The Issue Should discipline be imposed by the State of Florida, Education Practices Commission, against the Respondent's Florida Educator's Teaching Certificate No. 770007, for alleged professional misconduct?
Findings Of Fact Respondent was issued Florida Educator's Teaching Certificate No. 77007 on September 4, 1997, and continued to hold that certificate in an active status until June 30, 2001. Respondent's initial certificate was valid beginning July 1, 1997. The certification covered the subject area of biology. VIRGINIA STATE BAR DISCIPLINE At one time Respondent was a practicing attorney in the state of Virginia. In an action before the Virginia State Bar Tenth District Disciplinary Committee, IN RE: GEOFFREY T. WILLIAMS, SR., RESPONDENT, Docket No. 89-102-0281, dated November 6, 1989, Respondent received a public reprimand. The order setting forth the factual basis and provisions of the Virginia State Bar Disciplinary Rules violated is found as Petitioner's Exhibit No. 8, admitted. Further disciplinary action was taken against Respondent before the Virginia State Bar Disciplinary Board, In the Matter of Geoffrey T. Williams, Sr., VSB Docket Nos. 89-051-0857; 91-05l-0139; 92-051-0185 and 92-051-0558. In these cases orders were entered by the Virginia State Bar Disciplinary Board Chair on February 26, 1993 and May 10, 1993, revoking Respondent's license to practice law in the Commonwealth of Virginia. The opinion and order of revocation set forth facts forming the basis for the decision and identified the rules of the Virginia Code of Professional Responsibility violated by Respondent leading to the discipline imposed. Petitioner's Exhibit No. 7 admitted as evidence is constituted of those orders describing the revocation. The Virginia State Bar found reason to discipline Respondent based upon his treatment of legal clients and business practices with his partners. The grounds for discipline included the recognition that Respondent's conduct involved dishonesty, fraud, deceit, or misrepresentation, adversely reflecting on his fitness to practice law, among other grounds. EXPLOITATION OF AN ELDERLY PERSON/THEFT In State of Florida vs. Geoffrey Thomas Williams, Sr., in the Circuit Court of the Seventh Judicial Circuit, in and for Volusia County, Florida, Case No. CRC00-34359CFAEF, an information was brought against Respondent. Count 1 charged exploitation of an elderly person, and/or a disabled adult in violation of Section 825.103(1) and (2), Florida Statutes. Count 2 charged grand theft in violation of Section 812.014(1) and (2) (c), Florida Statutes. Both counts pertain to Respondent's association with M.B. and her funds. The period envisioned by the counts to the information was from February 1, 2000 through March 27, 2001. Respondent pled nolo contendere to both counts. Respondent was adjudicated guilty of both counts, felony offences in Florida. Respondent was placed upon probation and made to pay court costs and jurisdiction was reserved to determine restitution upon the motion of the State. The period of probation was for five years under supervision of the Department of Corrections. M.B., Respondent's acquaintance, was at the time in question experiencing erratic thoughts, did not have good insight, and evidenced poor judgement. M.B. was being cared for by a psychiatrist. M.B. was a client of a health care company assigned to attend her interest. M.B. was not able to manage her daily affairs. Respondent had expressed an interest in discussing relieving M.B. of her legal obligations. This expression was made to Kimberly Zbin, a case manager with ACT Corporation, the mental health company assisting M.B. as its client. Respondent acknowledged to Linda Basbagill, an investigator who was at that time an investigator with the Department of Children and Family Services, that Respondent received checks from M.B. or M.B. issued checks on his behalf. Examples of those checks are found in Petitioner's Exhibit No. 6 admitted. The dates on those checks correspond to the dates within the criminal information that has been described. EXPERT OPINION Duane Busse is the Director of Professional Standards for the School District of Volusia County, Florida. He holds bachelor's and master's degrees from Florida State University in education. He is an expert in education. He has been a teacher, a principal, has worked at the state level in education, and is a school district level administrator. His present position with Volusia County School District involves the investigation of alleged employee misconduct and the imposition of discipline for that misconduct. Mr. Busse is familiar with the documents that have been described concerning the action taken by the Virginia State Bar Disciplinary Board and the Circuit Court in Florida, Criminal Division. Mr. Busse expressed the opinion that the outcomes in the bar discipline and the criminal court case reduce Respondent's effectiveness as an educator. Mr. Busse expresses the belief that Respondent would not be eligible for any type of employment with the school system where the witness is employed. Mr. Busse expressed the opinion that the Respondent has precluded himself from any level of a trust from parents and students based upon the circumstances in the bar discipline and criminal court case. He premises his opinion on loss of effectiveness on the fact of having been in Volusia County for about 15 years and his familiarity with people in Volusia County as to their expectations for moral standards of teachers.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Sections 231.2615(1)(c), and 231.2615(1)(e), Florida Statutes, set forth in Counts 1 and 3 respectively and dismissing the allegations of a violation of Section 231.2615(1)(f), Florida Statutes, as set forth in Count 3, and imposing permanent revocation of his teaching certificate pursuant to Section 231.2615(1), Florida Statutes. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. 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 31st day of January, 2001. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-013 Geoffrey T. Williams 8161 West Eastman Place Building 16, Apartment 103 Lakewood, Colorado 80227 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400
The Issue The issues are whether Respondent's construction of Section 11.062, Florida Statutes (2006), is an unadopted rule, described in Subsection 120.56(4), Florida Statutes (2006); whether rulemaking is not feasible for a reason authorized in Subsection 120.54(1)(a), Florida Statutes (2006); and whether either of the petitioners is a person substantially affected by the unadopted rule. (Statutory references are to Florida Statutes (2006)).1
Findings Of Fact Petitioner, Capital Collateral Regional Counsel-Middle Region (CCRC-MR), is one of three governmental units authorized in Section 27.701 to provide collateral legal representation for certain persons convicted and sentenced to death in the state. Each governmental unit functions in a distinct multi-county region identified in the statute as either the northern, middle, or southern region. The middle region in which CCRC-MR is statutorily required to function consists of eight judicial circuits. The judicial circuits are statutorily identified as the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, and Thirteenth Judicial Circuits. Petitioner, John W. Jennings, is the Capital Collateral Regional Counsel with statutory responsibility for administering CCRC-MR. The Supreme Court Judicial Nominating Committee recommended Mr. Jennings to the Governor, the Governor appointed Mr. Jennings, and the Florida Senate confirmed the appointment. Each appointment is for a three-year period. Mr. Jennings is currently subject to reappointment. The administration of CCRC-MR is supervised by the Commission on Capital Cases (Commission). The Commission has exclusive statutory responsibility for the oversight of each regional office pursuant to Section 27.709. The Commission consists of six members each of whom serves a term of four years. The Governor appoints two members to the Commission. The President of the Senate and the Speaker of the House each appoint two members. One of the two members appointed by the President and Speaker, respectively, must be a member of the majority party, and the other appointee must be a member of the minority party. The Office of Legislative Services is statutorily required to provide staff support to the Commission. Salaries for each regional office must be submitted annually to the Justice Administrative Commission and the offices of the President of the Senate and the Speaker of the House in accordance with Subsection 27.705. However, Section 27.702(1) provides, in relevant part: The three capital collateral regional counsels' offices shall function independently and be separate budget entities, and the regional counsels shall be the office heads for all purposes. The Justice Administrative Commission shall provide administrative support and service to the three offices to the extent requested by the regional counsels. The three regional counsels shall not be subject to control, supervision, or direction by the Justice Administrative Commission in any manner, including, but not limited to, personnel, purchasing, transactions involving real or personal property, and budgetary matters. Respondent is a state agency authorized in Section 17.002. Respondent is an executive agency described in Subsection 20.121. Section 11.062, in relevant part, prohibits an executive, judicial, or quasi-judicial department from using public funds to retain a lobbyist other than a full-time agency employee (outside lobbyist) to represent the department before the legislative or executive branches of government (prohibited lobbying). If public funds are misused for prohibited lobbying, the statute provides that Respondent "shall" deduct the amount of misused public funds from the salary of the responsible state employee and that the offending department will be barred from authorized lobbying for two years.2 It is undisputed that Petitioners have registered and paid outside lobbyists to lobby the legislative and executive branches of government on behalf of CCRC-MR from 2001 through 2005. The primary purpose of the lobbying effort has been to ensure annual budgets that are adequate for effective legal representation of persons convicted and sentenced to death in those judicial circuits that are within the functional and territorial purview of CCRC-MR. Between April 15, 2002, and June 22, 2005, Petitioners submitted approximately 28 invoices to Respondent totaling $119,000. Two invoices on April 15 and May 23, 2002, were for $10,000 each. Five invoices from August 25, 2003, through January 26, 2004, were for $2,600 each. The remaining 21 invoices ranged from $3,400 to $7,500 each. Each of the invoices were earmarked as payments for "consulting services." However, Respondent has been aware since 2001 that CCRC-MR has engaged outside lobbyists to represent CCRC-MR before the legislative and executive branches of government. Respondent approved all of the invoices. A primary dispute between the parties involves the issue of whether CCRC-MR is an agency of the executive branch of government (executive agency) or an agency of the legislative branch (legislative agency). Respondent construes Section 11.062 to mean that CCRC-MR is an executive agency and that Section 11.062 prohibits CCRC-MR from using public funds to lobby the legislative or executive branches of government. Petitioners construe Section 11.062 to mean that CCRC-MR is a legislative agency that is not prohibited from using public funds for prohibited lobbying.3 A determination of whether CCRC-MR is an executive or legislative agency is not necessary for the disposition of this rule challenge. A rule challenge conducted pursuant Section 120.56(4) does not require a determination that Respondent's statutory construction of Section 11.062 is invalid because it exceeds the scope of delegated legislative authority or for any of the other reasons described in Subsections 120.52(8)(b) through (f). The scope of this rule challenge is limited to a determination of whether the challenged statutory construction is invalid solely because Respondent has failed to promulgate the statutory construction as a rule within the meaning of Subsection 120.52(8)(a). For Petitioners' rule challenge to succeed, Subsection 120.56(4) first requires the evidence to show that the challenged statutory construction is a rule. Subsection 120.52(15) defines a rule, in relevant part, to mean: . . . each agency statement of general applicability that implements, interprets, prescribes law or policy [but] . . . does not include [the express exceptions in Subsections 120.52(15)(a)-(c)]. Subsection 120.52(15) imposes several requirements that must be satisfied in order for Respondent's construction of Section 11.062 to be defined as a rule. First, Respondent must express the challenged statutory construction as an agency statement. Second, the agency statement must satisfy the test of general applicability. Third, the statement of general applicability must, in relevant part, implement, interpret, or prescribe law or policy. Finally, the statement of general applicability that implements, interprets, or prescribes law or policy must not fall within one of the express exceptions to the definition of a rule. Respondent has expressed the challenged construction of Section 11.062 in several statements of longstanding agency policy. That policy traces its roots to the early 1990s, and Respondent has iterated its policy through various means of government communication. Most recently, Respondent stated its policy in a letter to Mr. Jennings dated September 27, 2006, approximately eight days after Petitioners filed the instant rule challenge. In relevant part, the letter states: This is in response to your letter to the Bureau of State Payrolls dated September 20, 2006, regarding your W-4 Form. Whenever state employees are under investigation for possible misuse of state funds, we routinely flag their W-4 record in our payroll system; your payroll account was flagged because of questions surrounding lobbying expenditures you authorized. Because of this action, however, our data processing system automatically generated a new W-4 form that was inadvertently sent to you twice. Please disregard both of these W-4 forms. No action of any kind has ever been taken by this office as a result of the duplicate forms you received. We apologize for any inconvenience that may have been caused. Petitioner's Exhibit(P)- 9. Respondent previously stated the challenged statutory construction in an investigative report precipitated by several complaints against the Capital Collateral Regional Counsel for the Southern Region (CCRC-SR), the last of which Respondent received on March 29, 2005. Respondent's Office of Fiscal Integrity (OFI) initiated a formal investigation of CCRC-SR and subsequently expanded the scope of the investigation to include the lobbying activities of CCRC-MR. Respondent issued a final report of the investigation on August 29, 2006. In relevant part, the report expressed the challenged statutory construction as follows: CCRC officials have argued that CCRC's are not part of the executive branch, claiming this would make them exempt from the provisions of Section 11.062. . . . A legal opinion dated January 11, 2006, by DFS counsel indicates that although CCRC's were initially created in the judicial branch, they were moved to the executive branch in 1997. The legal opinion noted that the CCRC's have been repeatedly defined by statute as executive branch agencies. . . . Examples include Section 23.21(1). , which notes that CCRC's are included as "principal administrative unit(s) within the executive branch of state government. . . . CCRC's are also defined by name in Section 186.003(6) . . . as state agencies, which are in turn defined in this section as "any official, officer, commission, board . . . or department of the executive branch of state government.[4] * * * In the case of the CCRC-Middle office, a staff attorney working for Jennings wrote an opinion saying essentially that the CCRC's were exempt from the provisions of Section 11.062 . . . because in their opinion, they are not part of the executive branch. In Jennings sworn statement, he acknowledged that he did not seek a legal opinion from anyone outside of his office. According to Jennings' sworn statement, he continues to pay . . . for lobbying services even though the contract reflects "consulting services." Jennings, on behalf of CCRC-Middle authorized payments . . . totaling $119,000. * * * It is recommended that . . . DFS legal staff initiate action against . . . Jennings to recover . . . funds that were inappropriately paid by Jennings to lobbyist[s] in violation of Sections 11.062 and 216.311. P-1 at 19 and 20. Respondent has also stated the challenged statutory construction in an Interoffice Communication dated January 11, 2006, and in a memorandum to state agencies dated March 31, 2003. Respondent issued the latter memorandum as a direct result of the lobbying expenditures of CCRC-MR but did not deliver the memorandum to CCRC-MR. Respondent argues that it has not uttered an agency statement, in relevant part, because the recommendation in the Report of Investigation has no force or effect without the authorization of the agency head.5 The argument ignores substantial evidence of other iterations of the agency statement over the years as well as the consistent interpretation by agency witnesses of the force and effect of the statement in its various iterations. The agency statement of the challenged statutory construction satisfies the test of general applicability. Respondent intends the agency statement to have the force and effect of law. Respondent applies the statement in a manner that requires compliance by all state agencies and employees with the direct and consistent effect of law. The statement creates enforcement rights in Respondent and imposes substantive standards on state agencies and employees who are not described in the express terms of Section 11.062. According to the Program Manager in charge of OFI, it is unlawful for Petitioners to expend funds for outside lobbying irrespective of whether CCRC-MR is an executive agency or legislative agency. "The issue of whether they're an executive agency is just an issue of collection." Respondent's Director of the Division of Accounting and Auditing agrees with the testimony of the Program Manager. The agency statement of general applicability interprets and implements Section 11.062. Section 11.062 does not expressly define an executive agency to include CCRC-MR.6 The agency statement defining CCRC-MR as an executive agency interprets law within the meaning of Subsection 120.52(15). The executive branch of government is constitutionally and statutorily required to organize its executive agencies into no more than 25 departments.7 The executive departments enumerated in Chapter 20 do not expressly identify CCRC-MR as an executive agency. The agency statement that CCRC-MR is an executive agency interprets law within the meaning of Subsection 120.52(15). Respondent relies on Subsection 23.21(1) to define CCRC-MR as an executive agency for the purposes of Section 11.062. Subsection 23.21(1), in relevant part, defines the term "department" to include "a principal administrative unit within the executive branch . . . and includes . . . the Capital Collateral Representative. . . ." However, the quoted definition is expressly limited to "the purposes of this part", i.e., the Paper Reduction provisions in Sections 23.20 through 23.22. Expanding the quoted definition for purposes other than Paper Reduction, including the purposes of Section 11.062, interprets law within the meaning of Subsection 120.52(15). In similar fashion, Respondent relies on Subsection 186.003(6) to define CCRC-MR as a state agency. Expanding the definition beyond the purposes of Chapter 186 to include the purposes of Section 11.062 interprets law within the meaning of Subsection 120.52(15). Respondent states in the alternative that CCRC-MR is not an agency but is a subdivision of an executive agency. The parties devoted a substantial amount of evidence in an effort to demonstrate that CCRC-MR is a unit of either a legislative or executive agency of government. As previously stated, the scope of this proceeding does not require a resolution of the dispute between the parties. The competing evidence, however, does demonstrate that the challenged agency statement interprets law within the meaning of Subsection 120.52(15). The agency statement of general applicability that interprets law and implements Section 11.062 does not fall within an express exception to the definition of a rule in Subsection 120.52(15). The iteration of the agency statement in the letter to Mr. Jennings that followed the report of investigation is not an internal management memorandum, legal memorandum, or memorandum to other state agencies within the meaning of Subsections 120.52(15)(a), (b), or (c). The iteration of the agency statement in an internal management memorandum issued as a direct result of the lobbying efforts of CCRC-MR affects the private interests of Mr. Jennings, if for no other reason, by subjecting his salary to garnishment. The challenged statutory construction is a rule within the meaning of Subsection 120.52(15). Respondent has not promulgated the rule pursuant to the rulemaking procedures prescribed in Section 120.54. A preponderance of evidence does not support a finding that rulemaking is not feasible within the meaning of Subsection 120.54(1)(a)1. Respondent argued but offered no factual evidence to support such a finding. Nor did Respondent initiate rulemaking in accordance with Subsection 120.56(4)(e). Mr. Jennings is a person substantially affected by the unpromulgated rule within the meaning of Subsection 120.56(4)(a). Subsection 11.062(1) requires Respondent to garnish the salary of Mr. Jennings if Respondent determines that Mr. Jennings violated the statutory prohibition against outside lobbying. After Respondent concluded the administrative investigation on August 29, 2006, the Director of the Division of Accounting and Auditing directed the Bureau Chief for the Division of State Payrolls to access the personal payroll account of Mr. Jennings on two occasions. Respondent subsequently exercised prosecutorial discretion not to garnish the salary of Mr. Jennings. Mr. Jennings is currently subject to reappointment to his position of employment. Mr. Jennings must disclose to the Supreme Court Judicial Nominating Committee that he is currently under investigation by OFI. The disclosure subjects Mr. Jennings to a potential loss of reappointment. CCRC-MR is a person substantially affected by the unpromulgated rule. A change in leadership would impair the institutional knowledge required to adequately represent persons in eight judicial circuits who have been convicted and sentenced to death. Placement of CCRC-MR within the executive branch of government creates a potential conflict of interest for CCRC-MR. Such a placement arguably would make the legal representative of death row inmates responsible to the executive branch of government which, in turn, must either execute the clients of the representative or commute their death sentences.
The Issue The issue is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration, enter a final order denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
Findings Of Fact The Respondent, Phillip S. Hacker, was certified by the Petitioner as a law enforcement officer on November 18, 1974, and was issued certificate number 02-12357, and at all times relevant hereto was a certified officer. The Respondent was employed as a law enforcement officer by the St. Cloud Police Department during 1988. On September 29, 1988, the Respondent arrived at the St. Cloud Police Department to perform a breathalyzer test on Danny Joe Clemons, who had been arrested earlier for DUI. Clemons had been drinking alcohol that night. After the Respondent's arrival at the department, Clemons refused to submit to the breathalyzer test. Clemons was placed in a seat with his hands cuffed behind his back. Clemons was yelling at the Respondent, sticking his foot out as the Respondent would walk by and eventually spit at the Respondent. The Respondent grabbed Clemons by the throat saying "nobody spits on me and gets away with it," leaned Clemons on the desk and punched Clemons in the side of the face. The Respondent hit Clemons with a closed fist. The force used by the Respondent was strong enough to tip over the chair/desk in which Clemons was sitting. After knocking Clemons over, the Respondent picked him up from the floor by his cuffed upper arms and sat him down on a desk. Clemons then began jumping out of the chair. yelling. Officer Kolczynski had to grab Clemons by the arm and hold him against the wall to calm him down. At one point, Clemons got out of the chair and laid down on the floor to pick up a thumb tack with his mouth. He indicated that he was cut with the thumbtack and he was going to keep it for evidence. Officer Kolczynski observed bleeding around Clemons' eye after his contact with the Respondent. Detective Michael Ford heard cursing from the breathalyzer room and then a shuffling of chairs, and when he entered the room Clemons was on the floor and the Respondent and Officer Kolczynski were attempting to put the handcuffs back on Clemons. Clemons told Detective Ford, who transported him after the incident, that he had eaten a thumbtack and that it was his evidence and he would get even with the officers. Detective Ford saw a scratch on Clemons face below his right eye. Clemons was seated with his hands still cuffed behind his back at the time that he was struck by the Respondent. Clemons was not posing any type of physical threat to the Respondent at the time that the Respondent struck him. Clemons was not posing a physical threat to any other officer at tic time that he was struck by the Respondent. Spitting or tripping the officer did not justify punching Clemons in the face. At the time of the incident, there was no need to use force on Clemons. On September 17, 1988, the Respondent was investigating an automobile accident involving a William Gentry. The Respondent arrested Gentry for DUI. On September 17, 1988, the Respondent arrived at the St. Cloud Police Department with his arrestee, Gentry. Gentry passed out as he was being brought into the hallway of the police department building. Gentry was lifted up and brought into the breathalyzer room by the Respondent and Officer Rusiewicz. Gentry was handcuffed at that time with hands behind his back. After being placed in the breathalyzer room, one handcuff remained attached with one cuff dangling. During this time, Gentry was making derogatory verbal comments and eventually swung his cuffed arm toward the Respondent. The swinging handcuff did not strike the Respondent. The Respondent grabbed Gentry's arm, pushed his head against the table and punched Gentry several times on the right side of his face with a closed fist. Gentry was not a physical threat to the Respondent at the time the Respondent punched his face. The force used by the Respondent was unnecessary as the swinging arm had been brought under control prior to Respondent striking Gentry. Officer Rusiewicz warned the Respondent to stop because of the intoxication level of Gentry and the possibility of seriously harming him. The Respondent replied that Gentry had "pissed him off" and was "just an asshole anyway." The Respondent then grabbed Gentry by the arms, stood him up, pushed him against the door, and re-cuffed him. Gentry had blood in his mouth after the incident. Prior to giving depositions in the Clemons case, the Respondent attempted to persuade Officer Rusiewicz to lie in order to protect the Respondent. Officer Rusiewicz's alcohol influence report did not include every detail of the Clemons incident because Officer Rusiewicz did not want to become involved in the situation. Officer Kolczynski lied in the initial written and oral statements dated September 29, 1988, in a December 28, 1988 internal statement, and in a December 30, 1988 deposition, about the incident due to inexperience (he had only been with the department for 2 weeks prior to the incident) and pressure from the Respondent who was one of his field training officers and a senior officer. The Respondent admitted "beating the hell" out of Gentry to Officer Kolczynski. The charge of assault or battery on a law enforcement officer made by the Respondent against Clemons was eventually dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989) and that Respondent's certification be REVOKED. DONE AND ENTERED this 2nd day of October, 1990, 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 2nd day of October, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-34, 37-44,48,49,50 Rejected as against the greater weight of the evidence argument or irrelevant: paragrphs 35, 36, 45, 46, 47, 51,52. Respondent did not file proposed findings. Copies furnished: Sharon Larson, Esquire James T. Moore Assistant General Counsel Commissioner Department of Law Enforcement Department of Law Enforcement Post Office Box 1489 Post Office Box 1489 Tallahassee, FL 32302 Tallahassee, FL 32302 Stewart Cohen, Esquire 1516 East Hillcrest Street Suite 204 Orlando, FL 32803 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
The Issue The ultimate issues are whether ACT Corporation (ACT) engaged in unlawful employment practices by discriminating against Petitioners Rosa Gibson (Gibson) or Lillian Brown (Brown) on account of race. More specifically, both Petitioners allege that they were terminated based on race.
Findings Of Fact ACT Corporation is a comprehensive community mental health provider. In 1989, it had five major clinical departments and employed approximately 500 people, of whom 24% were minority employees and 18% were black. One of the clinical departments includes two residential facilities for mentally ill clients, Big Pine and Big Tree. The Petitioners herein have been employed at both facilities, but were on the staff of Big Tree at the time of their terminations. Brown began working for ACT on September 14, 1982. She worked at several different facilities, but was working at Big Pine in 1987 as a Residential Specialist or Residential Advisor (RA) under the immediate supervision of the house manager, Myra Morris, who is black. Gibson began working for ACT in November, 1987, as Residential Specialist or Residential Advisor (RA) at Big Pine under Morris. Gibson was often tardy for work and Morris counseled with her about the problem. During one discussion between Morris and Gibson about tardiness, Gibson became haughty and verbally aggressive toward Morris. Morris would have terminated Gibson for this aggression, but she knew Gibson needed the job. Instead, Morris had Gibson transferred to Big Tree. In early 1988, Morris was transferred to another position with ACT. She was replaced as house manager by Kenneth Polite, a black employee. Brown continued as an RA at Big Pine. Brown was transferred to Big Tree and promoted to House Manager on September 30, 1988. Gibson continued as an RA at Big Tree under Brown. In January, 1989, Ann Turley became the Clinical Administrator for Adult Services and the immediate supervisor over both facilities. Brown was still on probation in the House Manager position because Turley's supervisor, Chris Kennedy, had extended Brown's probation. The extension resulted from Brown's poor performance, including poor follow through on assignments, incorrect preparation of reports and paperwork, inability to communicate effectively, and inability to conceptually grasp and carry out programs. Turley kept Brown on in the House Manager position despite the poor performance because Brown told her that Kennedy and she just did not understand all that Brown was doing. Turley told Brown to keep a written record to show what she was doing. In July, 1989, Polite left employment with ACT. Turley made some organizational changes at that time. ACT and her department needed to come up with $100,000 in revenue or in expense reduction. Turley made the decision to cut back one staff person at Big Pine. The position of house manager at Big Pine was eliminated. The two facilities were reorganized to have a Team Leader at Big Pine and a Residential Coordinator at Big Tree. Turley told Brown of these changes before they were announced. Brown was promoted to the Residential Coordinator position. Donna Dooley, a white employee was made Team Leader at Big Pine. She received a 5% raise, not a raise to the salary level of House Manager. Turley made the selection for Team Leader from the five eligible employees remaining at Big Pine. All five had been employed at ACT by Turley's predecessor. Turley examined the personnel files of the five employees, including performance evaluations. The employee with the best evaluation, within the most recent evaluations made by Polite, was Dooley. Polite noted in her evaluation that Dooley had filled in for him and had done a good job at it and that the other staff at Big Pine came to Dooley for leadership and advice. Turley's decision was poorly received by some of the staff. Polite had wanted the house manager position to go to his roommate, a black employee. Other staff thought the position should have been awarded based on seniority. Staff from the various facilities of ACT asked Turley by letter to meet with them to discuss the position. Turley met with the staff, but no real discussion occurred. The staff in attendance was racially mixed. Individual staff members, including Gibson, verbally attacked Turley because they failed to understand that the house manager position had been eliminated and that the Team Leader position was not its equivalent. Turley was quite emotionally upset about the hostile tone displayed at the meeting. She was also concerned that Brown had signed the staffs' letter requesting a meeting and had attended the meeting, because Brown was a supervisor and not a member of the supporting staff. Brown also had been told before anyone else the reasons for the reorganization and she knew that she was being promoted to Residential Coordinator. Turley had made the decision to promote Brown as Residential Coordinator because the reorganization had to go through and Brown's duties would not change that dramatically. The Residential Coordinator would work closely with the Team Leader to organize and coordinate the operation of both facilities. The position of House Manager ceased to exist at either facility. Brown's inadequate performance continued while she was on probation as Residential Coordinator. The same problems were apparent and some new ones arose. One significant problem was in Brown's supervision and discipline of Gibson. Gibson was repeatedly late for work and she brought her child to work with her. Brown was told by Turley to take certain corrective and disciplinary actions with Gibson, but she failed to do so. Gibson also was rude to a case manager at medication clinic (med clinic), refused to get a client's chart for a case worker, and repeatedly yelled at, demeaned and was uncooperative with the staff at med clinic. Turley instructed Brown to give a counseling statement to Gibson for this behavior, but again Brown did not do so. Because of Brown's lack of appropriate job performance, Turley demoted her from Residential Coordinator to Residential Advisor at Big Tree on September 7, 1989. Turley assumed Brown's job duties temporarily. Brown and Gibson were very upset over this demotion. The evidence taken as a whole shows that Brown and Gibson developed an "us versus them" attitude which significantly interfered with their job performance thereafter. After Brown's demotion, Turley discovered a new fiscal problem. One option for addressing the problem was to change Big Tree from a level two to a level one facility. That change would require a change in staffing patterns such that licensed practical nurses would be required around the clock and a registered nurse as the supervisor of the LPNs. Turley rewrote the job description for the Residential Coordinator position to require a registered nurse's license. In October, 1989, Darlene Hasenkamp, who is white, was hired as the Residential Coordinator because she was an RN and had experience with mentally ill patient care. As Residential Coordinator, Hasenkamp supervised all staff at both Big Tree and Big Pine. Donna Dooley, the Team Leader at Big Pine was the person immediately below Hasenkamp in the supervisory chain. While the staff at Big Tree were not immediately responsible to Dooley, Dooley did have some supervisory responsibilities over the staff at both facilities when Hasenkamp was not there. Brown and Gibson did not like working for Hasenkamp or Dooley. Both were subtly resistant and uncooperative with Hasenkamp and Dooley. Mentho Saafir is another black Residential Advisor with ACT. Her observation is that Brown and Gibson were part of a small tight group of black employees. The group got mad because Dooley was made Team Leader. Then when Brown was demoted and Hasenkamp was hired, they became openly oppositional to any encounter with Dooley. Gibson was especially hostile and uncooperative with Dooley. On a Saturday during November, 1989, Dooley and Hasenkamp were both off work, but they were on call for their respective facilities. A client at Big Pine was suicidal. The one staff person working at Big Pine was managing the client and called Dooley for assistance in getting the van and transporting the client to the hospital. The van was parked at Big Tree because Big Tree always had two staff persons on duty and Big Pine only had one. Therefore in an emergency, one staff person could leave Big Tree to take the van to Big Pine to assist. Dooley was at home and called Big Tree to get the van delivered to Big Pine. Gibson answered the telephone at Big Tree. She was evasive and refused to answer Dooley's questions about who was working at Big Tree and where that person was. Dooley told Gibson that she needed the van for a suicidal client. Gibson kept saying that her coworker wasn't there and finally told Dooley that if she needed the van "I suggest you come and get it yourself." After much pressing by Dooley, Gibson acknowledged that her coworker was Brown and Brown was not there. Dooley called Hasenkamp and explained the problem and described Gibson's evasiveness and lack of cooperation. Hasenkamp told Dooley to meet her at Big Tree. When Dooley arrived at Big Tree, Hasenkamp was discussing with Gibson her rude and uncooperative behavior toward Dooley on the telephone. As Dooley walked in to Big Tree, Gibson jumped up, leaned over the desk and shouted that Dooley was not her supervisor and she did not have to report (or listen) to Dooley. In order to avoid a confrontation and to get the van to the client in need, Hasenkamp told Dooley to take the van. Dooley left. Hasenkamp sat down and waited for Brown to return to work. When Brown came in 45 minutes later, she had a bag of fast food. Hasenkamp asked where she had been and Brown advised that she had been getting breakfast. Brown said she had only been gone 25 to 30 minutes. Hasenkamp told Brown that it was against normal procedures to leave like that while on duty. Brown simply said she didn't know that. Hasenkamp then took Brown to Big Pine to relieve Dooley who was there alone, having sent the staff person in the van with the client. On the way, Hasenkamp stopped at her home and at her mother's home. When they arrived at Big Pine, Hasenkamp's briefcase fell open to reveal a counseling statement to Brown regarding some furniture, however, that counseling statement was administered at a later time. The counseling statement about the furniture arose from Hasenkamp's direct instructions to Brown to inspect some furniture that was to be delivered before signing the invoice. Brown did not inspect the furniture, but did sign the invoice. When the furniture was finally inspected by Hasenkamp, a tear was discovered in one chair. Brown claimed that she had told the maintenance man to look at the furniture, but that was contrary to Hasenkamp's direct instruction. Brown was "written up" for this failure to carry out her supervisor's instructions. Brown and Gibson were also written up for the incident regarding the van. Gibson was also written up regarding another matter. Hasenkamp had sent a memo to all of the staff about eating pastry in the office. She instructed all staff to initial and sign-off on the memo by a certain date. Everyone signed the memo except Gibson, who refused. The time for signing the memo passed, but rather than write Gibson up for failing to carry out her instructions, Hasenkamp called Gibson to find out why she had not signed the memo. Gibson was off work at the time and Hasenkamp called her at home. Gibson was extremely rude, told Hasenkamp that she had no business bothering her at home, and refused to discuss the memo. Gibson gave Hasenkamp no choice except to write her up again. On December 12, 1989, at approximately 4:00 p.m., Hasenkamp and Dooley drove up to Big Tree. Dooley went in for Hasenkamp because Hasenkamp was on crutches. Brown came outside to the car and told Hasenkamp she needed to come inside regarding a problem. Dooley and Hasenkamp observed Gibson holding and comforting a client, Janice, who was suffering a locked jaw and an extremely painful muscular reaction as a side effect of her psychotropic medication. The patient had to have been in severe discomfort for a couple of hours. The side effects are counteracted by another medication, Cogentin. It was obvious to Hasenkamp that the client needed emergency medical care. Hasenkamp asked if the client had been given her Cogentin. The Cogentin is to be given every day at 9:00 p.m., so Hasenkamp asked to see the medication records from December 11, 1989, to see whether the client had received her Cogentin. Gibson and Brown were the staff people for the 4 to 12 p.m. shift on both December 11 and 12, 1989. Hasenkamp asked Gibson if she had given the client the Cogentin on December 11th. Gibson said yes. Hasenkamp then looked at the medication records and found that no one had initialed to show that they had given the Cogentin on December 11th. Hasenkamp again asked Gibson, but when Gibson was shown the unsigned medication record, she admitted that she did not know if she had given the medication. Hasenkamp sent Gibson to take the client to the emergency room. The client was given an injection of Cogentin. When Gibson asked Hasenkamp if she should give the December 12th dose of Cogentin to the client, Hasenkamp told her no, because the injection would serve in place of the dose. Hasenkamp told Gibson to initial the medication record for December 12th to show that Cogentin was given. Hasenkamp also instructed Brown to hold the client back from work the next morning and to make sure the client was sent to med clinic so that the psychiatrist could review and adjust her medications. The next morning, December 13, 1989, Hasenkamp arrived at Big Tree just as the van was leaving with clients for med clinic. She flagged down the van and asked the driver, Rosario Rizzo, if that client, Janice, was on the van. Rizzo said "no" because no one had told him to take that client. Hasenkamp told Rizzo what had happened the night before, because Rizzo is a nurse. She then sent Rizzo to find the client and take her to med clinic. When Rizzo had arrived that morning, he went to the office and spoke with Brown and Nadine Banning. Banning was the person who had been on duty from midnight to 8:00 a.m. He personally asked Brown and Banning who was scheduled to go to med clinic. Brown read him the names off of a list, but did not mention Janice. At Hasenkamp's instructions, Rizzo found Janice at the bus stop, waiting to go to work. He took her to med clinic. When Hasenkamp went into Big Tree, she immediately asked Brown why she had failed to hold Janice and send her to med clinic. Brown's only reply was "It doesn't matter anyway because the psychiatrist won't see Janice without an appointment." Hasenkamp then went to look at the medication records for Janice and discovered that Gibson had gone back and filled in her initials to show that she had given the missed dose of Cogentin to Janice on December 11th. When Hasenkamp asked Gibson about this, Gibson told her that she remembered that she had given the medication on the 11th. In fact, it is not possible for the client to have had such a severe side effect reaction on December 12th if she had been given her medication on the 11th. Hasenkamp determined that Gibson and Brown had endangered the safety and health of a client and had failed to follow her direct instructions, because Gibson did not properly given the medication and Brown did not hold Janice for med clinic. Gibson's late "memory" that she had given the medication further undermined her confidence in Gibson. She felt she could no longer trust their judgment and could no longer entrust the care of patients to them. Hasenkamp recommended that both be terminated. Turley took that recommendation and did an investigation. From that investigation, she determined that they had, in fact, endangered the client. Specifically, Turley found that Gibson had failed to ensure that the medication was taken and had then tried to cover up that failure and that Brown had failed to get the client to med clinic as instructed. Turley terminated Brown and Gibson on December 14, 1989. The reason given to each in the letter of termination was "insubordination." This reason was given in writing because the personnel director of ACT recommended that they not say "endangerment of a client's health and safety" for liability reasons. Both Gibson and Brown filed a grievance with ACT's affirmative action officer, Carolyn Fleming, a black employee. Fleming did an extensive investigation of all of Gibson's and Brown's allegations of harassment and termination based on racial discrimination. Fleming determined that there was no racial discrimination in ACT's actions. Based on an observation of the candor and demeanor of all the witnesses and on a review of the contradictions in the testimony, it is determined that the testimony of Brown and Gibson is less credible than that of the witnesses for ACT. Both Brown and Gibson gave testimony that was calculated to show them in the best light. While it is not determined that their testimony was untrue, it is found that their memories of these events are skewed so as to diminish the severity of their failures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitions for Relief filed by Rosa Gibson and Lillian Brown be DENIED and DISMISSED. DONE and ENTERED this 2nd day of April, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Rosa Gibson 1129 Hillcrest Drive Daytona Beach, FL 32117 Reginald E. Moore Attorney at Law Post Office Box 1848 Daytona Beach, FL 32015 Mitchell A. Gordon Attorney at Law Post Office Drawer 9670 Daytona Beach, FL 32120
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Petitioner is a thirty-one (31) year old male who has been a diabetic for approximately twenty-five (25) years and during this time has always taken his insulin as prescribed. Petitioner was hired by Respondent as a Correctional Officer 1 (Recreational) and assigned to work at the Florida Correctional Institution at Lowell, Florida (FCI). Petitioner began his employment with Respondent effective April 22, 1985. FCI is a facility for housing female felony offenders who require minimum to close security. The grounds of FCI consist of approximately eight hundred (800) acres, of which one hundred (100) acres is within the compound. FCI houses approximately six hundred seventy-five (675) inmates. FCI has a staff of two hundred twenty (220) employees, however, on weekends and on the 12 midnight to 8:00 a.m. shift, as few as eighteen (18) staff members may be on duty. Petitioner was responsible for maintaining the care, custody and control of the inmates involved in recreational activities and his duties would require his response to emergency situations to prevent escape or suppress inmate disorders. Petitioner advised Respondent prior to being hired that he was diabetic but that his diabetes was kept well under control and presented no problem and that he had sight in only one (1) eye. From February 27, 1984, until Petitioner moved to Florida in April, 1985, Petitioner was being treated for his diabetes in West Virginia by Dr. John P. Griffiths. During this period, Petitioner consulted Dr. Griffiths regarding "blackouts". Although Dr. Griffiths mentioned Petitioner's "kidney problem", he did not diagnose the "kidney problem" as being the potential cause of the Petitioner's "blackouts" and did not suggest a way for Petitioner to avoid having these "blackouts" in the future. Petitioner suffered several "blackouts" while living in West Virginia before accepting employment with Respondent, the last one being approximately a year before moving to Florida. These "blackouts" resulted in Petitioner being taken to the hospital emergency room for treatment. Petitioner did not make Respondent aware of these "blackouts" at the time he applied and was accepted for employment by the Respondent. At the beginning of his employment, Petitioner was required to have a complete physical examination which was administered by Dr. A. Rodriquez, Chief Medical Officer, FCI, and his staff. Among the tests administered was a urinalysis which revealed an abnormal level of protein in the urine. Being concerned over the level of protein in Petitioner's urine, Dr. Rodriquez requested Lester Dinkins, Personnel Manager, FCI, to advise Petitioner to see a private physician in this regard. About a week later, Petitioner consulted Dr. Rodriquez who explained the test results and advised Petitioner to see a nephrologist (kidney specialist). On May 2, 1985, Petitioner was examined by Dr. James J. Mahoney, private physician in Gainesville, Florida. Dr. Mahoney did not discuss a possible "kidney problem" or tell Petitioner why there was excess protein in his urine. Dr. Mahoney recommended that Petitioner continue on his blood pressure medication, have his blood pressure checked once a day so that medication adjustments could be made as needed, to see an opthamologist, and to keep check on his diabetes. FCI does not provide non-emergency health care for staff, therefore, Petitioner was unable to get his blood pressure checked by the FCI medical staff and did not get it checked by any outside private facility. Petitioner scheduled a second appointment with Dr. Mahoney which was rescheduled by Dr. Mahoney for a later date. Petitioner was dismissed by Respondent before the second appointment and, therefore, he did not keep the second appointment. On May 3, 1985, the day after Petitioner was examined by Dr. Mahoney, he suffered his first "blackout" while on the job. Petitioner was taken to the emergency room at Monroe Regional Medical Center where the medical personnel raised his glucose level and restored him to consciousness. After Petitioner regained consciousness he refused any further medical treatment. When Petitioner returned to FCI after his first "blackout", he was told to take Saturday and Sunday off and report to work on Monday. On Monday, Petitioner assured George Denman, Superintendent of FCI, that he could and would prevent another "blackout". Although Mr. Denman was concerned about Petitioner's ability to discharge his duties properly, he nevertheless allowed Petitioner to return to work on Petitioner's assurance that he could control the "blackouts". On May 9, 1985, Dr. Mahoney advised Respondent by letter that Petitioner's present condition should not interfere with his employment if Petitioner followed Dr. Mahoney's recommendations set out in Finding of Fact 10. There is sufficient evidence to show that Petitioner did not follow Dr. Mahoney's advice. Petitioner "blacked out" again on May 18, 1985, while he was preparing for a softball game between inmates of FCI and another institution. Petitioner was transported to the FCI infirmary and from there to Harold's Clinic and from there to another hospital. This "blackout" occurred on a Saturday when a staff of approximately eighteen (18) employees were on duty at FCI. Petitioner had keys to various parts of the institution in his possession at this time. Once Petitioner was stabilized after the "blackout", he was instructed to take Sunday off and report in on Monday. On Monday, he reported first to Lester Dinkins and then to Mr. Denman who informed him that he would be dismissed on Friday, May 24, 1986 because of Petitioner's inability to perform his duty to maintain proper care, custody and control of the inmates which placed the security of the institution in jeopardy. The prison superintendent is authorized to allow employees up to three (3) weeks leave without pay under extenuating circumstances, however, for a "brand new" employee, such as Petitioner, it would be exceptional. Leave without pay was not offered to Petitioner at any time before his dismissal to seek help with the problem of "blackouts" because Petitioner assured Mr. Denman that he had his problem under control. Additionally, Petitioner did not request any time off to seek help with his problem of "blackouts". Although Petitioner thought his "blackouts" were related to a serious automobile accident that he was involved in during 1972, there was no medical evidence introduced at the hearing to support Petitioner's theory. At the time Petitioner was dismissed, both parties were aware of Petitioner's kidney problem, but neither knew the exact cause or if the kidney problem was related to the "blackouts" or to the diabetes. Although Petitioner would have accepted other alternatives to dismissal, Respondent had no job openings for which Petitioner qualified for at the time. Lester Dinkins did inquire with other agencies and found a job as a Recreational Therapist with the Department of Health and Rehabilitative Services at the Gulf Coast Center in Ft. Myers, Florida. Petitioner rejected that job on the basis of being unable to cope with the emotional stress of working with mentally and physically handicapped individuals, and that by moving he would lose Dr. Donald Mars as his primary care physician. In June, 1985, Dr. Mars, Assistant Professor of Medicine, Division of Nephrology and Hypertension, Shands Teaching Hospital, Gainesville, Florida, diagnosed the cause of Petitioner's "blackouts" as the result of Petitioner's continued use of insulin adversely affecting his kidneys so that protein was being excreted with Petitioner's urine instead of being used by his body which caused episodes of hypoglycemia (low blood sugar) and, since corrective measures were not taken by Petitioner, "blackouts" resulted. A diabetic can take a measurement of the glucose (sugar) level in his body by using the "finger stick" test. This test can be performed in approximately two (2) minutes, and if there is an indication of a low level of glucose, the diabetic can correct the condition by eating some form of carbohydrate, such as bread or pastry, for quick energy. A diabetic can avoid "blackout's" by performing the required number of "finger stick" tests each day and properly responding to the results. In Petitioner's case, it would require two (2) to four (4) tests each day which could be performed on the job. There are other diabetics on the staff at FCI. Petitioner's job performance, other than during the time of the "blackouts", was satisfactory. Petitioner's "blackouts" put the security of FCI in jeopardy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition For Relief filed by the Petitioner, Stephen Retton. Respectfully submitted and entered this 10th day of September, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0975 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Findings of Fact 1 and 2 covered in background material. 3.-4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 6. 6.-7. Adopted in Finding of Fact 1. 8.-14. Adopted in Finding of Fact 7. 15. Adopted in Finding of Fact 8. 16.-18. Adopted in Finding of Fact 9. 19.-21. Adopted in Finding of Fact 10. 22. Rejected as immaterial and irrelevant. 23.-24. Adopted in Finding of Fact 10. 25. Rejected as immaterial and irrelevant. 26.-27. Adopted in Finding of Fact 11. 28. Adopted in Finding of Fact 18. 29.-32. Adopted in Finding of Fact 12. 33. Adopted in Finding of Fact 8. 34. Adopted in Finding of Fact 13. 35.-36. Adopted in Finding of Fact 17. 37. 38. Rejected as not comporting evidence in the record. Adopted in Finding of Fact to the substantial 15. competent 39. Adopted in Finding of Fact 16. 40. Adopted in Finding of Fact 20 as modified. 41.-47. Adopted in Finding of Fact 21. 48.-52. Adopted in Finding of Fact 22. 53. Rejected as immaterial and irrelevant. 54.-56. Adopted in Finding of Fact 20. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Findings of Fact 7 and 8. 7. Adopted in Findings of Fact 5 and 23. 8.-9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 12 as modified. 12. Adopted in Finding of Fact 12 as modified. 13. Adopted in Finding of Fact 13. 14. Adopted in Findings of Fact 13 and 15. 15. Adopted in Finding of Fact 16. 16. Adopted in Finding of Fact 16. COPIES FURNISHED: Thomas R. Williams, Esquire 359 N.E. First Street Gainesville, Florida 32601 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Ernest L. Reddick, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 3230 =================================================================
