The Issue The issue in this case is whether the discipline imposed on Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the "City"), was appropriate.
Findings Of Fact Based on the Stipulated Record, the following Findings of Fact are made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated under the Charter. Ms. Fessel was employed by the City as an administrative secretary in the City's Police Department, and she was a member of the Union. Ms. Fessel had been counseled and disciplined on several occasions regarding her work performance and behavior pursuant to the City's personal rules and regulations as codified in the City of Cape Coral Code of Ordinances and the Cape Coral Police Department General Orders. All disciplinary proceedings against Ms. Fessel were initiated under the City of Cape Coral Code of Ordinances, Chapter 2, Article III, Division 7, entitled, Discipline of Regular Employees, and pursuant to the collective bargaining agreement between the City and the Union. On September 30, 2011, Ms. Fessel was placed on a 120-day performance improvement plan. On November 2, 2012, Ms. Fessel was suspended for 40 hours. On March 7, 2013, Ms. Fessel was placed on administrative leave with pay. On March 12, 2013, Ms. Fessel remained on paid administrative leave while the City conducted a pre-disciplinary hearing. On April 18, 2013, Ms. Fessel's employment with the City was terminated. The parties have stipulated: The underlying discipline is not being challenged; rather, Petitioner [Ms. Fessel] contends that the suspension with pay during the period March 7, 2013[,] up to and including April 18, 2013, constituted disciplinary action barring any further discipline (i.e., Fessel's termination on or about April 18, 2013) for the same actions.
Findings Of Fact The Respondent, Dan Gardener, is a teacher in the State of Florida, licensed with the Department of Education, holding certificate number 228351. His certificate authorizes him to teach in the areas of guidance, science, elementary education, junior college and mathematics. At the time of his arrest, described below, the Respondent was employed by the Collier County School Board as a teacher at Immokalee Middle School, in Immokalee, Florida. On or about January 4, 1983, the Respondent was employed at the Immokalee Middle School in Collier County. He had in his possession approximately one gram of cocaine and transferred and sold that cocaine to one John Wesley Riley, a confidential informant for law enforcement authorities. At the tie of this sale, the Respondent also offered to sell Riley more cocaine on the following Friday, after school hours, on or near school premises in an area where school buses were parked. As a consequence of these activities, the Respondent was arrested and charged on May 6, 1983, in the Collier County Circuit Court with the crime of selling cocaine. On May 17, 1983, he was suspended from his teaching position indefinitely, without pay, by the Collier County School Board. The fact of and the circumstances of the Respondent's arrest were known to students, parents and the Respondent's colleagues in the Immokalee community. The fact of the arrest was published in newspapers of general circulation in the Immokalee community and in Collier County. On December 12, 1983, the Circuit Court of Collier County, Florida, adjudicated the Respondent guilty of the crime of "sale of cocaine," a second degree felony in violation of Section 893.13(1)(a)(1), Florida Statutes. The Respondent was fined and sentenced to a 30-month imprisonment in the state prison, to be followed by 5 years probation. Respondent is currently serving that prison sentence. In August, 1970, the Respondent submitted an application for a teacher's certificate to the Florida Department of Education. In that application he was asked if he had ever been arrested or involved in a criminal offense other than a minor traffic violation. The Respondent replied in the negative on his application and certified thereon that all information in the application was true and correct. In August, 1978, Respondent submitted an application for an extension of his certificate to the Florida Department of Education. On that application he was asked if he had ever been convicted or had adjudication withheld in a criminal offense, other than a minor traffic violation. The Respondent replied in the negative, and certified that all information on his application was true and correct. Indeed, the Respondent's replies were deceptive and failed to include any information or reference to past criminal convictions. In this connection, on April 14, 1958, the Respondent, after entering a guilty plea in the Criminal Court of Record in Polk County, Florida, was convicted of the offenses of reckless driving and using profane, vulgar and indecent language. He was ordered to pay a $50 fine or serve 60 days in the county jail. On August 8, 1960, the Respondent entered a guilty plea to a charge of arson involved in the burning of his own automobile and the filing of a false insurance claim for insurance proceeds from his insurance company. Upon his conviction of this offense of arson, the Respondent was placed on ten years probation by the court and ordered to make full restitution to the insurance company. The Respondent having comformed to the terms of this probation, the court terminated the probation on April 28, 1966. The information which Respondent failed to disclose was material and pertained to the issue of the Respondent's fitness to receive and hold a teacher's certificate. It could have resulted in the denial of the certificate or the denial of the extension of it, had the Department been informed of the past criminal convictions. The Respondent certified his replies were true and correct, when he knew they were not. Samuel Ramey Lee, Assistant Superintendent of Schools for Collier County, was qualified as an expert witness in the fields of education and personnel administration, as well as standards of teacher effectiveness as they relate to both Collier County and the State of Florida. The fact of the Respondent's conviction for the cocaine sale was communicated and published to his colleagues in the Collier County school system and to students of that school system and their parents, and to the Immokalee community by newspapers of general circulation. Because of the great public awareness of the fact of the Respondent's conviction for the sale of cocaine, his effectiveness as an employee of the school board in Collier County has been substantially reduced. Parents in that community no longer desire the Respondent to teach their children. Because the Respondent's record of conviction by the court and disciplinary action by the school board will remain a part of his permanent record, should he transfer to any other school system in the state, his effectiveness as a teacher in the State of Florida will have been substantially reduced as to his colleagues in the teaching profession in whatever school system he should attempt to become employed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the teacher's certificate of the Respondent, Dan Gardener, be permanently revoked. DONE and ENTERED this 23rd day of October, 1984, in Tallahassee, Florida. COPIES FURNISHED: Wilson Jerry Foster, Esquire Lewis State Bank Building Suite 616 Tallahassee, Florida 32301 Linnes Finney, Jr., Esquire GARY, WILLIAMS and WALKER Post Office Box 3747 Fort Pierce, Florida 33448 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1984. Donald Griesheiiner, Executive Director Education practices Commission Knott Building Tallahassee, Florida 32301
Findings Of Fact On February 15, 1980, the Petitioner held a current, valid Florida Teaching Certificate, was employed by the Duval School Board, and held tenure under the Duval County Teacher Tenure Act. The Petitioner was charged by the School Board with violating the provisions of Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and policies set out at Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund of the Duval County School Board. By Order entered March 17, 1980, the Petitioner was found guilty of all of the charges, and was discharged as a teacher in the school system. [Petitioner's Exhibits 2 and 4] Section DKHA of the Policy Manual establishes procedures for collecting and depositing money that is taken in connection with school activities. Section DKHB establishes procedures for disbursement of funds by classes or clubs at the schools. Section JHC sets procedures for charging admission to entertainment functions sponsored by schools or allied organizations. The polices set out at Pages 12, 30, 37, 40 and 43 of the Operational Manual set more specific guidelines and procedures to be followed in taking and collecting money in connection with school activities. [Petitioner's Exhibit 1] The Duval County School Board Policy Manual, including those sections at issue in this proceeding, were adopted by the School Board after a public hearing was conducted on December 16, 1974. Notice of a public hearing was published in the legal notice section of the Florida Times-Union newspaper in its issues of December 6, 7 and 8, 1974. The manual was not filed with the Department of State, and was not published in either the Florida Administrative Weekly, or the Florida Administrative Code. No citations of authority for the various policies are set out in the manual. [Petitioner's Exhibit 3, testimony of Larry J. Paulk] The Operational Manual for Internal Accounts Activity Fund, including the pages thereof at issue in this proceeding, were adopted by the School Board at a meeting on June 1, 1974. No notice was published, no public hearing was conducted, and no effort was made to promulgate the manual as a rule. The School Board construed the policies as guidelines which implemented rules, rather than as rules. [Testimony of Larry J. Paulk] Sections DKHA, DKHB and JHC of the Duval County School Board Policy Manual; and Pages 12, 30, 37, 40 and 43 of the Operational Manual for Internal Accounts Activity Fund constitute "rules" as defined in Section 120.52, Florida Statutes. [Petitioner's Exhibit 2]
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts, are found: At all times material to this proceeding, Respondent has held Florida Teacher's Certificate No. 270021, issued by the Department of Education, State of Florida. Respondent's Florida Teacher's Certificate covers the areas of elementary education and early childhood education. On or about October, 1983, the Grand Jury filed an eight (8) count indictment against the Respondent in the Nineteenth Judicial Circuit. State of Florida vs. Laurence J. Jacobson, Case No. 83-1079-CF-A. On July 29, 1985, after being tried and convicted by a jury of three counts of sexual battery on a person eleven (11) years of age or less, a violation of Section 794.011(2), Florida Statutes and punishable as a life felony, and four (4) counts of making a lewd, lascivious or indecent assault or act upon or in the presence of a child under the age of fourteen (14) years, a violation of Section 800.04, Florida Statutes, and punishable as a second degree felony, the Respondent was sentenced to three (3) life terms with a 25 year minimum mandatory sentence, the last two (2) sentences to run concurrently with the first sentence and four (4) fifteen (15) year sentences with the first fifteen (15) year sentence to run consecutively with the first life sentence and the last three (3) fifteen (15) year sentences to run concurrently with the first fifteen (15) year sentence. The Respondents was given 686 days credit against his sentence for time incarcerated prior to imposition of sentence. The Respondent was committed to the department of Corrections and is presently serving the sentences imposed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witness, it is, therefore, RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Respondent's Teaching Certificate for violation of Counts I and II of the Amended Administrative Complaint. It is further RECOMMENDED that Count III of the Amended Administrative Complaint be DISMISSED. RESPECTFULLY SUBMITTED and ENTERED this 1st day of April, 1988 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2906 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 Petitioner. The Respondent failed to submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1 - 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 2. 4 - 19. Adopted in Finding of Fact 3 but clarified. 20 - 21. Adopted in Finding of Fact 4 but clarified. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Karen Barr Wilde Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399 Sidney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Chris H. Bentley, Esquire Mr. Laurence Jacobson W. Douglas Beason, Esquire ID No. 098761 ROSE, SUNDSTROM & BENTLEY Post Office Box 221 2544 Blairstone Pines Drive Raiford, Florida 32083-0221 Tallahassee, Florida 32302-1567
Findings Of Fact Respondent, Invarrary Retirement Center, Inc. (IRC), is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregate living facility (ACLF). The facility operates under the name of Inverrary Retirement Center at 5811 Northwest 28th Street, Lauderhill, Florida. On or about April 4, 1984, two HRS inspectors performed a routine relicensure survey of IRC. The purpose of the survey was to determine whether IRC was complying with all HRS requirements relating to record keeping, sanitation, fire and safety. During the course of the survey, the inspectors noted the following violations of HRS rules: There was no staff member within the facility at all times who was certified in an approved first aid course (Rule 10A- 5.19(5)(f), F.A.C.); The facility failed to keep "current" records of self administered medication (Rule 10A-5.18(6)(f), F.A.C.); Menus were not planned and posted where they could be easily viewed by the residents (Rule 10A-5.20(1)(j), F.A.C.); The kitchen was not equipped with an approved exhaust hood over the stove (Rule 10A-5.23(15)(a), F.A.C.); An electrical extension cord was used to service the coffee maker (Rule 10A- 5.23(15)(a), F.A.C.); One of the buildings had an insufficient means of egress for the residents (Rule 10A- 5.23(15)(a), F.A.C.); There were no manually operated fire alarms capable of being heard throughout the facility (Rule 10A-5.23(15)(a), F.A.C.); Respondent failed to provide documenta- tion reflecting the smoke detectors were tested on a weekly basis (Rule 10A- 5.23(15)(a), F.A.C.); and (j) There was a sliding bolt on an exit door on one of the buildings (Rule 10A- 5.23(15)(a), F.A.C.). All of the foregoing constituted a separated violation of HRS rules. 1/ When the survey was completed, the inspectors reviewed all violations with IRC's manager and advised her that a resurvey would be taken in about thirty days, and that all violations must either be corrected by that time, or some action instituted which reflected an intent on the part of the facility to correct the same. This was in accordance with HRS policy governing ACLFs, and approximated the time given other facilities to make similar corrections. On April 10, 1984, a Corrective Action Plan was issued by HRS and sent to IRC. This document set out in detail the various violations found in the April 4 inspection and set a compliance date of May 4, 1984 for all corrections to be made. A resurvey of IRC's facility was made by the same two HRS inspectors on May 18, 1984. With the exception of item (3)(h), which required documentation verifying that smoke detectors be tested weekly, the inspectors noted that no corrections had been made. However, respondent presented evidence that items (3)(b) and (3)(c) had indeed been corrected by that date and such evidence is deemed to be more persuasive than contrary evidence offered by HRS representatives. Further, the violation in item (3)(f), and turns on whether an HRS publication or the City of Lauderdale fire code was controlling when the inspection was made. Because no evidence was presented to establish which standard was in effect, the allegation that an HRS publication was violated must fail. Accordingly, it is found that IRC failed to timely correct items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i), and (3)(j) as required by the Corrective Action Plan. Respondent eventually made all corrections, although not within the HRS imposed deadline. One of the deficiencies [item (3)(d) required extensive renovations, including bids and a city permit, which took considerable time to accomplish. However, IRC's manager neglected to provide HRS inspectors with any evidence on the May 18 visit showing that bids were being solicited, or that there was any "movement" on the project. The same is true for item (3)(g) which required competitive bids from suppliers. IRC also failed to advise HRS that it could not immediately enroll an employee in the Broward County First Aid Course [item (3)(a)] because of the large number of participants in the class. IRC failed to do so even though its manager had been told that an extension on the May 4 deadline could be obtained where IRC gave some evidence to the inspectors that action was being instituted to correct the deficiency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating agency rules as set forth in items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i) and (3)(j) of the administrative complaint, and that a $900 administrative fine be imposed, to be paid within thirty days after the data of the final order rendered in this proceeding. All other charges should be DISMISSED. DONE and ORDERED this 11th day of March, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1985.
