Findings Of Fact Petitioner was employed by Florida State University during the 1979- 1980 academic year as a tenured professor of chemistry at an annual salary of $22,819.00. Petitioner submitted an Application for Service Retirement Benefits dated May 2, 1980, to Respondent, which application reflected Petitioner's intention to terminate his employment at Florida State University effective May 30, 1980. Previously, Petitioner had advised the Chairman of the Chemistry Department of Petitioner's intention to retire effective June 5, 1980. However, in submitting the aforesaid application dated May 2, 1980, Petitioner determined to relinquish four days of employment salary in June in order to become eligible for retirement benefits begin to accrue on the first day of the first month following termination of employment. Petitioner's request to terminate his employment effective May 30, 1980, was approved by both his department chairman and by the Retirement Coordinator at Florida State University. As a result of his notification of intent to terminate his employment effective May 30, 1980, Petitioner was removed from the payroll of Florida State University effective May 30, 1980. However, Petitioner continued to perform his duties as a professor of chemistry at Florida State University until the end of the academic school year on June 16, 1980. Petitioner continued actual classroom and laboratory instruction until the end of classes on June 6, 1980. Petitioner continued actual classroom and laboratory instruction until the end of classes on June 6, 1980, and, following the end of classes, he conducted final exams, graded examinations, issued grades and, on June 16, 1980, briefly attended a faculty meeting. Although Petitioner's contract of employment provides for a faculty appointment from September 7, 1979 through June 5, 1980, these dates relate only to pay periods, since a faculty member's contractual duties and responsibilities, unless specifically altered by mutual agreement between the contracting parties, extend through the end of the academic school year in this case, June 16, 1980. The academic school year at Florida State University is nine months long and is comprised of three academic quarters, during which approximately one-third of a faculty member's annual salary is paid in each of the three academic quarters. Petitioner was paid through May 30, 1980, by Florida State University, and received no payment for services rendered during the month of June, 1980. However, when Florida State University officials were advised by respondent's personnel that Petitioner's request to establish May 30, 1980 as his termination date for retirement purposes would not be honored, Petitioner was advised that the University stood ready to pay him the $468.08 which he would have received for his work in June, 1980, had he not chosen the May 30, 1980 employment termination date. The record reflects that Petitioner made the decision to choose May 30, 1980, as his employment termination date, rather than the later date of June 5, 1980, during counseling sessions with representatives of Respondent, when it became apparent to them that he could receive $1,554.64 in retirement benefits for the month of June, as opposed to the $468.08 he would receive in June in salary had he chosen to continue to receive his salary for services performed at Florida State University. Petitioner was correctly advised by Respondent's personnel that by working through June 5, 1980, and earning salary for that time period, he would be ineligible to begin accruing retirement benefits until the end of June, 1980.
Findings Of Fact James A. Campbell was employed by Sherba Brothers, Inc. on public work project at the Florida International University Interrama Campus between June 9, 1976 and August 20, 1976. Campbell was employed as an electrician helper. Campbell worked a total of 416 hours and was paid at the rate of $3.75 per hour. Work performed by Campbell closely approximates the work performed by laborers. The prevailing wage rate for laborers at Florida International University Interrama Campus Project was $6.50 per hour. If Campbell had been compensated as a laborer, he would have received $1,144 of additional compensation. Campbell first saw the schedule of prevailing wage rates within two to three weeks after he began working with Sherba Brothers. Campbell never objected to the amount of his paychecks and he was satisfied with what he was paid. Campbell made the decision to file this claim after he was laid off by Sherba Brothers. Charles Anthony Farina worked at a public work project on the Florida International University Interrama Campus for Sherba Brothers, Inc. from April 2, 1976 through October 8, 1976. Farina worked 324 hours at a wage rate of $4.00 per hour, 384 hours at a wage rate of $4.25 per hour, and 259 hours at a wage rate of $4.75per hour. Farina was employed as a first class-helper. Helpers and laborers perform basically the same duties. The prevailing wage rate for laborers at the Florida International University Interrama Campus Project was $6.50 per hour. If Farina had been paid at the prevailing wage rate, he would have been entitled to $2,127.25 of additional compensation. Farina first saw the posted schedule of prevailing wage rates some time prior to the time that he ceased working on the Florida International University Interrama Campus Project. He did not immediately take any action to seek additional wages because he feared that he would lose his job. After October 8, 1976 Farina no longer worked at the Florida International University project. He continued to work for Sherba Brothers at a different project. He was fired two months after he filed his prevailing wage affidavit. Robert B. Turner was employed at the Florida International University Interrama Campus Project from March 26, 1976 through October 8, 1976. Turner worked 821 hours on the project act a wage rate of $7.00 per hour, and 267 hours at a wage rate of $7.50 per hour. He was employed as an electrician foreman. The prevailing wage rate for electricians on the Florida International University Interrama Campus Project was $10.75 per hour. The prevailing wage rate for electrician foreman during that time was not posted on the prevailing wage rate schedule. The prevailing wage rate for electrician foremen in Dade County was $1.50,per hour higher than for electricians. If Turner had been compensated in accordance with the prevailing wage rate for electrician foreman, he would have received $5,858.50 in additional compensation. Turner first saw the schedule of prevailing wage rates for the Florida International University Interrama Campus Project within two weeks after he began working on the project. Turner took no steps to object to the wage that he was receiving until the last week of his employment. He at that time asked the project supervisor what would happen if he tried to collect the prevailing wage, and he was told that others who tried to collect were immediately laid off. The Florida International University Interrama Campus Project, designated State Project #BR-804-B, was a public work project. The prime contract for the project was for an amount in excess of $5,000. The prime contractor was Tom Murphy Construction Company, Inc. Sherba Brothers, Inc. was a subcontractor. The contracting authority, the State of Florida, Department of General Services withheld from its payments to Tom Murphy Construction Company, Inc. an amount of money equal to the claims of Campbell, Farina, and Turner.
The Issue Should Petitioner impose discipline on Respondent's Florida Educator's Certificate No. 654546, based upon the allegations in the Administrative Complaint, Case No. 001- 1338-A, before the State of Florida, Education Practices Commission?
Findings Of Fact Stipulated Facts: Respondent holds a Florida Educators Certificate (FEC), number 654546, in the area of Music. Respondent's FEC is valid through June 30, 2006. At all times relevant to this proceeding, Respondent was employed as a Music Education Teacher at Chiefland Elementary School in the Levy County School District. Additional Facts: Background Respondent served as a music teacher at Chiefland Elementary for 12 years. On January 17, 2001, while at school Respondent spoke to Johnny Turner, the guidance counselor at Chiefland Elementary. In this conversation Respondent commented that he had a problem with alcohol. Mr. Turner did not believe that Respondent was inebriated at that time. Mr. Turner did observe that Respondent was very hyper-active emotionally and verbally. On the evening of January 17, 2001, Respondent called Mr. Turner several times at Mr. Turner's home. From his remarks Mr. Turner believed that the Respondent was inebriated. Respondent's speech was slurred, Respondent was incoherent and repeated himself often. Respondent commented that he had a problem with alcohol and wanted help. Mr. Turner directed him to a rehabilitation program and to Alcoholics Anonymous. Mr. Turner also suggested that Respondent not try to come to school on the morning of January 18, 2001, and that they continue their conversation at some future date when Respondent was sober. Respondent asked Mr. Turner to give him a wakeup call at 5:00 a.m. on January 18, 2001. Mr. Turner made that call intending to remind Respondent to stay home that day but Respondent did not answer the phone. On January 18, 2001, around 8:15 a.m. Mr. Turner saw Respondent at the school outside the cafeteria. Respondent approached Mr. Turner and said good morning and placed a Catholic missal into Mr. Turner's hands. Respondent then went to this classroom. Respondent was observed by Mr. Turner walking across the courtyard and up the hall in a straight line without staggering. When Respondent greeted Mr. Turner on that morning the greeting was short by not slurred. Nothing in Respondent's conduct made Mr. Turner believe that Respondent should be reported as constituting a danger to himself or others at that time. Mr. Turner's impression of Respondent on January 18, 2001, was misplaced, for reasons that will be discussed. Respondent acknowledges that on the night of January 17, 2001, he had been drinking. He describes the amount that he drank as "a couple of drinks." David Beard, a friend of the Respondent, indicated that Respondent and Mr. Beard had a couple of drinks. They were drinking bourbon. In addition to the alcohol which Respondent consumed on the night of January 17, 2001, Respondent was also taking medication. That medication had been prescribed by Asa L. Godbey, Jr., M.D., a physician practicing outpatient psychiatry with adults. Dr. Godbey had first seen Respondent in 1997. Dr. Godbey diagnosed Respondent as having dysthymic disorder, a chronic non-psychotic depression. As of January 18, 2001, Dr. Godbey had prescribed Amitriptyline and Prozac, anti-depressant medications and Xanax, which is a benzodiazepine, used to help with anxiety when patients are depressed. Xanax is a non-depressant. In 1999 Dr. Godbey had prescribed Respondent Ritalin, a mild stimulant to address episodes of acute severe depression. Dr. Godbey was aware that Respondent had been treated for migraine headaches in the past by the use of small doses of narcotics. This refers to Tylenol No. 3 PRN. The record reveals that on January 17, 2001, and on the morning of January 18, 2001, Respondent took some medications prescribed for him. The exact medications taken on those dates is not clear from the record. In this connection, Dr. Godbey had told Respondent that he should not drink alcohol because he does not handle it well. As the doctor explained, alcohol by itself prevents deep sleep, a particular problem for people who are depressed. As Dr. Godbey explained, Respondent does not metabolize alcohol as well as some people. So it can be a real problem for him. As Dr. Godbey established, the mixing of alcoholic beverages and the drugs prescribed for Respondent is a problem. It worsens depression. Respondent's testimony that "he did not know to what extent" his use of alcohol presented a problem for him, given Dr. Godbey's advice against using alcohol, does not create forgiveness for his misconduct. The January 18, 2001 Incident at School: Linda Karol Yon is a speech language pathologist at Chiefland Elementary. This is a position that she has held for 27 years. Before the incident at issue Ms. Yon and Respondent would carpool from Gainesville to Chiefland on work days. Ms. Yon drove Respondent and herself to work on January 18, 2001. Ms. Yon drove Respondent and herself on the day in question because Respondent called her and said that he was not feeling really well. In particular Respondent told Ms. Yon that he had been out the night before with friends. He said that he had had a lot to drink. In essence, Respondent's description indicated he was hung over. On the morning of January 18, 2001, as they drove to school Respondent was very chatty. He was talking about the evening before when he celebrated the birthday of his friend. On January 18, 2001, Respondent conducted his 8:30 a.m. class, at Chiefland Elementary. Early in the morning on the date in question Respondent went to the office of the principal of Chiefland Elementary School, Michael Ice. While in the office Respondent handed Mr. Ice a piece of paper stating that the paper had been put in his mailbox and he believed it belonged to Mr. Ice. Respondent then left. The paper was a letter which had been written from Respondent to Mr. Ice requesting Mr. Ice to check into Respondent's user I.D. and password for the school computer system used to enter grades. The letter was from October 2000. Although Mr. Ice considered the provision of the letter at that time as being "kind of strange," Mr. Ice called the school data center to inquire about the matters set forth in the correspondence. Mr. Ice was told that there was nothing wrong with the user I.D. and password. Under the circumstances Mr. Ice decided to go to Respondent's classroom to talk to Respondent about the letter. When Mr. Ice arrived at Respondent's classroom the students in attendance were getting ready to leave the music class. Their regular teacher was coming to pick them up. Once in the room Mr. Ice showed Respondent the letter and asked what it was about, any why was Respondent asking him to respond to something that was from earlier in the year. Respondent asked the principal to come from the classroom into Respondent's office which is connected to the classroom. Once in the office Respondent asked the principal to look at his desk. The principal complied. Then Respondent asked the principal to come out with Respondent into the classroom. Once they returned to the classroom Respondent put his hands up in the air and said "and this is my classroom." Mr. Ice observed the Respondent to be "a little giddy." Mr. Ice questioned the Respondent in more detail about the letter and asked Respondent to go back to the principal's office and talk about it. Then Respondent started telling the principal about Respondent's alarm clocks, that he had three alarm clocks that he was having problems with and that he was having a problem with an alarm system at his house. Respondent remarked about something with his telephones. Respondent was going on and on about those subjects. None of those topics was in relation to the reason for the principal's visit to Respondent's classroom. Those extraneous remarks were unsolicited. Mr. Ice considered that there was a problem with Respondent and realizing that another class would be coming into the music room within 5 to 10 minutes, he asked Respondent to stay in the principal's office while he arranged to contact the next teacher bringing students to the music room and instruct the teacher to not escort the students to Respondent's classroom. Respondent did not conduct his next class. Mr. Ice also believed that he needed to call the School District's Director of Personnel, Dr. Leila Pratt. Mr. Ice called Dr. Pratt and explained his perceptions of the problem with Respondent and she agreed to come to the school. The reason why Mr. Ice called Dr. Pratt was that he had smelled an odor on Respondent's breath, that Respondent had slurred speech and that Respondent was believed to be under the influence of drugs or overly medicated. Respondent came back to the principal's office. Once in the principal's office Mr. Ice asked Respondent to be seated and Respondent sat down while they waited for Dr. Pratt to arrive. Somewhere between half an hour and 45 minutes after Respondent arrived at Mr. Ice's office, Dr. Platt arrived at the school. In the interim, Mr. Ice asked Respondent if he was taking something or if he was on something. Respondent took a metal pill box and opened it up and showed its contents to Mr. Ice. Mr. Ice observed about half a dozen different kinds of pills in the box. Mr. Ice remembers the Respondent telling him that one pill was Ritalin and one was Phenergan, both items that had been prescribed for Respondent. Respondent did not specify among the pills that he showed Mr. Ice which pills he was taking. While waiting for Dr. Pratt to arrive Respondent began to get really sleepy. He would lean back. He would talk to the principal with his eyes closed and his speech became slower and sometimes slurred. Dr. Pratt arrived at the school around 10:30. After Dr. Pratt arrived Mr. Ice went with her to a separate room from Respondent to discuss the situation. Upon returning to the room where Respondent was, Dr. Pratt heard Respondent talking about his medication and about his alarm clocks. She observed his speech as very slow and deliberate, giving the appearance that Respondent was having difficulty concentrating and focusing on what he was saying. Dr. Pratt observed the pills laid out by Respondent. Dr. Pratt asked Respondent if he was seeing more than one physician, given the number of drugs that she observed. She wanted to know whether Respondent's physicians were aware of the drugs being prescribed by the other physician. Respondent was able to respond appropriately to questions asked but he interjected things that were irrelevant to the conversation. Dr. Pratt decided that she would call for a drug test of Respondent to determine his condition. She contacted a facility in Ocala, Florida, that was affiliated with the school district to have that group send someone over to administer a drug test to Respondent. Respondent had expressed the desire to go back to his classroom but Dr. Pratt and Mr. Ice did not feel that that was an appropriate choice. Respondent wanted to get his belongings. He left to accomplish that task. That moment was when the decision was made to have Respondent drug tested. The basis which Dr. Pratt had for having the test performed was her concern about his capability to teach that day based upon his slurred speech and difficulty concentrating. She believed that something he was taking had impaired his functioning. When the subject of the drug test was brought up with Respondent, at first he said that he would not take the test and that he would rather resign his position at the school. He was allowed to talk to the union representative outside the presence of the school administrators on the subject of the drug test. After that conversation he indicated his willingness to take the test. Eventually he refused, stating that to take the test was against his principles. The person to perform the drug test did not arrive until around 1 p.m. to 1:30 p.m. Before the arrival Respondent appeared very sleepy and put his head down on the desk in the principal's office where he had returned. While Mr. Ice and Dr. Pratt continued to talk, Respondent would involve himself in the conversation by discussing matters that were not relevant to the conversation. Believing that Respondent was uncomfortable sitting in the principal's office, Mr. Ice asked the Respondent if he would rather go to Ms. Yon's classroom. Ms. Yon has a small classroom and a private office adjacent to the classroom. Respondent agreed to go to Ms. Yon's room. He was escorted to that room. Respondent left Ms. Yon's office and went to the classroom of Mary Kay Warner, a third grade teacher. Ms. Warner has taught elementary education at Chiefland Elementary for about 18 years. Ms. Warner encountered Respondent in the hall around 12:30 p.m. After a few casual remarks Ms. Warner invited Respondent to come to her room and watch a science demonstration. While in the hall Ms. Warner describes Respondent's demeanor as being "rather sad." She assumed that he was "down in the dumps." Once in Ms. Warner's room Respondent sat down at a table and the science demonstration commenced with the students. Respondent began to say things and ask questions and to participate in the demonstration. Respondent encouraged Ms. Warner to call on a particular student and then asked some questions about some of the statements Ms. Warner made during the demonstration. Respondent commented that it was hot in the room. Respondent asked some questions about a mistake Ms. Warner made concerning telephone wires as contrasted with electrical wires. Ms. Warner had not anticipated Respondent being part of the science demonstration. When Respondent would interrupt the presentation Ms. Warner tried to go along with what he interjected to make the lesson appear normal for the children. It was not normal. At some point Ms. Warner began to notice that Respondent "was not himself." She was concerned that Respondent might be embarrassed in front of the students and she did not wish the children to know that Respondent was experiencing problems. In addition to commenting about its being hot in the room and asking Ms. Warner if she thought it was hot in the room, Respondent sat in her chair and rolled the chair across the room. Having become concerned about Respondent's conduct, Ms. Warner left the room and contacted a teacher next door. She asked that teacher to have an administrator intervene in a manner that would not involve Ms. Warner asking Respondent to leave the room and be overheard by the students. Ms. Warner made this arrangement out of concern that she did not know how Respondent would act if she asked him to leave the room. Ms. Warner took the children to the playground, telling them they were going to recess. It was not the normal time for recess. Although this departed from the normal routine the children did not seem to realize that there was a problem with Respondent. Respondent left Ms. Warner's class after the children had departed. Later in the day Respondent spoke to Ms. Warner and said, "Did you narc on me? Somebody narced on me." Mr. Ice is the administrator that went to Ms. Warner's classroom to escort Respondent from the room. He observed Respondent sitting at Ms. Warner's desk looking very tired, his eyes opening and closing. Mr. Ice told Respondent that they needed to go back to the principal's office and they did. When Mr. Ice and Respondent returned to the principal's office, Mr. Ice expressed the opinion that Respondent would not be capable of teaching his classes at that juncture. That opinion is accepted. As a consequence another portion of Respondent's class schedule for the day was cancelled. After returning to the office the person to administer the drug test arrived. In that context Dr. Pratt explained the school district's policy that if Respondent did not take the blood test to detect drugs, his refusal would be considered as an indication of a positive result in the test. Ultimately when Respondent declined the drug test, Mr. Ice told Respondent that given his condition Respondent was going to have to leave the school campus. Arrangements were made with Ms. Yon to take Respondent home. Respondent initially agreed to leave the campus with Ms. Yon. Respondent went to the door of the principal's office after Ms. Yon left to go to her car. Respondent bumped into a metal folding chair at the door, sat down in it and said that leaving was against his principles and he was not going to leave. He repeated those remarks. He was kind of slow-moving at that point in time and a little bit defiant. Respondent kept drinking water as he had been and commented that his throat was very, very dry. He had taken off his shoes as he was sitting there. He moved from the metal chair back to a small table in the principal's office and sat down at that location. Others pleaded with Respondent to leave, to just go home with Linda, referring to Ms. Yon. Respondent kept saying "No," it was against his principles. Having refused to take the drug test, having refused to go home with Ms. Yon, Mr. Ice told Respondent that he was going to have to call the city police and have the police remove Respondent from the campus. Dr. Pratt agreed with this choice. Respondent still would not cooperate. Mr. Ice called the Chiefland Police Department and Officer Russ Hamm was dispatched to the school. A conversation ensued between Mr. Ice and Officer Hamm in which it was agreed that Officer Hamm would try to persuade Respondent to leave. Officer Hamm made a considerable effort to persuade Respondent to leave the campus. There was a concern that Respondent be gone from the campus before the school ended to avoid students seeing Respondent in his state. Finally when it was decided that Respondent would have to be physically removed, he did not cooperate with that choice either. Officer Hamm told the Respondent that he was under arrest and that he was going to be placed in handcuffs. Respondent said no, that he did not have to comply. While Officer Hamm was putting the handcuffs on Respondent, the Respondent did not cooperate and had to be wrestled to the ground. In effect one handcuff was placed on Respondent and Officer Hamm had to wrestle the other arm around and get the second arm handcuffed. This took place over a minute or two. Officer Hamm had spent 10 to 15 minutes trying to persuade Respondent to leave before making the arrest for trespassing. Once outside, Respondent refused to get into the patrol car. This prompted Officer Hamm to use a taser gun which gained Respondent's cooperation. Officer Hamm tried for several minutes to persuade Respondent to get into the patrol car before using the taser gun. In that time Officer Hamm told Respondent that school was about to let out and there was no reason to excite everyone and have all the kids seeing Respondent in handcuffs given that he was a teacher. Respondent was then taken from the campus in the police car. He departed around 2:00 p.m. Had Respondent cooperated with the officer, he would have been placed in the patrol car and driven from the campus before the bell rang concluding the school day. The consequence of Respondent's acts, not cooperating in the attempt by Officer Hamm and the school administrators to escort him out the back door before the school day ended and into the police car, and away from the school, was that the students were able to see Respondent being placed in the police car. Mr. Ice observed that Respondent was able to comprehend the nature of the discussions on the date in question concerning the questions and answers related to Respondent's state. To that extent Respondent was coherent. Mr. Ice expressed the opinion that Respondent, based upon his observation, was unable to perform his functions as a School Board employee on that day and that he was incapacitated to the extent of being incapable of doing his job and should not have been in the presence of children. That opinion is accepted. Mr. Ice received questions from teachers and staff members about the incident but not from parents. The record does not reveal that the questions related to Respondent's future effectiveness as a teacher. Mr. Ice expressed the opinion that Respondent's behavior created a condition that would be harmful to the students' learning at Chiefland Elementary. Specifically, Mr. Ice expressed the opinion that a teacher under the influence of something in front of children undermines what is trying to be accomplished in their education. That opinion is accepted. Dr. Pratt did not have any contact from parents concerning the incident nor from teachers or staff. Persons at the school district office were aware of the incident. Dr. Pratt expressed the opinion that Respondent lost his effectiveness as a teacher, given that the community in which Respondent taught was small in size. Dr. Pratt points out that several teachers were involved in this incident and the kids were being dismissed from the school at the time that Respondent was being placed in the police car. Mr. Ice when asked whether Respondent would be an effective teacher after the incident on January 18, 2001, testified "I don't know. I don't know if he could." By contrast Mr. Ice executed a form involving prospective employment provided by the School Board of Alachua County dated April 18, 2001, speaking of Respondent's excellence as a teacher. Respondent was no longer employed at Chiefland Elementary following the January 18, 2001 incident. In explaining the reference provided to Alachua County, Mr. Ice indicated that he did not want to see Respondent's life ruined and considered the items in the personal reference form to be related to Respondent's abilities in the classroom. Mr. Ice would not wish to have Respondent return to Chiefland Elementary, given the assumed knowledge of the community about the events of January 18, 2001. Mr. Ice is not certain if the conduct displayed by Respondent on January 18, 2001, would happen again. Generally speaking, Mr. Ice has expressed the opinion that if the circumstances evidenced on the date in question could be addressed, Mr. Ice feels that Respondent could be an effective teacher elsewhere. Respondent admits that he had taken prescribed medication the same day he drank alcohol. That date was January 17, 2001. He took medication the next morning. He did not specify the medication by name that he took on those dates. Respondent's claim that he "blacked out" and that he is not certain what happened after the principal visited his classroom is not believed. The facts that Respondent does remember and testified about beyond the encounter early in the morning in his classroom with Mr. Ice belie that claim. In particular, Respondent's rather detailed explanation of what transpired in Ms. Warner's classroom in which he acknowledges participating in the lesson, raising his hand, rolling in the chair across the classroom, telling Ms. Warner to call upon a certain student and the students being removed from the classroom confirm his awareness of later events in the day. The remarks attributable to Dr. Godbey in his sworn statement concerning the adverse effect which the medication prescribed would have on Respondent in combination with alcohol, particularly their influence on Respondent's conduct are matters of conjecture. He made assumptions about the combination of drugs and when they were taken through an hypothesis, that is not precisely grounded on facts established in the record. Even if one accepts that the medications and alcohol led Respondent to act in the manner found in the facts, it does not excuse his conduct. Respondent determined to take the medications in a combination that is not clear from the record and to mix them with alcohol, when he had been specifically warned by Dr. Godbey that he should not drink alcohol, which when mixed with the anti-depressant drugs prescribed creates a problem. Dr. Godbey goes so far in his treatment summary as to explain the January 18, 2001 incident by report to the doctor from another source (presumably the North Florida Regional Medical Center) as a psychotic episode. At the same time Dr. Godbey acknowledges that the exact cause of the psychotic episode has remained uncertain. Nothing in the diagnosis within the treatment summary by Dr. Godbey or other remarks attributable to the doctor reveals that Respondent's illness is such that it compelled him to act in the manner evidenced on January 18, 2001. On the topic of alcohol, in receiving advise from Dr. Godbey, whether Respondent was told merely not to drink because he does not handle alcohol well, or was told not to drink in combination with medication he was taking, is not important. What matters is that Respondent of his own volition chose to drink the alcohol and combine it with medication leading to the results that have been explained in which his conduct on January 18, 2001, was reprehensible and inexcusable. Mr. Doyle remains in treatment by Dr. Godbey. He is presently taking psychotropic medication that does not appear to interfere with his cognitive functions, nor present an impediment to his ability to teach. As of February 17, 2003, Respondent was still being treated by Dr. Godbey through individual psychotherapy in addition to the prescription of psychotropic medications. From another perspective Respondent was taken to the North Florida Regional Medical Center in Gainesville, Florida, following the episode in question. The impression of that facility was that the Respondent evidenced acute altered mental status with psychosis and acute polysubstance abuse. A urine toxicology screen performed during his stay at that facility revealed Respondent was positive for amphetamines, positive for benzodiazepines, positive for opiates, and positive for tricyclics. Leaving the Scene of an Accident Without Injuries Respondent was charged in the County Court of the Eighth Judicial Circuit for Alachua County, Florida, Case No. 98-02397-TC-A, State of Florida vs. Troy Kevin Doyle. The offense charged was leaving the scene of an accident without injuries in violation of Section 316.061, Florida Statutes. The offense occurred on July 4, 1998, in Alachua County, Florida. On October 1, 1998, Respondent pled nolo contendre to the offense in open court. In that plea, which the Court found to be freely, knowingly, and voluntarily entered, a stipulation was reached by the parties acknowledging damage to property other than to Respondent's vehicle. It was explained and Respondent acknowledged that the maximum sentence in the case was sixty days in jail, as well as a $500.00 fine. When the matter was concluded, Respondent did not have any questions or any statement in opposition to the plea which was arranged in his presence. Neither did his attorney. The judge found Respondent guilty and withheld the adjudication and placed Respondent on court-supervised probation for a period of six months. There was no requirement to report during the probationary period. Respondent was also ordered to pay court costs in the amount of $244.00. Respondent was required to complete 20 hours of community service and provide proof of that service. Subsequently, Respondent completed an application for renewal of his professional Florida Educator's Certificate. That application for renewal was made on October 19, 2000. The signature on the application was notarized. It stated a reminder to Respondent of the consequences if he did not make certain that the matters contained in the application were true, correct, and complete and the consequences if Respondent was not forthcoming in his answers to the questions within the application, wherein the application form stated, "I understand that Florida Statutes provide for revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct, and complete." Within the application was a question which stated: Have you ever been convicted, found guilty, had adjudication withheld, entered a pretrial diversion program, or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation)? Failure to answer this question accurately could cause denial of a certificate. A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. Please attach a separate sheet if you need more space. Report any record other than SEALED or EXPUNGED records in this section. Notwithstanding the fact that Respondent had been found guilty and had adjudication withheld following a plea of nolo contendre to the offense involving Section 316.061, Florida Statutes, he did not acknowledge the plea and provide further information. The offences related to Section 316.061, Florida Statutes, are misdemeanors of the second degree, crimes punishable as provided in Section 775.02 or 775.03, Florida Statutes. Respondent, in his testimony, indicated that no one told him what was meant in the application to renew his teaching certificate concerning the question pertaining to criminal offenses where it exempted the reporting of minor traffic violations. It was not necessary that the application further define "minor traffic violation." It suffices that Respondent appeared in the County Court for Alachua County, Florida, in a criminal case and entered a plea of nolo contendre to an offense involving a misdemeanor of the second degree. Nothing in that process would reasonably lead Respondent to conclude anything other than the fact that the case before the court was more serious than a minor traffic violation. When Respondent answered the question in the application in the negative, he failed to answer the question candidly. He did this in a setting in which he knew or should have known that adverse consequences would pertain for providing a negative response to the question. If Respondent was unsure what was meant by the question which refers to a minor traffic violation being exempt from disclosure, he should have inquired as to the meaning. The hearing record does not reveal that he made inquiry to clarify the meaning of that term before completing the application. Prior Performance When classroom teacher evaluations were performed on March 17, 1998, and March 30, 1999, Respondent was found to meet proficiency or above the expected level of performance. In the school year 1999/2000, optional performance appraisal form dated May 12, 2000, Respondent had been rated as having exemplary overall performance.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered which finds Respondent in violation of Count 1, and Counts 3 through 6; dismisses Count 2; and revokes Respondent's educator's certificate for a period of two years. DONE AND ENTERED this 16th day of July, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 16th day of July, 2003.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 5, 2001.
Findings Of Fact In the fall of 1999, Respondent, North Florida Community College (NFCC), advertised for candidates for the position of Vice President for Academic and Student Affairs. Respondent advertised to fill this position by placing an advertisement in local newspapers, as well as in Gainesville, Florida. Additionally, an advertisement for this position was placed in the Affirmative Action Register, which is a publication for minorities, as well as in the Chronicle of Higher Education. The advertisement did not specify a salary and specified an application deadline of November 9, 1999. The position vacancy advertisement included the following: Qualifications include: an earned doctorate from an accredited institution of higher education; at least five years of successful progressively responsible administrative experience in academic programs, preferably at a community college; some previous experience in teaching at the postsecondary level; and/or experience as a counselor or administrator for student services functions, this latter qualification being preferable. Experience in the Florida Community College System is a plus. William Hunter is the Human Resources Director for NFCC. Mr. Hunter was responsible for placing the advertisements for the Vice President's position in the various publications. He is also responsible for ensuring that search committees are appointed, communicating with applicants, determining salaries to be offered to individual candidates based upon an established procedure, and offering positions by telephone to those persons selected. A search committee was appointed by the President of NFCC, Dr. Grissom. There were five members of the selection committee, including Clyde Alexander, NFCC's Athletic Director and Equity Coordinator. Mr. Alexander is African-American. Initially, 51 persons applied for the position. The selection committee narrowed the list of applicants from 51 to eight semi-finalists. Mr. Hunter was instructed to notify each semi-finalist that he/she was selected. He notified each of the semi- finalists by telephone and coordinated interview dates. Mr. Hunter sent a letter to each semi-finalist. The letters informed the candidates of their selection as a semi-finalist, confirmed their interview date and time, and advised them that NFCC would be paying for the travel expenses to Madison, Florida, for the interviews. The letters to the semi-finalists also stated that the salary range was $45,000 to $75,000 per year, "depending on experience." The salary range was established by the college's Board of Trustees. Petitioner is an African-American male. Petitioner was selected as a semi-finalist. Also among the semi-finalists were Dr. Barry Weinberg and Dr. Thomas Eaves, both white males. Interviews were conducted between December 1 and December 9, 1999. Each of the semi-finalists was given a tour of the campus and had an opportunity to meet with various college officials, as well as the President and members of the search committee. After the interviews of the semi-finalists were completed, the selection committee provided a list of finalists to the President.1/ The first choice of the selection committee was Dr. Barry Weinberg, who at that time was employed as Vice President for College Advancement at Rockingham Community College in Wentworth, North Carolina. Dr. Weinberg holds a Bachelor of Science in Education from State University of New York at New Paltz; a Master of Science in Student Personnel Services (Higher Education Administration) from State University of New York at Albany; a Certificate of Continuing Studies in Applied Behavioral Sciences from Johns Hopkins University; and a Doctor of Education in Higher Education Administration from Vanderbilt University. Mr. Hunter offered the position to Dr. Weinberg pursuant to instructions from President Grissom. Despite the letter which informed the semi-finalists that the top of the salary range was $75,000, Mr. Hunter was informed by the President that no applicant could be offered more than $70,000 per year because of a budget shortfall. The salary to be offered to an applicant was based on the application of an established formula to the applicant's experience as follows: subtracting the minimum salary from the maximum salary in the published salary range for the position; dividing that number by (30) to arrive at a multiplier; multiplying the applicant's years of relevant experience (after subtracting the years of experience required to qualify for the position) by the multiplier; and adding the result to the minimum salary in the range. The multiplier for the Vice President's position was $1,000. In applying the salary formula to Dr. Weinberg, Mr. Hunter determined that he had 29 years of relevant experience. He then subtracted the five years required experience, resulting in Dr. Weinberg having credit for 24 years of relevant experience, for purposes of the salary formula. The 24 years of experience was multiplied by $1,000 and added to the published base salary of $45,000. This resulted in the initial starting salary to be offered to Dr. Weinberg to be $69,000. Mr. Hunter had authority from President Grissom to add an additional amount of $2,500 per year in order to attract a candidate, provided that no candidate was offered more than $70,000 per year. Dr. Weinberg did not accept the initial offer of $69,000. Mr. Hunter then offered $70,000, which was ultimately rejected by Dr. Weinberg. Pursuant to direction from President Grissom, Mr. Hunter then offered the job to Petitioner. Petitioner holds a Bachelor's degree in Business Administration from Culver- Stockton College; a Master of Science in Guidance Counseling from University of Nevada; a Doctorate in Counselor Education from the University of Iowa; and holds a certificate from Harvard University in the Management Development Program. Mr. Hunter applied the salary formula by determining that Petitioner had 21 years of relevant experience. He subtracted the five required years of experience resulting in 16 years of relevant experience. After multiplying 16 by $1,000 and adding that to the minimum salary of $45,000, Mr. Hunter offered $61,000.00 to Petitioner. When Petitioner did not accept the offer, he increased the offer to $62,500. Although he was authorized to offer him $63,500, it was Mr. Hunter's understanding, after a telephone conversation with Petitioner, that Petitioner would not accept the job for less than $82,000. Therefore, Mr. Hunter did not bother offering the additional $1,000 to Petitioner. In any event, whether or not Mr. Hunter offered $63,500 to Petitioner, he was not authorized to offer $70,000 to Petitioner, as had been offered to Dr. Weinberg, because of the application of the salary formula to Petitioner. Pursuant to instruction from Dr. Grissom, Mr. Hunter next offered the position to Dr. Thomas Eaves. Dr. Eaves holds a doctorate and lesser degrees from North Carolina State University, and has teaching and related research experience at numerous universities. Mr. Hunter applied the salary formula and determined that Dr. Eaves should be offered $67,000. Mr. Hunter was authorized by the President to an additional $500.00 on top of the $2,5000 salary "sweetener" because the college had been turned down twice. Mr. Hunter called Dr. Eaves and initially offered him $67,000. Ultimately, Mr. Hunter increased the offer to $70,000, which was accepted by Dr. Eaves. Petitioner left Virginia Commonwealth University in July 2001 to work at West Chester University where he is Dean of Undergraduate Studies and Student Support Services. His starting salary at West Chester University was $84,500. His current salary, which was effective July 1, 2002, is $88,500. If Petitioner had accepted the position at NFCC for $63,500, he would have received a five percent pay increase in 2000 to $66,675 per year. However, because of a college-wide salary freeze which has been in place since 2000, Petitioner would not have received any further salary increases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2003.
The Issue Whether petitioner should be removed from the Florida Retirement System, as of July 1, 1979, on grounds of ineligibility.
Findings Of Fact Petitioner, a licensed attorney, practices law in Clewiston, Hendry County, Florida. Since at least September 1, 1970, he has continuously engaged in the private practice of law in Clewiston. On September 1, 1970, the Glades County School Board ("School Board" or "Board") hired him as the School Board attorney, a position which he continues to hold. This is a part-time position, since the Board has no need for a full-time attorney. The School Board is headquartered at Moore Haven, 16 miles northwest of Clewiston, in neighboring Glades County. The terms and conditions of petitioner's employment with the School Board have remained virtually unchanged since he was originally hired. Each year, the School Board sets his salary consisting of a monthly retainer or salary, plus a fixed amount per hour for any additional professional services or litigation required by the School Board. For the 1979-80 school year, the Board set his salary or retainer--terms which the School Board used interchangeably-- as shown by the Minutes of the July 11, 1979, meeting: 3. SALARY/SCHOOL BOARD ATTORNEY - 1979-80 Chairman Hilliard opened the floor for discussion on the salary for the school board attorney for the 1979-80 school year. After some discussion between the board and Mr. Potter, the board proposed a retainer of $750.00 per month. (annual salary of $9,000.00) plus $50.00 per hour for additional pro fessional services or litigation required by the board. ON MOTION by Sapp, seconded by Johnson, the board approved this pro- posal for school board attorney for the 1979-80 school year. (Vote: Arnold, yes; Johnson, yes; Taylor, yes; Sapp, yes; Hilliard, yes.) His salary is paid from the School Board's regular employee salary account. But as the School Board's attorney, unlike other School Board employees, he does not accrue annual leave, sick leave, or pay during vacations, holidays or illness, though when he is sick or on vacation, there is no adjustment to his salary. He is reimbursed for work-related travel and meals at the rates provided by Section 112.061, Florida Statutes (1983), and is covered by the School Board's group health and life insurance, and Workers' Compensation. Since 1970, the Board has withheld his Social Security contributions from his fixed monthly salary payments; has paid the employer's Social Security contributions on his salary payments; and has annually reported his monthly salary payments on Internal Revenue Service Form W-2. To this extent, the School Board considered him an employee and treated him the same as it treated its other employees. The legal services which he furnished the School Board are described in his employment agreement and the School Board's job description for the position: TYPICAL DUTIES: Attend all regular Board meetings and such special meetings as deemed advisable by Board Chairman or Superintendent. Be available for routine telephone or personal consultations with Board Chairman, Superintendent and Staff members. Perform legal research. Prepare or approve leases or agreements prior to execution by Board. Prepare and prosecute law suits in behalf of Board and defend law suits against Board, including any actions against Superintendent, Staff or other school district employees allegedly arising etc., unless special counsel is deemed necessary by Board Attorney with Board's concurrence. Attend the quarterly seminars/meetings of Florida School Board Attorneys Association; and any other approved by Board. Represent Board and/or Superintendent in personnel matters where appropriate, as well as student discipline matters. School Board meetings, held monthly, last approximately one and one-half hours. Litigation, although described as a typical duty, is considered extra work, and an hourly rate is charged over and above the monthly salary. Petitioner agrees that he would not knowingly accept any new clients which would cause a conflict of interest with his School Board employment. Although he has been free to turn down work assigned by the School Board, he never has--at least through 1976. As explained by Mr. Strope, Superintendent of Schools from 1968 to 1976, although petitioner was free to turn down work, he "shouldn't have." Petitioner is not required to maintain any set office hours, and his monthly salary does not vary with the number of hours' work. He is not furnished office space by the School Board. The majority of his legal work for the Board is performed at his private law office, in Clewiston. The cost of operating his law office is not a budget item in the School Board's budget. Under his employment arrangement with the School Board, he furnishes all personnel, equipment, and facilities needed to perform his services. He is responsible for supervising the secretaries who work in his private office. Occasionally, when he is at School Board headquarters in Moore Haven he will ask a School Board employee to type a document. At his request, however, the School Board will furnish him pencils, legal pads, legal periodicals and stationery. It also pays for his travel; for per diem expenses incurred while attending legal seminars or meetings; and for long distance telephone calls made in connection with his School Board employment. He is neither responsible for, nor supervises, any employee of the School Board. The School Board does not furnish him any legal secretaries or part-time attorney assistants. He has not shown what percentage, or amount, of his working hours are devoted to performing legal services for the School Board, as opposed to legal services which he performs for his other clients. Other than assigning specific legal tasks, the School Board exercises no more control over the means, methods, and manner by which petitioner performs the legal work given him than is ordinarily exercised by any client over an attorney. Because of ethical constraints and the nature of legal work, petitioner must exercise independent professional judgment. Since September 1, 1970 2/, petitioner has been enrolled in the FRS. This was accomplished by his filling out a prescribed form which the School Board then filed with the Division. The Board then began reporting him on its employee rolls. There is no evidence that the initial FRS entry form, filed with the Division, described petitioner's work duties or the nature of his employment with the School Board. Both the Board and the Division enrolled him in the FRS, believing that he was eligible for membership. The Division did not question or investigate the nature of his employment relationship with the Board until 1983. From his initial enrollment until January 1, 1975, when FRS became a non-contributory system, petitioner contributed one-half of the the required FRS contribution, while the School Board contributed the other half. Since January 1, 1975, the School Board has contributed 100 percent of his contributions to FRS. During the 1970s petitioner's membership in the FRS prevented him from participating in any other tax sheltered retirement plan. 3/ Since July 1, 1979, the Division has, by rule, given notice that consultants and other professional persons contracting with public employers are, ordinarily, ineligible for membership in the FRS. All public employers, including the School Board, have been asked to remove such persons from their retirement payrolls. Since at least July 8, 1981, petitioner was on notice that his status as an employee, and his eligibility for continued membership in the FRS, were in question. Both the parties stipulate that part-time electricians, plumbers, painters, combustion engine mechanics, air conditioning mechanics, janitors or sewage plant operators (and even other occupations) employed in 1983 by the Glades County School Board on a year-round salary basis (i.e., at least 10 consecutive months), and paid out of the School Board's regular salary and wage account, would be mandatory members of FRS by statute. (Prehearing Stip., para. E. 6)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order removing petitioner from membership in the Florida Retirement System, as of July 1, 1979; and That the Division return to petitioner and the School Board their respective FRS contributions, mistakenly made to his account. DONE and RECOMMENDED this 14th day of February, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1984.
