Findings Of Fact Respondent, Kenneth Katsaris, is the duly elected Sheriff of Leon County, Florida. Respondent has its principle place of business in the City of Tallahassee, Leon County, Florida, where it is engaged in the business of operating a county-wide law enforcement agency, pursuant to the Florida Constitution and the applicable statutes promulgated thereunder. Charging Party, Perry Lawrence was employed by Respondent as deputy with the Leon County Sheriff's Department of approximately four years and seven months prior to his discharge on February 3, 1977. Charging Party, Michael Spiers was an employee with the Leon County Sheriff's Department for approximately four years and one month prior to his discharge on February 3, 1977. At times material herein, Gene Goodman was employed as a Captain with the Leon County Sheriff's Department and as such was an agent and a representative of the Respondent acting on its behalf, and/or a managerial employee. On February 3, 1977, and for sometime previous thereto, Joe E. Davis was employed with Respondent as a Sergeant and was the immediate supervisor of Deputy Perry Lawrence. Also on February 3, 1977, Wilford Jiles was employed as a Lieutenant with the Leon County Sheriff's Department and for approximately one week prior to the termination of Deputy Spiers, was his immediate supervisor. During the period during which Lawrence and Spiers was employed with the Leon County Sheriff's Department, both under former Sheriff Raymond Hamlin and the present Sheriff Kenneth Katsaris, neither received an oral or written reprimand regarding their conduct; nor had they been counseled by either Sheriff or any superior with regard to any type of attitude problem or complaints about their work performance. THE ORGANIZATIONAL EFFORTS The deputy sheriffs of the Leon County Sheriff's Department discussed and began to consider the possibility of organizing collectively in October or November of 1976. However, serious organizational efforts did not begin until January of 1977. On January 31, 1977, Perry Lawrence contacted union organizer James Mixon and established February 5, 1977 as the date for the initial organizational meeting of the Leon County Sheriff's Deputies. The record reveals that deputies Lawrence and Spiers spearheaded the organizational drive, however, they made no contacts concerning organizational activities with employees during their working hours or of the working hours of the deputy employees whom they solicited. The evidence reveals that solicitation efforts were made during the period January 31, February 1 and February 2, 1977, at which time the first meeting was scheduled for February 5 at deputy Lawrence's house. January 31 was the last day of the January pay period for the Leon County Sheriff's Department employees. Evidence further reveals that Respondent Sheriff first learned about the organizational efforts within his department in mid to the latter part of January, 1977. Nearing the end of January or the first of February, Sheriff Katsaris learned of the roles of Lawrence and Spiers in the organizational effort. It was during this time period that deputy Spiers was being considered for a position in the detective division by Captain Poitinger, a managerial employee who was first employed with the advent of the new administration on January 4, 1977. Following the defeat of the incumbent sheriff in November, 1976, by Sheriff Katsaris, he (Katsaris) conducted interviews with the deputy sheriffs appointed by Sheriff Hamlin in order to ascertain those individuals who would be retained on his staff. Both deputies Lawrence and Spiers were interviewed and indicated their desire to continue their law enforcement careers and pledged to support the new administration. Sheriff Katsaris, based on this interview, decided to retain both deputies Lawrence and Spiers. Sheriff Katsaris took office as the Sheriff of Leon County on January 4, 1977. Sheriff Katsaris testified that individuals whose name he could not recall, indicated that deputies Lawrence and Spiers were dissatisfied with his administration and they decided to try to organize the deputy sheriffs. Interestingly, it was about this same time period that Sheriff Katsaris began thinking about terminating deputy sheriffs Lawrence and Spiers. In this regard, Sheriff Katsaris, who had only been in office 10 to 14 days, testified that "he had been unhappy with the conduct of both of them for some time." The record is devoid of any specific incident which deputies Lawrence and Spiers had committed which would bring them under the Sheriff's scrutiny. However, it was revealed that the alleged discriminatees (deputies Lawrence and Spiers) as were numerous other deputies including Sergeant McDearmid, Spier's supervisor, indicated that it had taken a period of adjustment to adapt to the new administration; some deputies voiced their dissatisfaction with the administration and complained about the "colors of the cars, shining their shoes" and the "change in uniforms that was imminent." Based thereon, plus the fact that Deputy Spiers failed to speak to the new Sheriff on numerous occasions, Sheriff Katsaris had decided as of mid January that he know deputies Lawrence and Spiers could not remain with his administration. This decision was, according to his testimony, based on the above unspecified conduct by them during his two week's tenure which in his opinion was so reprehensible that termination of their employment was necessary. Deputies Lawrence and Spiers continued to work in their departments unaware that their conduct was below the expectations and standards of the new administration. Between 7:00 and 8:00 a.m. on February 3, 1977, Sheriff Katsaris discharged Deputies Lawrence and Spiers. The reasons assigned for the discharge of Deputy Lawrence was that his attitude was bad and his conduct was unethical and Deputy Spiers' assigned reasons for discharge were a "bad attitude"; "unability to adjust" and "poor work performance." As stated above, and as acknowledged by Sheriff Katsaris, neither Lawrence nor Spiers were ever counseled about their conduct, attitude, or work performance, nor were their supervisors consulted with regard to their conduct, attitude of work performance. The undersigned is mindful of Sergeant McDearmid's testimony that when Deputy Spiers initially came on board, he was over zealous. This, however, is not considered as a shortcoming in terms of ability to adequately perform. In any event, this matter was corrected at the outset of Spiers' employment. Aside from the unsubstantiated rumors received from unknown sources that Deputies Lawrence and Spiers were disgruntled with the new administration and were hampering the new administration's programs, the only specific action discernible in the record which is attributable to Deputy Lawrence is his failure to say "Hello" to the Sheriff on several occasions. Similarly, except for the rumors relied on by the Sheriff, the only two specific actions attributable to Deputy Spiers were: Stating, after the Sheriff inquired about his opinion of the newly painted police cars, that they looked like those on "TV, Adam-12"; and (b) advising the Sheriff that he had been offered a position in other police departments but had turned them down in hopes that he could get into the detective or narcotics unit with the Leon County Sheriff's Department. The record is barren of any further specific actions attributable to the alleged discriminatees. The evidence reveals that on January 26 - 28, 1977, Sheriff Katsaris attended a workshop of the Florida Sheriff's Association. At the workshop a session was held on dealing with unions. Following the session, the Sheriff concluded that under the circumstances it was time for him to deliver a message to the men as to how he felt about unions. On January 31, 1977, Deputy Lawrence contacted the union organizer, James Mixon and established February 5, as the date for the initial organizational meeting. During the period of January 31 through February 2, Deputies Lawrence and Spiers contacted all deputy sheriffs and sergeants, some 85 individuals about the union and the organizational meeting on February 5, 1977. On February 1, 1977, Captain Gene Goodman, a managerial employee of the Sheriff's Department called Deputy Sheriff Scott Key into his office. Among other things, Captain Goodman inquired about Key's knowledge about the union movement; whether Perry Lawrence was contacting the men; when the organizational meeting was being held; whether it was being held at Lawrence's home and what was Lawrence's home address. Captain Goodman indicated that Sheriff Katsaris might like to speak to Deputy Key immediately contacted Deputy Lawrence and advised him of the meeting because he (Key) thought Lawrence's position was in jeopardy. During the nights of January 31, 1977 and February 1 and 2, 1977, Sheriff Katsaris conducted several command staff meetings with his attorney. At the meetings several matters were discussed including union activities of employees and the names of Deputy Spiers and Lawrence were discussed at those meetings. On February 3, 1977, Deputies Lawrence and Spiers were terminated and on February 4, 1977, Sheriff Katsaris posted a no solicitation- no distribution rule and at the same time issued a departmental policy on unions and employee organizations. Included in the Sheriff's position letter was an expression of his feeling that union organization of the department's employees would not serve their best interests and will work to their substantial detriment of the high professional standards that [he] was seeking to achieve. He therefore concluded that it was his firm policy to oppose union organization of any group of the Leon County Sheriff's Department employees by every proper and legal means. (See Respondent's Exhibit #1, Attachment #2) Following the termination of Deputies Lawrence and Spiers the subsequent distribution of the Sheriff's no solicitation-no distribution rule and the position letter dated February 4, 1977, organizational activities within the Sheriff's Department ceased and testimony reveals that those employees who had signed authorization cards became disinterested and requested that they be returned to them.
Conclusions An examination of the above factors leads the undersigned to the conclusion that the Respondent's discharge of Deputies Lawrence and Spiers was discriminatorily motivated and undertaken based on anti-union sentiments. The Respondent was aware that organizational activities were occurring among its employees and that admittedly, Deputies Lawrence and Spiers were spearheading this activity. Respondent's knowledge was gained, at least in part, from its agent, Captain Goodman's interrogation of Deputy Scott Key. Without reciting her the details of Goodman's interrogation, it suffices to say that Respondent was much concerned about the on-going organizational drive. A reading of Respondent's position statement released the day following the discharges of Deputies Spiers and Lawrence unquestionable confirms this concern. Prior to these terminations, the organizational drive was mounting with great interest. However, following the terminations, those employees who had expressed organizational interests by executing authorization cards manifested no further interest and attempted to withdraw their support by requesting that their executed authorization cards be returned. Without question, at this point Respondent had driven home its point that those employees who cared to exercise their right to engage in collectively organized activities faced the ultimate penalty of discharge. The reasons advanced by the Respondent for the discharge of Deputies Lawrence and Spiers were considered and are rejected. The discriminatees had been employed for more than four years and at no time had either been disciplined, reprimanded or counselled about their work performance or attitude. The reasons rested on unsubstantiated rumors without any efforts to confirm that they (Deputies Lawrence and Spiers) were experiencing attitudinal problems. Nor were they given any opportunity to deny, admit or correct such problems. This entire matter hardly resembles the workings of an efficient law enforcement agency that prides itself (according to Respondent) with effective investigative techniques. Respecting Respondent's claim that they (Deputies Lawrence and Spiers) were not adjusting to the new administration, evidence reveals that employees are yet adjusting to the new administration. Indeed, Deputies Lawrence and Spiers had no idea (based on the benefit of consultations from their supervisors) that their performance was anything but satisfactory. To adjust to the new administration, they were given all of one month. Given these facts, the undersigned can only conclude that the reasons assigned by Respondent were merely a pretext and the real reasons that Deputies Lawrence and Spiers were discharged are accurately cited in the complaint herein and it is so concluded. The interrogation of Deputy Scott Key by Captain Goodman constitutes a violation of Section 447.501(1)(a) of the Act since the interrogation centered exclusively around the union activities of Respondent's employees. See e.g. Laborer's International Union, Local #666 v. Jess Parrish Memorial Hospital 3 FPER 172 (June 30, 1977). In the instant case, the Respondent, as was its right, expressed its position opposing unionization of its employees; the interrogation sought information which would lead one to reasonably conclude that such would form a basis for taking disciplinary action; the interrogator was a high-ranking staff personnel and the Deputy (Key) was called away from his duty station. Key's testimony reveals that it was indeed unusual for Captain Goodman to summon employees to his office except in matters of extreme importance. The fact that Deputy Key feared that disciplinary action would be taken is borne out by the fact that when Captain Goodman confirmed that Deputy Lawrence was active in the organizational drive, he advised Deputy Key that he thought that the Sheriff would like to know about that; and that (Key) should wait in his office until he could locate the Sheriff in order that he could be briefed on the matter. When the Sheriff was located, and the matter called to his attention, he told Captain Goodman that he was not interested in speaking to Deputy Key about the subject. Deputy Key spoke to Deputy Lawrence about the interrogation as quickly as he could after leaving Captain Goodman's office and attempted to convince Lawrence to "quit the organizing effort before he lost his job." It is apparent that the Sheriff recognized the dangers inherent in the situation, however, he did nothing to alert the other rank and file employees that he was repudiating the action of Captain Goodman. By failing to do so after learning of the interrogation, the Sheriff is held accountable for the acts and conduct of Captain Goodman. It is so recommended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent cease and desist from engaging in unfair labor practices in violation of Chapter 447.501(1)(a) and (b), Florida Statutes, as required by Chapter 447.503(4)(a), Florida Statutes. Based thereon, it is further recommended that the Respondent be ordered to reinstate Deputies Perry Lawrence and Michael Spiers to their former or substantially equivalent position of employment and be reimbursed for all back pay with interest computed at 6 percent per annum beginning on February 4, 1977, in accordance with the formula set forth in Pasco County Teachers Association v. Pasco County School Board, PERC Order No. 76U-U75 (1976). It is further recommended that Respondent be required to post in each of its facilities in Leon County, Florida, on copies of an appropriate "notice to employees" for a period of sixty (60) days, a notice substantially providing that the Respondent will cease and desist from engaging in unfair practices within the meaning of Chapter 447.501, Florida Statutes. RECOMMENDED this 11th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1977. COPIES FURNISHED: Gene L. Johnson, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 P. Kevin Davey, Esquire Post Office Box 1674 Tallahassee, Florida 32302 Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida 32302
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
Findings Of Fact Respondent is a certified roofing contractor having been issued license number RC0021181. His address as stated at the June 30, 1982, hearing is 11360 SW 47th Terrace, Miami, Florida 33165. On or about August 2, 1976, Mildred Buckaloo contracted with Respondent, who was then doing business as Roddy Roofing Company, to re-roof her residence in Miami. Respondent completed the job with some agreed changes in the contract. The customer was not satisfied with the job and Respondent returned in September to reinstall lead flashing and replace a facia board. Ms. Buckaloo subsequently complained that the roof leaked, and accused Respondent of improper sexual advances. Respondent agreed to return to the job site, but sought to be accompanied by a third person. This was never arranged and Ms. Buckaloo's death apparently resulted in the dispute remaining unresolved. Respondent admitted that he failed to obtain a building permit for the Buckaloo job as required by Section 301.1(k), Metropolitan Dade County Code. Respondent claims that although he has no documents, he did obtain the project inspection required by Section 201.1(3)(b) of this Code. In this regard, Respondent stated that he ran into Dade County building inspector Gene Kirby in a restaurant and got Kirby to come to the job site and make the inspection. Building inspector Kirby testified at the second hearing and denies making the inspection. He did not know Respondent in 1976 but believes he first met him around 1980. Due to the long period of time which has elapsed since the alleged inspection, it cannot be found that either witness lied. However, the absence of any record to document the inspection indicated that it was not performed.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter its Final Order suspending Respondent's roofing contractor's license for a period of six months. DONE and ENTERED this 1st day of October, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1982.
Findings Of Fact On approximately May 31, 1985, Petitioner, Maria Dejesus was employed as a public assistance specialist with Respondent, Department of Health and Rehabilitative Services. Petitioner continued in that employment through early June, 1986. On Friday, June 6, Petitioner and her children, while enroute to Petitioner's home, were injured in an automobile accident. On Monday, June 9, at approximately 8:30 a.m., Petitioner called Brian Leverrier a public assistance liability supervisor and Respondent's supervisor during that period, and advised that "she had been in an automobile accident and that she would not be in that day because she had to take one of her children to the doctor; ... that she was positive or sure that she would be in to work the next day and that was the end of the conversation." (TR-13). Petitioner did not return to work until the following Tuesday, June 17. During the period between June 9, and June 17. Petitioner did not report to work nor did she call and advise her supervisor on June 10, 11, 12, or 13, that she would not be reporting to work. Petitioner relied on Bayla Lipsitz, a co-worker, to advise her supervisor that she would not be returning to work until Monday, June 16. Mr. Leverrier denied that Bayla Lipsitz advised him that Petitioner would not be returning to work until June 16, and employee Bayla Lipsitz did not appear as a witness in these proceedings. 2/ On Monday, June 16, Petitioner telephoned her supervisor, Brain Leverrier to advise him that she would not return to work until Tuesday, June 17, because her ride did not pick her up. Barbara Chattin, public assistance specialist supervisor, was fielding calls for Mr. Leverrier on June 16, and took Petitioner's phone call. When Petitioner advised Ms. Chattin that she would not return to work until the following day, June 17, Ms. Chattin advised her that she failed to call in everyday as she was supposed to although she (Chattin) would relay her message to Brian Leverrier. On the following day, June 17, Petitioner reported for work and was directed to report to Patty Jolly, Human Services Program Administrator, South Services Area, Economic Services. Ms. Jolly is overall responsible for eight supervisors who in turn supervise approximately 60 odd employees including Petitioner. When Petitioner reported to Ms. Jolly, she was advised that in accordance with personnel rules and regulations, she had abandoned her job based on her lack of contact with her supervisor for more than three days. (TR 37). Petitioner did not offer any explanation or other reason for failing to advise her supervisor of her need to be absent from work. All employees are provided with a copy of HRS's pamphlet entitled Personnel Employee Handbook. (Respondent's Exhibit 1). Respondent acknowledged receipt of that handbook by executing an acknowledgment. (Respondent's Exhibit 3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order denying Petitioner's petition for review. RECOMMENDED this 24th day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1987.
The Issue The issue in this case, as stipulated by the parties, is whether Respondent violated section 112.313(6), Florida Statutes (2010),1/ by attempting to enter into, or by entering into, pre- dated employment agreements, and/or by attempting to destroy or destroying public records and/or evidence of wrongdoing and/or by attempting to enter into or entering into agreements which exceeded the Respondent's purchasing authority.
Findings Of Fact Respondent, Oel Wingo was employed as the city manager for the City of Holly Hill (City) from January 1, 2010, until October 2010. Prior to serving in that capacity, she was the assistant city manager for the City of Palm Coast for ten years, and the assistant city manager for the City of Ocala for five years. Respondent earned a Ph.D. in Education Administration from the University of Florida. At all times material to the allegations herein, the City operated under a commission/city manager form of government. This meant that the commission decided policy, while the city manager was responsible for implementing policy and handling all operational matters, including the hiring and firing of personnel. Respondent's employment as city manager was governed by an employment agreement. The agreement provided for the payment of severance pay to Respondent in the event she was "terminated" by the City. Under section 10 of the agreement, termination could occur under a number of scenarios, including the following: If the Employer reduces the base salary, compensation or any other financial benefit of the Employee, unless it is applied in no greater percentage than the average reduction of all department heads, such action shall constitute a breach of this agreement and will be regarded as a termination. In the event that Respondent was terminated pursuant to the above provision, "[T]he Employer shall provide, initially, a severance payment equal to six months' salary at the current rate of pay " Respondent's employment agreement with the City further provided that she would not be entitled to receive severance benefits in the event she was terminated for cause. At the time she was terminated from her employment as city manager, Respondent’s annual rate of pay was $124,500.00. When Respondent assumed her duties as city manager, the City was experiencing significant budget problems because of declining property values, and the resultant reduction in tax revenues. Faced with a reduced budget, Respondent was nonetheless charged with the duty to maintain the current level of city services. Consequently, Respondent implemented budget cuts, reorganizations, layoffs, and position eliminations within months of her arrival. Understandably, the atmosphere in city commission meetings was, at times, tense and volatile. Similarly, the rapid personnel changes negatively affected employee morale and fostered resistance to many of the changes proposed by Respondent. When Respondent was hired by the City, only one City department head, City Clerk Valerie Manning, had an employment contract. Ms. Manning's contract with the City provided that if the City were to reduce her compensation in a greater percentage than the applicable across-the-board reduction for all City employees, she could elect to resign and “be terminated without cause,” and therefor eligible for full severance benefits. Manning left the employ of the City in April, 2010. In April 2010, Respondent replaced Manning with Joshua Fruecht. Fruecht testified that he requested an employment contract soon after he was hired. Respondent told him she would consider it after he had worked for the City for six months. Early during Respondent's employment with the City she and the City Attorney, Scott Simpson, had conversations about the desirability of the department heads having employment agreements because, as department heads, they had no protection from arbitrary termination. Entering into employment agreements with the department heads would protect them from being terminated by the city commission for personal reasons. By that time Respondent had already been approached by Administrative Services Director Kurt Swarzlander, who was concerned about his position and also wanted an employment agreement. On May 6, 2010, Respondent e-mailed Attorney Simpson with the following inquiry: We recently discussed the need to contract with Department Heads. Previously, the City Clerk had a contract. I am reviewing similar employment contracts from other cities and would like to pursue this for several reasons. My primary question for you is whether these contracts must go before the Commission. My interpretation of the Charter and my hiring and firing capabilities is that they do not, as long as I remain within the adopted job descriptions and pay ranges. Later that day, Simpson responded to Respondent's inquiry as follows: I agree that an employment contract with department heads should be within your authority as the City Manager. However, if severance is going to be provided to the department heads, then I would recommend having the commission approve this change in benefits even if individually the cost would not exceed your spending authority as cumulatively they probably would and it is a new benefit. This should not be an issue as the commission approved this for the City Clerk. Roland Via served on the city commission from November 2005 through November 2010, and was the mayor when Respondent was hired as the city manager. Mr. Via testified that in January 2010, during her first month of employment, Respondent advanced the idea of employment agreements for City department heads. According to Respondent, employment agreements would permit the City to hire the best managerial talent from other cities and provide a benefit to both the City and the employee. In May 2010, Respondent negotiated an employment agreement with Brad Johnson to serve as the public works director. The contract was executed without approval by the City Commission. City Attorney Simpson and Respondent collaborated in the preparation of the contract. Mr. Johnson's agreement provided that if the City were to reduce his financial benefits in a greater percentage than the applicable across-the-board reduction for all City employees, he could resign and be terminated without cause, thus being eligible for full severance benefits. Specifically, section 4(c) of Mr. Johnson’s employment agreement provided as follows: If the City reduces the financial benefits of the Employee in a greater percentage than the applicable across-the-board reduction for all City employees, or if the City refuses, allowing written notice, to comply with any other provision benefitting the Employee as set forth herein, then Employee may, at his/her option, elect to resign and be “terminated without cause” within the meaning of Section 4(a) of the Agreement and shall receive all compensation and benefits in Section (4)(a). Such resignation shall be in writing to the City Manager. In the event there was a termination under the above circumstances, Mr. Johnson’s agreement provided that the City would pay a minimum of four months’ salary and benefits pursuant to the City’s Personnel Policies. Respondent forwarded an e-mail to the members of the City Commission on May 7, 2010, informing them of her decision to enter into an employment agreement with Mr. Johnson based on a similar agreement with the former City Clerk, Ms. Manning. Respondent also informed the commissioners that the “City Attorney has advised that we consider utilizing employment agreements with new Department Heads.” At the time Respondent offered an employment agreement to Mr. Johnson, she elected not to do so for the other department heads. This was because she needed more time to evaluate each department head’s capabilities and determine on a case by case basis whether offering contracts to them would in the best interest of the City. However, the unrebutted testimony established that early in her tenure as city manager Respondent had formulated the intent to enter into employment contracts with qualified department heads at some future time. When Respondent entered into the written agreement with Mr. Johnson she was aware of the potential limitations imposed on her purchasing authority as a result of the severance provisions of the employment agreement. However, at the time that Respondent entered into the agreement with Mr. Johnson, no language was suggested or offered by the city attorney regarding the limitations imposed on the city manager's purchasing authority by virtue of the City’s purchasing code. While Respondent was hired by unanimous vote of the City commission, her relationship with certain commissioners, particularly Commissioner Glass and Commissioner Patton, began to deteriorate within the first months of her employment. This was the result of several actions by Respondent, including challenging Commissioner Glass about directing an employee to expend funds in a manner inconsistent with commission action, and deciding not to authorize the use of City funds to pay for the spouses and children of commissioners to attend the League of Cities convention. As a result of this friction, Respondent testified, she was threatened by Commissioner Glass on more than one occasion. The July 28, 2010, Employment Agreements (Dated May 21, 2010) At a city commission workshop on the evening of July 27, 2010, Commissioner Patton suggested that Respondent take a 20 percent cut in pay, and that salaries of the department heads also be reduced. At the time that Commissioner Patton suggested the pay cuts, the only department head that had an employment agreement was Mr. Johnson. However, no formal motion was made at this meeting to cut Respondent’s or department head pay, and no evidence was introduced that any action was ever taken by the city commission on this suggestion. In the hours immediately following the commission meeting of July 27, 2010, which Respondent and other witnesses characterized as being "vicious, dysfunctional, screaming and yelling," Respondent wrote a resignation letter and prepared a list of things that needed to be done before she left the City. Among the items on Respondent’s “to do” list was to prepare and complete the employment agreements that she and the city attorney had been discussing for department heads. Respondent testified that she had two reasons for implementing employment agreements immediately following the July 27th commission meeting. The first was to protect the department heads from the personal vendettas of the city commission. The second was to ensure that the City had a professional management team in place and continuity of professional management. On the morning of July 28, 2010, Respondent met with all of her department heads at the regularly scheduled weekly executive team meeting. She informed them that she would be working with the human resources director, Diane Cole, to immediately prepare employment agreements for all department heads modeled on the Brad Johnson, May 21, 2010, employment agreement. The reason given by Respondent for the agreements was that the department heads “should all have some protections due to the atmosphere within the city . . . .” During this meeting she also informed her department heads of her intention to resign as city manager. Respondent directed Ms. Cole to use the exact same agreement as had been prepared for Mr. Johnson, and to include the same dates as were included in that agreement. Accordingly, each of the employment agreements was dated as being signed on May 21, 2010, and each contained the same severance pay provision at section 4(c), as did Mr. Johnson’s agreement. Likewise, the effective date of each of the employment agreements was June 7, 2010. On the afternoon of July 28, 2010, each of the department heads, except Police Chief Barker, who was out of town, was presented with and signed their respective employment agreement. Although not present, Chief Barker conferred by telephone with Respondent regarding the employment agreement and advised her that he would not sign a "post-dated" agreement. The July 29, 2010, Agreements Upon further reflection that evening, Respondent became concerned about the “signature date” of May 21, 2010, appearing on contracts actually signed on July 28, 2010. This concern was no doubt fueled by Chief Barker’s comment regarding the “post- dated” nature of the agreements. Accordingly, Respondent decided to have new agreements prepared the following day which would reflect signature dates of July 29, 2010. In addition, both she and Ms. Cole had noted that the some of the agreements signed on July 28, 2010, contained typographical errors that needed to be corrected.2/ On July 29, 2010, Respondent presented a second employment agreement to each of the City department heads for them to sign. Each employment contract was dated as having been executed on July 29, 2010. Each of the employment agreements contained the identical language at section 4(c) as had appeared in the earlier versions signed the previous day. Similarly, the “effective date” of each agreement remained June 7, 2010. Following the execution of the agreements on July 29, 2010, Respondent instructed Ms. Cole to destroy all the agreements dated May 21, 2010. Ms. Cole testified that Respondent directed her to destroy them because they were drafts, they contained typographical errors, and they had been superseded by the July 29, 2010, agreements. Notwithstanding her direction that the hardcopies be destroyed, Respondent testified that she understood that a copy of all of the agreements dated May 21, 2010, remained on the City's computer system, consistent with the City’s record retention procedures. The new agreements tied Respondent's potential severance benefits to base salary reductions of all department heads whose severance benefits were, in turn, tied to reductions in pay and benefits to all City employees.3/ Thus, any potential benefit to Respondent of the new agreements would depend on the type of action taken by the City. At least three scenarios were possible. First, if the City proposed cutting Respondent’s pay and benefits by 20 percent, with no other corresponding reductions to department heads or city personnel, there would be no new benefit to Respondent. She would be entitled to severance as provided in her employment agreement, because her pay and benefits were being cut in a greater percentage than her department heads. Second, if the City reduced salary and benefits paid to department heads or city personnel by 10 percent, but reduced Respondent’s pay and benefits by 20 percent, there would be no new benefit to Respondent. She would be entitled to severance as provided in her employment agreement, because her pay and benefits were being cut in a greater percentage than her department heads. Third, if the City reduced Respondent's salary and benefits by 20 percent and her department heads by 20 percent, and the remaining City employees by five percent, Respondent would receive no new benefit. She would not be entitled to severance as provided in her employment agreement because her pay and benefits were not being cut in a greater percentage than her department heads. Under this scenario, the department heads would be entitled to elect to treat the disproportionate pay and benefit reduction as a “termination without cause,” and while the department heads would benefit, Respondent would not. On or about August 20, 2010, having heard about the employee contracts, City Commissioner Rick Glass telephonically requested a copy of all the employment agreements "from 5/21 to present . . . ." In response, Respondent sent an e-mail to all the City Commissioners, the Executive Team, and to the City Attorney stating, in part: Pursuant to the advice of the City Attorney and based on the fact that the Commissioners previously approved the concept of a Department Head Employment Agreement in 2008, the City Attorney prepared an Employment Agreement in May 2010 for implementation. See Attached. Consistent with the City Manager's approved purchasing authority, all non-union managers were subsequently offered the opportunity to enter into the proposed employment agreement. The Employment Agreement protects the City as well as the professionals. The City is protected by ensuring that we have sufficient lead time, four months, prior to a resignation to ensure we have adequate coverage for a professional position and services can continue uninterrupted. Respondent provided the recipients of the e-mail a copy of "the agreement prepared by the City Attorney." On August 23, 2010, Commissioner Glass sent an e-mail to Respondent requesting a copy of the "first signed copy of the employee agreements predated back to May 2010, that Scott, Brad, Diane, Josh, Oel, Kurt, Ron, and Mark signed! Not the contracts you had them re-sign on July 29th." In response, on August 23, 2010, Respondent wrote: This is a follow-up to Mr. Glass's request for Employment Agreement signed on May 21, 2010. The only Department Head that signed an agreement on that date is Brad Johnson. At that time, I chose not to have the other Department Heads sign Employment Agreements as I felt that I needed more time to determine their capabilities in their jobs and whether an employment agreement which committed the City to those individuals was in the best interest of the City. Subsequently, given the tone of the Commission meetings, the pressure to terminate certain individuals, as well as the pressure to treat those without union contracts differently, I chose to provide those employees with the same agreement that Brad Johnson signed on May 21, 2010. I felt morally and ethically obligated to ensure that those employees had similar protections to those employees with union agreements. These employees signed an agreement on July 28, 2010, which still had the May 21, 2010 date on it. On July 29, 2010, we corrected not only the date to reflect July 29, 2010, but several other errors related to titles and responsibilities within the proposed agreements. It was never my intent to imply that these employees had signed the agreement on May 21, 2010. It was my intent to show that they had the same protective status as Brad Johnson acquired on May 21, 2010, so that all were treated the same. As the date could have reflected a different intent and there were other errors in the intermediate document, I corrected the proposed employment agreement the next day and had the managers sign a new agreement. The documents signed on July 28, 2010, are considered draft or intermediate records which are not in and of themselves considered public records and were disposed of in accordance to state guidelines. In an August 24, 2010, e-mail, Attorney Simpson responded to Ms. Wingo's August 23, 2010, e-mail. He wrote that inasmuch as the documents in question "contained errors that were corrected, including the date, and the revised agreements was [sic] subsequently executed by the City Manager and the employees. Based on these facts the original agreements executed would appear to be drafts or precursors to the final employment agreement." Mr. Simpson concluded, "draft documents are not public records." The August 30, 2010, Agreements On August 30, 2010, yet a third version of the employment agreements was presented to each of the department heads. These agreements were prepared and executed following communications with Attorney Simpson regarding whether the severance pay provisions of the July 30, 2010, agreements potentially exceeded Respondent's purchasing authority of $25,000. At issue was the manner in which Respondent had originally calculated the potential severance benefits available to the department heads under the agreements. In an e-mail dated August 24, 2010, Attorney Simpson expressed his concern that the severance pay provisions in the July 30, 2010, agreements had the potential to exceed $25,000 for all of the department heads, with the exception of Joshua Fruecht. The third and final version of the agreement addressed the limitations in the severance benefits offered as a result of the limits on the city manager’s purchasing authority set forth in the City’s purchasing ordinances. Specifically, section 4(a) of the agreement was amended to provide: In the event the Employee is terminated without cause by the City while the Employee is willing and able to perform the duties of the position as Human Resources Manager, the City agrees, subject to the below conditions, to pay the Employee a minimum of four (4) months of salary and benefits health insurance provided to the Employee pursuant to the City’s Personnel Policies not to exceed the City Manager’s purchasing Authority. Additionally, the City shall be responsible to pay all leave accruals at the Employee’s current rate of pay, consistent with City Personnel Rules and Regulations. (Emphasis in original). Each of the employment agreements signed on August 30, 2010, reflects execution on that date. Other than the signature date and revision to section 4(a), the August 30, 2010, agreements are identical to the July 29, 2010, versions. There is no persuasive evidence in this record that Respondent did not have authority to enter into employment agreements with the City's department heads on behalf of the City. To the contrary, the City's outside labor counsel opined that a strong argument could be made that the city manager possesses the authority to enter into employment contracts, subject to the city manager's purchasing authority. Similarly, Attorney Simpson testified that he believed Respondent had the authority to enter into employment agreements. The only question in his mind was whether the agreements should be presented to the City Commission for review and approval, since in his opinion, offering a severance benefit was a policy issue. There is no question that the City’s department heads received a benefit from having employment agreements with the City. It protected them from arbitrary personnel actions and provided severance benefits under certain circumstances. Specifically, their pay and benefits could not be reduced unless there was a corresponding reduction for all City employees. The evidence adduced at hearing does not clearly and convincingly establish that Respondent acted corruptly in entering into pre-dated employment agreements with her department heads, or in directing that the July 28, 2010, versions of the agreements be destroyed. Rather, the competent substantial evidence established that Respondent believed that she was acting in a manner consistent with the proper performance of her duties as city manager.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission on Ethics issue a Final Order dismissing the Complaint issued against Respondent in the instant case. DONE AND ENTERED this 8th day of August, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 8th day of August, 2012.
The Issue Whether Petitioner, David Riggins, was subject to an unlawful employment practice by Respondent, Hillsborough County, based on his disability (handicap) in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner brings this action alleging that his current employer, the County’s Public Utilities Department, discriminated against him based on his disability and in retaliation for his challenge to his job reassignment. Petitioner started working for the County in January 2008. Petitioner was hired as an Electrician 3 in the Public Utilities Department. On January 18, 2011, Petitioner was promoted to Electronic Technician III. Generally, Petitioner’s job was to inspect, maintain, and repair field instrumentation related to the County’s water treatment and wastewater facilities. By all accounts, he was a competent, knowledgeable, and reliable employee without any issues in his performance. In January 2014, Petitioner’s position was reclassified from Electronic Technician III to Industrial Instrumentation and Controls Technician (“IIC Technician”). The job duties for Electronic Technician III and IIC Technician were substantially similar. With the reclassification, Petitioner’s pay was increased to $28.48 per hour (effective October 1, 2013). On October 1, 2014, Petitioner received a market equity pay increase to $29.33 per hour. On March 2, 2011, Petitioner suffered a serious work- related accident. Petitioner was electrocuted while he was servicing modules at a water treatment plant. The electric shock left Petitioner with two medical conditions identified as Syncope and Collapse. Syncope causes a loss of consciousness resulting from insufficient blood flow to the brain. Collapse causes an individual to fall down or become unconscious due to sickness or exhaustion. At the final hearing, Petitioner explained that the shock he received caused the electrical impulses in his heart to stop functioning efficiently. Petitioner relayed that his medical condition causes him to experience episodes of dizziness and light-headedness. He also periodically suffers from blurred vision, tunnel vision, and on several occasions, loss of consciousness. Petitioner cannot predict when he will experience the symptoms of Syncope or Collapse. An episode could happen at any time. In a medical evaluation in July 2012 with his treating cardiologist, Dr. J. Thompson Sullebarger, Petitioner recounted that since his electric shock, he “had several spontaneous episoded [sic] of syncope with similar symptoms and still has dizziness sometimes when he gets up in the morning.” Petitioner also complained of dizziness, paresthesia (a tingling or numbness on the skin), and vertigo. Dr. Sullebarger opined that Petitioner “is unsafe to work on ladders or in buckets or high places.” Dr. Sullebarger further instructed Petitioner to “[a]void ladders and working in high places.” On September 25, 2012, Petitioner returned to Dr. Sullebarger. Petitioner “continued to complain of dizziness and episodes of near syncope.” Petitioner relayed that he “is dizzy almost every day.” On August 14, 2013, Petitioner submitted a “Request for Reasonable Accommodation” to the County based on his medical conditions. Petitioner relayed that he should avoid working from heights, elevated platforms, or catwalks, as well as working around open wet wells. In a follow-up letter to the County clarifying his request, Petitioner represented that he could perform his IIC Technician duties if he was allowed to wear a safety harness and lanyard when working at heights and elevated platforms. In January 2014, at the County’s request, Petitioner’s job of Electronic Technician III was analyzed to determine the essential physical requirements of his job. The study found that “climbing in [the Electronic Technician III] position is required.” However, “the frequency of climbing ladders was determined to be approximately 10%.” On June 20, 2014, the County notified Petitioner that, in light of his medical limitations, it would no longer allow him to work as an Electronic Technician III/IIC Technician. The County determined that climbing ladders of various heights was an essential function of Petitioner’s duties. Therefore, because Petitioner’s medical provider had instructed him to “avoid climbing on ladders,” the County determined that Petitioner could no longer perform the duties of an IIC Technician. The County offered Petitioner three months to search for another job with the County. The County informed Petitioner that if he did not find another job within the allotted time, the County would proceed with a Due Process Hearing to terminate his employment. Petitioner valued his IIC Technician job very much and did not want to lose it. Consequently, over the ensuing three months, Petitioner neither applied for nor requested another job with the County. Instead, Petitioner elected to challenge the County’s employment decision at a Due Process Hearing. The Due Process Hearing was held on February 9, 2015. Petitioner did not prevail. Thereafter, on March 20, 2015, George Cassady, the Director of the County’s Public Utilities Department, formally removed Petitioner from his IIC Technician job. However, rather than terminate Petitioner, Mr. Cassady offered to place him in the position of Business Analyst II. Mr. Cassady wrote in a letter to Petitioner, “I have decided to accommodate your restriction(s) by transferring you to the job of Business Analyst II in the Maintenance Planning Support Team. Your salary will be $26.00 per hour. Your transfer is effective Monday, March 23, 2015.” Petitioner was very disappointed to lose his IIC Technician job. He was also distressed that his salary was to be reduced from $29.33 to $26.00 per hour. Therefore, before he accepted the transfer, in June 2015, Petitioner appealed the Due Process Hearing determination to the Hillsborough County Civil Service Board. Petitioner argued that his reassignment to Business Analyst II was a “demotion.” The Civil Service Board held an evidentiary hearing on March 16, 2016. The Civil Service Board agreed with Petitioner that, because his salary was reduced, his placement in the Business Analyst II position should be considered a demotion. However, the Civil Service Board concluded that Petitioner failed to prove that the County “acted without just cause” to demote him to Business Analyst II. Subsequent to the Civil Service Board decision, on May 4, 2016, Petitioner and the County entered into a settlement agreement to amicably resolve the issue of his reassignment. Through the settlement agreement, the County agreed to increase Petitioner’s base hourly rate of pay to $28.00 per hour (up from $26.75). The County also agreed to pay Petitioner a lump sum of $5,000. For his part, Petitioner agreed to “release and/or withdraw . . . [a]ny and all claims, grievances, appeals in any forum associated with the placement of [Petitioner] in the Business Analyst II position as of March 23, 2015.” Petitioner also assented that his placement as a Business Analyst II was a “transfer of his employment and not a demotion.” Petitioner’s current action focuses, not on his placement in the Business Analyst II position, but on the County’s subsequent refusal to hire him back in his previous job as an IIC Technician. On two separate occasions, Petitioner applied with the County for an IIC Technician position. In February 2015, the County advertised an IIC Technician opening. The advertisement did not list any physical requirements for the position. The County did not interview Petitioner for the job. In July 2016, the County advertised to fill another IIC Technician position. In this advertisement, the County expressly listed that the job specific competencies included, “[a]bility to climb ladders.” Petitioner applied again. In September 2016, the County notified Petitioner that he would not be considered for the IIC Technician position. Petitioner received an e-mail from the County Human Resources office stating, “[w]e were very impressed with your qualities as an applicant and even though other candidates overall Qualifications were deemed most compatible with the duties and responsibilities of this position, we hope your interest in career opportunities with Hillsborough County will continue.” Petitioner asserts that, based on the County’s hiring matrix, he was the most qualified candidate given his years of experience and his possession of the required certified central system technician license, which no other candidate possessed. Nevertheless, he was excluded from consideration for the position. Petitioner asserts that no legitimate reason existed for the County to reject his application to fill the IIC Technician position. Petitioner disputes that his current medical restrictions prevent him from performing the essential functions of an IIC Technician. At the final hearing, Petitioner expressed that he is no longer medically prohibited from climbing ladders. On September 21, 2015, following another medical examination, Dr. Sullebarger stated that Petitioner’s only restriction was “Harness at Heights (otherwise no restrictions).” Petitioner’s understanding is that Dr. Sullebarger will allow him to climb ladders if he wears a safety harness. On March 3, 2016, Dr. Sullebarger completed a Medical Certification Form for the Commission. On this form, Dr. Sullebarger wrote that Petitioner is “at risk for dizziness or fainting.” Dr. Sullebarger opined that Petitioner’s use of a safety harness was reasonably necessary in order for him to perform the required functions of an IIC Technician. Dr. Sullebarger specified that “working with a harness at heights will reduce [Petitioner’s] risk of injury due to falls.” Despite the apparent improvement of his condition, at the final hearing, Petitioner affirmed that he still suffers from Syncope and Collapse. Petitioner further acknowledged that his medical condition could make performing the IIC Technician duties more risky. For instance, if an IIC Technician needed to climb a ladder to access a device, and the location did not support the use of a safety harness, then Petitioner would have to work at heights without the medically required safety equipment. However, despite his unpredictable episodes of dizziness and his need to use a safety harness, Petitioner argued that he can competently perform the IIC Technician job. Initially, Petitioner disputed that climbing ladders is an essential function of an IIC Technician. Petitioner expressed that an IIC Technician typically programs and calibrates electronic equipment on level ground. Petitioner relayed that for the months prior to losing his IIC Technician position, he satisfactorily performed his responsibilities without climbing ladders. At the final hearing, Petitioner insisted that, at most, ten percent of the IIC Technician job involves climbing ladders. Furthermore, to the extent that climbing ladders is required, reasonable accommodations exist to allow him to perform the essential functions of the job. These accommodations include hydraulic lifts, as well as the use of a safety harness at heights. Petitioner asserted that neither preventive measure would change the scope of the IIC Technician responsibilities. Consequently, his medical condition poses no safety threat. Petitioner further argued that his medical restriction should not preclude him from the IIC Technician job because every IIC Technician is required to use a safety harness.3/ Therefore, because Petitioner’s need to use a “safety harness at heights” is a precaution that every IIC Technician must exercise, his medical condition should not prevent the County from hiring him as an IIC Technician. Finally, Petitioner disputed the County’s position that situations exist in which IIC Technicians are not able to use a safety harness to perform their duties. In particular, Petitioner argued that it is standard industry practice for technicians to wear a harness with two lanyards when transitioning at heights, such as from a ladder to a platform. Further, no County employee can perform inspections or repair work six feet or more above any work surface without a safety harness or some other approved means of fall protection, such as guardrails. Therefore, Petitioner’s medical restriction would not affect his job performance in any way. Petitioner pursues four results with his action. First, Petitioner seeks an immediate return to his IIC Technician position. Next, Petitioner wants his salary restored to its previous rate ($29.33 per hour) along with any lost merit increases. Third, Petitioner desires to have his seniority status restored. Prior to his demotion, he was the most senior member of his team. He has no seniority as a Business Analyst II. Finally, Petitioner seeks the ability to renew his professional certifications. He alleged that the Business Analyst II job severely hinders his professional prospects by making it more difficult for him to renew and maintain his professional certifications. Mr. Cassady testified at the final hearing regarding the County’s refusal to rehire Petitioner as an IIC Technician. Mr. Cassady, as the Director of the Public Utilities Department, oversees the division in which Petitioner works. Mr. Cassady made the ultimate decision regarding Petitioner’s current employment status. Mr. Cassady described the County’s public works facilities as an “industrial work environment.” The County oversees and monitors 17 separate water treatment and water reclamation plants. Mr. Cassady commented that some chemical storage tanks “exceed 40 feet in height and have limited guardrails around them.” Mr. Cassady recounted that he reviewed Petitioner’s situation at great length. Mr. Cassady imparted that he is constantly aware of, and watching out for, the safety of his employees. Mr. Cassady relayed that an IIC Technician is responsible for working around high voltages and in close proximity to large machinery that includes rotating pieces of equipment motors and pumps. In considering Petitioner’s medical restrictions, Mr. Cassady determined that climbing ladders and working at heights to access or inspect electronic controls and components is an essential function of the IIC Technician job. Mr. Cassady explained that, although the frequency of the use of ladders might vary amongst assignments, all IIC Technicians must be able to climb and use ladders. Mr. Cassady described several routine tasks in which an IIC Technician operates in or on elevated equipment that do not support the use of a safety harness. These situations include climbing ladders to service electronic instruments located on top of raised pipes. In addition, IIC Technicians regularly ascend ladders to small platforms located on top of the 40-foot-tall treatment tanks to calibrate level control devices within the tank. Consequently, Mr. Cassady concluded that the responsibilities of the IIC Technician position would directly expose Petitioner to the inherent dangers associated with working at heights. Mr. Cassady did not dispute that Petitioner possesses the skills and qualifications to perform the job of ICC Technician (not considering his disability). However, he was (and is) very concerned about the possibility that Petitioner could be injured if he were to experience a sudden or unexpected dizzy or fainting spell while climbing a ladder or accessing a high platform. Mr. Cassady adamantly believes that Petitioner’s unfortunate medical condition creates unacceptable safety hazard for both Petitioner and the County should he return to the IIC Technician position. Mr. Cassady admitted that the County purposely did not interview Petitioner for the IIC Technician job openings. However, he denied that the County refused to consider Petitioner just because he has a disability. Instead, the County’s overriding concern was that Petitioner could not work safely at heights due to his medical condition, which causes him to experience unpredictable dizziness or loss of consciousness. On the other hand, while Petitioner was unable to perform the job of IIC Technician, Mr. Cassady believed that Petitioner’s analytical and practical skills remain an asset to the County. Therefore, Mr. Cassady offered Petitioner the Business Analyst II position. A Business Analyst focuses on data collecting and analyzing as opposed to operations. Not only does the Business Analyst II position provide Petitioner the opportunity to use his knowledge and training in the same field as an IIC Technician, but Petitioner can perform the job on the ground and is not required to climb ladders or work at heights. The Business Analyst II position includes a higher pay scale than the IIC Technician. However, Mr. Cassady set Petitioner’s initial salary at a lower rate ($26 per hour) to maintain equity with the four other County employees who had been assigned to the same position for a longer period of time. Mr. Cassady denied that the County refused to hire Petitioner as an IIC Technician job in retaliation for his request for a Civil Service Board review of his placement in a Business Analyst II position. On the contrary, Mr. Cassady believed that Petitioner was a valuable employee with the Public Utilities Department. Mr. Cassady offered Petitioner the Business Analyst II job specifically as a way for the County to retain his services. Mr. Cassady explained that he has always been supportive of Petitioner’s career development with the Public Utilities Department. In fact, he rejected Human Resources’ initial recommendation to terminate Petitioner’s employment when the County determined that Petitioner was unable to perform the essential functions of his IIC Technician job. Mr. Cassady has also encouraged Petitioner to improve his marketable skills by furthering his education, courtesy of a County scholarship program. Finally, Mr. Cassady testified that implementing the accommodations that Petitioner suggests is unworkable. Mr. Cassady contended that a number of the locations in which an IIC Technician must work do not support the use of a safety harness and lanyard. For example, the treatment tanks are not equipped to enable the use of a safety harness while climbing up the 40-foot-tall ladder or when transitioning from the ladder to the platform. Mr. Cassady asserted that any such modifications would be prohibitively expensive or impractical to install. Several County employees who are currently employed as IIC Technicians testified at the final hearing regarding their job requirements. These witnesses discussed the role of climbing ladders and working in high places in performing their duties. Mark Maples, an IIC Technician with the County, testified that he regularly climbs ladders while performing his job. Mr. Maples stated that he must use a ladder during several of his routine work responsibilities, such as checking a flow meter device at a water treatment plant. Mr. Maples estimated that he uses a ladder approximately 40 percent of the time he works. Mr. Maples also remarked that he routinely climbs ladders in work settings that do not offer a mechanism to tie off a safety harness. Consequently, a safety harness would not provide an IIC Technician complete protection while working at heights. Mr. Maples also expressed his discomfort with the idea of working with an IIC Technician who was not medically cleared to work on elevated equipment. As an example, Mr. Maples described how IIC Technicians are responsible for inspecting and calibrating the level control devices situated on top of each large treatment tank. Each tank is 40 feet high. To accomplish such an inspection, the IIC Technician must scale a ladder attached to the side of the tank. The tank provides no apparatus to which a safety harness may be fastened. Based on Petitioner’s medical condition, which could cause sudden and unanticipated dizziness, Mr. Maples was concerned whether Petitioner could safely accomplish the required inspection. Mr. Maples would be worried that Petitioner might faint and fall down the ladder or tumble off the top of the tank. Mr. Maples declared that a “one- time fall is one time too many.” Michael Newsome, another IIC Technician, testified that he regularly uses a ladder to perform his job. Mr. Newsome explained that his job requires him to work in elevated places, and he has to climb a ladder to get there. Mr. Newsome estimated that he needs a ladder less than five percent of the time. Louis Ocampo has worked as an IIC Technician for the County for approximately two years. Mr. Ocampo testified that he regularly uses a ladder in his job. He works at heights and elevated areas, such as treatment tanks and on video cameras. Mr. Ocampo estimated that he needs a ladder approximately ten percent of the time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the County discriminated against Petitioner based on his disability (handicap). Accordingly, Petitioner failed to meet his burden of proving that the County discriminated against him in violation of the FCRA.
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: finding that Petitioner, David Riggins, did not prove that Respondent, Hillsborough County, committed an unlawful employment practice against him; and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 29th day of November, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 29th day of November, 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent repay Petitioner in accordance with the Final Determination issued on January 26, 1983. DONE and ORDERED this 8th day of June, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1983. COPIES FURNISHED: Chad J. Motes, Esquire Suite 131 - Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Mary M. McDaniel, Esquire 101 East Maud Street Tavares, Florida 32778 Honorable Wallace E. Orr Secretary, Department of Labor and Employment Security Suite 206 Berkley Building 2590 Executive Center Circle, East Tallahassee, Florida 32301
The Issue Whether a final order dismissing the Petitioner's rule challenge should be entered because Respondent, United Safety Council, Inc., doing business as Florida Safety Council (United Safety Council), is not an "agency" within the Florida Administrative Procedures Act (APA), and there is no claim challenging a rule enacted by Respondent, Department of Highway Safety and Motor Vehicles (Department). HOLDINGS United Safety Council is not an “agency” within the definition of section 120.52(1), Florida Statutes (2010); thus Project Refocus' rule challenge against United Safety Council is not subject to the APA. Consequently, United Safety Council's Motion for Summary Final Order is Granted. Project Refocus' petition in the instant case does not challenge a Department rule or action, and the Department was never added or served as a party. Therefore, the Department's motion to remove it as a party is Granted.
The Issue The issue in this proceeding is whether Petitioner is entitled to attorney’s fees pursuant to Section 112.317(7), Florida Statutes (2009), and Florida Administrative Code Rule 34-5.0291.
Findings Of Fact Respondent has been employed as a firefighter with Destin Fire Control District (DFCD) since 2002. Currently, he is a Lieutenant and paramedic with DFCD. In 2005 and early 2006, he was a firefighter in the main fire station where all the DFCD administrative offices are located. Additionally, during the same period he served as the Union President for the local firefighters. As such, he knew that Commission meetings were recorded. Petitioner is licensed as a Certified Public Accountant (CPA). Her primary background is in the area of public finance. From January 2004, until January 2005, Petitioner served as an Administrative Assistant to then Fire Chief, Milner “Tuffy” Dixon (Dixon). She left that position for full-time employment at a CPA firm. While maintaining her employment as a CPA, Petitioner was appointed as a Fire Commissioner for DFCD on March 14, 2005. The principle reason for Ms. Metz’s appointment to DFCD was her extensive background as a certified public accountant and the growing annual budget of DFCD. At DFCD Commission meetings held on June 13, 2005; September 12, 2005; October 11, 2005; and December 12, 2005, Ms. Metz identified portions of the financial reports prepared by then Financial Administrator Wanda Martin (Martin) that did not comply with Generally Accepted Accounting Principles (GAAP). Specifically, the financial statements prepared by Wanda Martin did not properly accrue expenses; did not always correctly reconcile bank accounts; did not properly record fund balances, receivables and liabilities, and misspelled account names. DFCD’s outside auditor Bruce Nunnally, who is also a CPA, agreed with Ms. Metz’s observations. Ms. Metz, along with the Commission, wanted the financial statements corrected and to conform with GAAP. However, because Ms. Martin had no formal accounting education, Mr. Nunnally offered to help Ms. Martin make the corrections noted by Ms. Metz and had at least one meeting with her and Ms. Metz to achieve that purpose. After several months, Ms. Martin did not adopt the changes requested by Ms. Metz and the financial reports remained essentially the same. Since Ms. Martin failed to make these corrections, at the December 2005 DFCD Commission meeting, Ms. Metz initially stated that, due to her CPA training, she could not in good faith approve a financial statement she knew to be incorrect. After further discussion amongst the DFCD Commissioners, Ms. Metz accepted the financial statement prepared by Ms. Martin with the condition that the corrections would be made in the future. As indicated, all of these commission meetings were recorded. Although some of the recordings were of poor quality, the tapes showed that Petitioner was always polite to Ms. Martin. They contained no evidence that Ms. Metz ever bullied or harassed Ms. Martin. Importantly, throughout this time period the gossip in the fire station, which stations tend to be rampant with, was that Ms. Metz was being extremely hard on Ms. Martin and getting on to her. Other gossip was that Ms. Metz was being extremely hard on Ms. Martin because she wanted her job. However, neither during the unfolding of these events nor shortly after, did Respondent feel it was necessary to inquire into the activities of Ms. Metz or Ms. Martin. Similarly, Respondent did not feel it was necessary to file an ethics complaint against Ms. Metz. On January 9, 2006, Wanda Martin resigned from her position of Financial Administrator with DFCD. After learning of Ms. Martin's resignation, Petitioner resigned from the Fire Commission on January 12, 2006, in order to apply for the Financial Administrator position vacated by Ms. Martin. The evidence did not demonstrate when Ms. Metz submitted her application for the Financial Administrator position. Sometime in January, either upon or after her resignation, Ms. Metz spoke with former Chief Dixon regarding turning in her job application. She told him she felt she had a good chance to get the job because she thought she was the best qualified. She did not threaten or pressure former Chief Dixon to hire her for the Financial Administrator position. Former Chief Dixon told her that he had to advertise the job according to the rules and that Ms. Metz could put her application in “like anyone else.” The position was advertised during the month of January and about 30 applications, including Petitioner's application, were received by DFCD. At no time did Petitioner solicit any Commissioner's support. Petitioner was subsequently, hired as Financial Administrator by Chief Dixon on January 30, 2006. Ms. Metz was not a DFCD Commissioner and did not hold any public office at the time she applied for the DFCD Financial Administrator position. In fact, Ms. Metz remained employed full-time as a CPA with the accounting firm she had been working for, receiving a compensation package similar to that offered for the DFCD Administrator position. She left her employment with the CPA firm when she was hired as the DFCD Financial Administrator. Former Chief Dixon denied that he was pressured to hire Ms. Metz for the position. Rather, the ethics investigation revealed that Chief Dixon thought that out of approximately 30 applicants for the Financial Administrator position, Ms. Metz was the best qualified applicant because she was a CPA and had previous employment history with DFCD. The ethics investigation further revealed that Chief Dixon stated he felt "uncomfortable" when Ms. Metz said that she was only resigning from the DFCD Commission because she thought she was the most qualified for the DFCD Financial Administrator position. However, he also did not feel pressured by Ms. Metz because she was tendering her resignation from the Commission at the time that she made the comment and no longer had any influence over his position as the Chief of the Fire District. At hearing, Respondent claimed that Chief Dixon may have been untruthful during the ethics investigation, but offered no credible proof of his assertion. Chief Dixon did not testify at the hearing in this matter and Respondent's assertion about Chief Dixon's untruthfulness is not credible or material since Respondent never inquired whether Chief Dixon was pressured by Ms. Metz. In 2005 and 2006, gossip among the firefighters was rampant about the hiring of Ms. Metz and Respondent was aware of this gossip. However, he again did not feel compelled to inquire into any of these events or file an ethics complaint against Ms. Metz. In March 2009, Chief Dixon retired from DFCD after 19 years of service to DFCD as Fire Chief. Assistant Chief Sasser became the Fire Chief. By 2010, due to a variety of incidents, the atmosphere in the fire district was poisonous because of some actions taken by Ms. Metz and some actions taken against her son, who had been employed by DFCD as a lifeguard. For example, by letter dated March 10, 2010, Ms. Metz provided notice to the DFCD Board of Commissioners that DFCD Chief Sasser had allegedly violated the Sunshine Law and created a hostile work environment. By this same letter, Ms. Metz sought whistleblower protection under chapter 122, Florida Statutes, stating, “I am very concerned about retaliation after you receive this letter.” On the other hand, some of the incidents involved the termination of Ms. Metz's son by Chief Sasser. Rumors and innuendos were flying around the fire station both in conversation and in blogs. Some of the problems were appearing in the local news. Respondent, who described Chief Sasser as a friend, mentor, and superior, was upset that Ms. Metz exposed Chief Sasser’s alleged Sunshine Law violations. Mr. Myers felt that, by calling attention to Chief Sasser’s misconduct, Ms. Metz cast the department and Chief Sasser in a “bad light.” Mr. Myers testified: “I was upset that we were getting drug in the paper every week.” He wanted the coverage to stop. In this atmosphere, many of the old rumors about Ms. Metz were resurfacing. Respondent was told by another firefighter, that in January 2006, Ms. Metz had gone to Chief Dixon with her resignation in one hand and her application in the other and informed Chief Dixon that she was applying for Ms. Martin's old job. Although all of these rumors were around in January 2006, Respondent claims that, over 4 years later, he was now troubled by them and went to Chief Dixon to inquire about what he had been told. Importantly, Respondent had no direct knowledge of any of the alleged events that occurred in 2005 and 2006. Chief Dixon told Respondent that he had met with Ms. Metz, but that he could not remember whether she had her resignation and application with her at the time. Essentially the conversation was as outlined above. In addition, Chief Dixon discussed the alignment of the Commission on the issue of hiring Ms. Metz that he thought was prevalent in January 2006. Importantly, Respondent never asked Chief Dixon whether he was pressured by Ms. Metz to hire her for the position. If he had, Chief Dixon would have denied such pressure as he has consistently done during the investigation of this matter by the Ethics Commission. The omission of this question demonstrates that Respondent's belated interest in Ms. Metz's hiring and Ms. Martin's resignation was motivated not because he was a concerned citizen but more by a desire to strike out at Ms. Metz in order to stop her from disparaging the fire department. The deliberate omission of this question was also in reckless disregard of the truth of his allegation that the Chief was pressured by Ms. Metz. Respondent also spoke with Ms. Martin who was known for being overly dramatic and sensitive and who remains bitter about Ms. Metz. She felt Ms. Metz was overly hard on her. She cited no specifics and the evidence did not show any such specifics, other than the alleged harassment occurred in commission meetings. She, also specifically mentioned the November commission meeting when she felt harassed by Ms. Metz because she did not have the financial reports for the meeting completed due to the time off she had taken to help her mother who was ill. Other than these two individuals, Respondent made no inquiry of anyone with direct knowledge of these events. More importantly, he did not listen to the tapes of the meetings at which such harassment allegedly occurred. If he had he would have learned that Ms. Metz was not rude or hostile to Ms. Martin during these commission meetings. He would have learned that Ms. Metz did not harass Ms. Martin during these commission meetings, but performed her duty to inquire about financial reports that to a CPA were done incorrectly. He would have learned that the District's auditor agreed with Ms. Metz and that Ms. Martin repeatedly failed over several months to incorporate the corrections that Ms. Metz desired and the commission had instructed her to do. In short, Petitioner would have learned that his belief that Ms. Metz harassed Ms. Martin until she resigned was not true. Such a failure to investigate the facts to determine their validity constitutes reckless disregard for the truth especially given Respondent's knowledge that such tapes existed and the length of time that had passed since Ms. Martin's resignation and Ms. Metz's hiring, as well as, the ulterior motive of Respondent to silence Ms. Metz in 2010. Instead of reasonable inquiry regarding his beliefs, on April 7, 2010, Respondent filed an ethics complaint against Petitioner alleging that Petitioner had violated section 112.313(6)(Misuse of Public Office) for actions that had allegedly occurred in 2005 and January 2006 regarding Ms. Martin's resignation and Ms. Metz employment as Financial Administrator by DFCD. The Complaint alleged that Ms. Metz had used her position as a fire commissioner to harass and belittle Ms. Martin at DFCD commission meetings in order to force her to resign and then used that same position to pressure Chief Dixon to hire her for that same position. To support his allegation, the initial complaint, contained factual allegations confined primarily to the following facts that are not in dispute: (i) Ms. Metz was a Fire Commissioner with the DFCD in 2005; (ii) Wanda Martin was the Financial Administrator for DFCD at that time; (iii) Ms. Metz questioned Ms. Martin about the financial statements at four Fire Commission meetings in the fall of 2005; (iv) Ms. Martin resigned in January of 2006; (v) Ms. Metz subsequently resigned as a Fire Commissioner; and (vi) Ms. Metz was hired as the new DFCD Financial Administrator. Based on these bare facts, Respondent concluded that Ms. Metz “used her position to push Ms. Martin out so that she could step into the job.” However, the Commission on Ethics’ investigator determined that these allegations were legally insufficient for investigation and told Respondent that the Complaint would be dismissed unless he provided additional information. Respondent called Chief Dixon again; Chief Dixon gave him the same information he had given him before. Importantly, Respondent, again, failed to inquire about whether Chief Dixon was pressured by Ms. Metz. No other investigation or inquiry was made by Respondent regarding his beliefs. Again, this failure to inquire into essential facts was in reckless disregard of the truth. Instead, Respondent filed an amendment to the complaint on April 30, 2010. Specifically, Respondent again alleged that in 2005 and 2006, some four and a half years prior to his complaint, Petitioner misused her public position as a Fire Commissioner to (a) create a hostile work environment for Ms. Martin thereby forcing Martin to resign as Financial Administrator, and pressured former Chief Dixon to hire Petitioner. Given this timing and his motivation, Respondent's explanation that he did not think it was not his "job" to investigate this matter before he filed his ethics complaint is not credible. After amendment, the Executive Director of the Commission on Ethics found the complaint against Petitioner to be legally sufficient and ordered a preliminary investigation to determine if Petitioner’s actions were violative of section 112.313(6). In order to defend herself, Ms. Metz entered into a retainer agreement with the firm of Greenburg Traurig, P.A. on September 14, 2010. Ms. Metz intends to fully pay the bill. As of April 14, 2011, Ms. Metz incurred fees in the amount of $25,356.76, and costs in the amount of $1,158.22. Additional fees in the amount of $17,277.50, and costs in the amount of $1,418.31 have since been incurred. The parties have stipulated to the reasonableness of the hourly rates, hours expended, and total fees and costs incurred. Given that Respondent's ethics complaint was filed in reckless disregard of whether the complaint contains false allegations, Petitioner is entitled to an award of costs and attorney's fees for her defense against Respondent's complaint and subsequent costs and fees associated therewith in the amounts outlined above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Commission enter a Final order granting the Petition for Fees and awarding attorney's fees and costs in the amounts noted above. DONE AND ENTERED this 6th day of July, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 6th day of July, 2011. COPIES FURNISHED: Glenn T. Burhans, Jr., Esquire Greenberg Traurig 101 East College Avenue Tallahassee, Florida 32301 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Jennifer H. Copus, Esquire Copus & Copus, P.A. 1817 Lewis Turner Boulevard, Suite E Fort Walton Beach, Florida 32547 Philip C. Claypool, General Counsel Florida Commission on Ethics 3600 Maclay Boulevard, South Suite 201 Tallahassee, Florida 32312
The Issue Whether petitioners Hampton, Busbee, Davis and Robertson, as elected board members of the Escambia County Utilities Authority, are eligible for membership in the Elected State Officers' Class of the Florida Retirement System as "county elected officers" within the meaning of Section 121.052(1)(g), Florida Statutes (1985)?
Findings Of Fact By letter dated April 17, 1985, A. J. McMullian III, State Retirement Director, advised C. H. Wigley, Jr., Acting Executive Director of the Escambia County Utilities Authority (ECUA) that the individual petitioners were eligible for inclusion in the Regular Class, but not the Elected State; Officers' Class, of the Florida Retirement System. Respondent's Exhibit No. 8. "The major difference between the Elected State Officers' Class and the Regular Class is the ESOC members . receive a higher retirement benefit for the same number of years of service." (T. 38) To finance higher benefits the public employer pays a higher amount, set on "an actuarily sound basis." Deposition of Andrew J. McMullian, III, page 19. ECUA CREATED. A few years back, "Escambia County and the City of Pensaco1a, felt it was time . . . to combine . . . utilities' systems into one agency. The City had just completed construction of a twenty-million-gallon-a-day treatment plant and had excess capacity. [Unincorporated] Escambia County had the .,. customers but not the facilities ." (T. 74) "Escambia County was faced with extending or having to go to the bond market to borrow significant money to built] treatment facilities . . . [but] it was more practical that the City and County get together." (T. 88) By special act the legislature created the ECUA to purchase and operate the water and sewer systems that had belonged to both City and County, and to exercise "all powers with respect to water and sewer, and such other additional utilities as may be hereafter designated . . . which are . . . could be, or could have been but for this act, exercised by the City of Pensacola or Escambia County, Florida." Ch. 81-376, Section 3, Laws of Florida, (1981). The ECUA came into existence on October 1, 1981, (T. 90) and now provides natural gas service (T. 95) at least outside the franchised area of the City of Pensacola. Ch. 85-410, Section 5(r), Laws of Florida (1985). The ECUA is authorized to provide utility services to the extent of its capacity to do so even in areas outside Escambia County. Ch. 85-410, Section 5(q), Laws of Florida (1985). The original Special Act transferred city and county utility employees to the ECUA "without loss of benefits, Ch. 81- 376, Section 9(c), Laws of Florida (1981j, and specifically provided, with respect to retirement benefits: (b) The authority may provide social security for its employees pursuant to the provisions of chapter 650, Florida Statutes, and may bring its employees under the Florida Retirement System, the State and County Officers and Employees Retirement System, or any other qualified retirement program. (c) . . . Employees who are transferred to the authority and who are members of the retirement systems available to employees of the City of Pensacola or Escambia County shall not lose those pension or retirement rights or any reserves accrued to their benefit during the period of their employment by the city or county. Such employees may elect to retain the pension and retirement rights accrued during the period of their employment by the city or the county. Any employee so electing shall give written notice of his election, within thirty (30) days or such longer period of time determined by the authority after the effective date of the transfer, to the City Manager of the City of Pensacola or to the County Administrator of Escambia Coutny, as appropriate, who shall then process the notice. In the event any employees elect to retain their pension and retirement rights accrued during the period of their employment with the city or the county, or prior to such election, the authority shall pay into the appropriate retirement system during the period that such employees remain as authority employees, such sums of money as are paid by the city or the county for the benefit of such employees in order to guarantee their continuing participation in such retirement program. The authority may make appropriate deductions from the employees' salaries to preserve their retirement benefits. Chapter 81-376 Section 9(d), Laws of Florida (1981) Escambia County joined the Florida Retirement System effective October 1, 1982. (T. 90) None of the individual petitioners were transferred to the ECUA by Chapter 81-376, Section 9(c), Laws of Florida (1981), although Terry D. Busbee, the Chairman, had worked for Escambia County for 18 years, as Supervisor of Taxes, (T. 58) and W. F. Hampton was employed with a governmental agency participating in the Florida Retirement System as early as 1977. Petitioners' Exhibit No. 3. ELECTED BOARD As required by Chapter 81-376, Section 4, Laws of Florida (1981), the Escambia County Commission selected three members of the ECUA Board, two of whom were county commissioners; and the Pensacola City Council selected three members of the ECUA Board, two of whom were city councilmen. These six then selected the seventh and final ECUA board member. Thereafter, a second Special Act, Chapter 83-403, Laws of Florida (1983) and then a third amended the original Special Act, to provide that the successor of the third County Commission appointee and the "successors of the members of the Board of County Commissioners] and [City] Council appointed to" Chapter 84-427, Section 1, Laws of Florida (1984), the ECUA Board, would be elected in 1984, while the terms of the other two ECUA board members would, "expire upon the commencement of the terms of the members," Chapter 84-427, Section 1, Laws of Florida (1984), elected to succeed the county commission appointees and the city council members. These five were "eligible for reelection." Chapter 81- 376 Section 4(c), Laws of Florida (1984). The four individual petitioners in the present case seek membership in the Elected State Officers' Class effective January 8, 1985, the date the successor terms began. By passing a resolution and signing an agreement effective October 1, 1982, (T. 108), the ECUA joined the Florida Retirement System and "decided to purchase past service back to October, '81, for all employees who were employed as of October 1st, '82." (T. 107) See Respondent's Exhibit No. 5. Beginning with the 1984 elections, candidates for the ECUA Board had to meet the same qualifications as candidates for county office and had to live in the county commission district they sought to represent. Each of the five single-member districts has the same boundaries as the corresponding county commission district. Terms of ECUA board members are staggered just as county commissioners' terms are and, beginning in January 1987, all members will be elected for four-year terms, as county commissioners are. Each ECU board candidate is subject to state election laws governing filing papers, qualifying fees and the like, to the same extent as candidates for county office are; and each takes an oath before entering upon the duties of the office. Petitioners' Exhibit No. 2. The ECUA is on the same fiscal year as Escambia County, October 1 to September 30 (T. 63) and its territorial; jurisdiction is coextensive with Escambia County. The ECUA has all of the duties that Escambia County and the City of Pensacola had relative to water and sewer, before ECUA's creation. (T. 65) The ECUA's principal source of revenue is utility charges, at rates which it is empowered to establish, Chapter 81-376, Section 8, Laws of Florida (1981), although it receives state and federal grants (T. 93); and has authority to borrow money, and has in fact issued bonds. (T. 80) For the fiscal year ending September 30, 1984, Escambia County paid $2,230,040 to the Social Security system while ECUA paid $342,402.00 Petitioners' Exhibits 4 and 5. POWERS AND DUTIES The Special Act confers on the ECUA "all privileges, immunities and exemptions accorded political subdivisions of this state," Chapter 81-376, Section 5(j), Laws of Florida (1981) and makes ECUA's "property, facilities, services and activities . non-taxable." Chapter 81-376, Section 6, Laws of Florida (1981). For purposes of the Public Records Act, but not for the purposes of the Administrative Procedure Act, Chapter 81-376, Section 4(g), Laws of Florida (1981) provides that the ECUA "shall be deemed to be an 'agency'." The same provision specifies that the ECUA "shall be deemed an agency or authority of the county for purposes of S.286.011, Florida Statutes, the "'Government in the Sunshine Law'." Although it once contracted for accounting services from the county, (T. 101), the ECUA budget is .separate and distinct from the county budget. The State Comptroller's Office has determined that ECUA "is an independent authority for purposes of Chapter 218," Deposition of Billy J. Givens, page 8, and the ECUA has not disputed this determination, possibly because it was never advised of the determination as such. The ECUA uses the same financial reporting form that counties and independent districts use in filings required by law to be made with the State Comptroller. The ECUA treats at least some "county buildings-as customers for water and sewer purposes." (T. 70) In the spring of 1985, ECUA switched the tags on its vehicles from county tags to state tags. (T. 98) The ECUA must apply to Escambia County for permits in order to cross county rights of way (T. 101), just as the City of Pensacola did when it operated its water and sewer system. (T. 102) The ECUA also has to apply for a permit in order to cross city rights of way. (T. 101) Deposition of Charles W. Bates page 7. COUNTY OFFICERS The "Florida Retirement System . . . is a statewide consolidated system that covers public programs and employee groups on all levels of government, state, county, school board, cities, special districts . . . ." Deposition of Andrew J. McMullian, III, page 13. State retirement programs before the Florida Retirement System, which came into existence on December 1, 1970, did not distinguish between elected officials and regular employees. Deposition of Ruth Sansom, page 16. After the Elected State Officers' Class had been created, the law was again amended, effective July 1, 1981, to make "county elected officials, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, school board member, or elected school board superintendent," Section 121.052(1)(g), Florida Statutes (1985), eligible for participation in the Elected State Officers' Class. Chapter 81-214, Laws of Florida (1981). Aside from holders of the offices named, the Comptrollers of Orange and Escambia Counties and the Mayor of Metropolitan Dade County are enrolled in the Elected State Officers' Class. (T. 40) Respondent viewed the Mayor of Metropolitan Dade County as differing in name only from a county commissioner and allowed participation in the Elected State Officers' Class on that account. (T. 50) With respect to the Orange and Escambia County Comptrollers, "the majority in one case of the duties of the Clerk were transferred to the Comptroller and in the other case, it seems like it was about a 50/50 split of the prior duties being transferred over to the Comptroller." (T. 50) In these circumstances respondent decided that "based on the functions that they were performing, the duties of the office, that whether the title said Comptroller or Clerk, they essentially fit the definition." (T. 50) In response to a question from respondent's Assistant Director, Lew Dennard, respondent's chief legal officer, Augustus Aikens, Jr., wrote a memorandum dated October 20, 1981. Petitioners' Exhibit No. 1. As phrased by Mr. Aikens, the question was whether the statutory language "limits membership in the Elected State Officers' Class to those elected county officers who are enumerated in Section 121.052(1)(g)?" In the memorandum, Mr. Aikens declared himself of the opinion that the language "any county elected officer" was intended to establish the class of individuals eligible for participation in the Elected State Officers' Class; and the term "including" followed by an enumeration of elected county officers was merely intended to be descriptive of the individuals eligible for inclusion in the Elected State Officers' Class as county elected officers. Accordingly, the class is not exhausted by the enumeration found in subsection (g). Other elected county officers are also includable in the Elected State Officers' Class. Petitioner's Exhibit No. 1. On November 6, 1984, however, respondent promulgated Rule 22B- 1.05, Florida Administrative Code, which did not make participation in the Florida Retirement System mandatory for any county officer and provided: Effective July 1, 1981, participation in the Elected State Officers' Class of the Florida participation in the Elected State Officers' Class of the Florida Retirement System shall be optional for the following elected county officers: sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, district school board member, and elected district school board superintendent. The elected officer may transfer to and participate in the Elected State Officers' Class by submitting an application to the Administrator within one year from July 1, 1981 if already in office on that date, or within one year from the date of election if elected after July 1, 1981. Officers appointed to fill an unexpired term may join the Elected State Officers' Class under this provision. An elected county officer who transfers to the Elected State Officers' Class and who fails to win reelection to an elected office shall cease to be a member of the class. If the member returns to a position covered under the Florida Retirement System he shall receive credit thereafter based on the class of membership of his position. 22B- 1.055(2)(d) In these proceedings, respondent takes the position that this rule provision, and the statutory language it implements preclude petitioners' participation in the Elected State Officers' Class of the Florida Retirement System.
Recommendation RECOMMENDED: That respondent grant the individual petitioners' requests to be included in the Elected State Officers' Class of the Florida Retirement System effective January 8, 1985. DONE and ENTERED this 27th day of February, 1986, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1986. COPIES FURNISHED: CARSON LINN, P.A. Cambridge Centre 253 East Virginia Street Tallahassee, Florida 32301 Ray Kievit 15 West Main Street Pensacola, Florida 32501 Andrew J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center Tallahassee, Florida 32303 Stanley M. Danek, Esquire Cedars Executive Center 2539 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303 APPENDIX Petitioners' proposed findings of fact one through five, seven through fourteen, sixteen, nineteen, twenty, twenty-three through twenty-seven, twenty nine, thirty-one, thirty-three, thirty-four and thirty-five have been adopted, in substance. Petitioners' proposed finding of fact six is supported by the weight of the evidence, except for the final sentence which states that ECUA board members are required to take the same oath of office as that sworn to by county commissioners." Although they are similar, the oaths are not identical. Petitioners' proposed finding of fact fifteen incorporates petitioners' exhibit 6 which is accurate except that it overlooks the initial two years (1985-1987) during which some of the ECUA board members have two-year terms. Petitioners' proposed findings of fact seventeen and eighteen fail to mention that ECUA also exercises powers and duties pertaining to what were city utilities. Petitioner's proposed finding of fact twenty-one is supported by the weight of the evidence except for the second sentence, which was not proven. Petitioners' proposed finding of fact twenty-two is accurate insofar as the date of the adoption of Rule 22B-1.055, Florida Administrative Code, but there was no competent evidence of the intent of the Division of Retirement, which, on this record, must be inferred from the language of the rule. Petitioners' proposed findings of feet twenty-eight, thirty and thirty-two pertain to the course of free-form proceedings, which became immaterial once formal proceedings began. Respondents' proposed findings of fact one through five, seven, eight, and nine have been adopted, in substance. Respondents' proposed finding of fact six is supported by the weight of the evidence, except that it was Ch. 83-403, Laws of Florida (l984) that made the ECOA board elective. After the Division informed Petitioners by letter dated April 17, 85 that they were ineligible "for membership in the Elected State Officers' Class", Petitioners filed their petition for formal administrative proceedings with the Division of Retirement on Hay 14, 1985. The petition was assigned to the Division of Administrative Hearings. The instant case was later consolidated with a rule challenge by Petitioners in DOAH Case No. 185-2518R. A Final Order in the rule challenge was entered by the Hearing Officer on February 27; 1986, holding that Rule 22B-1.055(2)(d), Florida Administrative Code, was an invalid exercise of delegated legislative authority. That Final Order was not appealed by the Division. HEARING OFFICER'S FINDINGS OF FACT Because the Division is accepting certain of the Hearing Officer's Findings of Fact and rejecting others in part, each finding of fact in the Recommended Order will be considered individually. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7. Accepted in part, rejected in part. The jurisdiction of the Authority is greater than the prior jurisdiction of Escambia County since it may provide utility service to areas outside Escambia County. See Paragraph 2 of Recommended Order. The only source of revenue possessed by the Authority is utility rates paid by customers of its systems. Funds obtained from bond issues, loans, or the federal government, are not considered as revenue. Paragraph 8: Accepted. Paragraph 9: Accepted in part. The phrase ".possibly because it was never advised of the determination as such" is rejected as having no support in the record. Paragraph 10. Accepted. Paragraph 11. Accepted. Paragraph 12. Accepted. Paragraph 13. Accepted. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT ESCAMBIA COUNTY UTILITIES AUTHORITY, W. F. HAMPTON, TERRY BUSBEE, GEORGE DAVIS, and WILSON B. ROBERTSON, Petitioners, vs. DOR Case No. DR85-5 DOAH Case No. 85-1718 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
