The Issue Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).
Findings Of Fact Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989. FCCJ is a member employer under FRS. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth science; acted as a facilitator in the laboratory; and taught Adult Studies courses. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part, 3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment. * * * The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees. * * * 9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to participate in FRS from January 1, 2000, through June 13, 2002. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2003. COPIES FURNISHED: Al Millar, Esquire 4627 Ocean Street Mayport, Florida 32233 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether petitioner was "professional staff" within the meaning of Article VII of the University Constitution and therefore entitled to continue as Dean of the College of Education, in the absence of a showing of good cause why he should not continue? Whether FSU breached the 1984-1985 employment contract between the parties when it relieved petitioner of responsibilities as Dean of the College of Education on July 24, 1985? Whether FSU was under a legal obligation to give petitioner notice of good cause for not renewing the parties' 1984-1985 employment contract for the 1985-1986 or subsequent academic years?
Findings Of Fact After James L. Gant announced his intention to step down as Dean of FSU's College of Education, Augustus B. Turnbull, III, FSU's Vice President for Academic Affairs, appointed the College of Education Dean's Search Committee, also known as the Education Dean Search Committee (Search Committee) and named Robert Glidden, Dean of FSU's School of Music, chairman of the Search Committee. Petitioner's Exhibits Nos. 3 and 9. Dr. Turnbull asked that the Search Committee "try to have a new dean on board no later than the fall semester of 1983." Petitioner's Exhibit No. 3. On December 6, 1982, Dean Glidden executed Part A of Form No. SUS/PFR- 001/75 (R3/77), a formal position vacancy announcement prerequisite to any national search. (T.29-30) This form described the "Contract Period" as 12 months; gave July 1, 1983, as the anticipated starting date; stated the position title as "Dean, College of Education"; categorized the position as having regular professorial status; and indicated the "Discipline/Field" as "Administration." Petitioner's Exhibit No. 7. As part of the national search, the Search Committee caused circulars like Petitioner's Exhibit No. 9, "invit[ing] applications and nominations for the position of DEAN COLLEGE OF EDUCATION" to be published in periodicals like the Chronicle of Higher Education, which is how the vacancy came to the attention of petitioner Bruce Wayne Tuckman, whose application for the position eventually proved successful. Agreement Reached On April 28, 1983, Dr. Turnbull wrote Dr. Tuckman "to offer [him] the position of Dean of the Florida State University College of Education which carries with it the rank of Full Professor of Education ... effective ... July 1, 1983." Petitioner's Exhibit No. 10. In the letter, Dr. Turner undertook to recommend Dr. Tuckman for tenure "at the first opportunity, which will be during the 1983-1984 Academic Year." Id. On May 3, 1983, Dr. Tuckman signed the bottom of the letter in the blank provided to indicate acceptance of the offer. In May of 1983, Drs. Turnbull and Tuckman executed an employment contract covering the period July 1, 1983 to August 31, 1983, stating "CLASSIFICATION TITLE/RANK" as "Dean and Professor" and indicating 9040 as the class code. Respondent's Exhibit No. 15. "Dean and Professor" with a class code of 9040 is listed among the general faculty classification titles and codes. Respondent's Exhibit No. 2. "Professor" appears on the same list with a class code of 9001. On the strength of the agreement evidenced by Dr. Turnbull's letter of April 28, 1983, and Respondent's Exhibit No. 15, Dr. Tuckman, a much-published scholar, left a tenured position at the City University of New York and moved to Tallahassee from New York in the summer of 1983. On September 1 and 2, 1983, respectively, Drs. Turnbull and Tuckman executed a second employment contract with terms identical to the first, except that it covered the period September 1, 1983 to August 31, 1984, and had a greater number of pay periods, accordingly. Petitioner's Exhibit No. 11. 1984-1985 Contract Central to the present controversy is the contract executed by Dr. Turnbull on September 2, 1984, and by Dr. Tuckman on September 6, 1984, which provides, in pertinent part: STATE UNIVERSITY SYSTEM OF FLORIDA FLORIDA STATE UNIVERSITY 12 MONTH EMPLOYMENT CONTRACT This contract between Florida State University and the employee is subject to the Constitution and laws of the State of Florida, the rules and regulations of the Board of Regents... Employee Name: Bruce W. Tuckman * * * 3. Department Name: Dean Education * * * 5. Dates of Appointment: 09-01-84 to 08-31-85 * * * 8. Classification Title/Rank: Dean and Professor Class Code: 9040 Appointment Modifier: B * * * The following statement is only applicable to employees holding visiting appointments; or those appointed for less than one academic year; or (3) those with less than five years continuous service who are on soft money": Your employment hereunder will cease on the date indicated. No further notice to you of cessation of employment is required. Petitioner's Exhibit No. 13. "[A]ppointment modifier B ... is for courtesy faculty status." Erb Fontenot v. Florida State University, No. 85-3843 (F.S.U.; Jan. 5, 1987) at page 2. "Persons holding an administrative or services role normally hold a courtesy rank Rule 6C2-1.004(6)(a)7.a. On March 26, 1984, President Sliger had written Dr. Tuckman, advising him that he had been awarded "tenure to be effective Fall Semester, 1984." Respondent's Exhibit No. 1. Auspicious Beginning At first, all seemed to go well with the College of Education and its new dean. As chief executive officer, Dr. Tuckman was responsible for "all budgetary, fiscal and personnel matters in the College of Education," (T.58) and "had the executive responsibility for helping to set the directions and execute the policies and procedures of the college ... [,] sat as an ex officio member of the Policy Advisory Board ... [and] on a number of [other] committees." (T.50) He tended to "general day-to-day kinds of things ... responding to letters," (T.31), affirmative action and grievance matters. As the University Director of Teacher Education, he chaired FSU's Committee on Teacher Education, "organized conferences and committees on behalf of the College of Education [,] provided interface between the College of Education and the public school districts and schools of the state and other officials of the state ... [and] represented the College of Education to outside constituencies, [including] alumni [and] legislators..." (T.58) On May 31, 1984, Petitioner's Exhibit No. 12, and again on March 27, 1985, Petitioner's Exhibit No. 14, Dr. Turnbull rated Dr. Tuckman "satisfactory," the highest rating possible, on forms on which he characterized his primary duties as Administration." Dean Tuckman performed the duties of dean as described in the By-Laws of the College of Education. Petitioner's Exhibit No. 18. Although not required to do so, he also taught every year he served as dean. Complaints Made "[I]n the fall of 84, probably around October, November ... [after it became known that Stephen Edwards was] to assume the position of the Dean of Faculty in January of 1985, faculty members from the College of Education ... [approached him] concerned about the way the college was operating and the kinds of participation in its governance that the faculty were being able to have." (T.377) In due course, Dean Edwards, as he became, relayed these concerns to Dr. Turnbull. Dr. Turnbull had also heard complaints himself from members of the faculty of the College of Education, complaints which he originally dismissed as a normal reaction to somebody who is making necessary changes." (T.229) By the spring of 1985, however, he asked Dr. Tuckman to give him a "list of some of the faculty that he considered to be the future leaders of the college ... not necessarily the old guard or people who for one reason or another would be troublemakers, but a group of faculty on whom he would rely to carry out his policy directions for the college." (T. 228-230) Dr. Tuckman compiled such a list and furnished it to Dr. Turnbull. At a meeting he called in the summer of 1985, Dr. Turnbull discussed matters with "a significant number of" the people Dr. Tuckman had listed, and "asked them to work with [Dr. Turnbull] and the dean to turn the situation around." (T.230) The group struck Dr. Turnbull as noncommittal. At Dr. Turnbull's request, Dr. Tuckman then called a meeting of the Administrative Council, comprised of department chairmen and others. In this meeting, held on a Tuesday, possibly July 16, 1985, it was decided that the Administrative Council would meet again with Dr. Tuckman, without Dr. Turnbull present, and that afterwards the department heads would meet with Dr. Turnbull to "decide where to go from there." (T.231) After the Tuesday meeting, Dr. Turnbull drafted a memorandum addressed to the faculty of the College of Education. He attached this draft to a memorandum to Dr. Tuckman, dated July 17, 1985. In the memorandum to Dr. Tuckman, he referred to the draft as "a draft cover memorandum," solicited Dr. Tuckman's suggestions with regard to the draft, and stated that he "would also like to see a copy of the 'report' from our Tuesday meeting which we can send out with this cover memorandum." Respondent's Exhibit No. 5. Dr. Tuckman wrote Dr. Turnbull a memorandum, dated July 19, 1985. Labelled "PERSONAL AND CONFIDENTIAL," it is now a matter of public record, and reads, in part: I appreciate the gravity of the situation and the difficulty of the position you are in. I struggled through one or two similar crises myself last year, albeit on the department level, where faculty members were opposed to a chairman, and know how hard that is to deal with. I appreciate the consideration you have shown both me and the faculty of the College. It may not need reiteration but I want you to know that I like my job and I want my job. I think you need to keep in mind: the fact that I have only done what I was "brought here" to do and what I said I would do. I have always been honest and forthright with you and with the faculty. I have never been knowingly devious in any of my dealings. the fact that I "inherited" a college suffering from long-term neglect and one which included a number of people who were taking advantage of that situation and of their colleagues. * * * (4) the fact that relatively unused and "rusty" faculty governance structures were not used by me not by choice but because they could not raise quorums and did not have members who wanted to see them used constructively. They are now ready to be used. I was already putting them in readiness when this whole controversy started. * * * I have been less than perfect. I have made mistakes and I am now aware of many of them. But they were honest mistakes and well- intentioned mistakes. I am neither power- hungry nor malicious. Organizations often need to survive conflict in order to coalesce and grow. The essence of the process is having the members accept some of the responsibility for growth and decision-making. I want this to happen. This crisis can be turned from a nightmare into a blessing by a combination of actions by me and you. My job is to "open up all the doors" and let all of the faculty input in. I pledge to you that I will (and have already begun to) use all informal and formal mechanisms to foster faculty participation and involvement. I believe that I am both willing and able to do this. But it will only work if, as I open my doors, you close yours. You need to let it be known that you are satisfied with the plans and directions of the College, that you have helped make sure it is on course, but that its fate depends on it being able to solve its own problems. And, as you know, those problems are many and serious. And, with that decision to let me continue (after all, I have only had two years to deal with problems and habits formed over at least 10 years) , you must step back from the process and let it continue. ... If you step back, the faculty will realize that they must begin to take faculty governance processes seriously and use them constructively to help get us out of this fix. I want faculty involvement and I can get it. If they have nowhere else to go but to faculty committees, faculty meetings and to me, that's where they'll go. But if they can go to you, Steve or Bernie, they'll go there. I ask you personally, professionally and humbly for your help, both for me and for the College. The biggest help you can provide now is to say to the world, let the College of Education solve its own problems if it wants to stay in business. The rest is up to us. Dr. Turnbull felt this memorandum "was too little, too late," (T.236) and that it advocated "the course [he] followed very consistently up until a couple weeks before that." (T.236) On July 22, 1985, the department chairmen, having earlier met with Dr. Tuckman, as agreed, met with Dr. Turnbull. They reported that Dr. Tuckman "still did not understand the seriousness of the situation, and that they were, therefore, not willing to proceed with him to try to change the faculty's mind about the course and direction of the college." (T.231) Resignation Requested Late that day Dr. Turnbull summoned Dr. Tuckman to his office and requested that he step down as dean. Dr. Tuckman asked if he could think it over overnight, and, on the morning of July 23, 1985, told Dr. Turnbull he "wanted to be able to complete this year and have another year; and that at the end of the next year, if [Dr. Turnbull] was ... dissatisfied with [Dr. Tuckman's] performance, then at that time [Dr. Tuckman] would be willing to resign." (T.62) Dr. Turnbull told Dr. Tuckman he was wasting his breath, that he wanted him "out as dean right away." (T.62) When Dr. Tuckman "pleaded with him," id., Dr. Turnbull reportedly said, "A well-worded letter of resignation would resolve [sic] you of all embarrassment or pain." (T.62) But Dr. Tuckman refused to resign, saying, "[Y]ou will have to fire me." Id. No Longer Dean Believing Dr. Tuckman had been insubordinate, Dr. Turnbull wrote a letter to him the following day. The parties stipulated that Dr. Turnbull had full authority to act for FSU's president in these matters. The letter said: Dear Bruce: Effective immediately, you are relieved of your responsibilities as Dean of the College of Education. An alternative assignment for the 1985-86 academic year will be made as soon as possible. Petitioner's Exhibit No. 15. By memorandum dated July 30, 1985, Dr. Turnbull advised Dean Edwards, "Normal procedures should be followed, except that you will substitute for Dr. Tuckman." Petitioner's Exhibit No. 5. On or after July 24, 1985, but no later than July 30, 1985, Dr. Turnbull had assigned Dean Edwards "responsibility for the administrative affairs of the College of Education during the transition following the reassignment of Dr. Tuckman." Petitioner's Exhibit No. 5. By memoranda dated July 29 and 30, 1985, Respondent's Exhibits Nos. 9- 10, and by letter to Dr. Turnbull dated July 29, 1985, Respondent's Exhibit No. 8, Dr. Tuckman made known his view that he had a right to continue as dean, writing Dr. Turnbull, "I cannot accede to your request that I surrender my position," Respondent's Exhibit No. 8, and signing a memorandum dated July 29, 1985, addressed to department heads and ohers, "Bruce W. Tuckman, Dean." Respondent's Exhibit No. 9. On July 31, 1985, Dr. Turnbull sent a memorandum to Dr. Tuckman, with a "blind copy" to FSU's counsel, in form acquiescing to Dr. Tuckman's assertion that he was still dean. This memorandum stated: RE: Revised Assignment of Responsibilities Pursuant to my July 24, 1985 letter to you and our discussion of July 30, 1985, your complete assignment as dean for the period through the expiration of your current contract (August 31, 1985), is as follows: to develop and prepare a written report on the major policy and program initiatives of the College of Education during your tenure as dean along with a summary of your perception of the goals and objectives encompassed in these policies. to provide written recommendations on priorities among these goals, objectives, and plans to implement them, together with any suggestions for alteration as a result of the necessary reduction in College resources. responding upon request to inquiries from Dean Edwards or other appropriate officials about College of Education matters. (Dean Edwards will be assisting during this transitional period in the administration of the College of Education.) This reassignment is not intended to affect your functions and responsibilities as a faculty member. In the best interests of the University and in furtherance of a smooth transition, I am instructing you to vacate the physical quarters of the Office of Dean no later than the close of business on Friday, August 2. An alternative office will be assigned in the Stone Building. Please contact Dean Edwards concerning alternative office space. The practical reality was, however, that Dr. Tuckman did not serve as Dean of the College of Education after July 24, 1985. In September of 1985, Robert L. Lathrop was named interim dean, and he became "continuing dean in January 1987." (T.289) Academic deans customarily serve at the pleasure of university presidents. By memorandum dated February 4, 1964, (but not shown to petitioner before he signed the employment contract), Gordon W. Blackwell, then FSU's president, "instituted" the policy that "Members of the faculty ... hold administrative positions (... dean ...) at the pleasure of the President." Respondent's Exhibit No. 16. This is the norm in the United States. Witnesses at hearing, including academic deans at FSU, testified that FSU's deans served at the pleasure of FSU's president during the time in question. Dr. Turnbull's letter of July 24, 1985, reflected these views, and ended Dr. Tuckman's service as dean, although Dr. Tuckman stayed on as (and remained, at the time of the hearing) a tenured full professor in the College of Education. He received the full salary he contracted for in September of 1984 during the year ending August 31, 1985. Petitioner's Exhibit No. 13. Faculty vs. Professional Staff The, Board of Regents, which heads the Division of Universities within the Department of Education, has allocated university employees among three distinct "pay plans." The position "dean and professor," like the position "professor," has been assigned to the faculty pay plan, rather than to the administrative and professional pay plan, or to the plan for "University Support Personnel," formerly career service employees. (T.131, 190, 197). Article VII of the Constitution of the Florida State University, entitled "The Professional Staff," provides: Those persons holding academic appointments within The Florida State University, but not within a college or school, and those persons within a college or school holding academic appointments whose responsibilities do not include teaching, shall be considered members of the Professional Staff. Members of the Professional Staff having appropriate qualifications and responsibilities shall be assigned faculty rank by the President of the University on recommendation of their administrative officers for the purpose of membership in the General Faculty. Members of the Professional Staff shall enjoy the assurance of annual recommendation for reappointment in accordance with the provisions of the Florida Statutes and the regulations of the Board of Regents. Petitioner's Exhibit No. 17, page 11. Dr. Tuckman first saw this provision in July or August of 1983. (T.86) The text of Article VII, now promulgated as an administrative rule, Rule 6C2-1.004(7), Florida Administrative Code, effective September 30, 1975, has been included in the FSU Constitution since 1959. Similar language may have appeared even earlier as a bylaw, and was originally drafted to authorize conferring faculty rank on librarians. (T.411) As a provision of FSU's Constitution, Article VII is not among the "rules and regulations of the Board of Regents," strictly speaking. By virtue of Article VII or its predecessor, Willis Caldwell, registrar and director of admissions, was given faculty rank, possibly as an associate professor. Catherine Warren, Dean of Women, was "designated as professor," (T.419) under Article VII or its predecessor. Ms. Warren had done graduate work in history at Columbia University, but, like Willis Caldwell, had no academic appointment within a college or school. Article VII was also applied to Robert Pierce, who, as FSU's vice-president for administration from 1972 to 1976 or 1977 (T.417), had no standing in an academic unit. (T.221) It has never been applied to persons who "had faculty status in an academic unit or with tenure." (T.224) When administrators teach, "it's considered part of their responsibility." (T.415) A faculty member who forgoes teaching for research does not, on that account, lose his status as a member of the faculty and become a member of the professional staff. FSU's president, or his designee, has broad authority in assigning administrative responsibilities to FSU's deans, but they are not professional staff, if they have faculty appointments, even if they do not teach. Article VI of the Constitution of Florida State University, Rule 6C2- 1.004(6), Florida Administrative Code, deals at length with faculty members, employees who, like petitioner, have academic appointments. As dean and professor since his arrival at FSU, Dr. Tuckman has had faculty rank all that time. He has enjoyed membership in the General Faculty by virtue of his professorial rank, and has never been a member of the professional staff. Article VII has no application in his case, and was not incorporated by reference in the employment contracts Dr. Tuckman signed.
Recommendation That FSU enter a final order in Case No. 86-2483 declaring the parties' 1984-1985 employment contract, Petitioner's Exhibit No. 13, breached, effective July 24, 1985, but denying further relief in Case No. 86-2483. DONE and ENTERED this 11th day of June, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2483 Petitioner's proposed findings of fact Nos. 1 through 17, 20, 22, and 24 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. IS has only been adopted to the extent indicated by reference to petitioner's remaining proposed findings of fact. With reference to petitioner's proposed finding of fact No. 19, the FSU Constitution has been adopted as an administrative rule, now numbered Rule 6C- 1.004, Florida Administrative Code. With reference to petitioner's proposed finding of fact No. 21, Dr. Tuckman saw Article VII in July or August of 1983. The evidence did not show that he relied in fact on Article VII. Petitioner's proposed findings of fact Nos. 23 and 25 were not established by the weight of the evidence. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 8, 9, 10, 12, 13, 14, 16, 18, 19, 21, 22, and 24 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, Rule 6C2- 1.004(3)(a), Florida Administrative Code, makes clear that Article VII can confer membership in the general faculty. With respect to respondent's proposed findings of fact Nos. 6 and 7, FSU contracted in September of 1984 for Dr. Tuckman's services as "dean and professor," not only for his services as a professor. Although deans ordinarily hold professorial rank, there is a difference between being dean and being simply a professor. In executing Petitioner's Exhibit No. 13, the parties agreed that Dr. Tuckman would serve as dean through August 31, 1985. With respect to respondent's proposed finding of fact No. 11, the evidence supports every sentence but the antepenultimate, which is partially an erroneous conclusion of law. The evidence did not show that an FSU vice-president had ever before unilaterally removed a dean, although there was testimony that Robert Lawton had been asked for his resignation. (T. 220) Respondent's proposed finding of fact No. 15 has been adopted, in substance, insofar as material, except that the evidence was that Dr. Tuckman had appointed three quarters of the Administrative Council, not three quarters of the department heads. With respect to respondent's proposed finding of fact No. 17, the number was $6,056. Only the first sentence in respondent's proposed finding of fact No. 20 has been adopted as established by the weight of the competent evidence. The first two sentences in respondent's proposed finding of fact No. 23 were established by the evidence. On July 24, 1985, Dr. Tuckman was relieved of his responsibilities as dean. Thereafter, Dr. Edwards acted de facto as Dean of the College of Education. With respect to respondent's proposed finding of fact No. 25, the evidence showed that Dr. Turnbull set out to do what he thought was best for the university without any ulterior motive, but the evidence did not show that Dr. Tuckman had breached the employment agreement or that anything else had relieved FSU of its legal obligations under the agreement. COPIES FURNISHED: President Bernard Sliger Florida State University Tallahassee, Florida Gerald B. Jaski, Esquire Linda C. Schmidt, Esquire Florida State University 311 Hecht House Tallahassee, Florida 32306 Stephen Marc Slepin, Esquire Slepin & Slepin 1114 East Park Avenue Tallahassee, Florida 32301 =================================================================
The Issue The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a law enforcement officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is Richard Campbell, holder of Law Enforcement Certificate Number 89955 and Instructor Certificate #130914. Campbell had worked with the Florida State Seminole Boosters for several years as an assistant to George Brand, Assistant Director Of Concessions. Most of Campbell’s duties had to do with the distribution and transportation of money. On the night of October 9, 1993, after the football game between Florida State University and the University of Miami, Campbell receipted for 37 bags of money from the counting room at Doak Campbell Stadium. The bags were placed in his vehicle, a mini-van. Campbell drove his vehicle to the bank, followed by another officer in another vehicle. At the bank, the other officer, Mark Edenfield, stood guard while Campbell transferred the money bags to the night depository. Edenfield, at Campbell’s suggestion, looked in Campbell’s car to insure that there were no money bags inadvertently left in the vehicle. As documented by bank records, upon removal of the bags from the night depository by bank employees the following Tuesday, October 12, 1993, only 36 money bags were discovered. Brand testified at the final hearing that Campbell told him that he, Campbell, would replace the missing funds, estimated at approximately 1500 dollars, to escape prosecution although he, Campbell, was not guilty. Campbell never made such payment and, in the absence of corroborative evidence, Brand’s testimony concerning such a statement by Campbell, is not credited. A subsequent criminal investigation of the theft was undertaken by the University Police Department and the Leon County Sheriff’s Department. Ultimately, the Office of the State Attorney declined to file criminal charges against Campbell in connection with the missing money bag.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mark E. Taps, Esquire Stephanie Johnson, Esquire Legal Services of North Florida, Inc. 2119 Delta Boulevard Tallahassee, Florida 32302-4220 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact James A. Campbell was employed by Sherba Brothers, Inc. on public work project at the Florida International University Interrama Campus between June 9, 1976 and August 20, 1976. Campbell was employed as an electrician helper. Campbell worked a total of 416 hours and was paid at the rate of $3.75 per hour. Work performed by Campbell closely approximates the work performed by laborers. The prevailing wage rate for laborers at Florida International University Interrama Campus Project was $6.50 per hour. If Campbell had been compensated as a laborer, he would have received $1,144 of additional compensation. Campbell first saw the schedule of prevailing wage rates within two to three weeks after he began working with Sherba Brothers. Campbell never objected to the amount of his paychecks and he was satisfied with what he was paid. Campbell made the decision to file this claim after he was laid off by Sherba Brothers. Charles Anthony Farina worked at a public work project on the Florida International University Interrama Campus for Sherba Brothers, Inc. from April 2, 1976 through October 8, 1976. Farina worked 324 hours at a wage rate of $4.00 per hour, 384 hours at a wage rate of $4.25 per hour, and 259 hours at a wage rate of $4.75per hour. Farina was employed as a first class-helper. Helpers and laborers perform basically the same duties. The prevailing wage rate for laborers at the Florida International University Interrama Campus Project was $6.50 per hour. If Farina had been paid at the prevailing wage rate, he would have been entitled to $2,127.25 of additional compensation. Farina first saw the posted schedule of prevailing wage rates some time prior to the time that he ceased working on the Florida International University Interrama Campus Project. He did not immediately take any action to seek additional wages because he feared that he would lose his job. After October 8, 1976 Farina no longer worked at the Florida International University project. He continued to work for Sherba Brothers at a different project. He was fired two months after he filed his prevailing wage affidavit. Robert B. Turner was employed at the Florida International University Interrama Campus Project from March 26, 1976 through October 8, 1976. Turner worked 821 hours on the project act a wage rate of $7.00 per hour, and 267 hours at a wage rate of $7.50 per hour. He was employed as an electrician foreman. The prevailing wage rate for electricians on the Florida International University Interrama Campus Project was $10.75 per hour. The prevailing wage rate for electrician foreman during that time was not posted on the prevailing wage rate schedule. The prevailing wage rate for electrician foremen in Dade County was $1.50,per hour higher than for electricians. If Turner had been compensated in accordance with the prevailing wage rate for electrician foreman, he would have received $5,858.50 in additional compensation. Turner first saw the schedule of prevailing wage rates for the Florida International University Interrama Campus Project within two weeks after he began working on the project. Turner took no steps to object to the wage that he was receiving until the last week of his employment. He at that time asked the project supervisor what would happen if he tried to collect the prevailing wage, and he was told that others who tried to collect were immediately laid off. The Florida International University Interrama Campus Project, designated State Project #BR-804-B, was a public work project. The prime contract for the project was for an amount in excess of $5,000. The prime contractor was Tom Murphy Construction Company, Inc. Sherba Brothers, Inc. was a subcontractor. The contracting authority, the State of Florida, Department of General Services withheld from its payments to Tom Murphy Construction Company, Inc. an amount of money equal to the claims of Campbell, Farina, and Turner.
