The Issue The issue is whether Petitioner took an in-service distribution from his Investment Plan retirement account, and if so, must either repay the distribution in full or terminate employment with all FRS-participating employers, including his current employer, Orange County (County), for six calendar months.
Findings Of Fact The FRS is comprised of the Pension Plan, which is a defined benefit plan, and the Investment Plan, which is a defined contribution plan. The Division of Retirement administers the Pension Plan, while the SBA administers the Investment Plan. Section 121.4501(13) charges the SBA with administering the Investment Plan in compliance with the Internal Revenue Code in order to retain its qualified status. Until March 4, 2014, Petitioner was a member of the FRS Pension Plan by virtue of his employment as a Lieutenant with the Orange County Fire Rescue Department. The County participates in the FRS. Effective March 1, 2014, Petitioner used his one-time Second Election to switch from the FRS Pension Plan to the FRS Investment Plan. He switched plans in order to have ready access to his FRS retirement funds should he be terminated from employment by the County. On March 4, 2014, Petitioner was terminated from his employment for allegedly violating County rules and regulations. On March 10, 2014, Petitioner filed a formal grievance seeking reinstatement and all benefits. The decision to terminate his employment was later upheld. After the grievance was denied, but before he took a distribution, Petitioner obtained legal representation and initiated a lawsuit against the County on the basis that he was terminated because of his race and gender. On June 19 and July 1, 2014, Petitioner withdrew distributions totaling $991,811.60 from his Investment Plan account. Before taking an Investment Plan distribution, a member is required to answer several questions, either on-line or by telephone, to verify that he is eligible to take a distribution. Petitioner requested his distributions by telephone. One question asks if the member is "pending reemployment," a term that means, among other things, the member is seeking reinstatement through a pending action against his employer at the time of the distribution. If a member answers yes, he is ineligible to take a distribution. Even though he had a pending discrimination lawsuit against his employer, which could lead to reinstatement if he prevailed, Petitioner answered no. Had he answered the question correctly, Petitioner would not have been allowed to take a distribution. The SBA does not check in real time the veracity of a member's answers to the questions asked during the distribution request process. Petitioner was advised by written information, however, that the SBA might undertake a later review of his distribution and seek repayment if it was determined to be invalid. During the distribution process, if a member has a question regarding the distribution or other financial topics, they are provided access to Ernst & Young planners on the MyFRS Financial Guidance Line. Although offered that educational resource, Petitioner stated he had no questions. On May 24, 2016, Petitioner and his former employer entered into a Settlement Agreement and Mutual General Release (Settlement Agreement) to resolve the discrimination lawsuit. Without admitting liability, the County agreed, among other things, for Petitioner to be reinstated to his former position with all seniority, benefits, and accrued back pay effective June 6, 2016. He also had service credit restored for the period March 2014 through June 2016. The Settlement Agreement further provided that a letter of reprimand would replace the termination notice. Petitioner was represented by an attorney during the settlement negotiations. The SBA was not a party to the agreement. Following the execution of the Settlement Agreement, but before payment of the settlement funds, the County was advised by the SBA that because Mr. McLean was being reinstated and the termination set aside, an in-service distribution had occurred in September 2015, and Mr. McLean would be required to either pay back the distribution in full or terminate employment with the County for at least six months. The County was also advised that a change to the language in the Settlement Agreement confirming that Mr. McLean had in fact been separated from employment with the County for a period of six months would resolve the in-service distribution issue and make it unnecessary to repay the distribution or be separated from employment with the County. This information was orally conveyed by the County to Petitioner's counsel. Despite this warning, Petitioner declined to modify the Settlement Agreement. The County reconfirmed this information in a letter dated June 14, 2016, to Petitioner's attorney. It read in pertinent part as follows: [T]his will confirm that you advised you met with Mr. McLean and counseled him on the potential implications of his acceptance of the enclosed payments under the Agreement (a copy of which was previously provided for your records), including the requirement that he repay to the Florida Retirement System (FRS) all sums that he previously received as disbursements from the FRS, and his responsibility for all penalties and tax consequences, if any, related to the Agreement payments and FRS disbursements. This will also confirm that although Orange County offered to enter into an alternate agreement form with Mr. McLean (for the same consideration) that would be acceptable to FRS and not require repayment of FRS disbursements, Mr. McLean elected to remain bound by the terms of the current Agreement and you advised Mr. McLean will make any FRS-related payments necessary. As we previously discussed, in the event Mr. McLean does not repay sums due and owing the FRS, Orange County will not repay such sums on his behalf. Further, in the event of Mr. McLean's non-repayment of funds to the FRS, we understand from Orange County that it may be compelled by FRS to separate Mr. McLean from his employment pursuant to applicable statutory laws, rules and regulations. In light of the serious consequences to Mr. McLean of non-repayment of the FRS funds, in an abundance of caution, Orange County once again advises that if an alternate form of settlement agreement that does not require repayment to FRS is preferred by Mr. McLean, Orange County stands ready to execute such an agreement in the form previously provided for your consideration. Jt. Ex. 8, pp. 0001-0002. This was fair warning to Petitioner that there were serious consequences if he chose to ignore the SBA's concerns. On June 15, 2016, Petitioner's counsel replied by letter that the settlement checks which accompanied the County's June 14 letter were cashed, Mr. McLean would not repay funds to the FRS, and Mr. McLean intended to return to work with the County. Id. at pp. 0003-0004. As of the date of the hearing, Petitioner had not repaid the distribution, and pending the outcome of this hearing, he has continued to work as a County employee pursuant to the Settlement Agreement. Based upon an audit by the Division of Retirement after Petitioner was reinstated, which showed that Petitioner had received a distribution, he was currently receiving FRS contributions from his employer, and he had no County termination date, the SBA determined the distribution was invalid. On August 1, 2016, Petitioner was notified by the SBA that his September 2015 distributions were considered "in- service" distributions based on reinstatement to his FRS-covered position and service credit given for the period from March 2014 through June 2016. He was offered the option of returning the distributions to his account by September 30, 2016, or being terminated by his employer, with leave to be reemployed by an FRS-participating employer after six months. A copy of the letter was also sent to the County. Petitioner declined this option and filed an appeal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order dismissing the Petition for Hearing and determining that unless Petitioner repays the distribution to FRS within 30 days from the date of the final order, he must be declared a retiree and ineligible for future participation in the FRS; any retirement contributions received from Petitioner or the County after his first distribution on September 4, 2015, must be returned; service credit awarded for the period from March 2014 through June 2016 must be vacated; and Petitioner must be immediately terminated from employment for at least six calendar months. DONE AND ENTERED this 21st day of December, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of December, 2016. COPIES FURNISHED: Jerry Girley, Esquire The Girley Law Firm, P.A. 125 East Marks Street Orlando, Florida 32803-3816 (eServed) Brian A. Newman, Esquire Pennington, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 (eServed) Sarah P.L. Reiner, Esquire GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Orlando, Florida 32801-2741 (eServed) Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race in violation of Pinellas County Code Chapter 70 (the Code).
Findings Of Fact The Department investigated the complaint of Petitioner and issued a determination on August 7, 2007, that reasonable cause exists to believe that Respondent discriminated against Petitioner on the basis of her race. Petitioner is an African- American female. At the hearing, Petitioner presented a prima facie case of discrimination that is undisputed in the evidentiary record. Respondent is an "employer." Respondent employed Petitioner from December 19, 2006, through February 16, 2007. Respondent employs approximately five employees. Respondent was the only African-American employee. Respondent paid Petitioner at the rate of $7.00 an hour. Petitioner performed the duties required by the terms of her employment in a competent and reliable manner. Petitioner received no complaints from her employer concerning the performance of her job duties. The first adverse employment action occurred on January 29, 2007, when Respondent reduced the hours for Petitioner's shift from 40 hours a week to 24 hours. The second adverse employment action occurred on February 5, 2007, when Respondent reduced the hours for Petitioner's shift to 16 hours. Respondent did not reduce the hours of any Caucasian employee. The final adverse employment action occurred on February 16, 2007, when Respondent terminated Petitioner's employment without cause and with no explanation. Respondent replaced Petitioner with a Caucasian employee who works a 40-hour schedule. No evidence of record shows that Respondent took any adverse employment action against a Caucasian employee. During the Department's investigation of this matter, the Department provided Respondent with repeated opportunities to respond to the allegations, to participate as a party subject to investigation, and to participate in mediation. Respondent has not responded to the allegations of racial discrimination. Petitioner submitted no proof of damages other than lost wages. The Code does not prescribe the methodology for calculating lost wages and interest. The Department interprets the Code to mean that Petitioner is entitled to lost wages through the date of the final order to be issued in this proceeding plus interest at the statutory rate prescribed by the chief financial officer of the state in accordance with Subsection 55.03(1), Florida Statutes (2007). The total amount of lost wages through the date of this Recommended Order is $16,856.00. The trier of fact calculated lost wages in the following manner. If Petitioner had suffered no adverse employment action, Petitioner would have worked 40 hours a week at $7.00 an hour for 62 weeks from January 29, 2007, through the date of this Order on April 11, 2008, for a total of $17,360.00. That amount is offset by the wages Petitioner earned after the first and second adverse employment actions in a total amount of $504.00. The difference between $17,360.00 and $504.00 is $16,856.00. The total amount of lost wages through the date of the Recommended Order, in the amount of $16,856.00, must be increased by the amount of lost wages from the date of the Recommended Order through the date of the final order to be issued in this proceeding. That amount will be determined according to the date of the final order if the final order does not modify the Recommended Order after receiving the parties' exceptions to the Recommended Order. No reduction to lost wages is made for wages earned by Petitioner from another employer after the date of the final adverse employment action on February 16, 2007. Neither Petitioner nor Respondent submitted any evidence that Petitioner earned wages from another employer or received unemployment benefits. The record deprives the trier of fact of a factual basis for an offset to lost wages owed by Respondent. The website of the chief financial officer prescribes rates of interest for current and past years to be utilized in determining interest due on judgments and decrees. The applicable interest rate for 2007 and 2008 is 11 percent. The interest rate will apply to the unpaid portion of the amount determined to be due, if any, in the final order until Respondent pays the amount due, if any. Petitioner is not entitled to attorney's fees and costs. Petitioner is pro se and submitted no evidence of having incurred attorney's fees or other costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding Respondent guilty of the allegations of racial discrimination against Petitioner and awarding Petitioner the lost wages and interest described in this Recommended Order. DONE AND ENTERED this 11th day of April, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2008. COPIES FURNISHED: Queenie E. Booth Post Office Box 35201 St. Petersburg, Florida 33705 Theresa Jones St. Petersburg Department of Community Affairs Post Office Box 2842 St. Petersburg, Florida 33731-2842 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Robert J. Molitar Oar Enterprises, Inc. 4807 22nd Avenue South St. Petersburg, Florida 33711
The Issue The issues are whether, in violation of sections 120.54(1)(a) and 120.56(4), Florida Statutes, Respondent has made an agency statement that is an unadopted rule in implementing a 2017 statutory amendment broadening the category of first-time test-takers to be counted when calculating the passing rate of the graduates of Petitioner’s prelicensure professional nursing education program (Program) and whether, pursuant to section 57.111, Petitioner may recover attorneys’ fees and costs from Respondent. At Petitioner’s request, the parties presented evidence concerning constitutional challenges that Petitioner intends to present to a district court of appeal.
Findings Of Fact The Program is a prelicensure professional nursing education program that terminates with an associate degree. Respondent approved the Program in 2013, thus authorizing Petitioner to admit degree-seeking students into the Program, as provided in section 464.019. As provided by section 464.019(5)(a)1., the passing rate of the Program’s graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which is ten points less than the average passage rate of graduates taking the NCLEX nationally for the first time. Until June 23, 2017, the passing rate of a Florida program was based only on first-time test-takers who had taken the exam within six months of graduating (New Graduates). Chapter 2017-134, sections 4 and 8, Laws of Florida, which took effect when signed into law on June 23, 2017 (Statutory Amendment), removes the six-month restriction, so that the passing rate of a Florida program is now based on all first-time test-takers, regardless of when they graduated (Graduates). The statutory language does not otherwise address the implementation of the Statutory Amendment. For 2015 and 2016, respectively, the minimum passing rates in Florida were 72% and 71.68%, and the Program’s New Graduates passed the NCLEX at the rates of 44% and 15.79%. As required by section 464.019(5), Respondent issued the Probationary Order. The Probationary Order recites the provisions of section 464.019(5)(a) specifying the applicable passing rate, directing Respondent to place a program on probation if its graduates fail to pass at the minimum specified passing rates for two consecutive years, and mandating that the program remain on probation until its passing rate achieves the minimum specified rate. The Probationary Order details the 2015 and 2016 passing rates of Petitioner’s relevant graduates and the minimum passing rates for these years. The Probationary Order makes no attempt to describe the condition of probation, which might have included a reference to New Graduates, other than to refer to section 464.019(5)(a)2., which, unchanged by the Statutory Amendment, specifies only that a program must remain on probation until and unless its graduates achieve a passing rate at least equal to the minimum passing rate for the year in question. For 2017, the minimum passing rate for a Florida program was 74.24%. If, as Respondent contends, the new law applies to all of 2017, six of the fifteen of the Program’s Graduates failed the NCLEX, so the Program’s passing rate was inadequate at 60%. If, as Petitioner contends, the old law applies to all of 2017, twelve of the Program’s test-takers were New Graduates, and only three of them failed, so the Program’s passing rate was adequate at 75%. Respondent clearly applied the Statutory Amendment retroactively to January 1, 2017, in the Order Extending Probation because the order states that that the passing rate of the Program’s Graduates for 2017 was only 60% and therefore extends Petitioner’s probationary status for 2018. The Order Extending Probation provides Petitioner with a clear point of entry to request an administrative hearing. Each party applies the Statutory Amendment without regard to the effective date of June 23, 2017, but Respondent reaches the correct conclusion: the passing rate of the Program’s graduates for 2017 was inadequate. The NCLEX is administered throughout the year, and the dates of graduation are available for Petitioner’s Graduates taking the NCLEX in 2017, so it is possible to calculate a combined passing rate, using only New Graduates under the old law for testing dates through June 22 and all Graduates under the new law for testing dates after June 22. From January 1 through June 22, 2017, five of the Program’s test-takers were New Graduates and they all passed. From June 23 through December 31, 2017, four of the eight Graduates taking the NCLEX passed the test. Combining these results for all of 2017, the Program’s passing rate was nine divided by thirteen, or 69%, which was inadequate for 2017.
The Issue Whether the demotion of Petitioner was in compliance with Florida Statutes, rules and regulations and for good cause shown.
Findings Of Fact The 1976 Florida Legislature caused a transfer of planning positions including that of Petitioner, Griesbaum, from the Department of Administration to the Department of Commerce, Division of Economic Development. Concurrent with this transfer of funds and positions, the Respondent, Department of Commerce, was in the process of reorganizing the existing structure of the Division of Economic Development. Organizational charts were introduced into evidence which showed the "before and after" organization of the agency as well as the organizational structure proposed by Respondent, Department of Commerce, to the Department of Administration for approval. The charts reflect the class title of Petitioner's previous position which was abolished, the proposed class title of the new position, and the class title ultimately approved by the Department of Administration. Their agency proposed that the position of "Development Administrator-Commerce (at , Paygrade 23)" was more properly described as a "Development Representative I (at Paygrade 21)". Thus, the "demotion" occurred as a result of the Department of Administration's reclassification. The reasons given by the witness, Cheryl Naylor, Department of Administration Classification Specialist, for assigning Paygrade 21 involved the nature and level of duties of the proposed position within the new organization. The position of Petitioner was thus abolished. After the abolition of the position of "Development Administrator- Commerce" and the establishment of the position of "Development Representative I" the Petitioner was given the opportunity of accepting the new position. He accepted the new position under protest rather than to be laid off. Petitioner contends: that the Department of Administration was too conservative in classifying his position and that it should have been classified at a higher paygrade; that the change of the classification from 23 to 21 was in effect a demotion for him; that the Respondent should reclassify the position to Classification 23. Respondent, Department of Commerce, contends: that it disagreed with the classification action of the Department of Administration; that it tried to have Petitioner's paygrade (23) preserved; that it was no fault of Respondent, Department of Commerce, that the position formerly held by Petitioner was changed in name and classification; that this is not a case of demotion but a case in which a position was abolished and a new position established at a new and lower classification; that the Petitioner in fact suffered no real hardship or prejudice by not getting a full fourteen (14) days notice of the abolition of his former position and the offer of the position which he accepted inasmuch as although a "demotion" did occur the corresponding cut in pay was only $6.33 per month.
Recommendation Dismiss the appeal. DONE and ORDERED this 5th day of August, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 Ken Hart, Esquire Department of Commerce 401 Collins Building Tallahassee, Florida 32304 Roger Griesbaum Route 2, Box 582-M Tallahassee, Florida 32301 ================================================================= ORDER REMANDING CAUSE TO HEARING OFFICER ================================================================= DEPARTMENT OF COMMERCE AND CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF ROGER GRIESBAUM, DOCKET 77-44 against DEMOTION by the DOAH CASE NO. 77-725 DEPARTMENT OF COMMERCE / ORDER REMANDING CAUSE TO HEARING OFFICER This case came on to be considered upon Recommended Order being entered by Hearing Officer, Delphene Strickland. This Commission, having considered said Order and Objections thereto, including letter from the Agency that the findings that the Appellant's position was transferred from the Department of Administration was in error remands this cause to the Hearing Officer for a determination and recommendation thereon. Accordingly, it is ORDERED that the Recommended Order, Exceptions and letters be returned to the Hearing Officer for her recommendation at the earliest possible time. DONE AND ORDERED this 16th day of December, A. D., 1977. CATHERINE W. CHAPIN, Chairman Career Service Commission CERTIFICATE OF SERVICES I hereby certify that a copy of the foregoing Order has been forwarded by Certified U. S. Mail, Return Receipt Requested, to Mr. Ken Hart, Attorney, Department of Commerce, 401 Collins Building, Tallahassee, Florida 32304, Ms. Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, 530, Carlton Building, Tallahassee, Florida 32304 and Roger Griesbaum, Route 2, Box 582-M, Tallahassee, Florida 32301, this 16th day of December, 1977. CAREER SERVICE COMMISSION BY: June K. McPaul ================================================================= SUPPLEMENTARY RECOMMENDED ORDER =================================================================
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute licensees under Chapters 455 and 475, Florida Statutes. Respondent holds Florida real estate license 0315624. Until May 25, 1993, Respondent was licensed as a salesperson with Richard J. Moncello, Monard Realty and Investments, 4241 John Young Parkway, Orlando, Florida 32804. The fee arrangement between Respondent and Mr. Moncello provided that Respondent received 90 percent of the commission on her transactions and Mr. Moncello received 10 percent. Respondent and Mr. Moncello had been friends since 1982. On April 21, 1993, Respondent negotiated a contract between Mr. and Mr. Jerrod Zlatkiss, sellers, and Ms. Julie B. Maienzi, buyer, for the purchase of real property for $42,000. Mr. Moncello had no knowledge of the transaction. Respondent was in the employ of Mr. Moncello at the time. The transaction closed on April 27, 1993. The total commission due from the sellers was $1,567.57. Of that amount, Mr. Moncello was entitled to $156.75 under the fee arrangement between Respondent and Mr. Moncello. At the closing, the closing agent issued check number 8422 for $567.57 to Respondent in part payment of the commission due from the sellers. The buyer executed a promissory note for $1,000 in favor of Respondent. Respondent delivered the check for $567.57 to Respondent's mother. Respondent's mother deposited the check to her account and subsequently issued a check to Mr. Moncello for $57.00. Respondent did not have a checking account. Her mother took care of Respondent's affairs. Respondent had been injured in an automobile accident and was taking prescription drugs for pain. She was incapable of operating a motor vehicle and had to be driven to and from the closing. Respondent has little or no recollection of the events surrounding the transaction in question, including the day of closing. Mr. Moncello subsequently discovered the transaction and terminated Respondent. The amount due and owing Mr. Moncello is $100. Respondent has caused the buyers to execute a new mortgage note in favor of Monard Investors Services, Inc., in the amount of $1,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating Section 475.25(1)(b), Florida Statutes. It is further recommended that Respondent be found guilty of violating Sections 475.25(1)(a) and 475.42(1)(b), be reprimanded and placed on probation for one year. DONE and ENTERED this 25th day of April, 1994, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 83-6802 Petitioner's Proposed Findings of Fact 1-15 Accepted in substance Respondents' Proposed Findings of Fact Respondent did not submit proposed findings of fact COPIES FURNISHED: Ms. Mary K. Conner, pro se 522 Orange Drive, #16 Altamonte Springs, Florida 32701 James H. Gillis, Esquire Senior Attorney Florid Department of Business and Professional Regulation Division of Real Estate Legal Section-Suite N308 400 W. Robinson Street, North Tower Orlando, Florida 32801-1772 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0729
The Issue Whether the Petition for Formal Administrative Hearing filed by the Respondent, Carlos Sasse, should be dismissed in part for failure to timely file. Whether the Petitioner, the School Board of Leon County, should have abolished Mr. Sasse's position of employment and failed to fulfill its contract of employment with Mr. Sasse.
Findings Of Fact Carlos Sasse's Employment with the School Board. In July, 1989, the Respondent, Carlos Sasse, was hired by the Petitioner, the School Board of Leon County. Mr. Sasse was hired as the Assistant Superintendent of Instruction (or a similarly designated position). Mr. Sasse's duties included the supervision of seven executive directors, the functioning of twenty-two elementary schools, seven middle schools, five high schools and a number of other programs. The Superintendent of the School District, William M. Woolley, recommended that Mr. Sasse be retained for the 1991-1992 fiscal year of the School Board. The School Board accepted the Superintendent's recommendation and reappointed Mr. Sasse as Assistant Superintendent of Instruction. The School Board's fiscal year runs from July 1st to June 30th. For the 1991-1992 fiscal year the School Board approved (on April 16, 1991), and Mr. Sasse accepted, the employment of Mr. Sasse for twelve months beginning July 1, 1991, at a salary of approximately $60,000.00, plus fringe benefits. No written contract of employment between the School Board and Mr. Sasse for the 1991-1992 fiscal year was entered into. The School Board admitted, however, in its Answer filed in this case that Mr. Sasse was employed pursuant to an annual contract of employment. Mr. Sasse has performed his duties with the School Board in a satisfactory manner. The School Board's 1991-1992 Budget. The School Board is charged by law with the responsibility to operate, control and supervise all public schools within the School District. In fulfilling its responsibilities, the School Board is required to approve a budget for the operation of the school system. Toward this end, the School Board approved the budget for the 1991-1992 school year (hereinafter referred to as the "1991-1992 Budget"), on September 17, 1991. See Petitioner's Exhibit 1. Consistent with the requirements of Florida law (Section 237.061, Florida Statutes), the 1991-1992 Budget was a balanced budget. That is, projected expenditures did not exceed projected sources of funds. At the time the School Board approved the 1991-1992 Budget, the School Board members were aware of the unfavorable economic conditions impacting the budget. The School Board had taken actions prior to the 1991-1992 fiscal year to reduce expenditures by reducing approximately seventy-five positions totaling almost $2.5 million. The 1991-1992 Budget consisted generally of five "funds": (a) a general operating fund; (b) a special revenue fund; (c) a capital improvement fund; (d) a debt service fund; and (e) a trust and agency fund. The general operating fund is the fund providing for the budget for the School Board's educational and support service programs. The School Board was somewhat restricted in the use of monies between funds. For a more detailed description of the various funds (other than the general operating fund), see proposed findings of fact 7-10 of the School Board's proposed recommended order. The final 1991-1992 Budget provided for approximately $131 million of expenditures and, excluding certain fund balances, approximately $125 million of revenues. State revenue accounted for approximately 72% of the general operating fund of the 1991-1992 Budget. Approximately 82% of the general operating fund was earmarked for salaries and employee benefits for the approximately 4,000 employees of the School District. In approving the 1991-1992 Budget the School Board established certain priorities, which the School Board sought to achieve through the 1991-1992 Budget. For more details concerning those priorities, see the School Board's proposed findings of fact 14 and 15. The Unappropriated Fund Balance. Although not required by statute, it is generally recognized within the public agency sector that public agencies, such as the School Board, should attempt to maintain an amount of money as an "unappropriated fund balance" (hereinafter referred to as the "Fund Balance"), or as a reserve equal to approximately 5% of the total operating budget. In an effort to establish a Fund Balance, the School Board adopted Rule 6.01, Rules of the School Board. Rule 6.01 provides, in pertinent part: (14) . . . . The School District shall establish and maintain an annual contingency reserve of no less than 1% of the total general fund effective with the 1990-91 fiscal year, increasing by as much as 1% per fiscal year thereafter until stabilizing at 5% subject to an annual financial review by the Board during the budget process. This reserve shall provide for temporary funding of unforeseen needs of an emergency or non- recurring nature. . . . The Fund Balance was separate from another contingency fund created by Rule 6.01. For the 1990-1991 fiscal year, the School Board's goal of a 1% Fund Balance was achieved. The Fund Balance at the end of the 1990-1991 fiscal year was $7,841,954.00. For the 1991-1992 Budget, however, the School Board was required to utilize the Fund Balance to meet "unforeseen needs of an emergency or non- recurring nature." As a result of severe revenue restrictions, the School Board was required, and decided as part of its approval of the 1991-1992 Budget on September 17, 1991, to utilize approximately $5,167,746.00 of the Fund Balance. At the time the 1991-1992 Budget was adopted, the School Board anticipated that it would receive approximately $2.6 million more in total general operating fund revenues than it had in the previous fiscal year. It also anticipated expenditures of approximately $10 million over the previous fiscal year because of increases in salaries, fringe benefits, carry over obligations and other expenses. Therefore, it was anticipated that expenditures would exceed revenues by approximately $7.4 million. The School Board decided to offset the projected 7.4 million excess, in part, by using $5.2 million of the Fund Balance. This resulted in a projected Fund Balance of only $2,674,208.00. The School Board approved the 1991-1992 Budget with a projected Fund Balance of $2,674,208.00, less than its 1% goal. Rule 6.01, however, recognizes the possibility that the Fund Balance may have to be used. While Rule 6.01 establishes a 5% goal for the Fund Balance, it does not require that this goal be achieved within any particular time period. Anticipated Shortfalls in State Funding and the School Board's Response Thereto. Between September 17, 1991, and November 5, 1991, the School Board was informed that the State of Florida had predicted that the anticipated revenues to be paid to the School District by the State would likely be $3,300,000.00 less than previously anticipated. After applying an emergency 1% fund and other funds to offset this anticipated reduction in revenues, the School Board was faced with a reduction of approximately $1,550,000.00 in its projected revenues for the 1991-1992 Budget. The School Board met on November 5, 1991, to consider what action to take to respond to the anticipated short-fall in State funding. During this meeting, the School Board heard from, among others, Lee Legutko, the Chief Financial Officer of the School District. After hearing from the Chief Financial Officer, the School Board directed the Superintendent to prepare for consideration at a November 19, 1991, meeting of the School Board a number of budget-reducing and other budget-related items. Among the items to be prepared for consideration was the following: the abolishment of the following positions effective December 31, 1991 as shown below: * ....Executive Director of Operations ....Executive Director of Student Services ....One position in Information Services ....Assistant Director of Educational Media ....Athletic Complex Foreman ....District Auditor ....Internal Accounts Auditor * Executive Director of Facilities ....Assistant Superintendent for Instruction ....Assistant Superintendent for Administration *Combine [Emphasis added]. At the November 5, 1991, School Board meeting, the School Board directed the Superintendent to notify the persons who were in the positions under consideration for abolishment that the School Board would consider the issue at the November 19, 1991, meeting. By letter dated November 12, 1991, from the Superintendent to Mr. Sasse, Mr. Sasse was informed of the School Board's action at the November 5, 1991, meeting. Among other things, the Superintendent told Mr. Sasse: At [the November 19, 1991] meeting, the Board may take formal action to abolish the position currently filled by you effective December 31, 1991. Any such abolishment of your position will be without prejudice to your right to petition the Board for a subsequent hearing with respect to your right of employment in and the availability of other positions for which you may be qualified. [Emphasis added]. The Superintendent went on to inform Mr. Sasse of the place and time of the meeting, he invited Mr. Sasse to attend and "present your position" (including through a written statement) and he assured Mr. Sasse that the Superintendent was committed to assisting persons adversely affected to "find other employment within the District with no break in service." The Superintendent ended the letter by assuring Mr. Sasse that he would make no recommendation until the November 19th meeting. Mr. Sasse was not advised in the November 12, 1991, letter, or otherwise, that his position was abolished or as to any due process rights he might have to contest any action adversely affecting Mr. Sasse's employment contract with the School Board. Mr. Sasse received the November 12, 1991, letter from the Superintendent. The School Board met on November 19, 1991. Among the items considered during this meeting was the abolishment of Mr. Sasse's position and the other positions the Superintendent had been requested to consider. Mr. Sasse was aware of the fact that the abolishment of his position would be considered prior to the meeting. He attended the meeting and, therefore, was aware of the School Board's action concerning his position during the November 19, 1991, meeting. Counsel for Mr. Sasse spoke on his behalf at the November 19, 1991, meeting. The Chief Financial Officer of the School District informed the School Board at the November 19, 1991, meeting, as he had at the November 5, 1991, meeting, that the 1991-1992 Budget would be balanced as required by law even if the School Board did not abolish Mr. Sasse's position (or the other positions being considered for abolishment). The Chief Financial Officer notified the School Board that the Fund Balance for the 1991-1992 Budget would be $260,758.00 if all eight of the positions the School Board had identified for consideration at its November 5, 1991, meeting were abolished effective December 31, 1991. Upon a motion being duly made, the School Board voted three to two to abolish the positions the School Board had identified for consideration at its November 5, 1991, meeting, including the position of Mr. Sasse. The positions were all eliminated effective December 31, 1991. Later during the November 19, 1991, meeting, the School Board voted to reinstate one of the eight abolished positions. Therefore, ultimately, the School Board eliminated seven positions, including Mr. Sasse's. The manner in which Mr. Sasse's position was eliminated consisted of a vote of the School Board to eliminate the position and the adoption of an amendment to the 1991-1992 Budget to eliminate funding for Mr. Sasse's position for the second half of the 1991-1992 fiscal year. The School Board also approved other amendments to the 1991-1992 Budget at the November 19, 1991, meeting. The abolishment of Mr. Sasse's position resulted in a savings in the 1991-1992 Budget of approximately $40,609.00. The net savings attributable to the abolishment of the seven positions eliminated was approximately $165,000.00. After all the amendments to the 1991-1992 Budget approved on November 19, 1991, the Fund Balance was projected to be $192,442.00. Therefore, the Fund Balance was sufficient to provide the funding necessary to fulfill the School Board's annual contract with Mr. Sasse from the Fund Balance. According to the Chief Financial Officer, it was not necessary to abolish Mr. Sasse's position in order for the School Board to maintain a balanced budget. The Superintendent recommended to the School Board that all of the positions other than Mr. Sasse's be eliminated. The Superintendent recommended that the School Board not eliminate Mr. Sasse's position based upon the Chief Financial Officer's advice to the School Board and the Superintendent's perceived need for the position. The Superintendent has subsequently, however, indicated that the loss of the position has actually had some positive impact on the administration of the Leon County school system. The School Board did not undertake any study or review of the administration of the School District before determining which positions, if any, should be considered for elimination prior to its action on November 19, 1991. It did take such action after the fact. Prior to reaching its decision on November 19, 1991, the School Board did not receive evidence or testimony or provide other due process safeguards to Mr. Sasse. The weight of the evidence failed to prove that the projected Fund Balance as of November 19, 1991, could not have been used to fulfill Mr. Sasse's employment contract for the entire fiscal year. After abolishing Mr. Sasse's position and the other positions the School Board directed the Superintendent to take the following actions: . . . promptly advice those persons whose positions have been abolished by the action of the Board, advise those persons of any vacant positions for which they may seek to be considered and to suggest to those affected persons that they make known their interest in any such vacancies within the next several weeks. . . . The motion to abolish Mr. Sasse's position and the other positions adopted by the School Board also expressly provided that the School Board's actions was "subject to the right of the incumbents to file a petition with the Board for a subsequent hearing for the purposes of determining whether there are other vacant positions for which these persons are qualified " The weight of the evidence failed to prove that were not other reasonable alternatives to breaching its contract with Mr. Sasse available to the School Board to address the budget problems. For example, the School Board failed to refute evidence presented by Mr. Sasse concerning the possibility of furloughing administrative staff for one day. The School Board also failed to refute evidence presented by Mr. Sasse that the School Board normally has lapsed salary (amounts budgeted to be paid for salary which are not used because of vacancies) which has averaged $1 million a year. At the time of the final hearing of this matter, the anticipated carry forward in revenues for the 1991-1992 fiscal year was $1.1 million. Efforts to Place Persons in Abolished Positions in Other Positions. Subsequent to the November 19, 1991, meeting, Mr. Dave Giordano, the Director of Personnel Services of the School District, considered alternatives for placing the persons in other positions within the school district whose positions had been abolished. The alternatives were discussed with the Superintendent and other administrative staff. A memorandum dated November 22, 1991, was written by Mr. Giordano to Mr. Sasse and was provided to Mr. Sasse. The memorandum notified Mr. Sasse that the School Board had directed that Mr. Sasse "be allowed, without prejudice, to apply for other positions within the school district." Mr. Giordano requested that Mr. Sasse notify him in writing within the next three weeks of any positions he wished to be considered for. A copy of a list of eight vacant and available positions was provided to Mr. Sasse with the memorandum. Three days after Mr. Giordano prepared his November 22, 1991, memorandum to Mr. Sasse, Mr. Giordano prepared a memorandum to the Superintendent setting forth for consideration a possible plan for the placement for the displaced employees into the vacant and other existing positions Mr. Sasse had been informed of. The plan of placement set out in Mr. Giordano's November 25, 1991, memorandum was based upon the discussions between the Superintendent and staff that had already taken place. Based upon the plan, Mr. Sasse was being considered for the position of Director of Co-Curricular Activities. On December 10, 1991, before the expiration of the three week period in which Mr. Sasse had been told to respond to Mr. Giordano's memorandum, the School Board met. At the December 10, 1991, meeting, all of the persons whose positions had been abolished on November 19, 1991, except Mr. Sasse, were recommended by the Superintendent for placement in other positions. The Superintendent's recommendation was approved by the School Board. The weight of the evidence failed to prove that the School Board took any action, other than Mr. Giordano's memorandum of November 22, 1991, to place Mr. Sasse in a vacant position which would insure that the School Board's contractual obligation to Mr. Sasse for the remainder of the fiscal year was fulfilled. By letter dated December 11, 1991, counsel for Mr. Sasse informed the Superintendent that Mr. Sasse understood (based upon Mr. Giordano's November 25, 1991, memorandum) that the Superintendent was considering placing Mr. Sasse in the Director of Co-Curricular Activities position. Counsel indicated that "Mr. Sasse would be willing to accept such an appointment provided that he remain at his contractually agreed price pay grade for the remainder of his contract period." Counsel went on to explain that the apparent difference in his current salary and the salary for the Director of Co-Curricular Activities he was being considered for of $7,363.20 for the second half of the fiscal year was contrary to his contract with the School Board and was not acceptable to Mr. Sasse. The School Board did not respond to counsel for Mr. Sasse's letter of December 11, 1991. As of December 10, 1991, the only vacant position available to Mr. Sasse that he had been informed of by the School Board was the Director of Co- Curricular Activities, which remained open and available as late as the day the final hearing in this case was conducted. Mr. Sasse was qualified, ready and able to serve as the Director of Co-Curricular Activities during the period from January 1, 1992, to June 30, 1992. He was also willing to serve in that position if the conditions of his contract with the School Board concerning salary were met and so notified the School Board. The School Board made no additional effort to place Mr. Sasse in any position as of January 1, 1992, or to otherwise fulfill its contract with him for the second half of the fiscal year. Mr. Sasse has remained willing an able to fulfill the terms of his employment contract with the School Board. No action has been instituted pursuant to Section 231.36, Florida Statutes, to terminate Mr. Sasse's contract for just cause. The School Board had a rule governing the manner in which employees may be terminated. Rule 6Gx37-2.36. This rule was not followed by the School Board. Request for Hearing. Mr. Sasse has never been informed that his position has been terminated and the School Board did not intend to take any further action to find a position for him which would fulfill their contract with him for the second half of the fiscal year. The School Board has also failed to provide notice to Mr. Sasse of the reason why his contract was not fulfilled, his right to request a hearing on the actions of the School Board or the time within which he must request a hearing. On January 27, 1992, Mr. Sasse served a Petition for Formal Administrative Hearing with the School Board. Although not served with twenty-one days after Mr. Sasse's position was abolished, it was served with twenty-one days after it first became definite that the School Board did not intend to comply with its contract with Mr. Sasse by placing him in another position or by any other means.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order in this matter providing for the payment to Carlos Sasse of all salary and benefits to which he would have been entitled had he been allowed to fulfill his contract of employment for the period January 1, 1992, to June 30, 1992, It is further RECOMMENDED that the School Board make contributions to the State of Florida retirement system on behalf of Mr. Sasse to insure that he receives any retirements he would have been entitled to had he been allowed to fulfill his contract of employment for the period January 1, 1992, to June 30, 1992. If the School Board is unable to comply with this recommendation, the Sc hool Board should pay Mr. Sasse an amount equal to the present value of any retirements he would have earned for the period January 1, 1992, to June 30, 1992. It is further RECOMMENDED that the School Board take the actions necessary to insure that Mr. Sasse receives credit toward retirement for the period January 1, 1992, to June 30, 1992. DONE and ENTERED this 3rd day of August, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The School Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Order of Fact Number of Acceptance or Reason for Rejection 1 8. 2 3. 3 4. 4 9 and 12. 5 15. 6 14. 7-10 See 13. 11 17-18 and 20-21. The suggestion that the final budget was adopted November 19, 1991, is not supported by the evidence. The final budget for the 1991-1992 fiscal year was, according to the Chief Financial Officer of the School District, adopted September 17, 1991. It was subsequently amended on November 19, 1991. 12 17. 13 Hereby accepted. 14-15 See 16. 16 21. Hereby accepted. Although this finding of fact is true, the evidence also proved that increases in expenditures were approved. For example, $363,000.00 of expenditures excluded from the 1990- 1991 budget were approved for the 1991- 1992 Budget. There were also new expenditures, referred to as "enhancements or expansions" of approximately $64,836.00 approved for 1991-1992. Hereby accepted. 19 23-24. 20 26. The Fund Balance referred to was contingent upon no cuts being made, which the facts proved did not occur. 21 27. 22 28. The last sentence is hereby accepted. 23 32 and 41. 24 34. 35 and 46. The last sentence is not relevant. Although correct, the reasons for the position cuts were those of one School Board member. The evidence failed to prove that the School Board adopted those reasons. 27 45. 28 35 and 37. 50. The last sentence is not relevant. 52 and hereby accepted. See 54. Mr. Sasse's Proposed Findings of Fact Proposed Finding Paragraph Number in Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 Hereby accepted. 3-4 3. 5 5. But see 6. 6 28-29. 7 35 and hereby accepted. 8 36. 9 11, 18 and 20. 10 9 and 14. 11 38. 12-13 33 and 40. 14-15 See 47. 16 52 and hereby accepted. 17 50. 18 51. 19 52. 20 52 and 58. 21 54 and 57. 22 57. 23 59. 24 58. 25 7. 26 60. 27 61. 28 Hereby accepted. 29 41. 30 42. 31 43. 32 48. COPIES FURNISHED: C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302 J. David Holder, Esquire 1408 North Piedmont Way Suite 100 Tallahassee, Florida 32312 Honorable Betty Castor Commissioner of Education The Captiol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Mr. Bill Woolley, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 =================================================================
The Issue Is Petitioner entitled to attorney's fees and costs pursuant to Section 57.111, Florida Statutes, The Florida Equal Access to Justice Act, and Rule 22I- 6.035, Florida Administrative Code?
Findings Of Fact Petitioner herein, Jules G. Minkes was the Respondent in a license disciplinary proceeding styled Department of Professional Regulation, Board of Osteopathic Medical Examiners, DOAH Case No. 88-3749. That underlying case was resolved by a Notice of Voluntary Dismissal served by the Department of Professional Regulation attorney on December 9, 1988. It was filed with the Division of Administrative Hearings on the same date. On December 16, 1988, the undersigned entered an Order providing in pertinent part, "This cause came on for consideration upon Petitioner's Notice of Voluntary Dismissal, which, by operation of law, dismisses this cause and the file of the Division of Administrative Hearings is accordingly CLOSED." On February 13, 1989 the Petition and Affidavit for attorney's fees, together with supporting documents and a Memorandum in support of the petition were filed with the Division of Administrative Hearings. The Petition was served by mail on February 10, 1989. It does not specifically request an evidentiary hearing. This fees and cost cause was subsequently styled as Minkes v. Department of Professional Regulation, Board of Medical Examiners, DOAH Case No. 89-0792F. On February 28, 1989, Respondent filed an Answer which was "sworn and subscribed" by the DPR attorney. The Answer constitutes a general denial of all allegations and demands "strict proof" of the attorney's fees and costs set forth by Petitioner's pleadings, but contains no itemized counter-affidavit challenging the reasonableness of the attorney's fees and costs claimed by Petitioner as contemplated by Rule 22I-6.035(4) and (5)(a), Florida Administrative Code. The answer also alleges substantial justification for the underlying action and "special circumstances" which would render unjust any award of fees and costs. These latter two allegations are made without any particularity as to what constitutes the "justification" or the "special circumstances." The Answer makes no specific request for evidentiary hearing beyond the demand for "strict proof" of "whether and/or to what extent" fees and costs were incurred by Petitioner. No counter-affidavit or request for evidentiary hearing has been filed to date. See, Rule 22I-6.035(4), (5) Florida Administrative Code.
