Findings Of Fact The Petitioner, Ida L. Salz, began her employment as a classroom teacher in 1942 with the Central Institute for the Deaf in St. Louis, Missouri. The Central Institute for the Deaf is a private, non-profit agency and has been such ever since its beginning in 1914. Mrs. Salz worked for the institute as a classroom teacher for eight (8) years. She moved to Florida in 1954 and began employment with the public schools in January, 1955, at which time she also became a member of the Teachers' Retirement System. When she started her employment with the Dade County School System, she completed an enrollment application form which is required of all teachers in the public school systems of Florida. The purpose of the enrollment form was to identify the member, to provide beneficiary designation, to establish the beginning date of employment and the beginning date of membership in the Teachers' Retirement System. In 1966, she inquired of the (then) Teachers' Retirement System regarding her right to purchase credit for the eight (8) years of out-of-state teaching service from Missouri. She was informed shortly thereafter by the Teachers' Retirement System (Mr. B. M. Kelley) that she would be allowed to purchase eight (8) years of credit for hem Missouri teaching time. The Petitioner received a letter from Mr. B. M. Kelley employed by the Respondent, in September 2, 1966, stating that she could make periodic personal remittances to the Teachers' Retirement System in any amount she desired. She made periodic payments to the Teachers' Retirement System and on November 28, 1977, made the final payment of the amount due to the Teachers' Retirement System representing the eight (8) years prior service credit which she was purchasing. The Petitioner retired on June 15, 1981. She thereupon made application to the Respondent for retirement benefits. The Petitioner is sixty- four (64) years of age and has been a classroom teacher since 1942. The Petitioner's husband had previously retired on April 1, 1979,and is now sixty- seven (67) years old. The Petitioner's and her husband's retirement plans were based upon their belief that her retirement benefits would be computed based upon credit for the eight (8) years out-of-state Missouri service. The Petitioner would not have retired in July of 1981 had she not been in the belief, since 1966, that she would receive credit for her eight (8) years of out-of-state service. She relied on the Division of Retirement's representation in 1966 that she would have credit for those eight (8) years out-of-state service and had computed her expected retirement benefits and personal budget based on this information. Had the Petitioner known that after her retirement benefits resulting from the eight (8) years out-of-state service would be denied, she would not have retired, since the income so generated is insufficient to adequately support her and her husband. Upon receipt of the Petitioner's retirement application by the Division, the Bureau of Retirement Calculation reviewed the Petitioner's file for compliance with the statute and appropriate rules and regulations. It determined that the eight (8) years out-of-state service was not creditable because it was in a private school. The Respondent took the position that the so-called approval given the Petitioner in 1966 to purchase the service time related to her private school teaching was a "clerical error or a oversight" by the division. In a letter of August 3, 1981, Mr. A. J. McMullian, III, Director of the division, advised the Petitioner that the out-of-state service had been erroneously allowed to her, that the contribution she had paid for it would be returned, and that she would not get retirement credit for those eight (8) years. The personnel of the Teachers' Retirement System (later the Division of Retirement) are unilaterally responsible for the investigation in 1966, which led to their determination at that time that the Petitioner was entitled to the eight (8) years out- of-state service. The Petitioner had no influence in making this determination, but has relied on it in making her retirement plans during the years from 1966 through 1981. Sometime after the Petitioner started employment in the Dade County School System, the Division of Retirements' sent a form. to the Central Institute for the Deaf in St. Louis and, either personnel of that institute or of `a state agency of Missouri, completed the form and returned it to the Division of Retirement. The form certifies that the Petitioner was employed in the school, Central Institute for the Deaf in St. Louis, Missouri, from September 1, 1940 to June, 1948. The word in the form, "public", which appears before "schools" on the form was crossed out by either the Central Institute personnel or an employee of the Missouri State Government who completed the form. Thus, the Respondent's official who read the form and made the decision that the Petitioner was entitled to eight (8) years of out-of-state service was on notice that the out-of-state service was performed at a private institution rather than a public school. The parties stipulated that the Central Institute for the Deaf in St. Louis, Missouri, is a private, non-profit school and not a public school and that their interpretation of the statute quoted below is that out-of-state service in private schools is not creditable. The Petitioner contends, however, that inasmuch as the Petitioner relied, from 1966 through 1981, upon the representation made to her in 1966 that she would be allowed credit for the eight (8) years out-of-state service and planned her retirement and budgeted her retirement income accordingly, that the State Division of Retirement is now estopped to deny her benefits based upon those eight (8) years out-of-state service.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the pleadings and arguments of the parties, the candor and demeanor of the witnesses and the evidence in the record, it is RECOMMENDED: That the Respondent, the Division of Retirement, issue a Final Order finding that the Petitioner be allowed credit for her out-of-state teaching service, and recompute her retirement benefits from the date of her retirement, allowing her such credit. DONE and ENTERED this 11th day of June, 1982 at Tallahassee, Florida. P. MICHAEL RUFF, 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 11th day of June, 1982. COPIES FURNISHED: William DuFresne, Esquire Suite 1782, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Stanley M. Danek, Esquire Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 Andrew J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration The Carl ton Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT IDA L. SALZ, Petitioner, vs. CASE NO. 81-2487 DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT, Respondent. /
The Issue The issue to be determined is whether Respondent, Joan Bannister, has violated the provisions of section 1012.795(1)(j), Florida Statutes (2011), and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e), and if so, what penalty should be imposed?
Findings Of Fact Joan Bannister is a licensed educator in the State of Florida, holding certificate number 893735. Her certificate covers biology and math, and is valid through June 2015. During the time period relevant to the Administrative Complaint, Respondent taught math at Eustis Middle School. On or about January 30, 2012, Respondent had a student in her first-period math class named B.T. B.T. came to school that morning in a tank top and a shirt. From the testimony provided, it is inferred that the shirt was worn unbuttoned, like a sweater or jacket, over the tank top, but with the tank top showing. As B.T. entered Ms. Bannister’s classroom that morning, Ms. Bannister noticed that B.T.’s stomach was showing below the tank top. Ms. Bannister asked B.T. to adjust her shirt so that her stomach would not show. B.T. pulled her tank top down as requested. The adjustment that B.T. made to her tank top resulted in a new problem: too much cleavage visible to comply with the school dress code. As B.T. and Ms. Bannister walked into the room, Ms. Bannister asked B.T. to adjust her shirt again, so that she did not show so much cleavage. B.T. did not appreciate the second request to adjust her shirt, but Respondent’s claim that B.T. engaged the class by asking them whether her shirt was too low is rejected. B.T. was, however, apparently visibly annoyed and did not think that her tank top was too low. Considering the evidence in the light most favorable to Respondent, Ms. Bannister picked up a ruler off a desk near her own and said, “well, we could always measure it.” There was conflicting testimony regarding what term Respondent used to describe B.T.’s exposed chest. Whether Respondent used the term “chest,” “cleavage,” or “boobage,” is irrelevant. What matters is that Respondent made a statement in front of the class suggesting that it would be appropriate to measure the amount of B.T.’s cleavage that was visible in order to make her point about the dress code violation. The statement was loud enough that other students in the classroom could hear it. Respondent did not actually approach B.T. with the ruler or attempt to measure her in any way. However, B.T. was very upset and embarrassed by the comment, picked up her books, and left the classroom. She did not seek permission before doing so. B.T. admitted at hearing that she never liked Ms. Bannister. However, her version of the incident is credible and corroborated in several key points by other students who were present that day. By contrast, Ms. Bannister’s testimony was internally contradictory and conflicts with the testimony of the students in many respects. B.T.’s testimony that she left the classroom immediately without getting a pass or asking permission to do so is credited. B.T. went to see Erin Porter, her guidance counselor. Initially, Ms. Porter was not in her office, so B.T. consulted with the school resource officer, Deputy King, and told him about the incident. While B.T. was in his office, Ms. Porter returned to her office and B.T. told her about the interaction with Ms. Bannister. Ms. Porter felt that the situation was more a teacher issue than a guidance issue, and reported it to administration. The school district conducted an investigation of the incident, and interviewed several students, Ms. Porter, and Ms. Bannister. Ms. Bannister was notified of the investigation by letter dated February 2, 2012. Ms. Bannister was removed from the classroom during the investigation and directed to work at the District Copy Center until a decision was reached. On February 6, 2012, Respondent was notified by the Superintendent of Schools, Susan Moxley, that Superintendent Moxley was recommending that she be suspended for five days without pay, and that she participate in a professional development practicum designed to assist teachers with classroom issues. The date of the suspension was to be determined once Respondent’s due process rights were satisfied. On February 8, 2012, Respondent was notified that the investigation was concluded and that she would return to her classroom effective February 9, 2012. B.T. was reassigned to another math class. The incident was publicized in the local community, through the internet, newspaper, and local television. Both Ms. Bannister and B.T. were embarrassed by the news coverage. B.T. was also embarrassed by the amount of attention the incident received at school, because other students talked about the incident and made fun of her. Respondent resigned from her position with the Lake County School District, effective March 30, 2012, in order to take a job in another school district. Respondent submitted her resignation with an effective date of April 6, 2012, but for reasons that are unclear, the effective date was changed to March 30, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(j) and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e). It is further recommended that Respondent be issued a reprimand; be required to complete a three-hour college-level course on classroom management; and be placed on probation for a period of one year, subject to such terms and conditions as the Commission may require. DONE AND ENTERED this 21st day of May, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2014. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399-0400 Joan Bannister 9256 New Orleans Drive Orlando, Florida 32818-9076 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to Section 112.3173, Florida Statutes (2008).
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the joint pre- hearing stipulation1 of the parties, the following Findings of Fact are made: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent, Department of Management Services, Division of Retirement (Respondent or Division), is charged with managing, governing, and administering the FRS. Petitioner, Mr. Johnson Holsberry, Jr. (Petitioner or Mr. Holsberry), was formerly employed as a teacher at the West Area School of Choice by the Palm Beach County School Board (PBCSB). By reason of his employment with the PBCSB, Mr. Holsberry became a member of the FRS. As a teacher, Mr. Holsberry was subject to the Code of Ethics of the Education Profession in Florida found in Rule 6B- 1.001, Florida Administrative Code. As a teacher, Mr. Holsberry was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. On or about December 5, 2000, Mr. Holsberry resigned his teaching position with PBCSB. On or about October 24, 2001, Mr. Holsberry was charged, by amended information, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, with one count of child abuse, a third degree felony, in violation of Section 827.03(1), Florida Statutes. The same amended information is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. The victim of the alleged crime, R.D., was a female student at the Area School of Choice. In Palm Beach County, Florida, between the dates of January 1, 1999, and December 31, 1999, Petitioner, while teaching in a position of parental responsibility, was alleged to have had contact with R.D. and to have acted in such a manner as to cause mental injury to said child. On or about October 24, 2001, Mr. Holsberry entered an agreement with the State Attorney's Office wherein he agreed to plead guilty as charged in the amended information. The same plea agreement is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF- 001185. Mr. Holsberry's guilty plea was made freely and voluntarily. Mr. Holsberry pled guilty because he was in fact guilty. On or about October 24, 2001, Mr. Holsberry was adjudicated guilty. The same judgment is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. On or about January 8, 2001, Mr. Holsberry applied to the Division for early service retirement from the FRS and began receiving retirement benefits. The Division suspended payment of Mr. Holsberry's monthly retirement benefits in June 2008. By certified letter dated June 13, 2008, Mr. Holsberry was notified of the Division's intended action to forfeit his FRS rights and benefits as a result of his guilty plea in the case styled and numbered State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. At the hearing, Mr. Holsberry testified that R.D. was in his classroom a few times, but that he was not sure of the year, frequency, or why she was there. He testified that he does not remember taking a picture of R. D. sitting at his desk, but that might have taken place. Mr. Holsberry also testified that he does not recall permitting R. D. to access her email from his classroom, or inviting her to join him on trips, to come to his home, or otherwise to meet him any place outside of the school. Mr. Holsberry testified that he does not recall giving R. D. his home telephone number. He recalls having an email screen name of Sameagle1, but does not recall whether he emailed R. D. from that email address or whether he had another screen name, Gutster. He testified that he does not recall referring to himself as H-Man (although he said some students called him "Mr. H.") or referring to R.D. as "Dukey Dufus." In general, Mr. Holsberry's testimony that he does not recall his actions that ultimately ended his career as a teacher is not credible. Mr. Holsberry noted that R.D. was not officially assigned to any of his classes, so that he was not responsible for her education, nor was he involved with her in any after school program that would have made him responsible for her welfare. Mr. Holsberry testified that he probably would not have met R.D. but for his position as a teacher at her school. He also recalled having being interviewed by an investigator named Green. Angelette Green, an employee of the Palm Beach County School District for 15 years, was the investigator assigned to Mr. Holsberry's case. Detective Green testified that Mr. Holsberry admitted that he helped R. D. set up an email account, communicated with her by email, including having sent by internet a picture of her taken in his classroom. She also testified that she remembers emails inviting R. D. to go somewhere. She said Mr. Holsberry called R. D. "Dukey Dufus" after he sent her an email and she questioned who it was from. On July 30, 2002, an Administrative Complaint was filed by the Commissioner of Education seeking disciplinary sanctions against Mr. Holsberry's license based on allegations of professional misconduct. Mr. Holsberry did not contest the disciplinary matter, having already agreed to surrender permanently his teaching certificate as a part of his plea agreement. The Education Practices Commission entered a final order permanently revoking his teaching certificate. On October 24, 2001, a plea conference was held on the following charge: Amended Information For: CHILD ABUSE In the Name and by the Authority of the State of Florida: BARRY E. KRISCHER, State Attorney for the Fifteenth Judicial Circuit, Palm Beach County, Florida, by and through his undersigned Assistant State Attorney, charges that JOHNSON LEO HOLSBERRY JR. on or between January 01, 1999 and December 31, 1999, in the County of Palm Beach and State of Florida, did knowingly or willfully, intentionally inflict physical or mental injury upon R.D., a child, {or} did an intentional act or actively encourage another to do an act that results or could reasonably be expected to result in physical or mental injury to R.D., a child, contrary to Florida Statute 827.03(1). (3 DEG FEL) At the plea conference, the following exchange occurred: [By Mr. Jaegers, Assistant State Attorney:] The defendant will be adjudicated guilty of the offense; he will be placed on five years probation. There will be no early termination contemplated. The defendant will be required to pay Court costs in the amount of $261.00, $50.00 to the Drug Trust Fund, $50.00 cost of prosecution. The defendant must undergo a psychological evaluation and successfully complete any recommended treatment. * * * The defendant is to surrender all and not seek at any time in the future any teaching certificates in any jurisdiction in the world. There will be no contact with children under 18 unless they're in the presence of an adult who is aware of these charges. And those are the terms of the negotiated settlement. The facts in this case, Judge, are that the defendant, Johnson Leo Holsberry, Jr., did in Palm Beach County, Florida, on, between the dates of January 1, 1999 and December 31st, 1999, while teaching in a position of parental responsibility, in that capacity had contact with a juvenile female by the name of, or by the initials of SRD, I think it's on the plea sheet. MR. WILINSKEY [Counsel for Mr. Holsberry] That's right. MR. JAEGERS: -- RD, and did act in a manner such as to cause mental injury to said child. The -- those are the facts that occurred in Palm Beach County. THE COURT: Sir, raise your right hand, please. JOHNSON LEO HOLSBERRY, JR. BEING FIRST DULY SWORN BY THE COURT, TESTIFIED AS FOLLOWS: THE COURT: Your name? THE DEFENDANT: Johnson Leo Holsberry, Jr. THE COURT: How old are you? THE DEFENDANT: 62 * * * THE COURT: Do you understand what the things are you have to do? THE DEFENDANT: Yes, sir. THE COURT: Are you pleading guilty because you are guilty? THE DEFENDANT: Yes. THE COURT: Do you agree with the facts the State Attorney gave me as the basis for your plea of guilty? THE DEFENDANT: Yes, sir.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 24th day of July, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2009.
Findings Of Fact At all times relevant to this matter, Respondent, Paul Meloy, Sr. (Meloy), was Volunteer Fire Chief of the Fire Protection and Rescue District for Alva, Florida. As such, he was a "public officer" of an "agency" within the meaning of Sections 112.312(2) and 112.313(1), Florida Statutes. Meloy helped to establish a volunteer fire department in the rural community of Alva, Florida in 1973. Meloy was selected as the volunteer fire chief. In 1976, the Alva Fire Protection and Rescue Service District (District) was established. The firefighting equipment and vehicles were originally located in Meloy's garage, where he maintained an automotive repair shop. Meloy received a fixed reimbursement from the District each month for the use of his garage and for repair services which he rendered for the District. In approximately 1984, Meloy took a 40-hour volunteer firefighting course and became certified as a volunteer firefighter. Full-time firefighters were required to complete a 280-hour firefighting course to become certified as firefighters pursuant to Section 633.35, Florida Statutes. Meloy never took the 280-hour course and has never been a state certified fire fighter pursuant to Section 633.35, Florida Statutes. In 1988, the District joined the State of Florida Retirement System (FRS). At that time the District employed four full-time firefighters and a part-time secretary. Meloy worked part-time as the administrator for the District, but did not draw a salary but continued to receive remuneration in the form of the monthly reimbursement for expenses. The full-time firefighters were enrolled in the FRS in 1988 as special risk members, which would allow them to retire at an earlier age than regular members of the FRS and with greater benefits. In June, 1990, Meloy was interviewed by an investigator from the Florida Commission on Ethics (Commission) concerning an Ethics Complaint unrelated to the complaint filed in the instant case. Meloy told the investigator that he was not receiving a salary from the District, but that he was receiving reimbursement for expenses. Additionally, he told the investigator that he was not certified to be a full-time professional firefighter. In 1990, Connie Bull, was employed as a part-time secretary for the District. Until the District received a letter from the Commission explaining that part-time employees should be enrolled in the retirement system, neither Ms. Bull nor Meloy was aware that part-time employees filling established positions were to be enrolled in the retirement system from the date of their employment. Ms. Bull called the Division of Retirement (Division) which is the agency responsible for administering the FRS. She talked with Ira Gaines concerning the requirement for the enrollment of part-time employees. Ira Gaines is the retirement services representative with the Division who is responsible for determining eligibility for members in the special risk plan of the FRS. Neither Ms. Bull nor Mr. Gaines recalls any discussion they may have had concerning certification requirements for enrollment in the special risk class. Ms. Bull obtained enrollment forms from the Division. She and Meloy filled out and signed the enrollment forms. The form Ms. Bull used for her enrollment was for regular membership. The form used by Meloy was for enrollment in the special risk plan. On September 22, 1990, Meloy represented on his enrollment form that he was a firefighter certified, or required to be certified, by the Bureau of Fire and Training and that he was the supervisor or command officer of special risk members whose duties included on the scene fighting of fires. Additionally, Meloy in his capacity as fire chief certified that his position meets the criteria for special risk membership in accordance with Section 121.0515, Florida Statutes, and Florida Retirement System Rules, and he was certified or required to be certified in compliance with Section 943.14 or Section 633.35, Florida Statutes. When he was completing the enrollment form, he told Ms. Bull that he knew that he was not certified. Meloy testified in his defense that when he signed the application form that he knew that he was not a certified full-time firefighter and that he knew that special risk members were required to be certified. Meloy stated that by signing the application he was acknowledging that special risk members were required to be certified not that he was certified. Having judged the credibility of Meloy, I find that Meloy's testimony is not credible. Ms. Bull sent the executed enrollment forms to the Division on October 17, 1990, with a cover letter stating that she and Meloy had worked for the District for some time on a part-time basis, but were unaware that as part-time employees they should have previously have been enrolled in the retirement system. In either 1990 or 1991, after he had executed the enrollment form, Meloy began receiving a salary from the District instead of reimbursement for expenses. In January, 1991, the District purchased back retirement benefits for Meloy from August, 1985 through June, 1988 for $4,207.97. Sometime after the enrollment forms were submitted and Meloy had been enrolled in the FRS, Ira Gaines and Meloy discussed Meloy's certification. Meloy told Mr. Gaines that he had taken a course which certified him as a firefighter. Meloy did not tell Mr. Gaines that he was a firefighter certified pursuant to Section 633.35. Meloy sent Mr. Gaines a copy of a letter dated September 16, 1991, from the Department of Insurance which stated that Meloy had held a Certificate of Competency entitled Volunteer Basic since July 11, 1984. Meloy did not qualify for special risk membership in the FRS. In May, 1992, Meloy was interviewed by an investigator for the Commission concerning the allegations in the Ethics Compliant which had been filed against Meloy. Meloy told the investigator that he knew that the enrollment application which he signed required that the employee had to have taken the 280-hour course to be eligible for the special risk class. By letter dated June 29, 1992, the Division notified Meloy that his membership in the FRS and the Florida Retirement Special Risk Class was being terminated. The grounds for termination were that Meloy had been receiving payments for expenses and not compensation and that he was not certified in compliance with Section 633.35, Florida Statutes. Meloy did not appeal the Division's decision. If Meloy had been allowed to remain as a special risk member in the FRS, he would have been eligible to draw annually at least $2,024.92 in special risk benefits beginning as early as August, 1995. There was no evidence presented that established that Mr. Meloy had anything to do with Assistant Volunteer Fire Chief Brent Golden's application, membership, or retention of any benefits from the FRS and the parties so stipulated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Paul Meloy, Sr. violated Section 112.313(6), Florida Statutes, as it relates to the allegations concerning his retirement benefits but not as to the retirement benefits of the Assistant Fire Chief, imposing a civil penalty of $2,024.92, and issuing a public censure and reprimand. DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 8th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5984EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact Paragraph 1: Accepted. Paragraph 2-4: Accepted in substance. Paragraph 5: Accepted. Paragraphs 6-7: Rejected as unnecessary detail. Paragraphs 8-12: Accepted in substance. Paragraph 13: The first, third, and fourth sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. In practice both Mr. Tiner and Meloy supervised the firefighters during on-the-scene fighting of fires. The last sentence is rejected as irrelevant to the extent that Meloy listed all the duties that he was actually performing for the fire department. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. There was no evidence presented to show that Meloy knew that the Commissioners and not he should have executed the enrollment form on behalf of the employer. Paragraphs 16-17: Rejected as subordinate to the facts actually found. Paragraph 18: Rejected to the extent that it implies that Meloy took no steps to seek help from the Division. He did direct Ms. Bull to call the Division which she did. Paragraph 19: Rejected as subordinate to the facts actually found. Paragraphs 21-22: Accepted in substance. Paragraph 23: Accepted in substance except as to the amount. 13. Paragraphs 24-25: Rejected as constituting argument. Respondent's Proposed Findings of Fact 1. Paragraph 1: Rejected as constituting a conclusion of law. COPIES FURNISHED: Stuart F. Wilson-Patton Advocate For the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 John H. Shearer, Jr., P.A. Post Office Box 2196 Fort Myers, Florida 33902-2196 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
The Issue The issue in this proceeding is whether Petitioner was convicted of specified criminal offenses, requiring the forfeiture of all his rights and benefits under the Florida Retirement System, except for the return of accumulated contributions.
Findings Of Fact From 1999 until 2017, Bautista was an employee of the Miami-Dade County Public Schools (“MDPS”). On August 24, 2017, Bautista resigned from his position as principal of the Miami Jackson Adult Education Center, an office he had held since 2011. Bautista departed shortly after being arrested on charges of organized fraud, official misconduct, and grand theft. In the criminal Information leading to Bautista’s arrest, the State Attorney of the Eleventh Judicial Circuit alleged, in summary, that Bautista had used his position as principal to misappropriate between $20,000.00 and $50,000.00 of MDPS’s funds for personal expenses, and had destroyed official payroll records to cover his tracks. On or about July 10, 2019, Bautista pleaded nolo contendere in the Eleventh Judicial Circuit Court to one count of official misconduct, a felony of the third degree pursuant to section 838.022, Florida Statutes, and to one count of grand theft under section 812.014, Florida Statutes, also a third- degree felony. The court withheld adjudication of guilt and placed Bautista on community control, to be followed by probation. In addition, Bautista was ordered to pay restitution to MDPS in the amount of $41,798.22. SBA is an agency of the state of Florida whose jurisdiction includes the administration of the Florida Retirement System Investment Plan (the “Plan”). By letter dated August 14, 2019, SBA notified Bautista that his rights and benefits under the Plan are forfeit as a result of his pleas of no contest to the aforementioned criminal charges, which had arisen from acts allegedly committed by Bautista as an MDPS employee. SBA offered Bautista an opportunity to request a formal administrative proceeding to contest the determination, and Bautista timely requested a hearing. As grounds for opposing the forfeiture, Bautista claims that his former employer, MDPS, failed to provide him due process of law during the run-up to his forced resignation. He complains, as well, that “procedural irregularities” in the criminal prosecution likewise deprived him of due process. Next, Bautista notes that he never admitted guilt and insists that he is, in fact, innocent of the charges to which he pleaded no contest. Finally, Bautista argues that he was not “convicted” for purposes of forfeiture of retirement benefits, because the court withheld adjudication of guilt on the criminal charges against him. To be sure, if Bautista was not afforded due process or was otherwise victimized by prosecutorial abuse or inadequate legal representation, as he alleges, then Bautista might have suffered an injury for which the law affords redress. But this proceeding is not the vehicle, and DOAH is not the forum, for hearing such disputes. It does not minimize the seriousness of Bautista’s allegations to recognize that, even if true, none of them changes the undisputed facts that he pleaded nolo contendere to the crimes of official misconduct and grand theft, each of which is a “specified offense” under section 112.3173(2)(e), Florida Statutes. Conviction of a specified offense results in the forfeiture of retirement benefits pursuant to the plain language of section 112.3173(3).1 Thus, the MDPS investigation and any “irregularities” in the criminal prosecution are irrelevant to the issues at hand, and the undersigned declines to make findings of fact concerning Bautista’s allegations in this regard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order determining that Joey Bautista forfeited all his rights and benefits under the Plan, except for the return of any accumulated contributions, when he pleaded nolo contendere to “specified offenses” committed prior to his retirement from public service. DONE AND ENTERED this 7th day of December, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2020. COPIES FURNISHED: Soeurette Michel, Esquire The Michel Law Firm, LLC Post Office Box 245131 Pembroke Pines, Florida 33024 (eServed) Rex D. Ware, Esquire Moffa, Sutton & Donnini, P.A. 3500 Financial Plaza, Suite 330 Tallahassee, Florida 32312 (eServed) Jonathon W. Taylor, Esquire Moffa, Sutton & Donnini, P.A. Trade Center South, Suite 930 100 West Cypress Creek Road Fort Lauderdale, Florida 33309 (eServed) Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
The Issue Whether Petitioner is "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Prior to July of 2000, Petitioner worked on a permanent part-time basis as an adult education teacher for the Miami-Dade County School Board (School Board), accumulating 7.10 years of retirement credit. On Sunday, July 2, 2000, Petitioner was hospitalized because of a "blood disorder." Since his hospitalization on July 2, 2000, Petitioner has been under a doctor's care and has not been physically able to return, and therefore has not returned, to work. Petitioner was hospitalized again in 2001 and for a third time in 2002 for the same ailment. After each visit he has made to the doctor during the time he has been out of work, Petitioner has apprised the principal of the South Dade Adult Education Center (South Dade), where he had worked before his July 2, 2000, hospitalization, of his condition. It is now, and has been at all times following his July 2, 2000, hospitalization, Petitioner's intention "to return to work upon clearance from [his] doctor." Petitioner has not been paid by the School Board during the time he has been out of work. In April of 2001, Petitioner spoke separately with a representative of the United Teachers of Dade (UTD) and with a School Board staff member concerning his employment situation. The UTD representative advised Petitioner that Petitioner "was on an approved leave of absence." The School Board staff member told Petitioner that he "should be on an approved leave of absence"; however, she was unable to "find that authorization in the computer." She suggested that Petitioner go to School Board headquarters and inquire about the matter. Petitioner went to School Board headquarters, as the School Board staff member had suggested. The persons to whom he spoke "couldn't locate the [leave] authorization either." They suggested that Petitioner contact the principal of South Dade. Taking this advice, Petitioner wrote two letters to the principal inquiring about his employment status. He received no response to either letter. During the summer of 2001, Petitioner contacted the Division to ask about his eligibility to receive retirement benefits. Lisa Skovalia, a Benefits Specialist with the Division, responded to Respondent's inquiry by sending him the following letter, dated August 22, 2001: Our records indicate that you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date. As such, you must return to active employment, to earn one additional year of service credit, before you will be vested in the Florida Retirement System and eligible for retirement benefits. I have enclosed a copy of the FRS Retirement Guide for the Regular Class for your information. Please call or write if you have any further questions. In February of 2002, Petitioner again made contact with School Board personnel and "was told that [his] name [had been] removed from the computer (school records)." In July of 2002, Petitioner wrote United States Senator Bob Graham "seeking [Senator Graham's] assistance in helping [Petitioner] get [his] retirement form Miami-Dade Public Schools." Petitioner's letter to Senator Graham was referred to the School Board's Superintendent of Schools, who responded by sending the following letter, dated August 29, 2002, to Petitioner: Your letter . . . to Senator Bob Graham was referred to me for response. A review of our records indicates that your earnings as a part-time teacher ended in July 2000. As a part-time employee, you were not eligible for a Board-approved leave of absence. You were notified by letter (copy attached) dated August 22, 2001 from Ms. Lisa Skovalia, Benefits Specialist, State of Florida, Division of Retirement, that because ". . . you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date," you would have to return to active employment and earn one additional year of service credit before being vested in the Florida Retirement System. The State of Florida Division of Retirement is solely responsible for developing rules and procedures for implementing changes in the retirement law. If you disagree with their determination, you may request an administrative hearing by sending a written request to the Bureau of Retirement Calculations, Cedars Executive Center, 2639 North Monroe Street, Building C, Tallahassee, Florida 32399. On September 12, 2002, Petitioner sent a letter to the Division's Bureau of Retirement Calculations (Bureau) "seeking [its] assistance in helping [him] get [his] retirement from Miami-Dade Public Schools." The Bureau responded to Petitioner's letter by providing him with the following Statement of Account, dated September 20, 2002: We audited your retirement account and you have 7.10 years of service through 07/2000. Please note that the vesting requirement for FRS members has been changed to 6 years of creditable service effective July 1, 2001 for those members who were actively employed on that date or on a board approved leave of absence. Former members with 6 years, but less than 10 years of creditable service who were not employed with a participating FRS employer on July 1, 2001, must return to covered employment for one year to become eligible for the six-year vesting provision. Per Maria Perez at the Miami-Dade County School Board you were not on a board approved leave of absence on July 1, 2001, nor were you eligible for a board approved leave of absence due to your position as a part time adult school instructor. Although your school may have allowed you to take a leave of absence, only board approved leaves fulfill the vesting requirements required by law. On November 15, 2002, Petitioner sent the Bureau a letter expressing the view that it was not "fair that, after all [his] efforts as a teacher, [he] should lose out [on his] retirement" and requesting "an administrative hearing concerning [his] efforts to get retirement benefits from Miami-Dade Public Schools." The State Retirement Director responded to Petitioner's letter by sending him the following letter, dated December 18, 2002: This is in response to your recent letter concerning your vesting and eligibility for retirement benefits. You currently have 7.10 years of retirement credit through July 2000, your last month of employment in a Florida Retirement System (FRS) covered position. [Section] 121.021(45)(b)1, F.S., states that "Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of 6 years of creditable service shall be considered vested. . ." An FRS employer (Dade School Board) last employed you in a regularly established position in July 2000 and you were not granted a leave of absence to continue the employment relationship. Dade School Board has informed us that as a part-time teacher, you were not eligible for an approved leave of absence. Therefore, you do not meet the statutory requirement for coverage under the six year vesting provision. [Section] 121.021(45)(b)2, F.S., provides the vesting requirement for members who were not employed on July 1, 2001, as follows: "Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001 (emphasis supplied). It is certainly unfortunate that you had to leave your employment because of your illness, but the current retirement law requires that you must return to covered employment and earn one year of service credit to be vested and eligible for retirement benefits. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-106.111, F.A.C. By letter dated January 2, 2003, Petitioner "appeal[ed]" the "final agency action" announced in the State Retirement Director's December 18, 2002, letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order finding that Petitioner is not "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2003.
Findings Of Fact Petitioner was initially employed as a non-degree teacher in Putnam County, Florida, beginning with the 1951-52 school year. During the 1952-53 school year, Petitioner attended the University of Florida where she obtained her degree. She then returned to the Putnam County school system for the school year beginning in 1953. Petitioner was a member of TRS from 1945 until her retirement in 1970, and seeks to purchase retirement credit for the 1952-53 school year in order to qualify for a 25-year pension. The issue to be determined is whether or not she was on an approved leave of absence in 1952-53, or whether she was merely reemployed in the Putnam County school system after completing her degree program. Petitioner was encouraged to obtain her degree by W.M. Thomas, who was then Superintendent of Putnam County Schools, and was advised by him that her absence would be considered an approved professional leave. Mr. Thomas subsequently corroborated this by letter. Additionally, a former school board member, Mr. Clyde Middleton, stated that Mrs. Carter was granted professional leave for this period. See Exhibit One. Mrs. Carter made no written request for the leave of absence nor do school board records reflect any consideration of this matter. However, the current superintendent has accepted Mrs. Carter's statement and those of Mr. Thomas and Mr. Middleton, and has certified approval of this leave to TRS. See Exhibit One. Respondent rejects this after-the-fact documentation and maintains that the only acceptable evidence of prior approval would be the school board minutes or other records reflecting official action by the board.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order authorizing Petitioner to purchase credit in the Florida Teachers' Retirement System for the 1952-53 school year. DONE and ENTERED this 2nd day of July, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1982. COPIES FURNISHED: Mrs. Melcene L. Carter 401 Kersey Street Hazlehurst, Georgia 31539 Stanley M. Danek, Esquire Assistant Division Attorney Department of Administration Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C--Box 81 Tallahassee, Florida 32301 A. J. McMullian, Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT MELCENE L. CARTER, Petitioner, vs. CASE NO. 82-234 DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT, Respondent. /
The Issue The issues in this case are whether Respondent, Thomas Masters, violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Amended Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based on the evidence and testimony presented at the final hearing, the following Findings of Fact are made: Background Respondent holds Florida Educator’s Certificate 743504, covering the areas of Elementary Education and Physical Education, which is valid through June 30, 2024. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, if the educator disputes the allegations in the complaint. Since 1994, Respondent has been responsible for the care and development of elementary school-aged children. He became certified to teach elementary education in Florida in 1995, and at that time began teaching physical education (P.E.) for the Archdiocese of Miami. In approximately 1999, Respondent was certified in P.E. He taught P.E. for 19 years and theology for one year. He was the Athletic Director for 18 of those 20 years. In 2015, Respondent relocated from South Florida to St. Johns County to assist with the care of his mother after his father’s passing. He taught P.E. in the St. Johns County School District (SJCSD) from 2015 through 2019. At the time of the allegations in the Amended Administrative Complaint, Respondent was employed as a P.E. Teacher at W.D. Hartley Elementary School in the SJCSD. Mr. Masters also served as the volunteer coach for the Gamble Rogers Middle School girl’s softball team, also known as the Gamble Rogers Stingrays. The SJMSAA is an independent, private non-profit corporation. SJMSAA uses district middle school names and facilities under a license agreement with the district. SJMSAA is solely responsible for the operation of the SJMSAA middle school sports programs and their individual teams. The organization’s mission is to promote community citizenship, good sportsmanship, and physical and mental development through healthy, organized competition’ and team work for 12 to 15-year-old middle school students. SJMSAA is responsible for operation of the sports programs for 13 middle school sports teams and seven different sports. Thus, all middle school students from various schools within the district may participate in sports. The sports the SJMSAA oversees are: football, baseball, softball, golf, tennis, cheer, and soccer. Middle school students J.M., H.B., and S.P. were on the SJMSAA girls’ softball team Respondent coached. Allegations in the Complaint The allegations in the Amended Administrative Complaint took place during softball practice and did not involve any of Respondent’s students at Hartley. The allegations stem from a complaint made by the mother of J.M. (softball team member). At the time of the incident, J.M. was a middle school student at Gamble Rogers and a member of the softball team within SJMSAA. She was 13 years old at the time of the incident. J.M. is now a 15-year-old high school student. On April 3, 2018, J.M. told Mr. Masters that her stomach hurt because she did not have “[any] food in her stomach.” Mr. Masters then asked other players if they had any food that he could give J.M. Since none of the players had food, Mr. Masters gave J.M. a soda from his car to help her feel better. Shortly after she drank the soda, J.M. returned to practice. Before practice, Mr. Masters told the girls that they must do push-ups if they drop the ball. While throwing the ball with her partner, J.M. dropped the ball. J.M. then positioned herself to do the push-ups. Since the push-ups were modified, her hands and knees were on the ground. J.M. testified that while doing the push-ups, Mr. Masters kicked her in the stomach and placed his foot on her back. She was confused and embarrassed because she did not expect him to kick her. J.M. didn’t say anything after the incident, but rather, she looked at Mr. Masters with a shocked facial expression. Shortly thereafter, she returned to practice. She remained in practice for the duration, which was approximately 1.5 to two hours. J.M. stated that the kick caused her stomach to hurt more, increasing the pain to 9 out of 10, with 10 being the highest level of pain. However, there was no evidence offered to establish the level of stomach pain before the incident. J.M.’s teammates, S.P. and H.B., witnessed the incident. Before practice, J.M. told S.P. that she was not feeling well. Later, during warm-ups, she was standing nearby when J.M. dropped the ball. While J.M. was doing the requisite push-ups, S.P. witnessed Mr. Masters kick J.M. in the stomach. S.P. was shocked and believed Mr. Masters’ actions were wrong. S.P. did not see Mr. Masters place his foot on J.M.’s back. H.B. did not testify at the hearing. However, she provided a written statement to described what she witnessed on the date of the incident. Similar to S.P., H.B. stated that Mr. Masters kicked J.M. in the stomach while she was doing push-ups. Although the statement is hearsay, it further explains and is corroborated by admissible evidence in this matter. S.W. arrived late to practice to pick-up her daughter, J.M. S.W. recalled that her daughter seemed as if she was not as engaged as the other team members. J.M. told her mother that Mr. Masters kicked her and placed his foot on her back while she was doing push-ups. S.W. observed that her daughter was “very upset” about the incident. S.W. believed Mr. Masters’ placement of his feet on J.M. was disrespectful. S.W. contacted the SJMSAA commissioner to report what happened to her daughter. Justin Palesotti, the President of the SJMSAA, received a complaint from S.W. that Mr. Masters had inappropriately touched her daughter. Mr. Palesotti approached Mr. Masters before a softball game and asked him about the complaint. Mr. Masters told Mr. Palesotti that he swept his foot underneath J.M. while she was doing push-ups to confirm the student had space between her stomach and above the ground. After the discussion, Mr. Palesotti asked for Mr. Masters’ resignation, and he complied. Mr. Masters disputes J.M.’s complaint. He testified that J.M. arrived at practice and she did not look well. She told Mr. Masters that she was not feeling well because she had not eaten all day. He did not have snacks and none of the other girls had snacks, so he gave her a soda that he had in his car. After giving her the soda, he gave her the option to return to practice when she could. During warm-ups he told the girls that they would need to do three push-ups if they dropped the ball. J.M. and other players had to do push-ups. When J.M. had to do push-ups she had already drunk the soda. As J.M. was doing push-ups, he was being silly to help change her mood, and “pretended to fake kick her under her stomach.” J.M. unexpectedly “came down onto his foot.” She then gave him a look to communicate, “are you kidding me?” He was not trying to harm J.M., but, rather, he was “kidding” with her to lighten her mood. His attempt to make J.M. feel better was not well received. While he acknowledged that his foot made contact with J.M.’s stomach, he denied placing his foot on J.M.’s back. Character Witnesses The allegations were a surprise to Respondent’s character witnesses who disagreed that he would kick a student. Ms. Ivey Brown, the assistant softball coach at the time, testified that Mr. Masters enjoyed coaching. She had never witnessed Respondent kick a student. Likewise, John Samuels who coached basketball with Mr. Masters for a few weeks at Hartley only observed positive interactions with students. Mr. Samuels described Mr. Masters as a compassionate coach who helped improve the player’s self-esteem. Ms. Gonzalez, another assistant coach and former player coached by Respondent, testified that Respondent was always positive and encouraged players. Even at a time when players were disciplined, including herself, he spoke to them with compassion. St. Johns County Circuit Court Judge Mathis (ret.) met Mr. Masters in 2016. Judge Mathis volunteered to help coach the basketball team, of which his grandson was a member, and observed Respondent regularly interact with the students. Judge Mathis testified that Respondent had positive interactions with students, even the students who may have been difficult. He also had a reputation for helping people. Disciplinary History Although he had favorable experiences about other students, this is not the first time Mr. Masters has been subject to allegations of inappropriate contact with students. Mr. Masters was disciplined for a prior incident in Richard Corcoran, as Commissioner of Education, Case No. 19-6071PL, (Fla. DOAH Apr. 28, 2020; Fla. DOE Oct. 7, 2020), for his actions, filed on September 16, 2020.2 Respondent was issued a reprimand, placed on probation for 12 months, and required to pay administrative costs of $150.00. Ultimate Findings of Fact Petitioner has established by clear and convincing evidence that Respondent’s foot made contact with J.M.’s stomach. While the undersigned acknowledges J.M.’s recollection of Mr. Masters placing his foot on her back, the other witnesses present did not recall this and Respondent disputes it. While the possibility exists that Mr. Masters placed his foot on J.M.’s back, J.M.’s uncorroborated statement is not sufficient, without more, to establish by clear and convincing evidence that Respondent placed his foot on her back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rule 6A- 10.081(2)(a)1., that Respondent receive a Reprimand, and that he be placed on suspension for 30 days, followed by probation for a period of 12 months following reinstatement, with conditions of probation to be determined by the Education Practices Commission. DONE AND ENTERED this 4th day of January, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2021. COPIES FURNISHED: Lisa Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Heidi B. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 2nd Floor 231 East Colonial Drive Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues in this case are whether Petitioner provided reasonable notice to Respondent of its intent to suspend without pay and terminate Respondent's employment, and whether Respondent could unilaterally resign to retire while the Superintendent's pending recommendation to terminate Respondent was before Petitioner.
Findings Of Fact Petitioner, the Sarasota County School Board, employed Respondent as a teacher and principal of Garden Elementary School in Venice, Florida, for 29 years. Respondent was employed under an annual contract throughout each year of employment, the last of which began July 1, 2002, scheduled to end June 30, 2003. In February 2002, Respondent was arrested and charged with seven counts of Sexual Battery by a Person over Eighteen (18) Years of Age upon a Child Eleven (11) Years or Younger. On March 5, 2002, Respondent was suspended with pay by Petitioner. While suspended with pay, Respondent's annual contract expired on June 30, 2002, and was renewed by Petitioner for the 2002-2003 school year. Respondent remained suspended with pay and did not perform any services for Petitioner during the 2002-2003 school year. On or about April 28, 2003, Respondent completed, but did not file, an application to retire from the Florida State Retirement System and executed a Durable Family Power of Attorney to his wife, Mrs. Cook. The power of attorney empowered Mrs. Cook to make decisions on behalf of Respondent for all personal, legal, and financial matters. On May 2, 2003, Respondent was found guilty of two counts of Sexual Battery by a Person over Eighteen (18) Years of Age upon a Child Eleven (11) Years or Younger by a jury in the Circuit Court for the Twelfth Judicial Circuit, in and for Sarasota County, Florida. Respondent was immediately taken into custody and placed in the Sarasota County Jail. Three days later, on May 5, 2003, notwithstanding Respondent's incarceration in the Sarasota County Jail, Superintendent Hamilton misdirected a certified letter to Respondent's home address, attempting to advise him of her intent to recommend to Petitioner on the following day, May 6, 2003, that Respondent be suspended without pay. Hamilton's letter further sought to notify Respondent that she intended to recommend that he be terminated from his employment at the School Board meeting scheduled for May 20, 2003, due to his recent conviction. pay. On May 6, 2003, Petitioner suspended Respondent without On the following day, May 7, 2003, Mrs. Cook received Superintendent Hamilton's certified letter dated May 5, 2003, but did not open it nor become fully aware of its contents until a later time. Respondent was and remains incarcerated. There is no evidence that he ever received actual notice of the Superintendent's certified letter of May 5, 2003. In addition to the untimely and misdirected notice, the Superintendent's certified letter failed to advise Respondent that he could contest the proposed suspension without pay. Respondent's wife credibly testified that if she had received notice of Petitioner's intent prior to the School Board's meeting of May 6, 2003, she would have attended the meeting and attempted to submit Respondent's resignation. On May 7, 2003, Petitioner mailed a follow-up letter to Respondent's home address, via standard U.S. mail, attempting to notify him that the Board had suspended him without pay. Respondent remained incarcerated and did not receive this letter. It is unknown whether Mrs. Cook ever received the letter or when she became aware of its contents. On May 9, 2003, Mrs. Cook invoked her power of attorney on behalf of Respondent and submitted his resignation from employment to Petitioner, effective immediately, in order to retire. On that day, Mrs. Cook attempted to hand-deliver Respondent's retirement/resignation letter to Petitioner's personnel office, along with Respondent's previously executed retirement papers, however, the personnel office staff refused to accept the paperwork. Instead, Mrs. Cook was immediately directed to speak with Allen Wilson, Executive Director of Human Resources and Labor Relations for Petitioner, but he was unavailable. Later that same day, Mrs. Cook met with Mr. John Zoretich, Petitioner's Director of Instruction/Curriculum. Mr. Zoretich agreed to receive Respondent's letter of resignation/retirement from Mrs. Cook, but instructed her to deliver Respondent's executed retirement papers to the payroll department. Mrs. Cook complied, but again, payroll staff refused to accept the retirement papers and instructed her to contact Mr. Wilson. Mrs. Cook's repeated efforts to communicate with Mr. Wilson were unsuccessful. Petitioner's personnel and payroll departments refused to accept Respondent's executed retirement papers due to Petitioner's pending consideration of Superintendent Hamilton's termination recommendation. The parties agree that the amount of terminal pay at issue, based upon Respondent's effective daily rate of pay, is approximately $60,000.00. On May 12, 2003, Mrs. Cook forwarded Respondent's previously executed retirement application by facsimile and U.S. Mail to the Florida Retirement System. The Florida Retirement System acknowledged its receipt in correspondence dated June 18, 2003, indicating a date of receipt of May 13, 2003, an employment termination date of May 3, 2003, and a retirement date of June 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter an order finding: Respondent has materially violated the terms of his employment contract. Petitioner has just cause to terminate Respondent's employment. Respondent's offer to resign has not been accepted by Petitioner and is ineffective until accepted or denied by Petitioner. Respondent is not entitled to terminal pay. Petitioner failed to provide Respondent with reasonable notice of its intent to consider the Superintendent's suspension recommendation at the public meeting, and Respondent was deprived his substantive right to contest the recommendation and the Board's determination. Respondent is entitled to remain on paid suspension from May 6, 2003, the date of the effective suspension, through May 20, 2003, the date of Petitioner's properly noticed public meeting to terminate him. DONE AND ENTERED this 7th day of January, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 7th day of January, 2004.
The Issue The issue for determination in this case is whether the Petitioner is entitled to purchase a retirement service credit for approximately three and one-half years pursuant to Section 121.011(3)(e), Florida Statutes. The record in this cause consists of all documents filed in this cause either with the Hearing Officer or with the Division of Retirement, including all documents received in evidence at the hearing as exhibits. After review of the record in this case, the Division accepts all the findings of fact as set forth by the Hearing Officer in his recommended order. However, the Division is unable to accept all of the conclusions of law as set forth by the Hearing Officer in his recommended order.
Findings Of Fact As a teacher with the Orange County School Board (the School Board") since 1967, Petitioner is a member of the Florida Retirement System. Petitioner was so employed in 1978 and was a member of the Florida Retirement System at that time. In January, 1978, Petitioner was on approved personal leave for her wedding. Her husband lived in Arkansas. Petitioner requested and was granted a leave of absence to join her husband in Arkansas for the balance of the school year. Petitioner and her husband intended to return to Orlando, Florida before the beginning of the next school year. Petitioner's husband intended to accept a position with a veteran's clinic in the Orlando area. Petitioner intended to resume employment with the School Board. On January 16, 1978, Petitioner properly submitted a written request for a leave of absence. The leave requested was limited to the remaining term of the school year which ended in June, 1978. The request asked for a teaching assignment in the event the request was denied. On February 14, 1993, the School Board granted Petitioner's request for a leave of absence. The School Board's written authorization was issued on a standard approval form used by the School Board for such authorizations. The one page form consisted of standard boiler plate language except for three blanks in the first paragraph stating the date of approval, the reason for the leave, and the expiration date for the leave. The boiler plate language in the standard form included the following statement: . . . A teacher who desires to return to employment at the expiration of the leave period must notify the Superintendent in writing by March 1 of the school year for which the leave was granted. . . . Petitioner notified the Superintendent in writing of her desire to return to employment. Petitioner's written request on January 16, 1978, was addressed to the School Board. The relationship of the School Board and Superintendent is that of principal and agent. Petitioner's written request expressly provided that the leave period was limited to the remainder of the school year and that Petitioner wanted a teaching assignment if the request for leave of absence was denied. The requirement for notice prior to March 1, 1978, was based on the Master Agreement, Article IX, Section L, entered into by the School Board and the teacher's union. No similar requirement appears in Respondent's rules. Florida Administrative Code Rule 60S-2.006(1)(a) requires only that: . . . A leave of absence must be authorized in writing by a member's employer prior to or during the leave of absence. Petitioner's leave of absence was authorized in writing by Petitioner's employer during her personal leave. Early in February, 1978, Petitioner telephoned Mr. Royce B. Walden, Associate Superintendent of the School Board, and informed him that she desired to return to her employment at the beginning of the next school year; in the Fall of 1978. Mr. Walden did not indicate to Petitioner that she had failed to provide timely written notice of her intent to return to employment. Later in February, 1978, Petitioner traveled to Orlando. While in Orlando, Petitioner telephoned Mr. Walden and again stated her desire to return to employment at the beginning of the next school year. The Associate Superintendent did not indicate to Petitioner that she had failed to provide timely written notice of her desire to return to employment. In May, 1988, Petitioner moved back to Orlando. Petitioner again telephoned Mr. Walden. Petitioner was informed for the first time during that telephone conversation that there may not be a teaching position available for her at the beginning of the next school year. The reason stated by the Associate Superintendent was that Petitioner had failed to notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. Petitioner immediately wrote a letter on May 25, 1978, restating her desire to return to employment at the beginning of the next school year. On the same day, Mr. Walden issued a letter to Petitioner stating that the School Board would not automatically assign Petitioner to an employment position for the 1978-1979 school year. The reason stated in Mr. Walden's letter was that Petitioner failed to comply with the requirement that she notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. On July 11, 1978, Mr. Walden issued a letter to Petitioner purporting to terminate her as an employee of the School Board. The reason given for the purported termination was that Petitioner had failed to give written notice to the Superintendent by March 1, 1978, of her desire to return to employment. The letter purporting to terminate Petitioner contained no notice of Petitioner's rights to challenge the School Board's proposed action, including the right to a proceeding under Section 120.57, Florida Statutes. After informing Petitioner of the purported termination and the reason, the letter stated: . . . Should you wish to return as an employee with the School Board of Orange County, we invite you to communicate with us in the near future. Please accept our sincere appreciation for your contribution to the educational program for children in the Orange County Public School System. 1/ Shortly after July 11, 1978, the School Board sued Petitioner for repayment of funds allegedly advanced to Petitioner for a paid sabbatical in 1973. The litigation culminated in a settlement agreement and Petitioner's reinstatement to her employment for the 1981-1982 school year with credit for nine years of service. Petitioner has been continuously employed by the School Board since that time and has maintained her continuing contract status with no loss in seniority. The settlement agreement did not pay Petitioner any back compensation and did not address Petitioner's fringe benefits, including the right to purchase the retirement service credit for the period of January, 1978 through the date of her reinstatement. Petitioner must pay the total cost of providing the retirement credit into the Retirement System Trust Fund. The economic burden of the retirement service credit falls solely on Petitioner. Petitioner's purchase of the retirement service credit will not result in any adverse economic impact on the School Board, Respondent, or the State of Florida. The proposed purchase price for the retirement service credit is sound for actuarial purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order allowing Petitioner to purchase the retirement service credit at the statutorily prescribed purchase price. RECOMMENDED this 26th day of July, 1993, in Tallahassee, Florida. DANIEL MANRY 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 26th day of July, 1993.
