administrative Hearings and that case was consolidated for hearing purposes with the instant case. Human Development Center v. Department of Health and Rehabilitative Services, DOAH Case No. 81- 2137, Recommended Order entered on March 10, 1982. In the course of discovery in DOAH Case No. 81-2137, respondent HRS denied the allegation in the petition that it had "no rules establishing how and under what circumstances emergencies will be declared in order to pay providers sums of money to which HRS claims that it would not otherwise be entitled." Respondent referred to two documents which "set out the criteria to be used for emergency certification of contracts pursuant to Sec. 287.057, F.S." The instant proceeding challenges these two documents as invalid rules.

Florida Laws (4) 120.52120.54120.57287.057
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MARY L. KINLAW vs DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, 91-003795 (1991)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jun. 20, 1991 Number: 91-003795 Latest Update: Sep. 23, 1991

Findings Of Fact At all times material hereto, petitioner, Mary L. Kinlaw, was employed by respondent, Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Claims, as a Word Processing System Operator, and held permanent status in the Career Service System. As a Word Processing System Operator, her duties included typing, filing, and general secretarial work. Petitioner worked a total of seven (7) hours in January 1991, and last reported for work on January 18, 1991. She has not thereafter reported for work, requested a leave of absence, or contacted the respondent. By letter of May 10, 1991, the respondent notified petitioner that: . . . you have been dismissed from your Work Processing System Operator position, effective 5:00 p.m., May 20, 1991. This action is being taken in accordance with Rule 22A-7.010(2), Florida Administrative Code (F.A.C.) and is for the offense of abandonment of position. The predicate for such action was petitioner's failure to report for work since at least February 21, 1991, a period of more than 3 consecutive work days. By letter of June 12, 1991, filed with the Department of Administration on June 17, 1991, petitioner protested the respondent's action. Petitioner did not, however, appear at hearing, and no competent proof was offered for or on her behalf to demonstrate that her failure to report for work was other than a voluntary abandonment of her position. 1/

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Administration enter a final order sustaining respondent's determination that petitioner abandoned her Word Processing System Operator position with respondent, and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1991. WILLIAM J. KENDRICK 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 12th day of September 1991.

Florida Laws (2) 110.201120.57
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D. PAUL SONDEL vs. DEPARTMENT OF EDUCATION, 88-003033 (1988)
Division of Administrative Hearings, Florida Number: 88-003033 Latest Update: Mar. 06, 1989

The Issue This is a case in which the Petitioner, an unsuccessful applicant for employment in a position with the Department of Education, filed a petition seeking a formal hearing to contest the Department's hiring of another applicant. The primary issues in this case are: Is an unsuccessful applicant for employment entitled to a hearing under Section 120.57, Florida Statutes, to challenge the agency's hiring decision? If so, does the Petitioner in this case have standing to bring such a challenge? If the Petitioner has standing, did the agency's hiring decision depart from the requirements of law? All parties presented evidence at the hearing and following the hearing all parties were afforded an opportunity to file proposed recommended orders. The Petitioner and the Intervenor filed post-hearing briefs and the Respondent filed proposed findings of fact and conclusions of law. All of the parties' post- hearing submissions have been carefully considered during the formulation of this recommended order. All findings of fact proposed by the parties are addressed in the attached Appendix.

Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: The Intervenor, Joann Carrin, was employed by the Commissioner of Education as her Executive Assistant from February 11, 1987, until she was moved temporarily to the position she currently holds as a Program Specialist III with the Division of Public Schools. Ms. Carrin was temporarily assigned to Position No. 01681 prior to the official advertisement of that position. Ms. Carrin has significant experience in the criminal justice system and has a bachelor's degree in criminal justice from Florida State University. The selection of Ms. Carrin was made on the basis of the agency's perceptions about her qualifications for the job and not on the basis of any influence or other improper motive. Ms. Carrin timely filed her application for Position No. 01681, was interviewed by Larry Hutcheson, and was selected to fill that position permanently. Position No. 01681, Program Specialist III with the Division of Public Schools, Bureau of Program Support Services, Office of Risk Assessment Information System, required significant experience in the criminal justice system because it involved the coordination of activities of the RAIS Coordinating Council (Risk Assessment Information System) which dealt with the interface between educational agencies and the criminal justice system. The "minimum qualifications" listed in the announcement for Position No. 01681 Program Specialist III, are minimum qualifications for all Program Specialist III positions in the Department of Education. Such "boiler plate" minimum qualifications are often substituted for by other experience and/or education of an applicant which are more specific to the position being advertised. Position No. 01681 was properly advertised in accordance with the normal administrative procedures for such an advertisement. All of the employment applications received for the subject position were first reviewed by Jeanne Messer to see whether the minimum qualifications listed on the Position Vacancy dated November 2, 1987, were met by the applicants. Upon initial review, Ms. Carrin's application indicated that she did not qualify for the position based on the "minimum qualifications." Therefore, Ms. Messer wrote "not qualified" on the job application of Ms. Carrin. All employment applications received for the subject position were then transferred to Larry Hutcheson for his review and selection of persons whom he wished to interview for the position. Applicants who did not meet the minimum qualifications as listed in the Position Vacancy can still be hired for the job in question if they have other experience and/or education which may be substituted for the experience and education listed in the minimum qualifications section of the employment announcement. The Department of Education has the authority to substitute other experience and education for the minimum qualifications indicated on a Program Specialist III job announcement. Ms. Carrin was selected to fill the subject position pursuant to that authority. When the applicant chosen to fill a position does not meet the published "minimum qualifications," the individual making the choice must justify the proposed choice. Such a justification was properly completed by Mr. Hutcheson to justify the selection of Ms. Carrin. The Department of Administration reviews substitutions of experience and education for compliance with established standards. Ms. Cynthia McDaniel is the individual in charge of the section of the Department of Administration that conducts such reviews. The substitution of Ms. Carrin's education and experience for the minimum qualifications listed in the job description for Position No. 01681 were reviewed by Cynthia McDaniel's staff and found to be in accordance with the substitution procedures established by the Department of Administration. The Petitioner, D. Paul Sondel, was one of numerous applicants for employment in Position No. 01681. He submitted a timely application which was preliminarily evaluated as meeting the minimum qualifications listed in the announcement for Position No. 01681. There is no evidence in the record as to how the qualifications of Mr. Sondel compare to the qualifications of Ms. Carrin or to the qualifications of any of the other many applicants. Specifically there is no evidence in the record which would support a finding that Mr. Sondel was the best qualified candidate for Position No. 01681.

Recommendation Based on all of the foregoing, it is recommended that the Department of Education issue a final order in this case dismissing the petition and denying all relief sought by the Petitioner. DONE AND ENTERED this 6th day of March, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 6th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3033 The following are my specific rulings on all proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner: The Petitioner's Brief does not contain any portion designated as proposed findings of fact, but at pages thirteen through twenty-one, under the caption "Hearing testimony and evidentiary revelations," the Petitioner does purport to address some of the factual issues in this case. Accordingly, those pages of the Petitioner's Brief have been treated as the Petitioner's proposed findings of fact, and, to the extent possible, are specifically addressed below. (Specific attention to some of the factual material in the above-described portion of the Petitioner's Brief is virtually impossible as a result of factual material being inextricably intertwined with argument.) Page 13: The quoted material in the top paragraph is rejected as subordinate and unnecessary details. The first sentence in the second paragraph is rejected as constituting a conclusion not warranted by the evidence. The remainder of this page is rejected as constituting primarily argument, rather than proposed findings of fact. Page 14: The material on this page is rejected as constituting primarily argument, rather than proposed findings of fact. Page 15: All of the material on this page is rejected as subordinate and unnecessary details or as irrelevant to the disposition of this case. Page 16: All of the material on this page is rejected as an inextricably intertwined combination of argument and subordinate and unnecessary details. Further, most of the factual assertions on this page constitute inferences not warranted by the evidence. Page 17: All of the material on this page is rejected as constituting unnecessary details. Page 18: All of the material on this page is rejected as constituting argument or a combination of argument and subordinate and unnecessary details. Further, some of the assertions on this page constitute inferences not warranted by the evidence. Page 19: First three paragraphs are rejected as constituting subordinate and unnecessary details. The last paragraph is accepted in substance, with the omission of some subordinate and unnecessary details. Page 20: All of the material on this page is rejected as constituting either argument or proposed findings that are not supported by the evidence. Page 21: All of the material on this page is rejected as constituting primarily argument and inferences which are not warranted by the evidence. Findings proposed by Respondent: The findings of fact in this recommended order incorporate the substance of all of the findings proposed by the Respondent with the exception of Paragraph 17 of the Respondent's proposed findings. Paragraph 17 is rejected because the first sentence is repetitious or cumulative and the second sentence constitutes argument rather than proposed findings of fact. Findings proposed by Intervenor: The brief submitted on behalf of the Intervenor consists primarily of legal arguments. The Intervenor's brief does not contain any proposed findings of fact. (Although there are some references to the facts in the context of the legal arguments, there is nothing in the Intervenor's brief which purports to be or which appears to be proposed findings of fact.) COPIES FURNISHED: Mr. D. Paul Sondel, pro se 1625 Centerville Road, TH22 Tallahassee, Florida 32303-4721 Charles S. Ruberg, Esquire Assistant General Counsel Florida Department of Education Knott Building Tallahassee, Florida 32399-0400 Ronald G. Meyer, Esquire Post Office Box 1547 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Sydney H. McKenzie, III, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400

Florida Laws (3) 110.112110.227120.57
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