Findings Of Fact Florida law requires that persons employed to serve in instructional capacities in the public schools hold valid certificates to teach. The Respondent, Florida Department of Education, is charged by statute with the responsibility of issuing such teaching certificates, and with the concomitant responsibility to suspend or revoke teaching certificates under appropriate circumstances. Sections 231.14 - 231.28, Florida Statutes. Purporting to act under authority of this statutory framework, the Respondent has adopted Rules 6A-4.37, and 6B-2.01 through 6B-2.17, Florida Administrative Code, as its rules establishing practices to be followed in suspending or revoking teaching certificates. The Respondent's rules establish a procedure whereby a teacher charged with conduct that would justify suspension or revocation of a teaching certificate is presented with the options of taking no action, which results in informal procedures at which the appropriate penalty is the only issue; or of requesting a hearing. If a hearing is requested, the teacher is permitted to choose between a hearing conducted by a Hearing Officer of the Division of Administrative Hearings as provided in Section 120.57(1), Florida Statutes, or a hearing conducted by a panel of the Professional Practices Council ("PPC" hereafter). Rule 6A-4.37(2) provides in pertinent part as follows: When the commissioner of education finds that probable cause exists, he shall direct a filing of a formal petition against the certificate holder for the revocation or suspension of a teacher's certificate, together with a form permitting waiver of a hearing officer pursuant to section 120.57(1), Florida Statutes, as hereinafter provided. If section 120.57(1), Florida Statutes, shall be waived by both the respondent and the chairman of the professional practices council by executing and filing the waiver form with the commissioner of education within twenty (20) days from service of the petition upon the respondent, the commissioner of education shall direct the chairman of the professional practices council to prosecute the matter before a hearing panel of three members of the professional practices council each of whom has not participated in nor was an informed party in any preliminary investigation of the cause. If section 120.57(1) Florida Statutes, is not waived by the parties, the matter shall be prosecuted before a hearing officer of the division of administrative hearings. The professional practices council may retain an attorney to prosecute the cause. The professional practices council may retain a different attorney to advise the hearing committee and act as a law officer for said committee. On completion of the hearing as hereinafter set forth, the hearing panel or officer, shall transmit through the commissioner of education to the state board of education a transcript of the proceedings and a report, which shall contain specific findings of fact, conclusions of law, interpretations of rules and a recommended order. The state board of education shall review the transcript of testimony and the report. The waiver form utilized is as follows: WAIVER OF RIGHT TO A HEARING BEFORE A HEARING OFFICER OF THE DIVISION OF ADMINISTRATIVE HEARINGS IN PREFERENCE TO A HEARING BEFORE A PANEL OF THE PROFESSIONAL PRACTICES COUNCIL In the matter of the revocation of the teaching certificate of and pursuant to the provisions of 120.57, Florida Statutes, I hereby waive my right to a hearing before a hearing officer of the Division of Administrative Hearings. In the alternative I do hereby request that this matter be heard before a panel of professional educators from the membership of the Professional Practices Council as provided in 6A-4.37, Rules of the State Board of Education. DATE RESPONDENT The remaining paragraphs of 6A-4.37 delineate specific procedures to be followed whether the hearing is conducted by a Hearing Officer, or by a PPC panel. The rule was adopted at a May, 1977 meeting of the State Board of Education. Prior to its adoption, public hearings were conducted, and members of the public, including the Petitioner, were allowed an opportunity to comment. The Joint Administrative Procedures Committee of the Florida Legislature reviewed the rule. The rules set out at Chapter 6B-2.01 through 6B-2.16, Florida Administrative Code, establish additional procedures for public hearings conducted by the PPC. These rules pertain to teaching certificate suspension or revocation proceedings and to other matters. They are in large part inconsistent with the provisions of Rule 6A-4.37, and with the Administrative Procedure Act (Ch. 120, Florida Statutes). The rules are no longer followed by the PPC except those provisions which relate to the appointment of a law officer to aid a PPC panel in conducting hearings. The Respondent has been in the process of revising these rules for more than one year. Rule 6B-2.17 relates to probable cause hearings to be conducted by an executive committee. The rule is somewhat vague, but it appears to relate to proceedings under Section 231.57, Florida Statutes, rather than teaching certificate suspension or revocation proceedings. The rule does not relate to the issue of whether a final hearing will be conducted by a Hearing Officer of the Division of Administrative Hearings, or a panel of the PPC. During 1977, three-member PPC panels conducted thirteen hearings in teaching certificate suspension or revocation proceedings. Fourteen such hearings were conducted by Hearing Officers. During 1978, eighteen were conducted by PPC panels, and eleven by Hearing Officers. The Petitioner, Florida Education Association/United AFT-AFL-CIO, is a statewide organization composed of persons involved in the field of education. The members are primarily teachers. The Petitioner is a confederation of local affiliates. Its local affiliates serve as collective bargaining representatives for teachers in approximately half of the local school districts in Florida. Among the Petitioner's functions are to protect its members, and members of the teaching profession with respect to the terms and conditions of their employment as teachers. The Petitioner provides services which local affiliates are largely unable to perform, including legal assistance and lobbying assistance. In many instances the Petitioner provides legal counsel to its members in connection with teaching certificate suspension or revocation proceedings. At the Petitioner's October, 1978 convention, its members authorized Petitioner's executive council to examine the status of the PPC, and to take steps to clarify the role of the PPC. The instant rule challenge was authorized by the executive council in accordance with that mandate of the membership. There are approximately 90,000 teachers in Florida. The Petitioner represents approximately 30,000 of them.
Findings Of Fact Based upon the testimony of the witnesses, the documentary evidence received at the hearing, and the record in DOAH case no. 88-6257, the following findings of fact are made: On October 24, 1988, the Department notified Sophie DeRuiter and Ann & Jan Retirement Villa that the license to operate an adult congregate living facility expired on October 23, 1988, and that the application for renewal was denied. The specific reasons listed as the grounds for such denial were a determination of confirmed medical neglect of residents and the inappropriate retention of residents. Thereafter, Petitioner timely sought an administrative review of the denial by filing a petition for administrative hearing with the Department which was subsequently forwarded to the Division of Administrative Hearings for formal proceedings on December 16, 1988. That matter was assigned DOAH case no. 88- 6257. Hearing of case no. 88-6257 was originally scheduled for March 17, 1989, by notice of hearing dated January 18, 1989. Thereafter, Petitioner scheduled a number of depositions and requested a continuance in the case to accommodate Sophie DeRuiter. That motion was unopposed by the Department and was granted by order entered February 27, 1989. That order also rescheduled the hearing for April 14, 1989, and required the parties to file a prehearing statement no later than March 24, 1989. Neither party timely filed a prehearing statement. In fact, the parties were unable to agree on a statement due to their disagreement as to the issues of the case. The unilateral statements filed by the parties established that Petitioner sought review of all grounds for the denial of the license renewal. On the other hand, the Department took the position that since Sophie DeRuiter was listed on the Florida Abuse Registry for confirmed medical neglect of residents, that such listing precluded renewal of the license. The Department alleged that Petitioner had not timely challenged the abuse report, and that such record could not be challenged in the instant case. The Department's letter denying amendment or expungement of the medical neglect had been issued December 7, 1988. Given the confusion of the parties and their failure to file prehearing statements as required, the hearing scheduled for April 14, 1989, was cancelled. Subsequently, the Department moved to limit the issue to whether there was a confirmed record of an abuse report (and thereby presume the underlying report correct). Such motion was denied on June 1, 1989. On June 9, 1989, the hearing of this matter was convened. At that time, the Department moved to continue the case due to illness of counsel and her inability to review an amended witness list filed by Petitioner. The motion was granted after it was apparent counsel for the Department was unprepared to go forward on all issues of the case (she represented she had just received the order requiring her to go forward on all issues on June 8, 1989). The case was rescheduled for August 10, 1989. Subsequently, the matter was continued again at Petitioner's request. The case was finally scheduled for hearing for September 8, 1989. The Petitioner filed a motion for summary judgment on August 14, 1989. On September 7, 1989, the Department filed a notice of dismissal which was construed as an assent, in whole or in part, to the relief requested by the Petitioner. Consequently, the hearing was cancelled and jurisdiction was relinquished to the Department for such further action as would be appropriate. It was presumed that the abuse record would be expunged which would result in the reinstatement of the license. The Petitioner in the instant case has not, however, established the final resolution of DOAH case no. 88-6257. Petitioner did not comply with Rule 22I-6.035, Florida Administrative Code by attaching the documents on which the claim that the small business party prevailed was predicated nor was proof of such document offered at the hearing of this matter. Sophie DeRuiter is the administrator and owner of Ann & Jan Retirement Villa which is located at 3486 Rostan Lane, Lake Worth, Florida. According to the style of the initial pleading filed by Petitioner in the instant case, Ann & Jan Retirement Villa has been incorporated. The proof offered at hearing suggested that Sophie DeRuiter is the sole proprietor of a business known as "Ann & Jan Retirement Villa." In August, 1988, Ms. DeRuiter employed approximately four full-time employees. In the three years she has owned and operated the facility, Ms. DeRuiter has never employed more than twenty-five full-time employees. The net worth of Ann & Jan Retirement Villa is less than two million dollars. Ms. DeRuiter's personal net worth is less than two million dollars. The combined worth of Ann & Jan Retirement Villa and Ms. DeRuiter is less than two million dollars. Ms. DeRuiter employed the law firm of Weissman and Chernay, P.A. to represent her in connection with the allegations in DOAH case no. 88-6257. In connection with that case, Ms. DeRuiter incurred legal fees in the amount of $8587.50 together with costs in the amount of $897.59. The reasonableness of those amounts was not disputed.
The Issue The issue is whether the Department of Financial Services properly assessed a penalty on Petitioner for working in violation of a reinstated Stop-Work Order.
Findings Of Fact The Division is charged with the regulation of workers' compensation insurance in the State of Florida. Petitioner, Extraordinaire Home Improvements, Inc. (Extraordinaire Homes), is a corporation located in Jacksonville, Florida, and is engaged in the business of building construction, primarily roofing. Charlie Sakakini is the owner of Extraordinaire Homes. On October 20, 2004, the Division issued a Stop-Work Order and Order of Penalty Assessment. On October 29, 2004, the Department issued an Amended Order of Penalty Assessment to Petitioner in the amount of $8,079.29. Also on October 29, 2004, the parties entered into a Payment Agreement Schedule for Periodic Payment of Penalty wherein Mr. Sakakini agreed to remit monthly payments on behalf of Extraordinaire Homes to the Division in the amount of $589.95 for 11 months. The payment schedule informed Petitioner that failure to comply with the terms of the agreement would result in the immediate reinstatement of the Stop-Work Order. The Division issued an Order of Conditional Release from Stop-Work Order the same day the agreement was signed. Petitioner, through its owner, Mr. Sakakini, failed to make the payments required by the agreed payment schedule. Accordingly, the Division issued an Order Reinstating Stop-Work Order (Reinstatement Order) on July 27, 2006. The Reinstatement Order informed Petitioner that it must cease all business operations in the State of Florida until an order releasing the Reinstatement Order was issued. Mr. Sakakini acknowledges that Petitioner was actively conducting business operations, i.e., roofing work, on 100 days in the Fall of 2007, despite the Reinstatement Order having been issued. On September 28, 2007, the Division issued an Order Assessing Penalty for Working in Violation of Reinstated Stop-Work Order assessing a penalty of $406,000.00. The amount of the assessed penalty was reduced to $100,000.00 in a Second Amended Order of Penalty Assessment as a result of an Order Granting Motion to Amend Order of Penalty Assessment entered by the undersigned on April 28, 2008. Of the 100 days worked during the pendency of the Reinstatement Order, 25 of those days involved work on Mr. Sakikini's personal residence. During this time, business was slow, and he was trying to give his workers "something to do so that they can make some money." Mr. Sakikini continues to live in the home where this work took place. Mr. Sakikini paid the workers who worked on his personal residence with checks from the business account of Extraordinaire Homes. Mr. Sakikini considers the amount of the penalty, i.e., $1,000.00 per day of violation, to be excessively harsh when applied to a small businessman like himself.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Respondent, Department of Financial Services, Division of Workers' Compensation, enter a final order amending the Second Amended Order of Penalty Assessment, assigning a penalty of $75,000.00. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 27th day of June, 2008.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Health Care and Retirement Corporation of America owns and operates some forty nursing homes and retirement centers in approximately six states. It currently has twenty-six applications pending for Certificates of Need to establish new nursing homes in Florida. In preparing each application, it has been necessary to provide HRS with information regarding the accessibility of the proposed project to low income persons, racial and ethnic minorities, women, handicapped persons and other underserved groups. The Certificate of Need application also requires an applicant to project revenues and utilization on the basis of types of patients (i.e., Medicaid, Medicare, insurance, private pay, and indigent) which the applicant expects to serve. Petitioner Whitehall Boca operates a nursing home located in Boca Raton, Florida. This facility is presently licensed for 69 skilled nursing home beds, and desires to expand the number of skilled beds. The patients at Whitehall Boca are 100 percent private pay patients. This petitioner has never served and does not intend to serve Medicare or Medicaid patients or the medically indigent. Its financing is conditioned upon serving only private pay patients. The entire concept of this facility is to provide services to those persons in the upper income bracket who wish to continue an elite life-style in their later years. Petitioner Health Quest Corporation presently has several applications pending for Certificates of Need to establish and operate nursing homes in Florida. It has been the practice and policy of HRS in the past to consider the issue of geographic and economic accessibility when reviewing applications for a Certificate of Need. As noted in Paragraph 1 above, the printed instruction and application form requires information from an applicant regarding the economic accessibility of the proposal to minorities and low income groups. In documenting the financial feasibility of a proposal, the applicant is required to include a projection of income and expenses on a pro forma basis for the first two years of operation. after completion of the project. In order to project income, an applicant would have to project the percent of its total revenue to be derived from Medicaid, Medicare, and indigent patients as opposed to private pay and third-party insurance pay patients. These projections are also required in providing information to HRS regarding the projected total facility utilization. Rule 10-5.11, Florida Administrative Code, lists twelve general criteria against which applications for a Certificate of Need are to be evaluated. More specific criteria for specific health services are also provided in later portions of that Rule. The first twelve subsections of Rule 10-5.11 generally track the statutory criteria set forth in Section 381.494(6)(c), Florida Statutes. Prior to the challenged amendment, Rule 10- 5.11(3), Florida Administrative Code, read as follows "(3) The need that the population served or to be served has for such proposed health or hospice services." As a result of another rule-challenge proceeding, the District Court of Appeal, First District, invalidated Rule 10-5.11, Florida Administrative Code, to the extent that it did not explicitly contain any criterion which addressed the extent to which an applicant could meet the needs of minority and low income persons. Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 430 So.2d 1 (Fla. 1st DCA, 1983). The court noted that Section 381.494(7)(a), Florida Statutes, (now Section 381.494(8)(a)) requires HRS rules to be in accordance with federal statutes, and that federal statutes and regulations require Certificate of Need agencies to consider the degree to which medically underserved persons, including low income and minorities, have access to the services under review. Comparing the federal "access" requirements with HRS's Rule 10-5.11(3) (cited in Paragraph 5 above), the Court concluded that that subsection was not broad enough to include consideration of the criteria mandated by federal regulation and allowed HRS to ignore the federally mandated "access" criterion. To that extent, the Court found Rule 10- 5.11 to be inconsistent with federal regulations and statutes, and thus invalid. In response to the Court's decision in Farmworker, supra, and in order to codify its prior policy and practice, respondent HRS seeks to amend Rule 10- 5.11(3), Florida Administrative Code, with the following language: "(3)(a) The need that the population served or to be served has for the health or hospice services proposed to be offered or changed, and the extent to which all resi- dents of the district, and in particular low income persons, racial and ethnic minorities, women, handicapped persons, other underserved groups and the elderly, are likely to have access to those services. The extent to which that need will be met adequately under a proposed reduction, elimination or relocation of a service, under a proposed substantial change in admissions policies or practices, or by alternative arrangements, and the effect of the proposed change on the ability of members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health services to obtain needed health care. The contribution of the proposed service in meeting the health needs of members of such medically underserved groups, particu- larly those needs identified in the appli- cable district plan and State health plan as deserving of priority. In determining the extent to which a proposed service will be accessible, the following will be considered: The extent to which medically underserved individuals currently use the applicant's services as a proportion of the medically underserved population in the applicant's proposed service area(s), and the extent to which medically underserved individuals are expected to use the proposed services, if approved; The performance of the applicant in meeting any applicable Federal regulations requiring uncompensated care, community ser- vice, or access by minorities and handicapped persons to programs receiving Federal financial assistance, including the existence of any civil rights access complaints against the applicant; The extent to which Medicare, Medicaid and medically indigent patients are served by the applicant; and Tile extent to which the applicant offers a range of means by which a person will have access to its services. In any case where it is determined that an approved project does not satisfy the cri- teria specified in subparagraphs (3)(a) through (d), the Department may, if it approves the application, impose the condi- tion that the applicant must take affirmative steps to meet those criteria. In evaluating the accessibility of a proposed project, the accessibility of the current facility as a whole must be taken into consideration. If the proposed project is disapproved because it fails to meet the need and access criteria specified herein, the Department will so state in its written findings. In any case where a project does not satisfy the criteria specified in sub- paragraph (3)(a) through (d) above, the Department shall so notify in writing the applicant and the appropriate Regional Office of the United States Department of Health and Human Services." In preparing this proposed rule amendment, respondent reviewed and considered the "access" rules effective in eight other States, portions of the "Model Access Provisions for State Certificate of Need Statutes or Regulations" and the federal regulations and statutes. The language contained in subparagraphs 3(a) - (d)4 of the respondent's proposed rule substantially tracks the language contained in 42 C.F.R. Section 123.412(a)(5) and (6), with changes made only for clarity or to reflect the different terminology utilized in the Florida Certificate of Need program. The language contained in subparagraphs (e) and (f) of the respondent's proposed rule is substantially identical to the language in federal regulations 42 C.F.R. Section 123.413(b) - (d) and 42 C.F.R. Section 123.410(a)(6) (1982). The federal regulations require the States to adopt, and use as applicable, specific criteria based upon the general considerations set forth in 42 C.F.R. Section 123.412 (1982). An economic impact statement was prepared by respondent for proposed Rule 10-5.11(3). The respondent concluded that, other than the normal costs to the agency of processing a rule amendment, no economic impact was expected as a result of the amendment's implementation. As the estimated costs or economic benefit to persons directly affected by the proposed amendment, the economic impact statement provides: "The proposed amendment is not expected to have an additional economic impact on existing health care providers, health care consumers, or certificate of need applicants who prepared applications under existing rules. Previous and current certificate of need decisions by the department have been made in consideration of existing Federal regulations and the criterion contained in 10-5.11(3) has been interpreted in accordance with Federal regulations." It was noted that the proposed amendment would affect competition among providers and certificate of need applicants consistent with existing rules and the proposed amendments. After discussions with others charged with the responsibility of implementing the Certificate of Need program, and based upon her own experience as a health planner, the author of the economic impact statement explained the "data and method of estimating costs" as follows: "Immediate costs for implementing the pro- posed amendment were calculated based on cur- rent data available. Printing and distri- bution costs were based on similar experiences with HRS printing and distribution costs." This approach was utilized based upon the author's understanding that the proposed rule imposed no additional or new criteria for review of certificate of need applications.
Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 25, 2009, the Amended Order of Penalty Assessment issued on March 2, 2009, the 2nd Amended Order of Penalty Assessment issued on March 6, 2009, the 3rd Amended Order of Penalty Assessment issued on April 20, 2009, and the 4th Amended Order of Penalty Assessment issued on September 21, 2009, attached as "Exhibit A," "Exhibit B," "Exhibit C," Exhibit "D," and Exhibit "F," respectively, and fully incorporated herein by reference, are hereby adopted as the Department's Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP, the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2nd Amended Order of Penalty Assessment, the 3rd Amended Order of Penalty Assessment, and the 4th Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: On February 25, 2009, the Department of Financial Services, Division of Workers' Compensation (hereinafter "Department") issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers' Compensation Case No. 09-049-D? to LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On February 25, 2009, the Stop-Work Order and Order of Penalty Assessment was served by personal service on LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as "Exhibit A" and incorporated herein by reference. On March 2, 2009, the Department issued an Amended Order of Penalty Assessment to LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The Amended Order of Penalty Assessment assessed a total penalty of $249,479.80 against LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The Amended Order of Penalty Assessment included a Notice of Rights wherein LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On March 2, 2009, the Amended Order of Penalty Assessment was served by personal service on LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit B" and incorporated herein by reference. On March 6, 2009, the Department issued a 2nd Amended Order of Penalty Assessment to LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $235,409.69 against LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 2nd Amended Order of Penalty Assessment included a Notice of Rights wherein LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP was advised that any request for an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment must be filed within twenty-one (21) days ofreceipt of the 2nd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On March 6, 2009, the 2nd Amended Order of Penalty Assessment was served by personal service on LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as "Exhibit C" and incorporated herein by reference. On April 20, 2009, the Department issued a 3rd Amended Order of Penalty Assessment to LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $52;334.24 against LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP was advised that any request for an administrative proceeding to challenge or contest the 3rd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 3rd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On April 20, 2009, the 3rd Amended Order of Penalty Assessment was served by personal service on LUIS AMAYA, D/8/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as "Exhibit D" and incorporated herein by reference. On May 1, 2009, LUIS AMAYA, D/8/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP filed a petition for administrative review with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on May 19, 2009, and the matter was assigned DOAH Case No. 09-2763. A copy of the petition is attached hereto as "Exhibit E" and incorporated herein by reference. On September 21, 2009, the Department issued a 4th Amended Order of Penalty Assessment to LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 4th Amended Order of Penalty Assessment assessed a total penalty of $30,869.44 against LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. The 4th Amended Order of Penalty Assessment included a Notice of Rights wherein LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP was advised that any request for an administrative proceeding to challenge or contest the 4th Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 4th Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. On September 21, 2009, the 4th Amended Order of Penalty Assessment was served by personal service on LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP. A copy of the 4th Amended Order of Penalty Assessment is attached hereto as "Exhibit F" and incorporated herein by reference. On September 23, 2009, the Department received a letter from LUIS AMAYA, D/B/A MAY I HELP YOU HANDYMAN SERVICE, CORP, A DISSOLVED FLORIDA CORPORATION AND MAY I HELP YOU HANDYMAN SERVICE, CORP, stating that he wished to withdraw his request for administrative hearing. A copy of the letter to withdraw the request for hearing is attached hereto as "Exhibit G" and incorporated herein by reference. On September 23, 2009, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as "Exhibit H" and incorporated herein by reference.
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes (2014),1/ by failing to secure the payment of workers’ compensation as alleged in the Stop-Work Order and 2nd Amended Order of Penalty Assessment, and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency responsible for the enforcement of the workers’ compensation insurance coverage requirements established in chapter 440. On June 1, 2015, Investigator Abedrabbo conducted a random workers' compensation compliance check at 11422 North 56th Street, Tampa, Florida 33617. During the course of the compliance check, Investigator Abedrabbo observed two individuals installing a stone façade on a building that was under construction at the identified address. It is undisputed that the two individuals observed by Investigator Abedrabbo were, at the time of observation, employed by Respondent. In support of its 2nd Amended Order of Penalty Assessment, the Department prepared a penalty calculation worksheet showing a total penalty owed of $17,274.30.3/ Respondent does not challenge the accuracy or method of calculating the assessed penalty, but only asserts that the penalty is “too high” and the company cannot afford to pay it.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding that Respondent, Cortes Pre Cast Stone and Foam Corp, violated the provisions of chapter 440 by failing to secure the payment of workers’ compensation and assessing against Respondent a penalty in the amount of $17,274.30. DONE AND ENTERED this 18th day of February, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2016.
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 at least 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. Without a job or income, on September 4, 8, and 9, 2015, Petitioner withdrew distributions totaling $474,932.62 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 elected to apply on-line. 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, members have access to Ernst & Young planners on the MyFRS Financial Guidance Line to answer any questions they have concerning the distribution. Although he was aware of this educational resource, Petitioner chose not to call a planner. 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. James was being reinstated and the termination set aside, an in-service distribution had occurred in September 2015, and Mr. James 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. James 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 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. James 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. James (for the same consideration) that would be acceptable to FRS and not require repayment of FRS disbursements, Mr. James elected to remain bound by the terms of the current Agreement and you advised Mr. James will make any FRS- related payments necessary. As we previously discussed, in the event Mr. James 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. James' non-repayment of funds to the FRS, we understand from Orange County that it may be compelled by FRS to separate Mr. James from his employment pursuant to applicable statutory laws, rules and regulations. In light of the serious consequences to Mr. James 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. James, 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. James would not repay funds to the FRS, and Mr. James 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. 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 Whether Respondent, University of West Florida (Respondent or the University), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Jacqueline R. Pinkard (Petitioner), based upon Petitioner’s race or in retaliation for her participation in protected activity.
Findings Of Fact Respondent is a public university within the Florida State University System. Petitioner was hired by the University in 1998 in the Office of University Budgets (Budget Office) as a Coordinator. In 2004, Petitioner was promoted to the position of Assistant Director of the Budget Office. She received a pay increase simultaneous with the promotion and another pay increase shortly thereafter. She has received several pay increases throughout her employment with the University. From 1998 through June 30, 2014, the Budget Office was a stand-alone department, headed by Valerie Moneyham. In January 2014, Ms. Moneyham was promoted to Assistant Vice President in the Business, Finance, and Facilities Division. Her duties included continued oversight of the Budget Office until June 30, 2014. On July 1, 2014 the Budget Office moved under and became a part of the University’s Financial Services department. There were three employees in the Budget Office: Petitioner, Assistant Director, who is African American/Black; Pam Cadem, Senior Budget Data Analyst, who is Caucasian; and Josie Warren, Coordinator, who is Caucasian (collectively, Budget Office employees). All three Budget Office employees retained their position titles and pay rates upon moving into the Financial Services department. There was another employee in the Budget Office prior to the move named Lourdes Stevens. Ms. Stevens was a Coordinator who began at the University in 2012. Ms. Stevens left the University before the Budget Office became a part of the Financial Services department. The Financial Services department was and is headed by Colleen Asmus, Associate Vice President and University Controller. In her Complaint, Petitioner alleges several bases for alleged race discrimination and retaliation. First, Petitioner alleges that the University discriminated against her based on her race and retaliated against her when Petitioner’s former supervisor, Ms. Valerie Moneyham, issued a “poor” performance evaluation of Petitioner for 2014. Next, Petitioner alleges that her current supervisor, Ms. Colleen Asmus, “accepted Ms. Moneyham’s false and retaliatory evaluation as a means to justifiably deny [Petitioner] an equitable pay increase, position reclassification or promotional opportunity.” And, finally, the Complaint alleges that the University discriminated against Petitioner based on her race when, on December 12, 2014, Ms. Asmus created a position with “very specific ‘preferred’ qualifications . . . as a way to essentially tailor the job to fit a preselected employee or applicant,” who she believed to be “a white male from Financial Services.” The findings of fact pertinent to these allegations are set forth under three separate headings, A. through C., below. Petitioner’s 2014 Performance Evaluation The subject of Petitioner’s first allegation is her performance evaluation covering the period from July 1, 2013, through June 30, 2014 (2014 evaluation). The evaluation cycle for University staff is from July 1 to June 30 each year. Prior to the University’s 2013 evaluations, a different cycle and scoring system was used for performance evaluations. Due to the change in cycling, there were no evaluations for University staff in 2012. The University’s performance evaluation system is electronic-based. The evaluation contains three main parts. The first part is a self-evaluation by the employee. The second part is the supervisor’s evaluation, and the third part is a goal-setting section for the following year. In the second part of the evaluation, supervisors provide numeric ratings on a five-point scale on a series of eight work-related categories, and they also provide narrative feedback on an employee’s strengths and areas for improvement. Since 2013, the numeric scores have been averaged and the resulting number is the employee’s overall evaluation rating. Since 2013, the overall numeric ratings have equated to the following Performance Standards: 1.0 to 1.4 –- “Below” - Not Acceptable 1.5 to 2.4 –- “Below” – Needs Improvement 2.5 to 3.4 –- “Satisfactory” 3.5 to 4.4 -- “Above” 4.5 to 5.0 -- “Superior” It is the University’s standard practice for the supervisor of University staff positions to be the individual who completes those staff position evaluations if he or she was the supervisor for the whole period covered by the evaluation. Ms. Moneyham was the supervisor of record for the Budget Office for the entire period covered by the July 1, 2013, to June 30, 2014, evaluation. Labratta Epting, Human Resources Specialist in the University’s Human Resources department, advised Ms. Moneyham by email dated October 24, 2014, to complete the 2014 performance evaluations for each one of the three Budget Office employees. Ms. Moneyham completed the supervisor’s evaluation portion of the 2014 performance evaluations for all three Budget Office employees because she was their supervisor during the period of time covered by the evaluation. In the electronic performance evaluation system, the evaluations are housed under the name of the current supervisor. In this case, that was Ms. Colleen Asmus, for all three Budget Office employees. For the 2014 evaluation, Ms. Moneyham provided the evaluation information for each of the three Budget Office employees to Ms. Asmus, who cut and pasted the information into the electronic evaluation system. Ms. Asmus completed the future goals section of the evaluation for each of the three Budget Office employees because she was the supervisor beginning on July 1, 2014, and on into the future. In the 2014 evaluation, Ms. Moneyham rated the Budget Office employees as follows: Petitioner received a numeric score of 3.3 and a “Satisfactory” Performance Standard; Ms. Cadem received a numeric score of 3.8 and an “Above” Performance Standard; and Ms. Warren received a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2013 evaluation, Ms. Moneyham rated Petitioner with a numeric score of 3.2 and a “Satisfactory” Performance Standard, Ms. Cadem with a numeric score of 3.8 and an “Above” Performance Standard, and Ms. Warren with a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2011 evaluation, under the old scoring system, Ms. Moneyham rated Petitioner with a numeric score of 42 and a “Satisfactory” Performance Standard, and Ms. Cadem with a numeric score of 46 and an “Above” Performance Rating. As previously noted, the numeric rating system was changed for all staff evaluations after the 2011 evaluation. Ms. Moneyham increased the numeric score of only one employee from the 2013 to the 2014 evaluation, and that employee was Petitioner. She increased Petitioner’s numeric rating from 3.2 in 2013 to 3.3 in 2014. Petitioner’s Performance Rating was at the “satisfactory” Performance Standard level in 2011, 2013, and 2014. Petitioner testified that Ms. Moneyham’s comments on page 7 of Petitioner’s 2014 performance evaluation under the heading of “Supervisor’s Comments” were not discriminatory and were not retaliatory. Ms. Asmus’ Acceptance of Petitioner’s 2014 Evaluation Ms. Asmus received a copy of the October 24, 2014, email sent by Ms. Epting to Ms. Moneyham directing Ms. Moneyham to complete the 2014 evaluations for Petitioner, Ms. Cadem, and Ms. Warren. When Ms. Asmus met with Petitioner to discuss Petitioner’s 2014 evaluation, Ms. Asmus stated that she believed that they (Petitioner and Ms. Asmus) had started with a clean slate, which began when Ms. Asmus became Petitioner’s supervisor on July 1, 2014. Petitioner’s letter dated December 15, 2014, to the EEOC acknowledges this, quoting Ms. Asmus as saying, “I hope we can move forward with a great working relationship.” No evidence was provided by Petitioner showing that Ms. Asmus used the evaluation scores provided by Ms. Moneyham in the 2014 evaluation to deny Petitioner any benefit of any kind. Denial of Position Reclassification and Promotional Opportunities Interim Promotion In the Complaint, Petitioner alleges that Ms. Asmus used the “poor evaluation” as a means to deny her a position reclassification or a promotional opportunity. At the hearing, Petitioner testified that she should have been made Interim Associate Budget Director, or a similar title, starting when Ms. Moneyham was no longer physically in the same building as the Budget Office employees, which she said was during “Spring 2014.” She also testified that the interim position should have lasted either until Ms. Asmus became the supervisor of the Budget Office employees (July 1, 2014) or, alternatively, until February 2, 2015, when Mr. Djerlek became the supervisor of the Budget Office employees. Ms. Moneyham became Assistant Vice President in January 2014. No evidence was offered stating a more specific date of when Ms. Moneyham moved to a different building than the Budget Office employees. Petitioner did not offer any comparators for this allegation. Petitioner did not offer any evidence that any employee was made Interim Associate Budget Director (or similar title) in this situation. Petitioner admitted on cross-examination that Ms. Moneyham was the supervisor of record for the Budget Office employees until Ms. Asmus became the supervisor for the Budget Office employees. Ms. Rentz, the former University Associate Director for Human Resources, testified that there was no Interim Associate Budget Director or other position into which Petitioner could have been placed because Ms. Moneyham was the supervisor of record over the Budget Office employees until Ms. Asmus became the supervisor of record. That testimony is credited. 2. Reclassification In support of her allegation that she was denied a position reclassification, Petitioner submitted into evidence an email that she sent to her supervisor, Ms. Asmus, on December 11, 2014. In the email, Petitioner asked Ms. Asmus to reclassify all three Budget Office employees (Petitioner, Ms. Cadem, and Ms. Warren) and provide each of them with salary increases. On December 11, 2014, the three Budget Office employees had been under the supervision of Ms. Asmus for approximately five and one-half months. Petitioner’s email further stated that all three employees were well trained. Petitioner, however, provided no evidence either in the email or at the hearing that would reasonably provide a basis for reclassification or promotion of any of the three Budget Office employees. Petitioner did not offer any comparators for this allegation. No evidence was provided showing that there has been a position reclassification or promotion for any of the three Budget Office employees since being moved into the Financial Services department on July 1, 2014. The University provided credible testimony that seniority, or length of time in a position, is not, on its own, a basis for a promotion at the University of West Florida. Denial of Equitable Pay Increase Petitioner also alleged in the Complaint that Ms. Asmus used Ms. Moneyham’s “poor evaluation” as a means to deny Petitioner an equitable pay increase. At the hearing, Petitioner stated that she was denied an equitable pay increase when distributions were made to some staff under a 2013 Employee Pay Equity and Compression Program conducted by the University (Salary Study). Petitioner and the two other employees in the Budget Office did not receive a distribution under the 2013 Salary Study. The University provided credible evidence showing that approximately 25 percent of the staff received increases through the Salary Study, and that Petitioner’s salary was the only salary in the Budget Office that was above the benchmark for receiving an increase. On April 7, 2014, Petitioner filed a discrimination charge with the EEOC claiming that she was denied a distribution from the 2013 Salary Study based on race and retaliation. The EEOC found that the University did not violate discrimination statutes and issued Petitioner a “Right to Sue” letter on September 30, 2014. Petitioner did not file suit in connection with that EEOC discrimination charge. The University has not conducted any equity studies since 2013 and Petitioner has not been excluded from any staff pay increases since 2013. In May 2015, Ms. Asmus asked the Human Resources department to determine whether there was a pay inequity as to Ms. Warren’s salary. Ms. Warren’s position in the Budget Office was “Coordinator” and it remained “Coordinator” when she moved into the Financial Services office. Human Resources reviewed Ms. Warren’s salary against the other Coordinators in the Financial Services department. The Human Resources department determined that Ms. Warren was performing services similar to the Accounting Coordinators in the Financial Services department. The starting salary for an Accounting Coordinator in Financial Services is $45,000. Ms. Warren was earning $32,000 at the time. As a result, in May 2015, Ms. Warren’s salary was increased to $45,000, which is the level of the starting salary for Accounting Coordinators in the Financial Services department. No evidence was offered of a similar increase for Ms. Cadem. Petitioner’s current position is Assistant Director. Before she was promoted to Assistant Director, Petitioner’s position title was Coordinator. The position of Assistant Director is higher in rank than the Coordinator/Accounting Coordinator position occupied by Ms. Warren. Petitioner’s salary is approximately $15,000 higher than Ms. Warren’s salary at the increased level. There is no similar pay inequity in Petitioner’s position as there was with Ms. Warren. Petitioner’s salary is right at the midpoint of the five employees in the Financial Services department at the Assistant Controller/Assistant Director level. Petitioner is earning more than two of the Assistant Controllers and less than two of the Assistant Controllers. Petitioner did not allege or provide any evidence showing that her job duties were more complex than the two Assistant Controllers who have a higher salary than she does. Preferred Qualifications for Associate Controller Position During the fall 2014 semester, Ms. Asmus envisioned an improvement in the efficiency and consistency of the reporting functions carried out by the Financial Services department. She had noticed that there were overlaps and redundancies between the financial reporting area and the budget reporting area. She believed greater consistency in reporting could be achieved if these areas were merged. In November-December 2014, the Financial Services department began the recruitment process for an Associate Controller. The Associate Controller was to be over the reporting areas, which would include financial reporting (production of financial statements), budget reporting, and tax reporting. Florida’s State University System’s (SUS) minimum qualifications for an Associate Controller were posted as the minimum qualifications for the position. They are: Master’s degree in an appropriate area of specialization and four years of appropriate experience; or a Bachelor’s degree in an appropriate area of specialization and six years of appropriate experience. Although the SUS system allows additional requirements be added to the minimum qualifications, none were added in the posting of the Associate Controller position. The preferred qualifications for the position as advertised were: Master’s or Bachelor’s degree must be in an accounting related field. CPA License preferred. Experience with production of financial statements in a higher education setting preferred. Experience with tax accounting in a higher educational setting preferred. Familiarity with budget operations in a higher educational setting preferred. The preferred qualifications were all approved by Human Resources as being job-related before the position announcement was posted. After receiving an applicant pool from the first posting for the Associate Controller position, Human Resources for the University did not “certify” the applicant pool because the percentage of minority applicants was low. The position was posted again and was also advertised again in a publication geared to attract minority applicants. Although additional applicants applied, the percentage of minority applicants decreased. Nevertheless, because it determined that a good faith effort was made to recruit qualified female and minority applicants, Human Resources certified the pool after the second posting. Petitioner pointed out at the hearing that the January 2015 advertisement in the publication geared to attract minority applicants contained an application deadline of December 19, 2014, which was prior to the date of the advertisement. The University’s Associate Director of Human Resources provided credible testimony that the published application deadline was a mistake, and that she was unaware of the error when she certified the pool after the second posting. Ms. Asmus provided credible testimony explaining why each of the preferred qualifications for the Associate Controller position was job related. No contrary evidence as to any of the preferred qualifications was offered by Petitioner. Ms. Asmus advised the three Budget Office employees of the job posting and invited them to apply for the position. Petitioner met the minimum criteria for the position but did not apply for the position. All candidates who met the minimum qualifications for a position would have been considered for the position. Petitioner testified that she did not apply for the position because she did not meet the preferred qualifications. Petitioner explained that in 2012 she had applied for a position as an Executive Assistant in the University’s President’s Office, and she was not selected for the position because she did not have all the preferred qualifications. She said that she did not have event-planning experience. She said that based on that experience in 2012, she did not apply for the Associate Controller position posted in December 2014. Petitioner acknowledged on cross-examination that the Executive Assistant position that she applied for in 2012 was in the President’s Office and that the Financial Services department is in a different division of the University than the President’s Office. There were no limitations in the advertisement that would discourage an individual of any particular race from applying for the position. The advertisement stated on the bottom, “The University of West Florida (UWF) is an Equal Opportunity/Access/Affirmative Action Employer.” Mr. Djerlek was ultimately selected for the Associate Controller position. He is Caucasian and is outside of Petitioner’s protected class. Mr. Djerlek’s qualifications for the position were stronger than Petitioner’s. Mr. Djerlek had experience in all three of the areas that would be under the supervision of the Associate Controller: financial statements/reporting, budget reporting and tax reporting. Mr. Djerlek's background included a great deal of experience with financial statements, tax reporting, and budgeting, along with some budget reporting experience. He is licensed as a Certified Public Accountant. At the final hearing, Petitioner admitted that she did not have experience in two of three areas that the Associate Controller would be supervising: financial statements/reporting and tax reporting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2016.
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 =================================================================
