Findings Of Fact Petitioner was employed by Respondent at the commencement of the 1975- 1976 school year as an industrial arts teacher at the B. F. James Adult Education Center. During the first days of the 1975-1976 school year, Petitioner was employed as a substitute teacher. On November 17, 1975, however, Petitioner entered into a written agreement with Respondent entitled "Contract for Part-Time Instruction." Pursuant to the terms of the contract, Petitioner was to be paid an hourly salary of $8.82 per hour. The contract further provided, in pertinent part, that: The number of hours of instruction will be based upon the courses offered for which the instructor is qualified, and assignment to teach such courses will be made by the county superintendent of schools through his designated adminis- trative representative. This appointment is contingent upon minimum enrollment and attendance in the course assigned. This contract may be cancelled at any time by either party upon ten days written notice. . . (Emphasis added.) During the 1975-1976 school year, Petitioner worked at least seven and one-half hours per day, five days per week, 12 months per year. Petitioner worked a regular day schedule with additional but irregular work performed at night. Like full-time teachers on an annual contract, Petitioner received his pay on a monthly basis. However, as indicated above Petitioner was paid an hourly salary, whereas teachers on either annual or continuing contracts were paid according to a salary schedule negotiated between Respondent and the Broward County Classroom Teachers Association, Inc. In addition, as earlier indicated, Petitioner's work hours were on an "as needed" basis, depending upon student enrollment, the nature of courses offered, and funding for particular programs of instruction. Full-time teachers on annual or continuing contracts were employed on the basis of a school year of not less than 196 days. During the course of the 1975-76 school year, Petitioner inquired of his immediate supervisor concerning the possibility of receiving an annual contract. The supervisor, in fact, recommended Petitioner for such a contract, but that recommendation was not acted upon favorably by Respondent. The record in this cause reflects only that there was "some problem" with Petitioner's personnel file which led to Respondent's decision not to offer an annual contract to him during the 1975-1976 school year. Respondent was again recommended, in a subsequent school year, by his immediate supervisor for an annual contract for 70 percent of a full school day, but again that recommendation was not acted upon favorably. Petitioner continued employment with Respondent during the 1976-1977, 1977-1978, and 1978-1979 school years. During each of those years, Petitioner continued to work at least seven and one-half hours per day, five days per week, 12 months per year. After the initial contract between Petitioner and Respondent for the 1975-1976 school year, however, Petitioner never received another written contract. He did, however, inquire on several occasions concerning his right to receive an annual contract. Respondent, however, never offered Petitioner annual contract status. Respondent classifies the contractual status of its instructional employees as either "annual," "continuing," or "part-time." Part-time employees, unlike annual contract and continuing contract employees, have not been given written employment contracts for at least the last five years. Recommendations to employ part-time instructional employees originate with Respondent's school principals, who transmit their recommendations to the Superintendent. The Superintendent, in turn, recommends the employment of part- time employees to the School Board. Part-time employees are recommended by the Superintendent and voted upon by the Board en masse in June of each year for employment during the following school year. As many as 1,200 to 1,500 part- time employees may be recommended for employment at one time. Once the School Board approves the Superintendent's recommendations concerning the hiring of part-time employees, those persons approved are thereafter available to principals to be hired at any time during the ensuing school year. Respondent places no limits on the amount of time part-time employees may work, notwithstanding their part-time designation, so long as students, courses, and course funding are available. When a course offered by Respondent and taught by Petitioner or other instructional employees similarly situated did not generate sufficient enrollment or failed to receive funding, the course was discontinued and the instructional employee's employment ceased. Sometime during the 1978-1979 school year, Petitioner met with his immediate supervisor to discuss his continued employment with Respondent. Ultimately, Petitioner received a letter advising him that his employment would be terminated at the conclusion of the 1978-1979 school year. Prior to his termination, Petitioner had never been advised, in writing, of any deficiencies in his job performance.
The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 29, 1975. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by Notice dated January 22, 1976. (Hearing Officer's Exhibit 2). The City of Sunrise is a Public Employer within the meaning of Florida Statutes s447.002(2). (Stipulation, Transcript page 7) 1/ The Petitioner is an association which is seeking to represent public employees in matters relating to their employment relationship with a public employer. The Petitioner requested recognition from the Public Employer as the exclusive bargaining representative for employees in the Public Employer's Utilities Department. The request was denied by the Public Employer. There is no contractual bar to holding an election in this case. (Stipulation, TR 7, 8). There is no pertinent collective bargaining history that will affect this case. (Stipulation, TR 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer operates under the form of government commonly referred to as the "strong Mayor-Council form of government". The City Council serves as the legislative body of the Public Employer, and the Mayor is the Chief Executive Officer. Public Employer's Exhibit 1 accurately describes the organization of the Public Employer. The Public Employer is roughly divided into twelve different departments, excluding the Police and Fire Departments. Each department is headed by a department head who answers to the Mayor. The Public Employer employs approximately 200 persons, approximately 25 percent of whom are clerical employees. There are approximately 55 to 60 persons in the bargaining unit proposed by the Petitioner, 12 to 15 of whom are clerical employees. The department heads are generally responsible for the day-to-day functioning of their department. The department heads will initiate hiring, firing, discipline, and promotion of employees; however, such action must be approved by the Mayor. Respecting hiring and firing, the Mayor goes against the recommendations of the department heads approximately 30 to 40 percent of the time. With respect to disciplinary action, the department head submits recommendations to the Mayor in the form of a memorandum. In the Water and Sewer Department the recommendation would go from the Director of the Utilities Department to the City Engineer to the Mayor. The department head will make all decisions respecting shift changes, lunch hours, and vacations; however, an aggrieved employee can always go to the Mayor. The department heads regularly evaluate employees in their department, and make recommendations respecting merit pay increases based upon the evaluations. The Mayor has a practice of always approving recommendations for merit pay increases if money is available in the budget. The Mayor is responsible for preparing a proposed budget to be submitted to the City Council. The department heads provide the Mayor with information respecting the budgetary needs of their departments. The department heads meet on a monthly basis as a group to discuss safety programs. Safety policies are formulated at these meetings. The department heads are responsible for granting leave time; however, this responsibility is apparently delegated to the chief operator in the Water and Sewer Department. Public Employer's Exhibit 2 is a computer read-out of all of the Public Employer's employees other than those in the Police and Fire Departments. Those employees who the Public Employer considers to be managerial, confidential, or professional employees within the meaning of the Public Employees Relations Act are designated respectively on the exhibits by the hand written letters "M", "C", or "P". The hand written numbers on Public Employer's Exhibit 2 refer to the page number where the job description of the employee appears in Public Employer's Exhibit 3. Public Employer's Exhibit 3 is a compilation of the job descriptions of all of the Public Employer's employees other than those in the Police and Fire Departments. The descriptions were prepared in January, 1976, and accurately describe the duties, responsibilities, and day-to-day activities of the employees. All employees of the Public Employer other than those in the Police and Fire Departments are compensated under the same pay plan, and receive the same benefits. All employees are given eleven paid holidays, ten paid sick days, and ten paid vacation days annually. All employees participate in the same hospitalization and pension plans. All employees are issued uniforms and safety equipment by the city; however, clerical employees are responsible for maintaining their own uniforms. Christmas parties and other social functions for the employees are open to all employees of the city. There are no functions open to the employees of only one department. Transfers of employees from one department to another are fairly common. Job openings and promotions in a department are always advertised and made available to employees in all departments before they are advertised or made available to non-employees. The departments of the Public Employer generally work together. Many employees in the Public Works Department have the same job description as employees in the Utilities Department. When necessary, employees in one department will assist in performing the functions of another department. The Utilities Department is divided into the Gas Department, the Water and Sewer Field Maintenance Department, and the Water and Sewer Treatment Plants. These departments produce services for a fee to the inhabitants of the City of Sunrise, as do the Spring Hill Country Club and the Recreation Department. Employees in the Water and Sewer Departments are on duty 24 hours daily. Each employee works a fixed 8-hour shift. Most other employees of the Public Employer work a day-shift only. Employees in the Water and Sewer Department do not generally work in one place. Clerical employees generally work full time at City Hall. It is apparent that transfers between manual positions and clerical positions are rare, and have probably never occurred. The work performed by clerical employees is different than the work performed by employees in the Water and Sewer Departments. The only testimony presented at the hearing respecting the desires of the employees was that employees in the Water and Sewer Departments would like to have their own bargaining unit. The Utilities Department is separately budgeted, and the only employee who testified expressed an interest in using the revenue of the department for the benefit of the employees in the department. All employees of the Public Employer are eligible for membership in the Petitioner. DONE and ORDERED this 6th day of April, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact The Board adopts the Respondent'S exceptions numbered 1 through 13 which address the findings of fact in the recommended order and incorporates these exceptions in the final order. Exception number 8 addresses the first sentence of finding of fact number 8 of the recommended order. In adopting these exceptions, the Board modifies or rejects the specified findings of fact of the recommended order for the reasons stated in the exceptions. Those findings of fact which were not modified or rejected are adopted and incorporated in this final order.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling enter a final order determining that Petitioner is qualified to take the examination for licensure as a clinical social worker. ENTERED on May 20, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 20, 1993.
Findings Of Fact The Division of Employment and Training has alleged that the Putnam County Board of County Commissioners, in administering grants under the Comprehensive Employment and Training Act (CETA), failed to comply with the applicable rules and regulations. As a result thereof, a total of $20,653.00 was spent in violation of applicable rules and regulations. The Putnam County Board of County Commissioners acknowledged that the money was spent as alleged. However, the County contends that the spending was not in violation of CETA, were legitimate costs and should, therefore, be allowed. The findings of fact of the Hearing Officer as set out in the Recommended Order are hereby accepted and adopted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay Petitioner: (1) $3,124 for wages paid to Charles Livingston, (2) $196 in excess workman's compensation charges, and (3) those costs associated with participants later found to be ineligible by reason of not being unemployed 15 of the 20 weeks prior to the date of their applications and whose ineligibility was based upon employment in Putnam County prior to their applications being filed. All other questioned costs should be allowed. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1982. COPIES FURNISHED: Sonja P. Mathews, Esquire Suite 117-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Sam S. Browning, III Box 758 Palatka, Florida 32077 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of a handicap, in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact Petitioner has been employed by the City of Kissimmee (the City) from July 17, 1989, to the present as a tele- communicator in the Communications Center of the Police Department. Petitioner and his health care provider advised the City sometime in 1995 that Petitioner is diabetic. Diabetes has impaired Petitioner's work schedule and his willingness to train other employees but has not handicapped Petitioner. The diabetes has not substantially limited Petitioner in a major life activity and has not substantially limited Petitioner from performing a class of jobs or broad range of jobs in various classes. Petitioner is able to care for himself. Petitioner clothes himself, bathes, shaves, brushes his teeth, and combs his hair. Petitioner checks his own blood sugar level regularly during waking hours. Petitioner is able to perform other major life activities. Those activities include walking, driving a vehicle, performing manual tasks, seeing, speaking, hearing, learning, talking, and performing the duties of his occupation. Petitioner has walked for several years approximately 1.25 miles a day. Petitioner drives his own vehicle. Petitioner performs manual tasks. Petitioner operates a computer, though he has some difficulty doing so. Several months ago, Petitioner helped a friend hang an interior door. Petitioner has also helped friends paint walls in recent years. Petitioner has difficulty with his uncorrected vision. With reading glasses, however, Petitioner reads documents most of the time. Petitioner uses a device identified in the record as a CPAP machine to assist him in breathing at night. However, Petitioner does not need to use the machine during the work day to do his job. No health care provider has advised Respondent that Petitioner is disabled. Petitioner’s diabetic specialist is Dr. Jose Mandry. Dr. Mandry did not testify at the hearing. Dr. Mandry informed Respondent that Petitioner has diabetes in a note the City received on or about February 6, 1995, when Respondent attempted to schedule Petitioner for a night shift in the Communications Center. The note from Dr. Mandry did not indicate that Petitioner was handicapped (disabled), or that any accommodations were required in order for Petitioner to continue working. The note requested the City to keep Petitioner on daytime shifts "if possible." The note did not indicate that a daytime schedule was medically necessary. Rather, the note indicated that working day shifts would be “desirable.” On March 23, 1995, Dr. Mandry provided another letter to the City regarding Petitioner's medical condition. The note stated that Petitioner needed to “be accommodated with a normal daytime work schedule.” In July 1995, the City established a regular daytime work schedule for Petitioner. The City never regarded Petitioner as disabled, and the daytime work schedule for Petitioner was not an “ADA Accommodation.” The City employee who granted the request for a daytime schedule was identified in the record as Police Department Commander Johns. Commander Johns did not have authority to provide an ADA accommodation. The authority to provide an ADA accommodation is vested in the city manager and city attorney. They make a final determination of whether the City will provide an ADA accommodation to a particular employee. The city manager and city attorney did not authorize the City to provide any ADA accommodation to Petitioner. The daytime schedule granted to Petitioner is part of Respondent’s general practice and policy of working with impaired employees and employees who have personal needs. The policy attempts to help such employees with their schedules when it is possible to do so without an adverse impact on the City’s ability to provide services. Assuming arguendo that City employees had the authority to provide ADA accommodations to Petitioner in the absence of a formal determination by the city manager and city attorney, Petitioner relies on evidence of interactions between City employees and Petitioner in an attempt to show the City provided Petitioner with ADA accommodations. The relevant evidence involves two time periods. The first is the period from June 4, 1996, until June 5, 2002. The second is the period from June 5, 2002, through March 16, 2006, when Petitioner filed the Charge of Discrimination with the Commission. The record evidence does not support a finding that City employees provided an ADA accommodation to Petitioner. The daytime work schedule authorized in 1995 remained in effect until June 4, 1996, when Dr. Mandry advised the City that Petitioner could work up to 12 hours a day, as long as the 12 hours were daytime hours. Between 1996 and June 5, 2002, the City allowed Petitioner to work overtime when he wanted to, based on Petitioner's self-assessment of his physical condition. Petitioner acknowledged the overtime schedule in a memo that he wrote to Lieutenant Donna Donato on June 5, 2002 (the memo). The memo described Petitioner's plans for his future work schedule. The memo stated that Petitioner was providing notice “that due to self-assessed health issues” Petitioner intended to restrict the amount of his overtime in the future. (emphasis added). In relevant part, the memo advised the City that Petitioner did not intend to “demand the imposition of the restrictions [on his work schedule] as addressed by City Management in June of 1995.” Instead, the memo advised that Petitioner would address his concerns “to the best of [his] abilities by modifying [his] agenda. " Petitioner listed a number of items that may be fairly described as terms or conditions for when and under what circumstances Petitioner would work overtime. Petitioner provided no new medical evidence to support a finding of medical necessity for the terms and conditions that Petitioner prescribed in the memo. Petitioner acknowledged that his concerns were based on “self-assessed health issues” and asserted that “no further documentation should be necessary.” Petitioner did provide a note from Dr. Mandry on June 20, 2002. The note states: The following is a letter as requested by the above-captioned patient [David Dey]. As you know, he suffers from diabetes and also requires insulin for his control. David needs to monitor glucose levels and follow fairly stable meal patterns in order to try to achieve good control of diabetes and avoid complications. It would certainly be to his advantage and much preferable if he could have a stable work shift where he could regulate his meals and his injections properly. (emphasis added) Respondent's Exhibit 18 (Hereinafter R-18, etc.). During the second period of time between June 5, 2002, and the Charge of Discrimination, the City hired a new manager for the Communications Center. In July 2002, the City hired Ms. Jean Moe to manage the Communications Center at the Police Department, and Ms. Moe remains responsible for the supervision and management of Petitioner. Ms. Moe is diabetic. Ms. Moe met with Petitioner on August 6, 2002. The two discussed the issues Petitioner raised in his memo and agreed on a number of items outlined in Ms. Moe’s memo of August 6, 2002 (the Moe memo). The Moe memo provides in relevant part: Beginning today, August 6, 2002 you will only work your twelve (12) hour shift assignment [sic]. You will not volunteer or be assigned any overtime. You are also no longer on the standby schedule. Here you had some concern on the overtime issue, however, as stated by your doctor in writing he is recommending that you do not work any extra hours. Should he feel your health improves and he authorizes your overtime, I will take his note under advisement. That does not mean I will immediately give you overtime but will review his letter and his suggestion. Along with the above issues, your supervisor has been advised under no circumstances will you miss your assigned lunchtime or breaks, these are important to keep you regulated on your medication per your doctor. You also requested you be allowed to lift your feet after working several hours, this will also be under consideration when I receive a note from your doctor stating it R-19. would be another requirement for health reasons. In 2004, the City Police Department considered changes to the normal work schedule for employees in the Communication Center. The City advised employees, including Petitioner, that the City would require employees to rotate work shifts between daytime and night shifts. On July 14, 2004, Petitioner wrote to the City Human Resources Department and requested a “final, permanent accommodation . . .” for daytime work only. Petitioner provided copies of documents from Dr. Mandry, which did not include a medical opinion that Petitioner is disabled. Assistant Human Resources Director Andrea Walton wrote to Dr. Mandry on July 15, 2004, and requested clarification of his letters in order for the City to arrange an appropriate schedule for Petitioner. Ms. Walton specifically inquired about the possibility of Petitioner's working a rotating work schedule and asked Dr. Mandry to clarify Petitioner's ability to work overtime. The City wanted Dr. Mandry to clarify previous statements that Petitioner could work overtime as a parking enforcement specialist but that Petitioner's overtime work as a tele-communicator must be limited. Dr. Mandry responded to Ms. Walton on July 26, 2004. The response explained that Petitioner was able to work in a rotating schedule and for unspecified amounts of overtime if control is optimal and under ideal circumstances. Dr. Mandry was unable at that time to give more specific information to the City. He explained: R-27. With regards to some of the other issues, again, it is very difficult, if not impossible, for me to give you a specific answer, and I would rather you talk to Mr. Dey specifically so that he can let you know what his current limitations are. On August 3, 2004, Ms. Beth Stefek, the director of Human Resources for the City, wrote to Petitioner and explained that the City was willing to work with Petitioner to arrive at an appropriate work schedule. Ms. Stefek did not indicate that the City considered Petitioner to be disabled. Sometime after August 3, 2004, Petitioner experienced further difficulties in controlling his diabetes. On August 10, 2004, Dr. Mandry wrote to the City again. Dr. Mandry told the City: I just saw David today who seems to be having some further difficulties with his health and his control of diabetes. At this time, I have reviewed his records, and I think it would clearly be in his best interest that from now on, he work only on a stable daytime work shift only [sic]. He certainly is not doing well when he tries to do overtime, and traditionally in the past has always become more complicated and his health has deteriorated whenever he tries to do either night shifts or overtime shifts. I have, therefore, at this time, recommended that David should not be allowed to work any overtime and/or nighttime shift. Of course, he needs to have accommodations for meals and monitoring or blood sugar levels as necessary, and he needs to have access to food in case he becomes hypoglycemic. R-29. The difficulties Petitioner experienced in controlling his diabetes were attributable to an increase in stress that Petitioner experienced between June and September 9, 2004. Petitioner's father died in June 2004, and three hurricanes impacted Petitioner’s home from August through September 2004. The hurricanes also increased stress at work due to increased demand on City services. On August 15, 2004, Petitioner advised Ms. Moe that he was intentionally running his blood sugars “higher than desired” at work to “offset and reduce the possibility of a hypoglycemic situation.” Toward the end of August 2004, the City moved Petitioner to the night shift in the Communications Center. Petitioner worked the night shift for a few nights. On September 5, 2004, Petitioner advised Ms. Moe that he was available to be part of a voluntary group of dispatchers to work catastrophic disasters like hurricanes if she decided to form the group. On or about September 9, 2004, while Petitioner was at home, Petitioner fell unconscious and was transported to the hospital for treatment. On September 16, 2004, Dr. Mandry wrote to the City and advised that it was necessary for Petitioner to refrain from working "any overtime shifts and/or nighttime shifts.” On or about September 21, 2004, Petitioner returned to work, and the City placed Petitioner on a daytime work schedule through the remainder of 2004. On January 6, 2005, Ms. Moe advised Petitioner the City needed Petitioner to work the night shift for a few nights. However, the City was able to satisfy its needs without placing Petitioner on the night shift at that time. Petitioner responded to Ms. Moe on January 6, 2005, by stating that he was going to begin a search within the City for another position that would meet his medical needs. On January 20, 2005, Petitioner inquired about an opening within the City for a parking enforcement specialist. On January 25, 2005, Petitioner informed Ms. Moe and others at the City that he would not consider either the parking enforcement position or a community service officer (CSO) position that had become available because both jobs contradicted his "medical requirements.” On April 4, 2005, Ms. Moe sent a memo to Petitioner advising him that the City would place Petitioner on a list identified in the record as the call-back list for emergency back-up in the Communication Center. Ms. Moe specified that the placement of Petitioner on the call-back list was subject to the work conditions previously established in July 1995 by Commander Johns. Ms. Moe advised Petitioner that he would be placed on the call-back list effective April 20, 2005, but only in those weeks when he was scheduled to work 33 hours so that his work week did not exceed 40 hours. She assured Petitioner that absent some extraordinary circumstances, the City would not call Petitioner back to work a night shift and would not schedule Petitioner on a call-back that would result in Petitioner working more than 40 hours in a work week. The memo from Ms. Moe expressly indicated that the City did not consider the Petitioner to be ADA disabled. Ms. Moe told Petitioner to advise her if he thought there was some medical or ADA reason why he could not be on the call-back list. On April 13, 2005, Attorney Edward R. Gay wrote to the City on behalf of Petitioner. Mr. Gay stated that Petitioner believed there was a medical reason that prevented Petitioner from being placed on the call-back list. On April 21, 2005, Attorney Lucille Turner, the City’s special labor counsel, responded to Mr. Gay. Ms. Turner provided Mr. Gay with a copy of the City’s April 4, 2005, memo detailing the call-back restrictions applicable to Petitioner. Ms. Turner repeated that it was not the City's intent to call Petitioner back to work a night shift or to schedule Petitioner to work more than 40 hours a week in the absence of “some extraordinary circumstance." The City, through its counsel, expressly advised Petitioner that the City had never undertaken a formal review of whether Petitioner should be classified as a person protected by the ADA. Instead, the City had informally worked to develop a work schedule for Petitioner that takes into account the information provided by Petitioner's health care providers. The City provided Petitioner with written guidance concerning the procedure for Petitioner to follow to seek a classification from the City as ADA disabled. In relevant part, the letter advises: If [Petitioner] believes that his diabetes (or any other medical condition) requires the City to not include him on the call back list, or to change his work schedule, he should provide the City with further information in support of his request. This should include information about the legal basis for his disability claim . . . [keeping in mind case law cited earlier in the letter indicating diabetes is not a per se disability]. . . . The City will then review the information to determine whether Mr. Dey has a disability as defined by the ADA, and, if so, what accommodations can be reasonably made. R-54, at 3. Petitioner did not ask to be classified as disabled. Rather, Dr. Mandry wrote to the City on June 8, 2005. Dr. Mandry stated that he was writing at the request of Petitioner. In relevant part, Dr. Mandry explained: R-1. Mr. Dey is by no means disabled, and he can clearly work and satisfy the capacities of his job as long as there is some stability involved in it. (emphasis added) In March and August 2005, the City did not select Petitioner to fill respective vacancies for a shift supervisor in the Communication Center and a parking enforcement specialist for the City. Neither action constituted an adverse employment action against Petitioner. The job duties for the vacant shift supervisor in March 2005 required the successful applicant to work night shifts. Petitioner did not apply for the shift supervisor position. When the City posted the notice of vacancy for the shift supervisor, Petitioner requested Ms. Moe to provide Petitioner with information about the job requirements for the position. Ms. Moe responded on March 14, 2005, and advised Petitioner that the position was night shift duty and required the supervisor to train other employees. On March 23, 2005, Petitioner wrote to Ms. Moe indicating he had concluded that multiple aspects of my physical disability are contradictory to the requirements of the supervisory position and that he had elected not to apply for the position. If Petitioner were to have applied for the shift supervisor position, Petitioner was not qualified to perform the essential requirements of the position. Petitioner was unable or unwilling to work the night shift and was unable or unwilling to train subordinate employees. The Communications Center receives 911 calls from the public. Employees receive calls and dispatch them to the police department and fire department 24 hours a day. The work schedule at the Communication Center is divided into two shifts. The day shift begins at 6 a.m. and ends at 6 p.m. The night shift begins at 6 p.m. and ends the following day at 6 a.m. Approximately four to six employees work each 12-hour shift in the Communications Center. However, only one supervisor works each shift. A shift supervisor oversees the duties of all employees at the Communications Center and trains, advises, and assists subordinates. Supervisors are routinely required to work overtime, perform on-call duty, fill in for other shift supervisors, and hold over for indefinite times at the end of a shift to handle ongoing calls. Petitioner claims to suffer from hypoglycemic episodes in which he becomes unresponsive and dysfunctional. Petitioner has previously asked on two separate occasions to be relieved of responsibility to train personnel because it was too stressful for him. In each instance, the City relieved Petitioner of any training responsibilities. In August 2005, Petitioner applied for a job opening as a parking enforcement specialist for the City. The City selected another candidate identified in the record as Ms. Evelyn Thurman. The selection of Ms. Thurman over Petitioner to fill the vacant position of parking enforcement specialist was not an adverse employment action against Petitioner. Ms. Thurman was more qualified by training and experience. When the City selected Ms. Thurman to fill the vacant position of parking enforcement specialist, Ms. Thurman had 24 years of law enforcement and security experience in various agencies. From 1980 until 1996, Ms. Thurman worked as a crime scene investigator for the City of Miami Police Department, where she received numerous commendations, and her performance evaluations rated her as an above average employee. Ms. Thurman also worked at the Sheriff’s Office in Tampa, Florida, and in Security at the Florida Department of the Lottery. Petitioner was unable to meet the essential functions of the job requirements for a parking enforcement specialist. A parking enforcement specialist routinely works alone and is required to work at night. The nature of the job does not permit the type of schedule Petitioner requires. The work schedule of a parking enforcement specialist is not limited to daytime hours that do not exceed 33 to 40 hours a week. A parking enforcement specialist may be required to work evening shifts, long hours, overtime, and holidays. A parking enforcement specialist also must adjust his or her work schedule when needed. A parking enforcement specialist also must be available during emergencies to alleviate calls for service from patrol officers. A parking enforcement specialist works alone. Petitioner suffers from hypoglycemic episodes in which he becomes unresponsive and dysfunctional. The episodes can occur at any time, and Petitioner prefers not be alone on the job if possible. On October 31, 2005, Ms. Moe issued a verbal reprimand to Petitioner for insubordination. The verbal reprimand is not an adverse employment action against Petitioner. The City did not reduce Petitioner's pay and did not change the terms, conditions, or privileges of Petitioner's employment as a result of the reprimand. In preparation for Hurricane Wilma earlier in October 2005, Ms. Moe sent an e-mail to employees in the Communication Center instructing them to come to work the following day with the supplies they would need if events required them to stay at the Communication Center during the hurricane (the Moe email). Petitioner and most of the other employees did not bring their hurricane supplies with them when they reported to work the morning after the Moe email. The City sent Petitioner and the other employees home to fetch their supplies and did not impose a time limit for the task. Petitioner took about 90 minutes to get his supplies and return to work, and the span included the regular lunch hour. The time he took was not an issue of concern and did not provide a basis for the verbal reprimand. Petitioner did not eat lunch during the time he retrieved his supplies. Later in the day, Petitioner requested a meal break, and his supervisor denied the request. Petitioner took a second meal break. On October 23, 2005, Ms. Moe delivered to Petitioner a Notice of Intent to Discipline for insubordination. On October 31, 2005, Ms. Moe issued an Oral Warning to Petitioner. Petitioner grieved the verbal reprimand. During the grievance procedure, the City offered to rescind the warning to resolve the grievance. Petitioner rejected the offer as unsatisfactory unless the City also destroyed the record of the discipline. The City advised Petitioner that it could not destroy the document because the document was a public record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of July 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July 2007.
The Issue The issue in this case is whether the Juvenile Welfare Board of Pinellas County (Petitioner) should have treated John Bucci as a mandatory member of the Florida Retirement System from April 1984, through July 1988, and therefore, should be required to submit retroactive adjustments for retirement and social security based upon his earnings during this period.
Findings Of Fact The Petitioner is an independent taxing district created by Special Act in 1945 to provide funding in Pinellas County for services to children. It timely filed a request for hearing on the Respondent's decision to consider John Bucci a mandatory member of the Florida Retirement System (FRS) from April 1984, through July 1988. The position of the Petitioner is that John Bucci was an independent contractor, and therefore, should not be considered a mandatory member of the FRS. Bucci worked as a janitor for the Petitioner between April 1984, and July 1988. He opened the building in the morning, deactivated the building alarm, made coffee, cleaned the employee restrooms, emptied waste baskets, vacuumed and dusted. From time to time, he also painted and made minor repairs in the building, and took mail to the post office when directed to do so. While Bucci did not receive daily assignments, his duties were routine and had been worked out with representatives of Petitioner when he was initially employed. If there were problems with his cleaning, he would be told to reclean an area, and he was expected to take care of the problem as soon as possible. The Petitioner provided Bucci with all supplies and equipment necessary to do his job. While he worked with the Petitioner, Bucci did not have a written contract, but rather, he had an annually renewable verbal contract. He was paid on an hourly basis, and submitted a monthly record of hours worked each day, which was reviewed and approved for payment by Petitioner. Bucci received annual increases from the Petitioner, but did not negotiate these increases. The Petitioner simply gave him what it considered to be a cost of living increase each year. According to Petitioner, Bucci was not in an established position, and therefore, did not receive fringe benefits. At the time, Bucci was the only person working with the Petitioner which it considered to be an independent contractor. Subsequent to his leaving, Petitioner bid, and now has a written contract for janitorial services with an agency in Pinellas County that offers employment opportunities to retarded citizens. That agency provides all equipment and supplies necessary for janitorial duties. After several counseling sessions with Carole Gunnels, Petitioner's operations manager at the time, Bucci was terminated because of continued problems with his work. Thereafter, it was determined by the Division of Unemployment Compensation, Department of Labor and Employment Security, that he qualified for unemployment benefits. The Comptroller's Office of the State of Florida has issued Memorandum No. 7 (1988-89) regarding determinations of a person's status as an independent contractor or employee. In pertinent part, that Memorandum sets forth twenty factors to be considered in determining if sufficient control is present to establish an employee-employer relationship, and states: The Internal Revenue Service has provided guidance in making this determination in Revenue Ruling 87-41. It provides generally, that the relationship of employer and employee exists when the person or persons for whom the services are performed have the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but as to how it shall be done. In this connection, it is not necessary that the employer actually direct and control the manner in which the services are performed; it is sufficient if the employer has the right to do so. The Respondent has adopted Rule 22B-6.001(15), Florida Administrative Code, which defines the term "independent contractor" as an individual who: agrees to provide certain services; works according to his own methods; is not subject to the control of his employer, except as to the results of his work; and does not receive the fringe benefits offered by the employer. A consultant or independent contractor usually: is compensated from another salaries and wages account; does not earn annual or sick leave; and may frequently do a majority of his work in his own office rather than on the employer's premises. In order to determine if Bucci should have been considered to be an employee of the Petitioner, rather than an independent contractor, the Respondent provided Petitioner with a copy of its Employment Relationship Questionnaire, which Petitioner completed on or about April 10, 1989. The information provided by Petitioner on this Questionnaire indicates that Bucci was required to follow regular routines or schedules, the Petitioner could change the methods by which he performed his work or otherwise direct him in the performance of his duties, the work was to be performed by Bucci personally, the Petitioner could discharge him at any time, and he could quit at any time. It was also indicated that Bucci was not filling a regularly established position, but was retained under an oral contract to perform personal services. Bucci did not work full-time with the Petitioner. Rather, he worked an average of between 4 to 5 hours a day with the Petitioner. On rare occasion during the time he was employed with the Petitioner, he did take other part-time cleaning jobs with other employers. However, he did not have any occupational license as a janitorial service, did not advertise as such, had no yellow page listing for janitorial services, and did not have any equipment or supplies necessary to carry out his duties, other than what Petitioner provided him. The characteristics, terms and conditions of Bucci's employment with the Petitioner from April 1984, through July 1988, support the Respondent's determination that he was an employee, rather than an independent contractor, and that he was, therefore, a mandatory member of the FRS.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order concluding that John Bucci was a mandatory member of the FRS, and as such denying Petitioner's request for relief. DONE AND ENTERED this 8th day of November, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1989. APPENDIX (DOAH CASE NO. 89-4067) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as purely procedural matters and not a relevant proposed finding of fact. 3-4. Rejected in Findings of Fact 2-5, 8-10. The Respondent did not timely file Proposed Findings of Fact. COPIES FURNISHED: Terry A. Smiljanich, Esquire P. O. Box 1578 St. Petersburg, FL 33731 Stanley M. Danek, Esquire General Counsel's Office 440 Carlton Building Tallahassee, FL 32399-1550 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus Aikens, Jr., Esquire General Counsel 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact William H. Mathias was initially employed by SWFWMD as Director of Employee Relations on January 30, 1980, at pay grade At the time of Petitioner's employment William C. Tatum was Executive Director of SWFWMD. Petitioner has over ten years' experience in personnel relations and security and holds two master's degrees. Due partly to Petitioner's aggressiveness and strong personality, he began exerting influence in the personnel division in pushing the Personnel Department in directions not necessarily approved by Tatum. Tatum wanted to reduce the influence the Personnel Department was having on SWFWMD. On July 26, 1982, Petitioner was transferred to the Field Operations Division with no change in grade. Exhibit 5, which announced this transfer, stated Petitioner was transferred as Assistant Director. On July 28, 1982, a subsequent memorandum, Exhibit 6, was issued by Tatum changing Petitioner's title from Assistant Director to Acting Administrative Assistant. Prior to this transfer Tatum spoke with William F. Sietman, Director of Field Operations, who advised Tatum that he had no need for Petitioner in the Field Operations Division however, Tatum insisted that Petitioner, with his two master's degrees, could make a valuable contribution to SWFWMD if placed in the right niche. Shortly thereafter, Tatum was replaced as Executive Director by Gary W. Kuhl, who was promoted to that position from Assistant Executive Director. The first evaluation report submitted by Sietman on Petitioner, at the end of his first six months on the job, was unsatisfactory. Petitioner appealed to Kuhl, who withdrew his evaluation partly because no job description had been prepared for the position occupied by Petitioner. Kuhl directed the preparation of a job description for the work to be done by Petitioner. When the job description_ was prepared, the position was given the title of Program Management Analyst and the duties to be performed are as contained in Exhibit 1. Principally, Petitioner's function was to do some coordinating of the budgets prepared by the various sections in Field Operations, coordinate planning and negotiate and oversee the building maintenance contract. This position was a staff function as opposed to a line function in which the incumbent would exercise direction, or command, over the section heads. As a staff function his duties were coordination as opposed to direction. Subsequent to his initial unsatisfactory evaluation at the end of his six months probationary period, Petitioner's evaluations improved each evaluating period and at the time of his termination his performance can be described as very good. However, on several occasions complaints about Petitioner giving personnel advice to Respondent's employees regarding overtime, job classifications, and pay grades reached Kuhl. This was the subject of a memorandum addressed to Petitioner and Sietman by Kuhl on May 15, 1984 (Exhibit 7). Petitioner was told to leave personnel matters and advice to the Personnel Department or face disciplinary action. Changes in the functions imposed on Respondent in 1984 necessitated the employment of additional technical people and the establishment of additional technical positions at SWFWMD. The Governing Board indicated to the Executive Director that the budget could not be raised by the amount needed to fund all of these positions and that cuts would have to be made. Kuhl met with the various division heads to require more justification for the proposed new positions and to ascertain which existing positions they could eliminate. This resulted in a proposed list of positions including the librarian, Petitioner's position, and other positions currently unoccupied. As a result of these discussions it was concluded the unfilled positions and the position of Program Management Analyst could be eliminated. By memorandum dated August 17, 1984 (Exhibit 4), Kuhl advised the Governing Board of the proposed reduction in work force. By letter dated August 20, 1984 (Exhibit 15), Kuhl advised Petitioner that the position of Program Management Analyst was eliminated effective immediately and that he was eligible to apply for any other position in SWFWMD for which he was qualified. Petitioner appealed the termination to the Governing Board and, when the Board affirmed his termination, he filed the instant petition. Prior to the transfer of Petitioner to the Field Operations Division, the budget was prepared by each section chief for his section, and the division director coordinated the budgets. While Petitioner was assigned to Field Operations, he performed this budget coordination role previously taken by the director. When Petitioner's position was eliminated, the division reverted to the way it operated before Petitioner's arrival, with little, if any, noticeable effect. The role Petitioner had assumed in supervising the maintenance contract also reverted back to where it was before Petitioner's arrival, again with no noticeable effect.
Findings Of Fact The Respondent's Employment. The Respondent, John Daniel Faughn, is a Labor and Employment Training Specialist for the Department of Labor and Employment Security (hereinafter referred to as "LES"), and has held that position since 1981. (Stipulated Fact). Mr. Faughn served as a contract manager for LES for approximately two years: 1988 and 1989. (Stipulated Fact). At all times relevant to this proceeding, Mr. Faughn was an "employee of an agency" subject to Section 112.313(6), Florida Statutes. Mr. Faughn worked in the Bureau of Job Training of LES. Mr. Faughn's immediate supervisor was Glenn Chilcote, a Specialist Supervisor at the time. Mr. Chilcote's immediate supervisor was Julian Spradlin. Mr. Spradlin's immediate supervisor was Shelton Lee Kemp, then Bureau Chief of the Bureau of Job Training. The Duties of an LES Contract Manager. The duties of an LES Contract Manager included negotiating contracts between LES and contractors to provide services involving the placement of individuals into employment positions, providing technical assistance requested by the contractor, receiving training and placement information from the contractor, and handling invoices submitted by the contractor once placement was made. (Stipulated Fact). Although it was not a contract manager's responsibility to verify all the information provided by the contractor, contract managers did have a general duty to inquire about information which seemed out of line. (Stipulated Fact). CARE, Inc. and Eugene Wood. CARE, Inc., (hereinafter referred to as "CARE"), is a corporation. "CARE" is an acronym for "Center for Aging Research and Education". Eugene Wood was the President of CARE from at least October 10, 1988, to May 1, 1989. (Stipulated Fact). On May 1, 1989, Mr. Wood sold CARE to Mary Lookadoo, a former program participant, and her daughter and granddaughter, for the sum of $1.00. (Stipulated Fact). The weight of the evidence failed to prove that Mr. Faughn was aware of the sale. LES's First Contract with CARE. LES administered federal Title III grant money in 1988 and 1989. Title III grant money was provided to the states for the purpose of increasing employment of individuals, particularly the disabled or long-term unemployed. Grant money for the foregoing purpose was used to pay for training and assistance to be provided by contractors to individuals in order to place them in the work force. LES and CARE entered into a contract (hereinafter referred to as "Z3248"), providing for the payment of Title III grant funds to CARE for providing certain services specified in the contract between LES and CARE. Mr. Faughn was the contract manager for Z3248. (Stipulated Fact). Z3248 was for the period November 1, 1988, through October 31, 1989. (Stipulated Fact). Pursuant to Z3248, CARE was to be paid for any eligible person placed by CARE in unsubsidized employment after a training period. The placement had to be for a minimum of 30 days of "unsubsidized employment". LES agreed to pay CARE an average of $2,317.29 per placement for a maximum of 14 placements. CARE agreed to provide up to 14 placements for 30 days of unsubsidized employment after appropriate training and supervision. CARE also agreed to provide $35,205.00 in matching contributions, including "in- kind" contributions and $4,410.00 in on-the-job-training salaries. Z3248 was "performance based." That is, CARE was to only received payment for successfully placing qualified persons in employment positions. LES' Second, Indirect, Contract with CARE. In 1989 LES and the Department of Health and Rehabilitative Services (hereinafter referred to as "DHRS"), were involved in a contract for $612,000.00 of federal Title III funds to provide job training and placement in employment of mentally handicapped individuals. Mr. Faughn was the contract manager for this contract, Z3458. DHRS in turn contracted with Florida Community College, Jacksonville, Florida, for administration of Z3458. Florida Community College in turn contracted with the Florida Alliance for Employment of the Handicapped (hereinafter referred to as "FAEH"). (Stipulated Fact). In March, 1989, FAEH was interested in finding service providers for Z3458. A contract between FAEH and CARE was ultimately entered into on May 4, 1989. CARE was to receive approximately $2,300.00 for each placement. (Stipulated Fact). Mr. Faughn's Relationship with Mr. Wood and CARE and His Motive to Benefit Them. Mr. Faughn met Mr. Wood during negotiations for the first contract, Z3248. Mr. Faughn and Mr. Wood became personal friends while Mr. Faughn was the contract manager for Z3248. There were occasions when they stayed as overnight guests in each other's homes. Mr. Faughn stayed with Mr. Wood in San Mateo, Florida, where CARE was located, after Z3248 ended. Mr. Faughn, while still the contract manager for Z3248, believed that he would be going to work for Mr. Wood. Mr. Faughn informed Carol Ann Breyer, then Executive Director of the Florida Alliance for the Employment of the Handicapped, that he was considering going to work for Mr. Wood on a child day- care center project. Mr. Faughn told Lucy Shepard, a Senior Management Analyst II with the Department of Health and Rehabilitative Services, that he would probably be going into business with Mr. Wood. Mr. Faughn, during the time that he was contract manager for Z3248, informed his Bureau Chief, Mr. Kemp, that he was resigning to go to work for Mr. Wood. Mr. Faughn later, however, informed Mr. Kemp that the job did not materialize and requested that his resignation be rescinded. Mr. Faughn, again during the time that he was contract manager for Z3248, informed Mr. Wood of two modest houses in Tallahassee, Florida. Mr. Wood expressed an interest in acquiring the houses and Mr. Faughn assisted Mr. Wood in the purchase of the houses by showing the houses to Mr. Wood and informing him of who owned them. Mr. Faughn performed work on the two houses purchased by Mr. Wood, including constructing a porch on one, pressure cleaning and painting both, replacing a door and removing trash. The evidence concerning Mr. Faughn's purpose in working on the houses owned by Mr. Wood and, whether Mr. Faughn was paid for his work, was conflicting. Mr. Faughn's prior statements and his testimony at the final hearing of this case concerning the houses indicate a lack of candor on his part. His explanation of why he performed the work and whether he was paid is, therefore, rejected. Mr. Faughn maintained at the final hearing that he simply performed the work on the houses out of friendship. He also maintained that there was no "formal agreement" concerning the work he was to perform or his compensation. In his deposition testimony, Mr. Faughn indicated that there was never anything "firm" about being paid an hourly rate for his work and that he was never paid. Mr. Faughn gave Mr. Kemp and Mr. Spradlin the impression that he was working on the houses because he had an interest in the houses and would share in any profits when they were sold. Mr. Faughn's denial of having made such statements is rejected. Mr. Faughn told William Geier and Bonita Stokley of LES's Office of the Inspector General that he was to be paid an hourly wage for his work on Mr. Wood's houses. Mr. Faughn's later denial that these statements were correct is rejected. Based upon the weight of the evidence, it is concluded that Mr. Faughn performed work on the houses because he believed he would be compensated in some manner for his effort. Mr. Faughn believed that he would receive an hourly wage, would share in the profits from the sale of the houses or that he would be employed by Mr. Wood in some venture. In all likelihood, Mr. Faughn expected to and, as explained, infra, did receive an hourly wage. Mr. Faughn received a check for $4,500.00 dated August 4, 1989, from Mr. Wood. The check was deposited in Mr. Faughn's personal credit union account. Mr. Faughn's explanation of what the $4,500.00 check he received from Mr. Wood was for and even whether the check existed has varied throughout the investigation and the hearing on this matter. Mr. Faughn's explanation varied depending on who he discussed the matter with: At the final hearing Mr. Faughn testified that the check was merely a reimbursement for materials and supplies used during his work on the two houses. Prior to the final hearing Mr. Faughn failed to inform investigators from LES during questioning that he was reimbursed any amount. Mr. Faughn told an investigator for the Commission that he had only received $300.00 in reimbursement for supplies and materials. His testimony that he had forgotten about the $4,500.00 check is not credible. Mr. Faughn's testimony in his deposition and at the final hearing and his statements to the Commission's investigator concerning the nature of the work he performed on the houses was also inconsistent. After considering all the evidence concerning the $4,500.00 check, it is concluded that Mr. Faughn was paid the $4,500.00, at least in part, as compensation for his services to Mr. Wood for work on the two houses. Based upon the foregoing, it is concluded that Mr. Faughn's relationship with Mr. Wood, the payment by Mr. Wood for work performed by Mr. Faughn, and Mr. Faughn's hope and belief that he would become an employee of Mr. Wood gave Mr. Faughn reason and motive to act in the interest of Mr. Wood and CARE. By acting on behalf of Mr. Wood and CARE, Mr. Faughn was acting on his own behalf. The Performance of Mr. Faughn's Duties: Mr. Faughn's Recommendations to Expand Z3248. Z3248 initially provided that up to $32,442.06, was available for payment to CARE. This amount was increased, in December, 1988, to $64,884.12. (Stipulated Fact). The number of placements to be made by CARE was also increased to 28. The first increase in Z3248 came about after Mr. Kemp informed Mr. Wood by letter dated November 30, 1988, of the availability of additional job placement units which CARE could apply for. Shortly after Z3248 was doubled in December, 1988, Mr. Faughn approached Mr. Spradlin and recommended that the contract be doubled a second time. The second recommendation to increase Z3248 was denied by Mr. Spradlin. Mr. Spradlin declined approval because he thought that there were certain costs incurred by contractors which did not increase as the number of participants increased. Therefore, as the number of participants increased, the amount of a contractor's profit per participant increased. Mr. Spradlin did not believe this was appropriate. Mr. Faughn was upset with Mr. Spradlin's denial of the second request to increase Z3248. Mr. Spradlin, who indicated that most contract managers tend to support the contractors of the contracts they manage, was surprised at the level of Mr. Faughn's interest in the increase. The weight of the evidence proved that Mr. Faughn's actions in recommending the second increase in Z3248 were inconsistent with the proper performance of his public duties. Although it was not inconsistent for a contract manager to recommend that a contract be increased, Mr. Faughn's reaction to Mr. Spradlin's decision not to approve the second increase coupled with Mr. Faughn's motive for benefiting CARE and Mr. Wood supports a conclusion that Mr. Faughn did not recommend the second increase as part of the performance of his public duties. Instead, Mr. Faughn's recommendation to increase Z3248 was made corruptly. The Performance of Mr. Faughn's Duties: Review of Training Hours. The contract for Z3248 (Respondent's Exhibit 5) contained the following relevant provisions concerning training required by CARE: CARE was to provide Employability Skills Training, Occupational Skills Training and On-the-Job Training (hereinafter referred to, respectively as "EST", "OST" and "OJT"). As is normally the case with these type contracts, it was contemplated in the Z3248 contract that EST would be completed before participants began unsubsidized employment: Upon completion of training, participants will then put their skills to practical use by searching for jobs and having actual personal contact with employers. . . . [Emphasis added]. Page 6, Respondent's Exhibit 5. It was contemplated in the contract that OJT would require 8 to 10 weeks to provide: While some training may be limited to the minimum of two weeks, it is anticipated that clients will require between 8-10 weeks of training. Page 7, Respondent's Exhibit 5. Customized training was also a possibility under the contract: This training may be used for the needs of the employer with a written commitment from an employer to employ the trainee after successful completion of training. The predominate activity will be on-the-job training, but could include classroom training. Page 7, Respondent's Exhibit 5. Finally, the contract provided that "[t]he average length of training for OST/EST/OJT should average 235 hours for each participant." Page 12, Respondent's Exhibit 5. It is to a contractor's advantage to report higher training hours. As part of its contract with LES, CARE was required to forward LES Form 104 to Mr. Faughn each time a participant was placed in employment. (Stipulated Fact). This form was used as an invoice for payment for the placement of a participant in 30 days unsubsidized employment. CARE was also required to file LES Form MIS 2. Form MIS 2 was to be used to report, among other things, each participant's date of enrollment, any change in status and the date of termination. The contract also required that "[i]f the contractor is the OST training agency, the participant's total training hours for EST and OST and/or OJT (whichever applies) must be written on the bottom of the MIS 2 Form for termination." Page 13, Respondent's Exhibit 5. CARE filed MIS 2 Forms for its participants and reported the enrollment and termination date for each participant and the hours of EST, OST and OJT (although the training hours information was not included at the bottom of the page). See Advocate's Exhibit 7. CARE also filed an LET 104 Form for its participants. On the LET 104 CARE was to report, among other things: Block 6: The date that the participant began unsubsidized employment. Although it is possible that training can continue after this date, this date is usually a date after all training has ended. It would be very unusual and unlikely that training continued after the date unsubsidized employment began. Block 8: The starting and ending date for OJT. Block 11: The "Total Hours Trained." There was conflicting testimony as to what the information contained in this part of the form signifies. Based upon the weight of the evidence (primarily the testimony of Carol Marks of LES's Bureau of Job Training Compliance and Mr. Chilcote), more information concerning a contract is needed to determine what the information means. Blocks 13 and 15: Finally, the date the form is signed. This date should be at least 30 days after the date unsubsidized employment began. The purpose of the LET 104 was to certify that a participant had completed the required 30 days minimum of unsubsidized employment. Meeting this requirement entitled CARE to payment of $2,317.29 per participant. To determine if CARE was entitled to payment, the date the LET 104 was signed had to be at least 30 days after the starting date of unsubsidized employment reported in block 6 of the LET 104. Each LET 104 and MIS 2 is filed with the contract manager. The contract manager must review each MIS 2. The contract manager must also review each LET 104 to determine if the contractor is entitled to payment. If so, the LET 104 Form is reviewed by the contract manager's supervisor, is then sent to the Bureau of Financial Management and then goes to the Comptroller for payment to the contractor. Participants usually are required to train 40 hours a week. Although it is possible to train for more than 40 hours, it is unlikely that more than 40 hours would be expended by any participant. Based on the Total Hours Trained reported on the LET 104's filed by CARE for Z3248 and the period of time of OJT reported on the LET 104's, CARE participants were investing from 61 to 129 hours a week in OJT. When the Total Hours Trained reported are compared with the period of time from the enrollment date reported on the MIS 2's to the date unsubsidized employment began, although participants spent fewer hours per week, most of them still allegedly were spending more than 40 hours a week in training: from 33.5 to 70.5 hours per week. Mr. Faughn, after reviewing the LET 104's and MIS 2's filed by CARE on Z3248, did not raise any question about the number of training hours being reported by CARE. The testimony concerning whether Mr. Faughn should have noticed and raised some question concerning the Total Hours Trained reported by CARE, was conflicting: Mr. Geier, from the Office of the Inspector General of LES, divided the Total Hours Trained by the number of days of OJT reported in the LET 104's and by the number of days between each participant's enrollment date from the MIS 2's and the date unsubsidized employment began. His calculations, which are contained on Advocate's Exhibits 7 and 8, respectively, indicate that most participants may have been receiving more than 40 hours a week of training. See Finding of Fact 52. Mr. Geier believed that Mr. Faughn should have at least raised a question about the numbers reported as Total Hours Trained. Mr. Chilcote, Mr. Faughn's immediate supervisor, disagreed with Mr. Geier's conclusion: Mr. Chilcote pointed out that contract managers have to review several LET 104's a day (LET 104's were delivered in stacks of 20 to 30 and involved more than 1 contract and, on average, Mr. Faughn reviewed 8 to 10 a day). Mr. Chilcote also explained that contract managers do not have the time to make the calculations that Mr. Geier made. In order to make the calculations Mr. Geier made, it was necessary for Mr. Geier to count the number of possible days of training and then divide the Total Hours Trained by the number of days. Although not a difficult calculation, the evidence failed to prove that the calculation is one that contract managers normally make. Additionally, Mr. Geier had to obtain some of the relevant information necessary to make the calculations from the LET 104's and from MIS 2's. If block 11, Total Hours Trained, was only for OJT hours, Mr. Chilcote agreed that Mr. Faughn should have been alarmed. Block 11, however, was being used to report all training hours: EST, OST and OJT. Mr. Faughn should have been aware that CARE was reporting all of its alleged training hours in block 11 and not just OJT. Therefore, Mr. Faughn did not believe that Block 11 was intended to represent just OJT. Mr. Chilcote did not believe that lumping the hours of EST, OST and OJT was unusual. The Total Hours Trained reported on the LET 104's were not the significant information that contract managers were supposed to review. The purpose of the LET 104 is for contractors to certify that a participant has completed, in this case, 30 hours of unsubsidized employment. Therefore, the most important information on the LET 104 is the date unsubsidized employment began and the date the form was signed. Mr. Faughn initially rejected one payment and wrote to CARE when the information concerning when unsubsidized employment began and the date the form was signed for one participant did not indicate that the participant had been through 30 days of unsubsidized employment. See Respondent's Exhibit 8. Based upon the weight of the evidence, it is concluded that the evidence failed to prove that Mr. Faughn should have questioned the hours being reported as Total Hours Trained by CARE on the LET 104's. In light of the fact that the Total Hours Reported included all hours of training, not just OJT, the fact that Mr. Faughn was aware that the contract required EST, OST and OJT, and the fact that the LET 104's were primarily used to receive payment for 30 days of unsubsidized employment, dividing the Total Hours Trained by the number of days of OJT was not something Mr. Faughn would be expected to do as part of his job. The results of dividing the Total Hours Trained by the number of days from enrollment to the beginning of unsubsidized employment (Advocate's Exhibit also does not support a conclusion that Mr. Faughn should have questioned the information because the results of this computation do not show as great a discrepancy and the evidence failed to prove that Mr. Faughn should have been comparing the information contained on the LET 104's with the information contained on the MIS 2's necessary to make this computation. The Performance of Mr. Faughn's Duties: CARE's Match. CARE was required to provide "Match" on Z3248. "Match" is a requirement that a contractor provide a certain specified amount of time, equipment or 50% of OJT costs. In the case of Z3248, CARE was required to provide 50% of OJT Costs. CARE was required to report the amount of its match monthly on line 7 of a "Report of Monthly Cumulative Matching Contribution-Summary." CARE did in fact file such reports and, according to its reports, provided the required match. The evidence failed to prove that CARE failed to fulfill this requirement. In April, 1989, Ms. Marks and James Harris from LES's Bureau of Job Training Compliance made a site visit to CARE. The Bureau of Job Training Compliance was responsible for auditing contractors to determine whether they were complying with the requirements of their contracts. Ms. Marks and Mr. Harris spent approximately one-half of a day on the visit to CARE. Mr. Harris, who monitored fiscal matters, attempted to find documentation in the form of OJT agreements and time sheets to verify CARE's match of $6,398.00 reported for March, 1989. Mr. Harris was not successful and requested these documents from Mr. Wood. Mr. Wood informed Mr. Harris that the documentation for the $6,398.00 of March, 1989, Match was not available. Mr. Harris told Mr. Wood that the $6,398.00 would have to be removed and Mr. Wood informed Mr. Harris that it would be. Mr. Harris informed Mr. Faughn of the problem concerning the $6,398.00 of unsupported match. Mr. Harris also told Mr. Faughn that Mr. Wood had indicated that the $6,398.00 would be removed from CARE's reported Match. On June 26, 1989, a letter was sent to Mr. Wood from Ron Rigby, LET Supervisor, Bureau of Job Training of LES, stating, among other things, the following: In regard to the finding as noted in the fiscal review, documentation submitted is inadequate to support matching contributions of $6,398 for employer's OJT costs. You are requested to submit employers' OJT agreements and participants' time sheets which may be used to adequately document the matching contributions. We recommend that if adequate documentation is not submitted, the match contributions of $6,398 be deleted from the match report. A copy of the June 26, 1989, letter to Mr. Wood was provided to Mr. Faughn and Mr. Chilcote with a note from Mr. Spradlin which stated: What action will this require if enacted, i.e. are they already short of match or would they be without this etc. Pls track this along with the Gretna thing until resolution. Although there was some dispute over who had the ultimate responsibility for following up on the documentation for the $6,398.00 match, the weight of the evidence proved that while ultimate responsibility may have rested with the monitors of the Bureau of Job Training Compliance, Mr. Faughn had the responsibility to follow up on this matter also. Mr. Faughn had the responsibility as the contract manager and because he was directed by Mr. Spradlin to follow up until resolution. Although there was conflicting testimony concerning whether the documentation was ever provided, it is concluded that it was not. Mr. Faughn's testimony was disputed by other witnesses and, throughout the proceeding, was less than candid. Although the disappearance, and reappearance a few years later, of a file in which the documentation might have been kept and the fact that Mr. Harris left employment with LES in July, 1989, at the time of these events raises some question about whether the documents were provided, ultimately, Ms. Gloria Barton's testimony that the documentation was not provided was persuasive. Ms. Barton took over responsibility for the matter after Mr. Harris left LES. Ms. Barton asked Mr. Faughn about the documentation twice and made a note on August 8, 1989, to this effect. Ultimately CARE reported that it provided more match than it was required to provide. The weight of the evidence failed to prove that it did not meet its match requirement. Although the lack of documentation for a part of the reported match raises a question in the undersigned's mind concerning the accuracy of the other reported match, no evidence was presented to indicate that the required match was not ultimately provided. Nor was any evidence provided that anyone at LES also had such a concern. The weight of the evidence failed to prove that Mr. Faughn's actions with regard to whether CARE's match constituted some act or omission inconsistent with the proper performance of Mr. Faughn's public duties. The evidence, therefore, failed to prove that Mr. Faughn acted corruptly by not following up on the $6,398.00 of match questioned by Mr. Harris. J. The Performance of Mr. Faughn's Duties: Z3458. In March, 1989, Mr. Faughn approached Lucy Shepard, who acted as liaison between DHRS and LES on Z3458, and Carol Ann Breyer of FAEH and recommended that CARE and Mr. Wood be considered as a service provider. (Stipulated Fact). On April 29, 1989, Mr. Faughn held a barbecue at his home for the purpose of getting CARE together with DHRS and FAEH. Ms. Shepard, Charis Wickers of FAEH and Mr. Wood, among others, attended the barbecue. (Stipulated Fact). Mr. Faughn was very enthusiastic in his recommendation that CARE be awarded a contracted from FAEH. It was unusual for a contract manager to suggest service providers. As the contract manager of the ultimate contract from LES, Ms. Shepard, Ms. Breyer and Ms. Wickers were all influenced by Mr. Faughn's recommendation. Although Ms. Shepard, Ms. Wickers and Ms. Breyer all had reservations (based upon the fact that they had not heard of CARE as a provider of mental health services) about entering into a contract with CARE, they ultimately went along because of Mr. Faughn's recommendation and because the contract with CARE was performance based: if CARE did not perform, CARE would be paid nothing. After the contract was entered into with CARE, invoices were submitted. Ultimately, invoices for at least 100 placements were submitted. Ms. Shepard, Ms. Wickers and Ms. Breyer all raised questions with Mr. Faughn about their suspicions and concerns over whether CARE was performing the work it was reporting. Ms. Wickers complained more than once that CARE was not keeping sufficient contact with FAEH. Ms. Breyer questioned CARE's ability to perform as it was reporting. Although Mr. Faughn was not the contract manager of the contract to FAEH, Mr. Faughn and FAEH representatives knew that DHRS and Florida Community College were "pass-thrus" and that the most significant parties were FAEH and LES. Whenever Mr. Faughn was informed of the concerns of Ms. Shepard, Ms. Wickers and Ms. Breyer, Mr. Faughn would assure them that everything was okay, that CARE would perform and he would tell them not to worry. The invoices submitted by CARE were suspicious because they reported employment that mentally handicapped individuals normally do not obtain and some of the telephone numbers and addresses of employers were very similar. Eventually, Ms. Breyer took her concerns about the invoices to Mr. Kemp of LES. She did not go to Mr. Faughn because of his enthusiasm in recommending CARE and his lack of attention to her previous complaints. CARE was not paid any amount by FAEH. The weight of the evidence proved that Mr. Faughn's actions in recommending CARE for Z3458 and in ignoring the complaints against CARE were acts or omissions inconsistent with the proper performance of Mr. Faughn's public duties. But for his relationship with Mr. Wood and his desire to benefit himself indirectly through CARE and Mr. Wood, it is concluded that Mr. Faughn would not have supported CARE as a contractor in the manner that he did and that he should have taken the complaints against CARE more seriously. Therefore, the evidence proved that Mr. Faughn acted corruptly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that John Daniel Faughn violated Section 112.313(6), Florida Statutes. It is further RECOMMENDED that the Commission suspend Mr. Faughn without pay for one month and demote him to a position in which he will not have direct or indirect responsibility for public funds. If Mr. Faughn cannot be demoted to such a position, it is recommended that the Commission suspend him without pay for a period of two months. DONE and ENTERED this day of June, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 day of June, 1992. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. 1 1. 2 2. 3 5. 4 6. B. 1 7. 2 8. 3 9. 4 Not relevant. See 10. C. 1 11. 2 12 and 21. 3 12 and 14. 4 13. 5 37. Hereby accepted. Not supported by the weight of the evidence. 8 18 and 21. 9 18. 10 19. 11 21. 12 80. D. 1 22-23. 2 24-25. 3 26. 4 27. 5 28-31. 6 31. 7 34. 8 33. 9 31 and 34. 10-14 34. 15 34-36. E. 1 37 and 39. 2 40. 3 41. 4 Not supported by the weight of the evidence. 5 45. 6 48. Hereby accepted. But see 55. See 52 and 54. 51. The Respondent did not have the burden of proving that over 40 hours of training per week was provided. The burden of proof was on the Advocate. See 48. 11 47-48. 12 51. 13 The burden of proof was on the Advocate to prove that participants did not receive training after being placed in unsubsidized employment. Although the evidence raised doubt about whether such training was provided, the evidence did not prove this fact. 14 See 54-55. 15 44. Hereby accepted. But see 55. See 55. Except for the first sentence, this proposed finding of fact is not supported by the weight of the evidence. 18 65. 19 58 and 60. 20 56. 21 63-64. 22-25 66. Not supported by the weight of the evidence. See 67. 69 and hereby accepted. 28 70. 29 71. 30 73 and 76. 31 21 and 73. 32-33 75 and 77. 34 78-79. 35 Not relevant. 36 79. 37 80. 38 33-36. The last paragraph is not supported by the weight of the evidence. Mr. Faughn's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 5. 4 5 and 50. 5 12-16. 6 17, 45 and 49. 7 38. 37 and hereby accepted. Not supported by the weight of the evidence. The evidence failed to prove whether CARE fulfilled its obligations or whether it failed to fulfill its obligations. The evidence failed to prove that Mr. Faughn's performance "was exactly as it should have been." See 22, 45 and 47. The third sentence is hereby accepted. 11-12 Not supported by the weight of the evidence. 13 18, 20 and 69. 14 70. 15 Not supported by the weight of the evidence. 16 21 and 71. Not supported by the weight of the evidence. See 75 and 77. Not supported by the weight of the evidence. See 73 and 76. Not supported by the weight of the evidence. See 81. 33 and See 34-36. The evidence failed to prove that the sole purpose of the $4,500.00 check was for materials. Not supported by the weight of the evidence. See 35- 36. See 55. Not supported by the weight of the evidence. See 42 and 81. 24 See 6, 65 and 68. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Ronald L. Jones, Esquire 1020 East Lafayette Street, Suite 108 Tallahassee, Florida 32301 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether the respective bid protests should be upheld.
Findings Of Fact Section 7(b) of the Wagner-Peyser Act (the Act), 29 U.S.C. Section 49f.(b), is a federal grant source which provides certain funds for the funding of job placement services at the discretion of the Governors of the respective states. Included among such services are job placement services for groups determined by the Governor of Florida, in his discretion, to have special needs within the parameters set forth in the Act. These funds are commonly referred to as "the Governor's Discretionary Funds" or "the 10 percent program". In 1982, Congress passed the Job Training Partnership Act (JTPA), 29 U.S.C. Sections 1501 et seq., which amended the Wagner-Peyser Act so as to provide the 10 percent program referred to above and which also provided for separate JTPA programs. The provisions of 29 U.S.C. Section 1517, require that the "primary consideration" to be given in the procurement of services under JTPA grant programs is to "... be the effectiveness of the agency or organization in delivering comparable or related services based on demonstrated performance " The procurement of services under Wagner-Peyser grants are not governed by the provisions of 29 U.S.C. Section 1517, but are, instead, governed by what is referred to as "the common rule." Circular A-102, informally known as "the common rule", is codified at 29 CFR 97.36(d)(3)(iv), and provides that a state, in the procurement of services under the 10 percent program is to use the same policies and procedures it uses for procurement from non-federal funds. Respondent issued a Request For Proposals (RFP) on January 26, 1990, seeking proposals for projects to be funded through the 10 percent program. Before the deadline for the submission of responses of March 21, 1990, Respondent conducted three RFP workshops and distributed answers to questions raised at the workshops. Adults Mankind Organization submitted two proposals in response to the RFP. The Center for Independent Living in Central Florida, Inc. (CIL) and Goodwill Industries of Central Florida, Inc. (Goodwill Industries) each submitted one proposal in response to the RFP. Key personnel for both CIL and for Goodwill Industries were experienced in responding to the type RFP issued by Respondent. Both CIL and Goodwill Industries had, in prior years, been successful proposers and had successfully managed contracts with Respondent that were funded by the Act. Respondent selected a three person team to review all applications that were filed in response to the RFP. The rating system employed by the team was devised by the State Job Training Coordinating Council and was essentially the same system that had been used to rate applications in the previous program year. The process contemplated that the rankings and recommendations of the three person team was to be submitted to the Job Training Committee, a committee of the State Job Training Coordinating Council. The Job Training Committee would review the work of the three person team during a public meeting and thereafter make its recommendations to the State Job Training Coordinating Council. The State Job Training Coordinating Council would thereafter review the recommendations that had been made to it by the Job Training Committee and make its recommendations to the Governor. All proposals were evaluated and ranked, by the evaluation committee in the order of their respective cumulative scores. The more points a proposal received, the higher its ranking. The top ranked proposal achieved the highest number of points and was ranked number one. Following the first ranking of the applications, the top 31 ranked proposals were recommended for funding. There was insufficient funding for projects ranked lower than 31 and, consequently, no project ranked lower than 31 was recommended for funding. Following the first ranking, none of the proposals submitted by the Petitioners were ranked high enough to merit a recommendation for funding. CIL's project ranked 39. Goodwill Industries' project ranked 47. Adults Mankind's two projects ranked 51 and 53, respectively. The initial ranking of the applicants by the evaluation team was published on April 24, 1990, before the recommendations were submitted to the Job Training Committee. The maximum score an applicant could score for all categories was 100 points. One of the rating categories, worth a total of 10 points, related to the demonstrated capabilities of the proposing organization. In the first rating, each of the proposals submitted by the Petitioners received the maximum score of 10 in this category. However, any newly formed organization, regardless of the qualifications of the key employees of that organization, received no points in this category in the first rating of the proposals. Two days after the publication of the initial evaluation a member of the Florida House of Representatives, asked Director Johnston to visit with him about the RFP process. Ernest Urassa was present at this meeting. Mr. Urassa is a former employee of Respondent who has experience in providing the type services required by the Act. Mr. Urassa formed a new organization and, on behalf of that new organization, submitted proposals in response to the RFP. In the first rating of the proposals, Mr. Urassa's proposals received zero points in the organizational capability category. Mr. Urassa had complained to this Representative and to several of Respondent's employees about the rating of the organizational capability category. During this meeting, this Representative asked Director Johnston to explain the rationale behind the rating of the organizational capability category, but there was no evidence that this Representative was attempting to improperly influence the procurement process. Mr. Johnston thereafter determined that the organizational capability category had not been fairly rated by the evaluation team. He thereafter ordered the evaluation team to rerate that one category and make its recommendations based on the revised rankings. The evaluation committee was told to consider the experience of key individuals in rating the organization's capabilities, but there was no attempt to give one proposer an unfair advantage over another. The evaluation committee rerated all of the proposals and gave all proposers a rating of 10 in the organizational capability category. Following the second rating, the proposals submitted by these Petitioners were again below the cutoff for those projects that would be recommended for funding. CIL's proposal was ranked 44, Goodwill Industries' proposal was ranked 51, and Adults Mankind's proposals were ranked 57 and 58, respectively. No project ranked lower than 36 received a recommendation for funding. The evaluation committee thereafter submitted its rankings and its recommendations to the State Job Training Committee, a committee of the State Job Training Council. The fact that the proposals had been rerated in this one category and the reasons for the rerating were discussed in public meetings before both the State Job Training Committee and the State Job Training Council. The State Job Training Council decided to cut the funding of all projects that were recommended for funding by 25% so that none of the projects that would have been funded following the first rating would be totally excluded from funding after the second rating. This 25% funding cut did not effect any of the Petitioners since their projects were not selected for funding. Petitioners failed to establish that there was any illegality, fraud, oppression or misconduct involved in the preparation of the RFP, in the selection of the evaluation committee, in the instructions given the evaluation committee, or in the work done by the evaluation committee. Mr. Johnston acted within his discretion in reviewing the method by which this category was being evaluated, in determining that the committee was not fairly evaluating the category, and in ordering the committee to rerate the proposers in the way he thought the category should be rated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the bid protests filed by the respective Petitioners in Cases 90-3543BID, 90-3544BID, 90-3545BID and 90-3546BID be dismissed. DONE AND ENTERED this 16th day of August, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASES 9O-3543BID, 9O-3544BID, 90-3545BID and 90-3546BID The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted July 27, 1990 (the proposed recommended order does not specify by whom it was submitted, but it is apparent that it was submitted by one or more of the petitioners): The proposed findings of fact in paragraphs 1-8, 13, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 9-12, 14, 16, 19, 20, and 22-25 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 17 are rejected as being unsubstantiated by the evidence. The proposed finding misconstrues Mr. Johnston's testimony. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence and as being argument. The proposed findings of fact in Paragraphs 21 and 26 are rejected as being unnecessary to the conclusions reached and as being argument. The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted by Respondent: The proposed findings of fact in Paragraphs 1, 3-6, and 10-12 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order, and are rejected in part as being the recitation of testimony. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. COPIES FURNISHED: David J. Bush, Senior Attorney Florida Department of Labor and Employment Security The Montgomery Building Suite 131 2562 Executive Center Circle East Tallahassee, Florida 32399-0657 Sara Bravo Executive Director Adults Mankind Organization, Inc. 1850 S. W. 8th Street, Suite 411 Miami, Florida 33135 Shelton Kemp Chief, Bureau of Job Training Florida Department of Labor and Employment Security Division of Labor Employment and Training The Atkins Building, Suite 300 1320 Executive Center Drive Tallahassee, Florida 32399-0667 Nan Griggs Executive Director Treasure Coast Private Industry Council, Inc. 3405 Northwest Federal Highway Suite 101 Jensen Beach, Florida 34957 Lee Ann Pendergrass Director Center for Independent Living in Central Florida, Inc. 720 North Denning Drive Winter Park, Florida 32789 Cherie Johnson Director of Rehabilitation Development Goodwill Industries of Central Florida, Inc. 6400 S. Orange Avenue Orlando, Florida 32859-0557 Hugo Menendez, Secretary Berkely Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron General Counsel 307 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0658
