The Issue The issue posed for decision herein is whether or not the Respondent's (Division of Retirement) denial of Petitioner's claim to buy for retirement credit purposes, service while she was a student nurse during the period August, 1941 through December, 1944 was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found. The facts herein are virtually undisputed. From August, 1941, through December, 1944, Petitioner was a student nurse at Florida State Hospital (Hospital) at Chattahoochee, Florida. As a student nurse, Petitioner worked twelve (12) hours a day, six and one-half (6-1/2) days per week with one full day off each month. During the weekdays, Petitioner spent time in class, with the remainder of time spent in the wards at the Hospital. Petitioner averaged between thirty-nine (39) and forty-seven (47) hours of work per week at the Hospital. As a student nurse, Petitioner received a salary of $15.00 per month in addition to her room, board, uniform and various fringe benefits such as medical care and leave, much like other Hospital employees. Personnel problems were resolved through the personnel office as with other employees. Petitioner returned to work at the Hospital as a Registered Nurse in October, 1954, and has worked almost continually to the present time. During the period 1970 through early 1972, employees of Florida State Hospital were given the opportunity to participate in the State and County Officers and Employees Retirement System (SCOERS). Petitioner participated in that retirement system. During the period 1970 through 1972, various state retirement systems, including SCOERS, merged and formed the present Florida Retirement System (FRS). Petitioner was given the option to transfer to FRS and in fact exercised that option by designating that election on a ballot provided by the personnel office at Florida State Hospital (Petitioner's Exhibit 1). The effective date of that transfer to FRS is December 1, 1970. During the period 1970 through early 1972, Respondent permitted transferees of the SCOERS retirement system to transfer student nurse credits as part of the retirement credits in the same manner as "full-time work" for retirement credit purposes. In early 1972, Respondent changed its policy of allowing work as a student nurse to be credited toward retirement benefits. C. J. Brock has been the personnel manager at Florida State Hospital in Chattahoochee since approximately 1968. He was initially hired at the Hospital in 1955. As personnel manager, Mr. Brock is in charge of submitting employee claims for retirement credits for various types of employment service to FRS for retirement benefits.' Mr. Brock recalled Petitioner visiting his office pan various occasions between the periods 1963 through 1972 inquiring as to the manner for purchasing student time for retirement credit purposes. Mr. Brock advised Petitioner that he would research the wage statements to determine the exact amount of student time she had earned and would refer the matter to FRS for a decision, Mr. Brock is not authorized to act for or on behalf of Respondent. The interaction between the Hospital's personnel officer and Respondent is limited to the referral of claims and certification of wage and employment statements. As such, there is no agency relationship between the Hospital and Respondent. This referral was made by Mr. Brock on Petitioner's behalf on December 20, 1972, and the request was denied. Former student nurses who were members of SCOERS and transferred to FRS during the periods 1970 through early 1972 had been allowed to purchase retirement credit for their student nurse service. This practice ended in early 1972. In this regard, Mr. Brock has certified the payroll records for student nurses who purchased retirement credit for their student nurse time, Ruth Sampson, Assistant Bureau Chief for the Division of Retireent, has primarily been involved in reviewing retirement benefit calculations since approximately 1969. Mrs. Sampson is familiar with the merger of SCOERS and FRS. Mrs. Sampson affirmed that Respondent had a policy which allowed members of SCOERS who transferred to FRS to purchase retirement credit for student employment time and that such policy was followed from December 1, 1970 (the inception of FRS) to early 1972. This policy was also followed by the SCOERS administrator prior to December 1, 1970. This unwritten policy was changed, according to Mrs. Sampson for two primary reasons. First, Chapter 122, Florida Statutes, did not permit the purchase of student time. Secondly, with the combination of SCOERS and the Teacher Retirement System (TRS) into the combined FRS system, an inequity existed since TRS members, unlike student nurses, were not allowed to purchase student time. As stated, the letter from Mr. Brock certifying Petitioner's employment and wage statements for the period in question was dated December 20, 1972. Mrs. Sampson, by letter dated March 30, 1973, requested additional information respecting the salary paid Petitioner and the amount of time she actually spent working at the Hospital during the period in question. Mr. Brock replied by letter dated April 4, 1973, advising that during the period in question, Petitioner was a student nurse at the Hospital which paid a full-time salary of $15.00 per month. By letter dated May 14, 1973, Mrs. Sampson denied Petitioner's claim since Petitioner was primarily a student during the period that the prior service claim was submitted (Joint Exhibit No. 1). Mr. Robert L. Kennedy, Jr. , the former Director of FRS, appeared and related that the policy decision was made to discontinue the practice of allowing student time to be credited for retirement purposes since that practice was not contemplated by pertinent statutes. Former Director Kennedy disagreed with the Comptroller's policy decision which had previously allowed this practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's appeal of the State Retirement Director's decision denying her request to purchase prior service credit for her service as a student nurse be DENIED. Accordingly, it is RECOMMENDED that the decision of the State Retirement Director be SUSTAINED. RECOMMENDED this 13th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Edward S. Stafman, Esquire Diane K. Kiesling, Esquire PATTERSON and TRAYNHAN Division of Retirement 1215 Thomasville Road Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street Suite 207C - Box .81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue for consideration in this case is whether Petitioner, Carol J. Cargill, was properly removed from her position as Director of the University's International Language Institute and the related stipend therefore properly terminated.
Findings Of Fact Dr. Cargill, a graduate of Brown, New York University, and Georgetown University, was recruited by the University in 1977. She was hired as a professor in linguistics on a nine month contract. In 1978 she began to develop the ILI, and thereafter took the title of Director, receiving therefor a 20 percent overload to her salary, separate and apart from her academic salary for a full time load. She was never officially appointed as "Director" of the ILI. Her duties with the ILI were separate and apart from her duties as a faculty member. Her appointment to the faculty at the University was as a 1.0 Full Time Effort, (FTE) professor in Linguistics in the Division of Modern Languages and Linguistics, for which she was tendered and signed a standard State University System contract for each year of her employment as a professor, and for which she received a salary pursuant to the United Faculty of Florida Collective Bargaining Agreement, (CBA). The "Directorship" of the ILI is not within the legislative classification of Director. Faculty and other appointments at the University are made either to a "position" which is a creation of the legislature, or to "Other Personnel Services", (OPS), which is, by its nature, temporary. On or about May 5, 1992, Dr. Roger Cole, Professor and Director of the Division of Modern Languages, requested that Dr. Cargill tender her resignation as Director of the ILI. Dr. Cargill refused to do so. Thereafter, on August 10, 1992, Dean Richmond, Dean of the College of Liberal Arts and Sciences, recommended to Provost Meisels that Dr. Cargill be replaced as Director of the ILI. In response to that recommendation, Provost Meisels appointed a three- person review panel to review the material accumulated regarding Dr. Cargill's directorship of the ILI and to conduct such interviews as it deemed necessary. Provost Meisels, in his charge to the panel, directed it to advise him as to whether, in its opinion, Dean Richmond's recommendation, based on information submitted by Dr. Cole, that Cargill be removed, "might be reached by a reasonable individual." On October 5, 1992, the review panel notified Provost Meisels that it had concluded the recommendation met the "reasonableness" standard articulated, and on October 27, 1992, Provost Meisels, in a two page letter to Dr. Cargill, "immediately" removed her as Director of the ILI, and stopped payment of the salary overload she was receiving for those services, effective November 1, 1992. In this letter, Provost Meisels advise Dr. Cargill no additional responsibilities would be assigned to her for the balance of the semester, and she was provided with a "leave with pay for one semester and one summer at 1.0 FTE anytime before the end of the calendar year 1994. Though no specifics were provided either in the letter or at hearing regarding the basis for the apparent dissatisfaction with Dr. Cargill's performance at ILI, the underlying tenor of the letter clearly indicates such existed. Dr. Meisels characterized his action as a reassignment pursuant to Board of Regents Rule 6C-5.130, and though the University's decision to reassign her was discretionary and authorized by that rule, she had the right to file a grievance regarding the matter pursuant to USF Rule 6C4-10.010. The University neither followed nor attempted to follow the procedures for removal for just cause set forth in Rule 6C4-10.009, F.A.C. Dr. Cargill timely filed a Notice of Grievance and Request for Hearing pursuant to Rule 6C4-10.010 and, thereafter, the Step 1 hearing was conducted on June 3, 1993, by Dean Richmond. In his determination dated July 20, 1993, Dean Richmond found, "... there is no substantive basis for grievance on the issue of improper process in the termination of Dr. Cargill as Director of the International Language Institute." Dr. Cargill appealed this decision to then Assistant Provost Wright. In his Step 2 decision, Dr. Wright found the termination or reassignment of Dr. Cargill concerned a substantial interest of the grievant, but she had not met the burden of proof as required under the grievance procedure. He concluded that the recommendation for Dr. Cargill's removal from her position at ILI was consistent with the Board of Regent's rule and that no violation of that rule had occurred, which constituted a denial of her grievance. Dr. Cargill thereafter timely filed her Petition for Relief which forms the basis for this hearing. Ordinarily, a faculty member's assigned duties include a combination of both teaching and research, and, in addition, some faculty members are assigned administrative duties as a component part of their FTE. Though varying slightly from year to year, Dr. Cargill's assigned duties as FTE professor primarily consisted of teaching two courses and administering the graduate program within the Division of Language and Linguistics as "Director of Graduate Studies" which, though encompassing one third of her FTE, she considered an "administrative assignment." For this directorship, she received a one course release time. Over and above all that were her activities with the ILI. Dr. Cargill's assignments as a faculty member were recorded on periodic individual assignment of duties forms and activities reports. Her FTE directorship of graduate studies was listed thereon as "advisement." None of the ILI duties was ever included on either form. Up to 1992, the ILI was funded through the auxiliary budget of the School of Continuing Education and Dr. Cargill's ILI performance was evaluated by the head of the College for Continuing Education. Her FTE teaching and graduate student advisement performance was evaluated by the Director of the Division of Modern Languages and Linguistics. When she was first employed at the University, Dr. Gargill was tendered a standard one year State University System, (SUS), contract for each year of her employment as a professor. This covered her FTE activities only over the nine month regular school year. At no time was she offered or given a SUS contract for her ILI activities. Those activities were compensated for by the periodic issuance of an overload authorization which was signed by Dr. Cargill, the chairperson of the Division, and the Dean for the nine month regular school year. Notwithstanding Dr. Cargill understood the authorization form to be a contract for her services with the ILI, the overload form does not serve as an employment agreement. It merely serves to encumber the funds to be used to pay for the overload upon a showing that the work called for has been accomplished. Dr. Cargill was also given an OPS appointment for her summer term ILI duties when she was assigned no other duties. Overloads are instructional duties in an extension or continuing education activity which are in excess of a full appointment. They are not administered by the University's personnel department but, in this case, by the School of Continuing Education. They have never been considered as a position through which a person may attain tenure or any other right of continuing employment. To the contrary, the CBA requires overloads be offered "equitably". No notice is required before an individual performing overload duties can be denied further such assignments. By the same token, an OPS appointment is also temporary. An OPS appointment was used to compensate Dr. Cargill during the summer term because an overload is allowed only when the faculty member is carrying a full load. Since she had no assigned duties during the summer term except those involving the ILI, an overload would not have been the proper vehicle for compensating her for her summer term duties with the ILI. It must be noted here that OPS appointments, like overloads, carry no right of continuing employment and may be terminated without advance notice. While Dr. Cargill was serving in her FTE position and leading the ILI as well, her overload paid her an amount equal to 20 percent of her faculty salary, and the OPS summer appointment paid her sums in addition to that. During 1991, she was paid approximately $41,000.00 out of the University's Expense and General Funds for her services as an FTE faculty member. During the same period, she was also paid approximately $23,000.00 out of the University's Extension Incidental Trust Fund for her ILI activities. In his October 27, 1992 letter advising Dr. Cargill that her duties with the ILI were being terminated, Dr. Meisels specifically referred to the provisions of Rule 6C-5.130, F.A.C.. She was not given any new duties as a result of or subsequent to her removal from her position with the ILI. Instead, she continued her FTE teaching load and her FTE position as Director of graduate studies within the Division of Modern Language and Linguistics, but was not given an OPS appointment for the 1993 summer term. Dr. Cargill agrees she could have been relieved of her duties with the ILI for cause or from her FTE position as Director of Graduate Studies without notice or cause. However, she contends, the position with the ILI was an administrative assignment from which she could not be removed except for cause or consistent with the provisions of the other pertinent rules. The University does not assert she was removed from her position with the ILI for cause. It is not disputed that Dr. Cargill's duties, title, and pay in her ILI position gave her added prestige both on and off the University campus. Her removal from that position meant she would no longer have the prestige or receive the pay and as a result, she experienced an immediate substantial pay reduction and claims she was humiliated in front of her students and the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Dr. Carol J. Cargill's Petition for Relief be denied. RECOMMENDED this 6th day of September, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of September, 1994. APPENDIX TO RECOMMENDED ORDER 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 to this case. FOR DR. CARGILL: Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. - 17. Accepted and incorporated herein. & 19. Accepted except for use of term, "appointed" which has a special meaning in the law. Correct word should be, "assigned." 20. - 22. Accepted and incorporated herein. 23. Accepted. 24. - 26. Accepted and incorporated herein. 27. & 28. Accepted. 29. - 32. Accepted. 33. & 34. Accepted and incorporated herein. 35. - 36. Accepted and incorporated herein. FOR THE UNIVERSITY: & 2. Accepted and incorporated herein. 3. & 4. Accepted. - 7. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 14. Accepted. Accepted and incorporated herein. - 19. Accepted and incorporated herein. 20. - 22. Accepted and incorporated herein. 23. & 24. Accepted. - 27. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of party position. Accepted. COPIES FURNISHED: Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez 109 North Brush Street, Suite 200 Tampa, Florida 33602 Henry W. Lavandera, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250 Richard E. Fee, Esquire Glenn, Rasmussen & Fogarty 100 S. Ashley Drive, Suite 1300 Tampa, Florida 33601-3333 Noreen Segrest, Esquire Acting General Counsel University of South Florida ADM 250 4202 East Fowler Avenue Tampa, Florida 33620-6250
The Issue The issue is whether Petitioner, Ricky Lynn Sapp (Sapp), was nonrenewed for his annual teaching contract for constitutionally permissible reasons.
Findings Of Fact Petitioner was first employed by the Escambia County School Board for the 1984-85 school year in the compensatory education program at Bellview Middle School and later that school year he took the place of an eighth grade math teacher who was out on maternity leave. Sapp holds a Florida Teaching Certificate in elementary education and is not certified to teach in middle school. He has a bachelors degree. Sapp was asked by the School Board to take the courses necessary to become certified in middle school math, but did not do so because he was working at another job at the time. Petitioner was hired on annual contract by the principal of Bellview Middle School to teach seventh grade math during the 1985-86 school year and to teach sixth grade for the 1986-87 school year. For the most part, Sapp received excellent performance evaluations from the Bellview principal. In September, 1986, a mother of a Bellview Middle School student complained to the principal regarding what she believed to be unacceptable contact between Sapp and her son. The principal told Sapp to stay away from the student, but the parent's complaints continued. The student had been in Sapp's seventh grade math class the prior school year. On November 7, 1986, Sapp was arrested for lewd and lascivious assault on that student. As a result of these charges the Superintendent of the Escambia County School District recommended to the School Board that Sapp be suspended without pay. The School Board voted to disapprove the Superintendent's recommendation. Instead, Sapp was reassigned to administrative duties at the Hall Center. In the fall of 1986, Sapp was also notified by the Department of Education, Professional Practices Services (PPS), that an investigation of the allegations involved in the criminal charge had been instituted. On April 1, 1987, Sapp received the standard memo from the School Board, signed by the Bellview principal, indicating that his annual contract was going to expire at the end of the 1986-87 school year. The memo also indicated that the school district would move as rapidly as possible on the reappointment of the annual contract teachers recommended to the Superintendent for reappointment for the 1987-88 school year, but "personnel assignments resulting from the closing of the Beggs Center and the redistricting of all middle school boundaries greatly obscures the timeline for such reappointments." During the summer of 1987, Sapp talked to Dr. Roger Mott, the Assistant Superintendent for Personnel Services of the school district, and others in his office regarding appointment to an annual contract for the 1987-88 school year. Sapp claims he was told by Mott that he would not be rehired until after his criminal trial. Mott denies telling this to Sapp. Because Sapp's testimony was very confused and contradictory regarding these alleged statements by Mott, Sapp's version is given little weight. Instead, it is found that Mott did not tell Sapp that he would be rehired after the criminal trial. During the discussions between Sapp and Mott in the summer of 1987, Mott did tell Sapp that he was free to interview with any principals in the district for open annual contract positions, however those principals who inquired would be told that there was a Professional Practices Services investigation. Sapp expressed interest only in employment at Bellview. During 1987 the middle schools of Escambia County were redistricted. As a result of redistricting, Bellview Middle School anticipated losing approximately 300 students and 10 teaching positions for the 1987-88 school year. After the jury found him not guilty on August 12, 1987, Sapp again inquired regarding employment. According to Charles McCurley, principal of Bellview Middle School, there were no positions available at Bellview. By letter dated August 21, 1987, Sapp was advised that the Professional Practices Services was investigating two complaints. The first related to the charge of lewd and lascivious assault on a child. The second complaint was that Sapp had received his teaching certificate by fraudulent means because he failed to disclose two criminal convictions on his applications. Mott became aware of the PPS investigation and he discovered that Sapp had apparently falsified the applications for his teaching certificate and the applications for employment with the Escambia County School District. Mott then informed Sapp that the chances of reemployment were not good and that he could not be considered for employment until the PPS investigation was complete. Mott also testified that Sapp was not reemployed because of the information that formed the basis of the second PPS investigation. While this is not the place to determine whether or not Sapp falsified these applications, it is necessary to determine what facts the Respondent acted on in not renewing Sapp's annual contract. Sapp's applications to both the school district and the state showed that he answered "no" when asked if he had ever been convicted of a felony or first degree misdemeanor or other criminal offense other than a minor traffic violation. Sapp has, in fact, been convicted of at least two such violations which were not disclosed. Sapp approached Robert Husbands, Executive Director of the Escambia Education Association, for assistance in getting employment. Husbands talked to Mott. Mott informed him that Sapp could not be rehired until the PPS investigation was resolved. Husbands found that there were seven teaching positions in the whole county which were vacant at the beginning of the 1987-88 school year. Two of those positions were located some distance from Pensacola. Only one of those positions was known to have been filled by an annual contract teacher. There were 37 annual contract teachers in the school district who were not renewed for the 1987-88 school year. Eight others who were not renewed at the beginning of the school year were rehired during the year. Because of redistricting, Bellview had only one opening for an annual contract teacher after it placed its continuing contract teachers. That one opening was for reading and was filled by a reading teacher with a masters degree. Sapp was not qualified for that position. After the 1987-88 school year had begun, Bellview experienced increased enrollment and a resulting increase in teaching positions. Those positions were filled by teachers who were teaching in their field of certification and who were at least as qualified as Sapp. It was very important that Bellview have teachers working in their area of certification because the school was to be audited for accreditation in the 1987-88 school year. Sapp's former position at Bellview was filled by a continuing contract teacher who had previously taught seventh grade and who was certified to teach in both middle and elementary school. The teacher who took over Sapp's class in the 1986-87 school year was not rehired. During the first week of the 1987-88 school year, Sapp sought employment at Bellview and the principal correctly told him there were no jobs. Later, in October, 1987, a position opened up at Bellview and a continuing contract teacher with a masters degree in reading and 18 years of experience was transferred in at her request. Sapp believes he was not renewed as retaliation for the School Board's rejection of the Superintendent's recommendation for suspension on January 27, 1987. This allegation is based only on Sapp's personal feeling and no evidence was presented to substantiate his belief. Sapp also believes he was not renewed because of the arrest itself. Again, no evidence was presented to substantiate his belief. By letter of September 18, 1987, the School District, through counsel, advised Sapp's attorney that Sapp would not be considered for reemployment until the PPS investigation was concluded and the District was advised of the results. The PPS has not filed any complaint against Sapp based on either of its investigations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Ricky Lynn Sapp, be DENIED relief from the nonrenewal of his annual contract and that his request for relief be DISMISSED. DONE and ENTERED this 8th day of March, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5059 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Finding's of Fact Submitted by Petitioner, Ricky Lynn Sapp Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(10); 3(12); 4(14); 5(2); 6(2); 8(3); 9(3); 11(4); 12(5); 13(8); 15(6); 16(7); 18(23); 20(20); 21(24); 22(26); 23(26); and 25(27). Proposed findings of fact 7, 17, 28 and 29 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 10 is rejected as irrelevant. Propose findings of fact 14, 19, 24, 26, 27, and 30 are rejected as being unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Escambia County Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(1 and 10); 3(11); 4(25); 5(25); 6(13); 7(14 and 16); 8(15 and 22); 9(18); 10(22 and 23); 11(6); 12(19); 13(29); 14(30 and 31); 15(32); 16(33); 18(19); 19(27); 20(28); 21(33); 22(34); and 23(35). Proposed finding of fact 17 is rejected as being unnecessary. Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: G. James Roark, III, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Mike Holloway Superintendent of School Board Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Findings Of Fact The parties stipulated that for Fiscal Year 1987-1988, the vocational- technical-adult education division of the Pinellas County Schools suffered a $7,000,000.00 budget deficit. The parties further agreed that if Dr. Cecil Boris, Executive Assistant Superintendent for Curriculum and Instruction were present, she would testify that she determined that as a result of the budget deficit, it would be necessary to eliminate $1,000,000.00 from the budget for the 1988-1989 fiscal year. She instructed her staff to implement that reduction based on two considerations. The first involved the cost effectiveness of individual programs and the second related to the need for the school system to service the community. The parties further agreed that in their respective departments, Mr. Poole and Mr. Muckle were the least senior instructors. Mr. Poole and Mr. Muckle both were continuing contract teachers at PVTI. Mr. Poole taught welding and Mr. Muckle taught heating, ventilation, and air conditioning. The terms of their employment are governed by the Agreement between The School Board of Pinellas County and the Pinellas Classroom Teachers Association, (Union), for 1985-1988. Other than the slots occupied by both Respondents as described above, and with the exception that as to Mr. Poole, a possible slot for him existed at SPVTI, there were and are no other open slots within the school system for which either Respondent is certified to teach. The parties agreed that the use of the term "open" means unoccupied by a continuing contract teacher or a teacher serving under a professional service contract. The parties further agreed that negotiations were conducted by the School Board with each Respondent in an effort to place him in other positions subsequent to his termination but the negotiations were unsuccessful. Pertinent Florida statutes relative to the issue here indicate that unless a teacher's contract is terminated for cause, it must be terminated at the end of the school year. Though the contracts of Mr. Poole and Mr. Muckle were not so terminated at the end of a school year, the parties agreed that failure was not and would not be raised as a defense to their termination. In November or December of each year, the various county school boards, including Petitioner, receive from the State the number of full time equivalents, (FTEs) they will be authorized for the following school year. A FTE equates to 900 hours of instruction per pupil and is authorized in various categories, including secondary education, post-secondary education, adult education, etc. If the Board feels the authorization allotted to it is inadequate or erroneous, it can appeal that allotment. Ordinarily, however, once the number of FTEs is received, the Board then examines the various programs it proposes to offer and establishes the number of units which it can employ for the coming school year. A unit equates to one full-time teacher. In addition, on the basis of the FTE authorization, the Board can figure what part time hour programs it can offer by the number of hours available to it. The post-secondary vocational-technical-adult education area is divided into several basic curriculum areas including, but not limited to, business education, distributive education, agricultural education, building trades, and health occupation education. The areas are not all funded equally but are weighted on the basis of projected student population relating to FTEs. The weights change year by year and the effect of weighting creates, in some cases, an opportunity to have a lower teacher/pupil ratio, (TPR). Some areas, by law, require lower TPRs. As a result, the weight for these programs is higher. Conversely, if the requirement is not as high, then the weighting given to the FTE is lower. When the Pinellas County School Board received its authorization for FTEs, a staff model implementing these authorizations was prepared by Dr. Herbert Ross, Assistant Superintendent for Vocational-Technical-Adult Education, under Dr. Boris' direction. This staff model, which defines where the FTEs are to be assigned, is prepared by the staff which, in doing so, evaluates the prior years programs, the TPR, the placement of students, and the future of the various authorized programs based on input from the various school advisory committees. This staffing model, when promulgated, is not fixed. If additional economies can be generated as a result of factors which occur later on in the school year, these economies will be implemented. By the same token, if a vacancy occurs subsequent to the preparation of the staffing model which does not warrant replacement based on projections of student population, the Board will not hire a replacement. The staff model pertinent to this case, prepared by the Division of Curriculum and Instruction, as it related to vocational teachers, reflects that SPVTI's staffing level for vocational teachers was to be reduced from 109 to 102 (7 teachers), and PVTI's teacher staffing was to be reduced from 120 to 111, (9 teachers). Elimination of these 16 teacher positions would result in a savings of $518,400.00. The entire reduction generated by staff reductions throughout the Division of Curriculum and Instruction totaled $1,085,612.00. The reductions identified in the staffing summary were based on the 1988 student load reports and the registrar's reports of enrollment in the various schools. Student load reports were not the sole factor considered. TPR's were also considered as were the number of sections in a program, (a program with one section only, involving one instructor, would not likely be cut as to do so would result in the loss of the entire expertise in that area), the various course placement records, the need for the course within the community, and other factors of a similar nature. When the evaluations were made, individual instructors were considered. The determination as to which programs required cuts generally resulted in identification of those programs with the lowest TPR being singled out for reduction. In this regard, Counsel for Respondent strongly contested Mr. Wagner's analysis of which programs were cut and why. Documentation prepared by her from records furnished by the Board in response to discovery would tend to indicate that many programs with a much lower TPR than either that of Mr. Muckle or Mr. Poole's classes were spared reduction while Poole's and Muckle's programs were cut. Mr. Wagner logically and reasonably justified each one of the judgement calls he made in determining whether a particular program should or should not be cut and no evidence was presented by Respondents to indicate that his judgement was incorrect or unsupported. Neither Mr. Wagner nor Dr. Ross played any part in the identification of the individuals who were to be terminated. Once the programs to be reduced were identified, they were forwarded to the school district personnel officer where identification of individual instructors was made on the basis of number of students, number of teachers, and projections for the future. Both the welding program, in which Mr. Poole teaches, and the heating, ventilating and air conditioning program, in which Mr. Muckle teaches, are in the same weighted category of courses, (trade and industrial). Based on the weight factors for trade and industrial courses, a unit, (teacher), needs a 12 to 14 TPR of full time students or part time equivalents. In making his identification of programs to be reduced, Mr. Wagner relied on several documents produced within his facility. The first is the registrar produced enrollment documents reflecting each course's student enrollment by nine week period, (quintmester or quint), for the prior two years. These quint rolls are prepared at the opening of each quint by the registrar from registration forms submitted by students for each class in session. As students come and go during the quint, adjustments are made as required. These forms, however, give the student enrollment only at the beginning of the term, and in order to get an accurate figure of class enrollment at any given time, Mr. Wagner periodically requests his instructors to prepare student load reports which list, by class period, the number of students each instructor has enrolled in his class and present on the day the report is submitted. Since some students are full time and some only part time, in determining the TPR, 3 part time students equal 1 full time student. This is a reasonable method of analysis. After making his study, Mr. Wagner identified the heating, ventilation, and air conditioning courses and the welding courses for reduction because these two technologies had been suffering a decline over several years. In fact, Mr. Muckle was warned that his job might be in jeopardy the prior year. In addition, whereas the institute had been previously getting central office support for various programs during a period of decline, this support was no longer forthcoming. When Wagner recommended cuts to the district personnel office, his recommendation was to cut a unit in the department. The choice of instructor was based upon seniority. The TPR in the heating, ventilating and air conditioning program had shown a pattern of continuous decline and enrollment at the time of identification was even lower than in previous years. Major appliances, a part of that program, had suffered a reduction through retirement of an instructor during the past year and this year, with the number of students enrolled being even smaller, it was necessary to cut an additional instructor. This same situation applied to the welding technology where though there was higher fluctuations than in heating, ventilating and air conditioning, the pattern of decline was consistent. Because of the impact that reduction has on the instructors within the system, the administration attempts, wherever possible, to do away first with vacancies. When those are gone, the remaining necessary cuts are attempted through attrition. In the instant case, Mr. Wagner cut two open units and got three more by not replacing retirements. Once these five units were cut, he was forced to look to annual contract teachers. A teacher who resigned was not replaced. Finally, when cuts were still required, it became necessary to look to continuing contract teachers to make up the difference between the six spaces mentioned above and the sixteen needed. Night course programs cannot be considered in the same category with day programs as they are "supplemental" programs. Teachers within these programs are usually part time teachers hired at an hourly rate. Mr. Wagner did not consider placing those teachers identified for cutting into the night program as teachers. Generally an instructor under continuing contract which calls for 25 hours of instruction per week cannot get enough teaching hours in a night program, (four nights per week, at four hours per night), to make absorption of the remaining nine hours cost efficient. Mr. Poole was not the only instructor identified for cut in the welding program. At the beginning of the identification process, four teachers were in the program, but Mr. Poole, the most junior, was identified and his position cut. That left three instructors. By May, 1988, Mr. Wagner had to recommend another reduction in that program, reducing the number to two and the prognosis was for even further decline. Even with the reductions imposed and identified for future imposition, it would appear that the welding program was not cost effective, notwithstanding Mr. Poole's testimony, uncontroverted, that it was well received in the community and the placement record for students coming out of the program was good. The May/June 1988 enrollment figures showed 25 students in the programs. This is just enough for two instructor positions. Consequently, when Mr. Wagner identified the third unit, rather than cut it, he transferred it to SPVTI along with the incumbent instructor effective July 1, 1988, the start of the 1988/1989 fiscal year. Mr. Poole was junior to that instructor. Quint reports for the HVAC program showed for the January - March 1988 period 49 students in the program with 7 teachers, generating a TPR of 7. In the previous year, there were 69 students at the beginning of the school year and during the same months of that year, the count was 75 students. Mr. Wagner projected that the student population would go down even further in the future. As for the welding program, during the January - March 1988 period, the program served 28 students with 4 teachers. At the beginning of the school year, the student population was 29 and during the same period for the previous year, it was 33. Heating, ventilation, and air conditioning and welding were not the only programs identified for reduction during this round of budget cuts. Several others, including electromechanical studies and practical nursing were also reduced as were the architecture/civil program. All of these had TPRs of 10 or less. No program with a TPR of over 10 was affected by the cuts. Once Mr. Muckle and Mr. Poole were identified by the district personnel office for cut, Mr. Wagner looked to see if, consistent with their certification, they could be moved into another department. Mr. Poole is certified in welding and Mr. Muckle is certified in heating and air conditioning. Both are certified in related technology. However, both instructors are continuing contract teachers and changing to a related technology is not normally done for continuing contract instructors. Several departments at PVTI which have a lower TPR than welding and HVAC were not affected. In one case, Mr. Wagner reduced a teacher to a 10 month contract from a 12 month contract status and also generated 39 more part time students in an effort to raise the TPR and keep the course. One-teacher departments, even with a lower TPR, were kept open in order not to lose the expertise. In other cases, the nature of the student population involved might have justified keeping a course open even with a low TPR, (handicap). The determination as to where to impose cuts was, in most cases, a question of judgement wherein Mr. Wagner, as Director of the school, had to consider other factors in addition to the TPR in deciding where to recommend the cuts. Mr. Poole had previously taught at night and was willing to again teach at night on a part time basis. However, he had chosen to withdraw from teaching night classes in the past and notwithstanding he stated he had offered to teach them again, he did not communicate this to Wagner. As to whether Poole could be reassigned to the welding program at SPVTI, there are currently two instructors, (including a transfer in from PVTI), on board and at the close of July, 1988, there were only 9 or 10 students for both teachers. This does not justify a third teaching position for Mr. Poole to fill. Respondents, offered several statistical surveys of teacher/pupil ratios which indicate there are numerous programs within the school system which appear to have lower TPRs than either the welding or HVAC programs. However, numerous factors other than TPR were considered in determining and identifying various programs for reduction. There has been no evidence whatever to indicate that Mr. Wagner's judgement was inaccurate, incorrect, or flawed. There was no evidence that his decisions were either arbitrary or capricious or based on an improper attempt to impose an adverse action on either Respondent or to improperly give benefit to others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the termination of employment of Respondents Jeffrey Muckle and Thomas Poole be upheld and their employment contracts with the School Board of Pinellas County be cancelled. RECOMMENDED this 29th day of September, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2005, 88-2008 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 to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3 - 4. Accepted and incorporated herein. 5 - 6. Accepted and incorporated herein. 7. Accepted and incorporated herein. 8 - 9. Accepted and incorporated herein. 10 - 11. Accepted and incorporated herein. 12 - 13. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 16 - 23. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. For the Respondents: 1 - 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Sentence one is rejected as contra to the weight of the evidence. The remainder is accepted. 7 - 8. Accepted and incorporated herein. 9 - 10. Accepted. 11 - 12. Accepted. Rejected. Information is available. The issue is one of credibility and weight. Rejected and irrelevant. Rejected. Petitioner admits some records are not complete. The issue, however, is not one of statistics but of concept and the evidence is clear that Mr. Wagner's decision was based on reliable evidence which fairly presented the overall picture. Rejected and irrelevant. Conclusion in last sentence is rejected. 18 - 19. Accepted but irrelevant. Accepted but not controlling. Accepted and incorporated herein. Explained. Accepted. Accepted and incorporated herein. Accepted but not controlling. Accepted. Accepted. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618-4688 Charleen C. Ramus, Esquire Kelly and McKee, P.A. 1724 East 7th Avenue Post Office Box 75638 Tampa, Florida 33675-0638
The Issue The issue is whether the Petitioner has forfeited her rights and benefits under the Florida Retirement System (FRS).
Findings Of Fact The FRS is a public retirement system as defined by Florida law. The Respondent is the Florida agency responsible for management and operation of the FRS. At all times material to this case, the Petitioner was employed as a teacher by the Brevard County School Board (BCSB). The BCSB is an FRS-participating employer. Because of her employment, the Petitioner was enrolled in the FRS. On or about June 25, 2008, the Petitioner was arrested and charged with the following offenses: Twenty counts of unlawful sexual activity with a minor, a second degree felony, in violation of Section 794.05(1), Florida Statutes; One count of lewd or lascivious conduct, a second degree felony, in violation of Section 800.04(6)(a)1., Florida Statutes; One count of lewd or lascivious exhibition, a second degree felony, in violation of Section 800.04(7)(a), Florida Statutes; One count of lewd or lascivious molestation, a second degree felony, in violation of Section 800.04(5)(c), Florida Statutes; One count of lewd or lascivious battery, a second degree felony, in violation of Section 800.04(4)(a), Florida Statutes; and One count of delivery of cannabis to a minor, a second degree felony, in violation of Section 893.13(4)(a)-(d), Florida Statutes. The victim of the alleged crimes was a male who had been temporarily incarcerated at the Brevard Regional Juvenile Detention Center (Center). As an employee of the BCSB, the Petitioner taught science, English, and health education to detainees incarcerated at the Center. The victim was a student in the Petitioner's classroom during his incarceration at the Center. The Petitioner engaged in sexual activity with the victim between May 16, 2008, and June 19, 2008, after the victim had been discharged from the Center. The evidence fails to establish the manner in which the Petitioner and the victim made initial contact after his discharge from the Center. There is no evidence that the Petitioner was coerced or required to engage in sexual activity with the victim. On at least one occasion, the sexual activity occurred in the Petitioner's home. On July 7, 2008, the BCSB commenced proceedings to terminate the Petitioner's employment as a teacher. On July 14, 2008, the Petitioner resigned from her employment with the BCSB. In February 2010, the Petitioner executed an agreement to plead guilty to three counts of unlawful sexual activity with a minor, a second degree felony, in violation of section 794.05(1), Florida Statutes, and one count of making a false report to law enforcement officers, a first degree misdemeanor, in violation of section 837.05(1), Florida Statutes. On February 7, 2011, the Petitioner's plea agreement was filed in court, and the Petitioner was adjudicated guilty. The BCSB thereafter referred the matter to the Florida Department of Education, Office of Professional Practices. As a teacher, the Petitioner was subject to jurisdiction of the Education Practices Commission, pursuant to section 1012.795, Florida Statutes, and was required to comply with the Code of Ethics for the Education Profession in Florida (Code of Ethics) and with the Principles of Professional Conduct for the Education Profession in Florida (Principles of Professional Conduct). The Petitioner was an authority figure to her students at the Center. According to the Principles of Professional Conduct, she had an obligation to protect students from conditions harmful to learning and harmful to their health and safety and an obligation to refrain from exploiting a relationship with a student for personal gain or advantage. On May 11, 2011, the Florida commissioner of education filed an Administrative Complaint before the Education Practices Commission alleging that the Petitioner had violated provisions of the Code of Ethics and the Principles of Professional Conduct and seeking to impose a disciplinary penalty against the Petitioner's educator's certificate. On December 14, 2011, the Petitioner surrendered her educator's certificate for permanent revocation. On January 5, 2012, the Education Practices Commission issued a Final Order permanently revoking the Petitioner's educator's certificate. When the Petitioner was charged with the crimes referenced herein, the Respondent suspended the Petitioner's FRS rights and benefits and provided proper notice of the suspension to the Petitioner. After the Petitioner was adjudicated guilty, the Respondent notified Petitioner that her FRS rights and benefits had been forfeited as a result of the plea. The Petitioner timely requested an administrative hearing to challenge the suspension and forfeiture. The Petitioner has not retired from the FRS and is not receiving FRS retirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that the Petitioner was convicted of a specified offense pursuant to section 112.3173 and directing the forfeiture of her FRS rights and benefits. DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 3rd day of December, 2012. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Charles L. Handlin, Esquire Handlin and Hefferan, P.A. 12 North Summerlin Avenue Orlando, Florida 32801 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue WHETHER CHARLES OTERO'S EMPLOYMENT AS A PART TIME TEACHER FOR THE HILLSBOROUGH COUNTY SCHOOL BOARD BETWEEN 1965 AND 1972 IS CREDITABLE SERVICE UNDER THE FLORIDA RETIREMENT SYSTEM. There was some discussion at the commencement of the hearing as to whether Otero's petition for formal hearing properly raised his claim that his service is creditable both as "past" and as "prior" service. The terms "past," "prior" and "previous" service are each separate terms of art defined in Rule 225-6, Florida Administrative Code. While Otero's petition requests permission to purchase Florida Retirement System ("FRS") credit for "prior" service, his petition also frames the ultimate issue in the broader terms as expressed above. (See Petition, paragraphs 4 and 5.) The Division's unilateral Pre-hearing Statement filed on October 29, 1986, paragraph f., states: "At issue is whether or not Petitioner should be permitted to purchase the requested employment time as creditable service in the Florida Retirement System." The Division has not suggested that a more specific request for "past" credit would have resulted in any different response. The broader issue is, therefore, considered here in the interest of economy.
Findings Of Fact In 1965, Charles Otero was an inspector for the Tampa Police Department. Through a joint effort of the Police Department and the Hillsborough County School District a unique high school course curriculum was developed to assist youths who were interested in pursuing careers in law enforcement. A survey was conducted and some preliminary recruiting revealed sufficient student interest to include the course as an elective at Leto Comprehensive High School in Tampa, Florida. The curriculum was divided into two levels: Law Enforcement I and Law Enforcement II. A student enrolling in Law Enforcement I had to be in 11th grade and be free of any physical impediments to a future law enforcement career. Law Enforcement I consisted of two hours instruction a day (one hour in the classroom and one hour of physical education), five days a week. The students who successfully completed this level were expected to go on to Law Enforcement II in the 12th grade. This course was conducted one hour a day, five days a week. Students were required to complete the first level before enrolling in Law Enforcement II. (Testimony of Otero and Farmer.) Charles Otero was hired as a part-time instructor for the Hillsborough County School District in September 1965. He began teaching the new course, Law Enforcement I, at Leto Comprehensive High School, two hours a day, five days a week for the entire school year. The following year, he taught both Law Enforcement I and II, for a total of three hours a day, five days a week. Without interruption, Otero continued teaching the courses at Leto through the 1968/1969 school year. He taught the same courses at Blake High School during the 1969/1970 school year, and from August 1970 until June 1974, he taught the same courses at the Hillsborough County Evening Vocational Center. He resigned in 1974 to become Police Chief for the City of Tampa. (Testimony of Otero, Mahin, Farmer and Scaglione). For each school year from 1965 until 1974, Charles Otero was hired under an annual part-time contract for instructional staff. The three contracts placed in evidence as Petitioner's Exhibits #4, #5 and #6 are typical of the forms used by Hillsborough County School District during the relevant period. Each contract specifies an hourly rate and provides that the hours of instruction are based upon the classes offered for which the teacher is qualified and assigned to teach by the county superintendent or his designee. The contract also provides for termination at will by either party upon written notice to the other. This option was not exercised during the relevant period. Otero was certified only as a part-time law enforcement teacher. (Testimony of Otero and Dobbins, Petitioner's Exhibits #4, #5 and #6). Otero's wages for teaching were paid from a Hillsborough County School District wages and salary account commonly used to pay part-time, adult education teachers. The adult education account was separate from the regular teachers' account. Otero was not paid from an OPS (other personnel services) account. (Testimony of Mann.) At the time that he was hired in 1965, both Otero and the Hillsborough County School District anticipated that the law enforcement courses would continue for at least two years, based on the survey and recruitment responses, and based on the expectation that the Level I students would go on to take the Law Enforcement II course. Since these were elective courses, the students were not required to enroll and if an insufficient number had enrolled, then Otero's courses would not have been taught. In fact, the courses continued and still continue today, with full-time teachers. (Testimony of Otero, Farmer, Scaglione and Dobbins.) Prior to December 1, 1970, full time instructional staff of the Hillsborough County School District participated in the teacher's retirement system under Chapter 238, Florida Statutes. On December 1, 1970, the FRS was created and the existing systems were closed out. Otero never participated in the teacher's retirement system, nor was he eligible for that system as a part- time teacher. In January 1972, he became a member of the FRS when the Hillsborough County School District commenced contributions on his behalf. Otero was re-employed by the Hillsborough County School Board in 1979, as Supervisor of Security and has been continually employed in that capacity on a full-time basis. He has likewise participated continually in the FRS since 1979. Otero conceded that his application to the Division indicating that he was seeking purchase of "refunded service" was in error. He had no "refunded service" under an existing system or the FRS. (Testimony of Otero and Sansom.) In June 1984, Charles Otero applied to the Division for an audit of his employment with the Hillsborough County School District to determine how much of his service would be creditable under the FRS. In July 1985, the Division responded that his employment as a part-time teacher from 1965 through 1971 is not creditable. (Testimony of Otero and Sansom, Petitioner's Exhibits #7 and #8.) The Division of Retirement is statutorily charged with administering the FRS and with determining what service may be claimed by a member as cieditable service in calculating that member's retirement benefits. Ruth Sansom has been Chief of the Division's Retirement Calculations Bureau since October 1980. She has been employed in some capacity in calculating retirement benefits for the teachers' retirement system and the FRS for 23 years. She is intimately familiar with the Division's policies. She has interpreted retirement laws and has assisted in policymaking and rulemaking for the Division. She is likewise familiar with Charles Otero's request and she testified regarding the bases for the Division's denial. The Division considered Otero's circumstances as similar to part-time adult education instructors who are paid on an hourly basis and whose students enroll on a voluntary basis. Those teachers who are hired with no contractual expectation of continuation are considered "temporary" instructional personnel and are not considered eligible for participation in the FRS. When examining a request for purchase of service, the Division applies the rules in effect at the time the request is made. The Division, however, applies those rules just as they would to an individual seeking enrollment in the FRS. The Division looks at the employment contract and legitimate expectations of the parties at the time of hire, rather than at the actual length of time the individual was employed. In other words, while the rule is applied retroactively, the employment circumstances of the individual are examined in a prospective manner. An individual is considered "temporary," even if employed for many years, so long as the employment relationship described at its commencement is merely temporary. A "part-time" teacher is not automatically "temporary." (Testimony of Sansom.) In making a determination regarding an individual's service credit the Division applies Chapter 121, Florida Statutes, Rules 225-1, 2 and 6, Florida Administrative Code, Memorandum 81-60 (Respondent's Exhibit #3) and a memorandum dated February 1, 1982 from A.J. McMullian, III. (Petitioner's Exhibit #9.)(Testimony of Sansom.)
Recommendation Based upon the foregoing, it is RECOMMENDED that: So long as the required contributions are made, Charles Otero's request to purchase "prior service" in the FRS for the period September 1965 to December 1970, be approved. Charles Otero's request for the period December 1970 until his enrollment in the FRS in 1972, be denied. DONE and RECOMMENDED this 5th day of December, 1986, in Tallahassee, Florida. MARY CLARK 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 5th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2487 The following constitutes my specific rulings on the proposed findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS OF FACT 1-3. Rejected as irrelevant. Adopted in paragraph 6. Adopted in paragraph 8. 6-10. Adopted in paragraph 6. 11. Adopted in paragraph 2. 12-13. Adopted in paragraph 1. Rejected as unnecessary. Adopted in paragraphs 1 and 2, except that the record establishes that he was hired effective September 28, 1965. (Petitioner's Exhibit 1.) Adopted in paragraph 5. 17-28. Adopted in summary form in paragraph 2. 29-35. Rejected as irrelevant. 36-38. Adopted in paragraph 4. 39-44. Adopted in summary form in paragraph 3. 45-46. Adopted in substance in paragraph 2. 47-49. Rejected as unnecessary. 50. Adopted in part in paragraph 2. The record is not clear that the Hillsborough County Evening Vocational Center was a "high school classroom." 51-56. Rejected as unnecessary. (See Conclusion of Law 7.) 57. Adopted in paragraph 2. 58-59. Adopted in substance in paragraph 5. 60-63. Adopted in paragraph 6. Rejected as unnecessary. Adopted in paragraph 7. 66-67. Adopted in paragraph 8. 68. Rejected as cumulative and unnecessary. 69-70. Adopted in substance in paragraph 8. RESPONDENT'S PROPOSED FINDINGS OF FACT 1-3. Adopted in paragraph 2. Adopted in paragraph 6. Adopted in paragraph 5. Adopted in paragraph 3. Adopted in paragraph 5. Adopted by implication in paragraphs 3 and 5. 9-13. Adopted in paragraphs 3 and 5. Adopted in part in paragraph 5 (as to continual nature of the course); otherwise rejected as unsubstantiated by the record. Rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 6. 18-21. Adopted in paragraphs 2 and 6. 22-23. Adopted in paragraph 7. Adopted in "Background" portion of the recommended order. Adopted in paragraph 8. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire Edward M. Chew, Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Stanley M. Danek, Esquire William A. Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street, Suite 207 Tallahassee, Florida 32303 Andrew J. McMullian, III, Director Division of Retirement Department of Administration Cedars Executive Center, Bldg. C Tallahassee, Florida 32303 Gilda H. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to Section 112.3173, Florida Statutes (2008).
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the joint pre- hearing stipulation1 of the parties, the following Findings of Fact are made: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent, Department of Management Services, Division of Retirement (Respondent or Division), is charged with managing, governing, and administering the FRS. Petitioner, Mr. Johnson Holsberry, Jr. (Petitioner or Mr. Holsberry), was formerly employed as a teacher at the West Area School of Choice by the Palm Beach County School Board (PBCSB). By reason of his employment with the PBCSB, Mr. Holsberry became a member of the FRS. As a teacher, Mr. Holsberry was subject to the Code of Ethics of the Education Profession in Florida found in Rule 6B- 1.001, Florida Administrative Code. As a teacher, Mr. Holsberry was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. On or about December 5, 2000, Mr. Holsberry resigned his teaching position with PBCSB. On or about October 24, 2001, Mr. Holsberry was charged, by amended information, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, with one count of child abuse, a third degree felony, in violation of Section 827.03(1), Florida Statutes. The same amended information is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. The victim of the alleged crime, R.D., was a female student at the Area School of Choice. In Palm Beach County, Florida, between the dates of January 1, 1999, and December 31, 1999, Petitioner, while teaching in a position of parental responsibility, was alleged to have had contact with R.D. and to have acted in such a manner as to cause mental injury to said child. On or about October 24, 2001, Mr. Holsberry entered an agreement with the State Attorney's Office wherein he agreed to plead guilty as charged in the amended information. The same plea agreement is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF- 001185. Mr. Holsberry's guilty plea was made freely and voluntarily. Mr. Holsberry pled guilty because he was in fact guilty. On or about October 24, 2001, Mr. Holsberry was adjudicated guilty. The same judgment is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. On or about January 8, 2001, Mr. Holsberry applied to the Division for early service retirement from the FRS and began receiving retirement benefits. The Division suspended payment of Mr. Holsberry's monthly retirement benefits in June 2008. By certified letter dated June 13, 2008, Mr. Holsberry was notified of the Division's intended action to forfeit his FRS rights and benefits as a result of his guilty plea in the case styled and numbered State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. At the hearing, Mr. Holsberry testified that R.D. was in his classroom a few times, but that he was not sure of the year, frequency, or why she was there. He testified that he does not remember taking a picture of R. D. sitting at his desk, but that might have taken place. Mr. Holsberry also testified that he does not recall permitting R. D. to access her email from his classroom, or inviting her to join him on trips, to come to his home, or otherwise to meet him any place outside of the school. Mr. Holsberry testified that he does not recall giving R. D. his home telephone number. He recalls having an email screen name of Sameagle1, but does not recall whether he emailed R. D. from that email address or whether he had another screen name, Gutster. He testified that he does not recall referring to himself as H-Man (although he said some students called him "Mr. H.") or referring to R.D. as "Dukey Dufus." In general, Mr. Holsberry's testimony that he does not recall his actions that ultimately ended his career as a teacher is not credible. Mr. Holsberry noted that R.D. was not officially assigned to any of his classes, so that he was not responsible for her education, nor was he involved with her in any after school program that would have made him responsible for her welfare. Mr. Holsberry testified that he probably would not have met R.D. but for his position as a teacher at her school. He also recalled having being interviewed by an investigator named Green. Angelette Green, an employee of the Palm Beach County School District for 15 years, was the investigator assigned to Mr. Holsberry's case. Detective Green testified that Mr. Holsberry admitted that he helped R. D. set up an email account, communicated with her by email, including having sent by internet a picture of her taken in his classroom. She also testified that she remembers emails inviting R. D. to go somewhere. She said Mr. Holsberry called R. D. "Dukey Dufus" after he sent her an email and she questioned who it was from. On July 30, 2002, an Administrative Complaint was filed by the Commissioner of Education seeking disciplinary sanctions against Mr. Holsberry's license based on allegations of professional misconduct. Mr. Holsberry did not contest the disciplinary matter, having already agreed to surrender permanently his teaching certificate as a part of his plea agreement. The Education Practices Commission entered a final order permanently revoking his teaching certificate. On October 24, 2001, a plea conference was held on the following charge: Amended Information For: CHILD ABUSE In the Name and by the Authority of the State of Florida: BARRY E. KRISCHER, State Attorney for the Fifteenth Judicial Circuit, Palm Beach County, Florida, by and through his undersigned Assistant State Attorney, charges that JOHNSON LEO HOLSBERRY JR. on or between January 01, 1999 and December 31, 1999, in the County of Palm Beach and State of Florida, did knowingly or willfully, intentionally inflict physical or mental injury upon R.D., a child, {or} did an intentional act or actively encourage another to do an act that results or could reasonably be expected to result in physical or mental injury to R.D., a child, contrary to Florida Statute 827.03(1). (3 DEG FEL) At the plea conference, the following exchange occurred: [By Mr. Jaegers, Assistant State Attorney:] The defendant will be adjudicated guilty of the offense; he will be placed on five years probation. There will be no early termination contemplated. The defendant will be required to pay Court costs in the amount of $261.00, $50.00 to the Drug Trust Fund, $50.00 cost of prosecution. The defendant must undergo a psychological evaluation and successfully complete any recommended treatment. * * * The defendant is to surrender all and not seek at any time in the future any teaching certificates in any jurisdiction in the world. There will be no contact with children under 18 unless they're in the presence of an adult who is aware of these charges. And those are the terms of the negotiated settlement. The facts in this case, Judge, are that the defendant, Johnson Leo Holsberry, Jr., did in Palm Beach County, Florida, on, between the dates of January 1, 1999 and December 31st, 1999, while teaching in a position of parental responsibility, in that capacity had contact with a juvenile female by the name of, or by the initials of SRD, I think it's on the plea sheet. MR. WILINSKEY [Counsel for Mr. Holsberry] That's right. MR. JAEGERS: -- RD, and did act in a manner such as to cause mental injury to said child. The -- those are the facts that occurred in Palm Beach County. THE COURT: Sir, raise your right hand, please. JOHNSON LEO HOLSBERRY, JR. BEING FIRST DULY SWORN BY THE COURT, TESTIFIED AS FOLLOWS: THE COURT: Your name? THE DEFENDANT: Johnson Leo Holsberry, Jr. THE COURT: How old are you? THE DEFENDANT: 62 * * * THE COURT: Do you understand what the things are you have to do? THE DEFENDANT: Yes, sir. THE COURT: Are you pleading guilty because you are guilty? THE DEFENDANT: Yes. THE COURT: Do you agree with the facts the State Attorney gave me as the basis for your plea of guilty? THE DEFENDANT: Yes, sir.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 24th day of July, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 24th day of July, 2009.
Findings Of Fact Because the Division is accepting certain of the Hearing Officer's Findings of Fact, and rejecting others in part or in total, each Finding of Fact in the Recommended Order will be considered separately. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted in part. Mrs. Kauffman was hospitalized for surgery in 1981 and 1982. There is no evidence that she had been hospitalized during the prior five open enrollment periods. It was after the 1983-84 school year that she decided to make some changes in her retirement system (T. 110) Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted in part. Mr. Kunkel accepted the concept that the termination must be a "bona fide termination." He further stated that the acceptance of Ms. Meadows' resignation and her reemployment could be accomplished at the same school board meeting. Paragraph 7: Accepted in part as being only partially correct. The Division rejects the portion as being an incomplete statement of the correspondence in this case between the school board and the Division. Respondent's Exhibit #2, Item 9, states as follows (letter from Joseph E. Cahill to Marilyn Peters, dated December 11, 1985): Your attention is invited to the means of proving actual termination, i.e., a copy of the member's resignation, a copy of the advertised vacancy, evidence of payments for unused annual and sick leave or evidence of loss of unused annual and sick leave, etc. The point to be made is that there must have been an actual termination, not merely a paper transaction purporting to reflect a "termination" and concurrent "reemployment" -- for the purpose of circumventing the spirit and intent of the pertinent statute. Paragraph 8: Accepted. Paragraph 9: Accepted. Paragraph 10: Rejected. In reviewing the facts of a particular fact to determine if there has been a bona fide termination, the Division reviews several factors; a copy of the resignation, a coy of the advertised vacancy for the member's position and "evidence of payments for unused annual and sick leave, or of the loss of unused annual and sick leave due to termination." The review is multi-factoral and not based on any one indicia (Wooten's Deposition Exh. 1 and Exh. 2). Paragraph 11: Accepted in part. Both Meadows and Kauffman had consulted with Mr. Kunkel for legal advice and had had meetings with Dr. Pierce soliciting his cooperation in securing the transfers. Their principals had been contacted concerning whether or not the teachers would be accepted back into their prior positions. The Superintendent had also expressed his willingness to recommend the Petitioners for their former positions. While the school board does the actual hiring and the Superintendent does the recommendations for the hearing, Petitioners had done everything within their power to ensure that they would be hired into their prior positions. Paragraph 12: Accepted. Paragraph 13: Accepted in part. While the Petitioners proceeded with the game plan as agreed to in their meeting with Dr. Pierce in September, 1987, it is evident that the plan was proceeding in spite of statements from the Division that there must be a clear termination and not merely a paper transaction done solely for the purpose of circumventing the spirit and intent of the law (see Respondent's Exhibit 2, Item 9) Paragraph 14: Accepted in part and rejected in part. While the statement of the Hearing Officer is correct that the Petitioners missed two pay periods from December 5, 1987 to January 3, 1988, it is also irrelevant to the issues of the case. While Petitioners apparently terminated employment for the two pay periods, the interest of the Division concerns itself with membership in the retirement systems, either TRS or FRS, and the requirements of the Division necessary to be considered a terminated member of either of those systems. The Division's Interest is not whether the Petitioners are or have terminated employment with the School Board. In this proceeding, the Division has not made a determination as to the validity of the "terminations" or "resignations." Paragraph 15: Accepted. The personnel action forms were initiated by the principals of the two schools in which the Petitioners taught. Ms. Sandra Russell, the principal for Ms. Kauffman signed the personnel action form on December 1, 1987, before the effective date of the resignation. She stated that she would not have signed the form had she not heard from the personnel office that her signing the form was the appropriate thing to do (Tr. 154). Paragraph 16: Accepted. Paragraph 17: Accepted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered effectuating the transfer of Petitioners from TRS to FRS commencing with their reemployment by the county school board. DONE AND ENTERED this 21st day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of February, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioners' Proposed Findings Of Fact 1.-19. Adopted in substance. 20.-22. Unnecessary. 23.-52. Adopted in substance. Respondent's Proposed Findings Of Fact 1.-2. Adopted in substance. Not supported by direct evidence. Addressed. Unnecessary. 6.-7. With exception of proposed finding #7 following the first sentence, adopted in substance. 8.-14. Addressed. COPIES FURNISHED: Leslie Holland, Esq. 208 West Pensacola St. Tallahassee, FL 32301 Stanley M. Danek, Esq. Department of Administration 440 Carlton Building Tallahassee, FL 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esq. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 =================================================================
