The Issue Whether Petitioners committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times relevant to this proceeding, Petitioners Jerry J. Robinson and Charles Osz, were detention deputies employed by the Respondent, Everett S. Rice, Pinellas County Sheriff (Respondent), and assigned to the Pinellas County Jail (Jail). Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioners were responsible for the care, custody, and control of persons held at the Jail. On January 30, 1998, Officer John Fitzgerald of the Largo Police Department took Duston Llano into custody and transported him to the Jail. Joseph Nichols, an Explorer Scout with the Largo Police Department, accompanied Officer Fitzgerald to the Jail. Mr. Llano was not under arrest since he had committed no crime but was taken into custody pursuant to the Marchman Act based upon his intoxicated condition. When he was taken into custody, Mr. Llano did not resist or threaten physical harm to the officers but did threaten to sue the officers. On January 30, 1998, Petitioners Robinson and Osz were assigned to the booking area of the Jail. Upon Mr. Llano's arriving at the Jail, Petitioners Robinson and Osz took possession of him in the pre-booking area. Shortly thereafter, Petitioners transported Mr. Llano to the post-booking section of the Jail and placed him in Cell 4. Mr. Llano was barely able to walk and was assisted by Petitioners Robinson and Osz to the post-booking area. Once in Cell 4, Petitioners began a pat-down search of Mr. Llano. Petitioner Robinson was to the left of Mr. Llano and Petitioner Osz was to Mr. Llano's right. During the search, a substance Petitioners believed might be crack cocaine was found on the person of Mr. Llano. After the suspicious substance was found on Mr. Llano, Detention Deputy Monte Esry requested that Detention Deputy Larry Potts summon Officer Fitzgerald and Mr. Nichols and ask them to remain at the Jail to possibly process the substance and effect an arrest of Mr. Llano. Detention Deputy Potts complied with Detention Deputy Esry's request and then accompanied Officer Fitzgerald and Mr. Nichols down the hall from the pre-booking area to Cell 4 of the post-booking area where Mr. Llano was being held. The substance found on Mr. Llano's person and believed to be contraband was found by Petitioner Osz who gave the substance to Petitioner Robinson. Petitioner Robinson then handed the substance to Detention Deputy Esry who handed it to Detention Deputy Potts who, then, handed it to Officer Fitzgerald for testing. Having found what they believed to be contraband, Petitioners Osz and Robinson began a strip search of Mr. Llano. When they arrived at Cell 4, Officer Fitzgerald stood near the doorway to the cell and Mr. Nichols remained in the hallway outside the cell. From Officer Fitzgerald's and Mr. Nichols' vantage point, it was possible for them to see into Cell 4. Both Officer Fitzgerald and Mr. Nichols observed Mr. Llano sitting on the bunk in the cell with Petitioner Robinson on his left and Petitioner Osz on his right. Mr. Llano was slumped over and again made reference to suing everyone. However, Mr. Llano took no action to resist or otherwise justify the use of force. In an apparent response to Mr. Llano's threat to sue, Petitioner Osz grabbed Mr. Llano by his hair, straightened him up and slapped him on the face or head at least twice. While Petitioner Osz was slapping Mr. Llano, he said something to the effect of "how about another thousand" or "there is another thousand." From his vantage point in the hall, not more than 15 feet away, Mr. Nichols saw Petitioner Osz slap Mr. Llano and heard the comments by Petitioner Osz. Officer Fitzgerald, who was at the doorway of Cell 4, approximately nine feet, also saw the slapping incident and heard the comments made by Petitioner Osz. During the course of the slapping incident, Detention Deputy Potts was also in Cell 4. Nonetheless, he testified that he did not see Petitioner Osz slap Mr. Llano. When Petitioner Osz slapped Mr. Llano, Petitioner Robinson was in Cell 4 and within five or six feet of Petitioner Osz and Mr. Llano. However, at the time of the incident, Petitioner Robinson was preoccupied with depositing items obtained from Mr. Llano's person into a property bag that was on a steel table in the cell and did not see Petitioner Osz slap Mr. Llano. Also, because the Jail was very busy and loud on this evening, Petitioner Robinson did not hear Petitioner Osz slap Mr. Llano. Because Petitioner Robinson did not observe the incident, he did not respond to or report Petitioner Osz' actions toward Mr. Llano. Neither Officer Fitzgerald nor Mr. Nichols observed Petitioner Robinson during the slapping incident and could not testify as to where he was looking when the incident occurred. After the slapping incident, Officer Fitzgerald and Mr. Nichols then left the area of Cell 4 in order to conduct a test of the substance found in Mr. Llano's pants pocket. As a result of the test performed by Officer Fitzgerald, it was determined that the substance was not illegal. After conducting the presumptive test, Officer Fitzgerald and Mr. Nichols left the Jail. Officer Fitzgerald and Mr. Nichols subsequently reported the slapping incident to their supervisors and prepared reports memorializing the events they observed. A representative of the City of Largo Police Department then reported the incident to the Respondent, who initiated an investigation by the Pinellas County Sheriff's Office, Inspections Bureau, Administrative Inquiry Division. As a part of the investigation regarding the conduct in question, sworn statements were taken from Officer Fitzgerald, Mr. Nichols, Detention Deputy Potts, Detention Deputy Esry and Petitioners Osz and Robinson. Attempts to speak with Mr. Llano were fruitless based upon his lack of recollection of the incident. During the course of his sworn statement, Petitioner Robinson stated that he did not see Petitioner Osz slap Mr. Llano. Detention Deputy Potts, who was also in Cell 4 during the incident, also stated in his sworn statement that he did not observe Petitioner Osz slap Mr. Llano. During his sworn statement, Petitioner Osz denied that he ever struck Mr. Llano. After completing its investigation, the Administrative Inquiry Division presented its entire investigative file to the Chain of Command Board without conclusion or recommendation. The Chain of Command Board met and after reviewing the materials provided by the Administrative Inquiry Division and giving Petitioners the opportunity to respond further, the complaints against Petitioners were sustained. Specifically, the violations determined to have occurred as to Petitioner Osz were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, A (Level Five Violation), 021, relating to custody of arrestees/prisoners; Violation of PCSO Rule C1, V, C (Level Three Violation), 060, relating to standard of conduct. Under the PCSO Guidelines, a sustained finding of two Level Five violations and one Level Three violation is the basis for assigning 115 disciplinary points. As a result, Petitioner Osz was assessed 115 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 115 points to be a minimum discipline of a 15-day suspension and a maximum discipline termination. In the instant case, the discipline imposed against Petitioner Osz was termination. Specifically, the violations determined to have occurred as to Petitioner Robinson were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, B (Level Four violation), 037, relating to reporting violations of laws, ordinances, rules or orders. Under the PCSO Guidelines, a sustained finding of one Level Five violation and one Level Four violation is the basis for assigning 80 disciplinary points. As a result, in the instant case, Petitioner Robinson was assessed 80 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 80 points to be a minimum discipline of a 10-day suspension and a maximum discipline of termination. In the instant case, the discipline imposed against Petitioner Robinson was termination. The conduct engaged in by Petitioner Osz in slapping Mr. Llano was unnecessary, excessive, did not constitute a good correction practice and is not consistent with the training or conduct expected of correctional officers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the PCSO enter a Final Order: 1) finding Petitioner Osz guilty of the conduct alleged in the charging document; (2) upholding the termination of Petitioner Osz' employment as a detention deputy with the PCSO; (3) dismissing the charges against Petitioner Robinson; and, (4) reinstating Petitioner Robinson as a detention deputy with the PCSO. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. 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 15th day of January, 1999. COPIES FURNISHED: William M. LauBach, Esquire Executive Director Pinellas County Police Benevolent Association 3737 16th Street, North St. Petersburg, Florida 33704 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 Charles Osz, pro se 2545 Coachman Road Northeast Number 127 Clearwater, Florida 33765 Keith Tischler, Esquire Power, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 2-1.007, Florida Administrative Code and "[a]ny and (all) State Attorney memorandums, statements, policy, rules, directive, consistent to this practice" were challenged. The Challenged Rule deals with the issuance of Attorney General opinions. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. The confusion is also caused by the failure of the Petitioner to actually be challenging the Challenged Rule. Although the Petitioner contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the alleged failure of the State Attorney of the Eighth Judicial Circuit to take action against employees of the Department of Corrections and the failure of the Attorney General of the State of Florida to do anything about it. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule is unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rule is an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7189R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Corrections, the Respondent in case number 91-7189R, as a Respondent and addresses his challenge to other rules, internal operating procedures and directives of the Department of Corrections. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rule or the other materials challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
Findings Of Fact The initial Petitions for Administrative Hearing were filed on October 4, 1991. The Petitions were filed by Ervin James Horton. In the Petition filed in case number 91-6345R, Rules 33-3.005, 33- 3.0051, 33-3.0083(5)(i), Florida Administrative Code, I.O.P. P13.91.34, I.O.P. P14.91.25 and Post Order 46 were challenged. In the Petition filed in case number 91-6346R, Rules 33-22.001, 33- 22.002, 33-22.003, 33-22.008, 33-22.012, and 33-3.005, Florida Administrative Code, were challenged. The rules challenged by the Petitioner are titled "Legal Documents and Legal and Privileged Mail" (Rule 33-3.005), and "Copying Services for Inmates" (Rule 33-3.0051). Chapter 33-22, Florida Administrative Code, provides rules governing "Inmate Discipline." Rule 33-3.0083(5)(i), Florida Administrative Code, does not exist. The I.O.P's apparently deal with the same general subjects as the Challenged Rules. The Petitions include the use of legal terms and phrases with little in the way of factual explanation. Although the Petitions contain some "legalize", they do not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of several employees of the Respondent relating to a variety of alleged incidents involving the Petitioner. In case number 91-6345R, the Petitioner complained of alleged incidents involving denial of his copying and mail privileges. The Petitioner argued that his access to the courts and his ability to carry out contracts have been impaired by the actions of employees of the Respondent in enforcing the Challenged Rules. In case number 91-6346R, the Petitioner complained of several alleged incidents involving disciplinary actions taken against him pursuant to Chapter 33-22, Florida Administrative Code. The Petitioner argued that the application of Chapter 33-22, Florida Administrative Code, was improper. The incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings. Having failed to obtain a favorable response to his grievances, the Petitioner is seeking through this process to have the incidents reviewed. The Petitioner's allegations concerning the alleged incidents are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, alleged actions of the Respondent. The Petitioner has also attempted to raise constitutional arguments to support his challenges. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petitions and the Amended Petition. On November 14, 1991, an Order Granting Motions to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On November 21, 1991, the Petitioner filed a Motion for Enlargement of Time to Comply to Order to Amend. The Petitioner, however, also filed an Amended Petition in these cases on the same day. The Amended Petition is very similar to the Petitions and suffers from the same deficiencies. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petitions which, if proven, would support a determination that the Challenged Rules are invalid under Section 120.56, Florida Statutes. On December 9, 1991, an Order Concerning Motion for Enlargement of Time and Granting Motion to Dismiss Amended Petition was entered. Pursuant to this Order the parties were informed the Amended Petition was dismissed and were given an opportunity to file proposed final orders. On December 11, 1991, the Petitioner filed Petitioner's Motion to File a [sic] Amended Petition or Second Amendmet [sic]. This motion was denied by Order entered December 18, 1991. On December 13, 1991, the Petitioner filed a Motion to Correct Order and, or Alternative Relief. This motion was denied by Order entered December 16, 1991. The Petitioner has challenged Rules 33-3.005, 33-22.001 and 33-22.003, Florida Administrative Code. See Horton v. Department of Corrections, 9 F.A.L.R. 2270 (DOAH Case No. 86-4515R 1987) and Horton v. Department of Corrections, 10 F.A.L.R. 5254 (DOAH Case No. 87-2908R 1988).
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on September 29, 2004, the Amended Order of Penalty Assessment issued on October 14, 2004, the second Amended Order of Penalty Assessment issued on January 20, 2005, and the 3rd Amended Order of Penalty Assessment issued on August 25, 2010, attached as “Exhibit A”, “Exhibit B”, “Exhibit C“, and “Exhibit F”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the request for administrative hearing received from Bill Veczko, d/b/a Bill’s Painting, the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the second Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On September 29, 2004, the Department of Financial Services, Division of _ Workers’ Compensation (hereinafter “Department”), issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 04-590-D1 to Bill Veczko, d/b/a Bill’s Painting. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On September 29, 2004, the Stop-Work Order and Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On October 14, 2004, the Department issued an Amended Order of Penalty Assessment to Bill Veczko, d/b/a Bill’s Painting. The Amended Order of Penalty Assessment assessed a total penalty of $30,844.10 against Bill Veczko, d/b/a Bill’s Painting. The Amended Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was. advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On May 27, 2010, the Amended Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On January 20, 2005, the Department issued a second Amended Order of Penalty Assessment to Bill Veczko, d/b/a Bill’s Painting. The second Amended Order of Penalty Assessment assessed a total penalty of $104,044.10 against Bill Veczko, d/b/a Bill’s Painting. The second Amended Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was advised that any request for an administrative proceeding to challenge or contest the second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 6. On May 27, 2010, the second Amended Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On June 8, 2010, Bill Veczko, d/b/a Bill’s Painting filed a petition for administrative review (“Petition”) with the Department. Pursuant to Sections 120.54(5)(b) and 120.569(2), Florida Statutes, the Department carefully reviewed the Petition to determine if it was in substantial compliance with Rule 28-106.2015, Florida Administrative Code. A copy of the Petition is attached hereto as “Exhibit D”. 8. After reviewing the Petition, the Department determined that the Petition was not in substantial compliance with the requirements of 28-106.2015, Florida Administrative Code, in that the Petition did not contain a statement identifying the material facts in dispute, or a statement indicating that there were no material facts in dispute. Accordingly, on June 24, 2010, the Department issued an Order Dismissing Petition for Section 120.57(1), Florida Statutes, Proceeding Without Prejudice. In the Order Dismissing Petition for Section 120.57(1), Florida Statutes, Proceeding Without Prejudice, Bill Veczko, d/b/a Bill’s Painting was given an opportunity to file, within 21 days, an amended petition curing the defects in the original Petition. 9. On August 9, 2010, Bill Veczko, d/b/a Bill’s Painting filed an amended petition for administrative review (“Amended Petition”) with the Department, which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-7312. A copy of the Amended Petition is attached hereto as “Exhibit E”. 10. On August 25, 2010, the Department filed with the Division of Administrative Hearings a Motion to Amend Order of Penalty Assessment with an attached 3rd Amended Order of Penalty Assessment. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $103,958.56 against Bill Veczko, d/b/a Bill’s Painting. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 11. On August 25, 2010, Administrative Law Judge W. D. Watkins entered an Order Granting Motion to Amend Order of Penalty Assessment. 12. On October 12, 2010, Bill Veczko informed the Department that Bill Veczko, d/b/a Bill’s Painting did not wish to proceed to an administrative hearing in DOAH Case No. 10- 7312. 13. On October 12, 2010, the Department filed a Joint Motion to Relinquish Jurisdiction with the Division of Administrative Hearings. As a result, Administrative Law Judge W. D. Watkins entered an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit G”.
The Issue The issue in the case is whether the Petitioner's employment position was properly reclassified from Career Service to Selected Exempt Service pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact At all times material to this case, the Petitioner was employed by the Respondent as a Vocational Rehabilitation Supervisor. As a Vocational Rehabilitation Supervisor, the Petitioner was responsible for supervising the performance of counselors and other employees in the Manatee County office. The Manatee County office employed nine persons, including five Vocational Counselors and four clerical and administrative employees. The position description applicable to the Petitioner's employment provided that he was responsible for hiring, evaluating, training, and managing employees in the office. He was responsible for managing and coordinating the fiscal resources available to the office. He was responsible for recruitment of new employees, and for the performance evaluation of existing employees. The Petitioner developed criteria used to hire new employees, created interview questions, and participated in the interview process. The Petitioner's employment recommendations were always approved by his supervisor. The review of the Petitioner's job performance focused primarily on his success in supervising his employees. He received an evaluation of "excellent" and "effective" in such categories as planning based on the missions and goals of the agency, implementation of quality control standards, efficient work organization, budget management, leadership, staff management and discipline, and effective evaluation of subordinates. As part of his supervisory responsibilities, the Petitioner was responsible for approval of all leave requests and travel reimbursement. He was also responsible for the employee evaluation process, including recommending staff members for performance based bonuses. The Petitioner was also responsible for any disciplinary action taken related to his subordinate employees. There is no evidence that the Petitioner did not perform his duties as described by the applicable position description. At the hearing, the Petitioner acknowledged that he was the supervisor for the office and its employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that the "Vocational Rehabilitation Supervisor" position held by Britton Townsend on July 1, 2001, was properly classified into the Selected Exempt Service. DONE AND ORDERED this 13th day of April, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 April, 2004. COPIES FURNISHED: Margaret O'Sullivan Parker, Esquire Department of Education Office of the General Counsel 1244 Florida Education Center Tallahassee, Florida 32399-0400 Britton Townsend 331 11th Avenue, West Palmetto, Florida 34221 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350 South Hyde Park Boulevard Tampa, Florida 33606 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
The Issue Whether the Education Practices Commission should revoke or suspend Respondent's teaching certificate, or impose any other penalty provided by law, for the reasons cited in the Administrative Complaint filed July 12, 1994.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 182469, covering the areas of business education and vocational education. It is valid through June 30, 1997. Respondent filed an application for the renewal of her certificate. Respondent was formerly employed by the Brevard County School District. She retired from her employment with the school district in March 1994. In the case of United States of America v. Marguerite Y. Smith, Case Number 93-185-CR-Orl-18, the Respondent was charged by the Federal Grand Jury with the following: Marguerite Y. Smith knowingly and intentionally executed and attempted to execute the scheme and artifice to defraud and to obtain money and funds by means of false pretenses and representations, in that Marguerite Y. Smith, forged the signature of Jerry Bellomy on Check Nos. 001081 and 001071, presented those checks to Southeast Bank, N.A. for payment, and then used the proceeds of those checks for her own purposes. All in violation of Title 18, United States Code, Section 1344. In the case of United States of America v. Marguerite Y. Smith, Case No. 93-198-CR-Orl-18, the Respondent was charged by the Federal Grand Jury with the following: On or about September 13, 1993, in Brevard County, Florida, in the Middle District of Florida, Marguerite A. Smith, the defendant herein, in a matter within the jurisdiction of the National Aeronautics and Space Administration of the United States, knowingly and willfully made a false, fictitious and fraudulent material statement and representation, in that the defendant certified that she had not, within a three year period preceding September 13, 1993, been convicted of commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public contract or subcontract, or with commission of theft, or with making false statements, whereas, as Marguerite A. Smith then and there well knew, on September 20, 1991, in the case of United States v. Marguerite A. Smith, Case No. 910166-CR-Orl- 19, Marguerite A. Smith was convicted of a violation of Title 18, United States Code, Section 665(A) theft from employment and training funds, arising from the submission of a false claim to obtain funds administered by a federal agency pursuant to the Job Training Partnership Act. All in violation of Title 18, United States Code, Section 1001. Respondent plead not guilty to the charges and following a trial by jury was found guilty of both charges. On April 20, 1994, Respondent was adjudicated guilty of Bank Fraud and making a False Statement to an Agency of the United States. She was sentenced to be imprisoned for a term of fifteen months, followed by supervised release for a term of three years during which Respondent must pay $22,953.28 in restitution. Respondent was arrested on the above charges at Rockledge High School, where she was employed, during a school day on November 15, 1993. Two FBI agents went to the principal's office and told the principal that they came there to arrest Respondent. The principal went to Respondent's classroom and asked her to come with him to his office, whereupon she was arrested and taken to detention by the FBI agents. The principal was contacted by the local radio station and one of the major news networks sent a television crew to the school for an on-campus interview. There was television and radio coverage of the fact that Respondent was arrested. There was widespread knowledge of her arrest among the students at the school, their parents and the community at large. Respondent's arrest and conviction was the subject of newspaper articles in Florida Today on January 5, 1994, and The Orlando Sentinel on November 16, 1993. Respondent is not eligible for rehire by the Brevard County School District because she had been found guilty of a felony and that Respondent's effectiveness as a teacher has been damaged. In a prior case, an Administrative Complaint was filed against Respondent on May 12, 1993, alleging that Respondent submitted a fraudulent claim to receive federal funds and that she pled guilty to the charge of Obtaining Federal Funds by Fraud, Betty Castor v. Marguerite Smith, Case No. 93-067-RT, EPC Index No. 93-197-FOI. As a result of that administrative proceeding, Respondent was disciplined by the Education Practices Commission (EPC) in a Final Order issued on December 24, 1993. Respondent was placed on four years probation and was issued a letter of reprimand by the EPC.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission issue a Final Order finding Marguerite Smith guilty of violating the provisions of Sections 231.28(1)(c)(e)(f) and (2), Florida Statutes. It is further RECOMMENDED that a Final Order be issued revoking Respondent's teaching certificate for a period of seven years. DONE AND ENTERED this 26th day of December, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 1997. COPIES FURNISHED: Barbara J. Staros, Esquire Post Office Box 3444 Tallahassee, Florida 32315 Lorene C. Powell, Esquire Chief Trial Counsel FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Kathleen Richards, Executive Director Professional Practices Services 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Program Director Professional Practices Services 351 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the petitioner's action of suspending respondent for three days without pay be AFFIRMED. DONE and ORDERED this 9th day of December, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: George L. Waas, Esquire Staff Attorney, HRS 1323 Winewood Boulevard Suite 406 Tallahassee, Florida 32303 William J. Manikas, Esquire 1215 Thomasville Road Jacksonville, Florida 32303 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact The Respondent, the Florida Department of Revenue (hereinafter referred to as the "Department"), notified Petitioner, Irvin L. Olden, by a Revised Notice of Intent to Make Documentary Stamp Tax and Discretionary Surtax Audit Changes (hereinafter referred to as the "Revised Notice"), that he owed $164.45 in documentary stamp tax, plus penalty of $41.11 and interest thru June 6, 1994 of $70.71. See Petitioner's exhibit 3. The Revised Notice was entered May 31, 1994. Mr. Olden was informed in the Revised Notice that the "legal basis" of the proposed audit changes was "Chapters 201.01, 201.02, 201.08, 201.17, F. S." and "Rules 12B-4.012(1) and (2), F.A.C." Mr. Olden filed a written protest to the Revised Notice by letter dated June 23, 1994. On July 12, 1994, the Department issued a letter in response to the written protest. Petitioner's exhibit 2. In pertinent part, Mr. Olden was informed: Your Quit Claim Deed recorded November 6, 1990, transferred half interest in real estate from Sue H. Olden to Irwin L. Olden. There was a $60,000 mortgage on the property. According to Rules 12B-1.012 (1) and (2), and 12B-1.013 (25) and (32), Florida Administrative Code, this transfer is taxable because of the mortgage on the property. The rules state that any deed is taxable if consideration for the property is given. The rules go on to state that a mortgage on the property is consideration. The rules are attached. The letter incorrectly referred to Rule 12B-1.012(1) and (2), Florida Administrative Code, and Rule 12B-1/013(25) and (32), Florida Administrative Code. The Department intended to refer to Rules 12B-4.012 and 12B-4.013, Florida Administrative Code. Mr. Olden timely challenged the proposed assessment of tax pursuant to Section 120.57(1), Florida Statutes. On November 23, 1994, Mr. Olden also filed a petition with the Division of Administrative Hearings challenging the validity of Rule 12B-4.012(2), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. Rule 12B-4.012(2), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides, in pertinent part: (2) Definitions: (a) "Consideration" under s. 201.02, F.S., includes but shall not be limited to, money paid or to be paid, the amount of any indebtedness discharged by a transfer of any interest in real property, mortgage indebtedness and other encumbrances which the real property interest being transferred is subject to, notwithstanding the transferee may be liable for such indebtedness. Where property other than money is exchanged for interest in real property, there is the presumption that the consideration is equal to the fair market value of the real property interest being trans- ferred. [Emphasis added]. Mr. Olden specifically challenged the portion of the Challenged Rule emphasized in finding of fact 6. Mr. Olden alleged that the Challenged Rule is an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(b) and (c), Florida Statutes. The language of the Challenged Rule which Mr. Olden has alleged is invalid had an effective date of February 13, 1991. Although not clearly stated in Mr. Olden's petition, Mr. Olden's standing to challenge the Challenged Rule is based upon the fact that the Department relied on the Challenged Rule in the Revised Notice and the letter in response to Mr. Olden's written protest. Pursuant to the Department's Motion to Dismiss for Lack of Standing filed by the Department on February 24, 1995, the Department stipulated to the following: The Department stands by its assessment in the assessment proceeding. The statute which was recited in the Department's assessment provides ample authority for the assessment without reference to a subsequently promulgated rule. . . . The Department does not seek to retroactively apply a rule to a transaction which preceded the effective date of that rule. Any statement in the Notice of Proposed Assessment which indicates an intention to apply a rule on a retroactive basis is hereby withdrawn. . . . However, while the rule is valid, it now appears that Petitioner lacks standing to challenge a rule which is not intended to be applied to Petitioner. Petitioner has standing to challenge the assessment and to challenge the Department's prerule application of the Section 201.02, Fla. Stat. (1990). . . . Now that the Department formally withdraws any reference to the rule in support of its assessment against the Petitioner, there is no reason for this matter to proceed further. Counsel for the Department reiterated the Department's position at hearing.
The Issue The issue in this proceeding is whether Petitioner should be permitted to run for office in the Florida House of Representatives without resigning her position as a state career service employee with the Department of Health and Rehabilitative Services.
Findings Of Fact Mary C. Jackson (Ms. Jackson) is a career service employee of the Florida Department of Health and Rehabilitative Services (HRS) in HRS District VII, in Orlando, Florida. She has been employed by HRS for twenty years. Ms. Jackson is, and has been at all times relevant here, a human services program analyst, a non-supervisory position in the District VII background screening office. It is uncontroverted that the program in which Ms. Jackson is employed is funded by federal grant monies and is covered, therefore, by the federal Hatch Act. Ms. Jackson followed the proper procedures in requesting permission to run for the state legislature, for the office of State Representative. There is no dispute that this is a partisan political office. Paul Snead, Jr., HRS, District Administrator for District VII, denied Ms. Jackson's request with a memorandum dated January 10, 1994. The denial is based on career service rule 60K-13, F.A.C., which prohibits employees subject to the Hatch Act from becoming candidates in partisan elections, and which also permits employees to hold or be a candidate for a local public or political office, with necessary approval.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered denying Mary C. Jackson's request to be a candidate for the state legislature while she remains an employee of the state. DONE AND RECOMMENDED this 6th day of May, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May 1994. COPIES FURNISHED: James Sawyer, Jr., Esquire Laurie Lashomb, Esquire Department of Health and Rehabilitative Services District 7 Legal Office South Tower, Suite S827 400 West Robinson Street Orlando, Florida 32801 Mary C. Jackson 1406 Peg Lane Orlando, Florida 32808 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
