The Issue Whether Petitioner violated Rules and Regulations of the Pinellas County Sheriff’s Office, 3-1.1(002), 3-1.3(066), and 3-1.3(067), and, if so, whether Petitioner should be terminated from his position with the Pinellas County Sheriff’s Office.
Findings Of Fact Based on a review of the case file, the Transcript of the final hearing, and the exhibits entered into evidence, the following Findings of Fact are found. On July 13, 2001, Dominguez was assigned to foot patrol at the K-Mart store in South Pasadena, Florida, as a community police officer. At that time he had been employed by the Pinellas County Sheriff’s Office for approximately sixteen and one-half years. On the evening of July 13, 2001, Dominguez was standing outside K-Mart talking to an employee of K-Mart, Renee Herrington (Herrington). While talking to Herrington, Dominguez observed a white van and a black sport utility vehicle (SUV) parked in front of K-Mart next to a yellow curb. The area in which the vehicles were parked was marked by a faded “no Dominguez observed the vehicles for a time and when no one moved the vehicles, he decided to cite both vehicles for parking violations. He issued a citation to the white van and then proceeded to the black SUV. The SUV had been parked in front of K-Mart by Maryellen Ruvolo (Ruvolo) while she and her niece went into K-Mart to make a purchase. Ruvolo left the vehicle running, and her sister and two nephews remained in the vehicle. Dominguez went to the rear of the SUV and began writing the ticket. Ruvolo’s sister, Eugenia Quinn (Quinn), got out of the SUV and asked Dominguez to not issue the ticket and allow her to move the vehicle. Dominguez refused her requests and gave the ticket to Quinn. Dominguez started walking in the direction of Herrington, who was sitting on a bench approximately 30 yards away from the vehicles. When Ruvolo returned to the vehicle, Quinn gave her the ticket and told her that Dominguez would not let her move the SUV. Ruvolo turned in the direction of Dominguez and shouted, “Have a nice day, you fucking fat bastard.” Dominguez turned around and went back to where Ruvolo was standing. He wanted to confront her about her comment. Ruvulo started to yell after Dominguez went up to her. He arrested her, handcuffed her, and put her in his patrol car. The charge was disorderly conduct. During the confrontation between Dominguez and Ruvolo, none of the members of the public became involved in the dispute and Ruvolo did not incite any members of the public to participate in the dispute. She never physically or verbally threatened Dominguez. Ruvolo’s actions did not invade the right of others to pursue their lawful activities. Herrington went back inside K-Mart and other members of the public were not disrupted in their entering and leaving K-Mart. Quinn asked Dominquez why he was arresting her sister and he told her that he did not get paid enough to put up with what Ruvolo had said. While he was arresting Ruvolo, Dominguez had requested assistance from another deputy sheriff, Kelvin Franklin. When Deputy Franklin arrived on the scene the confrontation was over. Dominguez asked Franklin to go inside K-Mart and get the address of Herrington, who had witnessed the incident. Dominguez did not request Franklin to take a statement from Herrington. On the way to the jail, Ruvolo apologized to Dominguez, and he told her to shut up. Prior to reaching the jail, Ruvolo stopped for a few minutes in a parking lot and met with his supervisor to get some in-service papers. When they reached the jail, Dominguez was advised that there were six persons to be processed ahead of Ruvolo. Dominguez got out of the patrol car and turned off the ignition. He did some paperwork on the trunk of his patrol car while waiting. He left Ruvolo in the patrol car without air conditioning and the windows rolled up for approximately six or seven minutes. He returned to the vehicle and turned on the ignition and waited to be called to take Ruvolo inside the jailhouse. They waited approximately 20 minutes from the time they got to the jail until they entered it. Ruvolo spent approximately five hours in jail and was required to post bail before she could be released. After arresting Ruvolo, Dominguez prepared his incident/offense report and complaint/arrest affidavit. Dominguez admitted during his testimony that neither the arrest report nor the arrest affidavit set forth facts to establish the elements for the offense of disorderly conduct, the crime for which he arrested Ruvolo. Dominguez told the Administrative Review Board (ARB) that he felt that Herrington’s peace had been disturbed. Dominguez did not talk with Herrington between the time he heard Ruvolo make her remarks to him and the time he arrested Ruvolo. When asked why he had not included any statements from Herrington in his report, he replied, “Laziness.” During the ARB hearing, Dominguez stated that he had no excuse for not completing a thorough report and detailing the elements of the crime. He acknowledged the position that he placed the Sheriff's Office in when he did not do a complete and thorough report. Ruvolo and Quinn made complaints to the Pinellas County Sheriff’s Office about Dominguez’s actions. The complaints alleged that Dominguez was rude, intimidating, and unprofessional in his behavior during the July 13, 2001, incident. Ruvolo also alleged her arrest to be false. As a result of the complaints, Sergeant Tim Pelella (Pelella) of the Administrative Investigations Division of the Pinellas County Sheriff’s Office conducted preliminary interviews of Ruvolo and Quinn. During the course of the interview, Ruvolo recognized that she would have to pursue her false arrest claim through the courts. Pellella referred the matter to the commander of the road patrol division for investigation of the non-arrest components of the complaints. The complaints were referred to Sergeant Jay Morey (Morey), Dominguez’s immediate supervisor. Sergeant Morey talked to Dominguez and Herrington, but did not talk to either Ruvolo or Quinn. Morey concluded that he would not sustain the complaint, but his conclusion was never finalized or reduced to writing. The arrest for disorderly conduct was referred to the State Attorney’s Office for prosecution. The arrest report and arrest affidavit were reviewed by Assistant State Attorney Lydia Wardell, who concluded that neither the report nor the affidavit set forth sufficient facts to prosecute the case. As a result, a No Information was filed by the State Attorney’s Office disposing of the charges against Ruvolo, stating: “The facts and circumstances revealed do not warrant prosecution at this time.” As a result of the decision not to prosecute, the Administrative Investigation Division of the Sheriff’s Office retrieved the complaints from Morey and began its investigation of the false arrest complaint. It is the policy of the Sheriff’s Office not to investigate allegations of false arrest until such time as the State Attorney’s Office makes a decision on whether to prosecute. Dominguez was notified that an investigation was being initiated. Dominguez gave a sworn statement to the investigators assigned to the case. Ruvolo and other witnesses also gave sworn statements. After the investigation was completed, Dominguez was given an ARB hearing. In accord with General Order 10-2 of the Sheriff’s Office, at least one member of Dominguez’s chain of command sat on his ARB hearing. Prior to the hearing, the ARB members are given a copy of the investigation conducted by the Administrative Investigation Division. At the hearing Dominguez was permitted to offer a statement, to respond to questions, and to present additional evidence. The ARB made the following determination: On July 13, 2001, Manuel Dominguez, #52303, while on duty in Pinellas County, Florida; did violate the Pinellas County Sheriff's Civil Service Act Laws of Florida, 89-404 as amended by Laws of Florida 90-395, Section 6, Subsection 4, by violations of the provisions of law or the rules, regulations and operating procedures of the Office of the Sheriff. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.1 (Level Five Violation), 002, relating to Loyalty, to wit: Members shall maintain their loyalty to the Sheriff's Office and it's [sic] members as is consistent with law and professional ethics as established in General Order 3-2. Synopsis: On July 13, 2001, you failed to abide by the PCSO Code of Ethics, to wit: You acted officiously or permitted personal feelings, prejudices, animosities or friendships to influence your decisions while in the performance of duty as a deputy sheriff. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (Level Three Violation), 066, relating to Performance of Duty, to wit: All members will be efficient in their assigned duties. Synopsis: On July 13, 2001, you failed to accurately document an incident that resulted in the arrest of a citizen of this county. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (Level Three Violation), 067, relating to Performance of Duty, to wit: All members will be effective in their assigned duties. Synopsis: On July 13, 2001, you effected an arrest which the State Attorney's Office could not prosecute because you were ineffective in your assigned duties. The violations resulted in a cumulative point total of 75 points. A Level Five violation is given a point value of 50 points. A Level Three violation is given a point value of 15 points. The ARB assigned a total of 25 points for the two Level Three violations and 50 points for the Level 5 violation. There were no previous discipline points added. The discipline range for 75 points is from a ten-day suspension to termination. The ARB recommended the maximum penalty of termination. General Order 10-2 of the Pinellas County Sheriff’s Office deals with disciplinary procedures. It provides that the termination procedure to be followed is the same as that of a member who is suspended without pay with certain additional procedures. Only the sheriff has the authority to terminate a member of the Sheriff’s Office. A member can only be terminated “subsequent to an Administrative Investigation Division investigation supported by findings and disciplinary action recommended by a Administrative Review Board, and at the instruction of the Sheriff” that the member be terminated. At the time that the ARB made its recommendation that Dominguez be terminated, Rice, the Pinellas County Sheriff, was out of the state. He had discussed Dominguez’s disciplinary case with Chief Deputy Coats (Coats) prior to leaving the state. Rice had specifically authorized Coats to impose discipline, including termination, upon Dominguez that was consistent with the ARB’s recommendations. Coats advised Rice of the findings and recommendations of the ARB. Rice told Coats that he had no problem with terminating Dominguez. Coats signed the inter- office memoranda for Rice, advising Dominquez of the findings and recommendations of the ARB and advising of the decision to terminate Dominguez from employment with the Sheriff's Office. Coats was instructed by Rice to terminate Dominguez. In his deposition, Rice stated that Dominguez should have been terminated and that it was his decision to approve Dominguez's termination. Dominguez did not know the elements of the offense of disorderly conduct when he arrested Ruvolo. He felt that he could arrest her for her inappropriate comments to him. At the final hearing, Dominguez admitted that based on his long career in law enforcement that he should have known what constituted disorderly conduct. Dominguez was insulted by Ruvolo's name-calling and felt that her words were a challenge to the uniform of a deputy sheriff. Dominguez allowed his personal feelings to influence his decision to arrest Ruvolo.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of Pinellas County Sheriff's Office enter a Final Order finding Manuel R. Dominguez guilty of violating the Rules and Regulations of the Pinellas County Sheriff's Office as set forth in September 27, 2001, inter-office memorandum and upholding the termination of Manuel R. Dominguez from his employment as a deputy sheriff with the Pinellas County Sheriff's Office. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. _ SUSAN B. KIRKLAND 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 1st day of April, 2002. COPIES FURNISHED: William M. Laubach, Esquire Pinellas County Police Benevolent Association 14450 46th Street, North Suite 115 Clearwater, Florida 33762 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34756 Keith C. Tischler, Esquire Powers, Quaschnick, et al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background On July 15, 1992, respondent, Department of Health and Rehabilitative Services (HRS), issued a document entitled "Solicitation of Offers For Legal Service Contracts-Child Support Enforcement Program" inviting legal firms or attorneys to submit proposals for providing legal services and representation of HRS in matters involving child support enforcement cases throughout the State of Florida for a nine-month period beginning on October 1, 1992, and ending on June 30, 1993. Although the solicitation was for services in all counties of the State, this case involves only the solicitation of services for representation in those counties within HRS District II that comprise the Second Judicial Circuit (Circuit). They include Franklin, Gadsden, Jefferson, Leon, Liberty and Wakulla Counties. The solicitation provided that three contracts would be awarded within the Circuit, one for Gadsden and Liberty Counties, the second for Leon and Jefferson Counties, and the third for Franklin and Wakulla Counties. The solicitation called for written offers to be filed with the HRS District II office in Tallahassee by August 17, 1992, and for all such offers to be opened the following day. Thereafter, the offers would be evaluated by a review committee whose role was to make a recommendation to the District II administrator. The administrator would then have the responsibility of making a "final decision" to accept an offer and award a contract with an anticipated award date of September 1, 1992. Finally, in paragraph XVIII of the document, HRS reserved the right "to reject any or all offers received, or to cancel this solicitation, regardless of evaluation, if it is determined to be in the best interest of the department." A total of seven law firms in the Circuit filed proposals in response to the solicitation. They included petitioner, Smith and Thompson, P.A., and intervenor, Knowles and Randolph, both of whom are minority firms located in Tallahassee, Florida. Petitioner and intervenor filed proposals for each of the three pairs of counties within the Circuit although intervenor's proposal for Gadsden and Liberty Counties was technically nonresponsive and was therefore not considered. Both petitioner and intervenor have previously provided services for HRS under similar contracts and both are considered to be technically competent to perform the work. By certified letters dated September 2, 1992, HRS advised each of the law firms filing proposals that it had decided to reject all offers and instead to implement a pilot program to provide in-house legal services in the Second Judicial Circuit. No other explanation was given. The letter granted each firm a point of entry to contest that decision. Thereafter, petitioner and intervenor timely filed notices of intent to protest the decision. However, by letter dated September 10, 1992, HRS advised petitioner and intervenor that its prior letter was in error and that instead "the decision of the department to reject all the responses to our recent solicitation of offers for the 2nd Judicial Circuit cannot be the subject of a protest". Even so, on September 18, 1992, petitioner filed a written protest and request for a hearing. This request was ultimately forwarded by HRS to the Division of Administrative Hearings (DOAH). On November 10, 1992, intervenor was authorized to participate herein as a party. In its order of October 27, 1992, transmitting the request for hearing to DOAH, HRS stated in part that: Since there was no bid award ... there can be no protest of an award. Neither can a right to a bid protest proceeding be created by mistake, whether by HRS or otherwise.... Simply put, no bid protest can be permitted under these circumstances. The action of the agency in rejecting all offers and deciding instead to provide legal services through in-house employees rather than through contract attorneys is agency action as that term is understood in the context of Chapter 120. Petitioner may be entitled to a determination as to whether or not that action was an appropriate exercise of agency discretion. For this reason the pleading filed by petitioner (bid protest) will be considered to be a request for an administrative hearing under the provisions of Section 120.57(1), Florida Statutes, for the purpose of testing that determination. Prior Contracts for Child Support Services To place this controversy in perspective, it is necessary to review certain events surrounding the award of the contracts in prior years. Petitioner, or individual members of the firm, had held the HRS contract to provide child support enforcement services in Leon and Gadsden Counties during the years 1979 to 1989. The firm is considered to be competent and reliable and was characterized by one District employee as being the "best" of all contract firms in the state. In May 1989, HRS solicited proposals for the following fiscal year and in July 1989 received three proposals, including ones from petitioner and the law firm of Welch, Munroe and Whitley (WMW). In September 1989, the contract was awarded to WMW. It is fair to draw an inference that because Whitley was a former law partner and roommate of the Governor's general counsel, Munroe's wife was the Governor's chief cabinet aide, and an HRS employee had helped the firm complete its bid package, there may have been some favoritism in awarding the contract to that firm. The contract ran from October 1, 1989, through June 30, 1990. Because of problems by WMW in fulfilling the terms of the contract, the contract was terminated by HRS in April 1990. By then, Whitley had become a member of another Tallahassee law firm, Barrett, Bajoczky, Hoffman and Harper (BBHH). Just prior to terminating the contract, HRS found a serious backlog of cases and knew that, in order to process this backlog, an experienced law firm would have to provide the services for the remainder of the contract year. Accordingly, HRS requested that petitioner provide such services. At the same time, however, the HRS program administrator insisted that, as a condition to receiving the contract, petitioner must sign a joint venture agreement with BBHH wherein it agreed to share its fees with that firm because of Whitley's association. Petitioner reluctantly agreed to do so and executed such an agreement on May 7, 1990. The contract was then awarded to petitioner. Under the terms of the agreement, petitioner was obligated to give 26% of total attorney and paralegal fees to BBHH in return for BBHH providing "secondary legal services required by the child support contract". During the remainder of the contract, all warrants were issued to petitioner who deposited the warrants and then issued a check to BBHH pursuant to their agreement. As it turned out, however, BBHH was never sent any case files and performed no work under the contract to earn its fees. Recognizing that it could obtain the new contract for 1990-91 only by continuing to split fees with BBHH, petitioner made a "business decision" to submit a joint response with BBHH to the new solicitation. The previously executed joint agreement remained in effect. In July 1990, a proposal for the contract year 1990-91 was filed in the name of both firms, and the contract for Leon and Gadsden Counties was thereafter awarded to petitioner and BBHH. Petitioner submitted invoices for work performed to HRS and all warrants were thereafter issued by HRS in the names of both firms. However, after obtaining BBHH's endorsement, the checks were deposited in petitioner's bank account, and petitioner then issued a check to BBHH. Although BBHH was supposed to provide "secondary legal services" to earn its 26% of fees, the firm was never sent any case files and it performed no services during the year. Even so, petitioner was obligated to pay $80,000 to BBHH pursuant to their agreement. It should be noted, however, that petitioner exceeded the goals established by HRS under the contract and performed all work in a competent and professional manner. Further, there is no evidence that HRS paid more than was required for the services performed by petitioner. Rather, petitioner's income was reduced by the amount of payments made to BBHH. Petitioner has never taken any legal action against BBHH for failing to perform under the contract. When BBHH declined to perform any work under the contract, petitioner began voicing oral (but no written) complaints about its arrangement to various HRS personnel, all at the District program administrator level or lower, but received no help. It was told by one District employee that he was sorry but it was something they would have to live with given the circumstances. When a new administration took office in January 1991, which was midway through the contract year, petitioner again complained and eventually its complaints caught the ear of the new Governor's inspector-general. It also asked that the joint contract be terminated. After an investigation was conducted by the inspector- general, in which petitioner fully cooperated, a highly critical report was issued on May 29, 1991, and the HRS program administrator was immediately terminated from employment. The matter was then referred to the Federal Bureau of Investigation (FBI) for possible federal criminal violations, and thereafter the FBI launched an investigation of the contracts. The federal investigation still remains pending. Although petitioner is not now a target or subject of the investigation, it was once a subject of the investigation and is still a part of the overall investigation. In addition, its members have been given use immunity for their testimony. There has also been fairly widespread newspaper coverage of the investigation, and it is fair to say the investigation gained some public notoriety. Even so, petitioner was allowed to complete the contract year and since July 1991 has continued to provide services for HRS in Leon and Gadsden Counties under an interim contract scheduled to expire on December 1, 1992. Post-1991 Events Leading Up to the 1992-93 Contract As early as the spring of 1991, the HRS Secretary had recommended to the Governor that HRS be allowed to consider an in-house program as an alternative to using contract attorneys. There was also a desire to make the competitive process more cost-effective, free of political considerations, and open to minority participation. This desire was reinforced by the findings in the inspector-general's report. In December 1991 the Governor first expressed an interest in HRS conducting an in-house pilot program and to compare the results of that program with the results being obtained under the various contracts. This interest was founded at least in part on financial considerations since the program involves total annual federal and state expenditures of more than $18 million. At the direction of the Governor and HRS Secretary, in January 1992 a blue ribbon committee began exploring the possibility of HRS performing legal services in-house, and, as noted previously, to develop a new solicitation that was more cost-effective, competitive, free of conflict of interest, and open to minority participation. However, due to a press of time, the committee was unable to sufficiently study the in-house issue so as to incorporate that into the 1992-93 solicitation. Even so, there were on-going, informal discussions by various HRS personnel, including the Secretary, regarding an in-house pilot program prior to the solicitation of offers in dispute here. Further, based on several conversations with the Governor, the Secretary was under the impression that the Governor was "adamant" about implementing such a program. HRS often uses District II as a location for pilot programs because of its proximity to the Tallahassee headquarters and its ideal urban-rural mix. In addition, the Second Judicial Circuit is the only judicial circuit wholly within District II. This meant that HRS would be dealing with only one "set" of judges and thus better results could be obtained in a pilot study. Finally, the excellent work rendered by petitioner on prior contracts provided a good point of comparison for a pilot program. The Evaluation Process After the proposals were filed, on August 18, 1992, an HRS evaluation committee opened the proposals and began its evaluation. The proposals were evaluated on both a technical and cost (but not ethical) basis, and a total score was given to each bidder. Pursuant to the terms of the solicitation, the firm with the highest score would be ranked first. The evaluation committee was made up of four District II employees. After reviewing the proposals, the committee voted to recommend that petitioner be awarded the contracts for all six counties since petitioner's proposals had a higher total score than those submitted by the other firms. Intervenor was ranked second in Leon, Jefferson, Franklin and Wakulla Counties. However, its proposed cost was around 25% higher than that of petitioner. The rankings and scores are reflected on petitioner's exhibit 5 received in evidence. The committee's recommendation, including those for the other counties within the District, was reduced to writing in the form of a report and was given to Dr. John M. Awad, District II administrator. On August 27 and 28, 1992, or after the committee report was prepared, meetings were held in the HRS general counsel's office regarding the contract in issue. Four HRS lawyers attended the meeting. There was a concern over the fact that even though petitioner was the highest ranked contractor, it was a part of the FBI investigation. In addition, one attorney represented to the others that he had been told by the Governor that the contract should not be awarded to petitioner because of that investigation and the Governor's desire to implement an in-house program. The same attorney expressed the view, although unsubstantiated, that petitioner may have had inside information in preparing its proposal. Accordingly, the attorneys discussed alternatives available to the agency in the event it decided not to award the contract to petitioner. One attorney concluded that the agency would not be able to give a valid reason for refusing to award the contract to petitioner, the highest ranking contractor, and thus it should reject all offers and go with a pilot program. Accordingly, it may be inferred that HRS legal counsel's subsequent recommendation to reject all bids was based primarily on legal counsel's inability at that point in time to articulate a valid reason for rejecting petitioner's proposal. These concerns were then presented to Dr. Awad. After he received the committee's recommendations, Dr. Awad awarded contracts for all counties except those within the Circuit. As to those counties within the Circuit, he did not sign off on the recommendation and execute a contract since he says he desired to first ascertain whether the agency intended to implement an in-house pilot program within the Circuit. Although he did not say so, it can be inferred that Dr. Awad's decision to not award the contract was based at least in part on his conversations with District counsel and his awareness that the top bidder was associated with contracts under active federal investigation. Accordingly, he called a meeting for Tuesday, September 1, 1992, to address this issue at the District level. Also, on August 31, 1992, Dr. Awad instructed Mr. William J. McEvoy, the District program administrator, to prepare cost figures for doing an in-house pilot program in the Second Judicial Circuit. This was the first knowledge that Mr. McEvoy had that HRS was considering a pilot program for the 1992-93 contract year. Using information derived from the various proposals as a benchmark, Mr. McEvoy developed a proposed first year cost based on the assumption that HRS could perform the work by hiring three staff attorneys and six support staff. This study, which was prepared over the course of an afternoon, was then given to Dr. Awad on September 1, 1992. It reflected an annualized cost in the first year of $402,599.00 but projected lower costs in the following years. These costs approximated or were slightly lower than the costs proposed by petitioner and were 25% lower than the next highest bidders. However, until the pilot program is actually run, a true comparison of costs cannot be made. A second meeting concerning the contract was held on September 1, 1992. Attendees were Dr. Awad, the HRS Secretary, four HRS staff attorneys, and perhaps an HRS assistant secretary. At that time, a concern was expressed to the Secretary that petitioner was a part of an investigation by the FBI. One HRS attorney advised the participants that, because of the pending investigation of the HRS contracts and petitioner's association with those contracts, and a desire to implement an in-house program, the Governor did not wish the contract to be awarded to petitioner. The participants also discussed the cost and feasibility of implementing an in-house program, the time frame for doing so, and the perameters of the program. At that point, the driving force to go in- house with the services was the fact that the highest ranking contractor was associated with prior contracts being investigated by the FBI. A decision was then made by the Secretary to reject all proposals, withdraw the solicitation, and implement an in-house pilot program within the Circuit beginning on December 1, 1992. As stated by him at hearing, the Secretary rejected petitioner's offer because of his concern with not only the contractor's integrity, but also the integrity of the process as a whole. More specifically, he was concerned with the fact that $80,000 of state funds had been paid to BBHH for doing no work and he questioned the propriety of awarding a contract to a firm under active investigation by the FBI. The associated decision to reject all offers and initiate a pilot program was premised on the notion that (a) the second highest ranking firms submitted proposals having substantially higher costs than petitioner, (b) projected first year in-house costs were equal to or less than that proposed by petitioner, and (c) the Governor had asked that an in-house program be given priority. Accordingly, the Secretary decided to reject all bids and withdraw the solicitation of offers. It is noted that under paragraph 10.b., Part 74, Appendix G of Chapter 45, Code of Federal Regulations, HRS is required to give consideration to the "contractor integrity" in making an award. Thus, even though HRS did not correlate its concern over the contractor's integrity with the above federal regulation until this point in the process, the reliance on the regulation as a reason to reject a contractor was still valid and appropriate. In other words, since there was always a concern with the federal investigation, the fact that HRS did not initially discover that a federal regulation supported its theory was not a fatal flaw in the decision- making process. Finally, the undersigned has rejected as being unsubstantiated the contention by petitioner that an HRS attorney favored another contractor obtaining the award and thus improperly influenced the agency's decision. Is the Solicitation a Bid? The contract in question is funded primarily with federal funds and is thus subject to relevant federal regulations, one of which requires that the contract be awarded through a competitive process. Therefore, even though HRS is exempt from the competitive sealed bid and proposal requirements of Chapter 287, Florida Statutes, when procuring outside legal services, the federal regulations require a competitive process. Accordingly, in soliciting offers from law firms, HRS was obliged to use a competitive process akin to that required under chapter 287. In that vein, it prepared a document which called for sealed competitive bids (offers) from prospective contractors, provided for a competitive evaluation and ranking by an independent committee, and further provided that the contract would be awarded to the highest ranking contractor. In addition, paragraph IX of the solicitation of offers provided that in the event a participant wished to file a protest to an award, it must do so within seventy-two hours after receiving "notice of contract award or intended contract award" and must then file a "formal written notice of protest" within ten days thereafter. The same document also provided that if protests were filed, the agency would seek to informally resolve the dispute within seven calendar days, and if a protest was not resolved by mutual agreement, the protestant was entitled to a formal hearing before DOAH. These procedures essentially track the procedures for resolving bid disputes that are codified in Subsection 120.53(5), Florida Statutes. Therefore, the undersigned has rejected the contention by HRS that the process used herein does not fall within the ambit of a bid dispute.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by respondent dismissing the protests of petitioner and intervenor. DONE AND ENTERED this 17th day of December, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 17th day of December, 1992. APPENDIX TO RECOMMENDED ORDER CASE NO. 92-6440BID Petitioner: 1. Partially adopted in finding of fact 1. 2. Rejected as being unnecessary. 3-4. Partially adopted in finding of fact 10. 5. Partially adopted in finding of fact 17. 6. Partially adopted in finding of fact 13. 7. Partially adopted in finding of fact 2. 8-11. Partially adopted in finding of fact 5. 12. Partially adopted in finding of fact 12. 13-14. Partially adopted in finding of fact 13. 15. Partially adopted in finding of fact 2. 16-18. Partially adopted in finding of fact 13. 19. Rejected as being argument. 20. Rejected as being irrelevant. 21-24. Partially adopted in finding of fact 14. 25. Rejected as being irrelevant. 26-27. Partially adopted in finding of fact 14. 28. Partially adopted in finding of fact 15. 29. Rejected as being contrary to the evidence. 30-32. Partially adopted in finding of fact 15. Partially adopted in finding of fact 16. Rejected as being irrelevant. Partially adopted in finding of fact 10. Partially adopted in finding of fact 15. 37-42. Partially adopted in finding of fact 3. 43. Rejected as being unnecessary. 44. Partially adopted in finding of fact 3. 45-48. Partially adopted in finding of fact 5. 49. Partially adopted in findings of fact 5 and 6. 50-57. Partially adopted in finding of fact 6. 58-62. Partially adopted in finding of fact 7. 63-71. Partially adopted in finding of fact 8. 72. Rejected as being uncorroborated hearsay. 73-74. Partially adopted in finding of fact 8. 75. Partially adopted in finding of fact 3. 76-77. Rejected as being irrelevant. 78. Partially adopted in finding of fact 12. 79. Partially adopted in finding of fact 16. 80. Partially adopted in finding of fact 2. Respondent: 1-3. Partially adopted in finding of fact 1. 4. Rejected as being unnecessary. 5. Partially adopted in finding of fact 2. 6-8. Partially adopted in finding of fact 11. 9-10. Partially adopted in finding of fact 16. 11. Rejected as being unnecessary. 12-14. Partially adopted in finding of fact 12. 15. Partially adopted in finding of fact 1. 16. Rejected as being unnecessary. 17-18. Partially adopted in finding of fact 1. 19-21. Rejected as being unnecessary. 22. Partially adopted in finding of fact 13. 23-32. Partially adopted in finding of fact 16. 33-37. Partially adopted in findings of fact 9 and 10. Partially adopted in finding of fact 16. Partially adopted in finding of fact 10. Partially adopted in finding of fact 11. Partially adopted in finding of fact 16. Partially adopted in finding of fact 11. 43-44. Partially adopted in finding of fact 16. 45. Rejected as being unnecessary. 46. Partially adopted in finding of fact 3. 47-57. Partially adopted in finding of fact 5. 58. Partially adopted in finding of fact 7. 59-62. Partially adopted in finding of fact 6. 63. Partially adopted in finding of fact 7. 64-65. Partially adopted in finding of fact 8.. 66-78. Partially adopted in finding of fact 7. 79-83. Partially adopted in finding of fact 8. 84. Partially adopted in finding of fact 9. 85-87. Partially adopted in finding of fact 8. Partially adopted in findings of fact 15 and 16. Partially adopted in finding of fact 8. Partially adopted in finding of fact 13. Rejected as being unnecessary. 92-93. Partially adopted in finding of fact 17. 94. Partially adopted in findings of fact 16 and 17. 95-96. Partially adopted in finding of fact 2. 97. Partially adopted in finding of fact 16. 98-99. Partially adopted in finding of fact 2. 100-101.Partially adopted in finding of fact 13. Partially adopted in finding of fact 15. Rejected as being unnecessary. Partially adopted in finding of fact 8. 105-106.Rejected as being unnecessary. 107. Rejected as being cumulative. Note - Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, not supported by credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John S. Slye, Esquire Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 W. Crit Smith, Esquire 1530 Metropolitan Boulevard Tallahassee, FL 32308 Harold M. Knowles, Esquire 528 East Park Avenue Tallahassee, FL 32301 Susan P. Stephens, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, FL 32399-1050
The Issue The issue presented is whether Petitioner was a supervisory employee as defined by Section 110.205(2)(x), Florida Statutes (2001), and was therefore properly reclassified from Career Service to Selected Exempt Service effective July 1, 2001.
Findings Of Fact Petitioner became employed by the Commission as an Engineering Supervisor in 1984, and held Select Exempt status prior to 1991, when he was reclassified to a Career Service employee. From 1997 until his retirement, he held Position No. 00168, titled “Utility Systems/Communications Engineer Supervisor.” The first paragraph of his October 1, 1997, Position Description states: This is work supervising engineers in the Bureau of Economic Regulation. The primary duty of the employee in this position is to spend the majority of time communicating with, motivating, training and evaluating employees, planning and directing their work; and having the ability to effectively recommend to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline subordinate employees. The October 1, 1997, Position Description was in effect at the time Petitioner was reclassified to Select Exempt following enactment of the Service First Initiative. Following the decision of the District Court of Appeal in Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (1st DCA 2003), Petitioner was notified of his right to seek an administrative hearing for the purpose of challenging his reclassification. Petitioner timely requested a hearing on August 13, 2003. Petitioner does not dispute the supervisory nature of the job outlined in the Position Description. He claims that despite his Position Description, his position was not truly “supervisory” as a practical matter and thus did not fit within the authorized grounds for reclassification under Section 110.205(2)(x), Florida Statutes (2001). The Position Description alone is not controlling, because it is possible the actual nature of Petitioner’s job changed and the Position Description had not been amended to reflect that. It is therefore appropriate to look behind the Position Description to see whether the actual duties expected of Petitioner were supervisory in nature. To support his claim that his responsibilities had “eroded” to the point they were no longer supervisory in nature, Petitioner points to the hiring of several individuals to work in the section for which he was responsible. Several individuals (Ed Fuchs, Ted Davis, Gerald Edwards, and Jeanette Sickel) were hired to work under Petitioner by the Commission. Petitioner objected to the hiring of some of those persons on the ground that they lacked qualifications, educational and otherwise, for their positions, but they were hired nevertheless. Another individual, Wetherington, was hired with Petitioner’s assent after interviewing with Petitioner and the Bureau Chief. Once the individuals were hired, they worked under the supervision of Petitioner. He was responsible for approving their time sheets, conducting their annual evaluations, approving travel and leave requests, and training. Petitioner was responsible for assigning the work to employees Sickel, Munroe, Davis, Edwards, and Wetherington, and for monitoring its quality. It was Petitioner who the Commission held responsible for the work product of the section. Petitioner directed the manner in which the employees performed their work on a day-to-day basis. Petitioner answered to Marshall Willis, Bureau Chief of Rate Filings. Willis was responsible for evaluating Petitioner’s performance on the basis of how well Petitioner managed the performance of employees under Petitioner’s supervision, and Petitioner was rated and held accountable to communicate, train, direct, and assign work to subordinate employees assigned to him. Petitioner’s evaluation by Mr. Willis dated December 8, 2000, notes that Petitioner must put forth greater effort in reviewing the work of his engineering section and in improving the analysis reflected in written recommendations. Similar issues had been raised in an earlier evaluation. In response to a November 1998, evaluation of his performance by Mr. Willis, Petitioner acknowledged deficiencies in the performance of his engineering section, and provided assurance that he would “strive to do a better job of supervising my staff” in the future. At all pertinent times, Petitioner’s position was not of a routine, clerical, or ministerial nature, and did require the application of judgment. Petitioner had a significant role in personnel administration, as he served as the officer trusted by the state to verify the hours worked, to direct the amount and quality of work performed during those hours, and to be held accountable for the collective performance of the employees in the engineering section. Petitioner did lack the ultimate authority to hire and fire personnel, but that does not make his role in personnel administration insignificant. While hiring and firing are indeed important decisions, in state government the ultimate authority to hire and fire always resides with the agency head or office head. The bulk of the day-to-day management of personnel does not consist of hiring and firing, but rather of assigning the work and monitoring its successful completion. In addition to the expectations set out in the Position Description, the course of conduct and of communications received from his Bureau Chief establish that supervisory responsibility was in fact a requirement of Petitioner’s position. Petitioner was actually expected to spend a majority of his time communicating with, motivating, and training employees, and planning and directing their work. The clearly established expectations for Petitioner’s position would place upon the incumbent the responsibility for making effective recommendations for hiring, transfer, suspension, layoff, recall, promotion, discharge, assignment, reward, or discipline of subordinate employees. The instances of other Commission officials declining to follow Petitioner’s recommendations regarding hiring reflect the officials’ lack of satisfaction with the way Petitioner was carrying out those supervisory responsibilities, not an acknowledgement that those responsibilities do not exist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Public Service Commission enter a final order that Petitioner’s position was properly reclassified as Selected Exempt Service. DONE AND ENTERED this 18th day of December, 2003, in Tallahassee, Leon County, Florida. S S. SCOTT STEPHENS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2003. COPIES FURNISHED: Robert J. Crouch 245 Pond Court Havana, Florida 32333 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32302-1906 Christiana T. Moore, Esquire Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Blanco Bayo Director of Records and Reporting Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Richard D. Melson, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue Whether the suspension of the Petitioner Nelson was based on just cause.
Findings Of Fact Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed. 8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.
Recommendation Sustain the decision of the Respondent University of Florida. DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen T. Nelson 227 N.W. 7th Avenue Gainesville, Florida 32611 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611 Mrs. Dorothy Roberts Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
The Issue The issue presented is whether certain personnel policies of the Department constitute unpromulgated rules.
Findings Of Fact Petitioner was employed by the Department of Health and Rehabilitative Services, the Department of Health's predecessor agency, on July 15, 1994. When she was dismissed from her employment by the Department of Health on May 18, 1998, she was a permanent career service employee. Petitioner appealed that dismissal to the Public Employees Relations Commission. Her appeal is still pending but was stayed so that Petitioner could pursue this action. Petitioner was dismissed for allegedly violating the following standards for disciplinary action, which apply to all Department employees. 9. Violation of Rules, Regulations or Policies. An act which results in an unintentional violation of a rule, regulation or policy that has been made known to the employee. First Occurrence. Oral reprimand to written reprimand. Second Occurrence. Suspension of up to 10 days. Third Occurrence. Dismissal. 26. Negligence. The failure to use ordinary or reasonable care in, or the omission of or inattention to, the performance of assigned duties or responsibilities. Negligence is synonymous with carelessness and signifies lack of care, caution, attention, diligence or discretion. Failure to provide direct client care or custody. First Occurrence. Written reprimand to dismissal. Second Occurrence. Ten-day suspension to dismissal. Third Occurrence. Dismissal. 29. Conduct Unbecoming a Public Employee. Conduct, whether on or off the job, that adversely affects the employee's ability to continue to perform his current job, or which adversely affects the department's ability to carry out its assigned mission. First Occurrence. Written reprimand to dismissal. Second Occurrence. Ten-day suspension to dismissal. Third Occurrence. Dismissal. 34. Failure to Report Client Abuse to the HRS Abuse Registry. Failure to report to the HRS Abuse Registry any mistreatment, abuse, neglect, or exploitation of a client immediately upon becoming aware of such treatment. First Occurrence. Suspension of up to 30 days to dismissal. Second Occurrence. Dismissal. The dismissal letter acknowledged that Petitioner's alleged violation of each of these standards was a first occurrence. These standards have not been promulgated as rules pursuant to Section 120.54(1), Florida Statutes. The Department has delegated authority to impose disciplinary action to over 100 various administrators throughout Florida. Each of those administrators exercises that authority over the Department employees within that administrator's unit or division. The Department does not have a policy or practice which requires dismissal of any employee suspected of not reporting abuse. Each situation is reviewed on a case-by-case basis. The application of the Department's standards for disciplinary action is subject to administrative discretion. Although the Department's Tallahassee office renders assistance and advice to the individual unit or division considering disciplinary action against a Department employee, when requested, the Department's Tallahassee office does not make the decision as to whether to discipline an employee or as to what penalty to impose. The decisions as to whether to discipline an employee and as to the penalty to be imposed are made by the administrator of the unit or division to which the employee is assigned.
Findings Of Fact In April, 1986, Lee was employed by HRS as a secretary in the Human Services Program Office. She reported to work on April 25, 1986, which was a payday. On the next regular day of work (April 28, 1986), Lee telephoned her office to request leave, explaining that her daughter had sprained her ankle and had to be taken to the doctor. Leave for this day was approved. Lee did not report to work on April 29, 30, or May 1, 1986, and she did not speak to her supervisor, Charles Lauria, on any of these dates to request leave. She testified that her sister notified the office that she was taking more leave, but the sister was not at the hearing to verify this statement. Lee did not report to work on May 2, 5, 6, 7 or 8, 1986, all of which were normal work days. Lee did not contact her supervisor or her office during this period. Charles Lauria was Lee's supervisor. When he had not heard from Lee by May 7, 1986, he reported to the local personnel office that Lee had abandoned her job and should be terminated. Lauria had previously warned Lee that failure to appear at work without prior approval could result in disciplinary action or termination. Lee signed a disciplinary memorandum indicating that she should personally contact Lauria in the event she would have to miss work for any reason. The HRS personnel office (David Porter) recommended to the District Administrator that Lee be terminated for violating the abandonment provision of the HRS personnel rules. On May 7, 1986, a letter of termination was mailed to Lee, notifying her that she had been terminated as of this date. On May 9, 1986, Lee reported to work. May 9 was a payday, the first payday since Lee's last appearance at work on April 25, 1986. She was given verbal notice of her termination at this time. Lee was aware of the abandonment provision in the HRS rules. She had acknowledged receipt of a copy of the rules upon commencing work at HRS. She had previously had problems regarding attendance, and had been counseled as to the importance of personally contacting her supervisor when she could not report for work. Lee missed seven consecutive days of work prior to being terminated by HRS. HRS attempted to contact Lee prior to terminating her, but was unable to locate her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Rebanner Lee, from her position as a secretary in the Human Services Program Office, for abandonment, pursuant to Rule 22A-7.010(2), Florida Administrative Code, effective May 7, 1987. THIS Recommended Order entered on this 19th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 19th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2072 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: 1-11. Accepted. Rulings on Proposed Findings of Fact Submitted by the Respondent: Accepted, but prior authorization to take leave had not been granted. These are argumentative and not proposed factual findings. They are thus rejected. COPIES FURNISHED: William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss Department of Health and Rehabilitative Services General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens Department of Administration General Counsel 530 Carlton Building Tallahassee, Florida 32301 R. Bruce McKibben, Jr., Esquire 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Rebanner Lee, in pro se Post Office Box 192 Starke, Florida 32091
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the petitioner's action of suspending respondent for three days without pay be AFFIRMED. DONE and ORDERED this 9th day of December, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: George L. Waas, Esquire Staff Attorney, HRS 1323 Winewood Boulevard Suite 406 Tallahassee, Florida 32303 William J. Manikas, Esquire 1215 Thomasville Road Jacksonville, Florida 32303 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The matter presented here for consideration concerns the termination of the Petitioner, George Nelson, from his employment with the Respondent, State of Florida, Department of Agriculture and Consumer Services, premised upon the purported authority set forth in Rule 22A-13.04, Florida Administrative Code, following the Petitioner's alleged decision to qualify as a candidate for office in the State of Florida, without first gaining permission of the appropriate authorities as set forth in Subsection 110.233(4)(a), Florida Statutes, and Chapter 22A-13, Florida Administrative Code.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the petitioner notified the Respondent of his intention to run for a School Board seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Joint Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the petitioner that he would not be allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the petitioner determined to offer his candidacy without the permission of his agency head, and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by a Joint Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the petitioner to inquire why the petitioner had offered his candidacy without permission of the agency. The petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as Joint Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Joint Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the School Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the petitioner were ones of resignation from his position as Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the School Board of Wakulla County and also -he concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the Department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that he had not. Subsequent to that latter conversation with Wood, the petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Joint Exhibit No. 5. This letter informed the petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1980, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. That correspondence from Carl T. Dierking, Chief of Personnel Management and Employee Relations for the Department of Agriculture and Consumer Services, went on to say that in view of the Petitioner's decision to qualify as a candidate being made after the request to allow him to run had been initially denied by the Department and in keeping with Rule 22A-13.032, Florida Administrative Code, that the Petitioner could request an administrative hearing "toward obtaining an additional review of your situation." This request was to be forwarded through Robert Chastain, Esquire, General Counsel, State of Florida, Department of Agriculture and Consumer Services. After August 15, 1980, the petitioner was removed as a permanent party Career Service employee with the Respondent. On August 27, 1980, the Petitioner corresponded with Mr. Chastain through a letter which stated, "I would like to have an appeal of my dismissal of August 15, 1980, reason, not just cause." A copy of this petition letter may be found as Joint Exhibit No. 6 admitted into evidence. In turn Mr. Chastain contacted the Director of the Division of Administrative Hearings requesting that a Hearing Officer be assigned and a hearing be set. A copy of that correspondence addressed to the Director of the Division of Administrative Hearings may be found as Joint Exhibit No. 7, admitted into evidence. Through that correspondence, Mr. Chastain expressed his opinion that Rule 22A-13.032(1), Florida Administrative Code, provides that an employee has the right to a Section 120.57, Florida Statutes, hearing. Subsequent to the case assignment herein, the Petitioner through his counsel has filed a rules challenge to the Rules 22A-13.04 and 22A-7.10(4)(a), Florida Administrative Code, which may be found in the Division of Administrative Hearings Case No. 80-1925R. In addition, the Petitioner in Division of Administrative Hearings Case No. 80-2049R has attacked the Joint Exhibits Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. In fact, the Petitioner's duty assignment as a forest ranger would conflict at times with his function so School Board Member, in that some of the meetings of the School Board would be held at times when the Petitioner was actively on duty. In addition, the Petitioner is also on call and required to be available in his off-duty time should an emergency arise requiring his assistance as a forest ranger. The petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary forest ranger at this time.
