Findings Of Fact Petitioner, Julia B. Fiorentino, is presently employed by the Duval County School Board (Board) as Assistant Principal for Curriculum at Fort Caroline Junior High School in Jacksonville, Florida. From 1949 until 1959, petitioner was a teacher in the North Carolina public school system. In August, 1960, she began employment with what is now the Duval County School Board and established membership on that date in the Teacher's Retirement System (TRS). She worked continuously for the Board until June, 1964 and made all required contributions into the TRS during that period of time. On June 4, 1964, while employed as a teacher at Terry Parker High School, petitioner was granted maternity leave by the Board for the period of July 1, 1964 through July 1, 1965 in order to adopt a child. On July 16, 1964, she made application for refund of all contributions previously paid into the TRS through June 30, 1964. This amount totaled $1,264.92. A warrant was subsequently issued by the State on August 25, 1964 and Fiorentino cashed the warrant at a later time. When the application for refund was submitted to the State, the Board certified that Fiorentino had terminated employment with the Board as of June 30, 1964. When petitioner made application for maternity leave and withdrawal of her contributions, she did not inquire nor was she told by any Board employee of the consequences of withdrawing the contributions and terminating membership in the TRS for purchasing out-of-state service on her date of retirement. Instead, she was under the impression that she could repay the contributions, plus interest, before retirement and reestablished her prior membership date as of August, 1960. Fiorentino later decided that she did not wish to take maternity leave and was rehired by the Board as a full-time employee effective September, 1964. She was re-enrolled in the TRS and has made the required contributions to the plan since that date. At the same time she left her teaching position in June, 1964, Fiorentino was employed as a part-time instructor at Florida Junior College in Jacksonville. This employment continued at least until she again became a full- time employee with the Board in September, 1964. It is disputed as to whether Fiorentino made contributions to the TRS while employed on a part-time basis. However, this is immaterial to the resolution of the issue herein. At some point in early 1983, Fiorentino made inquiry with respondent, Department of Administration, Division of Retirement, to determine her retirement benefits. She also repaid the $1,264.92 with interest previously withdrawn in 1964 which by then amounted to $3,147.05. When she sought to claim the ten years out-of-state service in computing her benefits, she was advised that in order to receive credit for that time, she must pay the "total cost" of her salary during those years, or approximately $79,000. This was because her TRS membership date was September 1, 1964, and any membership date after October 1, 1963 caused the claimant to be subject to the total cost method. Had her membership date been August, 1960, when she was first employed by the Board, the required payment would have been reduced to approximately $6,000, which represented the salary earned multiplied by 8 percent plus interest. A Department bureau chief explained that under long-existing Department policy, as authorized by Subsection 238.05(4) Florida Statutes, only full-time employees are permitted to be members of the TRS. Therefore, her employment with a junior college did not qualify Fiorentino for membership in the TRS. Further, in order to receive a refund from the TRS, a teacher must terminate his or her employment. If reemployed again, the membership date becomes effective on the date of employment, and cannot be made retroactive even if the contributions are repaid. A member is not dropped from membership in the TRS by going on a leave of absence, as Fiorentino did, but if the contributions are withdrawn, membership is automatically terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the request of Julia B. Fiorentino to have her membership date in the Florida Retirement System established as of August, 1960 be DENIED. DONE and ENTERED this 12th day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1984. COPIES FURNISHED: J. Clark Hamilton, Jr., Esquire 801 Blackstone Building 233 East Bay Street Jacksonville, Florida 32302 Augustus D. Aikens, Jr., Esquire 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 Nevin G. Smith Secretary Department of Administration Room 435, Carlton Building Tallahassee, Florida 32301
The Issue Whether there is "just cause" to terminate Respondent, Edward Starcher, from employment as a teacher in the Collier County School District.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent is a teacher certified by the State of Florida in the areas of physical education, recreational dance, and driver's education. On August 18, 1986, the School Board hired Respondent as a teacher. Since being hired in 1986, Respondent taught continually in the Collier County public school system, except for a one-year leave of absence. Respondent began his career at Highland Elementary School and taught there for approximately two to three years. He then taught for nine years at Village Oaks Elementary School. Respondent, subsequently, taught at Gulf Coast High School, where he also served as a basketball coach. In the 2000-2001 school year, Respondent was employed at NHS as a physical education teacher, driver's education teacher, and head basketball coach for the boys' varsity basketball team. At all times relevant herein, Respondent was a driver's education teacher and head coach of the boys' basketball team at NHS. Throughout his teaching career with the School Board, Respondent received positive evaluations and was recognized for having a passion for coaching. Prior to the disciplinary action at issue in this proceeding, there is no evidence that Respondent has been previously disciplined by the School Board. At all times relevant herein, A.K., a female, was a high school student in her senior year at NHS. In January 2003, A.K. was enrolled as a peer tutor under the direction of Respondent, along with two other students--A.D., a female, and A.F., a male. A.K., A.D., and A.F. were enrolled as peer tutors during the fourth block, which commenced at 12:45 p.m. As peer tutors, they assisted Respondent with doing the laundry, folding towels and T-shirts, and delivering them to the storage closet. At the beginning of fourth block, the peer tutors would typically meet Respondent in his coaching office or outside of it, and he would give them their assignment for the day. On Monday, February 10, 2003 (February 10), A.K. reported to Respondent's office during fourth block for her peer tutor responsibilities. A.D., another peer tutor, was absent that day, but A.F. and K.C. were present. K.C., an NHS student, was not assigned as Respondent's peer tutor, but he sometimes assisted Respondent and his peer tutors during the fourth block. On February 10, as Respondent and the peer tutors were exiting Respondent's office to walk to the laundry room, Respondent "put [A.K.] in a little bit of a headlock," in a playful manner. After arriving at the laundry room, Respondent and the peer tutor folded laundry. At some point, Respondent handed A.K. a pile of towels and told her to take it to the storage closet. Respondent also took a pile of towels or jerseys and both A.K. and Respondent proceeded from the laundry area across the gym to the boys' locker room. On this trip to the storage closet, only A.K. went with Respondent across the gym to the storage closet area. A.F. remained in the laundry room because Respondent told only A.K. to come with him. The storage closet was located in the boys' football locker room on the opposite side of the auxiliary gym from the laundry room. On February 10, there was a physical education class with at least 20 students and an instructor on the gym floor playing volleyball. The physical education class was divided into two groups at the opposite ends of the gym so that when the peer tutors and Respondent took the laundry across the gym floor to the storage closet, they would pass between the two groups. Respondent and A.K. entered the boys' locker room area and proceeded to the storage closet to drop off the towels and/or jerseys. A.K. entered the storage closet area first followed by Respondent. After A.K. put the towels down, she noticed Respondent shutting the door quickly, turning the lights off and on, and then opening the door. A.K. asked Respondent what he was doing, and he replied that he was just joking around. During the first trip to the storage closet, as A.K. was walking through the locker room, she saw J.C., a NHS student, near his locker. Some time after Respondent and A.K. walked through the locker room, J.C. walked around to the bench near the storage closet doorway to put on a knee brace. Thereafter, J.C. saw Respondent in the doorway of the storage closet, and Respondent introduced him to A.K. J.C.'s locker was adjacent to the storage closet wall, and he had to walk to the end of the wall and around the corner to get to the doorway of the storage closet. Due to the location of his locker, there was a period of time when J.C. was not near the doorway of the storage closet and could not see that doorway. At some point while A.K. and Respondent were in the storage closet, Corporal Ronald Byington (Coach Byington), the NHS youth relations deputy and an assistant football coach at the school, walked through the locker room from the adjacent coaches' room. Coach Byington stopped and talked to Respondent about a minute and a half. During his very brief conversation with Respondent, Coach Byington did not observe anything out of the ordinary. After briefly talking with J.C., Respondent and A.K. returned to the laundry room. After a short period of time, Respondent handed A.K. a bag of jerseys to take with her to the storage closet and proceeded alone with her back across the gym to the boys' locker room. J.C. was not in the locker room when Respondent and A.K. returned to the storage closet. When A.K. and Respondent returned to the storage closet with laundry a second time, Respondent again followed her into the storage closet, closed the door, and turned off the lights. Respondent then kissed A.K. on her neck and lips, grabbed her leg, and pushed it up against his side. A.K. pushed Respondent away from her, after which he turned on the lights, grabbed himself and remarked, "This is what you do to me." As A.K. approached the door to walk out, he placed A.K.'s hand on his groin. A.K. described the manner in which Respondent kissed her on the neck as "more of a sucking" than a kiss. After the incident described in paragraph 16, A.K. returned to the laundry room followed by Respondent. Upon returning, A.F. and K.C. noticed that A.K.'s neck was red and told her so. When A.F. and K.C. commented about the red mark on her neck, Respondent stated that it was because he had put her in a headlock. After the brief discussion about the red mark on A.K.'s neck, A.K. returned to the boys' locker room a third time, this time with A.F. and Respondent. A.K. had to wait outside the locker room since there were football players in there changing for weight training. Because A.K. could not enter the locker room, she handed the laundry she was carrying to A.F. and/or Respondent. Upon returning to the laundry room from the third trip to the storage closet, Respondent "kind of stopped [A.K.]" as they were walking across the gym floor. He then had A.K. hold her hand up while he did the same and intertwined his little finger with hers while he asked her to "pinkie swear" (promise) she would not tell anybody, and she agreed to do so. However, Respondent then told A.K. that he could not promise that it would not happen again. This brief exchange took place out of A.F.'s earshot. Moreover, given the considerable activity in the gym, it is reasonable that A.F. did not hear this conversation. A.K. returned a fourth time to the locker room to get her book bag and left school. She was in a state of shock, drove home, changed, and left for work. That evening A.K. did not tell her parents about the incident with Respondent because she was embarrassed and uncertain as to how they would react. The next morning, Tuesday, February 11, 2003 (February 11), A.K. was sitting in her car in the NHS parking lot waiting for the first-block bell to ring when her friend, E.W., a senior at NHS, approached her. E.W. noticed that there was something wrong and asked A.K. what was the matter. A.K. started to cry and told E.W. that Respondent had kissed her. As they walked to class, A.K. told E.W. more of what happened. A.K. told E.W. that on the first visit to the storage closet Respondent shut the lights off. A.K. asked him what he was doing and he turned them on. A.K. also told E.W. that on the second visit, Respondent shut the lights off and imposed himself on her, including kissing her on the neck and lips and grabbing her leg. Sometime during the course of the day, A.K. told E.W. about Respondent's having her touch his penis area. On the morning of February 11, soon after A.K. told E.W. about the incident, E.W. asked A.K. whether she had told anyone. A.K. replied that she had not. E.W. then told A.K. that she needed to report the incident to Mary Ellen Bergsma, the school guidance counselor. Although A.K. agreed to do so, she was hesitant and embarrassed to discuss the incident with Ms. Bergsma or anyone. At the beginning of the first block, E.W. accompanied A.K. to Ms. Bergsma's office. Ms. Bergsma invited both girls into her office and shut the door. Initially, when she went into Ms. Bergsma's office, A.K. was visibly upset, choked up, and unable to speak. After being encouraged by E.W., A.K. told Ms. Bergsma about the incident with Respondent. A.K. told Ms. Bergsma that Respondent had "hit on her," meaning that he had kissed her. In response to her question, A.K. told Ms. Bergsma that the event occurred in the storage closet area and then explained what happened in more detail. During this time, A.K. continued crying and had a hard time talking. After A.K. told Ms. Bergsma about the incident, Ms. Bergsma informed A.K. that she would have to talk with Gary Brown, the principal of NHS, about the incident. Later that morning, Ms. Bergsma accompanied A.K. to Mr. Brown's office. Although A.K. appeared uncomfortable and nervous and was crying, she told Mr. Brown basically what she had told Ms. Bergsma. At the end of the day, E.W. went to Ms. Bergsma to report some of the additional details that A.K. was too embarrassed to tell Ms. Bergsma, including Respondent's putting her hand on his genital and saying, "This is what you do to me." Over the next few weeks, Ms. Bergsma had follow-up conversations with A.K. to see how she was doing. She found that A.K. was having difficulty concentrating at school, not sleeping well, and, overall, was "having a tough time." On February 11, after A.K. reported the incident to Ms. Bergsma, she decided to remove A.K. from Respondent's peer tutor class. At 9:02 a.m. that morning, Ms. Bergsma e-mailed Respondent advising the following: "FYI – A.K. is out of your class 4th block." The e-mail was opened by Respondent at 9:05 a.m. and deleted by him at 9:05 a.m. Five minutes later, at 9:10 a.m., Respondent prepared a separate E-mail stating, "Thanks for the info. Have a great day." Respondent never contacted Ms. Bergsma to find out why A.K. was no longer in his fourth-block class. Respondent testified that the e-mail was no big deal to him and that it might have meant A.K. was out just that day since the e-mail from Ms. Bergsma did not have the word "permanently" contained in it. Between approximately 12:00 to 12:30 p.m., on February 11, Mr. Brown told Respondent in person that he wanted to meet with him in Mr. Brown's office at about 2:00 p.m. When Respondent met with Mr. Brown in his office that afternoon, Mr. Brown asked Respondent if he knew why he had been called to his office. Respondent seemed to think about the question and replied that it must be a parent complaining about his basketball program. He thought up several possibilities until Mr. Brown told him it had nothing to do with basketball. Mr. Brown then told Respondent that the meeting pertained to a complaint from a female student who had peer counseling with him and related to inappropriate physical contact that Respondent had with the student. After progressing through each of his classes and being informed by Mr. Brown that it regarded a complaint from the fourth block the preceding day, Respondent stated that the complainant had to be A.K. because she was the only female present that period on February 10. After Mr. Brown informed Respondent of the allegations, Respondent's head dropped down. He had tears in his eyes and stated that he could not believe this was happening to him. Mr. Brown then asked Respondent if he could think of any reason why A.K. would make such an accusation against him. Respondent told Mr. Brown about an incident at the NHS basketball game on January 31, 2003, which involved A.K. Respondent stated that he had spoken with A.K. on February 3, 2003, about her conduct at the game. Respondent then retrieved a letter from his brief case and presented it to Mr. Brown. The letter was dated February 3, 2003, and was addressed to Coach Byington. Respondent had authored the letter and typed it on a computer. The letter stated that during half-time of the January 31, 2003, basketball game, while Respondent was outside for "a breath of fresh air," he saw A.K. and two other NHS students, K.S. and S.W., and a former NHS student, J.W., outside. In the letter, Respondent indicated that the students appeared to be intoxicated and under the influence of drugs or alcohol; that two of the students approached him; and that A.K. then began making derogatory comments about two NHS assistant football coaches, one of whom was Coach Byington. Also, the letter indicated that on February 3, 2003, Respondent spoke to A.K., during fourth block about her being intoxicated. According to the letter, Respondent told A.K. that she and those with her on January 31, 2003, were "lucky that [Respondent] was in the middle of a game and [they] had not been caught." In addition to information about A.K.'s being intoxicated at the game, Respondent included statements in the letter which were unrelated to the January 31, 2003, incident. Apparently, referring to his February 3, 2003, conversation with A.K., Respondent wrote in the letter: It was during this conversation that I figured out [A.K.] was extremely bitter about coaches at NHS. After further research, it was determined that [A.K.] need not be trusted. [A.K.] on several occasions accused Byington and the football staff of starting rumors about her . . . and she claimed people had given her a hard time about being a senior dating a freshman. I had never heard of such rumors and felt that she was overplaying this to an extreme. After refusing to discuss any more of these matters with her, she became very irate and said that I [Respondent] was just like the others. In quotes "jerks". [sic] Just wanted you to have this information on file. Respondent told Mr. Brown that he had never given the letter to Coach Byington because he did not want to get A.K. in trouble. Coach Byington never received Respondent's letter dated February 3, 2003, nor did Respondent speak to Coach Byington about its contents. If a letter with allegations like the ones made in the letter dated February 3, 2003, were brought to his attention, Coach Byington would look into the matter or take some action. The letter dated February 3, 2003, accurately states and it is undisputed that (1) Respondent saw NHS students, A.K., K.S., and S.W., and a former NHS student, J.W., on January 31, 2003, during half-time at the basketball game that evening; (2) the students, including A.K., were intoxicated; and (3) on February 3, 2003, Respondent talked to A.K. about being intoxicated at the basketball game. The letter dated February 3, 2003, falsely and inaccurately states when Respondent saw A.K. on January 31, 2003, she talked to him about her dislike for two of NHS football coaches and said derogatory things about them. Rather, after exiting the gym at half-time, A.K. and K.S. spoke to Respondent only briefly, about a minute. During that conversation, A.K. asked Respondent about his daughter, Callie, and how the basketball game was going; she also wished him luck in the second half. A.K. and K.S., along with S.W. and J.W., continued to walk to A.K.'s friend's car to have a few shots of alcohol during half-time. On the evening of January 31, 2003, A.K. never said anything to Respondent about Coach Byington or any other coach at NHS. In light of the purpose for which Respondent claimed he wrote the letter dated February 3, 2003, there is no reasonable explanation for Respondent's inclusion in the letter of the statement that "[a]fter further research, it was determined that [A.K.] need not be trusted and that A.K. said that Respondent was jerk [sic], just like the other coaches. Since becoming a peer tutor for Respondent and prior to January 31, 2003, A.K. had talked to Respondent on several occasions and told him that she did not like Coach Byington. The reason A.K. did not like Coach Byington was that she believed that he gave preferential treatment to football players and had made A.K. the butt of jokes because she was dating a freshman football player. A.K. made no secret that she "did not care" for Coach Byington and candidly admitted her feelings about Coach Byington at hearing. There were no other coaches at NHS who A.K. disliked or told Respondent that she disliked. The letter dated February 3, 2003, also inaccurately and falsely stated that when Respondent talked to A.K. at school on February 3, 2003, about being intoxicated at the January 31, 2003, basketball game, she became irate. Respondent's testimony at hearing regarding this conversation is not credible. Contrary to Respondent's account, the conversation took place in the gym and not in Respondent's office. Moreover, during the conversation, Respondent seemed to be joking with A.K. about her being intoxicated at the January 31, 2003, basketball game. At no time during that conversation did Respondent talk to A.K. about the kind of people she should hang out with. Respondent also never indicated to A.K., during that conversation or at any other time, that he would report her to school officials or tell her parents that she was intoxicated. Respondent provided confusing and contradictory testimony in connection with the letter dated February 3, 2003. First, despite the date on the letter, it is not clear when Respondent wrote the letter. Respondent testified that he prepared the letter on Monday, February 3, 2003, but also testified that he could have finished it later that week. This testimony is consistent with a letter Respondent wrote in March 2003, in response to the report of the School Board's investigator. Respondent also testified that even if he did not finish the letter on February 3, 2003, he would not have changed the date because he did not consider the letter an official document. During the investigation of A.K.'s complaint against Respondent, the School Board's computer system technicians checked the school's computers and found no record of the letter in the system. If, as Respondent testified, he made changes to the letter over a period of time, the letter would have been saved on the system and the computer technicians would have been able to retrieve it. Respondent's testimony and representations regarding the preparation of the letter dated February 3, 2003, are confusing and not reasonable. In his March 2003 letter to the School Board in response to the investigator's report, Respondent stated that after initially writing the February 3, 2003, letter, he waited to review it before delivering it to Coach Byington. Despite all the time Respondent indicated he took to write, review, and edit the letter, Respondent never gave the letter to Coach Byington, even though Coach Byington's office was only a 20- to 30-second walk from Respondent's office. According to Respondent, the reason was that he had a busy basketball schedule. Respondent testified that the reason he prepared the letter dated February 3, 2003, was to give Coach Byington a "heads up." Yet, Respondent provided no explanation as to why Coach Byington needed a "heads up." Respondent's testimony regarding the reason he wrote the letter dated February 3, 2003, is not credible. Respondent did not prepare the letter dated February 3, 2003, to give to Coach Byington and did not deliver it to him or discuss it with him. The letter was instead prepared to give to Mr. Brown to undermine the credibility of A.K. At all times relevant to this proceeding, E.M., a male, was a student at NHS. E.M. and Respondent had a close relationship and have known each other for about five years, having first met when E.M. was in the sixth grade and was coached by Respondent. While a coach at NHS, Respondent sometimes gave E.M. lunch money and also hired E.M. to work in summer basketball camps. During the investigation of Respondent, E.M. voluntarily came forward to provide information supportive of Respondent. E.M. told Mr. Brown and testified at hearing that when he was in the boys' locker room on February 3, 2003, he overheard Respondent tell A.K. that she should hang out with better people; that he then saw Respondent leave his office; that he saw A.K. leave the office soon after Respondent left the office; and that he noticed that as she was leaving, A.K. was on a cell phone saying to someone that she hated the coaches at NHS and was going to get back at them. A.K. did not make a cell phone call from school on February 3, 2003. In fact, she does not bring her cell phone to school. Moreover, A.K.'s cell phone records show that no call was made at the time E.M. claimed the call was made. Finally, as noted in paragraph 45, the February 3, 2003, conversation between Respondent and A.K. took place in the gym, not in Respondent's office. The testimony of E.M. was not credible and was refuted by competent and substantial evidence. There is no reasonable explanation for A.K. to file false charges against Respondent. As even Respondent admitted, A.K.'s animus was directed to Coach Byington, not toward Respondent. Prior to the February 10 incident in the storage closet, A.K. liked Respondent and considered him a good friend. She had been a student in Respondent's aerobics class during her sophomore year at NHS. During the first semester of her senior year, A.K. had been an office assistant at NHS and in that capacity, she was required to hand out passes to designated or assigned teachers. Respondent was one of the teachers A.K. had to deliver passes to on an almost daily basis. When A.K. delivered the passes to Respondent, they often had conversations. The second semester of her senior year, A.K. specifically requested to be a peer tutor for Respondent because she thought he was a "cool teacher." As a consequence of the February 10, 2003, incident, A.K., in a consultation with her parents, began seeing Dr. Marta Gallego, a clinical psychologist in Naples, to help her address her fears and concerns. The counseling sessions began on or about February 19, 2003, with the initial intake session involving A.K. and her family, and continued until early May 2003. The therapy sessions with Dr. Gallego focused on A.K.'s reactions to the incident, helping her deal with her reactions, and processing the incident. During the counseling sessions, A.K. exhibited symptoms related to the trauma, was anxious at times, and was depressed. Also, after the February 10 incident, A.K. withdrew from friends and family, had difficulty concentrating at school, and felt pain over the impact that the incident had on her family. Finally, A.K. expressed to Dr. Gallego that she could not understand how a teacher that she trusted could violate her trust.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent from his position as a teacher with the Collier County School Board. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Jon D. Fishbane, Esquire Roetzel & Andress 850 Park Shore Drive, Third Floor Naples, Florida 34103 Dr. H. Benjamin Marlin Superintendent of Collier County School Board 5775 Osceola Trail Naples, Florida 34109-0919 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Nicholas Penn should be administratively assigned to the J. R. E. Lee Opportunity School Program in lieu of expulsion for misconduct at the W. R. Thomas Jr. High School.
Findings Of Fact During the 1987-88 school year Nicholas Penn was an eighth grade student at W. R. Thomas Jr. High School in Dade County, Florida. At the beginning of each year students receive a locally prepared handbook which informs the students of the code of student conduct for the Dade County Public Schools. During social studies classes early in the year the code of student conduct is reviewed. Nicholas Penn cut class on September 8, 1987. He was picked up by the police. When he was picked up he had a knife with him. Charges resulting from possession of that knife were dropped. As a result of truancy, he was seen by the Assistant Principal, Donal Helip, who referred Nicholas to the guidance counselor, Betty Thomas. When Betty Thomas saw Nicholas, he told Thomas that he did not enjoy school, did not have many friends, and felt frustrated at home. After a discussion with his mother, Ms. Alcantara, it was agreed that Nicholas would be put on work assignment around the school. Nicholas was also processed for a psychological referral on or about September 20, 1987, because he did not seem to be performing at his academic potential. On October 22, 1987, Nicholas was involved in a fight at school as a result of which he received a bloody nose and a head injury. As a result of the fight, Nicholas was put on a 2-day suspension. He did not attend school on Friday, October 23, or Monday, October 26. Mr. Helip spoke with him on Tuesday, October 27, when he returned to school. Nicholas told Mr. Helip the incident was closed and there would be no more problems about the fight. The other boy involved told Mr. Helip the same thing. On October 28, a student commented to Mr. Helip that Nicholas had a knife. Mr. Helip had the school security monitor bring Nicholas to his office, where Mr. Helip asked Nicholas to unload his backpack. At the bottom of the backpack was a wooden handled knife with a seven inch blade encased in a homemade, black sheath. Ms. Alcantara was called to the school where she identified the knife as one of the type which she had at home, which were part of a knife set purchased at J. C. Penny's. Nicholas was suspended for 10 days with a recommendation of expulsion. A request for waiver of expulsion and reduction of the penalty to suspension was made because the knife had not been used to threaten anyone else. At the time that Nicholas was withdrawn from W. R. Thomas Jr. High School he had a D in math, an F in shop and in physical education and incomplete grades for his other classes. The explanation offered by Nicholas for having the knife in his bag was that he had not brought it to school. During computer class his backpack was on a table and the students involved in the October 22, fight came up to him and said, "Nick, you got a weapon on you?," and when the class ended he picked up his bag and was going to the next class when the school security monitor asked him to go with him to Mr. Helip's office, who wanted to search his things. They went through his locker and in the backpack found the knife. Nicholas originally said that it was not his, but his mother told Mr. Helip that it was a knife like others she had at home. Of course, her knives did not have a black, homemade sheath like the one found on the knife in the backpack. When she returned home she determined that her knife set was complete. Mrs. Alcantara then informed school officials that she had been mistaken when she identified the knife as one of hers. There was nothing about Nicholas' expression at the time his backpack was searched which gave any indication that he was surprised about the knife found in his bag; in Mr. Helip's view, if the knife had been planted, it should have been closer to the top of the bag. Nicholas maintains that when he arrived home he found a rip in the corner of the backpack which would have allowed someone to plant the knife in the bag. The backpack was never produced at the hearing. The Hearing Officer finds it more probable than not, given all the circumstances, that the knife was not planted and Nicholas brought the knife to school.
Recommendation It is recommended that the assignment of Nicholas Penn at the J. R. E. Lee Opportunity School be maintained. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1988. COPIES FURNISHED: Ms. Rosa Alcantara Frank R. Harder, Esquire 13173 Southwest 11th Lane Circle Suite 2A-3 Miami, Florida 33184 175 Fontaineblau Boulevard Miami, Florida 33172 Madelyn P. Schere, Esquire Dr. Joseph A. Fernandez Assistant Board Attorney Superintendent of Schools 1450 Northeast 2nd Avenue Dade County Public Schools Suite 301 School Board Administration Miami, Florida 33132 Building 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor Sydney H. McKenzie, Esquire Commission of Education General Counsel The Capitol Department of Education Tallahassee, Florida 32399 Knott Building Tallahassee, Florida 32399
The Issue Whether Petitioner, Betty E. New, is entitled to membership in the senior management services class (SMSC) of the Florida Retirement System (FRS) from July 1, 2004, through her retirement in 2015.
Findings Of Fact Petitioner, on February 1, 2002, was employed by the Pinellas County Board of Commissioners (Pinellas County) as court counsel. In her position as court counsel, Petitioner, through an inter-local agreement, was under the supervision and control of the chief judge of the Sixth Judicial Circuit, but her salary and benefits were paid by Pinellas County. Specifically as to benefits, Pinellas County was solely responsible for paying employer contributions to Petitioner’s state retirement account. When initially hired as court counsel, the position was designated in the Regular Class of the FRS. In March of 2003, Pinellas County requested that Petitioner’s position be added to the SMSC of the FRS, and the request was granted by Respondent, retroactive to her hire date of February 1, 2002. On June 30, 2004, Petitioner ceased being employed by Pinellas County and she received a payout of all unused leave, pursuant to the termination payout rules of Pinellas County. Additionally, on June 30, 2004, Pinellas County ceased being responsible for making employer contributions to Petitioner’s state retirement account. On June 30, 2004, Judge David A. Demers, then chief judge of the Sixth Judicial Circuit, requested that Petitioner be paid a $10,000.00 bonus due to the fact that Petitioner would “no longer be a member of the senior management class for retirement purposes.” The bonus was approved and Petitioner accepted the same. Effective July 1, 2004, funding for all court system employees was transferred to the State. Consequently, Petitioner, on July 1, 2004, was reported to the Division of Retirement as an employee of the Office of State Courts, in the Regular Class of the FRS. Petitioner was aware that her position would no longer be included in the SMSC at least as early as September 2004, and chose not to request an opportunity to challenge the determination until several years later. Petitioner asserts that she was continuously an employee of the Office of State Courts from February 1, 2002, and that she was never an employee of Pinellas County. Stephen Bardin credibly testified that if Petitioner had been an employee of the Office of State Courts, rather than of Pinellas County, her position would never have been eligible for inclusion in the SMSC in 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order denying Petitioner's request for SMSC credit from July 1, 2004, through the date of her retirement in 2015. DONE AND ENTERED this 13th day of April, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2016.
Findings Of Fact Petitioner, John F. Morack, is a member of the Teachers Retirement System (TRS). The TRS is administered by respondent, Department of Administration, Division of Retirement (Division). On April 18, 1988, petitioner began working for a new employer and concurrently filled out an application form to enroll in the Florida Retirement System (FRS), a plan also administered by the Division. By letter dated June 27, 1988, the Division, through its chief of bureau of enrollment and contributions, Tom F. Wooten, denied the request on the ground Morack failed to qualify for such a transfer. Dissatisfied with the agency's decision, Morack initiated this proceeding. Petitioner first enrolled in the TRS on September 18, 1970, when he began employment as a dean at Broward Community College. At that time, he had no option to enroll in any retirement program except the TRS. Under the TRS, an employee did not have to make contributions to social security and earned "points" for calculating retirement benefits at a rate of 2% for each year of creditable service. In contrast, under the FRS, which was established in late 1970, members earned benefits at a rate of only 1.6% per year but were participants in the social security program. Finally, a TRS member could not purchase credit for wartime military service unless he was an employee at the time he entered the military service and was merely on a leave of absence. On the other hand, an FRS member could purchase credit for military service after ten years of creditable service as long as such military service occurred during wartime. When the FRS was established in late 1970, members of the TRS were given the option of transferring to the newly created FRS or remaining on TRS. Morack executed a ballot on October 15, 1970 expressing his desire to remain on the TRS. In November 1974, the Division offered all TRS members an open enrollment period to change from TRS to FRS. Morack elected again to remain on the TRS. In the latter part of 1978, the Division offered TRS members a second open enrollment period to switch retirement systems. On November 21, 1978, Morack declined to accept this offer. On January 1, 1979 Morack accepted employment with the Department of Education (DOE) in Tallahassee but continued his membership in the TRS. He remained with the DOE until July 1981 when he accepted a position in the State of Texas. However, because Morack intended to eventually return to Florida, he left his contributions in the fund. Approximately two years later, petitioner returned to Florida and accepted a position at Florida Atlantic University (FAU) in Boca Raton as assistant vice president effective July 11, 1983. About the same time, he prepared the following letter on a FAU letterhead. To Whom it May Concern: This is to indicate that I elect remaining in TRS rather than FRS. (Signature) John F. Morack The letter was received by the Division on July 19, 1983, and the enrollment form was processed on November 2, 1983. Although Morack stated that he was told by an FAU official that he could not transfer plans at that time, there is no competent evidence of record to support this claim since the testimony is hearsay in nature. On November 18, 1985, Morack requested the Division to audit his account for the purpose of determining how much it would cost to purchase his Korean War military service. On January 24, 1986, the Division advised Morack by memorandum that because he had "no membership time prior to (his) military service, that service is not creditable under the provisions of the Teachers' Retirement System." During the next two years Morack requested two audits on his account to determine retirement benefits assuming a termination of employment on July 31, 1987 and June 30, 1988, respectively. On April 14, 1988, Morack ended his employment with FAU and began working on April 18, 1988, or four days later, at Palm Beach Junior College (PBJC) as construction manager for the performing arts center. When he began working at PBJC he executed Division Form M10 and reflected his desire to be enrolled in the FRS. As noted earlier, this request was denied, and Morack remains in the TRS. The denial was based on a Division rule that requires at least a thirty day break in service with the state in order to change retirement plans after returning to state employment. Because Morack's break in service was only four days, he did not meet the requirement of the rule. At hearing and on deposition, Morack acknowledged he had several earlier opportunities to transfer to the FRS but declined since he never had the benefits of the FRS explained by school personnel. As retirement age crept closer, petitioner began investigating the differences between the TRS and FRS and learned that the latter plan was more beneficial to him. This was because the FRS would allow him to purchase almost four years of military service, a higher base salary would be used to compute benefits, he could participate in social security, and there would be no social security offset against his retirement benefits. Also, petitioner complained that school personnel were not well versed in retirement plans and either were unaware of alternative options or failed to adequately explain them. As an example, Morack points out that when he returned from Texas in 1983 he was not told by FAU personnel about the change in the law now codified as subsection 121.051(1)(c). Finally he thinks it unfair that the Division counts four days employment in a month as a full month's creditable service for computing benefits but will not count his four days break in service in April 1988 as a full month for computing the time between jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to change retirement plans be DENIED. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4183 Respondent: 1. Covered in finding of fact 6. 2-4. Covered in finding of fact 7. 5. Covered in finding of fact 10. 6-7. Covered in finding of fact 11. Covered in findings of fact 8 and 11. Covered in findings of fact 1 and 10. COPIES FURNISHED: Mr. John F. Morack 10474 Green Trail Drive Boynton Beach, Florida 33436 Stanley M. Danek, Esquire 440 Carlton Building Tallahassee, Florida 32399-1550 Andrew J. McMullian, III State Retirement Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Adis Maria Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire general Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Respondent should grant Petitioner's request that he be reclassified (for retirement purposes) as "Special Risk Administrative Support," effective January 1, 1994.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1972, employed by Miami-Dade County's Correction and Rehabilitation Department. He began work in 1972 as a Correctional Officer. He now is the Assistant Director of General Administration. In 1993, Petitioner held the position of Assistant Director of Corrections and Rehabilitation Services (position number 4594), and was a member of the Special Risk Administrative Support Class within the Florida Retirement System (FRS). Miami-Dade County placed notices in the September 11, 1993, and September 18, 1993, editions of the Miami Herald of its intention to designate Petitioner's position (position number 4594) and others for inclusion in the Senior Management Service Class of the FRS, effective January 1, 1994. Thereafter, Beth Carlton, Miami-Dade County's Employee Benefits Coordinator, issued a two-page memorandum, dated October 13, 1993, on the subject of "[c]hange in [r]etirement [c]lass [d]esignation." The first page of the memorandum read as follows: A recent legislative change allows local government employers to designate certain positions to be included in the Senior Management Service Class (SMSC) of the Florida Retirement System (FRS). As required by statute, a notice of intent was published and the Board of County Commissioners has designated executive positions in groups 1 and 2 as positions to be included in the SMSC. Effective January 1, 1994, your position is designated as one belonging to the SMSC. Attached is a booklet from FRS explaining the SMSC. Senior Management Service Class There are essentially two differences between the Senior Management Service Class and Regular Class under FRS. Under the SMSC you are vested after you have completed 7 years of Senior Management service (or 10 years of any FRS service). You may retire without reduction in benefits due to age if you are 62 and have 7 years of Senior Management service, or 10 years of any FRS service. Each year of creditable Senior Management service earns you a 2% credit. Regular service earns 1.6% credit. Additionally, in accordance with state statutes, the Board of County Commissioners has authorized the County to upgrade to SMSC service any creditable service you may have earned in a designated Senior Management position since February 1, 1987. This means that you will receive the 2% service credit for any upgraded service. This upgrade will take place after January 1, 1994, and will apply only to those employees occupying designated Senior Management positions on January 1, 1994. Lifetime Monthly Annuity Program Employees in positions designated Senior Management may instead elect to withdraw from the Florida Retirement System altogether and participate in a lifetime monthly annuity program. The second page of the memorandum read as follows: Members of the SMSC who elect to withdraw from FRS and participate in the annuity program do not earn additional FRS credit while they are in the annuity program and are not eligible for disability benefits under FRS. Your decision to withdraw from FRS and participate in the annuity program is irrevocable as long as you remain in a Senior Management position. Should anyone occupying a position designated as Senior Management elect the Lifetime Monthly Annuity Program, the County would need to establish and fund a separate supplemental retirement program. The County would contribute 12.62% of the covered compensation of any such employee to the annuity program, and 10.45% to FRS for unfunded actuarial accrued liability (rates set by Florida legislature). For SMSC participants, the County will contribute 23.63% of covered compensation. The annuity program does not guarantee any benefits payable on retirement, but merely guarantees the amount of contributions and actual investment earnings. The health insurance subsidy is not paid for service under the annuity program. Next Steps You will receive an election form from FRS. Forms are still being developed and are not currently available for distribution. On the election form you will elect either to remain in SMSC or to withdraw from FRS. We are automatically preparing paperwork for FRS to upgrade all eligible prior service to SMSC and will notify you of the dates of service that we are requesting to upgrade. FRS will not process any upgrades until after January 1, 1994. Upgrades for those Senior Management employees who are planning to retire early in 1994 will be handled first. If you are planning to retire before June of 1994, please notify us immediately. Once the upgrades are complete, you will be informed of your years of creditable Regular service and SMSC service according to FRS records. Petitioner received a copy of the first page of the memorandum; however, he received neither a copy of the second page of the memorandum, nor a copy of the "booklet from FRS" referenced on the first page of the memorandum (FRS Booklet), which explained, among other things, that, in lieu of participating in the Senior Management Service Class, those in the Special Risk or Special Risk Administrative Support Classes had the option of remaining in these classes. For purposes of benefits and compensation, executive positions in Miami-Dade County government are placed in one of three "Executive Benefit Groups" (Groups 1, 2, and 3). At the time of the issuance of Ms. Carlton's October 13, 1993, memorandum, Petitioner occupied a position (position 4594) in Executive Benefit Group 2. (Earlier, in December of 1991, when his position was reclassified to Assistant Director of Corrections and Rehabilitation Services, a Personnel Change Document was filled out which recommended that his position be included in Executive Benefit Group 3 instead of Executive Benefit Group 2. This recommendation, however, was not acted upon.) The benefits and compensation package received by Petitioner and the other executives in Executive Benefit Group 2 was more generous than those received by executives in Executive Benefit Group 3 and less generous than those received by executives in Executive Benefit Group 1. In January of 1994, Andrea Romisher, Miami-Dade County's Employee Benefits Manager, issued a memorandum, dated January 11, 1994, addressed to "Group 1 and Group 2 Executives," on the subject of "[e]nrollment in the Senior Management Class of the FRS." The memorandum read as follows: You received a memorandum in October which detailed the expansion of the Senior Management Class of the Florida Retirement System as of January 1, 1994. We have received the necessary forms from the Division of Retirement and are in the process of formally designating executive positions in groups 1 and 2. However, prior to our changing your retirement class, you must complete the enclosed FRS M-10. To enroll in the Senior Management Service Class: Complete the top of the form; Attach a copy of your Social Security card on the form; Designate a beneficiary by choosing either section 1, 2, or 3 under the designation of beneficiaries section; Sign and date the form. Return the form to the Office of Labor Management and Employee Benefits, 111 N.W. 1st Street, Suite 2140 no later than January 21, 1994. Please direct the form to me or Beth Carlton. The prior memorandum also explained the provision whereby members of the SMSC may irrevocably elect to withdraw from the Florida Retirement System and participate in an optional annuity program. We have contacted one of our providers and anticipate having the optional annuity program available in the near future. We have been instructed by the Division of Retirement to enroll all eligible executives in the SMSC in the interim. If you are interested in participating in the optional annuity program, please advise either me or Beth Carlton so that we may send you an election form and details of the plan when it has been finalized. Additionally, you may elect to irrevocably withdraw from the Florida Retirement System and participate in the optional annuity program at any time you occupy a position which is covered by the SMSC. If you have any questions, please call us at 375-5633. Petitioner received a copy of the foregoing memorandum. After reading the memorandum, Petitioner was of the view that remaining in the Special Risk Administrative Support Class was not an option available to him. He believed that his only alternatives were to be in the Senior Management Service Class, or "to withdraw from the Florida Retirement System altogether and participate in a lifetime monthly annuity program." On February 4, 1994, Petitioner signed and dated the following Ballot/Enrollment Form for Local Agency Employees (Division Form SMS-3) with which he had been provided: TO BE COMPLETED BY MEMBER: Name Social Security Number Position Title Position Number DATE YOU BEGAN EMPLOYMENT IN CURRENT SMSC POSITION: I understand that I am in a position designated to the Senior Management Service Class (SMSC) or either I am a compulsory member of the SMSC as provided in Section 121.055(1)(b), Florida Statutes. I also understand that in lieu of participation in the SMSC, I may now or at a later date withdraw from the Florida Retirement System (FRS) and participate in a lifetime monthly annuity program which may be provided by my employer. I hereby select the following: I elect to remain in the Florida Retirement System's SMSC, or I elect to withdraw from the FRS and participate in a lifetime monthly annuity program. I understand that my decision to withdraw from the FRS is irrevocable for as long as I hold a position eligible for the membership in the SMSC. I also understand information concerning the annuity program will need to be obtained through my employer. Member's Signature Date TO BE COMPLETED BY EMPLOYER: I certify that the above member's payroll records have been changed effective to reflect the above member's choice of membership. Signature of Personnel Officer Date Name of Employing Agency Reporting Unit Number Inasmuch as he "did not want to leave FRS," Petitioner indicated on the form that he "elect[ed] to remain in the Florida Retirement System's SMSC." Had Petitioner known that he had the option of staying in the Special Risk Administrative Support Class, he would have elected this option instead of the one that he selected. The Miami-Dade County "Personnel Officer" who completed the bottom portion of the form indicated thereon that Petitioner's "pay roll records ha[d] been changed effective 1/1/94 to reflect [Petitioner's] choice of membership." The completed Division Form SMS-3 was sent to the Division of Retirement (Division). The Division also received a form completed by Miami- Dade County which reflected that Miami-Dade County had "published notice of [its] intent to include [Petitioner's position, among others] in the SMSC [Senior Management Service Class] in the Miami Herald on 9/11/93 and 9/18/93," and that the position had been so designated for inclusion in the SMSC in accordance with the requirements of Section 121.055(3) and (7), Florida Statutes. In 1997, after learning that he had to wait another five years to retire with full benefits because of his having been "place[d] . . . in the Senior Management Service Class" in 1994, Petitioner, by memorandum dated December 26, 1997, formally requested Miami-Dade County's Employee Benefits Supervisor, Daniel Gonzales, to "take the appropriate action to accomplish [his] conversion to the [S]pecial [R]isk [A]dministrative [S]upport [Class] for the period [he has been] included in [the] SMSC." Petitioner received the following written response to his request: This memo is in response to your request to change your retirement class from the Senior Management Service Class (SMSC) to the Special Risk Administrative Support Class. In February 1994, Metro Dade designated your position to be included in the Senior Management Service Class. Simultaneously, you completed a FRS-M10 Form [Designation of Beneficiaries form] and Form SMS-3 thereby enrolling in the SMSC. This election enabled you to receive an increase in your annual retirement percentage from 1.6% for Special Risk Administrative Support Class to 2.0% for the Senior Management Service Class. Since 1994, the Employee Benefits Office has been working with the Florida Retirement System (FRS) to upgrade the service time of all executives serving in a position designated as Executive Benefits Level 2 or higher. Based on the elections you made in February 1994, the effective date of your SMSC service is January 1994. On July 3, 1997, you requested that your service from January 1987 through December 1993, not be upgraded until you received a decision from the FRS regarding your Special Risk Service Class. Although you received a determination on the Special Risk Service Class, your memo dated December 26, 1997, indicated that there are still some pending issues with the FRS. Therefore, we will continue to honor your request until all your issues with the FRS are resolved. In regards to changing your retirement class to Special Risk Administrative Support, we are unable to process your request. As specified in the Florida Retirement System Rules Chapter 60S-1.0057(2)(a), a member may elect to remain in the Special Risk Class in lieu of participating in SMSC, however such election must be made in writing and filed with the employer and the Division within 90 days after employment begins in a Senior Management Service Class position. By completing the SMSC enrollment paperwork, you made a decision to join the Senior Management Class. A copy of the Florida Retirement System Rules Chapter 60S-1.0057 has been attached for your review. Further questions on this issue should be directed to Mr. David Ragsdale, Division of Retirement, Bureau of Enrollment and Contributions, 2639-C, North Monroe Street, Tallahassee, Florida, 32399- 1560. Petitioner subsequently requested the Division to change his classification. By letter dated July 31, 1998, which provided in pertinent part as follows, the State Retirement Director notified Petitioner that a final decision had been made that his request could not be granted: This is in response to your June 8, 1998 letter requesting the Division of Retirement reconsider its decision to reclassify your service from the Senior Management Service Class (SMSC) to the Special Risk Administrative Support Class (SRASC). By letter dated April 23 (copy enclosed), we advised you of our determination that there is no provision in the FRS law that would allow the Division to honor your request for reclassification. Enclosed is a copy of Section 60S- 1.0057(2)(a)1., F.A.C. Based on the information provided, it appears you failed to elect to remain in the Special Risk Administrative Support Class within the 90 day period as provided in the law. You indicated an election to remain in the SMSC when you executed a Ballot/Enrollment FORM SMS-3, dated February 4, 1994 (copy enclosed), and are consequently a compulsory member of the SMSC. Therefore, the ruling is now final, and if you do not agree with the decision, you are entitled to an Administrative Hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order granting Petitioner the equitable relief described above. DONE AND ORDERED this 9th day of March, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 9th day of March, 1999.
The Issue The issue for determination is whether Petitioner’s position was properly reclassified by Respondent under the Service First Initiative from Career Service to Select Exempt Service.
Findings Of Fact Ms. Blow-Beasley was employed with DCFS, formerly known as Department of Health and Rehabilitative Services, hereinafter HRS, in Broward County, Florida from February 1, 1988 to June 7, 2002. From August 3, 2000 to July 2001, as part of her employment with DCFS, Ms. Blow-Beasley worked for Economic Services. On September 29, 2000, Ms. Blow-Beasley was hired as a Public Assistance Specialist Supervisor by DCFS, which was a Career Service position. From September 29, 2000 to July 2001, a Public Assistance Specialist Supervisor was a supervisory position with HRS and/or DCFS. From September 29, 2000 to July 1, 2001, in her role as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley supervised two or more employees. As part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. By letter dated June 15, 2001, Ms. Blow-Beasley was notified by DCFS that her position in Career Service was being “transferred” to SES, effective July 1, 2001. Her position in Career Service was reclassified as a SES position. Ms. Blow-Beasley informed her supervisor that she did not want to remain in SES and would accept a demotion to be in Career Service. Her request was not granted. From July 2001 to June 7, 2002, as part of her employment with DCFS, Ms. Blow-Beasley worked for the Economic Self-Sufficiency, hereinafter ESS, Program. From July 2001 to June 7, 2002, Ms. Blow-Beasley’s position title was, and she was employed as, ESS Supervisor Specialist. From July 2001 to June 7, 2002, an ESS Supervisor Specialist was a supervisory position with DCFS. As part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. Ms. Blow-Beasley does not dispute that, from September 29, 2000 to June 7, 2002, she was a supervisor and had been in both Career Service and SES as a supervisor. Ms. Blow-Beasley does not dispute that, when her position was reclassified from Career Service to SES, her duties and responsibilities did not change, but remained the same. No direct evidence was presented to demonstrate that Ms. Blow-Beasley had the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. However, an inference is drawn and a finding of fact is made that, based on her duties, she had the authority to effectively recommend the action to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. Approximately one year after the reclassification, on June 7, 2002, Ms. Blow-Beasley was dismissed from employment with DCFS. On the said date, she signed a letter acknowledging receipt of the notice of dismissal from DCFS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Ms. Sherry A. Blow-Beasley’s Career Service position was properly reclassified as a Select Exempt Service position. DONE AND ENTERED this 18th day of November 2008, 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 18th day of November, 2008.
The Issue The issue is whether Respondent's Educator's Certificate should be suspended..
Findings Of Fact Respondent has been in the education profession for 31 years. He holds a master’s degree in psychological counseling and a specialist certificate in educational leadership. He has taught, in chronological order, at Lake City Junior High School, Deland Senior High School, Edison Community College, and Cape Coral High School. He has served as an assistant principal at Cape Coral High School, Riverview High School, and Lehigh Senior High School, for a total of eight years. During his career in education, Respondent has not been disciplined and has generally received excellent evaluations. In August 1999, prior to the return of the students or faculty, Respondent was the assistant principal of curriculum at Lehigh Senior High School. This was a difficult period for the school district. It had spent more than it had received during the prior school year, and the superintendent, Dr. Bruce Harter, had had to recommend to the school board difficult cutbacks, including over 90 teaching positions. The school board had adopted these recommendations, and Dr. Harter had implemented them, starting the 1999-2000 school year. In mid August 1999, while working in the common area of the office in preparation for the return of the teachers to school, Respondent was talking with a couple of other school administrators while they were painting school colors in the office. In charge of preparing the master schedule of classes for the school, Respondent was especially upset at the teaching cutbacks. During a conversation among the three administrators, Respondent commented once or twice, “Who do you want to bet will shoot Dr. Harter?” The administrator who recounted this comment walked away to his office to terminate the conversation. He reported that Respondent was not ranting or raving when making the comment and that Respondent did not make these comments in a threatening manner. The administrator has known Respondent since 1988 and has never known him to be dangerous, threatening, or unprofessional. As all persons involved in this case were aware, this comment was especially distasteful because a distraught school teacher had murdered a superintendent a few years earlier. In a school district the size of Lee County, nearly everyone involved in this case had some personal involvement in the tragic loss of the superintendent. For instance, the administrator who recounted the conversation at the school office had known the teacher who had shot the superintendent. A day or two after the first comment, on August 19, 1999, Respondent attended a meeting at another school for the purpose of welcoming the new principals. Respondent was frustrated because he had applied over a dozen times in the past four years for the position of school principal, but had never even been interviewed. In the course of the presentation, a speaker said, “Let’s give Lynn Strong a round of applause.” Ms. Strong was in charge of personnel and had some involvement in the selection process for principals. In response to the speaker’s comment, Respondent muttered, “I’d rather give her a bullet.” This remark was heard only by two or three other administrators, also from Lehigh Senior High School, who were seated at the same table as Respondent. The administrators hearing Respondent’s remark were not so much alarmed, as they were concerned. The consensus among them was that someone should inform the principal of Respondent’s remarks, and the principal should talk to Respondent. On the same day as the latter statement, the principal visited Respondent in his office and told him that he had learned of these statements and that they were inappropriate. The principal warned Respondent that such statements could get him in a lot of trouble. Without denying having made the statements, Respondent said that he had not intended to act on them. Unsure what, if anything, to do next, the principal received a call from someone in the district office, who had heard about Respondent’s statements. Even though he had worked with Respondent for several years and had never known him to behave unprofessionally, the principal decided to report the threat to Ms. Strong and the superintendent. Ms. Strong became frightened by the report. She had known of the murder of the superintendent, as well as a murder of a teacher in the recent past. Ms. Strong stayed in her home all of the ensuing weekend, and her husband escorted her to work for a couple of weeks. She never contacted Respondent about the situation, largely because Ms. Strong’s professional responsibilities encompassed the investigation, but Respondent never contacted her and explained the situation to relieve her of her understandable anxiety. After an investigation, the school district removed Respondent from Lehigh Senior High School and suspended him with pay for nine weeks. After the completion of the suspension, the school district reassigned Respondent to a second-chance school, until his contract expired at the end of the school year. The next year, the principal of Fort Myers High School, who had known Respondent as an effective educational professional for many years, hired him as a teacher. Respondent’s work after the two incidents in August 1999 has earned him praise from his supervisors. The two comments made by Respondent were repulsive, especially given the tragic recent history of violence directed against Lee County education professionals. Assessed in the context of a long, effective career in education, these two incidents stand out as isolated and largely inexplicable. The only partial explanation appearing in the record was that Respondent had, in August 1997, completed counseling for the sudden death from an undetermined cause of his 22-year-old daughter, while she was attending the University of Florida. The question nevertheless remains why a mature professional educator, himself having recently undergone a tragic, recent loss, would choose to express his displeasure with policy and personnel decisions by oblique references to the death of the administrators making these policy and personnel decisions. Based on the prehearing stipulation, Petitioner abandoned its allegation that Respondent is guilty of a violation of the Principles of Professional Conduct for the Education Profession. In any event, Petitioner did not prove by clear and convincing evidence that Respondent is guilty of intimidating or harassing anyone. Petitioner has failed to prove by clear and convincing evidence that Respondent is guilty of gross immorality or moral turpitude. Evaluated in the context of his long professional career in education, these lapses in judgment, although serious departures from good judgment, do not constitute moral turpitude, especially in view of the fact that no one hearing the remarks believed that Respondent intended to do violence to Dr. Harter or Ms. Strong. Petitioner has failed to prove by clear and convincing evidence that Respondent has reduced his effectiveness as an employee of the school board. Absent the willingness of two administrators to work with Respondent following his August 1999 comments, this issue would be more difficult to resolve. However, these administrators have given Respondent the opportunity to demonstrate that he remains an effective educator and has lost none of his effectiveness as an employee of the school board. One’s sense of justice is not offended by Respondent’s removal from administrative duties, nor the likelihood that his resumption of administrative duties will, if ever, be long deferred; however, as a teacher, Respondent remains an effective and valuable employee of the school board, provided he guards carefully against a recurrence of this irresponsible behavior.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 9th day of March, 2001. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Florida Education Center, Room 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Department of Education Bureau of Educator Standards, Room 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 William R. Scherer III Conrad & Scherer Post Office Box 14723 Fort Lauderdale, Florida 33302 Harry A. Blair Harry A. Blair, P.A. 2180 West First Street, Suite 401 Fort Myers, Florida 33901
