The Issue Whether the Division of Administrative Hearings retains jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1), Florida Statutes, if the Charge of Discrimination has not been filed with the Florida Commission on Human Relations within 180 days of the occurrence of the alleged unlawful employment practice, pursuant to the provisions of Rule 60Y-5.001(a), Florida Administrative Code.
Findings Of Fact Petitioner is a white male, who was 58 years of age at the relevant time, and is a former associate professor in the School of Communications at the University of Central Florida. In 1988-89, Petitioner was an untenured professor, with tenure decisions pending the following year. Petitioner alleges that the director of his department began practicing a pattern of discriminatory conduct by placing false information in his evaluation file which ultimately affected his rating and with the intent to deny him tenure. On October 8, 1990, Petitioner discovered that the ratings for 1989-90 had been changed by the director of the department. As a result of this action, Petitioner filed a grievance with the United Faculty of Florida (UFF). Petitioner did not file a charge of discrimination with the Florida Commission on Human Relations (FCHR) as a result of this event. On May 16, 1991, Petitioner acknowledged receipt of an evaluation by the Chair of the department which Petitioner alleges was inaccurate and incorrect. As a result of this action, Petitioner filed a grievance with the union and with the President's office on June 7, 1991. A Settlement of the grievance was signed on September 6, 1991. On January 8, 1992, Petitioner discovered that the settlement had not been implemented by the university. On July 19, 1991, Petitioner was denied tenure and offered a terminal contract, which indicated that it would not be renewed beyond the indicated date. On August 26, 1991, Petitioner accepted the contract. On March 30, 1992, Petitioner filed with the FCHR a Charge of Discrimination. Petitioner alleged that UCF committed age discrimination against him by filing improper evaluations of his teaching performance in 1990 and again in 1991, and that as a result of that unlawful employment practice he was improperly denied tenure and placed on a terminal contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief filed by Petitioner in FCHR Case No. 92-3504 and DOAH Case No. 93-6414 for failure to timely file his original Charge of Discrimination. DONE AND ENTERED this 29th day of April, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 29th day of April, 1994. COPIES FURNISHED: Scott Silzer, Esquire University of Central Florida P. O. Box 160015 Orlando, Florida 32816-0015 Mr. Guy McCann 1510 Mizell Avenue Winter Park, Florida 32789 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Suite 240 Building F Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road, Suite 240 Building F Tallahassee, Florida 32303-4149
The Issue Whether just cause exists for Petitioner to suspend Respondent’s employment as a teacher, without pay, for 15 days.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. Respondent has been a teacher for over 17 years. Most of her career has involved teaching special education “ESE” and/or “EBD” students. Respondent was first hired by the School Board in 2002 and worked at different schools over the years, including in Broward County, Florida. In 2015, Respondent returned to the School Board. Since the 2019 school year, and at all times relevant to this case, Respondent has been employed at Linda Lentin K-8 Center, a public school in Miami-Dade County, pursuant to a professional services contract. At all times relevant to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade. Disciplinary History Respondent has not been the subject of any prior discipline from the School Board. The September 24, 2019, Fight Involving A.J. and A.B. The alleged conduct giving rise to the School Board’s proposed suspension of Respondent occurred on September 24, 2019, during the 2019- 2020 school year, at which time Respondent was an EBD teacher at Linda Lentin K-8 Center. At that time, Ms. Buck, a paraprofessional, was assigned to Respondent’s classroom. EBD students have emotional and/or behavioral disabilities and often exhibit behavioral problems. Respondent’s EBD class was held in a self-contained classroom and consisted of a total of nine male students ranging from grades six to eight. A.J. and A.B. were two of the students in Respondent’s class. On September 24, 2019, while Respondent was conducting a lesson, A.J. and A.B. began arguing. The argument quickly developed into a physical altercation between A.J. and A.B. A 43-second video captured relevant portions of the incident. At the start of the video, A.J and A.B. can be seen squaring off against each other. As they squared off, Respondent walked by A.J. and pushed him toward A.B. At hearing, Ms. Buck persuasively and credibly testified that as Respondent pushed A.J. toward A.B., she heard Respondent state words to the effect of “move” or “get out of my way.” After pushing A.J. toward A.B., Respondent retreated to her desk area and distanced herself from the incident. In the meantime, with Respondent out of the way, A.J.’s and A.B.’s squaring off against each other escalated to a full-blown physical altercation in the classroom lasting at least 30 seconds. After the fight commenced, Ms. Buck pushed the security call button and ultimately intervened by pulling the boys apart with the help of another student. Respondent did not take any action to try and stop the altercation between A.J. and A.B., or call security herself. Mr. Fabel is an ESE staffing specialist with the School Board who trains district employees in Safe Crisis Management (“SCM”). All EBD teachers and paraprofessionals employed by the School Board are required to attend SCM training to learn how to deal with the behaviors of EBD students. EBD training lasts three days and instructs employees on how to manage student behaviors via non-physical and verbal interventions and, if necessary, physically. Both Respondent and Ms. Buck attended the required SCM training prior to the 2019-2020 school year. Without objection, Mr. Fabel was qualified, at hearing, as an expert in the School Board’s SCM training. Mr. Fabel watched the video and persuasively and credibly testified at hearing regarding interventions Respondent could have used to rectify the situation when A.J. and A.B. were squaring off. For example, Respondent could have given the students clear and firm verbal commands to move away from each other and return to their seats. Respondent also could have utilized a “guided assist”--taking the students by the arm and moving them to another part of the classroom. Respondent also could have positioned herself in between A.J. and A.B. so that the students’ avenue of approach toward each other, and eye contact with each other, was blocked. Mr. Fabel testified that when students are just squaring off, like A.J. and A.B. were at the beginning of the video, “they’re looking for somebody to intervene and keep them from getting into it.” However, Mr. Fabel persuasively and credibly testified that when Respondent walked away from the situation and went to her desk, it was a “green light for them to then go at one another.” Respondent’s conduct on September 24, 2019, was inappropriate, reflected poorly upon herself and the School Board, and reduced Respondent’s ability to effectively perform her duties. Respondent could certainly have responded to A.J.'s and A.B.'s squaring off through means other than pushing A.J. toward A.B. and retreating to her desk. The persuasive and credible evidence adduced at hearing demonstrates that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rules 6A-5.056(2)(b) through (e) and 6A-10.081(2)(a)1. By pushing A.J. toward A.B. and retreating to her desk on September 24, 2019, Respondent violated rules 6A-5.056(2)(b) through (e) and 6A-10.081(2)(a)1., by disrupting the students' learning environment, thus reducing Respondent’s ability to effectively perform her duties; failing to make reasonable effort to protect the students from conditions harmful to learning and/or to the students' mental and/or physical heath and/or safety. Respondent also violated School Board Policy 3210, Standards of Ethical Conduct, section A.3., which mirrors rule 6A-10.081(2)(a)1. Respondent also violated School Board Policy 3213, Student Supervision and Welfare, which requires that teachers protect the physical and emotional well-being of students by maintaining the highest professional, moral, and ethical standards in dealing with the supervision, control and protection of students on or off school property, and reporting immediately to a building administrator any safety hazard or other potentially harmful condition or situation she detects.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order upholding the suspension of Respondent’s employment as a teacher, without pay, for 15 days. DONE AND ENTERED this 29th day of July, 2021, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2021. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether a convicted felon should be dismissed from her position as a public school teacher for having committed a criminal act.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. When this proceeding began, Respondent Shaneen Singleton ("Singleton") was a fifth-year teacher in Miami, where she taught second grade. From 2002 until she was suspended in January 2007, Singleton was assigned to Edison Park Elementary, which is a public school within the School Board's jurisdiction. Singleton was born in 1974, the second oldest of ten siblings. She grew up near downtown Miami in Overtown, a dangerous inner-city neighborhood plagued by poverty and crime. In Singleton's words: "Of course . . . you have the fighting, the shootings, a lot of things going on [in Overtown]." As a child, Singleton met Tashimba Andrews, who has been a lifelong friend. When they were teenagers, Ms. Andrews and Singleton participated in a government program for children whose parents were receiving public assistance. Through this program, Ms. Andrews and Singleton were employed, for several summers, as day care providers, giving them an opportunity to do "teacher like things" with children. From this experience, the two developed a love for teaching. After high school graduation, Singleton and Ms. Andrews went to college together. Soon, however, their paths diverged. Singleton became pregnant, dropped out of college, and had a baby. Ms. Andrews continued with her education, eventually earning a bachelor's degree in elementary education, a master's degree in exceptional student education, and a specialist's degree in educational leadership. She would become, in time, a teacher in the Miami-Dade County Public School System. As of the final hearing, Ms. Andrew was in her second year as an assistant principal at Miami Edison Senior High School. After quitting college, Singleton returned to Overtown and landed a part-time job. Needing a place of her own, Singleton applied for public housing assistance. She was accepted to receive aid under the "Section 8" program, which subsidizes the costs of housing for low-income families. And so, as of 1995, Singleton, age 19, was a single mother living in Section 8 housing in Overtown, having no formal education beyond high school. During the next several years, Ms. Andrews (Singleton's childhood friend) goaded Singleton into pursuing a college degree. At some point, Ms. Andrews even assumed substantial responsibility for rearing Singleton's son, whom she took into her own home, so that Singleton could concentrate on her studies. Singleton eventually earned a two-year degree from the local community college. With that, she was able to work as a paraprofessional and substitute teacher. Ms. Andrews continued to push Singleton, urging her to get a bachelor's degree. Singleton rose to the challenge, attending, first, Florida International University and, later, Nova Southeastern University, which latter institution awarded her a bachelor's degree in 2002. Thereafter, she attended graduate school and received a master's degree in reading education. At the time of the hearing, Singleton expected to graduate in July 2007 with a specialist's degree in math. Sometime before graduating from Nova and taking her first full-time teaching position in the Miami-Dade County Public Schools, which events took place in 2002, Singleton gave birth to her second child, got married, and moved out of her subsidized apartment, to live with her husband. Before vacating her apartment, however, Singleton allowed her unemployed younger sister——who had no place else to go——to move in with her. When Singleton left, the sister stayed. The sister remained in the Section 8 apartment for at least the next couple of years, during which time Singleton signed the lease for "her" apartment——as if she were still a tenant——even though, in fact, she no longer lived there. As a result, the federal government paid a rental subsidy to Singleton's former landlord, which actually benefited Singleton's sister, rather than Singleton. Singleton testified at hearing that, in signing the lease which allowed her sister to benefit from the Section 8 rental subsidy meant for Singleton, she did not intend to commit a crime. Ms. Andrews corroborated this testimony, asserting her belief, as a confidant of Singleton's, that Singleton had not intended to defraud the government. Elaborating, Ms. Andrews testified: "[Singleton's] family depends on her a lot, and I think that many times she's put in circumstances that could —— that I just —— morally, she was asked to do something to help a family member, and it inadvertently affected her." The undersigned accepts the foregoing evidence——which was not rebutted——and finds that, more likely than not, Singleton's action(s) in furtherance of securing a Section 8 rental subsidy for her sister's benefit were not the product of a criminal or fraudulent intent. Rather, Singleton——who did not stand to gain personally——was motivated by the desire or need to provide her sister with someplace to live.1 That said, the undersigned does not find that Singleton had no idea that what she did was wrong. To the contrary, she must have known that obtaining a rental subsidy, in her own name, for an apartment that she no longer occupied—— even for the good purpose of providing shelter for her sister—— was improper. Singleton had no legal excuse or justification for her misdeed, which involved conduct that was contrary to societal expectations regarding socially acceptable behavior, as such are expressed through positive law. In June 2006, Singleton was arrested pursuant to a federal indictment that charged her with 46 counts of violating Title 18, U.S. Code, Section 641.2 This crime, which entails theft or conversion of public property, is defined as follows: Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted— Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both. The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater. 18 U.S.C. § 641 (emphasis added)(hereafter, "Criminal Conversion").3 Singleton immediately informed her principal, Veronica Swindell-Wesley, that she had been arrested, although she did not provide Ms. Swindell-Wesley with details regarding the nature of the charges. In July 2006, Singleton entered into a Plea Agreement with the United States whereby she agreed to plead guilty to a single count of the indictment in exchange for the government's promise to seek dismissal of the remaining 45 counts. In August 2006, Singleton returned to the classroom after the summer break. Ms. Swindell-Wesley allowed Singleton to continue teaching, despite the pendency of the criminal case, and even assigned her new duties, naming her the reading instructor. On September 15, 2006, the federal court accepted the Singleton's plea, adjudicated her guilty of one act of Criminal Conversion, and dismissed all of the remaining charges. (Parenthetically, none of the allegations made against Singleton in the 45 counts that were dismissed was ever proved——and mere allegations, which could not support a criminal conviction, obviously cannot support an adverse employment decision based on a criminal conviction. It is a point worth emphasizing, therefore, that Singleton was convicted only for one isolated bad act, not the continuing series of bad acts which the government originally charged Singleton with perpetrating but ultimately never proved. Indeed, for the purposes of this case, Singleton is presumed innocent of the crimes alleged in the dismissed counts, just as any person accused of a crime would be deemed innocent unless and until guilt were established by proof beyond a reasonable doubt.) Singleton was sentenced to one year of probation, ordered to make restitution to the government in the amount of $1,036, and fined $15,000.4 Singleton paid the restitution immediately, and the court terminated her probation. As of the hearing, she was paying the fine at the rate of $50 per month. Following Singleton's conviction, the school district's investigative and disciplinary personnel took immediate action. In short order, a conference-for-the-record ("CFR") was scheduled to discuss Singleton's future as a teacher. The CFR was held on October 26, 2006. Before the meeting, Ms. Swindell-Wesley wrote a letter of support for Singleton. Dated October 26, 2006, the letter provides as follows: To Whom it May Concern: This is a letter of support for Shaneen Singleton, Teacher at Edison Park Elementary School. I have supervised Ms. Singleton for the past two and [a] half years, and I must admit that I am impressed with her commitment, professionalism, and abilities to do her job. Ms. Singleton is currently working as a Reading Teacher at Edison Park Elementary. She is an enthusiastic employee who is always encouraging, nurturing of all students and supportive of staff here at our school. Ms. Singleton is also very astute where students are concerned and demonstrates sharp leadership skills. She is also proactive and takes responsibility for the work of the school. She has always demonstrated high morals and character while at work. Ms. Singleton regularly confers with the Leadership Team about the curriculum in our school to assist the Administration with compliance of district trends and initiatives. Ms. Singleton consistently exhibits her dedication to the Edison Park family by participating on several school-wide committees. These committees include, Honor Roll, Black History, Spanish Heritage, Safety Patrol, Haitian Flag, Leadership Team, Teacher of the Year, Grade Level Chair and Literacy Team. She is an excellent employee and is an asset to the enhancement of student achievement in Miami-Dade County Schools. Singleton submitted Ms. Swindell-Wesley's letter, together with four other such letters of recommendation, into the record at the CFR (according to the summary of the meeting, which is in evidence).5 After the CFR, it was Ms. Swindell-Wesley's duty to make a recommendation concerning the disciplinary action to be taken, if any, against Singleton. In a memorandum dated October 26, 2006, Ms. Swindell-Wesley urged that Singleton be fired, writing: Based on Records Check #L-26145, Ms. Shaneen Singleton confirmed that she was arrested and pleaded guilty for Theft of Public Monies. Although Ms. Singleton has exhibited excellent teaching qualities, this does not excuse the commission and conviction of a crime involving moral turpitude. Based on the information presented at the Conference for the Record, a review of the record, and the United States District Court Southern District of Florida Indictment, it is my recommendation that Ms. Singleton be dismissed from employment with Miami-Dade County Public Schools. At the time she prepared this memorandum, Ms. Swindell-Wesley believed she had no choice but to recommend Singleton's dismissal, based on the nature of the crime she had committed.6 In due course, the recommendation was made to the School Board that Singleton's employment be terminated. At its regular meeting on January 17, 2007, the School Board voted in favor of suspending Singleton without pay pending termination of employment. The facts and circumstances surrounding Singleton's arrest and conviction were not publicized in the media nor discussed by the staff or students at Edison Park Elementary. Indeed, there is no evidence that the facts concerning her offense were known beyond the small circle of people directly and immediately involved. There is likewise no evidence of any parental complaints stemming from Singleton's conviction. Nor is there any evidence, one way or the other, as to whether the knowing conversion of a housing voucher is considered a very serious and morally wrong offense in the community where Singleton was teaching. There is, however, persuasive, credible evidence——and it is found——that Singleton's job performance did not suffer at all, either after her arrest or subsequent conviction. Singleton, in fact, retained her effectiveness as a teacher, despite the criminal act that caused her to be prosecuted and punished.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (1) finding Singleton not guilty of the charges brought against her and (2) imposing an appropriate punishment, besides dismissal, consistent with the principle of progressive discipline, in consequence of her criminal conviction. DONE AND ENTERED this 21st day of June, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 21st day of June, 2007.
Findings Of Fact The Town and The Parties The City of Opa Locka is an incorporated municipality within Dade County, Florida. It is approximately 4.5 square miles, with a population of approximately 14,000, and some 5,000 registered voters. If this case is a valid example, citizens of Opa Locka actively and enthusiastically are involved in the local political process. The process can become lusty and raw with acrimony. Timothy Holmes, a citizen of Opa Locka and full-time community activist, receives disability income and is otherwise unemployed. From time to time he has provided various services or errands for attorney, James Greason, and at one time he had cards printed identifying himself as an investigator for Greason. His primary activities in recent years have been related to non- compensated membership on several municipal boards and committees. From approximately 1982, until its abolition in December 1988, Timothy Homes was on the Opa Locka Code Enforcement Board. He was then appointed to the Zoning Board of Appeals. He was on that board in 1989 when he decided to run for the city commission in the 1990 elections, for the seat occupied by Ollie B. Kelley. He did not formally file for the election until early 1990, and it is unclear when his intent was made known, but he had previously endorsed candidates in opposition to seated board members. Ollie B. Kelley is employed as a baker for the Dade County School Board. She is currently vice-mayor of Opa Locka and has served on the commission since 1986. Robert Ingram is a visiting professor at Florida Memorial College and is mayor of the City of Opa Locka, having served in that elected office for approximately 5 years. He previously served as Opa Locka police chief from 1980 to 1985. For the past three years, L. Dennis Whitt has been city manager for the City of Opa Locka. Daniel Reyes was employed as assistant to the city manager, L. Dennis Whitt, from November 28, 1989 until November 30, 1990, when he was terminated for various alleged wrongdoings. Holmes' Removal From The Board When Dennis Whitt came to the city in the middle of June 1989, he was made aware of Timothy Holmes' activities. Holmes exhibited behavior which Whitt considered inappropriate for an official of the city. Whitt received complaints and questions about Holmes as to perceived conflicts between his function as a board member and his services to Attorney Greason, who was representing parties in litigation against or involving the city. Holmes also was alleged to have gained access to city facilities based on his public office, but in furtherance of outside interests. Holmes wrote letters to the newspaper criticizing the city commission and was heard berating the commission in their meetings, calling them "Papa Doc, Mama Doc and Baby Doc", in an unflattering reference to former Haitian dictators. This latter incident was particularly irritating to Commissioner Kelley. She approached Whitt and asked whether something could be done. In response, Whitt researched the city charter for the procedure for removal of board members; he drafted an affidavit of charges based on his conversations with Commissioner Kelley and his own personal observations. He met with Commissioner Kelley on September 27, 1989 and gave her the affidavit. Although Dennis Whitt understood that board members could be removed for cause, the existing procedures applied to employees of the city, so he developed the language of the affidavit from the city's personnel rules, citing violations of a "standard of conduct", "insubordination" and "disgraceful conduct", "antagonism", interference with the proper "cooperation of employees", and use of his official capacity to solicit attorneys in litigation with the city and to conduct a private investigation of a city employee. (Petitioner's Exhibit #7) Commissioner Kelley signed the affidavit; it was presented to the full commission at the September 27th meeting; and the commission unanimously voted (with Kelley abstaining, because she brought the charges) to suspend Timothy Holmes from the Zoning Board of Appeals. The action, reflected in Resolution No. 5138, also set a public hearing on removal for November 8, 1989. At Holmes' request the hearing was continued to a later meeting, January 10, 1990. In the meantime, Dennis Whitt was instructed to conduct an investigation and bring together witnesses and evidence for the hearing. The hearing on removal of Timothy Holmes commenced at 7:00 p.m. on January 10th and proceeded into the early hours of the morning of January 11th. Timothy Holmes was represented by counsel, James H. Greason. The city was represented by its city attorney, Teretha Lundy-Thomas. Ms. Kelley testified, and did not participate as a voting member of the commission. Two law enforcement officers also testified. Three members of the public, including former mayor John Riley, testified on behalf of Timothy Holmes. The Commission voted to sustain the allegations regarding general insubordination and similar charges, but the last two charges regarding misuse of office failed for lack of majority vote. After votes on the separate charges, Dennis Whitt informed the commission that Holmes' removal from the board would need to be finalized with a resolution. The meeting was recessed to allow the city attorney and city manager to prepare the resolution. When the commission reconvened, the resolution removing Timothy Holmes passed 4-0, again with Commissioner Kelley abstaining. Holmes' Complaint To The Ethics Commission Holmes was convinced that his removal was a political vendetta. At some point after the public hearing he was in Attorney Greason's office and met Daniel Reyes. Reyes mentioned that he was with the city when the hearing took place and in Reyes' opinion, the removal in January 1990 was wrong. Reyes had heard Holmes and others referred to as "V.C." or "Viet Cong" - political enemies to be eliminated. Holmes was delighted to get information which he felt confirmed his own suspicions. Reyes executed an affidavit, dated June 11, 1991, stating among other matters, that "In January, 1990, Affiant, while so employed [as assistant to the city manager] witnessed City Manager L. Dennis Whitt and Mayor Robert Ingram conspire together to formulate changes which were used to remove Timothy Holmes as a member of the Opa-Locka Zoning Board . . . " (Petitioner's exhibit #3) That affidavit and an affidavit executed by Timothy Holmes were attached to a Commission on Ethics complaint form executed by Timothy Holmes on October 23, 1991. The affidavits and complaint to the Ethics Commission were prepared with the assistance of James Greason. At some point the above-referenced date on Reyes' affidavit, "January 1990", was struck through, and "September 1989" was substituted. Reyes initialed the change. The "corrected" date on Reyes' affidavit made the affidavit false, since Reyes was obviously not employed by the City in September 1989. He initialed the change at Greason's direction and never really looked at the date or considered it. Reyes was employed at the time of the removal hearing, but not when the process was first initiated. He was present when the resolution for removal was drafted during the January meeting's recess, but admittedly had no personal knowledge of the drafting of the initial affidavit by Whitt or the suspension resolution. The substance of Timothy Holmes' complaint to the Commission in Ethics was that Kelley, Ingram and Whitt conspired to remove him for actions protected by the First Amendment and for the purpose of discrediting him and politically damaging him in the November 1990 municipal election. He based the complaint on his own perception of the political climate and on what he understood were specific first-hand observations by Whitt's former assistant, Daniel Reyes. On January 29, 1992, the Commission issued its public report and order dismissing complaint: . . . On Friday, January 24, 1992, the Commission on Ethics met in executive session and considered this complaint for legal sufficiency pursuant to Commission Rule 34-5.002, F.A.C. The Commission's review was limited to questions of jurisdiction of the Commission and of the adequacy of the details of the complaint to allege a violation of the Code of Ethics for Public Officers and Employees. No factual investigation preceded the review, and therefore the Commission's conclusions do not reflect on the accuracy of the allegations of the complaint. The Commission voted to adopt the legal sufficiency analysis of its Executive Director, a copy of which is attached. Accordingly, this complaint is dismissed for failure to constitute a legally sufficient complaint with the issuance of this public report, which shall include the complaint and all documents related to the complaint. . . . The Petition for Fees and Costs Richard Venditti has handled legal matters for the City of Opa Locka and its officials in the past. He served as special master on contract with the City and also represented a couple of commissioners who were being investigated on charges by a private citizen. He represented Dennis Whitt in an action brought by Daniel Reyes for punitive damages related to his employment termination. When Whitt, Kelley and Ingram were served with Timothy Holmes' complaint to the Ethics Commission, they consulted individually with Richard Venditti. No papers or responsive pleadings were filed by or on behalf of respondents prior to the Ethics Commission's dismissal of the complaint. However each respondent was reasonably concerned and sought their attorney's advice. Petitions for costs and attorney's fees were filed with the Commission on Ethics on behalf of respondents, Kelley, Whitt and Ingram on February 28, 1992. Richard Venditti and L. Dennis Whitt drafted the petitions with information supplied primarily by Whitt. On March 11, 1992, Richard Venditti submitted individual bills to Whitt, Kelley and Ingram in the respective amounts of $1,665.00, $690.00 and $690.00. Most of the time reflected on the bills' itemization relates to the recovery of fees. The bills have not been paid, and the respondents are each unclear as to whether the city will pay the bills for them. They understand that they are personally responsible if the city does not pay the bills. Summary of findings Timothy Holmes filed his complaint with the advice and active assistance of an attorney. He was convinced that since his removal did not relate to specific misdeeds as a Zoning Board member, the removal was politically motivated and was in retaliation for zealous exercise of his rights as a citizen. He relied on those personal convictions and on statements by Daniel Reyes, whom he chanced to meet in his attorney's office and who gave him what appeared to be reliable inside information. Further investigation would have required his confronting the very persons he believed had conspired against him. The handwritten, "corrected" date on Reyes' affidavit was an error, but not Holmes' error. It apparently was an effort by someone other than Holmes to conform the statement to the date the process was initiated. Reyes, himself, explained that the "conspiracy" he witnessed was at the time of the removal hearing. This explanation is consistent with Whitt's testimony regarding the temporary recess required to draft the removal resolution. Reyes, and not Holmes, was negligent in checking the date on his affidavit before he initialled the change. Reyes presence when Dennis Whitt and the City Attorney drafted the removal resolution during the hearing recess makes it easy to understand why he felt the resolution was a foregone conclusion: it was. Each charge against Timothy Holmes had just been voted up or down, and the resolution, according to the city manager, was a necessary final step in the process. For good reason, the vote for removal was then beyond any doubt. The claim that Ollie Kelley had no knowledge of the facts in the affidavit of charges was based on Ms. Kelley's unfamiliarity with some of the terms used by Dennis Whitt in the draft. She was required to read the charges both at the meeting when suspension was voted and at the removal hearing. She stumbled over words such as "antagonistic". These were terms from the city's personnel manual and, although they may not have been part of Ms. Kelley's vocabulary, when explained to her they adequately expressed her personal concerns about Holmes' activities. It is neither necessary nor appropriate here to unravel the tangled web of political intrigue woven by the allegations and counter-allegations of the parties in this proceeding. Like Commissioner Kelley who was ignorant as to how to proceed but instinctively felt that something was wrong, Timothy Holmes reasonably relied on the advice of others in pursuing a remedy for relief. Timothy Holmes was misguided, but was not, himself, malicious.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter its Final Order denying fees and costs to Robert B. Ingram, Ollie B. Kelley and L. Dennis Whitt. DONE and RECOMMENDED this 11th day of September, 1992 in Tallahassee, Leon County, Florida. MARY CLARK 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 11th day of September, 1992. APPENDIX The following are rulings made pursuant to Section 120.59(2) F.S. the parties proposed findings of fact. Findings of Fact Proposed by Ingram, Kelley and Whitt: Adopted in substance in paragraph 7. and 3. Rejected as unnecessary or immaterial. Adopted in part in paragraph 2, otherwise rejected as unnecessary or immaterial. Adopted in part in paragraph 3, otherwise rejected as immaterial. and 7. Adopted in substance in paragraph 14. 8. - 13. Rejected as immaterial, since Holmes' reliance on Reyes was reasonable and consistent with his own perception of the events leading to his removal. 14. - 19. Rejected as unnecessary or immaterial. Adopted in substance in paragraphs 4 and 9. Adopted in part in paragraphs 10 and 26. Adopted in substance in paragraph 5. 23. - 25. Rejected as unnecessary. 26. Adopted in paragraph 19. 27. Rejected as unnecessary. 28. Adopted in paragraphs 6 and 7. Adopted in paragraph 9. Adopted in paragraphs 10 and 11. Adopted in paragraph 13. 32. - 34. Rejected as unnecessary. 35. Adopted in substance in paragraph 19. 36. - 40. Rejected as unnecessary. Findings of Fact Proposed by Holmes 1. - 3. Rejected as unnecessary. Addressed in conclusions of law. Adopted in paragraph 18. The legal argument is rejected as contrary to prior ruling by the Commission. - 7. Legal argument rejected as provided in paragraph 5, above. The conclusion is adopted generally in paragraphs 23- 27. Adopted in "Recommendation". COPIES FURNISHED: Richard Venditti, Esquire 250 Bird Road, Ste. 102 Coral Gables, FL 33146 Timothy Holmes 275 Seaman Avenue Opa Locka, FL 33054 James H. Greason, Esquire 4165 NW 135th Street Opa Locka, FL 33054 Tracey Maleszewski Clerk & Complaint Coordinator Ethics Commission Capitol, Room 2105 P.O. Box 6 Tallahassee, FL 32302-0006 Bonnie J. Williams, Executive Director Commission on Ethics The Capitol, Room 2105 P.O. Box 6 Tallahassee, FL 32302-0006
