The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, on May 6, 1996, as a Code Enforcement Officer. Almost ten years later, on March 28, 2006, Respondent suspended Petitioner for five days for violating City of Gainesville Personnel Policy 19, Rule 19, by providing a false sworn affidavit attesting that a particular property was in compliance with an Order of the Code Enforcement Board when the property was not in compliance. Additionally, the Petitioner received a written warning and counseling regarding a violation of City of Gainesville Personnel Policy 19, Rule 13, which consisted of neglecting to perform a required re-inspection of a property for a period of several months. Petitioner’s work as a Code Enforcement Officer involved “responsible inspection work enforcing compliance with the City Codes and Ordinances pertaining to zoning, housing, landscaping, street graphics, lot clearance, junk vehicles, and related codes and ordinances.” On December 30, 2004, Petitioner received a complaint regarding violations of the housing code at 220 South East 1st Street, Gainesville, Florida. After inspecting the property further on January 5, 2005, Petitioner issued the owner a notice of violation allowing the owner until February 5, 2005 to remove non-operational vehicles and junk, trash and debris from the property. Petitioner re-inspected for compliance on May 16, 2005, when he found the property to be in non-compliance with the notice. Respondent states that Petitioner referred the case to the City of Gainesville Code Enforcement Board, and it was docketed as case number CEB2005-106. The City of Gainesville Code Enforcement Board is a quasi-judicial board created by the City of Gainesville pursuant to Florida Statutes Chapter 162 and City Code of Ordinances Chapter 2. The Code Enforcement Board is charged with hearing cases of alleged violations of the City’s Code. The Code Enforcement Board heard the case on June 9, 2005, found the owner guilty of the violation, and allowed the owner until July 13, 2005 to bring the property into compliance. On August 11, 2005, Petitioner made notes in the file to the effect that the matter had gone to the Code Enforcement Board and that he would “inspect for compliance with [the] order when time is up.” No other case-related activity was noted by the Petitioner in the time period between the Enforcement Board hearing on June 9, 2005, and Petitioner’s alleged January 4, 2006 inspection which led to the Affidavit of Compliance issued by Petitioner on January 6, 2006. On January 4, 2006 Petitioner noted in the file that the property was in compliance and later executed the Affidavit of Compliance before a licensed Notary Public after being duly sworn. Petitioner swore under oath in that Affidavit that the corrective action ordered by the Board had been taken. In February 2006, a new complaint regarding the above- referenced property was made to the Code Enforcement Division. The new complaint was reported by multiple sources. Code Enforcement Supervisor David Watkins investigated the February 2006 complaint. Watkins found the property not in compliance and deduced that Petitioner filed the affidavit a month earlier with the knowledge that the compliance sworn to in the Affidavit had not been achieved. Watkins’ determination is corroborated by photographic evidence presented at the final hearing and establishes that the property was not in compliance at the time of Petitioner’s affidavit. Watkins summarized his investigation and findings in a detailed Supervisory Report. He also learned from an interview with the owner of the 220 South East 1st Street property that the owner did not believe he had come into compliance with the order. Petitioner’s false affidavit misrepresenting the facts of case number CEB2005-106 permitted the violator to evade the penalty prescribed by the Code Enforcement Board of $250 a day for a period of 175 days or an accumulated fine of $43,750. Petitioner was issued an Employee Notice on March 28, 2006 for violation of City of Gainesville Personnel Policies and Procedures, Policy 19, Rules 19 and 13, resulting in a five-day suspension without pay. Policy 19, Rule 19, prohibits “immoral, unlawful, or improper conduct or indecency, whether on or off the job which would tend to affect the employee’s relationship to his/her job, fellow workers’ reputations or goodwill in the community.” The minimum disciplinary action provided for a first violation of Rule 19 is instruction and five day suspension or dismissal.” Policy 19, Rule 13 prohibits “productivity or workmanship not up to required standard of performance.” The minimum disciplinary action provided for a first violation of Rule 13 is “written instruction & cautioning.” Pursuant to the established procedure, Petitioner challenged the suspension through the three-step grievance process and was afforded the opportunity to present evidence and argument to the division manager, department head, and the City Manager’s Office. The disciplinary action was sustained at each level. Petitioner compared his case to a case handled by a white code enforcement officer where that officer was not disciplined. In response to Petitioner’s allegations, Watkins reviewed the case referenced by Petitioner to determine possible existence of violations similar those committed by the Petitioner. No evidence was discovered by Watkins to support Petitioner’s allegations. The allegations raised by Petitioner against his fellow code enforcement officer were not supported at the final hearing through proof of execution of a false affidavit by a similarly situated white employee. The City has had no cases of similar offenses within the memory of current management and no record of past cases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 19th day of July, 2007, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 19th day of July, 2007. COPIES FURNISHED: Daniel M. Nee, Esquire City of Gainesville 200 East University Avenue, Suite 425 Gainesville, Florida 32601-5456 Walter Booth 2810 Northeast 13th Street Gainesville, Florida 32609 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was subject to an unlawful employment practice by Respondent based on her race, national origin, or in retaliation for participating in a protected activity, in violation of section 760.10, Florida Statutes (2016);1/ and if so, what penalty should be imposed.
Findings Of Fact Background Petitioner, Ana-Marie Encui, is Caucasian, a native of Bucharest, Romania, and speaks with a Romanian accent. Petitioner’s son and daughter both reside with her. At all times relevant hereto, Petitioner’s son was 13 years old and her daughter, 11. Petitioner was first employed by Respondent, Department of Children and Families (“Department” or “Respondent”) as a Child Protective Investigator (“CPI”) in the Office of Family Safety in Brevard County, Region 5, on October 26, 2012. Petitioner and her children relocated to Pace, Florida, in Santa Rosa County in 2014. Petitioner was again employed by the Department as a CPI in neighboring Escambia County, Region 1, from May 9, 2014, until her resignation effective February 16, 2017. A CPI’s responsibilities are to investigate allegations of child abuse, neglect, and/or abandonment, received through the Department’s central abuse hotline and other sources. CPIs investigate allegations of abuse and neglect by interviewing children and adults involved in the allegations, as well as “collaterals,” such as relatives living outside the home, teachers, and other caregivers. Through investigation, CPIs assess the validity of allegations, document living conditions, and determine the steps needed to protect children from unsafe environments. CPIs also coordinate with, and refer clients to, social services for support, and conduct follow-up visits to ensure the safety of children is being maintained and supports are in place. CPIs may be called upon to testify in court regarding the circumstances of cases under investigation. Abuse Complaint Involving Petitioner’s Household On August 15, 2016, the Department received an anonymous complaint through the central abuse hotline regarding Petitioner’s household. Petitioner was not named as the perpetrator of abuse or neglect of children in the household. The complaint implicated other adult members of the household. Department Policy 170-16 (the “Policy”), Chapter 5, governs the procedure to be followed when Department employees are the subject of a report of abuse, neglect or exploitation. Such reports are designated as “special handling” reports. When a “special handling” report is received, the hotline supervisor must notify the appropriate manager, in this case the Region 1 Program Administrator, who must review the report immediately upon receipt. Section 5-6b. of the Policy provides, as follows: To maintain confidentiality, provide an objective assessment, and avoid the appearance of impropriety, the Circuit or Regional Program Administrator or Program Manager shall determine if the report needs to be reassigned to a different region or county. According to the Policy, in all cases in which the employee is the alleged perpetrator, the employee must be removed from customer contact while the investigation is pending, and the employee’s access to the Florida Safe Families Network (“FSFN”) database must be restricted by the close of business the following day. The Policy further provides that investigative activities on “special handling” cases “shall be expedited to ensure a timely but thorough investigation.” The decision regarding when, or if, the employee may return to assigned duties is at the discretion of the appropriate manager, which, in the case at hand is the regional manager. Stacy Amaro, DCF Region 1 Program Administrator, was notified of the “special handling” report involving Petitioner’s household. She approached Santa Rosa CPI, Katelyn Paschal, who was in line for assignment of the next case in the normal course of business. Ms. Amaro questioned Ms. Paschal about whether she knew Petitioner, who was a CPI in neighboring Escambia County. Ms. Amaro determined that Ms. Paschal had never worked directly with Petitioner, although the two had collaborated on out-of-town inquiries (“OTIs”) over the phone and via electronic mail, and may have attended Department trainings events together. Ms. Paschal was not friends with Petitioner, did not have social or personal interactions with Petitioner, and did not discuss Petitioner’s family or personal life with Petitioner. Ultimately, Ms. Amaro determined Ms. Paschal would be impartial and investigate the report fairly and thoroughly. Ms. Amaro decided to keep the report in the Santa Rosa office and assign it to Ms. Paschal for investigation. Ms. Paschal investigated the complaint from the date it was assigned to her--August 16, 2016--through October 22, 2016, when she closed the investigation finding the allegations of maltreatment of Petitioner’s children non-substantiated. During her investigation, Ms. Paschal interviewed Petitioner’s son at his school. Ms. Paschal asked Petitioner’s son questions about all the members of the household, activities in the household, arguments between adults, and the adults’ use of alcohol. During this interview, Petitioner’s son shared with Ms. Paschal that his sister had a learning disability. What Ms. Paschal said in response to that information was a subject of debate at the final hearing and is the crux of Petitioner’s complaint in this case. According to Petitioner, in Ms. Paschal’s subsequent interviews with collaterals, Ms. Paschal referred to her daughter as “slow” or “retarded,” or both. Ms. Paschal denied ever referring to Petitioner’s daughter as either “slow” or “retarded.” Petitioner’s Whistleblower Complaint On December 9, 2016, Petitioner filed a complaint with the Department’s Inspector General’s Office (“IG’s Office”), in Tallahassee, alleging the Department failed to follow correct procedures in investigating the abuse complaint involving her family. Petitioner alleged, and insisted at final hearing, that the complaint involving her family should have been assigned to a “neutral” county. Petitioner further alleged the CPI disclosed confidential health information regarding her daughter during interviews with collaterals, and failed to follow Department policy in other aspects of the investigation. On January 31, 2017, after a “preliminary review” of the complaint, the IG’s office responded to Petitioner in writing, as follows: [T]his office has determined that your complaint “does not demonstrate reasonable cause to suspect that an employee or agent of an agency or independent contractor has violated any federal, state, or local law, rule or regulation, thereby creating and presenting a substantial and specific danger to the public’s health, safety, or welfare or has committed an act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty” as required under section 112.3187-112.31895, Florida Statutes, also known as the “Whistle- blower’s Act.” The IG’s office simultaneously forwarded Petitioner’s complaint to the Department’s Northwest Region Manager, Walter Sachs, for “any action deemed appropriate by [his] office.” Finally, because Petitioner’s complaint raised the possibility of a HIPPA violation, the IG’s office also forwarded Petitioner’s complaint to Herschel Minnis, Human Resources Administrator, Civil Rights Division. Petitioner’s Corrective Action Plan On January 24, 2017, Petitioner was presented with a Performance Corrective Action Plan, or PCAP, by her supervisor, Shavon Terrell. The PCAP noted seven different performance expectations for which Petitioner had fallen short, along with a summary of the particular reasons Petitioner’s performance was substandard. In each and every section, the summary included, “see write up for specific case information.” The “write-up” referred to an Employee Disciplinary Action Proposal Form, completed by Julie Yeadon, Ms. Salter’s assistant. The Form summarized specific cases with deficiencies in case follow-up, danger assessments, and case notes, and documented untimely submission of her cases to her supervisor when danger was identified. The Form documented Petitioner’s historic case backlog and past efforts to address the backlog by transfer of her cases to other CPIs. The PCAP period was two months--January 24 through March 24, 2017--during which Petitioner was expected to correct the noted performance expectation deficiencies by completing the specific corrective actions noted in the plan. The PCAP expressly stated the corrective actions must be taken “to attain satisfactory performance in your current position.” The PCAP expressly stated, “Non-compliance may result in: Disciplinary action, up to and including dismissal may be initiated.” The PCAP provided that the plan was in accordance with “Standards of Conduct and Standards of Disciplinary Action for Department Employees CFOP 60-55, chapter 1.”2/ Petitioner refused to sign the PCAP agreeing to participate in the corrective action plan. Petitioner’s Resignation On January 31, 2017, Petitioner informed Ms. Terrell that she would not agree to the PCAP and would, instead, resign her position. In her resignation letter, Petitioner explained that she was resigning due to retaliation, unfair treatment, and negative job action taken against her for expressing her concerns regarding the “unlawful, unprofessional, and disrespectful manner that [her] children and family were approached and treated” during the investigation of the complaint involving her household. Petitioner’s resignation was effective February 16, 2017. Retaliation Claim Petitioner maintains the PCAP was a means of retaliation against her for filing the IG Complaint with the Department. Respondent presented Petitioner with the PCAP on January 24, 2017, 26 days after Petitioner filed the IG Complaint on December 9, 2016. The decision to place Petitioner on a PCAP was made by the following employees of the Escambia County office: Petitioner’s supervisor, Ms. Terrell; Operations Management Consultant, Julie Yeadon; and Program Administrator, Ms. Salter. Although the IG Complaint concerned the actions of, and was investigated by personnel in, the Santa Rosa office, Ms. Salter was aware in December 2016 that Petitioner had filed the IG Complaint. Ms. Yeadon was not aware of the IG Complaint until she began preparing for testimony in the instant proceeding. The record does not support a finding of whether Ms. Terrell had knowledge of the IG Complaint prior to participating in the decision to place Petitioner on a PCAP. Between May 2014 and September 2015, Petitioner was supervised in the Escambia County office by CPI Supervisor (“CPIS”) Tonja Odom. On January 28, 2015, Ms. Odom issued Petitioner a Documented Counseling for Poor Performance. The following excerpt is notable: As you are aware, the Family Functioning Assessment (FFA) is a valuable tool we use to help determine whether a child is safe or not. If a child is determined to be unsafe, then the family is referred to services with a Family First Network (FFN) provider. We have 14 days to complete [the FFA] and turn the case over to our FFN provider. Lately, you have missed the 14 day deadline and have cases that have exceeded 30 days. * * * In one of the overdue cases, (14-316539), the children were deemed unsafe; yet your FFA documents were not complete and the transfer to the provider did not take place timely. On January 22, 2015, this case was scheduled to be heard [by a judge] for a Case Plan approval. Your lack of action resulted in the FFN caseworker not being able to fulfill their duties and could have potentially harmed a child. Fortunately, the agency did not receive a penalty and the children are safe. Prior to this latest incident, I had several conversations with you, individually and within our group, stressing the importance of completing the FFA timely. The families we serve do not receive the needed services available if the FFA is not completed timely. * * * Your actions are unacceptable and any future violations may result in disciplinary action, up to and including dismissal. Petitioner acknowledged receipt of the Documented Counseling by her signature dated January 28, 2015. Ms. Salter was the Program Administrator in 2015 and was aware of the performance issue with Petitioner and issuance of the Documented Counseling. Ms. Salter testified, credibly, that Petitioner’s performance improved “for a brief while” after the Documented Counseling. Within a couple of months, Ms. Salter and Petitioner’s then-supervisor, Ms. Terrell, were discussing with her again the importance of timely follow up with victims and inputting notes in the system. In October 2016, the Department reassigned a number of Petitioner’s cases to other CPIs in order to address Petitioner’s backlog. When the cases were reviewed upon reassignment, the Department discovered that follow-up investigations had not been conducted timely, victims were not being seen according to protocols, OTIs were not processed timely, and documented appropriately, and there was an overall lack of documentation of Petitioner’s cases. In October and November 2016, Ms. Salter, Ms. Yeadon, and Ms. Terrell embarked on an effort to get Petitioner back on track with her investigations and case work. Following a meeting in which Department management discussed how to address backlogs with a number of CPIs, Ms. Yeadon, at Ms. Salter’s direction, reviewed Petitioner’s case files and documented specific deficiencies in follow up and documentation. That documentation was recorded on the Employee Disciplinary Action Form which was later used in conjunction with Petitioner’s PCAP. Ms. Yeadon subsequently drafted the PCAP which is the subject of the instant proceeding. Prior to presenting the PCAP to Petitioner, Ms. Yeadon discussed the PCAP with Petitioner’s supervisor, Ms. Terrell; Ms. Salter; and, ultimately, the Northwest Region Operations Manager for District 1. The PCAP provided Petitioner with specific performance improvement objectives to be performed within a two-month period. The PCAP provided that failure to comply may result in disciplinary action, up to and including termination. PCAP as Pretext Petitioner claims the PCAP and the Department’s allegations of poor work performance in late 2015 through 2016 are false and a mere pretext for unlawful retaliation. Petitioner argued that her performance evaluations from the Department were very good. Further, she argued that the Department would not have continued to assign her heavy caseloads in 2015 and 2016 if her performance were substandard as the Department represented. In support of her argument, Petitioner introduced spreadsheets reporting individual monthly totals of cases assigned to CPIs for the years 2014, 2015, and 2016 in the Escambia office. Petitioner was assigned only 64 new cases in calendar year 2015; however, in 2016, Petitioner was assigned a total of 231 new cases. For 2016, out of 44 CPIs, Petitioner was one of only nine assigned more than 200 cases. Twice in late 2016, Ms. Salter directed the transfer of cases from Petitioner in order to address her case backlog. Ms. Salter first directed the transfer of 40 of Petitioner’s cases, followed by another 20 in late December to Ms. Yeadon for management. Three of Petitioner’s relevant performance evaluations were introduced in evidence. For the review period July 1 through December 31, 2013, Petitioner received an overall rating of Satisfactory, scoring 3 out of a possible 5. Notably, the supervisor commented, “CPI Encui at times struggles to provide timely information to bring her cases to closure. She is actively working to improve in this area.” For the review period January 1 through June 30, 2014, Ms. Odom rated Petitioner Satisfactory, assigning a score of 3 out of 5. This performance evaluation was made prior to Ms. Odom’s January 2015 Documented Counseling to Petitioner. For the review period July 1, 2014 through June 30, 2015, Ms. Odom again rated Petitioner Satisfactory, assigning a score of 3 out of 5. Ms. Odom made the following relevant comments: Ana has improved greatly in completing her assignments timely. She is learning how to prioritize her workload. * * * If provided a weekly list of cases needed to be submitted, Ana works diligently to get these files submitted to supervisor on time. * * * Ana’s cases have been submitted for closure prior to the 60 day deadline with supervision from management. Ana often needs to be prompted by management to complete her FFA corrections within 24 hours. This performance evaluation was made during the year in which Ms. Odom issued the Documented Counseling to Petitioner. No performance evaluation for FY 2015-2016 was introduced in evidence. Tina Cain is the Northwest Region Operations Manager for Circuit 1. She transferred to the Escambia County office as Program Administrator in June 2016. At that time, Ms. Cain was confronted with a number of employees with performance issues including a number of CPIs with case backlogs. Evaluations were due to be performed in June and July, but, as Ms. Cain explained, unless an employee was on a performance improvement plan prior to their evaluation, the employee could be rated no lower than Satisfactory, a 3 out of 5. Ms. Cain met with her supervisors and instructed them to prepare improvement plans for employees who were not meeting expectations. She directed her supervisors, many of whom were new, to coordinate with Human Resources to prepare the plans appropriately. Ms. Yeadon was instructed to assist Ms. Salter in preparation of Petitioner’s PCAP, as well as plans for other employees under her supervision. Ms. Yeadon prepared the specific case “write-up” on the Employee Disciplinary Action Form out of ignorance, as she was not familiar with the correct forms to use. Once the error was brought to her attention, Ms. Yeadon prepared the PCAP form with reference to specific case notes on the “write-up.” At Ms. Cain’s direction, PCAPs were developed for several employees in the Escambia office in October, November, and December 2016. Petitioner did not prove the PCAP was a pretext for retaliation. The evidence supports a finding that Petitioner’s performance issues were documented in the years prior to Petitioner’s IG Complaint, and that Petitioner’s supervisor and other management discussed and began preparing the PCAP to improve Petitioner’s performance months prior to Petitioner’s IG Complaint. PCAP as Disciplinary Action The Department contends that the PCAP itself is not disciplinary action. The Department follows a progressive disciplinary policy. The first step is a verbal counseling. If the issue is not resolved after a verbal counseling, it is followed by a documented counseling. If the issue is not resolved following a documented counseling, the employee is placed on a performance improvement plan. Ms. Salter testified that, if the employee fails to meet the expectations in a performance improvement plan, the employee may be subject to discipline in the form of termination or placement on a probationary period. The PCAP form stated, “Non-compliance may result in: Disciplinary action, up to and including dismissal[.]” The PCAP did not materially alter the terms, conditions, or privileges of Petitioner’s employment. Racial Discrimination Claim Petitioner was directly supervised in Escambia County first by Ms. Odom, an African-American female, then by Ms. Terrell, also an African-American female. Ms. Salter, also an African-American female, supervised Ms. Odom and Ms. Terrell and directly participated in the decision to place Petitioner on a PCAP. Ms. Salter’s second in command was Ms. Yeadon, who is a Caucasian female. Ms. Yeadon directly participated in drafting Petitioner’s PCAP. Ms. Cain, who is a Caucasian female, directed Ms. Yeadon and Ms. Salter to prepare Petitioner’s PCAP. Petitioner contends that her African-American supervisors discriminated against her by creating a hostile work environment and disciplining her unfairly. When asked to recount specific remarks made by her supervisors that were derogatory in nature, Petitioner could only recall references such as “this type of people” or “those people.” Petitioner admitted that the remarks were not “really clear cut” discrimination. National Origin Discrimination Claim Finally, Petitioner claims her supervisors discriminated against her and created a hostile work environment based on her national origin. Specifically, Petitioner claims that her supervisors and other employees made fun of, or picked on her about, her accent. When asked by the undersigned to identify the specific individuals and statement made by them, Petitioner identified Ms. Odom as rude and disrespectful to her for the entire period in which Ms. Odom was Petitioner’s supervisor. Petitioner stated Ms. Odom frequently responded to Petitioner’s questions with, “I think this is a language problem” or “This must be a comprehension problem.” Petitioner identified no additional specific comments made by Ms. Odom regarding Petitioner’s national origin or her accent. Petitioner never complained to anyone at the Department regarding Ms. Odom’s treatment of her prior to her resignation. Ms. Odom was Petitioner’s supervisor from May 2014 to September 2015. Ms. Terrell became Petitioner’s supervisor in September 2015 and continued as Petitioner’s supervisor until Petitioner’s resignation. Although Petitioner testified that Ms. Terrell made derogatory remarks about Petitioner’s national origin and her accent, she was unable to give any specific example. Petitioner also complained that Ms. Salter made fun of her accent, but could not remember any specific statement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700691. DONE AND ENTERED this 17th day of October, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2017.
The Issue Whether the Petitioner's position of employment with the Respondent was properly reclassified from Career Service to Selected Exempt status.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Dr. Edouard is a physician who was employed by the Department as the Senior Human Services Program Manager for the Miami-Dade County Childhood Lead Poisoning Prevention Program. This program operates under a grant from the federal Centers for Disease Control, and Dr. Edouard worked out of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department. Prior to July 2001, Dr. Edouard's position was classified as a Career Service System position. As Senior Human Services Program Manager, Dr. Edouard supervised a staff of four to five persons, including an epidemiologist, an environmental specialist, a nurse, and a secretary specialist, and she spent the majority of her time supervising these employees: Dr. Edouard prepared the work assignments for her staff; trained the members of her staff; monitored the progress of the staff members in completing their assignments; prepared evaluations for each staff member and made recommendations for improvement; approved or disapproved requests for leave; had the authority to recommend members of her staff for disciplinary action; had the authority to recommend salary increases and/or to recommend promotion for members of her staff; and prepared the budget for her program grant. Dr. Edouard was considered by her supervisor to be a very creative, hardworking, dedicated healthcare professional who established Miami-Dade County's Childhood Lead Poisoning Prevention Program. In July 2001, Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position because the position included substantial supervisory responsibilities. After the reclassification, the formal job description for the Senior Human Services Program Manager position remained the same in all material respects as the job description for the Career Service System position. Dr. Edouard was terminated from her position several months after it was reclassified. At the time Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position, there were other supervisory employees of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department whose positions were not reclassified but remained Career Service System positions. These employees were registered nurses serving as nursing program specialists.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision to reclassify the position of employment with the Department of Health formerly held by Marie-Michelle Edouard be sustained. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 16th day of April, 2004.
Findings Of Fact In April, 1986, Lee was employed by HRS as a secretary in the Human Services Program Office. She reported to work on April 25, 1986, which was a payday. On the next regular day of work (April 28, 1986), Lee telephoned her office to request leave, explaining that her daughter had sprained her ankle and had to be taken to the doctor. Leave for this day was approved. Lee did not report to work on April 29, 30, or May 1, 1986, and she did not speak to her supervisor, Charles Lauria, on any of these dates to request leave. She testified that her sister notified the office that she was taking more leave, but the sister was not at the hearing to verify this statement. Lee did not report to work on May 2, 5, 6, 7 or 8, 1986, all of which were normal work days. Lee did not contact her supervisor or her office during this period. Charles Lauria was Lee's supervisor. When he had not heard from Lee by May 7, 1986, he reported to the local personnel office that Lee had abandoned her job and should be terminated. Lauria had previously warned Lee that failure to appear at work without prior approval could result in disciplinary action or termination. Lee signed a disciplinary memorandum indicating that she should personally contact Lauria in the event she would have to miss work for any reason. The HRS personnel office (David Porter) recommended to the District Administrator that Lee be terminated for violating the abandonment provision of the HRS personnel rules. On May 7, 1986, a letter of termination was mailed to Lee, notifying her that she had been terminated as of this date. On May 9, 1986, Lee reported to work. May 9 was a payday, the first payday since Lee's last appearance at work on April 25, 1986. She was given verbal notice of her termination at this time. Lee was aware of the abandonment provision in the HRS rules. She had acknowledged receipt of a copy of the rules upon commencing work at HRS. She had previously had problems regarding attendance, and had been counseled as to the importance of personally contacting her supervisor when she could not report for work. Lee missed seven consecutive days of work prior to being terminated by HRS. HRS attempted to contact Lee prior to terminating her, but was unable to locate her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Rebanner Lee, from her position as a secretary in the Human Services Program Office, for abandonment, pursuant to Rule 22A-7.010(2), Florida Administrative Code, effective May 7, 1987. THIS Recommended Order entered on this 19th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 19th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2072 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: 1-11. Accepted. Rulings on Proposed Findings of Fact Submitted by the Respondent: Accepted, but prior authorization to take leave had not been granted. These are argumentative and not proposed factual findings. They are thus rejected. COPIES FURNISHED: William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss Department of Health and Rehabilitative Services General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens Department of Administration General Counsel 530 Carlton Building Tallahassee, Florida 32301 R. Bruce McKibben, Jr., Esquire 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Rebanner Lee, in pro se Post Office Box 192 Starke, Florida 32091
The Issue Whether Petitioners committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times relevant to this proceeding, Petitioners Jerry J. Robinson and Charles Osz, were detention deputies employed by the Respondent, Everett S. Rice, Pinellas County Sheriff (Respondent), and assigned to the Pinellas County Jail (Jail). Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioners were responsible for the care, custody, and control of persons held at the Jail. On January 30, 1998, Officer John Fitzgerald of the Largo Police Department took Duston Llano into custody and transported him to the Jail. Joseph Nichols, an Explorer Scout with the Largo Police Department, accompanied Officer Fitzgerald to the Jail. Mr. Llano was not under arrest since he had committed no crime but was taken into custody pursuant to the Marchman Act based upon his intoxicated condition. When he was taken into custody, Mr. Llano did not resist or threaten physical harm to the officers but did threaten to sue the officers. On January 30, 1998, Petitioners Robinson and Osz were assigned to the booking area of the Jail. Upon Mr. Llano's arriving at the Jail, Petitioners Robinson and Osz took possession of him in the pre-booking area. Shortly thereafter, Petitioners transported Mr. Llano to the post-booking section of the Jail and placed him in Cell 4. Mr. Llano was barely able to walk and was assisted by Petitioners Robinson and Osz to the post-booking area. Once in Cell 4, Petitioners began a pat-down search of Mr. Llano. Petitioner Robinson was to the left of Mr. Llano and Petitioner Osz was to Mr. Llano's right. During the search, a substance Petitioners believed might be crack cocaine was found on the person of Mr. Llano. After the suspicious substance was found on Mr. Llano, Detention Deputy Monte Esry requested that Detention Deputy Larry Potts summon Officer Fitzgerald and Mr. Nichols and ask them to remain at the Jail to possibly process the substance and effect an arrest of Mr. Llano. Detention Deputy Potts complied with Detention Deputy Esry's request and then accompanied Officer Fitzgerald and Mr. Nichols down the hall from the pre-booking area to Cell 4 of the post-booking area where Mr. Llano was being held. The substance found on Mr. Llano's person and believed to be contraband was found by Petitioner Osz who gave the substance to Petitioner Robinson. Petitioner Robinson then handed the substance to Detention Deputy Esry who handed it to Detention Deputy Potts who, then, handed it to Officer Fitzgerald for testing. Having found what they believed to be contraband, Petitioners Osz and Robinson began a strip search of Mr. Llano. When they arrived at Cell 4, Officer Fitzgerald stood near the doorway to the cell and Mr. Nichols remained in the hallway outside the cell. From Officer Fitzgerald's and Mr. Nichols' vantage point, it was possible for them to see into Cell 4. Both Officer Fitzgerald and Mr. Nichols observed Mr. Llano sitting on the bunk in the cell with Petitioner Robinson on his left and Petitioner Osz on his right. Mr. Llano was slumped over and again made reference to suing everyone. However, Mr. Llano took no action to resist or otherwise justify the use of force. In an apparent response to Mr. Llano's threat to sue, Petitioner Osz grabbed Mr. Llano by his hair, straightened him up and slapped him on the face or head at least twice. While Petitioner Osz was slapping Mr. Llano, he said something to the effect of "how about another thousand" or "there is another thousand." From his vantage point in the hall, not more than 15 feet away, Mr. Nichols saw Petitioner Osz slap Mr. Llano and heard the comments by Petitioner Osz. Officer Fitzgerald, who was at the doorway of Cell 4, approximately nine feet, also saw the slapping incident and heard the comments made by Petitioner Osz. During the course of the slapping incident, Detention Deputy Potts was also in Cell 4. Nonetheless, he testified that he did not see Petitioner Osz slap Mr. Llano. When Petitioner Osz slapped Mr. Llano, Petitioner Robinson was in Cell 4 and within five or six feet of Petitioner Osz and Mr. Llano. However, at the time of the incident, Petitioner Robinson was preoccupied with depositing items obtained from Mr. Llano's person into a property bag that was on a steel table in the cell and did not see Petitioner Osz slap Mr. Llano. Also, because the Jail was very busy and loud on this evening, Petitioner Robinson did not hear Petitioner Osz slap Mr. Llano. Because Petitioner Robinson did not observe the incident, he did not respond to or report Petitioner Osz' actions toward Mr. Llano. Neither Officer Fitzgerald nor Mr. Nichols observed Petitioner Robinson during the slapping incident and could not testify as to where he was looking when the incident occurred. After the slapping incident, Officer Fitzgerald and Mr. Nichols then left the area of Cell 4 in order to conduct a test of the substance found in Mr. Llano's pants pocket. As a result of the test performed by Officer Fitzgerald, it was determined that the substance was not illegal. After conducting the presumptive test, Officer Fitzgerald and Mr. Nichols left the Jail. Officer Fitzgerald and Mr. Nichols subsequently reported the slapping incident to their supervisors and prepared reports memorializing the events they observed. A representative of the City of Largo Police Department then reported the incident to the Respondent, who initiated an investigation by the Pinellas County Sheriff's Office, Inspections Bureau, Administrative Inquiry Division. As a part of the investigation regarding the conduct in question, sworn statements were taken from Officer Fitzgerald, Mr. Nichols, Detention Deputy Potts, Detention Deputy Esry and Petitioners Osz and Robinson. Attempts to speak with Mr. Llano were fruitless based upon his lack of recollection of the incident. During the course of his sworn statement, Petitioner Robinson stated that he did not see Petitioner Osz slap Mr. Llano. Detention Deputy Potts, who was also in Cell 4 during the incident, also stated in his sworn statement that he did not observe Petitioner Osz slap Mr. Llano. During his sworn statement, Petitioner Osz denied that he ever struck Mr. Llano. After completing its investigation, the Administrative Inquiry Division presented its entire investigative file to the Chain of Command Board without conclusion or recommendation. The Chain of Command Board met and after reviewing the materials provided by the Administrative Inquiry Division and giving Petitioners the opportunity to respond further, the complaints against Petitioners were sustained. Specifically, the violations determined to have occurred as to Petitioner Osz were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, A (Level Five Violation), 021, relating to custody of arrestees/prisoners; Violation of PCSO Rule C1, V, C (Level Three Violation), 060, relating to standard of conduct. Under the PCSO Guidelines, a sustained finding of two Level Five violations and one Level Three violation is the basis for assigning 115 disciplinary points. As a result, Petitioner Osz was assessed 115 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 115 points to be a minimum discipline of a 15-day suspension and a maximum discipline termination. In the instant case, the discipline imposed against Petitioner Osz was termination. Specifically, the violations determined to have occurred as to Petitioner Robinson were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, B (Level Four violation), 037, relating to reporting violations of laws, ordinances, rules or orders. Under the PCSO Guidelines, a sustained finding of one Level Five violation and one Level Four violation is the basis for assigning 80 disciplinary points. As a result, in the instant case, Petitioner Robinson was assessed 80 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 80 points to be a minimum discipline of a 10-day suspension and a maximum discipline of termination. In the instant case, the discipline imposed against Petitioner Robinson was termination. The conduct engaged in by Petitioner Osz in slapping Mr. Llano was unnecessary, excessive, did not constitute a good correction practice and is not consistent with the training or conduct expected of correctional officers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the PCSO enter a Final Order: 1) finding Petitioner Osz guilty of the conduct alleged in the charging document; (2) upholding the termination of Petitioner Osz' employment as a detention deputy with the PCSO; (3) dismissing the charges against Petitioner Robinson; and, (4) reinstating Petitioner Robinson as a detention deputy with the PCSO. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 15th day of January, 1999. COPIES FURNISHED: William M. LauBach, Esquire Executive Director Pinellas County Police Benevolent Association 3737 16th Street, North St. Petersburg, Florida 33704 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 Charles Osz, pro se 2545 Coachman Road Northeast Number 127 Clearwater, Florida 33765 Keith Tischler, Esquire Power, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
The Issue Whether the Department of Revenue has violated the requirements of Section 120.54(1)(a), Florida Statutes, by failing to adopt the June 1998 edition of its Code of Conduct and the July 1995 edition of its Disciplinary Procedures and Standards as rules pursuant to the rulemaking procedures of Section 120.54, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the Prehearing Stipulation of the parties, the following findings of fact are made: Facts which the parties admitted and which required no proof1 The Department of Revenue is an agency within the meaning of Section 120.52(1), Florida Statutes. Ms. Obinyan was a career service employee of the Department until she was discharged on January 12, 1999. Ms. Obinyan has standing to challenge the June 1998 edition of the Code of Conduct Guidelines, Department of Revenue Policy Statement #1141-2 ("Code of Conduct"), and the July 1995 edition of the Disciplinary Procedures and Standards, Department of Revenue Policy Statement #1141-9. The Code of Conduct and the Disciplinary Procedures and Standards are official policy statements of the Department. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements of general applicability that are generally and equally applicable to all Department employees and were applicable to Ms. Obinyan when she was an employee of the Department. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements that prescribe and implement policy. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements that are intended by their own effect to require compliance. The Department has a policy and practice of requiring all of its employees to sign a written acknowledgement of receipt of the Code of Conduct and the Disciplinary Procedures and Standards and an acknowledgement that the employee understands that his or her violation of any of the conduct standards contained in the Code of Conduct or in the Disciplinary Procedures and Standards shall be grounds for disciplinary proceedings pursuant to the disciplinary action procedures contained in the Disciplinary Procedures and Standards. It is the Department's policy and practice to require its employees to comply with the procedures and standards reflected in the Code of Conduct and the Disciplinary Procedures and Standards. It is the Department's policy and practice, in administering discipline, to follow the disciplinary procedures set forth in the Disciplinary Procedures and Standards and to apply the disciplinary standards set forth therein to avoid disparity as to the type and severity of discipline administered for the violations specified in the Disciplinary Procedures and Standards. It is the Department's policy and practice to take disciplinary action in accordance with the Disciplinary Procedures and Standards when an employee violates the Code of Conduct or the disciplinary standards contained in the Disciplinary Procedures and Standards. The Department has taken disciplinary action against its employees, including Ms. Obinyan, pursuant to the disciplinary procedures and standards in the Disciplinary Procedures and Standards since its adoption in 1995. The Department has not adopted the Code of Conduct or the Disciplinary Procedures and Standards as rules or initiated the rulemaking process to adopt either of these statements as a rule. Additional facts established by the evidence The Code of Conduct compiles in one twenty-page document both conduct prescribed or proscribed in statutes and rules and conduct which is prescribed or proscribed by Department policy. It is not intended to be all-inclusive, but an employee is subject to disciplinary action if he or she fails to conform to the provisions contained in the Code of Conduct. The proposed Code of Conduct was submitted to the Governor and Cabinet, as agency head, for review prior to implementation. The Department's Disciplinary Procedures and Standards contain forty-five standards, and violation of any of these standards is grounds for disciplinary action. The disciplinary procedures must be complied with whenever discipline is to be administered to career service employees of the Department. The proposed Disciplinary Procedures and Standards were submitted to the Department of Management Services for approval prior to implementation, as required by Rule 60K-9.002, Florida Administrative Code. The proposed procedures and standards were approved by the Department of Management Services after they were reviewed for consistency with the standards of other agencies and after they were submitted to the American Federation of State, County, and Municipal Employees (AFSCME) for review and comment. The Code of Conduct and the Disciplinary Procedures and Standards do not apply to anyone other than the Department's employees and include disciplinary standards and conduct prescriptions and prohibitions unique to those employees. The provisions of the Code of Conduct and the Disciplinary Procedures and Standards are detailed and precisely describe the disciplinary procedures, disciplinary standards, and prescribed and proscribed conduct which govern the Department's employees.
Findings Of Fact During early 1993, the St. Petersburg's Times (the Times), a local newspaper, conducted an investigation of the Pinellas County school board's personnel including compiling arrest records of all its employees. Included in the Times' compilation of arrest records was a record involving Respondent which indicates that on September 27, 1978, Respondent pled guilty to the offense of indecent exposure for which he successfully completed a term of six (6) months probation. Respondent also was obliged, as part of his probation, to serve approximately seven (7) hours of community service at the Salvation Army. Respondent satisfied the community service obligation. Respondent has been employed by the Pinellas County School Board in excess of twenty (20) years. His on the job performance has been satisfactory, having been disciplined only on one occasion for being asleep while on duty. Respondent is, and has been since his early childhood, mentally retarded and he suffers from a severe speech impediment. Respondent was arrested when he relieved himself (urinated) in the presence of three or four minor children. A review of the arrest records and the statements of the arresting officers in the case reveal that Respondent was educably handicapped to the point wherein he had little, if any, understanding of the arrest or the reasons for which he was arrested. The officers questioned whether Respondent understood the Miranda rights read to him when he was arrested. Respondent's difficulty stemmed from his learning disability. Respondent was employed as a custodian with the school board. In performing his duties as a custodian, Respondent's contact with students and other personnel is minimal. Other than the subject incident, Respondent has no prior arrest record nor has there been any subsequent arrest record involving Respondent. Petitioner's administrator, James Barker, who recommended Respondent's dismissal, relates that Petitioner's policy for discipline of support service employees is contained in its Rule 6GX52-7.12 entitled Work Performance and Discharge - Support Service Personnel. Administrator Barker admits that Petitioner's policy allows the Superintendent to impose discipline in a less severe manner than Respondent was disciplined, i.e., a reprimand or suspension. Petitioner's policy calls for progressive discipline. Administrator Barker has also reviewed Respondent's personnel file which indicates that Respondent has been a satisfactory employee throughout his tenure with Petitioner. Respondent's mother, Maggie Jordan, had little recall of the 1978 incident other than the fact that Respondent entered a "plea of convenience". Ms. Johnson noted that Respondent, while a student, was classified as being educably handicapped and was educated with students with special learning disabilities (SLD). Respondent takes his job seriously and would like to return to work for Petitioner as a custodian.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order reinstating Respondent to a position of Plant Operator (Custodian). DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993.
Findings Of Fact John Stewart is a correctional officer with permanent status. He filed a timely appeal on his five-day suspension with the Career Service Commission. Franklin Ashe, Assistant Food Service Director, was Stewart's immediate supervisor and rater at the time in question. Stewart had transferred to kitchen duties shortly after his initial rating as a Correctional Officer I in March, 1976. Ashe prepared Stewart's first rating as a Correctional Officer I working in the kitchen as a steward on April 25, 1977. At that time Stewart had worked in the southwest unit kitchen since the and of March, 1977. His duties in the southwest unit kitchen were direction and supervision of inmate cooks and cook's helpers. Prior to his transfer, Stewart's duties were to take the noon meal to the prisoners working on work details outside the prison. However, Ashe had also supervised Stewart prior to his transfer to the southwest unit kitchen. His performance of his initial duties were presumably satisfactory because this was apparently a good assignment and Stewart performed these duties until March, 1977. The benefits of this job included no shift work and weekends off. In late March, 1977, Stewart who was active in a union organizational effort received oral warning from D. E. Carter concerning passing out union material on the premises of the prison. Shortly thereafter, Stewart who was an alternate to the bargaining talks, was moved from his duties serving prisoners on work detail and assigned to shift work. Shortly after that he was moved to the southwest unit kitchen. The evaluation involved in this case followed shortly thereafter. Ashe's evaluation of Stewart was delivered to Ashe by one of the Correctional Officers II or sergeants who were assigned duties in the kitchen. Ashe was displeased about the rating and asked the sergeant about speaking to Ashe. A meeting occurred between Ashe and Stewart in Ashe's office shortly after Stewart came to work on May 23, 1977. This meeting lasted about five minutes. Stewart states that he asked Ashe about the rating and Ashe replied that it was self-explanatory and that he just called the facts the way they were. Beyond this Ashe gave no explanation of the basis for his rating of Stewart. Ashe does not deny this, but alleges that Stewart was abusive and insubordinate by stating that he (Ashe) was full of shit. Ashe then attempted to terminate the meeting by leaving. Ashe stated that Stewart blocked his way out of the door and told him that he was a baby not a man and that if they met on the street, Ashe had better move over. Stewart denies having used vulgar or threatening language with Ashe, but admits that be did stand in the door way and did say Ashe was a baby not a man. Stewart never received an explanation of his rating. Based upon the foregoing Stewart was suspended for five days.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer finds that good cause existed for disciplinary action against Stewart. DONE and ORDERED this 23rd day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Raymond Gearey, Esquire Department of Offender Rehabilitation 1311 Winewood Boulevard Tallahassee, Florida 32304 Walter Thomas, Esquire Voyager Building 2255 Phyllis Street Jacksonville, Florida Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether Respondent's statements as set forth in a letter dated April 30, 2001, are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Respondent is an agency of the State of Florida. At all times relevant here, the Florida Capitol Police was a division within Respondent's Facilities Program. The Florida Capitol Police is an accredited law enforcement agency. Its purpose is to provide building security and other law enforcement services. The State of Florida employs individuals in one of four distinct, statutorily defined services: Senior Management Service, Selected Exempt Service, Career Service, or Other Personal Services. At all times relevant here, the Director of Florida Capitol Police was an employment position that was classified within the Senior Management Service. Petitioner is a sworn law enforcement officer. On February 24, 1998, Respondent offered Petitioner an appointment to the position of Director of Florida Capitol Police. At that time, Petitioner understood that the appointment was to a position classified within the Senior Management Service. To the extent possible, Petitioner negotiated the terms of his employment. However, he understood that his position as Director of Florida Capitol Police included all of the benefits and all of the terms of employment of a position established within the Senior Management Service. He knew that he would serve at the pleasure of Respondent's Secretary, as the agency head, if he accepted the job. On February 25, 1998, Petitioner accepted the appointment to Director of Florida Capitol Police. He executed a document acknowledging that he was relinquishing his career service rights. From that time forward, Petitioner was compensated and evaluated as a Senior Management Service employee. He enjoyed all the benefits of his new position. Petitioner was the highest-ranking sworn law enforcement officer in the Florida Capitol Police, holding the "rank" of colonel. He did not report to any higher sworn law enforcement officer. As Director of Florida Capitol Police, Petitioner was responsible for leading and directing the operation of a statewide law enforcement organization, including the administration and oversight of a $6.2 million-dollar budget. Part of Petitioner's duties required him to maintain appropriate relationships with the Sheriff of Leon County and the Chief of the Tallahassee Police Department for support in joint operations when necessary. Petitioner was a member of the Florida Police Chiefs' Association, the State Law Enforcement Chiefs' Association, and the National Police Chiefs' Association. In 1999, a former employee of the Florida Capitol Police commenced a legal action in the United States District Court for the Northern District of Florida against Respondent. The former employee alleged sex discrimination and sexual harassment by the Florida Capitol Police, specifically by Petitioner. A trial was conducted in the lawsuit, Goldwich v. Department of Management Services, USDC ND Fla., Case No. 99-CV-512 (1999) in early February 2001. Petitioner testified as a defense witness at the trial. Several other Florida Capitol Police officers were interviewed as potential witnesses or called to testify at the trial. Respondent prevailed in the district court action. On February 2, 2001, Respondent's Secretary transferred the internal affairs investigation function of the Florida Capitol Police from the Florida Capitol Police to Respondent's Office of Inspector General. Thereafter, the Chief Investigator, Captain Joe Wallace, worked out of the Inspector General's office. On February 15, 2001, Petitioner and Respondent's Inspector General entered into a Memorandum of Understanding regarding the "credentialing" of Chief Investigator Wallace. The purpose of the memorandum was to formulate and establish a commitment between the Office of the Inspector General and the Florida Capitol Police to support the training and educational requirements for sworn law enforcement personnel assigned to each entity. On March 2, 2001, Respondent's Office of the Inspector General received an internal complaint from Sergeant Edwin Maxwell, a subordinate officer of the Florida Capitol Police. Said complaint alleged that Petitioner had retaliated against Sergeant Maxwell for testifying at the Goldwich trial. Sergeant Maxwell's allegations also implicated Petitioner's subordinate, Major Robert G. Tippett, as having participated in the alleged retaliation. On or about March 7, 2001, Respondent's Inspector General instructed Petitioner to report to the Florida Capitol Building, specifically to the offices of the Governor's Chief Inspector General. Respondent's Inspector General, Chief Investigator Wallace, and an Assistant Florida Inspector General from the Governor's Office of Inspector General were present when Petitioner arrived at the Capitol. At that time, Petitioner was presented with a memorandum advising that he was the subject of a formal investigation. The March 7, 2001, memorandum stated that Respondent's Inspector General initiated the investigation pursuant to a complaint. According to the memorandum, the principal allegation that formed the basis of the investigation was that Petitioner had engaged in one or more of the following: retaliation, conduct unbecoming, and/or violation of law. Sergeant Maxwell's complaint and a copy of Section 112.532, Florida Statutes, was attached to the memorandum. During the March 7, 2001, meeting at the Capitol, Respondent's Inspector General advised Petitioner that he had a right to representation by counsel. After a brief discussion, Petitioner elected to seek private counsel. Later on March 7, 2001, Petitioner and his attorney returned to the Governor's suite at the Capitol. Upon their arrival, Petitioner was advised again of his rights under the law enforcement officers' and correctional officers' rights, which are codified at Section 112.532, Florida Statutes. Respondent's Inspector General and Chief Investigator Wallace then proceeded to interview Petitioner. Respondent's Inspector General inquired into the complaint against Major Tippett, performed an investigation, and issued an Executive Summary of the investigation dated March 22, 2001. This report concluded that Major Tippett's alleged violations related to conduct unbecoming, retaliation, and violation of law were unfounded. Respondent's Inspector General inquired into the complaint against Petitioner, performed an investigation, and prepared a draft report of the investigation. After consulting with the Chief Inspector General in the Office of the Governor, Respondent's Inspector General issued an Executive Summary of the investigation dated March 26, 2001. This report concluded that Petitioner had engaged in conduct unbecoming. The report also concluded that other alleged violations by Petitioner, including retaliation and violation of law, were unfounded. According to the March 26, 2001, Executive Summary, Respondent's Inspector General recommended that Petitioner be removed from his position as Director of Florida Capitol Police. The report states as follows in relevant part: This recommendation is made after carefully considering the following factors and informed by the fact that the Director serves entirely at the discretion of the secretary: The previous OIG report related to Capitol Police and the issues raised therein. (See attached) The finding of the jury in the US District Court case, filed by Officer Lisa Goldwich, that her working conditions were made so intolerable, by the defendant, that she was forced to resign. (See attached) The finding of "conduct unbecoming an employee/officer" contained in the report above. The likelihood that future retaliation will be attempted against those individuals who participated in the Goldwich trial and against those who testified in the OIG investigation reported above. The ongoing morale problem within the Florida Capitol Police. Subsequently, Respondent's Inspector General prepared a Memorandum of Investigation dated April 2, 2001. This memorandum states again that allegations against Petitioner relative to retaliation and violation of law were unfounded but that allegations relative to conduct unbecoming were founded. The April 2, 2001, memorandum cites Respondent's Policies and Procedures Manual, Section 3.27, Discipline of Career Service Employees, as it relates to conduct unbecoming a public employee. It also cites to Section 110.403(1)(a), Florida Statutes, for the proposition that Respondent's Secretary had discretion to discipline Senior Management Service employees. On or about April 3, 2001, Petitioner and Major Tippett filed a civil suit in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Case No. 01-821. This suit included an Emergency Motion for Temporary Injunctive and Declaratory Relief. It alleged violations of Sections 112.532, 112.533, and 112.534, Florida Statutes. Petitioner subsequently voluntarily dismissed this civil action. On or about April 3, 2001, the General Counsel in the Office of the Governor, requested the Florida Department of Law Enforcement (FDLE) to review and complete Respondent's internal investigation. Thereafter, FDLE's Inspector General performed an investigation into the complaint against Petitioner and Major Tippett. FDLE's Inspector General eventually prepared an undated report of its review and investigation. The FDLE report states as follows in relevant part: As mentioned previously, the OIG report concludes that the alleged violations against Major Tippett were all unfounded. The alleged violations against Colonel Meek for (1) Retaliation and (2) Violation of Law were unfounded. The violation against Colonel Meek for Conduct Unbecoming was founded. Conduct Unbecoming a public employee is a violation of DMS Policy, Section 3.27(C)(2)(e). There is no definition of "Conduct Unbecoming" in DMS' policies or administrative rules. Based upon the interview of the subordinate supervisors regarding the statements made by Colonel Meek, the conclusions rendered by OIG are reasonable. Near the completion of the OIG investigation, IG Varnado prepared a draft report and discussed it with the Chief Inspector General, Marcia Cooke. The draft report did not contain any recommendation regarding a recommended action for the founded violation of Conduct Unbecoming. CIG Cooke instructed IG Varnado to include such a recommendation. IG Varnado recommended that Colonel Meek be removed from his position and discussed the recommendation with Secretary Cynthia Henderson. This RECOMMENDATION was included in the INVESTIGATIVE REPORT dated April 2, 2001. The RECOMMENDATION contained five cited reasons to support Colonel Meek's removal. The OIG investigative report does not specifically support reasons (1), (4), and (5). However, based upon the below recommendation, further discussion of these items is rendered moot. Generally, an investigation regarding possible administrative misconduct is handled independently from the determination to impose action following a sustained finding of a violation. IG Varnado acknowledged that he does not routinely recommend action following an administrative violation. However, according to IG Varnado, the rank of the person involved led him to seek assistance from the Chief Inspector General's Office. It is recommended that the RECOMMENDATION regarding the proposed administrative action be removed from the investigative report. The determination of any action resulting from the OIG investigation should be left solely to the discretion of the Secretary for the Department of Management Services. The FDLE report also addresses Respondent's violations of Sections 112.532(1)(b), 112.532(1)(g), and 112.533, Florida Statutes, which were the subject of the civil suit filed by Petitioner and Major Tippett. The report concludes that these statutory provisions were applicable to Major Tippet but that the question whether they were applicable to Petitioner, as the head of the Florida Capitol Police, was also the subject of the civil suit. By letter dated April 30, 2001, Respondent's Secretary advised Petitioner that the investigation of Sergeant Maxwell's complaint was complete. The letter states as follows in relevant part: [B]ased on the investigation conducted by the DMS Inspector General, as reviewed and completed by the Florida Department of Law Enforcement Inspector General, it has been determined that allegations against you relating to retaliation and violation of law are unfounded, and that allegations against you relating to conduct unbecoming a public employee are founded. Attached hereto for your reference is a copy of the pertinent report of the FDLE Inspector General's Office. As set forth in the attached report (page three), the basis for the conclusions that you are guilty of conduct unbecoming a public employee is that you made statements in the days or weeks following the trial of the civil suit filed by former officer Lisa Goldwich to subordinate officers regarding the removal of duties involving Sgt. Maxwell--who testified for the plaintiff at the trial--and possible adverse action for him and others who testified. Because of this conduct unbecoming a public employee, you are hereby suspended without pay for a period of fourteen (14) days, after which you will return to your post. You are also hereby required to participate in supervisor training with (sic) ninety (90) days. Respondent's agency head, in the exercise of her discretion, made the ultimate decision to suspend Petitioner. In taking the disciplinary action, the agency head did not reference or assert any reliance on career service rules to support Petitioner's discipline. The April 30, 2001, letter was not disseminated to other agencies or to other Senior Management Service employees. The agency head's April 30, 2001, letter was an action taken exclusively regarding Petitioner. It did not affect or impact any other agency, employee, or class of employee. The administration of personnel matters regarding Respondent's Senior Management Service employees did not change following Petitioner's April 30, 2001, discipline. Respondent has not promulgated rules regarding the discipline, suspension, or termination of Senior Management Service employees because such rules are not required. Petitioner resigned his appointment as Director of Florida Capitol Police on July 31, 2001. He is no longer employed by the State of Florida.
