The Issue This is a rule challenge proceeding pursuant to Section 120.56, Florida Statutes, in which the Petitioner has challenged the validity of Rule 22A- 13.002(2), (3), and (4), Florida Administrative Code, as an invalid exercise of delegated legislative authority. The final hearing in this case was consolidated, for purposes of hearing only, with the final hearing in two related cases; namely, Case Nos. 87-5321 and 87-5437. At the final hearing all parties presented testimony and the Petitioner also offered six exhibits, all of which were received without objection. At the conclusion of the hearing, all parties agreed to a ten-day deadline for the filing of proposed orders. All parties have filed proposed orders containing proposed findings of fact and conclusions of law. The parties' proposed orders have been carefully considered during the preparation of this final order and specific rulings on all proposed findings are contained in the Appendix which is attached to and incorporated into this final order.
Findings Of Fact The Petitioner, Mr. Parsons, is employed by the Department of Health and Rehabilitative Services ("DHRS") as an "Assistant Mental Health Hospital Administrator." He is a career Service employee of the State of Florida. By memorandum dated October 23, 1987, Mr. Parsons submitted a "Notice Of Intent To Run For Local Political Office." The memorandum was directed to Mr. Parsons' supervisor, Mr. Britton D. Dennis. The memorandum sought approval from DHRS and from the Department of Administration ("DOA"), described the nature of the political office Petitioner is seeking, and described the working hours of the position and the salary. In the memorandum, Mr. Parsons stated that he would not campaign on job time, and would not make use of any of the state's facilities in regard to campaign activities. He also stated his intention to request a leave of absence and that he would resign from his current position with DHRS, if elected. The District Administrator of DHRS denied Mr. Parson's request for approval to become a candidate by letter dated October 30, 1987. The Administrator stated that the request was being denied "... because your candidacy would be in violation of Chapter 22A-13.002, Personnel Rules and Regulations, Florida Administrative Code, and Section 110.233(4), Florida Statutes." On October 30, 1987, Mr. Parsons' supervisor, Mr. Britton D. Dennis, indicated that he would deny the request for leave of absence because he felt that the position held by Mr. Parsons could not be vacant for an extended period of time. Mr. Parsons responded that he nonetheless desired to be a candidate for the local political office, and that he would not campaign on the job, nor use state facilities for campaign purposes. By letter dated November 5, 1987, the Secretary of DOA stated that she was unable to approve Mr. Parsons' request because it had been denied by DHRS, and because, if elected, the duties would be performed during assigned working hours. The Secretary of DOA cited DOA Rule 22A-13.002(4)(a) and (b), Florida Administrative Code. This proceeding ensued. Mr. Parsons filed a petition challenging the denial of his request by DHRS, a petition challenging the denial of his request by DOA, and a petition challenging the validity of the DOA rules that had been cited in support of the denials. Mr. Parsons is seeking to stand for election to the position of County Judge in Gadsden County, Florida. The position of County Judge is a full-time position. If elected, Mr. Parsons could not continue in his employment with DHRS. He has clearly stated that if elected he would resign from his employment with DHRS. The challenged rule provisions read as follows: 22A-13.002 Statements of Policy Section 110.233(4)(a) further provides that no employee shall hold or be a candidate for public or political office while in the employment of the state unless: The employee is seeking or holding a local public office and; Such candidacy and office is authorized by the employee's agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his/her state employment. Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employee's state employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or local interest tends to lead to a disregard of the employee's duty as a state employee. Candidacy for or holding local public office shall be presumed to involve activities which interfere with an employee's state employment in the following instances: The office is a full-time office. Campaign or, if elected, office activities are performed during the employee's assigned working hours with the State. Campaign or, if elected, office activities will involve the use of State space, personnel, time, equipment, or supplies. In its application of the challenged rule provisions, DOA reads those provisions in conjunction with Rule 22A-13.0031, Florida Administrative Code, regarding procedures. DOA has interpreted and applied the presumptions in the challenged rule provisions as rebuttable presumptions, rather than as conclusive presumptions. On at least one prior occasion since the challenged rule provisions went into effect, the DOA and the DHRS granted approval for an employee of DHRS to become a candidate for the office of County Judge without requiring resignation from state employment.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993).
Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993). Respondent employed Petitioner, a black female, in March of 1980 as a Clerk-Typist II. Over the years, Petitioner worked in the position of Secretary II, Clerk-Typist Specialist, and Secretary Specialist. Petitioner held the position of Administrative Secretary when she filed her Petition for Relief in September of 1996. At the time of the hearing, Petitioner was working as a Staff Assistant. In September of 1992, Otto Hough became the Accounting Services Director in Respondent’s Office of Financial Management. He was responsible for several sections including General Accounting, Accounts Receivable, Accounting Systems and Procedures, and Contract Administration. The Office of Financial Management lost eleven (11) of eighty-eight (88) employees due to reorganization of the agency in the early months of 1993. One of the positions that Respondent eliminated was the Staff Assistant position assigned directly to Mr. Hough’s office. As Accounting Services Director, Mr. Hough had the authority to recommend position reclassifications and pay additives for employees in the Office of Financial Management. One of his initial objectives was seek higher pay classifications for as many positions as possible. In 1993, Petitioner worked as an Administrative Secretary in the General Accounting section of Respondent’s Office of Financial Management. Her direct supervisor was the Finance and Accounting Director, a position held by a career service employee. Mr. Hough developed a job reclassification package that impacted about sixty (60) full time positions in the spring of 1993. As a part of that package, Mr. Hough recommended an upgrade of Petitioner’s position from Administrative Secretary to Staff Assistant. He made similar requests for two other Administrative Secretaries. Linda Ball, a black female, worked as an Administrative Secretary in the Accounts Receivable section. Rita Cook, a white female, worked as an Administrative Secretary in the Accounting Systems and Procedure section. The agency’s Comptroller, Personnel Office, and Program Advisory Council approved Mr. Hough’s recommendations to reclassify most of the positions. However, they declined to upgrade the Administrative Secretary positions because the agency’s rules required a select exempt employee to supervise Staff Assistants. In this case, a career service employee supervised all three Administrative Secretaries. Mr. Hough advised the Administrative Secretaries that he would seek a special pay increase for them. Linda Ball subsequently vacated her position as an Administrative Secretary when she transferred to Respondent’s office in Tampa. Her transfer left only Petitioner and Rita Cook occupying the positions of Administrative Secretary. In late 1993 or early 1994, Mr. Hough physically relocated Ms. Cook to his work area. He moved her work station into his office because he lacked secretarial support. At the time, he was officially serving as Accounting Services Director. However, he also acted as Accounting Staff Director for Revenue Management, Financial Support Director, and Comptroller. Except for the position of Accounting Services Director, all of these positions were vacant from March through June of 1994. After her relocation, Ms. Cook continued to occupy the position of Administrative Secretary in the Accounting Systems and Procedure section. She performed eighty (80) percent of her work for that section. The rest of her time was spent providing secretarial support to Mr. Hough. Ms. Cook’s relocation made her position eligible for reclassification from Administrative Secretary to Staff Assistant because Mr. Hough was a select exempt employee. Petitioner had more seniority in time than Ms. Cook. Nevertheless, Ms. Cook was more qualified than Petitioner to work in the office of the Accounting Services Director because of her prior experience in the Accounting Systems and Procedure section. Ms. Cook possessed more expertise and knowledge about Respondent’s district offices. She was familiar with the interaction between the district fiscal offices and the central office in Tallahassee. Mr. Hough was aware that Petitioner did not want to relocate from General Accounting to Accounting Systems and Procedure before he relocated Ms. Cook to his office. In February and May of 1994, Mr. Hough gave Petitioner the opportunity to move upstairs to work in the Accounting Systems and Procedures section. A lateral transfer to a position in that office would have allowed Petitioner to gain knowledge and experience similar to Ms. Cook’s. However, Petitioner declined the offer. She decided to stay downstairs in General Accounting and wait for a position reclassification or a special pay increase. The work environment in the General Accounting section was less stressful than the Accounting Systems and Procedures section. The latter had the additional pressure of interacting with the Deputy Secretary of Administration and Budget. It also was involved with the flow of information to the Legislature. Toward the end of the 1993-1994 fiscal year, Respondent’s Deputy Secretary of Administration selected Glenda Guess as the new Comptroller. The Deputy Secretary directed Mr. Hough to arrange for Ms. Guess to have the level of staff that she was expecting when she came "on board." Pursuant to this directive, Mr. Hough realigned the duties of staff in the offices of the Comptroller and the Accounting Services Director. On June 8, 1994, Mr. Hough approved a reclassification of Ms. Cook’s position from Administrative Secretary to Staff Assistant. Mr. Hough signed the Request for Payroll Action form as the Respondent’s Acting Comptroller. On June 10, 1994, Glenda Guess became Respondent’s Director of Financial Management/Comptroller. The "promotion due to reclassification" resulted in a five (5) percent pay raise for Ms. Cook. She began to devote one hundred (100) percent of her time to duties within the office of the Accounting Services Director. In 1994 and 1995, the agency was in the process of decentralizing its functions. In the short run, this process required the central office to perform additional functions until the district offices could assume those responsibilities. In 1995, Respondent closed the Jacksonville office, phased out twenty-nine (29) positions, and brought the child welfare voucher system into General Accounting at the Tallahassee office. When this change occurred, Petitioner assumed the additional duty of controlling the inflow of documents for the child welfare vouchering system from all the districts. As Petitioner’s responsibilities increased, she and Mr. Hough discussed the possibility of changing her classification from Administrative Secretary to some type of accounting position. However, Petitioner preferred to remain in the secretarial/clerical niche and not seek a position with an accounting orientation. In April of 1995, Mr. Hough sent Ms. Guess a memorandum requesting a ten (10) percent "pay additive for additional duties" for Petitioner. Ms. Guess denied the request because it was not in the correct format. Additionally, she thought a three-to-five percent increase was a more appropriate raise for employees assuming additional duties. At that time, Respondent’s ability to provide pay increases for additional duties was a new concept. Ms. Guess was not aware of a precedent for a ten (10) percent pay increase for additional duties. In May of 1995, Mr. Hough revised Petitioner’s position description to reflect Petitioner’s additional duties. On May 16, 1995, Mr. Hough again requested a ten (10) percent pay additive for Petitioner. He felt the salary increase was justified because Petitioner handled the Child Welfare Vouchering System input documents, as well as the reconciliation documentation from the districts each month. According to Mr. Hough, these additional duties were beyond the scope of Petitioner’s normal tasks as an Administrative Secretary. On May 25, 1995, Petitioner wrote Mr. Hough a memorandum to advise that she would not be satisfied with a three-to-five percent raise. She demanded a ten (10) percent salary increase. Petitioner sent Ms. Guess a copy of the memorandum. On May 31, 1995, Ms. Guess properly denied the second request for Petitioner’s salary additive for the following reasons: (a) the additional duties were of a clerical nature; (b) the additional duties did not require Petitioner to work overtime except for her involvement in year-end closing; (c) Petitioner’s salary was in line with other clerical positions in the Office of Financial Management; (d) funds for pay increases were insufficient to raise the salary of every employee in the Office of Financial Management who were performing additional duties; and (e) a raise of three-to-four percent was more in line with raises given to employees in Respondent’s Office of General Services for assuming additional duties. On or about June 25, 1995, Ms. Guess learned that funds were available for pay increases based on added duties and/or sustained superior achievement. The next day, Ms. Guess sent the Deputy Secretary for Administration a request for pay increases for the following: (a) Melissa Pugh, white female, 7.5 percent for sustained superior achievement and added duties; Beverly Smith, white female, 5 percent for added duties; Kimmie Canfield, white female, 10 percent for added duties and superior performance; (d) Gail Kruger, white female, 5 percent for superior performance; (e) Cindy Philips, white female, 5 percent for superior performance; (f) Barbara Huskey, white female, 5 percent for superior performance; (g) Sonja Bradwell, black female, 5 percent for superior performance; and (h) Petitioner, 5 percent for additional duties. Ms. Canfield worked for Respondent as Staff Assistant to the Financial Support Director for approximately seven months as of June 26, 1995. Her 10 percent raise was due in part to her salary being substantially below the salary of other support staff. Petitioner’s salary remained higher than Ms. Canfield’s even though she was in a more responsible position. Petitioner’s performance evaluations for 1994-1995 and 1995-1996 indicate that she was an above-average employee. She performed her duties in a timely manner with little or no supervision. She willingly assisted her co-workers when they needed help. However, Petitioner’s performance was not superior. Therefore, Ms. Guess properly did not consider awarding Petitioner more than a five (5) percent pay increase for sustained superior performance in June of 1995.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed in this case. DONE AND ORDERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997. COPIES FURNISHED: Curley R. Doltie, Esquire Post Office Box 1325 Tallahassee, Florida 32302 Sandra R. Coulter, Esquire Department of Children and Family Services Building 1 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dana Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent's statements as set forth in a letter dated April 30, 2001, are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Respondent is an agency of the State of Florida. At all times relevant here, the Florida Capitol Police was a division within Respondent's Facilities Program. The Florida Capitol Police is an accredited law enforcement agency. Its purpose is to provide building security and other law enforcement services. The State of Florida employs individuals in one of four distinct, statutorily defined services: Senior Management Service, Selected Exempt Service, Career Service, or Other Personal Services. At all times relevant here, the Director of Florida Capitol Police was an employment position that was classified within the Senior Management Service. Petitioner is a sworn law enforcement officer. On February 24, 1998, Respondent offered Petitioner an appointment to the position of Director of Florida Capitol Police. At that time, Petitioner understood that the appointment was to a position classified within the Senior Management Service. To the extent possible, Petitioner negotiated the terms of his employment. However, he understood that his position as Director of Florida Capitol Police included all of the benefits and all of the terms of employment of a position established within the Senior Management Service. He knew that he would serve at the pleasure of Respondent's Secretary, as the agency head, if he accepted the job. On February 25, 1998, Petitioner accepted the appointment to Director of Florida Capitol Police. He executed a document acknowledging that he was relinquishing his career service rights. From that time forward, Petitioner was compensated and evaluated as a Senior Management Service employee. He enjoyed all the benefits of his new position. Petitioner was the highest-ranking sworn law enforcement officer in the Florida Capitol Police, holding the "rank" of colonel. He did not report to any higher sworn law enforcement officer. As Director of Florida Capitol Police, Petitioner was responsible for leading and directing the operation of a statewide law enforcement organization, including the administration and oversight of a $6.2 million-dollar budget. Part of Petitioner's duties required him to maintain appropriate relationships with the Sheriff of Leon County and the Chief of the Tallahassee Police Department for support in joint operations when necessary. Petitioner was a member of the Florida Police Chiefs' Association, the State Law Enforcement Chiefs' Association, and the National Police Chiefs' Association. In 1999, a former employee of the Florida Capitol Police commenced a legal action in the United States District Court for the Northern District of Florida against Respondent. The former employee alleged sex discrimination and sexual harassment by the Florida Capitol Police, specifically by Petitioner. A trial was conducted in the lawsuit, Goldwich v. Department of Management Services, USDC ND Fla., Case No. 99-CV-512 (1999) in early February 2001. Petitioner testified as a defense witness at the trial. Several other Florida Capitol Police officers were interviewed as potential witnesses or called to testify at the trial. Respondent prevailed in the district court action. On February 2, 2001, Respondent's Secretary transferred the internal affairs investigation function of the Florida Capitol Police from the Florida Capitol Police to Respondent's Office of Inspector General. Thereafter, the Chief Investigator, Captain Joe Wallace, worked out of the Inspector General's office. On February 15, 2001, Petitioner and Respondent's Inspector General entered into a Memorandum of Understanding regarding the "credentialing" of Chief Investigator Wallace. The purpose of the memorandum was to formulate and establish a commitment between the Office of the Inspector General and the Florida Capitol Police to support the training and educational requirements for sworn law enforcement personnel assigned to each entity. On March 2, 2001, Respondent's Office of the Inspector General received an internal complaint from Sergeant Edwin Maxwell, a subordinate officer of the Florida Capitol Police. Said complaint alleged that Petitioner had retaliated against Sergeant Maxwell for testifying at the Goldwich trial. Sergeant Maxwell's allegations also implicated Petitioner's subordinate, Major Robert G. Tippett, as having participated in the alleged retaliation. On or about March 7, 2001, Respondent's Inspector General instructed Petitioner to report to the Florida Capitol Building, specifically to the offices of the Governor's Chief Inspector General. Respondent's Inspector General, Chief Investigator Wallace, and an Assistant Florida Inspector General from the Governor's Office of Inspector General were present when Petitioner arrived at the Capitol. At that time, Petitioner was presented with a memorandum advising that he was the subject of a formal investigation. The March 7, 2001, memorandum stated that Respondent's Inspector General initiated the investigation pursuant to a complaint. According to the memorandum, the principal allegation that formed the basis of the investigation was that Petitioner had engaged in one or more of the following: retaliation, conduct unbecoming, and/or violation of law. Sergeant Maxwell's complaint and a copy of Section 112.532, Florida Statutes, was attached to the memorandum. During the March 7, 2001, meeting at the Capitol, Respondent's Inspector General advised Petitioner that he had a right to representation by counsel. After a brief discussion, Petitioner elected to seek private counsel. Later on March 7, 2001, Petitioner and his attorney returned to the Governor's suite at the Capitol. Upon their arrival, Petitioner was advised again of his rights under the law enforcement officers' and correctional officers' rights, which are codified at Section 112.532, Florida Statutes. Respondent's Inspector General and Chief Investigator Wallace then proceeded to interview Petitioner. Respondent's Inspector General inquired into the complaint against Major Tippett, performed an investigation, and issued an Executive Summary of the investigation dated March 22, 2001. This report concluded that Major Tippett's alleged violations related to conduct unbecoming, retaliation, and violation of law were unfounded. Respondent's Inspector General inquired into the complaint against Petitioner, performed an investigation, and prepared a draft report of the investigation. After consulting with the Chief Inspector General in the Office of the Governor, Respondent's Inspector General issued an Executive Summary of the investigation dated March 26, 2001. This report concluded that Petitioner had engaged in conduct unbecoming. The report also concluded that other alleged violations by Petitioner, including retaliation and violation of law, were unfounded. According to the March 26, 2001, Executive Summary, Respondent's Inspector General recommended that Petitioner be removed from his position as Director of Florida Capitol Police. The report states as follows in relevant part: This recommendation is made after carefully considering the following factors and informed by the fact that the Director serves entirely at the discretion of the secretary: The previous OIG report related to Capitol Police and the issues raised therein. (See attached) The finding of the jury in the US District Court case, filed by Officer Lisa Goldwich, that her working conditions were made so intolerable, by the defendant, that she was forced to resign. (See attached) The finding of "conduct unbecoming an employee/officer" contained in the report above. The likelihood that future retaliation will be attempted against those individuals who participated in the Goldwich trial and against those who testified in the OIG investigation reported above. The ongoing morale problem within the Florida Capitol Police. Subsequently, Respondent's Inspector General prepared a Memorandum of Investigation dated April 2, 2001. This memorandum states again that allegations against Petitioner relative to retaliation and violation of law were unfounded but that allegations relative to conduct unbecoming were founded. The April 2, 2001, memorandum cites Respondent's Policies and Procedures Manual, Section 3.27, Discipline of Career Service Employees, as it relates to conduct unbecoming a public employee. It also cites to Section 110.403(1)(a), Florida Statutes, for the proposition that Respondent's Secretary had discretion to discipline Senior Management Service employees. On or about April 3, 2001, Petitioner and Major Tippett filed a civil suit in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Case No. 01-821. This suit included an Emergency Motion for Temporary Injunctive and Declaratory Relief. It alleged violations of Sections 112.532, 112.533, and 112.534, Florida Statutes. Petitioner subsequently voluntarily dismissed this civil action. On or about April 3, 2001, the General Counsel in the Office of the Governor, requested the Florida Department of Law Enforcement (FDLE) to review and complete Respondent's internal investigation. Thereafter, FDLE's Inspector General performed an investigation into the complaint against Petitioner and Major Tippett. FDLE's Inspector General eventually prepared an undated report of its review and investigation. The FDLE report states as follows in relevant part: As mentioned previously, the OIG report concludes that the alleged violations against Major Tippett were all unfounded. The alleged violations against Colonel Meek for (1) Retaliation and (2) Violation of Law were unfounded. The violation against Colonel Meek for Conduct Unbecoming was founded. Conduct Unbecoming a public employee is a violation of DMS Policy, Section 3.27(C)(2)(e). There is no definition of "Conduct Unbecoming" in DMS' policies or administrative rules. Based upon the interview of the subordinate supervisors regarding the statements made by Colonel Meek, the conclusions rendered by OIG are reasonable. Near the completion of the OIG investigation, IG Varnado prepared a draft report and discussed it with the Chief Inspector General, Marcia Cooke. The draft report did not contain any recommendation regarding a recommended action for the founded violation of Conduct Unbecoming. CIG Cooke instructed IG Varnado to include such a recommendation. IG Varnado recommended that Colonel Meek be removed from his position and discussed the recommendation with Secretary Cynthia Henderson. This RECOMMENDATION was included in the INVESTIGATIVE REPORT dated April 2, 2001. The RECOMMENDATION contained five cited reasons to support Colonel Meek's removal. The OIG investigative report does not specifically support reasons (1), (4), and (5). However, based upon the below recommendation, further discussion of these items is rendered moot. Generally, an investigation regarding possible administrative misconduct is handled independently from the determination to impose action following a sustained finding of a violation. IG Varnado acknowledged that he does not routinely recommend action following an administrative violation. However, according to IG Varnado, the rank of the person involved led him to seek assistance from the Chief Inspector General's Office. It is recommended that the RECOMMENDATION regarding the proposed administrative action be removed from the investigative report. The determination of any action resulting from the OIG investigation should be left solely to the discretion of the Secretary for the Department of Management Services. The FDLE report also addresses Respondent's violations of Sections 112.532(1)(b), 112.532(1)(g), and 112.533, Florida Statutes, which were the subject of the civil suit filed by Petitioner and Major Tippett. The report concludes that these statutory provisions were applicable to Major Tippet but that the question whether they were applicable to Petitioner, as the head of the Florida Capitol Police, was also the subject of the civil suit. By letter dated April 30, 2001, Respondent's Secretary advised Petitioner that the investigation of Sergeant Maxwell's complaint was complete. The letter states as follows in relevant part: [B]ased on the investigation conducted by the DMS Inspector General, as reviewed and completed by the Florida Department of Law Enforcement Inspector General, it has been determined that allegations against you relating to retaliation and violation of law are unfounded, and that allegations against you relating to conduct unbecoming a public employee are founded. Attached hereto for your reference is a copy of the pertinent report of the FDLE Inspector General's Office. As set forth in the attached report (page three), the basis for the conclusions that you are guilty of conduct unbecoming a public employee is that you made statements in the days or weeks following the trial of the civil suit filed by former officer Lisa Goldwich to subordinate officers regarding the removal of duties involving Sgt. Maxwell--who testified for the plaintiff at the trial--and possible adverse action for him and others who testified. Because of this conduct unbecoming a public employee, you are hereby suspended without pay for a period of fourteen (14) days, after which you will return to your post. You are also hereby required to participate in supervisor training with (sic) ninety (90) days. Respondent's agency head, in the exercise of her discretion, made the ultimate decision to suspend Petitioner. In taking the disciplinary action, the agency head did not reference or assert any reliance on career service rules to support Petitioner's discipline. The April 30, 2001, letter was not disseminated to other agencies or to other Senior Management Service employees. The agency head's April 30, 2001, letter was an action taken exclusively regarding Petitioner. It did not affect or impact any other agency, employee, or class of employee. The administration of personnel matters regarding Respondent's Senior Management Service employees did not change following Petitioner's April 30, 2001, discipline. Respondent has not promulgated rules regarding the discipline, suspension, or termination of Senior Management Service employees because such rules are not required. Petitioner resigned his appointment as Director of Florida Capitol Police on July 31, 2001. He is no longer employed by the State of Florida.
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact In July of 2006, Respondent advertised an opening for an Accountant II, position #70557, in its revenue and contracts division. The primary responsibility in the position was accounting for and paying or reimbursing expenses in state programs that were funded through federal money by drawing down the accounts in which the federal funds were maintained. Therefore, among other things, the position required accounting experience and a working knowledge of FLAIR. FLAIR is the computerized accounting and records system used by all state agencies in the State of Florida. The vacant position required significant knowledge and experience in both the accounting codes utilized in FLAIR and the computer screens associated with those codes. Additionally, there was a critical need to immediately fill the position with an experienced person because of the involvement with federal funds and due to the fact that another employee, Deborah Schimmel, was performing the work required in her position, as well as, the work required in the vacant position. In 2006, Petitioner, who is Caucasian and 67 years old, applied for the Accountant II position with Respondent. As part of the application process, Petitioner answered a series of qualifying questions relevant to the vacant position. The questions were used by Respondent to help with preliminary screening of the applicants. Some of the questions involved the applicants’ experience with FLAIR, grants and revenue. Petitioner answered the qualifying questions and indicated he had one year of experience with FLAIR, a college degree in accounting and experience with grants. There were four other applicants for the position. Petitioner did not know the race of any of the other applicants for the position and did not offer any evidence regarding the race of these individuals. Salwa Soliman, the Commission’s Revenue and Contracts Manager, was advised that the Accountant II position was vacant and had been advertised. She was also aware that the position needed to be filled as soon as possible with a person who could perform the accounting and billing duties of that position with little or no training. Ms. Soliman reviewed the applications for the vacant position. Based on a review of his application and qualifying questions, Petitioner was granted an interview because he was a veteran, held a bachelor's degree in accounting, had revenue experience and had experience with FLAIR. On October 13, 2006, Petitioner was interviewed for the position by Ms. Soliman and Ms. Schimmel. During Petitioner's interview, it was clear that Petitioner's experience with revenue related to tax returns and not grants. Likewise, Petitioner's experience with grants was only in writing or applying for grants. He had not billed or disbursed federal money from such grants. More importantly, Petitioner's experience with FLAIR was “view only” experience. “View only” experience or authorization meant that Petitioner was only able to view or look at certain screens but not input data or change the screens in FLAIR. Thus, Petitioner did not have experience with data input to FLAIR and/or the pull-down menus associated with such input. In short, Petitioner’s experience and skills did not relate to the work required in the position at issue. Neither tax experience nor grant writing experience was the type of revenue experience required for the vacant position. Additionally, Petitioner did not have sufficient experience or working knowledge of FLAIR to enable him to fill the position with little or no training. Petitioner was not hired for the position. In all likelihood, Petitioner could have been trained for the position. However, due to the nature of the position, Respondent reasonably wanted to hire a person who could immediately fill it. Indeed, none of the applicants for the position were hired because no person had the necessary working knowledge of FLAIR and grant billing to fill the Accountant II position immediately with little or no training required. There was no evidence that Respondent’s reasons for not hiring Petitioner were unreasonable or a pretext for discriminating against Petitioner. When a batch of applicants does not meet Respondent’s needs for a vacant position, Respondent’s policy was to review any applications for other employment opportunities with Respondent submitted within six months of the closing date of the job announcement for the current vacancy. Because of the critical need to fill the Accounting II position, Ms. Soliman asked that other previously submitted applications be forwarded to her by Respondent’s personnel department. In order to transfer an application from one job posting to another job posting, People’s First, the State’s contractor for some personnel matters, must transfer the previously filed application in its database to the file for the current vacancy. Other than requesting the transfer of the application, Respondent is not involved in the actions necessary to transfer an application to another file for a vacant position. In this case, Respondent’s personnel department requested People’s First to transfer applications from an earlier-filled Accountant II position with Respondent. One of the transferred applications was from Debra Shriver who was 23 years old and Caucasian. For unknown reasons, in the computer process of transferring the application, the date on Ms. Shriver’s application was changed. The evidence was clear that Respondent did not ask for or cause the date on Ms. Shriver’s application to change. In fact, the change in the application’s date was immaterial to Respondent’s criteria or requirements in filling the position at issue here and does not demonstrate any fraud, falsification or misrepresentation on the part of Respondent in filling the position. Based on her application, Ms. Soliman interviewed Ms. Shriver for the vacant position. The evidence was clear that Ms. Shriver had the experience and knowledge being sought and required for the position at issue. She was currently working in the grant billing division in another state agency and had significant experience and working knowledge of FLAIR as it relates to grants and billing. Ms. Soliman had worked with the successful candidate before but they were not personal friends. Ms. Soliman knew that Ms. Shriver was a competent employee. Based on these facts, Ms. Shriver was hired for the vacant position and did not require significant training once she began working in that position. There was no evidence that Ms. Shriver’s selection was based on her race or her age. She was selected based on her qualifications to immediately perform in the position for which she was hired. Likewise, there was no evidence that Petitioner was not hired based on his race, which was the same as Ms. Shriver’s, or his age. Petitioner was not hired because he did not have the experience necessary to enable him to immediately begin performing the duties of the position for which he applied. Finally, there was no evidence that Petitioner’s requirements for selecting a person to fill the vacant position or for selecting Ms. Shriver were unreasonable or a pretext for discrimination against Petitioner. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that a final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 8th day of April, 2008. COPIES FURNISHED: Albert H. Beddy 7281 Sycamore Road Quincy, Florida 32351 Stan M. Warden, Esquire Emily J. Norton, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Ken D. Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Between July 25, 1977, and August 10, 1978, petitioner, Douglas A. Charity, was employed with the Division of Security, Department of General Services, first as a Capitol Security Officer I and then as a Surveillance Systems Operator. Thereafter, petitioner was employed for approximately ten months as a legislative intern budget analyst with the Senate Ways and Means Committee. From there, he was employed between June and November of 1979 as a research analyst with the Citizens Council for Budget Research. One of his prime projects in this position was a review and analysis of the Division of Motor Pools in the Department of General Services (DGA). From December of 1979 through August 27, 1980, petitioner was unemployed. He desired to find a position in an administrative, analytical or consulting capacity but was unsuccessful in finding employment. On August 27, 1980, petitioner was offered employment with the Division of Security within DGS. Based upon prior conversations, it was orally agreed between petitioner and administrators within the Division of Security that petitioner would be assigned to and be paid at the salary level for the position classified as a Capitol Security Officer I. The salary for this position was approximately $8,000.00 per year. It was further agreed that petitioner would not wear a uniform nor would he perform the duties normally required of a Capitol Security Officer. Instead, it was agreed that petitioner would perform duties normally required of a Capitol Security Officer. Instead, it was agreed that petitioner would perform duties of an "administrative" nature and assist with the preparation and writing of a four-year plan containing an analysis of the Division of Security. Because the preparation of the four-year plan was not expected to take long and because the salary for a Capitol Security Officer was not as high as petitioner desired, it was anticipated by those within the Division of Security that petitioner would continue to seek other employment. Petitioner did, in fact, continue to seek other employment. One of his reasons for accepting employment with the Division of Security was to enhance his possibilities for employment in an administrative, analytical or consulting capacity through his record at DGS which would show his work on the four-year plan. Some two and a half months prior to petitioner's employment with the Division of Security on August 27, 1980, an outline for the four-year plan had already been prepared and approved. The purpose of the plan was to review the function and performance of the Division of Security and to set a plan for structural and program development and change. A portion of the plan pertained to position descriptions and classifications and the Division of Security's need for additional positions classified as management analyst and administrative assistant. The plan ultimately concluded that such positions were not needed within the Division of Security. The four-year plan was completed in February of 1981. In addition to his work on the four-year plan, both before and after February of 1981, petitioner performed duties in the following areas: reports on security personnel, procedures and problems; administrative correspondence and paperwork; budget issues; legislative bill analysis; and the attendance of meetings with DGS officials and legislative staff persons. His duties varied from day to day, dependent upon instructions he received from the Division Director or Assistant Director. Construing the facts presented at the hearing with respect to the duties actually performed by petitioner from August 27, 1980 through January 10, 1982, in a manner most favorable to petitioner, his actual duties compared with the job description for the classification of Administrative Assistant I. During the entire period in question, petitioner was classified as and received the salary of a Capitol Security Officer I. He never wore a uniform and he never performed the duties of a Capitol Security Officer I which duties included patrolling and maintaining the security of the Capitol Building and Legislative facilities on an assigned shift, locking doors, raising and lowering flags, maintaining logs and related security duties. Petitioner's immediate superiors within the Division of Security, as well as the Executive Director and those within the personnel office of DGS, were aware that petitioner was performing out-of-class duties for the Division of Security. Various efforts were made by DGS officials to help petitioner find employment in a higher position. The possibility of creating a management analyst position in another Division was considered, but that position was never established. Petitioner did not qualify for such a position until approximately October of 1981. The Chief of the Bureau of Personnel Management Services performed an audit of the Division of Security to ascertain if additional administrative positions were needed. While the first draft of the audit report recommended a reorganization of the Division to include an Administrative Assistant I position, it was ultimately concluded that the Division needed only two administrative positions -- the Director and the Assistant Director. Petitioner was informed of a position as an Assistant Facilities Services Coordinator in the Bureau of Property Management, but chose not to apply for that position. Though efforts were made by officials within DGS to either create a higher position for petitioner or place him in a vacant higher position, petitioner was never promised a specific position. Instead, he was informed of possibilities for placement in the future. He was also told that should such positions become established or available, he would have to qualify for the position and compete with other applicants. Petitioner discussed his increasing frustrations with his employment situation with officials within DGS. He also sought advice from a Personnel Program Analyst with the Department of Administration (DOA). She advised him that he could request an audit of his position through his supervisor, his own personnel officer or the DOA Bureau of Program Assistance, whose function is to perform desk audits to ascertain whether the duties performed by an employee are the same as the position description for that employee. She also informed petitioner that he could resolve his difficulties through the career service system or the grievance procedure set forth in the collective bargaining agreement. She indicated to him that he may wish to wait and see if the management analyst position (which had been discussed) would become available, in which case the problem might resolve itself if he were able to fill that position. The Department of Administration was never furnished with a current position description accurately reflecting the duties of petitioner's position. No one ever requested the DOA's Bureau of Program Assistance to perform a desk audit appraisal of petitioner's duties and classification, and petitioner's position was not among those randomly selected for desk audit review. By late November and throughout December of 1981, officials within DGS were becoming increasingly concerned with the fact that petitioner was performing out-of-class duties. Though efforts were maintained to find a position for petitioner which would more accurately reflect his actual job duties, such efforts were not successful. In mid-December 1981, petitioner filed a grievance pursuant to the collective bargaining agreement. After the final draft of the audit of the Division of Security indicated that no additional administrative positions were needed in that Division, petitioner was informed that he would be required to cease out-of-class work and that he must commence to perform the official duties of a Capitol Security Officer I effective January 11, 1982. Petitioner did assume the duties of a Capitol Security Officer on January 11, 1982, and has since functioned in that capacity.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED: That the relief sought by petitioner from the Department of General Services and the Department of Administration be DENIED, and that the petitions filed in Case Nos. 82-2733 and 82-3381 be DISMISSED. Respectfully submitted and entered this 14th day of October, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1983. COPIES FURNISHED: Robert B. Beitler, Esquire Post Office Box 12921 Tallahassee, Florida 32317 Sylvan Strickland, Esquire Room 452, Larson Building Tallahassee, Florida 32301 Daniel C. Brown, Esquire General Counsel 435 Carlton Building Tallahassee, Florida 32301 Thomas M. Beason, Esquire Suite 858, Barnett Bank Building Tallahassee, Florida 32301 Secretary Nevin Smith Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Thomas Brown, Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Petition for Dismissal filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent has been employed by the Broward County School Board since August 1, 1977. In June of 1981 she became the budget director for the school district and was subsequently re-appointed as the budget director, pursuant to a series of annual contracts, through June 30, 1991. On April 8, 1991, Respondent was given a notice of non-renewal which would result in her contractual employment concluding on June 30, 1991. However, allegations of misconduct, specifically that Respondent had engaged in unlawful employment practices to exclude black applicants from employment positions within the budget office, were brought to the attention of William Dandy, the deputy superintendent, on January 16, 1991. Dandy immediately caused an investigation to be conducted by the School Board's special investigative unit. As a result of that investigation, Virgil L. Morgan, superintendent of schools, filed the subject Petition for Dismissal with the School Board seeking to terminate Respondent's employment as of June 9, 1991, three weeks before her annual contract expired. In 1987 an Order was entered approving the settlement of a civil rights action which had been filed in federal court against the Broward County School Board. The settlement entered into recognized the under-representation of blacks as employees in the School Board's data processing department and in the budget office managed by Respondent. The settlement specifically required that those two departments hire qualified black applicants for employment in order to correct the under-representation in those departments. Immediately following the entry of that court order, then-superintendent Leary conducted a meeting with administrative personnel and specifically directed those with hiring responsibilities to comply with the court order. Also following entry of the federal court order, associate superintendent Thomas P. Larkin, Respondent's immediate supervisor during her ten years as the budget director, ordered Respondent to hire qualified blacks for the next openings in her department. He specifically directed Respondent to comply with the federal court order and to find and recruit qualified blacks if that were necessary. On many occasions thereafter, Larkin again told Respondent to recruit qualified blacks and to hire them. Respondent understood the directive given to her both by then-superintendent Leary and by associate superintendent Larkin. Over the ten-year period that Respondent served as the budget director, there were many vacancies and many persons were hired in the budget office for both clerical and professional positions. The absence of black employees in the budget office over that extended period of time was not accidental. It was easy for staff members in the budget office to understand why only white persons worked there. Respondent was open and blatant in her dislike for black persons. She referred to specific black employees within the school system as being dumb and lazy. She told her staff that black teenage girls at a certain high school in Broward County got pregnant so that they could collect welfare. She voiced her opposition to a black person being nominated for membership on the board of a professional association by pointing out that there was already one black on the board and putting another on the board would degrade the association. During her ten years as budget director, Respondent occasionally referred to black School Board employees as "niggers" or "black bastards" when talking to her budget office staff. She also made statements about "lily-white" neighborhoods and told her staff that she was not going to hire any more "blacks, southern baptists, gays, or pink cows". Respondent made derogatory comments to her staff about specific black employees of the School Board in a blatant attempt to humiliate those employees. She told her staff that a certain employee had two strikes against him: one was that he was black, and the other was that he wanted to be called "Mr." After a budget office employee once told a story about a game show contestant responding to the clue word "doe" (a female deer) with the word "knob," Respondent began referring to black persons as "doe knobs". Before Respondent became the budget director, she was employed in the School Board's management audits department where she supervised a black employee who voluntarily took a demotion and a paycut to be assigned to another individual rather than work for Respondent. Within a few weeks of that person's voluntary demotion, Respondent was re-assigned from management audits to the budget office. When that demoted employee heard that Respondent was being transferred, he told other School Board employees at lunch that, "I feel like such a fool." One of Respondent's subordinates in the budget office told her that story when it occurred. Thereafter, Respondent compelled that subordinate to relate the story numerous times over the years, particularly to new members of the budget office staff. It was understood by the staff that the story was told as an opportunity for Respondent both to degrade a black employee and to intimidate the new budget office employee. Respondent openly stated to her staff that her boss wanted her to hire a black but that she would never consider having a black in her budget office. On one occasion after her supervisor Larkin told Respondent who then had a vacant budget analyst position that she needed to hire a qualified black applicant, Respondent instructed her subordinates to speed up the screening and interview process before the NAACP came after her and she was required to hire a black. A list of 197 racial, ethnic, and sexual "jokes" was brought into the budget office by an unknown person. Respondent directed a secretary to make copies for everyone in the office. Respondent assembled the staff in the budget office conference room where she instructed the secretary to distribute copies to all present. Thereafter, Respondent sat there with her subordinates while she and they read aloud to each other "jokes" from the list. Most of those present were uncomfortable due to the nature of the "jokes" and considered Respondent's distribution of that list in the office setting to be unprofessional, inappropriate and demeaning. The hiring process for professional positions within the budget office was a two-tiered procedure, depending upon the position and accompanying pay grade. The basic procedure began with a public advertisement for the position with a job description. Upon their receipt, the applications for employment for that position were submitted to Respondent to establish criteria for review during the screening process. The applications were then screened based upon the criteria, narrowing the list for interview purposes. Following the interviews, candidates were ranked in a numerical order from which an individual was selected for that particular position based upon the recommendation of the budget director. The School Board has implemented policy 6Gx6-4011.13 governing employment for positions of pay grade 25 or higher. This policy, known as "target selection," covers administrative and supervisory positions and includes some of the budget analyst positions within the budget office. The screening process was based upon criteria established by Respondent, which culminated in a formal interview process in order to narrow the field to three candidates. The names of those three candidates were then submitted to the superintendent, together with Respondent's recommendation as to which of those candidates should be hired. Respondent's recommendation was followed in every instance. This more stringent screening and interview process was not required for pay grade 24 and below. For those pay grades, Respondent, as the department administrator, developed the job description for the position, developed the criteria for screening applicants, and selected the winning applicant after the interview process. There were a total of 18 budget analyst positions filled within the budget office from December 17, 1981, through April 17, 1990, of which 12 were pay grade 24 and below and, therefore, not subject to the target selection procedure. The employment procedures for all pay grades, however, were governed by equal opportunity and fair employment policies, implemented through personnel policy statements which required fair employment practices. These policies and procedures, along with the applicable state and federal laws governing hiring practices, were fully explained to Respondent by employees in the School Board's personnel department each time Respondent arranged to advertise a vacant position. Respondent's pattern of eliminating applicants identified by her as potentially black individuals spanned her tenure as budget director and included her last hiring of a budget analyst in April of 1990. Respondent directed her subordinates involved in the screening process to eliminate applicants she suspected of being black, utilizing certain information on their applications or resumes. She directed her subordinates to eliminate persons who were born and/or educated in Jamaica or in the West Indies, who attended certain colleges or universities such as Florida A & M and Bethune-Cookman, who had belonged to recognized black fraternities or sororities, or who belonged to certain organizations such as the Black Accountants Association. One applicant was eliminated due to Respondent's stated belief that only black females would play basketball. On one occasion, Respondent expressed the difficulty in eliminating a black applicant who had made it to the interview process. Respondent specifically directed her subordinates who were screening applications to manipulate the criteria when necessary to eliminate black applicants. Sometimes those interviewed were allowed to have a bachelor's degree with a major in accounting or a related field, and sometimes those interviewed were required to have bachelor's degrees with only a major in accounting. Sometimes Respondent would establish a criterion that the applicant's degree must have been received within two years, sometimes three years, sometimes four years, and sometimes there was no "recency" requirement. She directed the elimination of black applicants who held a master's degree in accounting, declaring them to be over-qualified, even though the minimum qualification for the position was a bachelor's degree. On one occasion, she established different minimum educational qualifications for applicants who were already employees of the School Board and applicants who were not, even though the official job description contained no such distinction regarding the type of degree held. In April of 1990, Respondent conducted an informal vote among her staff to select an individual from those who had successfully completed the interview process. The budget office staff voted unanimously for a female who was already employed within the school system because they were familiar with her and believed she would do an excellent job. Respondent rejected the staff's recommendation, however, stating she would hire a different applicant because she needed "to employ a white male in order to keep the salaries up." Respondent also discriminated against black applicants for clerical positions in the budget office. The School Board's personnel department would screen those applicants and administer the proper testing. A list of those who qualified by testing would then be forwarded to Respondent for interviews. Respondent utilized an interview system for clerical applicants whereby each applicant was afforded a 30-minute interview. However, if the applicant "sounded black" on the telephone when the appointment for the interview was being made, then that applicant was only scheduled for a 15-minute interview. Respondent's subordinates involved in the screening and interviewing processes followed Respondent's directives to eliminate suspected black applicants and did not report Respondent's discriminatory tactics to Respondent's superiors. They were fearful of losing their jobs and fearful of other retaliation by Respondent due to her vindictive nature. Respondent on occasion openly bragged about her successful retaliation against other employees who had complained about what she considered simply her management style. She created the impression that she was "untouchable". Respondent was verbally abusive and demeaning to her staff. She referred to them as peons. She told one that he was "an asshole" for working overtime to complete an assignment. She removed the telephones from the offices of her professional staff for making personal phone calls during their lunch hour. She yelled, screamed, and cursed at them. When she wanted an employee to terminate employment, she took away that employee's duties, leaving that employee with nothing to do but feel worthless and isolated from the rest of the staff. The staff often wondered which of them would be Respondent's next target. From June 15 until August 15, 1990, Respondent was on workmen's compensation leave due to a back injury. During her absence, her immediate supervisor, associate superintendent Larkin, became involved in the budget office's day-to-day activities due to the need to prepare for School Board approval the budget for the 1990-91 school year. Several of the staff members became more comfortable with Larkin as they worked together over that summer. They began telling him about the working conditions suffered by the budget office staff under Respondent's leadership. It became clear to Larkin that the morale problems in that office created poor productivity when Respondent was there, a situation that did not exist while Respondent was on workmen's compensation leave. He understood it would be necessary for administrators with authority over Respondent to become involved in resolving the poor working conditions Respondent had created in the budget office. In July of 1990, Larkin told the two senior budget office staff members with whom he had worked most closely that summer that Respondent would be returning to work. They became upset and questioned how Larkin could allow her to return to her position as budget director. During that conversation, they also told Larkin that Respondent discriminated against blacks in the hiring process. Because of the serious nature of that accusation, Larkin told them they would have to document such an allegation in writing before he could commence an investigation. They did not. When Respondent returned to work, William Dandy, the deputy superintendent, met with the entire budget office staff to discuss the morale problems that were affecting productivity in the budget office. Respondent was present, and the staff did not tell Dandy about her discriminatory hiring practices at that meeting. By January 15, 1991, a secretary who had been hired while Respondent was on workmen's compensation leave and whose duties had been taken away from her by Respondent got "fed up" with what she considered an intolerable work environment and announced that she was going to speak to Mr. Larkin. The entire staff, except for one secretary, volunteered to go with her and did. They complained to Larkin about Respondent's interpersonal and management problems. On January 16, 1991, deputy superintendent Dandy contacted several of the budget office staff and asked them individually if they had any knowledge that Respondent had engaged in discrimination in her hiring practices. Each of the individuals admitted to having such knowledge. They subsequently provided written statements to Dandy, who referred those statements to the special investigative unit. The ensuing investigation resulted in the notice of non- renewal of Respondent's annual contract and in the Petition for Dismissal filed in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegations contained in the Petition for Dismissal filed against her; Affirming the superintendent's suspension of Respondent; Terminating Respondent from her employment with the Broward County School Board; and Denying Respondent's claims for back pay, benefits, attorney's fees, and costs. DONE and ENTERED this 25th day of October, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 25th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3863 Petitioner's proposed findings of fact numbered 2-5, 8, 9 and 11-33 are adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 6 and 7 are rejected as being unnecessary to the issues involved herein. Petitioner's proposed finding of fact numbered 10 is rejected as being subordinate to the issues herein. Petitioner's proposed findings of fact numbered 1, 34, and 35 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 3, 95-97, 108, 128, 129, 140 and 153 are adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 99, 114, 126, 137 and 192 are rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 22, 26, 30, 56 and 75 are rejected as being unnecessary to the issues involved herein. Respondent's proposed findings of fact numbered 138, 147 and 163 are rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1, 4, 5, 9, 33, 34, 37, 45, 52, 54, 57, 59-61, 70-74, 83, 85, 87, 101, 111, 130, 146, 156, 162, 167, 175, 178, 186, 195 and 198 are rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 2, 6-8, 10-21, 23-25, 27-29, 31, 32, 35, 36, 38-44, 46-51, 53, 55, 58, 62-69, 76-82, 84, 86, 88-94, 98, 100, 102-107, 109, 110, 112, 113, 115-125, 127, 131-136, 139, 141-145, 148- 152, 154, 155, 157-161, 164-166, 168-174, 176, 177, 179-185, 187-191, 193, 194, 196, 197, and 199 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock, Soloff & Rodriguez, P.A. 1512 East Broward Boulevard, Suite 300 Fort Lauderdale, Florida 33301 Thomas F. Panza, Esquire Jan Marie Kelly, Esquire Panza, Maurer, Maynard, Platow & Neel, P. A. 3081 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308 Virgil L. Morgan, Superintendent Broward County School Board 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301-3125
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, the City of Crystal River, is required to report Myrl David Sallee as a member of the Senior Management Services Class (SMSC) of the Florida Retirement System (FRS) for the period from June 7, 1999, through July 2000, and remit the required contributions for that period.
Findings Of Fact The Petitioner, the City of Crystal River (City) is a Florida municipal corporation which has elected to participate in the Florida Retirement System (FRS). The Respondent is an agency of the State of Florida charged with administering the Florida Retirement System and enforcing the statues and rules which pertain thereto. On June 7, 1999, the City hired Myrle David Sallee as its City Manager, pursuant to a written contract which required Mr. Sallee to begin his employment on that date. The City's contract with Me. Sallee provided, "City shall contribute an amount equal to 24 percent of salary to agreed upon retirement plan in lieu of city retirement." The term "city retirement" refers to the FRS, of which the city normally was a participating member. Upon commencement of his employment, Mr. Sallee elected to have his city retirement contributions paid into a retirement plan operated and managed by the International City Manager's Association (ICMA) and the city agreed. From the date of his employment with the city until his employment terminated on June 6, 2001, the city made the required 24 percent contributions for Mr. Sallee to the ICMA plan. Mr. Sallee's position as city manager was one which is required to participate in the FRS Senior Management Service Class pursuant to Section 121.055(1)(b)1, Florida Statutes, and Rule 60S-1.0057(1)(c)2, Florida Administrative Code. Persons in such a position may, however, elect to withdraw from the FRS altogether, pursuant to Section 121.055(1)(b)2, Florida Statutes. There is no rule that corresponds to such an unconditional withdrawal; however, Rule 69S-1.0057(2)(c), Florida Administrative Code, provides that some person eligible to participate in the Senior Management Service Class of the FRS, including city managers, may elect to participate in a lifetime annuity program provided by their employer, in lieu of being a member of the FRS Senior Management Service Class. Local government employees participating in the FRS Senior Management Service Class are obligated by Rule 60S- 1.0057(3)(b)1, Florida Administrative Code, to complete and file with the division a form SMS-3 and a form FRS-M10. Pursuant to Rule 60S-1.0057(3)(b)2, Florida Administrative Code, the election to withdraw from the FRS altogether and participate in an employer-provided lifetime annuity program is also made by filing a form SMS-3. According to Rule 60S-1.0057(2)(c)1, such an election is effective the first day of the month following the month in which the form SMS-3 is received by the Division. Mr. Sallee was unaware of his obligation to participate in the FRS until July 7, 2000, at which time he completed and filed with the Division a form SMS-3. In his form SMS-3, Mr. Sallee elected to withdraw from the FRS and participate in an employer-provided annuity program instead. Mr. Sallee never did file with the Division a from FRS- M10. The City made a required FRS contribution for Mr. Sallee for July of 2000, but no other. On November 20, 2000, the Division notified the City, by letter, that FRS contributions were due for Mr. Sallee from the date of his employment, June 7, 1999, until the effective date of his election to withdraw from the FRS, August 1, 2000. By various telephone calls and letters, the City informed the Division of its position and requested relief from making the contributions payments that the Division claimed were due. On September 30, 2002, the Division notified the City, by letter, that it had not changed its position and that the letter of that date constituted final agency action, to the effect that the Division was maintaining its claim that the City owed the contribution payments at issue. Rule 60S-1.002(2), Florida Administrative Code, provides that the Division "shall deny membership" in the FRS to any employee who does not comply with statutory requirements for membership or requirements for membership set forth in Chapter 60S, Florida Administrative Code. In addition to Rule 60S- 1.0057(3)(b)1, Florida Administrative Code, Rule 60S-1.002(2), Florida Administrative Code also requires an employee to file a form FRS-M10 with the Division for enrollment into the FRS. The Division has admitted that the City does not have to make FRS contributions for employees who are not me member of the FRS. Within a week after Sallee was hired by the City, the City's Finance Director and Assistant Finance Director resigned their positions. According to witness Linda Stilson, during the thirteen months from when Sallee was hired on June 7, 1999, until July 7, 2000, the date he completed and filed with the Division a form SMS-3 (electing not to be a participant in the FRS) the City hired and lost another finance director; hired another finance director who left in October of 2000; hired and lost another assistant finance director; and hired Ms. Stilson as assistant finance director on May 25, 2000. It was Ms. Stilson who discovered that Mr. Sallee had not been enrolled in the FRS. Although the Division put on testimony that the City had been sent notices of the general requirements for enrollment in the FRS, there was no testimony that the City had actually received such notices prior to Mr. Sallee's hiring. Rule 60S- 3.011(2) provides for the assessment of delinquent fees for FRS contributions which have not been timely made; however, Florida Administrative Code Rule 60S-3.011(4) allows the Division to waive delinquent fees because of exceptional circumstances beyond an employer's control.
The Issue The issue in this case is whether the Petitioner's request to become a candidate for election to the office of County Judge while retaining his state employment should be granted or denied. The final hearing in this case was consolidated, for purposes of hearing only, with the final hearing in two related cases; namely, Case Nos. 87-5313R and 87-5437, At the final hearing all parties presented testimony and the Petitioner also offered six exhibits, all of which were received without objection. At the conclusion of the hearing, all parties agreed to a ten-day deadline for the filing of proposed orders. All parties have filed proposed orders containing proposed findings of fact and conclusions of law. The parties' proposed orders have been carefully considered during the preparation of this recommended order and specific rulings on all proposed findings are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact The Petitioner, Mr. Parsons, is employed by the Department of Health and Rehabilitative Services ("DHRS") as an "Assistant Mental Health Hospital Administrator." He is a career service employee of the State of Florida. By memorandum dated October 23, 1987, Mr. Parsons submitted a "Notice Of Intent To Run For Local Political Office." The memorandum was directed to Mr. Parsons' supervisor, Mr. Britton D. Dennis. The memorandum sought approval from DHRS and from the Department of Administration ("DOA"), described the nature of the political office Petitioner is seeking, and described the working hours of the position and the salary. In the memorandum, Mr. Parsons stated that he would not campaign on job time, and would not make use of any of the state's facilities in regard to campaign activities. He also stated his intention to request a leave of absence and that he would resign from his current position with DHRS if elected. The District Administrator of DHRS denied Mr. Parson's request for approval to become a candidate by letter dated October 30, 1987. The Administrator stated that the request was being denied ". . . because your candidacy would be in violation of Chapter 22A-13.002, Personnel Rules and Regulations, Florida Administrative Code, and Section 110.233(4), Florida Statutes." On October 30, 1987, Mr. Parsons' supervisor, Mr. Britton D. Dennis, indicated that he would deny the request for leave of absence because he felt that the position held by Mr. Parsons could not be vacant for an extended period of time. Mr. Parsons responded that he nonetheless desired to be a candidate for the local political office, and that he would not campaign on the job, nor use state facilities for campaign purposes. By letter dated November 5, 1987, the Secretary of DOA stated that she was unable to approve Mr. Parsons request because it had been denied by DHRS, and because, if elected, the duties would be performed during assigned working hours. The Secretary of DOA cited DOA Rule 22A-13.002(4)(a) and (b), Florida Administrative Code. This proceeding ensued. Mr. Parsons filed a petition challenging the denial of his request by DHRS, a petition challenging the denial of his request by DOA, and a petition challenging the validity of the DOA rules that had been cited in support of the denials. Mr. Parsons serves as the Administrator of Forensic Services at Florida State Hospital in Chattahoochee, Florida. Mr. Parsons has administrative responsibility for the day-to-day operations of the Forensic Unit. The Forensic Unit houses psychiatric patients who have been placed in the hospital in connection with criminal charges. These patients have been found incompetent to stand trial on criminal charges, have been committed as "mentally disordered sex offenders," or have been hospitalized after having been found not guilty of criminal charges by reason of insanity. Mr. Parsons answers directly to the Administrator of Florida State Hospital. Mr. Parsons supervises approximately 700 employees. Mr. Parsons has performed his job duties in an exemplary manner. He has always received the highest evaluations and he has been an innovative leader of the Forensic Unit. Mr. Parsons is seeking to stand for election to the position of County Judge in Gadsden County, Florida. The position of County Judge is a full-time position. If elected, Mr. Parsons could not continue in his employment with DHRS. He has clearly stated that if elected he would resign from his employment with DHRS. Mr. Parsons will conduct his campaign activities in such a manner as not to interfere with his employment with DHRS. If DHRS prefers, he will take a leave of absence without pay from his employment during the course of the campaign. If his supervisor does not wish for him to take a leave of absence, Mr. Parsons will conduct his campaign without a leave of absence. In either event, Mr. Parsons will conduct no campaign activities while on the job and he will utilize no state facilities in his campaign. It is possible that Mr. Parsons' job with DHRS would make it difficult for him to campaign at certain times. In the event of such conflicts, Mr. Parsons will give precedence to his job responsibilities and will forego campaign activities to the extent they conflict with the fulfillment of his job responsibilities. There are limited times during which Mr. Parsons serves as the Administrative Officer of the Day for Florida State Hospital, as well as limited times when he serves as the Administrative Officer of the Day for the Forensic Unit. During these times he is required to be in contact with the hospital by "beeper" on a twenty-four hour basis. The beeper service used by the hospital for Administrative Officers of the Day allows the officer to be contacted at any location in Gadsden or Leon County. Mr. Parsons' campaign activities would be conducted in Gadsden County only and he would be available to respond as Administrative Officer of the Day to the same extent that he and other employees who share this duty are presently available. Mr. Parsons' campaign activities would not conflict with his job responsibilities with DHRS. Indicative of his ability to conduct outside activities without interfering with his job responsibilities at DHRS is the fact that Mr. Parsons has conducted a part-time private practice of law during the past three years without any conflict with his DHRS job responsibilities. The Department of Administration has adopted rules regarding requests to run for or hold local public office. Those rules provide, in pertinent part, as follows: 22A-13.002 Statements of Policy Section 110.233(4)(a) further provides that no employee shall hold or be a candidate for public or political office while in the employment of the state unless: The employee is seeking or holding a local public office and; Such candidacy and office is authorized by the employee's agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his/her state employment. Candidacy for or holding a local public office shall be presumed to involve an interest which conflicts with an employee's state employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or local interest tends to lead to a disregard of the employee's duty as a state employee. Candidacy for or holding local public office shall be presumed to involve activities which interfere with an employee's state employment in the following instances: The office is a full-time office. Campaign or, if elected, office activities are performed during the employee's assigned working hours with the State. Campaign or, if elected, office activities will involve the use of State space, personnel, time, equipment, or supplies. In its application of the foregoing rule provisions, DOA reads those provisions in conjunction with Rule 22A-13.0031, Florida Administrative Code, regarding procedures. DOA has interpreted and applied the presumptions in the foregoing rule provisions as rebuttable presumptions, rather than as conclusive presumptions. On at least one prior occasion since the challenged rule provisions went into effect, the DOA and the DHRS granted approval for an employee of DHRS to become a candidate for the office of County Judge without requiring resignation from state employment.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services enter a final order denying the Petitioner's request to become a candidate for election to the office of County Judge DONE AND ENTERED this 19th day of February, 1988, at Tallahassee, Florida. Michael M. Parrish, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988.
The Issue The issues in this proceeding are whether the Respondent discriminated against the Petitioner on account of his race and, if so, what relief Petitioner should receive.
Findings Of Fact The Petitioner is a black male. He worked for the Respondent, Alexander Cabinet Company, for most of the eighteen years prior to May 7, 1979. At various times during that period, he was otherwise employed. He had worked continuously for the Respondent for approximately two years prior to May 7, 1979. The Respondent is in the business of constructing kitchen cabinets. The Respondent was incorporated in 1966. In its prior business form, the Respondent commenced doing business in 1947. Petitioner was employed with Respondent as a "door hanger." He was well qualified for the position and was one of the best employees in that capacity that Respondent ever had. Petitioner was terminated from his employment with Respondent on May 7, 1979. Respondent contends that he was terminated due to "insubordination." Petitioner was replaced by a white male. Petitioner's replacement was ultimately replaced by a black male. Subsequent to his termination, Petitioner filed a timely charge of discrimination with the Florida Commission on Human Relations. The Commission investigated the charges and found reasonable cause to believe that Respondent discriminated against Petitioner on account of his race. This proceeding ensued. Petitioner was compensated for his work with the Respondent on a "piece-work" basis. At the time of Petitioner's termination, most of the Respondent's black employees were paid on a piece-work basis, while most of the Respondent's white employees were paid on an hourly basis. Black employees did not receive time-and-a-half overtime pay, and black workers were required to perform extra duties for which they were not paid. Respondent refused to allow black employees to be paid on an hourly, rather than a piece-work, basis. Piece-work employees were, however, if they were diligent, able to earn as much or more compensation than workers paid on an hourly basis. At the time of his discharge, the Petitioner had a part-time job as well as his full-time job with Respondent. On Fridays, Petitioner would typically leave Respondent's shop at approximately 12 noon in order to go to his other job. The Respondent distributed its paychecks on Fridays. The Respondent, over a long period of time, gave the Petitioner his paycheck when he left the shop at midday on Friday. Approximately five weeks prior to May 7, 1979, the Respondent adopted a policy that paychecks would not be delivered until 3 p.m. on Fridays. Employees were given appropriate notice of this policy. Despite the adoption of this policy, Respondent continued to deliver Petitioner's paycheck to him when Petitioner left the shop at approximately noon on Fridays. On Friday, May 7, 1979, Respondent was having difficulty getting sufficient funds into its accounts to cover its payroll checks. When the Petitioner went to the office to pick up his check at approximately 12 noon, he was reminded by the older Robert Alexander of the new policy and was told that he could not obtain his check before 3 p.m. Petitioner left the office and returned on several occasions. On each occasion that he returned, he demanded his paycheck, and the exchanges between him and the older Robert Alexander became more heated. At approximately 2:15 p.m., the Petitioner returned to the office and requested his paycheck. Both the older Robert Alexander and the Petitioner were quite angry. The older Robert Alexander threatened Petitioner with a handgun, gave him his paycheck, and advised him that his employment was terminated. Prior to May 7, 1979, the older Robert Alexander had threatened to fire his black employees and replace them with whites. The older Robert Alexander usually carried a handgun on his person during working hours. The older Robert Alexander was known by his employees to be very competent in the use of such a gun. A white employee in a similar circumstance to the events surrounding Petitioner's discharge would not have been fired. There was testimony offered with respect to the firing of a white employee by the Respondent for insubordination unconnected with the employee's job performance. The circumstance of that termination, however, was not sufficiently similar to the circumstances surrounding Petitioner's termination to justify any finding that a white employee in a circumstance similar to Petitioner's would have been discharged. Petitioner has made diligent effort to obtain other employment since his termination by Respondent. Petitioner's income tax returns fairly reflect Petitioner's earnings for the years 1978, 1979, and 1980. During 1978, Petitioner's income, discounting income earned by his wife, was $14,096.18. Of that amount, he earned $8,085.26 from his employment with Respondent. During 1979, Petitioner's total income was $7,592.21. The difference between his total income in 1978 and 1979 resulted from his being terminated by Alexander Cabinet Company. This difference is $6,503.97. During 1980, Petitioner earned a total income of $7,911.85. The difference between Petitioner's 1978 and 1980 income resulted from his termination by Respondent. That difference is $6,184.33. No evidence was presented as to Petitioner's income during the years 1981 or 1982. It appears that his income tax returns for the 1981 calendar year had not yet been prepared at the time of hearing. No evidence was presented at the hearing as to a reasonable attorney's fee for Petitioner's counsel.
Findings Of Fact Mr. Sherman Merrill began his position at Sunland Training Center in Orlando, Florida, on March 27, 1981 as an employee of the Department of Health and Rehabilitative Services. His last day on the job was August 7, 1982. As a behavioral program specialist, Mr. Merrill is responsible for supervising subordinate staff and for the behavior programming of HRS client residents in a residential living unit at the Sunland Training Center. He develops, monitors, and implements behavioral programs which are contained in each resident's habilitation plan. These plans are designed to eliminate inappropriate behavior and teach daily living skills. Mr. Merrill's responsibilities are professional and managerial. They do not require strenuous physical activity. On August ,12, 1982 Noel F. Windsor, the Superintendent of the Sunland Center, granted Mr. Merrill a temporary leave from his responsibilities without pay pending a diagnosis and prognosis from Dr. Robert C. Mumby on Respondent's physical ability to perform his responsibilities. Respondent asserted that he was no longer able to work due to back pain. An appointment with Mr. Mumby was scheduled for Respondent on August 17, 1982. On August 11, 1982 Mr. Merrill's immediate supervisor, Ms. Sharon Blume, limited Mr. Merrill's responsibilities to eliminate lifting any weight under any circumstances including emergencies. Prior to examining Mr. Merrill Dr. Mumby requested permission to see Mr. Merrill's x-rays which had previously been taken of his back. Mr. Merrill refused the request and as a result Dr. Mumby cancelled the examination appointment. The Sunland Center then scheduled an appointment for Mr. Merrill to be examined by Dr. Bott on August 19, 1982. Mr. Merrill did not keep this appointment and it was rescheduled for August 25, 1982. The August 25, 1982 appointment was kept and as a result of that appointment Dr. Bott reported in his findings that Mr. Merrill was able to return to work with restrictions. 1/ On October 15, 1982 HRS requested Respondent to return to work on October 19, 1982. He did not appear as requested. On October 25, 1982 Mr. Windsor wrote a letter to Respondent stating that he would continue to be carried in a leave without pay status until such time as Dr. Bott has evaluated the x-rays in relation to the examination conducted on August 25, 1982. The foregoing letter was sent to Respondent by certified mail, return receipt requested. It was later returned to the Department of Health and Rehabilitative Services as unclaimed after attempts to deliver it were made on October 26 and October 30. On November 19, 1982 a copy of the October 25, 1982 letter was sent to Respondent by certified mail, return receipt requested. HRS again requested a release of Respondent's earlier x-rays for review by Dr. Bott. On December 10, 1982 Mr. Windsor wrote to Respondent a letter which stated in part: In accordance with the recommendation by Dr. Paul Raymond, your family practice physician in Cresson, Pennsylvania, we have scheduled an appointment for you with Dr. William K. Bott, Orthopedic Surgeon, 87 West Underwood Street, Orlando, Florida 32806, on Tuesday, December 21, 1982 at 10:00 A.M. As you are aware, we made an appointment for you with Dr. Bott on August 19 which you did not keep, and again on August 25, 1982. After the examination of August 25, Dr. Bott advised this agency that you were able to return to work with restrictions. He also advised us that he would re-evaluate you after reviewing your x-rays. You refused to allow Dr. Bott to make x-rays, and you also refused to authorize the release of previously made x-rays. Enclosed for your information is a copy of Chapter 22A-8 of the Florida Personnel Rules and Regulations. Please be advised that all fees for this visit will be paid by Sunland Center. Mr. Merrill did not see Dr. Bott on December 21, 1982, but was examined by him on January 4, 1983. On February 15, 1983 Mr. Merrill was told to report to work on February 21, 1983. Mr. Merrill did not report as ordered, but instead requested another leave of absence without pay. This request was denied on February 22, 1983 on which date Mr. Merrill was notified that he was absent without leave and that if he did not report to work by February 23, 1983 he would be deemed to have abandoned his position and voluntarily resigned from the career service system pursuant to Section 22A-8.02, Florida Administrative Code. Mr. Merrill did not report for work within the time allowed, three consecutive days after February 21, 1983. Mr. Windsor wrote him a letter on February 25, 1983 which stated: As you were advised in our letter of February 22, 1983, your request for an additional six (6) months leave of absence has been denied. Further, you were notified in that letter that you were to report to your work station prior to 3:15 P.M., February 23, 1983. You were examined by Dr. William K. Bott on August 25, 1982 and released to return to restricted duty. You failed to do so. You were re-examined on January 4, 1983 by Dr. Bott, and again, released to return to your Behavioral Program Specialist duties with restrictions. He indicated that you are able to perform sedentary type duties, you should not do repeated activities, repeated lifting or pulling using the lift [(sic) should be "left"] upper extremity (copy of diagnosis attached). You were advised by our letter of February 15, 1983 to return to your duties at Sunland Center, February 20, 1983 at approximately 2:00 P.M., you telephoned Living Unit 1E and left the message that you would not be reporting to work on February 21. At approximately midnight on February 20, 1983, you presented yourself on the Living Unit 1E to review the Personnel Rules and Regulations. On February 21, 1983, you presented your immediate supervisor with a request for additional leave of absence and left the facility. On February 23, 1983 at 1:50 P.M., during a meeting with your supervisors, you advised Ms. Patricia L. Gleason, Resident Life Program Supervisor, and Ms. Sharon Blume, Resident Life Unit Supervisor and your immediate supervisor, that you would not be coming to work. As you have failed to report to work for three (3) consecutive days, we must assume that you have abandoned your position with Sunland Center.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order determining that Respondent Sherman Merrill has abandoned his position in the State Career Service System as a Behavioral Program Specialist. DONE and RECOMMENDED this 16th day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 16th day of December, 1983.
