The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent in association with his law enforcement certificate?
Findings Of Fact The Commission has the power to certify and revoke the certification of law enforcement officers. § 943.12(3), Fla. Stat. (2006). Respondent is a certified law enforcement officer. At times relevant to the inquiry he served in that capacity in New Smyrna Beach, Florida. Based upon the record, it is inferred that his employment was in association with what has been identified as the Volusia County Beach Patrol (Beach Patrol). That organization was constituted of law enforcement officers and other employees, to include an ocean rescue life guard and EMT. The latter employment position was referred to in the organization as a Beach Safety Specialist. The accusations against Respondent in this case involve conduct seen by and directed to two females, Captain Tamara Marris, a law enforcement officer and Beach Patrol Specialist Christine Dobmeier. Both worked for the Beach Patrol at times relevant to the inquiry. The incidents that form the basis for this complaint took place in a building (the station) utilized by the Beach Patrol. The basic design of the building is set out in Petitioner's Exhibit numbered one, admitted. The drawing or diagram is not to scale. It does reflect the location of a locker room, the door to that locker room, a bathroom and an office in the building. It also shows the location of Respondent's locker within the locker room. The door into the locker room is kept shut. It has a combination lock on it that must be unlocked to gain access to the locker room. In the summer 2004, Respondent and Captain Marris finished their duty shift at the beach and returned to the station. They were the only employees in the station at the time. Respondent was in the locker room, which was not intended to be a dressing room. The bathroom is the place where people change their clothes from the duty clothing into other attire. Respondent was facing his locker wearing only a towel when Captain Marris entered the locker room. While in the locker room Respondent's genitals were exposed to her view. On this first occasion Captain Marris thought that the exposure was just an accident. On a second occasion when the two officers, Captain Marris and Respondent were closing the shift, Captain Marris walked into the locker room and Respondent dropped the towel he was wearing exposing himself, that is exposing his genitals. The second incident took place in approximately August 2004. There was a third incident at the station between Respondent and Captain Marris. This time before Captain Marris entered the locker room, she said some words to the effect, "Hey, are you decent," to which Respondent replied, "Yeah, come on in." When she entered the room, Respondent dropped his towel to pull up his shorts and she saw his genitals again. In her mind, with the third incident having transpired, she concluded that Respondent's actions were deliberate. As a consequence beyond that point, when Captain Marris needed to put her work gear away in the locker room, she would wait until Respondent left the station. On the third occasion which occurred sometime around September 2004, Respondent and Captain Marris were alone as they had been on the prior two occasions. When Captain Marris determined in her mind that the Respondent was acting intentionally in exposing his genitals, she considered this to be vulgar or indecent. She did not believe that anything in the conduct was legitimate. Certainly by the third occasion, if not before, Respondent's conduct could be seen as intentional and without legitimate purpose. Christine Dobmeier was subject to Respondent's inappropriate conduct. She was a full-time ocean life guard and EMT in the position Beach Safety Specialist. She had similar experiences with Respondent to those between Respondent and Captain Marris. As Ms. Dobmeier recalls, ordinarily the male personnel would wear "life guard baggies" at work. At times the male employees would wrap a towel around the life guard baggies. This reference is understood to mean some form of pants or shorts worn by the male personnel which they would cover with a towel. In July or August 2004 around closing time, Ms. Dobmeier entered the locker room where Respondent was located. He was wearing a towel when she entered the room. At that moment his towel fell exposing his genitals. She stated, "I am so sorry" and walked out. On that occasion the door to the locker room had been open when she entered. A couple of weeks later Ms. Dobmeier entered the locker room. This time the locker room door had been closed. She did not bother to knock because most people in her experience would change their clothes in the bathroom. She pushed the lock mechanism which made a loud noise. She entered the room and saw Respondent, who was wearing only a T-shirt. Respondent was facing his locker. When Ms. Dobmeier entered the room he turned toward her, exposing his genitals. Ms. Dobmeier apologized for seeing Respondent in his undressed state and immediately left the room. There was a third incident involving Respondent and Ms. Dobmeier, a few weeks after the second incident. This time Ms. Dobmeier knocked on the locker room door and Respondent told her to enter the room. When she did he was standing naked and she walked right back out. Later, Ms. Dobmeier asked Respondent about the third incident and said, "Why did you tell me to come in," and Respondent in reply, as Ms. Dobmeier explains, "Just kind of laughed." After the third incident Ms. Dobmeier felt that the Respondent intended the conduct in exposing himself. There was a fourth incident in the locker room. This time Ms. Dobmeier knocked on the locker room door and did not hear anything in response. She activated the locking mechanism and Respondent was found in the room with his penis erect facing her. He asked Ms. Dobmeier whether he, as Ms. Dobmeier states, indicating Respondent, "Was as large as my boyfriend." This is understood to mean a comparison between Respondent and Ms. Dobmeier's boyfriend as to their genitals. No other persons were in the station when this encounter took place. Ms. Dobmeier considered the Respondent's exposure of his genitals as vulgar. As a result of the last encounter Ms. Dobmeier decided not to enter the locker room while Respondent was at the station. At the beginning of 2005 there was another incident. This time Respondent grabbed Ms. Dobmeier's breast after a swim drill. The incident took place in the locker room with the door open and 10 to 12 lifeguards in the main area outside of the room. Only Respondent and Ms. Dobmeier were in the locker room when he performed this act. His action was not invited or acquiesced to. Ms. Dobmeier responded by telling Respondent, "Don't ever touch me again" and walked away.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding violations of the statutes and rule referred to and revoking Respondent's law enforcement certificate. DONE AND ENTERED this 17th day of October, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2006.
Findings Of Fact The Respondent Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home. Improper Sexual Remarks or Sexual Advances Toward Female Students Count I: Advances toward T. E. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing. He unlocked the door, turned on the lights, and they went in. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E., T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/ Count II: Improper Sexual Remarks to C. D. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33) Count III: Sexual Advances toward C. C. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss. Count IV: Improper Sexual Remarks to C. S. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56) Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request. Conflicts Resolved Against Respondent Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify. Reduced Effectiveness The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation. DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August 1984.
Findings Of Fact Thomas A. Baggett, Respondent, is a Tampa Bay Pilot licensed by the State of Florida and holds license number 000045. He was so licensed at all times relevant to the charges here involved. On December 13, 1985, the United States Coast Guard held a hearing concerning the Coast Guards charge of negligence against Baggett for his piloting of the T/B Bulkfleet Pennsylvania. At that hearing Baggett pleaded guilty to and was found guilty of the charge that he was negligent while piloting the T/B Bulkfleet Pennsylvania on November 19, 1985, which resulted in this vessel running aground in the vicinity of Cut "C" Channel, Hillsborough Bay, Florida. At the time of the grounding of the T/B Bulkfleet Pennsylvania, Baggett was acting under the authority of his Coast Guard license number 486856 and was subject to the jurisdiction vested in the Coast Guard under 46USC 7703 or 7704.
The Issue Whether petitioner's application for a Class "G" license, statewide gun permit, should be granted.
Findings Of Fact The parties stipulated that petitioner's application for a Class G" statewide gun permit was properly filed with the Department of State, Division of Licensing. The application was not entered into evidence; however, the parties stipulated that the only bases for the denial of the license were those stated in the letter of February 16, 1987. On April 7, 1969, petitioner was adjudicated guilty of the offenses of breaking and entering an automobile and petty larceny. Petitioner was placed on probation for a period of five years. On April 16, 1987, petitioner entered a plea of nolo contendere to the offense of battery and was placed on probation for a period of six months. Respondent testified that between 1969 and 1974, while he was on probation, he tried to get his civil rights restored but that he has never been able to determine the status of his civil rights. Petitioner presented no evidence establishing that his civil rights had been restored. No evidence was presented at this hearing regarding the factual circumstances surrounding petitioner's arrest and conviction for breaking and entering an automobile. In his proposed findings of fact, petitioner describes facts from a document he describes as "listed as Item 4, Case Number 85-67 in a hearing held in 1985 on file with the Division of Administrative Hearings." However, no evidence regarding the breaking and entering conviction was submitted at this hearing, and a document submitted during the course of some prior hearing cannot be used to establish factual findings in this proceeding. Petitioner is the owner of Sun Coast Securities, Inc. His company provides security for major events needing crowd control, and a primary employer is the Florida State Fairgrounds. Petitioner has a Class "D" license and an agency license. On the night of October 31, 1986, petitioner was hired by the owner of Yesterday's Lounge to provide security at a Halloween party. Samuel Valez was one of the customers at the Halloween party. The Halloween party was supposed to start at about 9:00 p.m. However, Mr. Valez and a few of his friends got to the bar about 7:00 or 7:30 p.m. Mr. Valez had several drinks during the course of the evening. At some time after 10:00 p.m., Mr. Valez got into a dispute with a bartender. Petitioner thought he saw Mr. Valez take a swing at the bartender. However, Ms. Spalding, who was sitting at the bar, did not see any incident with the bartender. Ms. Ryan observed the dispute with the bartender and stated that Mr. Valez did not hit anyone but was having a disagreement over the service of the drinks. In any event, Mr. Valez was asked to leave the premises by the owner. Mr. Valez was intoxicated. Petitioner and the owner escorted Mr. Valez outside. After they got outside, petitioner and Mr. Valez exchanged a few words. Petitioner pushed Mr. Valez and then hit him in the face. Ms. Imschweiler, Ms. Spalding, and Ms. Ryan all observed the incident. None of the three saw Valez attempt to hit anyone, either petitioner or the owner of the lounge. Ms. Ryan testified that petitioner hit Valez more than once. After Mr. Valez had fallen, petitioner grabbed Valez by his ankle and dragged him across the parking lot ground. Mr. Valez kept stating he didn't want to fight, but every time he tried to get up petitioner pushed him to the ground again. Mr. Valez was bleeding. Ms. Ryan described Valez as having been beaten to a pulp. Petitioner contended that he was merely protecting the owner, that Mr. Valez had taken a swing at the owner, and that petitioner grabbed Valez' arm to prevent the owner from being hit. He also testified that Mr. Valez tried to hit him, and he hit Mr. Valez in self-defense. However, none of the witnesses saw Mr. Valez swing at anyone. The witnesses characterized petitioner's attack on Mr. Valez as unprovoked. Petitioner is 5'10" and weighs 300 pounds. Petitioner does power lifting and holds state and national records. He can squat lift 830 pounds. Mr. Valez is approximately 5'7" tall and weighs about 140 pounds. As a result of the altercation with Mr. Valez, petitioner was arrested and charged with aggravated battery. Petitioner ultimately pleaded nolo contendere to simple battery. The evidence presented at the hearing established that petitioner's attack on Mr. Valez was not in self-defense or in the defense of his client.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "G" license. DONE AND ORDERED this 1st day of August, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1988.
The Issue Whether Petitioner's application for Firefighter's Supplemental Compensation should be granted?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner graduated from Southern Illinois University in Carbondale, Illinois in May of 1976 with a Bachelor of Science degree. His major was "Radio-Television." Petitioner is currently employed by the City of Delray Beach as a firefighter/paramedic, the job description for which reads as follows: JOB TITLE: FIREFIGHTER/PARAMEDIC GENERAL DESCRIPTION: Skilled technical work in the City's Fire Department in the field of fire suppression, prevention and emergency medical services. Work is performed under the general direction of the Battalion Chief. ESSENTIAL JOB FUNCTIONS: Performs all duties in the Firefighter job description. Responds with necessary equipment to requests for medical assistance, where life is endangered by illness or injury. Administers basic and advanced life support at the scene of an emergency. Transports victims to the closest appropriate medical facility according to protocol, unless turned over to a licensed transport agency with equal or higher medical authority. Maintains basic and advanced life support apparatus and equipment. (These essential job functions are not to be construed as a complete statement of all duties performed. Employees will be required to perform other job related marginal duties as required.) FULL PERFORMANCE KNOWLEDGE, SKILLS, ABILITIES AND PERSONAL CHARACTERISTICS: Knowledge of the positions of firefighter and driver engineer and the skills to perform the duties of each. Knowledge of the geography of the City with respect to streets, hydrants and building access information. Knowledge of the location and layout of all high risk and special hazard occupancies, and the problems encountered with each. Knowledge of the strategy and tactics of handling fire, rescue and medical emergencies and the ability to analyze and respond effectively under stress to each. Knowledge of the record keeping system in use, the components of the system, and the functions of each. Knowledge of paramedic principles, practices and techniques and how they are used in rescue operation. Ability to carry out orders and to see that department and City policies are adhered to. Ability to perform Firefighter and ALS duties effectively. MINIMUM QUALIFICATIONS: High School graduation or possession of an acceptable equivalency diploma. Completion of minimum standards as required by the State of Florida. Successful completion of all medical and fitness requirements and examinations as described by the City. LICENSES, CERTIFICATIONS OR REGISTRATIONS: State of Florida Paramedic Certification. State of Florida Firefighter Certification. Protocol Certification issued by Department Medical Director. Class D Commercial Drivers License. ESSENTIAL PHYSICAL SKILLS: Meet physical requirement as indicated for State certification. Must endure sustained acts of physical exhaustion and endure periods of duty under unfavorable and life threatening situations. Heavy (45 pounds and over) lifting and carrying Reaching Acceptable eyesight (with or without correction) Acceptable hearing (with or without hearing aid) Ability to communicate orally Climbing (including ladders) Pulling Pushing Walking Standing Crawling Kneeling Bending Balancing Smelling Stooping Jumping Throwing Driving Running Swimming ENVIRONMENTAL CONDITIONS: Hazardous conditions: flames, fire, chemicals, smoke, heat, gases, moving vehicles, falling structures and debris, electricity, poor ventilation, poor lighting and related hazards Stressful situations Bio-hazard infectious disease (Reasonable accommodations will be made for otherwise qualified individuals with a disability.) Because of his educational background in "Radio- Television," Petitioner has, on occasion, been requested by his supervisors to produce video tapes used for firefighter/paramedic training or for educating the public concerning the services offered by the City of Delray Beach Fire Department. The production of these video tapes, however, is not one of Petitioner's primary job duties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Respondent is not entitled to the supplemental compensation he is seeking pursuant to Section 633.382(2)(a)2., Florida Statutes. DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
The Issue The issue in this case is whether Florida Administrative Rule 61G15-22.011(2) is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner Peter J. Singhofen is a licensed professional engineer in the State of Florida. He is the President and sole stockholder of Petitioner Streamline. In the 1980’s, Mr. Singhofen had a need for and developed engineering software that specialized in stormwater management for the terrain found in Florida. The software had to be specific to Florida because the terrain in the state is different from the terrain in many other parts of the country, and the Florida Statutes and rules governing stormwater management are some of the most stringent in the country. The software that Mr. Singhofen developed uses the Interconnected Channel and Pond Routing model (ICPR). This system performs complex calculations utilized in stormwater management and planning. It was the first proprietary model to be formally reviewed and accepted as a nationally accepted hydraulic model. ICPR is also extensively used by local and state government agencies throughout Florida, both to review stormwater permit applications as well as for the development of stormwater management master plans. Some of the users of Petitioners’ software are the Southwest Florida Water Management District, Department of Environmental Protection, South Florida Water Management District, St. Johns Water Management District, and Department of Transportation. Indeed, ICPR may be the most popular program of its type in the State of Florida. Streamline sells the stormwater management software and offers training and technical support for the software it sells. Clearly Petitioners have a direct financial interest in the engineering software they developed and own. As part of its business, Streamline conducts eight-to- ten workshops each year. Many of the state and local agencies that use ICPR send their engineers to these training programs. These workshops take three days. The first two days consist of intense lectures supported by hands-on exercises on computers provided by Petitioners. On the third day participants perform a "real world" project, using aerial photographs and survey notes to work on the project. The evidence was clear that these workshops are not “shill” presentations that are tantamount to product promotions or advertisements. Florida Statutes require licensed professional engineers to obtain a minimum of four professional development hours in the licensees' area of practice each biennium, or two hours per year. The Board approved Streamline as a CE provider during the 2001-2003 and 2003-2005 bienniums. However, Streamline's application for approval for the 2005-2007 biennium was denied as a result of amendment to Florida Administrative Code Rule 61G15-22.011(2), effective August 8, 2005. The amendment to the Rule in question reads as follows: . . . The continuing education provider shall not have any financial or commercial interest, direct or indirect, in any technology that is the subject of the instruction. The denial, and thus the Rule, has the potential to affect Petitioners’ substantial interests in its product since their training can no longer qualify for CE credits for the engineers who need training and technical support in order to better use this complex software. The Notice of Rulemaking published in the Florida Administrative Weekly listed the authority for the Rule as Section 471.017(3), Florida Statutes. Section 471.017(3), Florida Statutes, grants the Board rulemaking authority and requires that the CE rules be consistent with the guidelines of the National Council of Examiners for engineering and Surveying (NCEES) for multijurisdictional licensees. The Notice of Rule Development published in the Florida Administrative Weekly, as well as the Notice of Rulemaking, stated the purpose and effect of the Rule was to include a prohibition of conflict of interest as an added requirement for Board approval of CE providers. The same reason was provided in the Additional Statement to the Secretary of State under the Statement of Facts and Circumstances Justifying Proposed Rule. However, there was no discussion or finding by the Board prior to engaging in rulemaking that a CE provider who taught about technology over which he or she had a commercial interest would be engaging in a conflict of interest. In fact, the NCEES guidelines do not contain such a prohibition. According to the Board’s Director, the statement that the purpose and effect of the Rule was to avoid a conflict of interest was "erroneous" and that "it was erroneous three times if it was published three times." Indeed, other than minor references in various minutes of Board meetings, there was very little official Board discussion about the Rule prior to its adoption. The evidence on the rationale behind the Rule showed that there was general concern by the Board over prohibiting “shill” CE courses that were nothing more than product promotions or advertisements. The fact that the published purpose of the Rule was erroneous is a material failure to follow the rulemaking process since notice to the public of the Rule’s purpose is an important aspect of rulemaking. Notably, the Board does not directly approve individual courses. It approves CE providers. Under the Rule the courses must be offered or sponsored by an approved CE provider. NCEES model rules do recognize that a governmental authority may approve CE providers. In Appendix C, the guidelines indicate that provider approval be contingent upon the provider permitting a Board to attend courses and review course material to determine whether the course meets the standards of the Board. In the process of applying for CE provider status, the Board requires the applicant to provide course descriptions, syllabuses, and a list of courses intended to be provided. Section 456.025(7), Florida Statutes, mandates that: [e]ach board . . . shall establish, by rule, a fee not to exceed $250 for anyone seeking approval to provide continuing education courses or programs and shall establish by rule a biennial renewal fee not to exceed $250 for the renewal of providership of such courses. The fees collected from continuing education providers shall be used for the purposes of reviewing course provider applications, monitoring the integrity of the courses provided, covering legal expenses incurred as a result of not granting or renewing a providership, and developing and maintaining an electronic continuing education tracking system. Florida Administrative Code Rule 61G15-22.011 provides that: The Board retains the right to audit and/or monitor courses [61G15-22.011(7)], which the guidelines require the provider to permit; The Board retains the right to review course materials [61G15-22.011(7)], which the guidelines require the provider to supply; The provider must provide a description of the type of courses or seminars the provider expects to conduct [61G15- 22.011(3)(a)] and a sample of intended course materials [61G15-22.011(3)(d) and the course curriculum [61G15-22.011(3)(f)], which the guidelines require a provider to supply; The provider must demonstrate the education and/or experience necessary to instruct engineers in the conduct of their practice [61G15-22.011(2)], which reflects the guideline requirement that providers ensure instructors are qualified; The provider must list anticipated locations to conduct the course [61G15- 22.011(3)(3)], which the guidelines require the provider to supply after the course is presented. Based upon information an applicant has provided, the Board has in the past denied applications for CE providers proposing to offer "shill" courses. Additionally, an existing rule of the Board, as well as NCEES guidelines, specifically provides that equipment demonstrations or trade show displays do not qualify as continuing education activities. See Fla. Admin. R. 61G15- 22.005. The evidence was not clear on how denial of CE provider status, because the provider had a financial interest in the technology which is the subject of a CE course, would prohibit “shill” courses without limiting otherwise legitimate CE courses such as the one here. Indeed, the most logical person to present a course on the software at issue here would be Petitioners, since they are the developers of the software. The NCEES guidelines at Section 2 set forth model rules for continuing professional competency. NCEES guideline 2B4 defines course/activity as any qualifying course or activity with a clear purpose and objective that will maintain, improve, or expand the skills and knowledge relevant to the licensee's field of practice. Rule 61G15- 22.002(5) defines course/activity as any qualifying course or activity with a clear purpose and objective that will maintain, improve or expand the skills and knowledge relevant to the licensee's area of practice. Clearly, Petitioners’ workshops meet these definitions. NCEES guideline 2C sets forth the ways licensees can earn the necessary CE credit through patenting inventions, active participation as an officer in professional or technical societies, authoring published papers, articles, books or accepted licensing exam items, teaching or instructing college courses or continuing education courses, completion of college courses, CE courses, correspondence, televised, videotaped and other short courses or tutorials, seminars, in-house courses, attendance at workshops, professional and technical presentations made at meetings, conventions or conferences. Similarly, Florida Administrative Code Rule 61G15-22.003, sets forth qualifying activities for the area of practice requirements and generally lists the same types of activities as the NCEES guidelines. Petitioners’ course specifically falls within both the NCEES guidelines and the Board’s rules defining qualifying activities for CE credit. Thus, the Board’s amendment to Florida Administrative Code Rule 61G15-22.011 results in a qualifying activity being excluded from such recognition, and thereby is inconsistent with NCEES guidelines. Such inconsistency is outside of the Board’s rulemaking authority and the amendment to Florida Administrative Rule 61G15-22.011(2) is an invalid exercise of delegated legislative authority.
Findings Of Fact In the summer of 1981, Christopher Max Grix (Chris), a tenth-grader, was one of some 1,100 students enrolled in the combined Miami Beach Senior High School-Nautilus Junior High School summer school program. On Monday, July 20, 1981, George Thompson, a security man at the school, took Chris, John DeBlasio, and a third youth to the school office. Mr. Thompson told Solomon Lichter, the principal, and Assistant Principal Nockow, that he had seen these three boys shoving one another. As a result, each student received a three-day suspension, ending with the opening of school on Thursday, July 23, 1981. At about 7:20 on the morning of July 27, 1981, Chris and John DeBlasio had another "confrontation." When it ended, Chris fled in his car to the principal's office. There he reported that some "niggers and spics" had jumped him on school grounds along 42nd Street, and complained that the principal had not done "a damn thing about it." Although Mr. Lichter asked Chris to remain seated, Chris jumped up and left the office after he had been there only two minutes. While Mr. Lichter summoned the police, Carlton Jenkins, Jr., another assistant principal who was in an office near Mr. Lichter's, followed Chris and watched him drive away recklessly, stop near some students, and emerge from the car with a tire iron. Chris asked John DeBlasio's brother Alfred where John had gone. Wielding a tire iron, Chris shoved Alfred and threatened to kill him. He made the identical threat to Mark Allen Uffner, and also shoved him. After the tire iron was back in Chris's car, and after Alfred and George Korakakos had subdued Chris in a fist fight, Uffner ran to meet Assistant Principal Jenkins and Principal Lichter as they approached from the school office, and gave them a full report. Chris was gone by the time the police arrived. Later on the morning of July 27, 1981, Messrs. Lichter and Nockow left the summer school grounds for the campus of Miami Beach Senior High School to look for some walkie-talkies. While they were there, Chris, his older brother, and a third young man arrived. When Chris's older brother asked what had happened, Chris gave his version in colorful language. Mr. Lichter told Chris he was going to suspend him from school if he did not calm down. After Chris continued complaining about "niggers, spics, and the school principal," Mr. Lichter announced that Chris was suspended and ordered him to stay off school grounds for ten days. The trio left the campus of Miami Beach Senior High School but later on, at midday on July 27, 1981, Alfred DeBlasio saw Chris and the others on the summer school (Nautilus Junior High School) campus near 42nd Street, with knives and crow bars. Chris and traveling companions were equipped with ax handles, and were threatening Uffner, among others. A security man told Mr. Jenkins that a gang of students was headed toward Chris's car behind the cafeteria. Mr. Jenkins called after Chris's car as it left, ordering Chris not to return to school for the rest of the day.
Findings Of Fact Petitioner is a child assigned to Respondent's Youth Services Program. He was attending the Palm Beach Marine Institute/Florida Ocean Science Institute (FOSI) and living at home prior to January 13, 1983, when he was transferred to the Youth Development Center (YDC) in Okeechobee, a more restrictive facility. Petitioner was charged with violating his supervision agreement with Respondent by failing to attend classes at FOSI on January 4, 5, 6 and 7, 1953. A hearing before Respondent's program specialist was held where Petitioner was found guilty of the alleged violation and ordered to be transferred to the YDC. Petitioner concedes he was absent without cause in November, 1982. He had further absences in December due to illness where the required medical excuse was not timely furnished. As a result of the absences and apparent personality conflict with his instructor, Petitioner was told not to return to FOSI by an official of that facility on January 3, 1983. Therefore, Petitioner's absences on January 4, 5, 6 and 7, 1983, were not in violation of his supervision agreement.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Respondent enter a Final Order correcting Petitioner's record to reflect that his transfer to the Youth Development Center was not based on violation of his supervision agreement or other misconduct. DONE and ENTERED this 13th day of April, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1983. COPIES FURNISHED: Ms. Joan Solomini 3017 Grove Road Boynton Beach, Florida 33435 K.C. Collette, Esquire District IX Legal Counsel Department of Health and Rehabilitative Services 111 Georgia Ave., 3rd Floor West Palm Beach, Florida 33401 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Respondent Petras Jakstas committed the violations alleged in the Termination and Dismissal Notice, and, if so, the appropriate discipline that should be imposed.
Findings Of Fact The City is a municipality governed by a city council. A city manager oversees the City’s operations. On January 22, 2007, Respondent was hired as a Parks Service Technician I. He successfully completed the Parks Service Technician Apprenticeship Program and was promoted to his current classification of Parks Service Technician II on February 2, 2008. Respondent’s job responsibilities include, but are not limited to, the collection of trash and the emptying of trash receptacles. Respondent is a native of Lithuania. While Respondent does not speak “perfect English,” the record indicates that Respondent speaks and understands English at a level of proficiency which allows him to function in an environment where only English is spoken or written without the necessity of an interpreter. The Clearwater Civil Service Board has adopted rules and regulations which govern the conduct of all City employees. Chapter 13 of the Clearwater Civil Service Board Rules and Regulations (Civil Service Rules) provides the framework for suspending, demoting, and dismissing City employees. Chapter 13, section 6 of the Civil Service Rules, provides that the “City Manager or designee may discharge an employee for one or more of the causes listed under Section 3 of this Chapter or in accordance with the established performance and behavior management program . . . or for other good cause.” On or about March 20, 2018, Respondent received from the City a termination and dismissal notice advising that his employment with the City of Clearwater was being terminated effective “Wednesday, March 21, 2018, at the end of the day.” The notice of termination and dismissal cites the following violations as cause for the termination of Respondent’s employment: Personal Responsibility Standards, We will follow all City policies and procedures. We will comply with all City and our respective Department, division, and section rules and standard operating procedures. We will cooperate and participate in City processes. We will resolve to accept personal accountability and responsibility for our actions. We will perform our work assignments with established standards and comply with written or verbal instruction from the supervisory or management group. Integrity Standards, Violation of the provisions of Chapter 13, Section 3, of the City Civil Service Rules and Regulations. Excellence Standards, We will treat everyone with dignity, respect, and courtesy. We will present a professional image through actions, dress, speech and behavior. We will strive for excellence and continuously learn and make improvements. We will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes. The notice of termination and dismissal, in addition to the generally referenced “Integrity Standards” violation, also specifically provides that Mr. Jakstas violated Civil Service Rules, chapter 13, section 3, to wit: (b) Failure to perform satisfactorily within established guidelines. (e) Commitment of a flagrant offense, including harassment or discrimination or abusive conduct or language toward coworkers, City officers, or the public. (g) Commitment of or participation in any activity or action which undermines public confidence or otherwise significantly impairs the employees’ ability to perform his/her job productively. (l) Failure to conform to the dictates of corrective action, including but not limited to failure or inability to comply with an agreed upon “development plan,” or when the City believes that an employee is willful in refusing to adhere to established rules, regulations, or guidelines. The gravamen of the charges against Respondent derive from his alleged violation of Civil Service Rules, chapter 13, section 3(b), (e), (g), and (l). The City’s current proceeding against Respondent is as a result of Respondent’s flirtatious statement to a current female City employee, which occurred while Respondent was working under a “Development Plan,” which was implemented because he harassed a former City employee and used City property while doing so. PERFORMANCE & BEHAVIOR MANAGEMENT PROGRAM The City developed its PBMP in order “to provide a method of working with employees whose performance or behavior does not meet the City’s standards.” The philosophy of the program “is based upon the belief that, in most cases, employees can change behavior and improve performance when standards and expectations are clear and when employees are given opportunities to change.” Whenever practicable, “the City will provide intervention, coaching, and corrective guidance or counseling . . . for employees . . . in order to bring their performance or behavior up to standard.” The program recognizes, however, “that some behaviors that are serious and are direct violations of City Policy may warrant immediate disciplinary action up to and including termination.” According to the PBMP manual, there are three categories of performance and behavior: Personal Responsibility, Integrity, and Excellence. As to each, the manual notes that: These categories are based on employees’ willingness or ability to meet standards of behavior or performance. Willingness refers to the employees’ decision to meet expectations, follow rules and policies, and perform work that meets efficiency and quality standards. Ability refers to the employees’ capability and skills in performing job tasks. The first two categories, Personal Responsibility and Integrity, are considered “will do” categories because they typically involve situations wherein the employee has a choice and makes a decision about whether or not to meet the standards. The third category, Excellence, is considered a “can do” category, because it most often refers to a situation where the employee is not able to perform up to standard because of a lack of resources, skill, or capability. City of Clearwater expectations for each of these three categories are stated below. Personal Responsibility (“Will Do” Issues) City of Clearwater employees will be held personally accountable for the actions they take in meeting the customer service needs of the City and the community the organization serves. Employees are expected to take full responsibility for their conduct and job performance and exhibit commitment to fulfilling their responsibilities to the best of their ability. Integrity (“Value and Ethics” Issues) As public employees representing the citizens of Clearwater, employees are expected to commit to the highest standards of personal and professional integrity. The City expects employees to communicate openly and continually demonstrate honesty, fairness, and respect for others. Employees should do what is ethically appropriate. Employees are expected to adhere to City policies. Excellence (“Performance/Can Do” Issues) City of Clearwater employees have an obligation to provide the highest quality of service and results to our customers. This commitment to excellence involves developing the job knowledge and skills needed to perform the tasks required and to continually improve the City’s ability to meet the needs of the community we serve. The PBMP manual generally lists 75 Personal Responsibility Standards, 14 Integrity Standards, and 41 Excellence Standards. Regarding the Integrity Standards, the PBMP manual notes in bold print that “immediate formal discipline, up to and including termination, may be recommended” for a violation of these standards. The PBMP manual does not set forth any such illumination for the other standards. As previously noted, certain PBMP standards are referenced in the termination and dismissal notice provided to Respondent by the City. THE DEVELOPMENT PLAN The initial step of PBMP entails supervisor coaching and counseling of employees as a strategy for helping employees to meet supervisor, department, or City expectations or standards. In instances where an employee has committed a serious offense of the PBMP standards and expectations, the City may place an employee on a development plan, a decision-making leave without pay, or both. On October 23, 2017, Respondent was placed on decision-making leave without pay for the two-day period of October 24 and 25, 2017. On October 26, 2017, when Respondent returned to work he was placed on a development plan. Both actions resulted from an incident involving former City employee Ms. Kelsey Souto. Ms. Souto previously worked for the City, and during the course of her employment Respondent developed a physical attraction to her. There is no evidence suggesting that Ms. Souto was in any way interested in Respondent. Sometime around the early part of 2017, Ms. Souto relocated from Florida to Idaho. The undisputed evidence is that Respondent tracked Ms. Souto’s whereabouts and began to send her letters, jewelry, and at one point, he even mailed her a rooster. Ms. Souto found Respondent’s behavior to be extremely upsetting as evidenced by the Petition for Protective Order that she swore- out against Respondent wherein she requested, on or about August 24, 2017, that the District Court for the State of Idaho enjoin Respondent from engaging in “malicious harassment, stalking, [and] telephone harassment.” On September 28, 2017, Respondent submitted to the City a request for vacation days and included therewith a notice of hearing regarding the Protective Order that was filed against him by Ms. Souto. The hearing was scheduled for September 29, 2017. Respondent attended the hearing in Idaho and “agreed to entry of a protection order.” The exact date is not clear from the record, but it is undisputed that sometime between September 28, 2017, and October 26, 2017, the City learned two things from Respondent. First, the City learned that Respondent used a City of Clearwater Parks and Recreation envelope to mail a letter to Ms. Souto as part of his campaign of harassment against her; and second, the City learned the full details of Respondent’s harassment activities directed towards Ms. Souto. Given this information, on October 26, 2017, the City, pursuant to its PBMP, placed Respondent on a written development plan. The development plan contains a section titled “Specific Examples of Behavior or Performance Observed (completed by Supervisor).” In this section, Respondent’s supervisor noted the following with respect to the circumstances surrounding Respondent’s interaction with Ms. Souto: Approximately one year ago, your manager was contacted by the owners of the beach concessions, Mr. and Mrs. Chandler, to inform him that you were showing an interest in one of their workers, but she was not interested in you. You were persistent with this female and you had sent her a gift of a wedding ring by mail. When the Chandlers contacted your manager, they stated they did not want to make a formal complaint with the City, but wanted to speak with you about the situation and return the ring. The City has learned that despite this female moving out of state, you have continued to pursue her. On Thursday, September 28, 2017, you turned in a vacation request to your supervisor along with a notice of hearing for a protection order filed against you in the District Court of the Fifth Judicial District of the State of Idaho. This protection order was filed by the female who formerly worked for a beach concessions and it cited malicious harassment, stalking, telephone harassment as the reasons for her petition to the court. The petitioner described in the protection order that she met you while she worked as a manager at Barefoot Beach House on Clearwater Beach. She explained that City employees were provided free soft drinks by an established lease agreement and you as well as other City employees, would go to the restaurant for that reason. She further explained that beginning approximately five years ago, you would regularly bring her candy, gifts, and treats and she would often politely decline your offerings or put them out for all her employees. She stated that you would come in several times throughout your workday waiting in long lines, just so that she could wait on you. The petitioner stated that she moved to Idaho in 2016 and somehow you obtained her contact information on-line and you began sending her certified letters about every other month. Additionally, she said at Christmas time she received a diamond ring and gold necklace from you of which she returned to you. Most recently, on August 23, 2017, she stated that she received notification from the post office that you had sent her a live rooster as she recognized your handwriting on the notice and card. She further described that you sent her emails and text messages, so she blocked your phone number. On October 4, 2017, your supervisor was provided a copy of a City of Clearwater Parks and Recreation envelope [which] shows you used City material to mail her a certified letter on August 15, 2016. When meeting with your Director, you admitted to using City materials for personal use and acknowledged it was a bad thing to do however; you did not take full responsibility of the seriousness of your inappropriate behavior and conduct which led to the protection order filed against you, stating that you “were only trying to have fun. Based on the information involving Ms. Souto, the City specifically identified in Respondent’s development plan certain standards and expectations that Respondent had not met, including the following: “We will treat everyone with dignity, respect, and courtesy; [w]e will present a professional image through actions, dress, speech and behavior; and [w]e will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes.” Reference in the development plan to these specific standards and expectations, as well as inclusion of an extensive narrative regarding his harassment of Ms. Souto, put Respondent on notice that future instances of conduct of a similar nature would not be in compliance with the terms of his development plan. The development plan contains a signature line where the employee is to sign. Below the employee’s signature line is the following statement: “My signature indicates I have read and understand the Development Plan outlined above, and agree to comply with all City standards and policies, although I may not agree that a violation has occurred.” Respondent signed the development plan on October 26, 2017. The development plan notes that its duration is for six months. In addition to signing the development plan, Respondent also wrote the following on the plan: “I will not misuse City prop[erty] again. No mean no! Sorry I recognize my fault! I will make better choices in my life. I recognize my fault.” SEA BLUES FESTIVAL On Saturday, February 24, 2018, Respondent was working at the Sea Blues Festival, which is a cultural event sponsored by the City. Madai Gutierrez, who is employed by the City as a recreation specialist, also worked the festival on that date. Ms. Gutierrez’ job responsibilities involve overseeing matters related to patron ticketing and gate operations. Her job duties do not include overseeing or otherwise supervising Respondent or workers who are similarly classified. Ms. Gutierrez’s credibly testified that on the day in question, while in the backstage area of the festival, Respondent summoned her to the area where he and a coworker were picking up trash. Ms. Gutierrez, thinking that Respondent had an inquiry about a matter pertaining to the event, walked over to Respondent where he told her, “You’re so beautiful. You have the eyes like an eagle.” Respondent’s statement to Ms. Gutierrez was a discourteous statement that lacked dignity and respect, the statement failed to comport with the development plan goal of maintaining a professional image through “speech,” and by making the statement, Respondent demonstrated a failure to modify his behavior as required by the development plan. Respondent’s statement to Ms. Gutierrez was sufficiently similar in character to the conduct Respondent displayed towards Ms. Souto. Mr. Gutierrez testified that Respondent’s statement made her feel “weird and creepy,” and she immediately left the area after hearing the same and went to her ticketing trailer. On the day of the incident, Ms. Gutierrez reported Respondent’s conduct to her supervisor. On Monday, February 26, 2018, she then prepared a written statement detailing her interaction with Respondent. Respondent admits that he spoke to Ms. Gutierrez but states that it “was about work.” (Tr. 200:9) In further explaining himself, Respondent testified, “I told them that I never said in this way and -- and that we were talking about -- strictly about work.” (Tr. 200:16-18). In this statement, Respondent is referring to his conversation with Ms. Gutierrez on February 24, 2018. At the time of his interaction with Ms. Gutierrez, Respondent was still working under the limitations of the development plan and this would certainly provide sufficient motivation for Respondent to not be truthful regarding his interaction with Ms. Gutierrez. Ms. Gutierrez testified that on occasion she will instruct a City worker whose job includes responsibility for trash collection to empty an overflowing trash receptacle. However, Ms. Gutierrez specifically testified with clarity and certainty that at no time during the Sea Blues Festival did she ever instruct Respondent, or any other trash worker, to empty a trash can. Ms. Gutierrez’s testimony regarding what was said to her by Respondent is found to be more credible than Respondent’s denial. Respondent’s assertion that he had a “work-related” conversation with Ms. Gutierrez on February 24, 2018, is not credible and is rejected. I NEED AN INTERPRETER Respondent claims that the City knew that he needed a language interpreter but failed to provide one during the discipline determination meeting resulting from the incident involving Ms. Gutierrez. The job position occupied by Respondent is covered by the Agreement between City of Clearwater, Florida, and Communications Workers of America, Local 3179 (Fiscal Years 2017–2018) (collective bargaining agreement). Article 11, section 4 of the collective bargaining agreement provides, in part, that “[w]henever an employee who is a Union member is noticed of any meeting that could result in discipline, the employee will be granted a minimum of two (2) business days before the meeting to arrange for Union representation.” The right to union representation at any such meeting is commonly referred to “Weingarten” rights. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). On March 7, 2018, the City informed Respondent that a discipline determination meeting was scheduled for March 14, 2018, to discuss the alleged incident involving Ms. Gutierrez and its possible impact on his continued employment with the City. Respondent attended the meeting along with his union representative Phil Hughes of the Communications Workers of America. There are no provisions in the Civil Service Rules, the PBMP manual, or the collective bargaining agreement, which require the City to provide a foreign language interpreter for an employee who is represented by his union at a disciplinary meeting. Respondent cites no authority in support of his contention that the City was obligated to provide him with such services and furthermore there is no factual basis in the record otherwise indicating that Respondent even requested such services from the City once the current termination and dismissal proceedings commenced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the City of Clearwater enter a final order terminating Mr. Jakstas’ employment. DONE AND ENTERED this 12th day of December, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 12th day of December, 2018. COPIES FURNISHED: Edward C. Castagna, Jr., Esquire Castagna Law Firm, P.A. Suite 702 611 Druid Road Clearwater, Florida 33756 (eServed) Owen Kohler, Esquire City of Clearwater 112 South Osceola Avenue Clearwater, Florida 33756 (eServed) Nichole A. Kerr, Esquire Castagna Law Firm, P.A. Suite 702 611 Druid Road Clearwater, Florida 33756 Ted Starr, Esquire Starr Law Offices 8181 U.S. Highway 19 North Pinellas Park, Florida 33781 Rosemarie Call, City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 33758-4748
Findings Of Fact Petitioner is an adult black female. At all times material, she was employed by Respondent, School Board of Nassau County, as a Guidance Counselor at Fernandina Beach High School. Petitioner was initially employed by the Respondent in 1959 as a teacher of physical education, but she has been a guidance counselor in her present location since the 1972 school term. Her total tenure with the School Board is approximately 29 years. She is certified in Administration and Supervisory Guidance, Physical Education, Health Education, and Driver Education. On June 28, 1989, the Respondent posted/published an advertisement for the newly created position of "Assistant Principal-Student Services" (AP-Student Services) at Fernandina Beach High School. The new position had come about through a study commission. The membership of the commission included Fernandina Beach High School Principal William R. Fryar. The commission had been appointed by Respondent's Superintendent Craig Marsh. Over the course of a year, the commission had developed the criteria and threshold qualifications for the new position along with other proposed staffing changes. The method by which a person would be hired for any such position with Respondent would include meeting the threshold qualifications, passing successfully through an interview panel, interviewing with Principal Fryar, being recommended by Principal Fryar to Superintendent Marsh, and being recommended by Superintendent Marsh to the School Board. The School Board would do the ultimate hiring. The threshold qualifications for the position vacancy, as stated in Respondent's June 28, 1989 announcement included the following: a) three years counselling experience preferred at 9-12 level; b) hold or be eligible for Level I certificate; c) hold or be eligible for Florida Counselor certification; and d) experience in managing student data entry, Florida experience preferred. On July 24, 1989, Petitioner applied for the position vacancy. She was the only one of Respondent's employees who met the foregoing qualifications. Only one other person, a white male, submitted an application in response to the June 28, 1989 position vacancy announcement. The white male was from out of state but eligible for in-state certification. Both Petitioner and the sole other applicant met the published/posted threshold qualifications. Petitioner and the sole other applicant were individually interviewed by a three person interview panel made up of three state certified interviewers. Two interviewers were white females and one interviewer was a black male. All the interviewers were employed by the Respondent. The white male applicant received a slightly higher interview score than did Petitioner, but neither scored outside the average range. The interview scores were not passed on to Dr. Fryar, and the committee did not relay any recommendation to hire either applicant. Dr. Fryar did not interview either applicant because there were only two applicants and because neither applicant had been recommended by the interview panel. Consequently, neither Petitioner (a black female) nor the white male was selected to fill the vacancy. The Respondent had previously and consistently hired only from a field of three or more applicants. Page 3, Section II. C. 12. of the School Board of Nassau County Human Resource Management Manual (Adopted 12/11/86; Revised 6/22/89) provides, "The selection system includes the recommendation of three to five candidates to the superintendent." Superintendent Marsh's personal preference also was to not hire for any position unless there was a field of at least three applicants who had successfully passed the interview panel stage. On August 3, 1989, the position vacancy remained open and the Respondent published a readvertisement for the position. The threshold qualifications and the duties projected for this position remained identical to those published in the June 28, 1989 announcement. Respondent received only one application in response to the August 3, 1989 advertisement. That applicant subsequently withdrew. When he was not hired, the white male applicant had asked not to be notified of future advertisements. Petitioner did not apply in response to the August 3, 1989 readvertisement although she was still interested in the position, because she had not received the second advertisement. Petitioner discovered she had not received the second advertisement and was upset about it because Respondent had notified her that her first application would be kept on file for a year. After the second advertisement netted no applicants, the same consideration of not hiring from a field of applicants of less than three still obtained. Presumably, that consideration would have prevailed even if Petitioner had re-applied in response to the second advertisement. Originally, the belief had been that the AP-Student Services should be required to hold a counselling certificate because he or she would oversee three counsellors in addition to being required to devise, upgrade, and maintain student data bases on a computer. However, because Dr. Fryar and Superintendent Marsh and their advisers believed there was a greater need to develop a data base on the students than to have yet another counselor, Dr. Fryar and Superintendent Marsh incorporated the duties of the Fernandina Beach High School's data systems manager into the threshold qualifications for AP-Student Services. Also, in order to widen the potential field of applicants, they revised the requirement of counselor certification out of the threshold qualifications. Neither revision was done by running the idea through a committee again. On October 16, 1989, the Respondent advertised the AP-Student Services position for a third time. In an effort to get more and better applicants, this third advertisement was circulated differently than the two prior advertisements. Respondent devised a new distribution system for its third advertisement. Under the new system, the specific schools received the posting directly rather than having it funneled to them through the district. For the reasons indicated above, the threshold qualifications for the position as advertised the third time were different from those stated in the June 28, 1989 and August 3, 1989 postings in the following particulars: a) the requirement of guidance certification was eliminated; b) "three years counseling experience preferred at 9-12 level" was amended to read "three years counselling and/or other student services experience preferred at 9-12 level"; c) the requirement of "hold or be eligible for Florida Counselor certification" was deleted in its entirety; and d) the requirement of "experience in managing student data entry Florida experience preferred" was amended to read, "experience with computerized data systems: Florida experience preferred." In response to the October 16, 1989 vacancy posting, the Respondent received approximately 10 applications. Eight of the ten applicants were interviewed. Petitioner timely submitted her application in response to the October 16, 1989 vacancy posting. Petitioner met the changed threshold qualifications and was interviewed. On November 1, 1989, interviews were conducted with eight applicants, including Petitioner, all of whom met the threshold qualifications. The interviewees consisted of five white males, one white female, one black male, and Petitioner, a black female. The interviewers were all certified interviewers, and this time the interviewers were selected from outside the school district, so they were not Respondent's employees. The interviewer pool was racially mixed. Three interviewers interviewed each applicant. Not all interviewees were interviewed by the same interviewers. Petitioner was interviewed by Cathy Merritt, Bob Kuhn, and Doris Thornton. Ms. Thornton is black. At the conclusion of the interviews, the interviewers, through data integration, by consensus and not by averages, awarded a consensus score to each applicant in each of fourteen categories. The three applicants with the highest scores consisted of one black male and two white males. Petitioner's scores were lower than those of the top three applicants and in the average range. Principal Fryar interviewed the three highest scoring applicants without benefit of knowing their scores. However, the applicant ultimately appointed to the position did, indeed, have the highest scores among all the applicants. His scores were all above average. The procedure used to fill the new position is called "target selection," and is enumerated in the School Board's Human Resource Management Plan, which plan is mandated pursuant to Section 231.087, F.S. and approved by the Florida Council on Educational Management. Petitioner was not selected for the position of AP-Student Services. She was notified on November 10, 1989 of the selection of one of the three finalists, a white male, Richard Galloni. Prior to his promotion, Mr. Galloni was chairman of Fernandina Beach High School's mathematics department and served as the school's data systems manager. On December 28, 1989, Petitioner timely filed a charge of racial discrimination with the Florida Commission on Human Relations pursuant to Section 760.10, F.S. alleging that she had been discriminatorily denied promotion to the position of AP-Student Services. All of the administrators of Fernandina Beach High School are white. Approximately, 8% of the teaching faculty is black. Twenty-five per cent of the student body is black. Greater percentages of blacks in each category exist in other schools in the County.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing the Petition. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of April, 1992. ELLA JANE P. DAVIS, 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 2nd day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4323 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-9, 11-21, and 23: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material. 10: Rejected as not supported by the record. Covered in Findings of Fact 13- 15. 22: Covered as modified to more correctly reflect the record in Findings of Fact 10-12. See also Conclusions of Law. Respondent's PFOF: 1-7, 10, 11-12, and 14: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material. 8, and 13: Rejected as subordinate and unnecessary. 9: Accepted in part and in part rejected as not supported, by the record as a whole, as covered in the recommended order. COPIES FURNISHED: Harry Lamb, Jr., Esquire Perry & Lamb, P.A. 605 E. Robinson Street Suite 630 Orlando, Florida 32801 Marshall E. Wood, Esquire 303 Centre Street Suite 200 Post Office P Fernandina Beach, Florida 32034 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Mr. Craig Marsh, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034
