The Issue Whether proposed Rules 69O-175.003, 69O-170.005-007, 69O- 170.013, 69O-170.0135. 69O-170.014, 69O-170.0141, 69O-170.0142, and 69O-170.0155 are valid exercises of delegated rulemaking authority.
Findings Of Fact Section 20.05, Florida Statutes, addresses the structure and powers of the Department. Section 20.05 provides as follows, in pertinent part: 20.05 Heads of departments; powers and duties.-- (1) Each head of a department, except as otherwise provided by law, must: * * * (b) Have authority, . . ., to execute any of the powers, duties, and functions vested in the department or in any administrative unit thereof through administrative units . . . designated by the head of the department, . . . unless the head of the department is explicitly required by law to perform the same without delegation. * * * (e) Subject to the requirements of chapter 120, exercise existing authority to adopt rules pursuant and limited to the powers, duties, and functions transferred to the department. The Financial Services Commission (Commission) was created within the Department pursuant to Section 20.121, Florida Statutes. However, the Commission is not “subject to control, supervision or direction by the Department of Financial Services in any manner.” § 20.121(3), Fla. Stat. The Commission is composed of the Governor and Cabinet, who collectively serve as the agency head of the Commission. Action by the Commission can only be taken by majority vote “consisting of at least three affirmative votes.” Id. OIR is a structural unit of the Financial Services Commission. Section 20.121(3) states in relevant part, as follows: Structure.— The major structural unit of the commission is the office. Each office shall be headed by a director. The following offices are established: 1. The Office of Insurance Regulation, which shall be responsible for all activities concerning insurers and other risk-bearing entities . . . * * * * Organization.-- The commission shall establish by rule any additional organizational structure of the offices. It is the intent of the legislature to provide the commission with the flexibility to organize the offices in any manner they determine appropriate to promote both efficiency and accountability. Powers.— Commission members shall serve as the agency head for purposes of rulemaking . . . by the commission and all subunits of the commission. . . . (emphasis supplied) Clearly, under the Department’s, the Commission’s and the OIR’s organizational structures, only the Commission may promulgate rules for both itself and OIR. The Department does not have rulemaking authority over areas that have been given to the Commission. On the other hand, nothing in the statute prohibits OIR, as directed by the Commission, to perform steps, preliminary to proposing a rule, that often occur in the rule development process prior to the actual Notice of proposed rulemaking. See also § 120.54, Fla. Stat. To that end, the Commission, by non-rule policy, has delegated authority to OIR to engage in rulemaking activities on behalf of the Commission. However, this delegation is not limited to rule development activities that occur prior to the Notice of proposed Rules, but authorizes publication of the Notice prior to approval by the Commission of any proposed language or policy statement. As indicated, the Notices for the proposed Rules were published in the Florida Law Weekly in November 2004, with various changes made thereafter. The proposed Rules were published as OIR rules. Disturbingly and misleadingly, all the Notices for the proposed Rules state that the agency head approved the Rule that is the subject of the Notice on September 3, 2004 or November 2, 2004. However, none of the proposed Rules were approved by the Commission, the agency head, prior to their publication as a proposed rule in the Florida Administrative Weekly. The specific agency authority listed in the Notices for promulgating the proposed Rules was Section 624.308(1), Florida Statutes. Section 624.308(1) grants the Department of Financial Services (Department) and the Financial Services Commission (Commission) the general authority to adopt rules, pursuant to Sections 120.536(1) and 120.54 in order to implement laws that confer duties upon them. The statute does not confer the authority on the Office of Insurance Regulation (OIR) to adopt rules. See § 624.05, Fla. Stat. The statutes that confer a specific grant of rulemaking authority over the areas of the laws implemented in the proposed Rules are Sections 627.0651 and 627.331, Florida Statutes. These two statutes confer specific rulemaking authority over certain areas of insurance ratemaking only to the Commission; specific rulemaking authority is not granted to the Department or to OIR. Other than rulemaking authority, the various duties assigned in the laws implemented by proposed Rules are given to OIR.
Findings Of Fact The findings of fact in the recommended order are supported by competent, substantial evidence. They are adopted with modification together with the following supplemental findings of fact and as such both constitute the complete set of findings of fact for purposes of this final order. Albury also engages in the private practice of law as a member of a law firm. He devotes a majority of his working hours in that practice and is prohibited from representing other school boards because of his work relationship with the Monroe County School Board (the School Board). Until 1980 or 1981, Albury utilized his private law office and his private secretary to perform his duties as school board attorney. There is no evidence that this was for the convenience of the School Board, and it was a known fact that he performed his work from his private law office. The new school board office was renovated in 1980 or 1981, but no office was set up for Albury until late 1983. At that time, one room was made available to both the school board members and to Albury as school board attorney who jointly shared the one room. Prior to late 1983, that room was used by a school board employee who retired in mid-1983. Albury spends very little time in this office since a majority of his duties are performed elsewhere. Until relatively recently, Albury's private secretary did most of his secretarial work in connection with his school board representation. She was a long time employee and very familiar with his working habits, etc. When he left his employment, his new secretary who was less familiar with his habits and school board matters did less work in this area. Consequently, Albury used any one of three school board secretaries for assistance. He does not supervise any of the three secretaries and must request permission from their supervisors before having them perform work for him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order declaring Hilary U. Albury eligible for membership in the Florida Retirement System both before and after July 1, 1979. RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1984.
The Issue The issue for resolution in this proceeding is whether the Petitioner, Bruce A. Nants, was properly disqualified for consideration in the BID No. 87- 0123. Petitioner ("Nants") claims that his proposal complies with the Invitation to Bid (ITB), that a re-evaluation should be made by a different committee, and that his proposal should be fully considered in the competitive process. Respondent ("DOE") contends that Nants' proposal did not meet the specified requirements of the ITB and was properly disqualified. DOE also argues that the proposal represents an offering of services which are different in nature from the services it is attempting to procure.
Findings Of Fact The Invitation To Bid The purpose for Invitation to Bid No. 87-0123 is stated in the Introduction to that document:
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the formal protest of Bruce Nants be DENIED and DISMISSED. DONE AND RECOMMENDED this 21st day of October, 1987, at Leon County, Tallahassee, Florida. MARY W. CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4069BID Adopted in Paragraph 1. Adopted in Paragraph 2. and 4. Adopted in Paragraph 4. Adopted in Paragraph 6. through 10. Adopted in substance in Paragraph 6 and 7. 11. through 13. Adopted in substance in Paragraphs 12 and 13. 14. through 17. Adopted in substance in Paragraphs 10 and 11. 18. through 21. Adopted in substance in Paragraphs 8 and 9. 22. through 24. Rejected as unnecessary. 25. and 26. Rejected as immaterial. These sections were not cited as a bases for rejection in the notice to Petitioner. 27. through 29. Rejected as cumulative and unnecessary. Adopted in substance in Paragraph 15. Rejected as immaterial. Adopted in Paragraph 16. Adopted in Paragraph 17. COPIES FURNISHED: Bruce Nants, Esquire 13 South Magnolia Avenue Post Office Box 547871 Orlando, Florida 32854 Charles S. Ruberg, Esquire State Board of Education Knott Building Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sidney H. McKenzie, Esquire General Counsel Knott Building Tallahassee, Florida 32399
Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25" Avenue, Fort Lauderdale, Florida 33312, and Judge Claude B. Arrington, Division of Administrative Hearings, the DeSoto net Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this | a day of Quis, Us? ‘ , 2009. Debbie Shoup Clerk Department of Management Services (850) 487-1082 2 of 2 Jul 11 2009 11:41 a7/11/2889° 12:23 9549617454 PACK-SHIP&BEYOND PAGE 91/03 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GLORIA MARSHALL, Petitioner CASE NO: 08-3716 JUDGE ARRINGTON v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT. Respondent. / PETITIONER’S AMENDED NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE PETITIONER, GLORIA MARSHALL, through undersigned counsel, hereby files this AMENDED PETITIONER’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE, on the following grounds: 1. Petitioner Marshall is not working for the employer since June of 2008, when she retired after a long career as an employee of the Broward County School Board. Most of the documents to be used in this petition are already in possession of Respondent and the attorney for Petitioner. 2. Petitioner patiently and conscientiously worked as an adult ed teacher from 1981 through 2005, a period of some twenty four years. EXHIBIT att Jul 11 2009 11:41 @7/11/2889 12:23 9549617454 PACK-SHIP&BEYOND PAGE 62/83 3. In view of the relationship between the Repondent and Petitioner, who has been enrolled several times in the FRS, Petitioner contends that the Respondent exercise its fiduciary duty to act in the best interests of the member by not opposing this dismissal without prejudice. 4. Petitioner contends that no prejudice to Respondent will result. 5. No expenses have been incurred thus far other than the transmission of employment records by the Respondent to undersigned counsel, and those will not change. If a plan has been proposed for the case by Respondent, that plan can be laid aside and will serve the same purpose in the future. 6. In light of the circumstances which prevail, to insist on the prosecution of this petition at this time will not serve the interests of justice. 7. Petitioner has indicated that she is unable to assist in this petition until the month of December 2009. 8, In addition, the goal sought in these proceedings is a very precious one, that is, a pension and social security fund which will influence the comfort or lack thereof of this petitioner’s last years, and is worthy of the Court’s indulgence in acknowledging this dismissal without prejudice. BASED ON THE FOREGOING recitation of facts, Petitioner files this ‘ Amended Notice of Voluntary dismissal without prejudice. Jul 11 2009 11:42 97/11/2009 12:23 9549617454 PACK-SHIP&BEYOND PAGE 43/03 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been fax-filed with the Department of Administrative Hearings and e-mailed to 850 922 6312, to Larry Dz. Scott, Esq., Asst. General counsel to DMS, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950 Eleventh day of July, 2009. LAW OFFICE OF JANE M. LETWIN Attorney for Petitioner: Florida Bar Number 990329 5426 SW 25" Avenue, Fort Lauderdale Fl 33312 Phone: 954 245 8495: Fax: 954 301 8401 E-mail; Janeletwintv@aol.com By * ou Jane M. Letwin
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.
The Issue Whether the demotion of Petitioner was in compliance with Florida Statutes, rules and regulations and for good cause shown.
Findings Of Fact The 1976 Florida Legislature caused a transfer of planning positions including that of Petitioner, Griesbaum, from the Department of Administration to the Department of Commerce, Division of Economic Development. Concurrent with this transfer of funds and positions, the Respondent, Department of Commerce, was in the process of reorganizing the existing structure of the Division of Economic Development. Organizational charts were introduced into evidence which showed the "before and after" organization of the agency as well as the organizational structure proposed by Respondent, Department of Commerce, to the Department of Administration for approval. The charts reflect the class title of Petitioner's previous position which was abolished, the proposed class title of the new position, and the class title ultimately approved by the Department of Administration. Their agency proposed that the position of "Development Administrator-Commerce (at , Paygrade 23)" was more properly described as a "Development Representative I (at Paygrade 21)". Thus, the "demotion" occurred as a result of the Department of Administration's reclassification. The reasons given by the witness, Cheryl Naylor, Department of Administration Classification Specialist, for assigning Paygrade 21 involved the nature and level of duties of the proposed position within the new organization. The position of Petitioner was thus abolished. After the abolition of the position of "Development Administrator- Commerce" and the establishment of the position of "Development Representative I" the Petitioner was given the opportunity of accepting the new position. He accepted the new position under protest rather than to be laid off. Petitioner contends: that the Department of Administration was too conservative in classifying his position and that it should have been classified at a higher paygrade; that the change of the classification from 23 to 21 was in effect a demotion for him; that the Respondent should reclassify the position to Classification 23. Respondent, Department of Commerce, contends: that it disagreed with the classification action of the Department of Administration; that it tried to have Petitioner's paygrade (23) preserved; that it was no fault of Respondent, Department of Commerce, that the position formerly held by Petitioner was changed in name and classification; that this is not a case of demotion but a case in which a position was abolished and a new position established at a new and lower classification; that the Petitioner in fact suffered no real hardship or prejudice by not getting a full fourteen (14) days notice of the abolition of his former position and the offer of the position which he accepted inasmuch as although a "demotion" did occur the corresponding cut in pay was only $6.33 per month.
Recommendation Dismiss the appeal. DONE and ORDERED this 5th day of August, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 Ken Hart, Esquire Department of Commerce 401 Collins Building Tallahassee, Florida 32304 Roger Griesbaum Route 2, Box 582-M Tallahassee, Florida 32301 ================================================================= ORDER REMANDING CAUSE TO HEARING OFFICER ================================================================= DEPARTMENT OF COMMERCE AND CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF ROGER GRIESBAUM, DOCKET 77-44 against DEMOTION by the DOAH CASE NO. 77-725 DEPARTMENT OF COMMERCE / ORDER REMANDING CAUSE TO HEARING OFFICER This case came on to be considered upon Recommended Order being entered by Hearing Officer, Delphene Strickland. This Commission, having considered said Order and Objections thereto, including letter from the Agency that the findings that the Appellant's position was transferred from the Department of Administration was in error remands this cause to the Hearing Officer for a determination and recommendation thereon. Accordingly, it is ORDERED that the Recommended Order, Exceptions and letters be returned to the Hearing Officer for her recommendation at the earliest possible time. DONE AND ORDERED this 16th day of December, A. D., 1977. CATHERINE W. CHAPIN, Chairman Career Service Commission CERTIFICATE OF SERVICES I hereby certify that a copy of the foregoing Order has been forwarded by Certified U. S. Mail, Return Receipt Requested, to Mr. Ken Hart, Attorney, Department of Commerce, 401 Collins Building, Tallahassee, Florida 32304, Ms. Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, 530, Carlton Building, Tallahassee, Florida 32304 and Roger Griesbaum, Route 2, Box 582-M, Tallahassee, Florida 32301, this 16th day of December, 1977. CAREER SERVICE COMMISSION BY: June K. McPaul ================================================================= SUPPLEMENTARY RECOMMENDED ORDER =================================================================
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute licensees under Chapters 455 and 475, Florida Statutes. Respondent holds Florida real estate license 0315624. Until May 25, 1993, Respondent was licensed as a salesperson with Richard J. Moncello, Monard Realty and Investments, 4241 John Young Parkway, Orlando, Florida 32804. The fee arrangement between Respondent and Mr. Moncello provided that Respondent received 90 percent of the commission on her transactions and Mr. Moncello received 10 percent. Respondent and Mr. Moncello had been friends since 1982. On April 21, 1993, Respondent negotiated a contract between Mr. and Mr. Jerrod Zlatkiss, sellers, and Ms. Julie B. Maienzi, buyer, for the purchase of real property for $42,000. Mr. Moncello had no knowledge of the transaction. Respondent was in the employ of Mr. Moncello at the time. The transaction closed on April 27, 1993. The total commission due from the sellers was $1,567.57. Of that amount, Mr. Moncello was entitled to $156.75 under the fee arrangement between Respondent and Mr. Moncello. At the closing, the closing agent issued check number 8422 for $567.57 to Respondent in part payment of the commission due from the sellers. The buyer executed a promissory note for $1,000 in favor of Respondent. Respondent delivered the check for $567.57 to Respondent's mother. Respondent's mother deposited the check to her account and subsequently issued a check to Mr. Moncello for $57.00. Respondent did not have a checking account. Her mother took care of Respondent's affairs. Respondent had been injured in an automobile accident and was taking prescription drugs for pain. She was incapable of operating a motor vehicle and had to be driven to and from the closing. Respondent has little or no recollection of the events surrounding the transaction in question, including the day of closing. Mr. Moncello subsequently discovered the transaction and terminated Respondent. The amount due and owing Mr. Moncello is $100. Respondent has caused the buyers to execute a new mortgage note in favor of Monard Investors Services, Inc., in the amount of $1,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating Section 475.25(1)(b), Florida Statutes. It is further recommended that Respondent be found guilty of violating Sections 475.25(1)(a) and 475.42(1)(b), be reprimanded and placed on probation for one year. DONE and ENTERED this 25th day of April, 1994, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 83-6802 Petitioner's Proposed Findings of Fact 1-15 Accepted in substance Respondents' Proposed Findings of Fact Respondent did not submit proposed findings of fact COPIES FURNISHED: Ms. Mary K. Conner, pro se 522 Orange Drive, #16 Altamonte Springs, Florida 32701 James H. Gillis, Esquire Senior Attorney Florid Department of Business and Professional Regulation Division of Real Estate Legal Section-Suite N308 400 W. Robinson Street, North Tower Orlando, Florida 32801-1772 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0729
The Issue Whether the Petition for Formal Administrative Hearing filed by the Respondent, Carlos Sasse, should be dismissed in part for failure to timely file. Whether the Petitioner, the School Board of Leon County, should have abolished Mr. Sasse's position of employment and failed to fulfill its contract of employment with Mr. Sasse.
Findings Of Fact Carlos Sasse's Employment with the School Board. In July, 1989, the Respondent, Carlos Sasse, was hired by the Petitioner, the School Board of Leon County. Mr. Sasse was hired as the Assistant Superintendent of Instruction (or a similarly designated position). Mr. Sasse's duties included the supervision of seven executive directors, the functioning of twenty-two elementary schools, seven middle schools, five high schools and a number of other programs. The Superintendent of the School District, William M. Woolley, recommended that Mr. Sasse be retained for the 1991-1992 fiscal year of the School Board. The School Board accepted the Superintendent's recommendation and reappointed Mr. Sasse as Assistant Superintendent of Instruction. The School Board's fiscal year runs from July 1st to June 30th. For the 1991-1992 fiscal year the School Board approved (on April 16, 1991), and Mr. Sasse accepted, the employment of Mr. Sasse for twelve months beginning July 1, 1991, at a salary of approximately $60,000.00, plus fringe benefits. No written contract of employment between the School Board and Mr. Sasse for the 1991-1992 fiscal year was entered into. The School Board admitted, however, in its Answer filed in this case that Mr. Sasse was employed pursuant to an annual contract of employment. Mr. Sasse has performed his duties with the School Board in a satisfactory manner. The School Board's 1991-1992 Budget. The School Board is charged by law with the responsibility to operate, control and supervise all public schools within the School District. In fulfilling its responsibilities, the School Board is required to approve a budget for the operation of the school system. Toward this end, the School Board approved the budget for the 1991-1992 school year (hereinafter referred to as the "1991-1992 Budget"), on September 17, 1991. See Petitioner's Exhibit 1. Consistent with the requirements of Florida law (Section 237.061, Florida Statutes), the 1991-1992 Budget was a balanced budget. That is, projected expenditures did not exceed projected sources of funds. At the time the School Board approved the 1991-1992 Budget, the School Board members were aware of the unfavorable economic conditions impacting the budget. The School Board had taken actions prior to the 1991-1992 fiscal year to reduce expenditures by reducing approximately seventy-five positions totaling almost $2.5 million. The 1991-1992 Budget consisted generally of five "funds": (a) a general operating fund; (b) a special revenue fund; (c) a capital improvement fund; (d) a debt service fund; and (e) a trust and agency fund. The general operating fund is the fund providing for the budget for the School Board's educational and support service programs. The School Board was somewhat restricted in the use of monies between funds. For a more detailed description of the various funds (other than the general operating fund), see proposed findings of fact 7-10 of the School Board's proposed recommended order. The final 1991-1992 Budget provided for approximately $131 million of expenditures and, excluding certain fund balances, approximately $125 million of revenues. State revenue accounted for approximately 72% of the general operating fund of the 1991-1992 Budget. Approximately 82% of the general operating fund was earmarked for salaries and employee benefits for the approximately 4,000 employees of the School District. In approving the 1991-1992 Budget the School Board established certain priorities, which the School Board sought to achieve through the 1991-1992 Budget. For more details concerning those priorities, see the School Board's proposed findings of fact 14 and 15. The Unappropriated Fund Balance. Although not required by statute, it is generally recognized within the public agency sector that public agencies, such as the School Board, should attempt to maintain an amount of money as an "unappropriated fund balance" (hereinafter referred to as the "Fund Balance"), or as a reserve equal to approximately 5% of the total operating budget. In an effort to establish a Fund Balance, the School Board adopted Rule 6.01, Rules of the School Board. Rule 6.01 provides, in pertinent part: (14) . . . . The School District shall establish and maintain an annual contingency reserve of no less than 1% of the total general fund effective with the 1990-91 fiscal year, increasing by as much as 1% per fiscal year thereafter until stabilizing at 5% subject to an annual financial review by the Board during the budget process. This reserve shall provide for temporary funding of unforeseen needs of an emergency or non- recurring nature. . . . The Fund Balance was separate from another contingency fund created by Rule 6.01. For the 1990-1991 fiscal year, the School Board's goal of a 1% Fund Balance was achieved. The Fund Balance at the end of the 1990-1991 fiscal year was $7,841,954.00. For the 1991-1992 Budget, however, the School Board was required to utilize the Fund Balance to meet "unforeseen needs of an emergency or non- recurring nature." As a result of severe revenue restrictions, the School Board was required, and decided as part of its approval of the 1991-1992 Budget on September 17, 1991, to utilize approximately $5,167,746.00 of the Fund Balance. At the time the 1991-1992 Budget was adopted, the School Board anticipated that it would receive approximately $2.6 million more in total general operating fund revenues than it had in the previous fiscal year. It also anticipated expenditures of approximately $10 million over the previous fiscal year because of increases in salaries, fringe benefits, carry over obligations and other expenses. Therefore, it was anticipated that expenditures would exceed revenues by approximately $7.4 million. The School Board decided to offset the projected 7.4 million excess, in part, by using $5.2 million of the Fund Balance. This resulted in a projected Fund Balance of only $2,674,208.00. The School Board approved the 1991-1992 Budget with a projected Fund Balance of $2,674,208.00, less than its 1% goal. Rule 6.01, however, recognizes the possibility that the Fund Balance may have to be used. While Rule 6.01 establishes a 5% goal for the Fund Balance, it does not require that this goal be achieved within any particular time period. Anticipated Shortfalls in State Funding and the School Board's Response Thereto. Between September 17, 1991, and November 5, 1991, the School Board was informed that the State of Florida had predicted that the anticipated revenues to be paid to the School District by the State would likely be $3,300,000.00 less than previously anticipated. After applying an emergency 1% fund and other funds to offset this anticipated reduction in revenues, the School Board was faced with a reduction of approximately $1,550,000.00 in its projected revenues for the 1991-1992 Budget. The School Board met on November 5, 1991, to consider what action to take to respond to the anticipated short-fall in State funding. During this meeting, the School Board heard from, among others, Lee Legutko, the Chief Financial Officer of the School District. After hearing from the Chief Financial Officer, the School Board directed the Superintendent to prepare for consideration at a November 19, 1991, meeting of the School Board a number of budget-reducing and other budget-related items. Among the items to be prepared for consideration was the following: the abolishment of the following positions effective December 31, 1991 as shown below: * ....Executive Director of Operations ....Executive Director of Student Services ....One position in Information Services ....Assistant Director of Educational Media ....Athletic Complex Foreman ....District Auditor ....Internal Accounts Auditor * Executive Director of Facilities ....Assistant Superintendent for Instruction ....Assistant Superintendent for Administration *Combine [Emphasis added]. At the November 5, 1991, School Board meeting, the School Board directed the Superintendent to notify the persons who were in the positions under consideration for abolishment that the School Board would consider the issue at the November 19, 1991, meeting. By letter dated November 12, 1991, from the Superintendent to Mr. Sasse, Mr. Sasse was informed of the School Board's action at the November 5, 1991, meeting. Among other things, the Superintendent told Mr. Sasse: At [the November 19, 1991] meeting, the Board may take formal action to abolish the position currently filled by you effective December 31, 1991. Any such abolishment of your position will be without prejudice to your right to petition the Board for a subsequent hearing with respect to your right of employment in and the availability of other positions for which you may be qualified. [Emphasis added]. The Superintendent went on to inform Mr. Sasse of the place and time of the meeting, he invited Mr. Sasse to attend and "present your position" (including through a written statement) and he assured Mr. Sasse that the Superintendent was committed to assisting persons adversely affected to "find other employment within the District with no break in service." The Superintendent ended the letter by assuring Mr. Sasse that he would make no recommendation until the November 19th meeting. Mr. Sasse was not advised in the November 12, 1991, letter, or otherwise, that his position was abolished or as to any due process rights he might have to contest any action adversely affecting Mr. Sasse's employment contract with the School Board. Mr. Sasse received the November 12, 1991, letter from the Superintendent. The School Board met on November 19, 1991. Among the items considered during this meeting was the abolishment of Mr. Sasse's position and the other positions the Superintendent had been requested to consider. Mr. Sasse was aware of the fact that the abolishment of his position would be considered prior to the meeting. He attended the meeting and, therefore, was aware of the School Board's action concerning his position during the November 19, 1991, meeting. Counsel for Mr. Sasse spoke on his behalf at the November 19, 1991, meeting. The Chief Financial Officer of the School District informed the School Board at the November 19, 1991, meeting, as he had at the November 5, 1991, meeting, that the 1991-1992 Budget would be balanced as required by law even if the School Board did not abolish Mr. Sasse's position (or the other positions being considered for abolishment). The Chief Financial Officer notified the School Board that the Fund Balance for the 1991-1992 Budget would be $260,758.00 if all eight of the positions the School Board had identified for consideration at its November 5, 1991, meeting were abolished effective December 31, 1991. Upon a motion being duly made, the School Board voted three to two to abolish the positions the School Board had identified for consideration at its November 5, 1991, meeting, including the position of Mr. Sasse. The positions were all eliminated effective December 31, 1991. Later during the November 19, 1991, meeting, the School Board voted to reinstate one of the eight abolished positions. Therefore, ultimately, the School Board eliminated seven positions, including Mr. Sasse's. The manner in which Mr. Sasse's position was eliminated consisted of a vote of the School Board to eliminate the position and the adoption of an amendment to the 1991-1992 Budget to eliminate funding for Mr. Sasse's position for the second half of the 1991-1992 fiscal year. The School Board also approved other amendments to the 1991-1992 Budget at the November 19, 1991, meeting. The abolishment of Mr. Sasse's position resulted in a savings in the 1991-1992 Budget of approximately $40,609.00. The net savings attributable to the abolishment of the seven positions eliminated was approximately $165,000.00. After all the amendments to the 1991-1992 Budget approved on November 19, 1991, the Fund Balance was projected to be $192,442.00. Therefore, the Fund Balance was sufficient to provide the funding necessary to fulfill the School Board's annual contract with Mr. Sasse from the Fund Balance. According to the Chief Financial Officer, it was not necessary to abolish Mr. Sasse's position in order for the School Board to maintain a balanced budget. The Superintendent recommended to the School Board that all of the positions other than Mr. Sasse's be eliminated. The Superintendent recommended that the School Board not eliminate Mr. Sasse's position based upon the Chief Financial Officer's advice to the School Board and the Superintendent's perceived need for the position. The Superintendent has subsequently, however, indicated that the loss of the position has actually had some positive impact on the administration of the Leon County school system. The School Board did not undertake any study or review of the administration of the School District before determining which positions, if any, should be considered for elimination prior to its action on November 19, 1991. It did take such action after the fact. Prior to reaching its decision on November 19, 1991, the School Board did not receive evidence or testimony or provide other due process safeguards to Mr. Sasse. The weight of the evidence failed to prove that the projected Fund Balance as of November 19, 1991, could not have been used to fulfill Mr. Sasse's employment contract for the entire fiscal year. After abolishing Mr. Sasse's position and the other positions the School Board directed the Superintendent to take the following actions: . . . promptly advice those persons whose positions have been abolished by the action of the Board, advise those persons of any vacant positions for which they may seek to be considered and to suggest to those affected persons that they make known their interest in any such vacancies within the next several weeks. . . . The motion to abolish Mr. Sasse's position and the other positions adopted by the School Board also expressly provided that the School Board's actions was "subject to the right of the incumbents to file a petition with the Board for a subsequent hearing for the purposes of determining whether there are other vacant positions for which these persons are qualified " The weight of the evidence failed to prove that were not other reasonable alternatives to breaching its contract with Mr. Sasse available to the School Board to address the budget problems. For example, the School Board failed to refute evidence presented by Mr. Sasse concerning the possibility of furloughing administrative staff for one day. The School Board also failed to refute evidence presented by Mr. Sasse that the School Board normally has lapsed salary (amounts budgeted to be paid for salary which are not used because of vacancies) which has averaged $1 million a year. At the time of the final hearing of this matter, the anticipated carry forward in revenues for the 1991-1992 fiscal year was $1.1 million. Efforts to Place Persons in Abolished Positions in Other Positions. Subsequent to the November 19, 1991, meeting, Mr. Dave Giordano, the Director of Personnel Services of the School District, considered alternatives for placing the persons in other positions within the school district whose positions had been abolished. The alternatives were discussed with the Superintendent and other administrative staff. A memorandum dated November 22, 1991, was written by Mr. Giordano to Mr. Sasse and was provided to Mr. Sasse. The memorandum notified Mr. Sasse that the School Board had directed that Mr. Sasse "be allowed, without prejudice, to apply for other positions within the school district." Mr. Giordano requested that Mr. Sasse notify him in writing within the next three weeks of any positions he wished to be considered for. A copy of a list of eight vacant and available positions was provided to Mr. Sasse with the memorandum. Three days after Mr. Giordano prepared his November 22, 1991, memorandum to Mr. Sasse, Mr. Giordano prepared a memorandum to the Superintendent setting forth for consideration a possible plan for the placement for the displaced employees into the vacant and other existing positions Mr. Sasse had been informed of. The plan of placement set out in Mr. Giordano's November 25, 1991, memorandum was based upon the discussions between the Superintendent and staff that had already taken place. Based upon the plan, Mr. Sasse was being considered for the position of Director of Co-Curricular Activities. On December 10, 1991, before the expiration of the three week period in which Mr. Sasse had been told to respond to Mr. Giordano's memorandum, the School Board met. At the December 10, 1991, meeting, all of the persons whose positions had been abolished on November 19, 1991, except Mr. Sasse, were recommended by the Superintendent for placement in other positions. The Superintendent's recommendation was approved by the School Board. The weight of the evidence failed to prove that the School Board took any action, other than Mr. Giordano's memorandum of November 22, 1991, to place Mr. Sasse in a vacant position which would insure that the School Board's contractual obligation to Mr. Sasse for the remainder of the fiscal year was fulfilled. By letter dated December 11, 1991, counsel for Mr. Sasse informed the Superintendent that Mr. Sasse understood (based upon Mr. Giordano's November 25, 1991, memorandum) that the Superintendent was considering placing Mr. Sasse in the Director of Co-Curricular Activities position. Counsel indicated that "Mr. Sasse would be willing to accept such an appointment provided that he remain at his contractually agreed price pay grade for the remainder of his contract period." Counsel went on to explain that the apparent difference in his current salary and the salary for the Director of Co-Curricular Activities he was being considered for of $7,363.20 for the second half of the fiscal year was contrary to his contract with the School Board and was not acceptable to Mr. Sasse. The School Board did not respond to counsel for Mr. Sasse's letter of December 11, 1991. As of December 10, 1991, the only vacant position available to Mr. Sasse that he had been informed of by the School Board was the Director of Co- Curricular Activities, which remained open and available as late as the day the final hearing in this case was conducted. Mr. Sasse was qualified, ready and able to serve as the Director of Co-Curricular Activities during the period from January 1, 1992, to June 30, 1992. He was also willing to serve in that position if the conditions of his contract with the School Board concerning salary were met and so notified the School Board. The School Board made no additional effort to place Mr. Sasse in any position as of January 1, 1992, or to otherwise fulfill its contract with him for the second half of the fiscal year. Mr. Sasse has remained willing an able to fulfill the terms of his employment contract with the School Board. No action has been instituted pursuant to Section 231.36, Florida Statutes, to terminate Mr. Sasse's contract for just cause. The School Board had a rule governing the manner in which employees may be terminated. Rule 6Gx37-2.36. This rule was not followed by the School Board. Request for Hearing. Mr. Sasse has never been informed that his position has been terminated and the School Board did not intend to take any further action to find a position for him which would fulfill their contract with him for the second half of the fiscal year. The School Board has also failed to provide notice to Mr. Sasse of the reason why his contract was not fulfilled, his right to request a hearing on the actions of the School Board or the time within which he must request a hearing. On January 27, 1992, Mr. Sasse served a Petition for Formal Administrative Hearing with the School Board. Although not served with twenty-one days after Mr. Sasse's position was abolished, it was served with twenty-one days after it first became definite that the School Board did not intend to comply with its contract with Mr. Sasse by placing him in another position or by any other means.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order in this matter providing for the payment to Carlos Sasse of all salary and benefits to which he would have been entitled had he been allowed to fulfill his contract of employment for the period January 1, 1992, to June 30, 1992, It is further RECOMMENDED that the School Board make contributions to the State of Florida retirement system on behalf of Mr. Sasse to insure that he receives any retirements he would have been entitled to had he been allowed to fulfill his contract of employment for the period January 1, 1992, to June 30, 1992. If the School Board is unable to comply with this recommendation, the Sc hool Board should pay Mr. Sasse an amount equal to the present value of any retirements he would have earned for the period January 1, 1992, to June 30, 1992. It is further RECOMMENDED that the School Board take the actions necessary to insure that Mr. Sasse receives credit toward retirement for the period January 1, 1992, to June 30, 1992. DONE and ENTERED this 3rd day of August, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The School Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Order of Fact Number of Acceptance or Reason for Rejection 1 8. 2 3. 3 4. 4 9 and 12. 5 15. 6 14. 7-10 See 13. 11 17-18 and 20-21. The suggestion that the final budget was adopted November 19, 1991, is not supported by the evidence. The final budget for the 1991-1992 fiscal year was, according to the Chief Financial Officer of the School District, adopted September 17, 1991. It was subsequently amended on November 19, 1991. 12 17. 13 Hereby accepted. 14-15 See 16. 16 21. Hereby accepted. Although this finding of fact is true, the evidence also proved that increases in expenditures were approved. For example, $363,000.00 of expenditures excluded from the 1990- 1991 budget were approved for the 1991- 1992 Budget. There were also new expenditures, referred to as "enhancements or expansions" of approximately $64,836.00 approved for 1991-1992. Hereby accepted. 19 23-24. 20 26. The Fund Balance referred to was contingent upon no cuts being made, which the facts proved did not occur. 21 27. 22 28. The last sentence is hereby accepted. 23 32 and 41. 24 34. 35 and 46. The last sentence is not relevant. Although correct, the reasons for the position cuts were those of one School Board member. The evidence failed to prove that the School Board adopted those reasons. 27 45. 28 35 and 37. 50. The last sentence is not relevant. 52 and hereby accepted. See 54. Mr. Sasse's Proposed Findings of Fact Proposed Finding Paragraph Number in Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 Hereby accepted. 3-4 3. 5 5. But see 6. 6 28-29. 7 35 and hereby accepted. 8 36. 9 11, 18 and 20. 10 9 and 14. 11 38. 12-13 33 and 40. 14-15 See 47. 16 52 and hereby accepted. 17 50. 18 51. 19 52. 20 52 and 58. 21 54 and 57. 22 57. 23 59. 24 58. 25 7. 26 60. 27 61. 28 Hereby accepted. 29 41. 30 42. 31 43. 32 48. COPIES FURNISHED: C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302 J. David Holder, Esquire 1408 North Piedmont Way Suite 100 Tallahassee, Florida 32312 Honorable Betty Castor Commissioner of Education The Captiol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Mr. Bill Woolley, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 =================================================================
