The Issue The issues in the case are whether the Respondent violated Florida Administrative Code Rule 11B-27.005(3)(b), and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent held Correctional Certificate number 44905. On June 29, 2005, the Respondent signed a Stipulation and Settlement Agreement (Agreement) related to an Administrative Complaint filed by the Petitioner in a previous disciplinary proceeding against the Respondent (Criminal Justice Standards and Training Commission Case Nos. 20073 and 20242). The Respondent was represented by legal counsel during the 2005 proceeding. The Agreement imposed a one-year probationary period commencing 15 days from the entry of a final order. The Agreement was approved and adopted by the Petitioner as stated in a Final Order dated November 21, 2005.1 The Respondent's probationary period commenced on December 6, 2005, and ended one year later. Among the conditions set forth in the Agreement was the following requirement set forth at paragraph 4: As a condition of probation, the Respondent shall provide staff with proof of successful completion of a Commission-approved ethics training course. The Respondent failed to submit any proof that she had successfully completed a Commission-approved ethics training course by the expiration of the probationary period. On December 6, 2006, a staff specialist assigned to monitor the Respondent's compliance with the requirements of probation sent a letter by regular U.S. Mail to the Respondent's last known address (Jonquil Court in Naples, Florida), reiterating the requirement to submit the information related to completion of the approved ethics training course. The staff specialist received no response to the letter. The staff specialist then accessed state driver license records to ascertain whether the Respondent's address had changed and observed that the Respondent had a new address. The staff specialist sent a second letter to the Respondent about a month after the first, this time by certified mail to the address on the driver license records (12th Street Northeast, in Naples, Florida). The certified letter was returned on February 23, 2007, as unclaimed. Postal service documentation indicated that three unsuccessful attempts were made to deliver the letter. Based on the apparent failure to comply with the ethics training course requirement, the Petitioner instituted a disciplinary proceeding against the Respondent. A notice of the probable case hearing scheduled for June 12, 2006, was sent by regular mail to the Respondent at the same address to which the certified letter had been sent. The Respondent received the correspondence related to the probable cause hearing and contacted the Petitioner. The Respondent failed to supply proof of successful completion of a Commission-approved ethics training course prior to the June 12, 2007, probable case hearing, and the Administrative Complaint at issue to this proceeding was entered. In response to the Administrative Complaint, the Respondent submitted a letter dated August 30, 2007, which stated as follows: To Whom it [sic] May Concern: Diana Hall completed PHI-3301 Philosophy at Hodges University as part of her associate degree. The associate degree she completed gave her the choice between Ethics and Philosophy. Philosophy and Ethics are both humanities classes. Please allow the substitution of Philosophy for the required Ethics class based on the category of both classes being a humanity requirement. Thank you. Sincerely, [Signature] Kimberly Morehouse Registrar Hodges University The letter does not identify when the Philosophy course was taken. At the hearing, the Respondent testified that she took the course during the winter of 2006. A grade report indicated that the course was taken in the fall of 2005, and the Respondent also acknowledged that the course could have been taken in 2005. The Respondent graduated from Hodges University with an associate degree in Nursing/Medical Assistant on June 10, 2007. She completed the requirements for the degree in December 2006. The grade report indicates that in addition to the Philosophy course, the Respondent took a course in Medical Terminology and a course in Medical Office Procedures during the same term. The evidence establishes that the Respondent has failed to comply with the probationary condition requiring submission of proof that she completed an ethics training course approved by the Petitioner. There was no credible evidence that the Respondent made any attempt to verify whether the Philosophy course would comply with the probationary requirement that an ethics training course be successfully completed prior to taking the course. The Respondent testified that she provided the information related to the Philosophy course to her legal counsel, but there was no evidence that the Respondent made any attempt to ascertain whether the course had been accepted by the Petitioner as meeting the probationary condition. There was no credible evidence that the Philosophy course completed by the Respondent specifically addressed any ethical issues specifically related to law enforcement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order revoking the Respondent's correctional certificate. DONE AND ENTERED this 15th day of November, 2007, 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 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 November, 2007.
The Issue Whether Respondent, a certified law enforcement officer, failed to maintain good moral character by unlawfully acquiring or obtaining, or attempting to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge on or about July 16, 1999; by unlawfully withholding information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance on or between April 1, 1999, and August 5, 1999; by corruptly using or attempting to use his official position as a law enforcement officer in such a manner as to secure a special privilege for himself or others, to wit: prepared a fictitious Offense/Incident Report as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Tad K. Moody, is a certified law enforcement officer in the State of Florida. He was issued Law Enforcement Certificate No. 160029 on February 11, 1996. Respondent was employed by the City of Tampa Police Department as a police officer during the period February 11, 1996, through May 19, 2000. In August of 1998, Respondent received an on-duty injury and was prescribed pain medications as a result. Respondent signed a contract with Dr. Greenberger stating that he would only receive controlled substances from Dr. Greenberger. Respondent went to several different doctors after August 1998 and received prescription pain medications from all of them. Respondent never advised his treating physicians that he was receiving Hydrocodone or other pain medication from each of his treating physicians. Respondent did not inform any of the physicians that he was receiving prescription pain medications from any of the other physicians. On or about July 16, 1999, Respondent reported to his treating physician’s office that his vehicle was stolen with his medication in it. Dr. Batas required substantiation of the theft in the form of an auto theft report prior to issuing additional medication. On or about July 16, 1999, Respondent prepared a false Tampa Police Department Offense/Incident Report, reporting that his vehicle containing medications had been stolen. He submitted it to Dr. Batas' office in order to receive additional medication. On August 4, 1999, Respondent presented a prescription for 90 Vicoprofen to the Eckerd Drug Store pharmacy at 1904 West Lumsden in Brandon, Florida. Dr. Steven J. Tresser, M.D., had written Respondent a prescription on August 4, 1999, for 40, not 90, Vicoprofen. The Eckerd Drug Store personnel identified Respondent as the individual who submitted the altered prescription for Vicoprofen or Hydrocodone. Respondent admitted to Detective Lusczynski, during an interview, that he had an addiction problem due to the back pain he suffered as a result of the injury he received in 1998. In late 1999, Respondent was charged with obtaining a controlled substance by fraud (2 counts) and obtaining drugs from a physician by withholding information. On or about July 24, 2000, Respondent entered into a Drug Court Agreement for 18 months' probation with the Thirteenth Judicial Circuit's State Attorney's Office. As part of the agreement, Respondent was required to successfully complete the Drug Court Program, including evaluation; counseling; random urinalysis; and pay $372 court costs, plus $40 a month toward supervision. Respondent's drug case was dismissed on March 14, 2002, based on his successful completion of the Drug Court Program. The evidence is clear and convincing that Respondent unlawfully acquired possession of a controlled substance by misrepresentation on or about July 16, 1999. The evidence is clear and convincing that Respondent unlawfully withheld information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance during the relevant time period. The evidence is clear and convincing that Respondent corruptly used, or attempted to use, his official position as a law enforcement officer in such a manner as to secure a special privilege for himself by preparing a fictitious Offense/Incident Report on or about July 16, 1999.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (2000). Respondent's certification be revoked. DONE AND ENTERED this 20th day of February, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 20th day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Tad K. Moody 10124 Woodberry Road Tampa, Florida 33619 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner should receive credit for his answers to certain examination questions on the State Officer Certification Examination ("SOCE") administered November 11, 2004.
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: The Commission is the state agency charged with the responsibility for administering officer certification examinations and for establishing "standards for acceptable performance on each officer certification examination." § 943.1397(1), Fla. Stat. (2004). The SOCE is a multiple-choice examination, and there are four answer choices for each question. Mr. Page was a certified police officer in New Jersey for approximately three and one-half years before moving to Florida. Pursuant to Section 943.13(9), Florida Statutes (2004), Mr. Page was not required to attend a full six-months' basic recruit training program because of his background in law enforcement. Mr. Page did, however, attend a two-week, 80-hour state-certified training program in preparation for taking the SOCE, and he was provided a loose-leaf notebook containing written course materials. The course materials reflect the Commission's curriculum, and these materials are provided to the training institution, which is responsible for copying the materials and providing them to the students. According to the Commission, the correct answer to question 47 is "C"; Mr. Page chose answer "A." Question 47 describes the statutory elements of a crime, and the examination candidate must choose the answer that identifies the crime fitting the statutory elements set forth in the body of the question. Question 47 is clear and unambiguous; the question is statistically valid and classified as a moderately easy question; the correct answer was included among the answer choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 55 is "D"; Mr. Page chose answer "A." Question 55 describes a scenario, and the answer choices set forth various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the appropriate action. Question 55 is clear and unambiguous; the question is statistically valid and classified as a moderately difficult question; the correct answer was included among the answer choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 63 is "D"; Mr. Page chose answer "A." Question 63 describes the actions of a person, and the answer choices set forth conclusions a law enforcement officer could draw from these actions. The examination candidate is asked to choose the appropriate conclusion. Question 63 is clear and unambiguous; the question is statistically valid and classified as a difficult question3; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 159 is "B"; Mr. Page chose answer "A." Question 159 requires the examination candidate to fill in the blank in the body of the question. The examination candidate must choose the answer that accurately completes the statement contained in the body of the question. Question 159 is clear and unambiguous; the question is statistically valid and classified as a moderately easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 195 is "A"; Mr. Page chose answer "B." Question 195 describes an activity in which a law enforcement officer might engage, and the examination candidate is asked to choose the answer that best describes the consequences of the officer's engaging in such an activity. Question 195 is clear and unambiguous; the question is statistically valid and classified as an easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 248 is "B"; Mr. Page chose answer "C." Question 248 describes a scenario, and the answer choices set forth various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the answer describing the appropriate action. Question 248 is clear and unambiguous; the question is statistically valid and is classified as an easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 251 is "C"; Mr. Page chose answer "A." Question 251 describes a scenario, and the answer choices provide various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the appropriate action. Question 251 is clear and unambiguous; the question is statistically valid and is classified as a moderately easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. The specific curriculum materials referred to by the Commission as supporting what it deemed to be the correct answers to questions numbered 47, 63, 159, and 195, were not included in the loose-leaf notebook provided to Mr. Page as part of the 80-hour training program in which he participated prior to taking the SOCE.4 These omissions are not sufficient of themselves, however, to justify giving Mr. Page credit for his answers to these four questions. Because Mr. Page failed to establish either that the questions were ambiguous or that the answers he gave on the examination questions were correct, he is not entitled to credit for his answers to these questions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order dismissing the challenge of Jason R. Page to the scoring of his answers on the SOCE administered on November 11, 2004. DONE AND ENTERED this 28th day of June, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 28th day of June, 2005.
The Issue Whether Respondent, Cheraine D. Nelson (Respondent), failed to maintain good moral character required of correctional officers by engaging in the acts alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Background On September 15, 2015, Respondent was certified by the State of Florida, Criminal Justice Standards and Training Commission, as a correctional officer. Respondent’s Correction Certification number is 327096. Respondent is the state agency responsible for enforcing standards applicable to correctional officer certificates, pursuant to section 943.12 and chapter 120, Florida Statutes. The incident which provides the basis for the instant action occurred on February 10, 2017. At the time of the incident, Respondent was employed by Moore Haven Correctional Facility. Respondent is a military veteran, having served eight years of active duty with the United States Army. Respondent exited the military soon after the birth of her son, C.P., who is her only child. Respondent was 34 years of age and C.P. was seven years of age at the time of “the incident” that provides the basis for the instant action. Respondent is the custodial parent of C.P., and, at all times material to the instant matter, raised C.P. with minimal assistance from C.P.’s biological father. Respondent describes herself as a single parent. At all times material hereto, Respondent held Associate of Arts degrees in criminal justice and radiological science. Respondent testified that she is four classes shy of completing the requirements necessary to obtain a bachelor’s degree in criminal justice. Respondent, when the incident involving C.P. occurred, was employed as a correctional officer at the Moore Haven Correctional facility. Respondent was assigned to the morning shift, which began at 7:00 a.m. and ended at 7:00 p.m. Respondent would occasionally work mandatory overtime, which required her to extend her regular 12-hour shift by four hours. Respondent’s travel time to and from the correctional facility added an additional three hours to her work day. The Incident During the course of the 2016-2017 school year, C.P. regularly misbehaved while at school, and as a consequence thereof, Respondent had numerous discussions with school officials regarding appropriate strategies for minimizing the disruption to the learning environment resulting from C.P.’s behavior. It is fair to say that Respondent’s relationship with school officials was, at best, acrimonious, and that Respondent and C.P.’s teachers were frustrated with C.P.’s classroom behavior. On the morning of February 10, 2017, Respondent, prior to leaving for work, found in C.P.’s backpack a letter from his school advising that C.P. was again misbehaving in the classroom. It is inferred from the evidence that Respondent had no knowledge of the letter prior to discovering the same in C.P.’s backpack. According to Respondent, after reading the letter, she became upset at her son for again “getting in trouble at school,” and she “let [her] emotions take over.” While in this state of heightened emotional agitation, Respondent grabbed a belt and struck C.P. several times about his body. Respondent admits that on the morning of February 10, 2017, she struck C.P. five to seven times with a belt, and that her actions were excessive. Soon after striking C.P. with the belt, Respondent sent C.P. to school where officials noticed bruising over several areas of his body. Per protocol, school officials contacted child protective services, who in turn interviewed C.P. and photographed the bruises on his body. The photographs of C.P.’s injuries were received into evidence as Petitioner’s composite Exhibit 1, photographs 1 through 7. Photograph 1 depicts bruises to the left side of C.P.’s face and head.2/ Photographs 2 and 3 depict bruises to the inside forearm area of C.P.’s right arm. Photograph 4 shows, from a different angle, the bruises depicted in photograph 1. Photograph 5 depicts bruises to the inside area of C.P.’s right leg. Photograph 6 does not clearly identify the body part depicted, but the photograph does clearly depict the presence of a bruise. Photograph 7 depicts bruises to the lower thigh and upper calf area of the backside of C.P.’s right leg. The photographs depicting C.P.’s bruises capture all physical injuries sustained by C.P. as a result of Respondent’s actions on February 10, 2017. Respondent admits that the photographs accurately depict the injuries to C.P., which resulted from her striking C.P. with a belt. C.P. is a child of light complexion, and the bruises to his body, as reflected in the photographs, were, in most instances, easily discernable. Based on her conduct with respect to C.P., Respondent, on or about February 10, 2017, was arrested and charged with “child abuse without great harm” in violation of section 827.03, Florida Statutes (2016). Section 827.03(2)(c) provides that a person commits a third-degree felony when “knowingly or willfully abuse[ing] a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child.” It is undisputed that Respondent entered into, and successfully completed, a pretrial diversion program in lieu of prosecution. The Administrative Complaint alleges that “[o]n or about February 10, 2017, the Respondent, Cheraine D. Nelson, did unlawfully and intentionally inflict physical or mental injury upon C.P., a child under the age of eighteen, without causing great bodily harm, permanent disability, or permanent disgifurement [sic], to wit: struck the victim on his arms, legs, face, and head.” The evidence establishes that Respondent unlawfully and intentionally inflicted physical injury upon C.P. as alleged in paragraph 2 of the Administrative Complaint.3/ The Aftermath In reviewing the record, it reasonably appears as though Respondent was released from jail a few hours after she was arrested. As a consequence of Respondent’s actions, C.P. was sheltered with the Department of Children and Families (DCF), which, in turn, placed the child with a friend of Respondent’s. The day after Respondent was released from jail, it is undisputed that she enrolled in, and eventually completed, an on- line parenting class. In this regard, Respondent credibly testified as follows: A: Yes. Before I even –- when I was released from the jail the next – the day after, I took it upon myself to enroll into classes. Q: What kind of classes? A: I enrolled into a parenting class, because I felt like what I did was wrong and I knew like that something needed to be done to me as a parent. I’ve never been a parent, and at the time I think my son was like eight. And I called my mom and she’s like, “you need to figure this out, because you’ve been doing this by yourself.” So I went online and I just started looking at –- Googling things parents do to help them parent as single mothers. So I went to the David Lawrence Center and I enrolled into a parenting class. And I did that, I completed the class. As a result of her actions towards C.P., Respondent was required by DCF to enroll in an approved parenting and anger management class. Respondent successfully completed both classes. Respondent was also ordered to undergo psychological testing, which she did. C.P. was sheltered by DCF for a period of about two months. The undisputed evidence establishes that DCF allowed Respondent to have unsupervised visits with C.P. after one month, and returned C.P. to Respondent after two months. In explaining how this experience impacted her as a parent, Respondent credibly testified as follows: I did everything that I felt that I needed to do to fix my -- the situation I’m in. I have grown a lot from that. And that this whole situation has made me just a better person, as a mom, as a woman. And I look at things differently now when –- when it comes to my child, as far as when he –- if he’s having behavior issues or any type of issues, whether at home or at school, so I changed a lot of things. I don’t let the little things get me upset. I talk to my son a lot more, now that he’s older, and I just –- we do punishment differently. And I take a lot of things away from him rather than do what I did before.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Department of Law Enforcement finding that Respondent failed to maintain good moral character as required by law, and prospectively suspending Respondent’s correctional officer certification for a period of seven months. DONE AND ENTERED this 23rd day of May, 2019, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 23rd day of May, 2019.
The Issue The issues to be resolved in this proceeding are as follows: Whether Respondent had an instructional employment contract that required cause for termination. Alternatively, if Respondent had a contract requiring cause for termination, whether there is cause for termination of that contract within the meaning of Section 231.36, Florida Statues, and Rule 6B-1.001 and 6B-1.006, Florida Administrative Code.
Findings Of Fact Petitioner, the Escambia County School Board (Board), is a unit of local government charged with the operation of the public school system in Escambia County, Florida, including the employment of teachers under certain contract conditions. Contracts and terms of service for regular members of the instructional staff are required to be in writing. See Section 230.23(5)(d), Florida Statutes. The Escambia County School Board also provides instructional services to juveniles under detention at the Juvenile Justice Center. Respondent was employed by the Board as a teacher during the 1994-1995 school year. During the 1994-1995 school year, Respondent was assigned to teach at the Juvenile Detention Center in Pensacola, Florida. Student S.C. met Respondent at the Pensacola Detention Center of the Juvenile Justice Center while he was an instructor at the Center. After she left the Pensacola Detention Center, she moved to North Carolina to live with her step-mother and father. While there, she wrote to Respondent; and sometime in early September she allegedly received correspondence from Respondent, including one letter dated September 5, 1995. The letter S.C. sent and the letter of September 5, 1995, do not appear to be discussing the same things. Respondent turned the letter S.C. wrote him over to his supervisor at school when he received it. Respondent denies writing or sending the letter of September 5, 1995 addressed to S.C. The September 5 letter's envelope had a return address which belonged to Respondent, and was signed "Ri" or "Rc". However, S.C. was unable to testify as to whom the letter actually came from. She did not recognize the handwriting as that of Respondent. More importantly, the Petitioner attempted to have the handwriting analyzed to determine whether the Respondent wrote the letter. The handwriting analysis determined that "the evidence falls short of that necessary to support a conclusive opinion" that Respondent wrote the September 5, 1995 letter. The Respondent also has been accused of sending other letters to people, including a threatening letter to the President of the United States, which he denied having done. All these letters came from a Rick Sapp in Pensacola but were not from the Respondent. So, too, during the pendency of these proceedings, an accusation was made that the Respondent had sent a letter to another student at the detention center. The Respondent did not send such a letter. The letter alleged to have been sent by the Respondent other than being signed "Rick" cannot be established to have been from the Respondent since it omits his phone number, address, and has a different return address and name on the envelope and was mailed from Panama City. Student S.C. ran away from North Carolina sometime in September 1995. She was subsequently detained at the Panama City Detention Center. S.C. testified that Respondent called her on the telephone, gaining access by identifying himself as a counsellor. Respondent allegedly told her that he was in love with her and wanted her to call him. Respondent allegedly gave her his telephone number. However, when she reported the call to the staff, other than transferring a "call from a counsellor," she did not say the call was from Respondent but someone sounding like Respondent. S.C. provided a telephone number to the detention worker who called it and asked to speak to Respondent. The party answering the phone said that Respondent was not there and identified himself as Respondent's roommate. S.C. testified she recognized the voice as that of Respondent which recognition is not credible. The Panama City Detention Center maintains a log of phone calls and activities occurring at the facility. The log indicates that on November 19, 1995, the controller received a call for S.C. The controller reported the caller identified himself as the counsellor for S.C. After receiving the call, student S.C. reported to the supervisor that the caller was not her counsellor, but was someone sounding like Respondent. S.C. reported Respondent had left a telephone number which in fact is one of Respondent's telephone numbers. Gene Rochelle called that number on the speaker phone asking for Respondent. The party answering the phone stated he was Respondent's roommate and that Respondent was not at home. Student S.C.'s report and the subsequent telephone call to the same number were noted in the log of the Juvenile Justice Center. S.C. also claimed to have received a letter from Respondent which she turned in to the Panama City Detention Center. The letter, although signed "Rick," has a return address showing the name "Hess" and the address, 1723 17th Avenue, Pensacola, Florida 32501 (not Respondent's) and appears to have been postmarked in Panama City, Florida. The letter also appears to have different handwriting than the September 5, 1996 letter. Although the letter asks S.C. to call or write, it omits the Respondent's telephone number or address and suggests only that a call be made to 411 in Pensacola to find it. Respondent denies calling or writing S.C. while she was at the Panama City Detention Center and was surprised that she had been there. On the whole, while it may be true that a number of letters were sent, the evidence falls short of disclosing that Respondent sent any of the letters, including the letter of September 5, 1995. The evidence regarding any of these contacts is at best inconclusive. Therefore the charges against Respondent involving S.C. should be dismissed. The District also alleges Respondent maintained an inappropriate relationship with a male student from the detention center, T.R. The original allegations were made by the older brother and lawful custodian of T.R., Michael Jarrell. Although the guardian of the student, T.R., did make an initial statement to Dr. Garber of the School Board accusing the Respondent of wrongdoing, shortly thereafter, upon learning the identity of the person earlier believed to have been the Respondent, T.R.'s guardian, Michael Jarrell, made a second statement clarifying that the person who was identified as Respondent was not the man who had been improperly interacting with his minor brother. Given these facts, the Petitioner has failed to produce any substantial evidence to demonstrate that Respondent engaged in an inappropriate relationship with T.R. Therefore the charge of misconduct as it relates to T.R. should be dismissed. Prior to the beginning of the new school year Respondent's 1994-1995 employment contract had expired. On August 14, 1995, William McArthur, Director of Human Resources for the Escambia County School District, signed, at the direction of Superintendent W. L. Maloy, an "Instructional/Administrative Appointment Request" form appointing Respondent to the position of teacher for the 1995-1996 school year. The practice of the Superintendent's office is to fill out the appointment request form on people whom the Superintendent intends to recommend for an annual contract to the Board. The form is placed in the teacher's personnel file and then the Superintendent formally recommends the employment of that person to the School Board by submitting the request form to the Board. The recommendation is required by statute to be in written form. See Section 230.23, Florida Statutes. The Superintendent of Escambia County Schools, among other things, is authorized by statute to recommend to the School Board those employees he determines should receive instructional contracts. See Section 230.33(7), Florida Statutes. The School Board, once recommendation is made by the Superintendent for employment of an instructor pursuant to contract, must act on that recommendation rejecting the Superintendent's recommendations only for good cause. Section 230.23(5), Florida Statutes. The Superintendent never submitted the request form nor recommended Respondent for employment to the School Board. The Superintendent of Escambia County Schools directed William McArthur, Director of Human Resources, to contact Respondent and tell him to return to work as an instructor at the Juvenile Detention Center in Pensacola, Florida. Mr. McArthur contacted Respondent who then reported to the Juvenile Detention Center for instructional duties around August 14, 1995. Since the Superintendent had not recommended Respondent to the Board, the Board never approved a written annual contract for Respondent. Therefore, Respondent could only be working under an oral or implied contract on a day to day basis with no specified term of employment. Approximately one month after Respondent went to work at the Juvenile Detention Center, Dr. Garber, Assistant Superintendent for Human Resources, was notified by a representative of the State Attorney's Office at the Juvenile Detention Center of a complaint regarding Respondent from a parent relative to his alleged communications with S.C., a female juvenile that had been detained at the center. The representative of the Office of the State Attorney at the Detention Center expressed concern about letters Respondent had allegedly sent to S.C. and wanted him removed from that Detention Center. The School District subsequently received copies of the letters Respondent was alleged to have written to the female student formerly under his instruction at the detention center. Because of the complaint and letters, Respondent was placed on administrative leave with pay while the District investigated the allegations. At the conclusion of the investigation the Respondent was notified by letter dated October 16, 1995, that the Superintendent would not recommend to the Board the award of an annual instructional contract. On October 16, 1995, Respondent was presented with a letter notifying him that he would not be recommended for any further employment with the school district. The October 16, 1995, letter was the first written notification that his employment would terminate. Respondent stopped working for the School Board on October 16, 1995.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered by the Petitioner, Escambia County School Board dismissing the charges of misconduct but upholding the termination of the Respondent, Ricky Sapp, on October 16, 1995 since he was not recommended for annual contact status and did not fall under the protections of Chapter 231, Florida Statutes. DONE and ENTERED this 28th day of August, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1996. APPENDIX The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Petitioner's proposed findings of fact are adopted. The facts contained in paragraphs 13 through 18 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 through 22, 27, 28 and 30 of Respondent's proposed findings of fact are adopted. The facts contained in paragraphs 13, 23 through 26, 29 and 31 of Respondent's proposed findings of fact are subordinate. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Joseph L. Hammons, Esquire Hammons and Whittaker, P.A. 17 Cervantes Street Pensacola, Florida 32501-3125 William Maloy, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact After surgery on his shoulder, petitioner found it painful to lift sacks of fertilizer and the like at the nursery where he was employed, so he left his job and sought help at respondent's Orlando office. Albert Michael Tester, a counselor in respondent's employ, caused petitioner's shoulder to be evaluated by a physician and arranged for vocational testing. Presented with various vocational options, petitioner chose a two year paralegal training program at Valencia Community College. Beginning April 26, 1977, respondent paid for petitioner's books and tuition and paid petitioner $10.00 weekly toward transportation expenses incurred in getting to and from school. Petitioner's counselor also found a job for petitioner, as a child care worker at the Orange Regional Juvenile Detention Center. Petitioner testified that the $10.00 weekly transportation "maintenance" he had been receiving ceased when he began work. Petitioner held down the job and did well in school until he left both in January of 1978. Petitioner had consulted two physicians before he left off working and quit school in January of 1978. Petitioner testified that one, Dr. Samano, told him he should cut something out; but that the other, Dr., Tew, told him he need not cut out anything. At the time of the hearing, petitioner had not been employed since January 23, 1978. After dropping out of the paralegal program, petitioner suggested to his counselor that respondent set him up in a woodworking shop as a means of vocational rehabilitation. Mr. Tester advised petitioner that, in all likelihood, this request would not be granted. In mid-February, petitioner and a legal services representative met with Charles May, Mr. Tester and other employees of respondent. When informed that the rules did not seem to authorize setting petitioner up in business, petitioner's representative asked that a final determination be postponed pending a medical evaluation of petitioner. Respondent agreed to order a series of diagnostic tests to evaluate petitioner's psychiatric condition and to access the effects of petitioner's essential hypertension. Respondent had been advised as early as August of 1977, that petitioner's shoulder "should not be disabling to any degree or restrict him from activity of choice." Respondent's exhibit No. 7. Petitioner's counselor arranged for petitioner to receive four weeks' "diagnostic maintenance" and suggested he use his spare time to gather information about establishing a woodworking business. By letter dated May 8, 1978, respondent formally notified petitioner that it was "unable to meet [his] request to assist [him] in self- employment." Respondent's exhibit No. 5. On or about June 16, 1978, respondent sponsored petitioner in the photography program in which he was involved at the time of the hearing. This sponsorship has included maintenance payments. At no time before filing the petition in the present case did petitioner request any maintenance benefits. Respondent's "Rehabilitation Services Manual" provides: "Maintenance may only be provided when supportive of other vocational rehabilitation services." Respondent's exhibit No. 9. Respondent's "Vocational Rehabilitation Counselor Manual" provides: "Maintenance will be provided a client only if it is necessary for him to derive full benefits from other services being provided." Respondent's exhibit No. 8. Neither manual has been promulgated as a rule.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's request for back maintenance payments. DONE and ENTERED this 27th day of March, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William R. Barker, Esquire 128 West Central Boulevard Orlando, Florida 32802 Douglas E. Whitney, Esquire Room 912, 400 West Robinson Orlando, Florida 32801
The Issue Whether the Petitioner, Kutina McLeod, should have received credit for answers provided on the examination for the State Officers Certification Examination for Correctional Officers (the exam).
Findings Of Fact The Petitioner is an applicant for certification as a correctional officer. The Respondent is the state agency charged with the responsibility of certifying correctional officers. As such, it must administer the examinations used to assure competency for certification. The examination at issue in this proceeding is known as the State Officers Certification Examination for Correctional Officers. It is a multiple-choice test that is scored by marking the best of the proposed answers. Only one of the proposed answers is deemed correct. As to this Petitioner, four questions were challenged that the Petitioner did not receive credit for on the exam. As to each challenged question, the Petitioner felt her answer should have received credit. All of the questions challenged by the Petitioner were taken almost verbatim from the exam's course materials. The Petitioner attended the course and was instructed as to each of the challenged matters. The instruction did not deviate from the language that later appeared on the exam. None of the challenged questions proved to be statistically invalid by virtue of the number of wrong answers provided to the question. In fact, as to one of the Petitioner's challenged questions, 88 percent of the persons tested responded accurately. Only 5 percent of the persons tested gave the answer that the Petitioner provided. The Petitioner's confusion as to the answers she provided was probably influenced by her experiences as an officer within a jail setting. The Petitioner provided answers based on the totality of her experience and not just the material covered in the instructional course. None of the Petitioner's answers, however, were more correct than those set forth by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order dismissing the Petitioner's challenge to the exam. DONE AND ENTERED this 30th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 30th day of October, 2002. COPIES FURNISHED: Grace A. Jaye, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Kutina McLeod 309 Julia Street Key West, Florida 33040 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether the evaluators of the subject request for proposals (RFP) were qualified under the applicable law and RFP criteria to evaluate the proposals.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. On November 23, 2009, the Department issued RFP #P2062 (the RFP), requesting proposals from prospective providers to operate 16 IDDS programs in 16 different judicial circuits in Florida: Circuits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, 17, 18, and 20. The RFP's Statement of Services provided that proposers would be responsible for designing, implementing, and operating an IDDS program in each of the 16 listed judicial circuits. The RFP described an IDDS program as a diversion program targeting a specific population of juvenile offenders determined to be at risk of becoming serious and chronic offenders. The goal of IDDS is to facilitate a positive change in youth behavior and criminal thinking and provide the youth with the tools necessary to avoid recidivism or future criminal involvement. Prospective providers were instructed to propose services that included specified minimum components, including scheduling, supervision, and monitoring of compliance with court-ordered sanctions, such as community service, curfew, and restitution; random urinalysis monitoring; provision of counseling, anger management education, educational training, and vocation services to age-appropriate youth; and substance abuse prevention and treatment services. The RFP provided that proposers were to submit a single response to address one or more circuits in which they intended to propose operating an IDDS program. However, if a prospective provider proposed to operate IDDS programs in more than one circuit, its response had to include separate sections on staffing, prices, and budgets for each circuit/program proposed. The deadline to file challenges to the specifications of the RFP was within 72 hours of its posting. No challenges to the RFP's specifications were filed within the required 72-hour window. Petitioner, Intervenor, and two other proposers' timely submitted proposals to operate an IDDS program in Circuit 17, in response to the RFP. Following its evaluation of proposals, on March 2, 2009, Respondent posted its notice of agency action, indicating its intent to award the contract in Circuit 17 to Intervenor, whose proposal received the highest score of 1549.78 points. Juvenile Services Program, Inc., was ranked second, with 1454.01 points. Petitioner was ranked third, with 1327.57 points. Lutheran Services of Florida, Inc., was ranked fourth, with 986.43 points. Petitioner's timely challenge to Respondent's intended agency action in Circuit 17 is limited to the issue of whether the evaluators were qualified under the applicable law and RFP criteria to evaluate the proposals. The standard established by "the applicable law," section 287.057(17), Florida Statutes, is that the agency must appoint "[a]t least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought." The RFP criteria contain the following in the RFP Addendum, in the form of a question from a prospective provider and Respondent's answer: Q: Who will be evaluating the proposals[?] Will they be fully knowledgeable about IDDS programs and how they are run[?] A: The proposal will be evaluated by a team of DJJ staff who are fully knowledgeable about IDDS programs and how they are run. These people are chosen for their particular skills, knowledge and experience. They have also been chosen because of the Department's confidence in their ability to score proposals both independently and fairly. Amy Johnson, Respondent's chief of contracts, has the responsibility for supervising the Department's contracting and procurement process and ensuring compliance with section 287.057. The Department goes beyond the statutory requirements by specifically training potential evaluators in the competitive procurement process with a focus on the process itself, including evaluation and scoring of proposals. Ms. Johnson has in the past conducted this training and remains responsible for ensuring that evaluators are trained. A number of years ago, Ms. Johnson developed an internal means of identifying potential evaluators who were considered qualified to evaluate specific program areas and services that might be the subject of competitive procurements. This process involved identification by persons in charge of the various program areas of individuals they believed had sufficient experience and knowledge to evaluate certain types of programs and services. The program area representatives would submit names of individuals considered qualified to evaluate the various programs and services within their program area, along with a brief biographical statement describing the individuals' background and experience. Added to this substantive or programmatic categorization of potential evaluators was the qualification of having been trained in the competitive procurement process. Ms. Johnson developed a spreadsheet to maintain the results of the two-step qualification process. The spreadsheet lists individuals with a summary of the information obtained from the program area representatives, including the categorization of the types of programs and services the individuals are considered qualified to evaluate based on their background and experience. The spreadsheet also identifies the most recent date on which each individual completed training in the competitive procurement process. The spreadsheet document has been maintained over time to keep the running results of the pool of evaluators identified through the two-step qualification process. Elaine Atwood is the Department's contract administrator. She has assumed responsibility for conducting the training sessions for potential evaluators in the competitive procurement process, as well as the responsibility for maintaining the spreadsheet of the evaluator pool. Ms. Atwood served as the procurement officer for RFP #P2062. Her duties included working with the program area to put the RFP together, posting the RFP on the Department's website, receiving the proposals, and conducting all other activities that were part of the procurement process. The "program area" for RFP #P2062 is the Office of Probation and Community Intervention, and Paul Hatcher was the designated program area representative. IDDSs are one category of services within the Probation and Community Intervention program area. Ms. Atwood worked with Mr. Hatcher to address programmatic issues for this RFP. Mr. Hatcher identifies individuals who are considered qualified to conduct evaluations for RFPs involving programs or services falling under the umbrella of his program area. For the current pool of potential evaluators, Mr. Hatcher submitted names of individuals who were substantively qualified for programs and services falling under his program area and who could be placed on the evaluator pool spreadsheet for those categories of programs and services. However, Mr. Hatcher does not select the individual evaluators for a particular RFP. That is because selection of evaluators for a particular RFP is, by design, a random process, using the information about evaluator qualifications that is maintained on the spreadsheet.4/ Responses to RFP #P2062 were submitted in three volumes: Volume One was the "technical" proposal setting forth the prospective provider's organizational structure and management capability, the proposed program services, and proposed staffing; Volume Two was the "financial" proposal, including the proposed price sheet and budget and the provider's Supplier Qualifier Report prepared by Dun & Bradstreet; and Volume Three was the "past performance" section to demonstrate the provider's knowledge and experience in operating similar programs. Ms. Atwood conducted the review and scoring of the financial proposals in a fairly mechanical process of pulling out numbers from each cost proposal and, also, pulling Dun & Bradstreet numbers for the prospective providers and putting them on a spreadsheet. No evidence was presented that Ms. Atwood was not sufficiently qualified to conduct this review. Mr. Hatcher conducted the evaluation of prospective providers' past performance. No evidence was presented that Mr. Hatcher was not sufficiently qualified to conduct this review. Three evaluators were randomly selected from the pool of potential evaluators designated for IDDS reviews to evaluate and score the "technical" component of responses to RFP #P2062: Karen McNeal, Jeffrey Balliet, and Cheryl Surls. Of these three evaluators, Petitioner presented the testimony of only the first two, and Petitioner directed its qualification challenge to only one, Ms. McNeal. Ms. McNeal is employed in the Department's Probation program area. She is responsible for the oversight of the Duval Assessment Center that screens youth to determine their detention or release. She has held that position since July 1, 2009. Before that position, she was detention superintendent for the St. John's Juvenile Detention Center. She has been with the Department since October 2001. Before joining the Department, Ms. McNeal was a program analyst for ten years with the Department of Health and Rehabilitative Services. Ms. McNeal went through a four-week juvenile probation officer certification course before assuming her current position in Probation. That Probation training course included a review of the various prevention programs falling under the probation program area umbrella, including IDDS. However, Ms. McNeal does not have specific programmatic experience with IDDS. Ms. McNeal had not previously served as an evaluator on an RFP, before this experience. In accordance with the Department's internal procedure, Ms. McNeal underwent training by Ms. Atwood in the competitive procurement process on November 17, 2009. Mr. Balliet, the other member of the technical component evaluation team who testified, has held the position of contract manager for the Department since 2006. Before that time, he supervised a contract management unit at the district level and, also, served as assistant chief probation officer for Circuit 5, where he monitored compliance of IDDS programs in that circuit. Mr. Balliet has undergone training in the competitive procurement process multiple times. Although Mr. Balliet has had specific experience with IDDS programs, he did not think that such specific experience was necessary to evaluate an RFP dealing with IDDS programs, if one had a background that would otherwise allow for an understanding of the process. As noted above, the third evaluator on the three-person evaluation team for the technical component was Ms. Surls, who did not testify. Petitioner did not present any evidence to establish that Ms. Surls was not qualified to serve as an evaluator. Beyond the sheer difference in name of the particular services addressed by this RFP--IDDS versus other programs and services falling under the umbrella of the Probation and Community Intervention program area, Petitioner failed to establish that the experience and training Ms. McNeal has obtained over the years and, particularly, since assuming the oversight position for Duval Assessment Center, is not appropriate or sufficient to qualify her to evaluate proposals for IDDS. Petitioner presented no evidence that the components of an IDDS program are substantively dissimilar from the components of the services and programs in which Ms. McNeal has attained direct experience and training or that staffing considerations are dissimilar. Petitioner's case began and ended with the fact that Ms. McNeal has no direct experience, specifically with IDDS programs, and that Ms. McNeal had not previously evaluated proposals submitted in response to an RFP. The record does not reveal whether there would be any other Department employees, besides Mr. Balliet, who had direct experience specifically with IDDS programs and who, also, had evaluated proposals for an RFP before. Imposing either or both of these requirements for potential evaluators could serve as an impossibly restrictive hindrance to an agency trying to follow the competitive procurement process while also carrying out the agency's functions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a final order be entered by Respondent, Department of Juvenile Justice, dismissing the Petition filed by Petitioner, Psychotherapeutic Services of Florida, Inc. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 14th day of March, 2011.
The Issue The issue is whether the Florida Department of Education (“the Department”) committed one or more unlawful employment practices against Petitioner (“Ms. Spradlin”) by discriminating against her based on race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Spradlin worked from 2006 to 2010 as a psychological specialist at a facility known as Sunland in Marianna, Florida. Ms. Spradlin is Caucasian. During a portion of the time that Ms. Spradlin was at Sunland, Tawana Gilbert worked there as a human service administrator. Ms. Gilbert is African-American. Ms. Spradlin and Ms. Gilbert did not work closely together, but they served on the same interdisciplinary team and worked with the same residents. Ms. Gilbert’s only knowledge of Ms. Spradlin was through the documentation that Ms. Spradlin submitted to the interdisciplinary team. Ms. Gilbert left Sunland in approximately November of 2009, and began working for the Department as a unit supervisor for a vocational rehabilitation services unit in Marianna, Florida. Vocational rehabilitation assists people by providing them with services that enable them to obtain and maintain gainful employment. During the time period relevant to the instant case, the Marianna unit had 10 staff members and served five counties. Of those 10 staff members, five were counselors and one was the unit supervisor. At some point after Ms. Gilbert left Sunland, Ms. Spradlin saw an advertisement for an entry level vocational rehabilitation counselor position at the Marianna unit. Ms. Spradlin applied for the position and was hired in 2010. In March or April of 2011, Ms. Gilbert invited all of her coworkers to a special event at her church. Ms. Gilbert asked her coworkers with children if their child would like to participate in a program that was to be part of the festivities. Ms. Spradlin said that her daughter was willing to participate, and Ms. Gilbert typed out the words that Ms. Spradlin’s daughter was to recite during the program. When it was time for Ms. Spradlin’s daughter to recite her part, she became nervous, and her grandmother read the part. Following this event, Ms. Spradlin asserts that Ms. Gilbert’s attitude toward her changed and that the unlawful employment practices alleged in her Charge of Discrimination began. Findings Regarding Ms. Spradlin’s Interviews for Senior Counselor Positions There were two openings for senior vocational rehabilitation counselors at the Marianna unit in October of 2012.1/ When the Department is considering applicants for a particular position, it utilizes a three-person panel to conduct interviews and score the applicants. After the interviews, the three-person panel reaches a consensus as to each applicant’s scores, and the Department uses a standardized matrix to rank each applicant. The panel for the two senior vocational rehabilitation counselor openings consisted of Allison Gill, the Department’s area supervisor; Michael Nobles, the former supervisor of the Marianna unit; and Ms. Gilbert. Ms. Gill and Mr. Nobles are Caucasian. Of the five people who interviewed for the two openings, Ramonia Robinson earned the highest score, a 72. With regard to Ms. Robinson’s qualifications, Ms. Gilbert testified as follows: Ms. Robinson, she was a current employee there. She was an entry-level counselor, had been for many, many years. She was there prior to my hiring with VR, so I was familiar with her work history. And she was very thorough, very detailed, very flexible, and very unemotionally involved with her cases. So she, in conducting her cases and case management, was awesome. And she was very knowledgeable about the questions that were being asked. She had had a long history of experience with case management, providing services to individuals with disabilities, and just adequately managing her caseload. She did very well on her interview. Ms. Spradlin received the second highest score, a 56. Keith Sutton, an outside applicant, received a score of 55. When two applicants’ scores are within one point of each other, the Department bases the ultimate hiring decision on reference checks. Ms. Gilbert contacted Mr. Sutton’s references and received positive feedback about him. As for Mr. Sutton’s qualifications, Ms. Gilbert provided the following testimony: Q: What about Mr. Sutton’s experience, resume was notable to you in the interview process? A: Well, he had his degree. It’s directly related to the field of counseling. He had a wealth of experience in the counseling field. He came to us from the Agency for Persons with Disabilities, which is Sunland, where he had a year there, and he met at least the minimum qualifications. He was very – his application was very detailed, and it identified precisely his experience based on his ability to – or his experience with providing counseling, providing services for those with disabilities. And he had a long history from where he had previously worked in the field of counseling. Q: Okay, so Mr. Sutton achieved a Master’s in Counseling in 2011, is that correct, according to his application? A: Yes. Q: And that’s directly related to the position; is that correct? A: Yes, that’s correct. Q: And he had experience as a master’s level therapist? A: Yes. Q: Is that accurate, according to the application? A: Yes. He worked for Florida Therapy as a master’s level therapist, where he was expected to provide counseling, psychotherapy to children, adults and their families, but doing so on an independent basis. That demonstrated he was very flexible, detailed oriented and [had] the ability to function independently. Because she was Ms. Spradlin’s supervisor at the time, Ms. Gilbert acted as her reference and did not recommend her for a senior counselor position. In explaining her reasoning, Ms. Gilbert testified that: Ms. Spradlin was difficult to work with and she was very negative. She had several participant complaints during the span of [] that year. In her first year coming in, she was very challenging, she did not want to accept constructive criticism from me as the unit supervisor. She did not want very – she wanted very little feedback from me based on her performance. Several participant complaints, calling me directly, contacting the ombudsman, faxing me complaints based on their interaction with Ms. Spradlin, how they felt that they were being treated unfairly, they did not agree with her tone from time to time. She was not at all culturally sensitive to some of our participants. She was insubordinate. She would – there were times she would just leave the unit because things – conditions were unfavorable to her. Ms. Gilbert submitted her recommendation to the Department’s area director, and Mr. Sutton was ultimately offered a senior counselor position. Mr. Sutton is currently the supervisor of the Marianna unit. There is no persuasive evidence that Ms. Spradlin was not promoted because of her race or any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding that Ms. Robinson and Mr. Sutton were more qualified for the openings. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of applicants for the two openings discussed above. In May of 2016, Ms. Spradlin applied for another senior counselor position in the Marianna unit. The interview panel for this opening consisted of Ms. Gilbert and two other Department employees, Evelyn Langmaid and Rebecca Stevens. Ms. Langmaid and Ms. Stevens are Caucasian. Ms. Gilbert did not supervise Ms. Langmaid or Ms. Stevens, and she did not attempt to influence their decision-making. Georgia Britt received the highest score from the interview panel and was offered the senior counselor position. Ms. Langmaid described Ms. Britt’s interview as follows: She just came in and every answer we’d or every question that we gave her she was just right on with the answers and [was] hitting the points on the – because we have sort of like a little sheet that we can look for certain points that we’re looking for answers, and she was just right on every point, and was very, very knowledgeable of what was going on. Ms. Spradlin had obtained a certified rehabilitation counseling certification in October of 2014, and Ms. Britt lacked that certification. However, Ms. Britt’s other credentials bolstered her application. For instance, she has a bachelor’s degree in elementary and special education and a master’s degree in counseling. Ms. Britt also had relevant work experience. When she applied for the senior counselor position, Ms. Britt was employed at Sunland as a behavior specialist working with adults with developmental disabilities. Ms. Britt wrote in her application that she had been able to “work with all different types of individuals at all intellectual levels” via her position at Sunland. Prior to working at Sunland, Ms. Britt had worked in a children’s psychiatric hospital in Dothan, Alabama. That position also gave her an opportunity to work with individuals from diverse backgrounds. Ms. Britt wrote on her application that her position at the hospital required her to engage in some counseling and that she had to use counseling skills in order to obtain psychiatric histories and other information. Ms. Britt’s interview bolstered her application. According to Ms. Langmaid, Ms. Britt “blew it out of the water. She was fantastic on the interview.” Ms. Gilbert was also very complimentary of Ms. Britt’s interview: Q: What about Ms. Britt stood out to you and the panel? A: Her ability to respond to the questions as they were being asked. At that time, we were transitioning to where we were asking more emotional [intelligence] questions where – to identify a counselor’s ability to emotionally manage cases and refrain from being emotionally involved with that case. So she answered the questions. It’s on ones that can give a thorough answer based on the circumstance that occurred, the actions that took place and the results of the question. Q: Okay. A: She was really, really thorough with her answers. There is no persuasive evidence that Ms. Spradlin did not receive the promotion because of her race or due to any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding Ms. Britt was more qualified for the opening. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of Ms. Britt. Findings Regarding Ms. Spradlin’s Hostile Work Environment Allegations Ms. Spradlin made several allegations during the final hearing that she was subjected to a hostile work environment during her time with the Marianna unit.2/ For example, in October of 2010, Ms. Spradlin exposed at least part of her posterior to a coworker in the Marianna unit in order to demonstrate the severity of a sunburn. Ms. Gilbert did not learn of that incident until another incident was reported to her on May 2, 2011. That day, Ms. Spradlin was seated in an office within the Marianna unit when a female coworker got very close to Ms. Spradlin and “twerked” in her face. Ms. Spradlin states that she placed her hands on the coworkers posterior and playfully pushed her away. However, the coworker reported to Ms. Gilbert that Ms. Spradlin had pinched her posterior. Upon learning of both incidents, Ms. Gilbert discussed them with Ms. Spradlin and conferred with the Department’s labor relations unit on formulating a proper course of action. With input from the labor relations unit, Ms. Gilbert issued a counseling memorandum to Ms. Spradlin on October 4, 2011.3/ The counseling memorandum4/ read in pertinent part as follows: You are being issued a Counseling Memorandum for your violation of Rule 60L- 36.005(2)(f)(1), Florida Administrative Code (F.A.C.), Conduct unbecoming a public employee. On October 12, 2010, you signed the Department’s Acknowledgement Form stating you received copies of the policies and rules of the Department. Please be aware that you are expected to abide by all Standards of Conduct as stated in 60L- 36.005, F.A.C. On May 2, 2011, you violated the following rule and policy: Rule 60L-36.005(2)(f)(1), F.A.C., requires that “Employees shall conduct themselves, on and off the job, in a manner that will not bring discredit or embarrassment to the state. Employees shall be courteous, considerate, respectful, and prompt in dealing with and serving the public and co-workers.” On May 2, 2011, it was reported by one employee that you pulled your pants down exposing your buttocks and “mooned” that employee. Another employee informed me that on that same day you pinched her on her buttocks. After I was told about these incidents that day, I counseled you and informed you that this was inappropriate behavior and it was explained that your actions were unacceptable. This type of conduct is not conducive to a satisfactory work environment. Your conduct has adversely impacted the morale and efficiency of your unit and the Department, is detrimental to the best interests of the state and Department, and adversely affects your effectiveness with the Department, as well as your ability to continue to perform your job. This behavior must cease immediately. Should you continue conduct unbecoming a public employee, disciplinary actions, up to and including dismissal may be taken. Ms. Spradlin signed the counseling memorandum on October 4, 2011, and added the following comments: These two incidents happened on [sic] different persons. The incident w/ “mooning” was with [a] coworker after I incurred a severe sunburn. It was done only to show my burns not to offend her. She sobbed – I was not wearing pants – skirt instead. On the second occasion w/co-worker E.R. she put her buttocks in my face, playing around, & I pinched it as if to express my willingness to play as well. It was provoked – not done in an offensive manner. I understand that this type of behavior is not accepted in my work environment. They were done in a playful uplifting manner, not intentional. However, I will refrain from this behavior as I have obviously offended my colleagues. Another allegation of disparate treatment concerned an incident with a Department client named B.H., who Ms. Spradlin assisted with enrolling in nursing school. B.H. arrived at the Marianna unit one day without an appointment and reported that he wanted to do something other than nursing. Ms. Spradlin asserts that B.H. got aggressive when his requested changes could not be accomplished immediately. Ms. Spradlin further asserts that she became afraid, threatened to call 9-1-1, and managed to get past B.H. and into the hallway outside her office. Ms. Gilbert heard the commotion and called the police. By the time the police arrived at the Marianna unit, B.H. was very calm, and Ms. Gilbert concluded there had been no need to call law enforcement. While Ms. Spradlin asserts that she became an object of ridicule in the Marianna office for overreacting, Ms. Gilbert asserts that she was ridiculed for failing to give the address of the Marianna office when she called 9-1-1. As another example of disparate treatment, Ms. Spradlin cites an incident on November 14, 2013, involving a cigarette butt. Ms. Spradlin was in Ms. Gilbert’s office and dropped a cigarette butt into a trashcan. According to Ms. Spradlin, Ms. Gilbert demanded that she remove the cigarette butt and forced Ms. Spradlin to search through used tissues for the cigarette butt. Ms. Gilbert acknowledged that she asked Ms. Spradlin to remove the cigarette butt from the trashcan, but she credibly denied berating Ms. Spradlin or yelling at her. According to Ms. Gilbert, Ms. Spradlin was able to quickly remove the butt from the trashcan and was not upset about having to do so. Ms. Spradlin made several other allegations about how Ms. Gilbert gave African-American employees in the Marianna unit preferential treatment. For example, Ms. Spradlin alleges that she was required to handle more cases and incur more travel than her African-American coworkers. With regard to her travel reimbursements, Ms. Spradlin alleged that Ms. Gilbert refused to account for all the miles she traveled. Ms. Spradlin further asserts that Ms. Gilbert subjected her to disparate treatment by requiring her to maintain more documentation of her daily activities, inundating her with e-mails inquiring about the status of her work, and being less lenient regarding Ms. Spradlin’s use of flex and leave time. Ms. Gilbert testified that she has never denied a request for annual leave and that she approved the majority of Ms. Spradlin’s requests for flex time, even though Ms. Spradlin did not follow the proper procedure for making such requests. As for the other allegations mentioned above, Ms. Gilbert credibly testified that she did not subject Ms. Spradlin to any disparate treatment. Finally, Ms. Spradlin alleges that Ms. Gilbert unfairly administered a system by which counselors within the Marianna unit shared their successful cases with African- American counselors who had fewer successful cases. This system was implemented because counselors within the Marianna unit were expected to have a certain number of successful cases. Ms. Gilbert credibly denied that the system was administered unfairly: Q: Ms. Gilbert, do you ever ask counselors to donate their successful cases or case numbers to other counselor? A: I never asked counselors specifically to do that. I did discuss it with the unit, with our team as an option. Q: Okay, and why would that be an option they may want to do? A: Well, the way Vocational Rehabilitation operates is a person has to be on their job a minimum – a minimum of three months, okay, 90 days, to consider that person as successfully rehabilitated. And that was a measurement. That was an expectation on each counselor’s performance evaluation, that they had to get so many successful rehabs within one year. So someone that’s being hired and coming to Vocational Rehabilitation in the middle of the year, they don’t have that opportunity to monitor that person for 90 days, if they don’t already have someone that’s in that employment status ready to begin monitoring. So it’s difficult. But I did not want that to be a negative reflection of a counselor that’s really trying and that’s working their caseload and trying to get their successful rehabs. So I would ask counselors once they’ve received all of their rehabs and they close enough people successfully that allows them to get the most maximum score that they can get on their evaluation, I would ask them if they wanted to, share those rehabs with someone that’s probably a new counselor or that’s just having a difficult time with obtaining their successful rehabs. Q: Okay. And so Mr. Sutton’s first year, might he have received some successful numbers donated to him from other counselors? A: That is a possibility. Q: Okay. Did Ms. Spradlin ever receive any successful numbers donated to her when she had a lower number? A: Yes. * * * Q: Okay. And so that number of successes or successful rehabilitations is important to counselors? A: Absolutely. Q: Because they are – are they evaluated on that each year in their yearly performance evaluation? A: Yes. Each level of counselor, if you’re an entry-level counselor, your first year you may be expected to get five. Those numbers are prorated. So the cutoff period is last business day of June, so if you have a new counselor that starts in February or March, they’re at a disadvantage, they don’t have the time. Time works against them. But if they are involved with their cases and they are trying to work their cases, I felt that it was only reasonable to assist them. * * * Q: Okay, so you said that Ms. Spradlin would have received a donation of successful cases maybe early on in her career? A: Yes. Q: Did she donate cases once she became a more proficient counselor? A: I’m pretty sure she did. Q: And did you specifically ask her to donate cases to any particular employee? A: No. Ms. Spradlin resigned from the Department on August 10, 2016. There is no sufficiently persuasive evidence to support Ms. Spradlin’s disparate treatment claims. The greater weight of the evidence demonstrates that Ms. Spradlin was not subjected to any disparate treatment during her tenure in the Marianna unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of July 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 2018.
The Issue The issue is whether Respondent knowingly obtained or used, or endeavored to obtain or use, the property of another valued at $300 or more with the intent to temporarily or permanently deprive the owner of the right to the property, or a benefit therefrom, or to appropriate the property to his own use, or to the use of any person not entitled thereto, as alleged in the Administrative Complaint.
Findings Of Fact Based upon the demeanor of the witnesses while testifying and other substantive and material evidence of record, the following findings of fact are made: At all times material to this cause, Respondent was a certified Correctional Officer, having been certified on or about April 2, 1991, and issued Correctional Officer Certification No. 92406. On October 8, 2000, Respondent, in the company of two other persons, Steven Smith and Henry Fox, went to a business named "Four Star Refinish" located at 898 County Road 621, Lake Placid, Florida. David Trobaugh is the owner of Four Star Refinish and the compressor at issue in this proceeding. The building housing Four Star Refinish had been largely destroyed by fire before October 8, 2000, and the compressor, valued at more than $300, was located outside the building, undamaged. On October 8, 2000, at the business site of Four Star Refinish, Respondent, Steven Smith, and Henry Fox, agreed to take the compressor and together removed the compressor from the premises and transported it to the residence of Steven Smith. On October 12, 2000, Respondent gave a statement to Robert Neale, Highlands County Sheriff's Department, admitting that he, Steven Smith, and Henry Fox loaded the compressor onto a trailer and together transported it to Steven Smith's residence. Respondent, after his admission, assisted Deputy Neale in recovering the compressor by contacting Steven Smith by telephone, who then provided the location of the compressor. At the location provided by Steven Smith, the compressor was located and recovered by Deputy Neale, identified by the owner, David Trobaugh, and returned to him. Respondent, with knowledge of the unlawful taking of the compressor, with knowledge of the parties who unlawfully removed the compressor, and with knowledge of the compressor's whereabouts, concealed his participation in the aiding and abetting in the commission of a felony by Steven Smith and Henry Fox, when initially approached by law enforcement. As a direct result of the foregone and on April 1, 2001, in the case of State v. Jerry E. Lambert, the State Attorney entered a nolle prosequi, in Highlands County Circuit Court Case No. CF00-00685A-XX, under which Respondent was charged with one count of Grand Theft in Excess of $300, with the stated ground for the nolle prosequi listed as "Case Referred to CDS (Citizen Dispute Settlement). An Agreement was reached and restitution and fees paid." Petitioner has proven by clear and convincing evidence that Respondent, without permission of the owner and without legal right to obtain, did in fact obtain and remove an air compressor valued at more than $300 from the site location of the lawful owner. Respondent's admitted participation in the commission of a felony offense evidenced his intentional failure to maintain good moral character and proves his failure to maintain qualifications required of a certified correctional officer. Respondent offered no mitigating evidence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's Correctional Officer Certification No. 92406. DONE AND ENTERED this 18th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 18th day of February, 2003. COPIES FURNISHED: Jerry E. Lambert 126 East Royal Palm Avenue Lake Placid, Florida 33852 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302