Findings Of Fact William Marcum is a career service employee with appeal rights to the Career Service Commission. In April, 1977, Marcum received a written reprimand from his supervisor, Alphonso Crowell, for being asleep on the job. On July 19, 1977, Alphonso Crowell observed Marcum, who was on duty in the dormitory of the Okeechobee School for Boys, from outside the dormitory through a large window. Crowell observed Marcum seated at his desk with his head leaning against the wall. Crowell could not see Marcum's face, but Marcum did not move for approximately twenty (20) minutes during which time Crowell observed him. Crowell directed Mr. George LaGrange, Marcum's direct supervisor, to relieve Marcum immediately. This incident resulted in counseling by the superintendent of the school, who determined that Marcum was suffering from arthritis and taking aspirin for this problem. Marcum was counseled but no disciplinary action was taken because he had been taking medication and was scheduled to be hospitalized. On August 15, 1977, Marcum returned to work having been pronounced fit for duty by his doctor and the agency's doctor. On August 17, 1977, George LaGrange walked into the dormitory to which Marcum was assigned at approximately 4 A.M. and approached Marcum from the right rear. LaGrange, wearing boots, walked to within six (6) feet of Marcum and observed Marcum for about five (5) minutes. Marcum was slumped forward in his seat and did not move during this period. LaGrange then spoke to Marcum and Marcum immediately returned and replied to LaGrange. Marcum denies that he was asleep on either occasion, but asserts that he was absorbed in thought about his personal affairs. Marcum pointed out that neither Crowell nor LaGrange observed his face and therefore could not tell whether he was asleep. Marcum's duties were direct custodial supervision of the children in the dormitory to which he was assigned.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends to the Career Service Commission that they sustain the disciplinary action taken by the agency against William Marcum. DONE and ORDERED this 28th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1978. COPIES FURNISHED: William Marcum Route 3, Box 3575 Okeechobee, Florida 33472 K. C. Collette, Esquire 1665 Palm Beach Lakes Boulevard Suite 800 West Palm Beach, Florida 33401 Dorothy Roberts, Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304 Art Adams, Director Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The parties stipulated that respondent, Lavern W. Burroughs, began work with the Department of Health and Rehabilitative Services (HRS) on July 1, 1987, and that she was not present for work on July 22, 25, or 26 of 1988. Between March 3, 1988, and July 7, 1988, Ms. Burroughs, a clerk typist, was absent on fourteen occasions. Each time "LW" was entered beside her name on an attendance and leave sheet. "LW" is used when an employee has used up all sick and annual leave, but is nevertheless authorized to take leave. The designation LW means leave without pay, but it does not indicate whether leave was authorized or unauthorized. In December of 1987, Ms. Burroughs had received a "conference letter," HRS' Exhibit No. 1, after discussing her attendance problems with Mr. Weston and his immediate supervisor, Mr. Mathis. On April 15, 1988, Mr. Weston sent her a letter in 4 which he reprimanded her for being absent without leave. HRS' Exhibit No. 2. The letter stated: It is hoped that you will view this disciplinary measure in a constructive manner and there will not be a recurrence of this nature. However, you are cautioned that further offenses of this standard will result in more stringent disciplinary measure of a ten (10) days suspension without pay up to dismissal. Mr. Mathis testified that the ordinary practice, if petitioner's absenteeism had been handled as a career service matter, would have seen a ten (10) day suspension as HRS' next response, in the event of another unauthorized absence; and that dismissal would not have occurred, unless the ten (10) day suspension failed to cure the problem. On Thursday, July 14, 1988, Ms. Burroughs went to work, as it turned out, for the last time. The next morning she called in, shortly after 9:00 o'clock, to report that she had received notice of judicial proceedings designed to foreclose on her house. Unable to reach Mr. Weston, she asked for his supervisor, Mr. Mathis. Unable to reach him, she spoke to Ms. Evan Gibson, Mr. Mathis' secretary, and told her that she would not be coming to work. Ms. Gibson said she would relay the message. Ms. Burroughs left for Georgia in an effort to obtain money from a cousin with which to retain a lawyer to represent her in the foreclosure proceedings. The next Monday, July 18, 1988, Ms. Burroughs' daughter, Sheronda, telephoned HRS' Jacksonville offices. Apparently she spoke to Mr. Weston when she reported that Ms. Burroughs had trouble with her eye. On July 20, 1988, Ms. Burroughs telephoned herself. Again unable to reach Mr. Weston, she ended up telling Ms. Gibson that her eye was running and painful. Also on July 20, 1988, she visited the Riverside Clinic, received a prescription for erythromycin, and filled it that day. A nurse filled out a form employee's medical excuse saying that Ms. Burroughs had been under the care of a doctor at the clinic "and may return to work on 7/21/88." Joint Exhibit No. 1. Mr. Weston has never denied an employee's request for sick leave. Ms. Burroughs had been granted sick leave on more than three occasions and had produced a doctor's statement on each occasion. On Thursday, July 21, 1988, Ms. Burroughs called and spoke to Mr. Weston. In a telephone conversation that lasted perhaps two minutes, she told him about the problem with her eye, and also spoke to him about the threatened foreclosure. She did not say when she would return to work, but it was clear that she was not coming in that day. After Mr. Weston responded, "Okay," his only contribution to the conversation, Ms. Burroughs said goodbye and hung up. She did not explicitly ask for leave, even as she had never done before. Her eye stopped running on July 25, 1988, a Monday. On July 26, 1988, Ms. Burroughs set out for work, having spent, she testified, all her money, except for a quarter she had with her, on gasoline, for transportation to and from work that week. When her car overheated on 1-495 she was obliged to cut her journey short. She used her only quarter to telephone her brother's house, where a sister also lived. She asked this sister to call work to tell them what had happened. Instead, a friend, Wanda Stewart, learned the circumstances from Ms. Burroughs' sister, and made the telephone call to report why petitioner would not be in that day. Anna Williams, who worked in Mr. Weston's unit last summer, took the call. Because he was not in the office, she relayed the message to Mr. Mathis' secretary. When Ms. Burroughs' called herself, on July 27, 1988, she was informed she no longer had a job.
The Issue The issue is whether Respondent's statements as set forth in a letter dated April 30, 2001, are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Respondent is an agency of the State of Florida. At all times relevant here, the Florida Capitol Police was a division within Respondent's Facilities Program. The Florida Capitol Police is an accredited law enforcement agency. Its purpose is to provide building security and other law enforcement services. The State of Florida employs individuals in one of four distinct, statutorily defined services: Senior Management Service, Selected Exempt Service, Career Service, or Other Personal Services. At all times relevant here, the Director of Florida Capitol Police was an employment position that was classified within the Senior Management Service. Petitioner is a sworn law enforcement officer. On February 24, 1998, Respondent offered Petitioner an appointment to the position of Director of Florida Capitol Police. At that time, Petitioner understood that the appointment was to a position classified within the Senior Management Service. To the extent possible, Petitioner negotiated the terms of his employment. However, he understood that his position as Director of Florida Capitol Police included all of the benefits and all of the terms of employment of a position established within the Senior Management Service. He knew that he would serve at the pleasure of Respondent's Secretary, as the agency head, if he accepted the job. On February 25, 1998, Petitioner accepted the appointment to Director of Florida Capitol Police. He executed a document acknowledging that he was relinquishing his career service rights. From that time forward, Petitioner was compensated and evaluated as a Senior Management Service employee. He enjoyed all the benefits of his new position. Petitioner was the highest-ranking sworn law enforcement officer in the Florida Capitol Police, holding the "rank" of colonel. He did not report to any higher sworn law enforcement officer. As Director of Florida Capitol Police, Petitioner was responsible for leading and directing the operation of a statewide law enforcement organization, including the administration and oversight of a $6.2 million-dollar budget. Part of Petitioner's duties required him to maintain appropriate relationships with the Sheriff of Leon County and the Chief of the Tallahassee Police Department for support in joint operations when necessary. Petitioner was a member of the Florida Police Chiefs' Association, the State Law Enforcement Chiefs' Association, and the National Police Chiefs' Association. In 1999, a former employee of the Florida Capitol Police commenced a legal action in the United States District Court for the Northern District of Florida against Respondent. The former employee alleged sex discrimination and sexual harassment by the Florida Capitol Police, specifically by Petitioner. A trial was conducted in the lawsuit, Goldwich v. Department of Management Services, USDC ND Fla., Case No. 99-CV-512 (1999) in early February 2001. Petitioner testified as a defense witness at the trial. Several other Florida Capitol Police officers were interviewed as potential witnesses or called to testify at the trial. Respondent prevailed in the district court action. On February 2, 2001, Respondent's Secretary transferred the internal affairs investigation function of the Florida Capitol Police from the Florida Capitol Police to Respondent's Office of Inspector General. Thereafter, the Chief Investigator, Captain Joe Wallace, worked out of the Inspector General's office. On February 15, 2001, Petitioner and Respondent's Inspector General entered into a Memorandum of Understanding regarding the "credentialing" of Chief Investigator Wallace. The purpose of the memorandum was to formulate and establish a commitment between the Office of the Inspector General and the Florida Capitol Police to support the training and educational requirements for sworn law enforcement personnel assigned to each entity. On March 2, 2001, Respondent's Office of the Inspector General received an internal complaint from Sergeant Edwin Maxwell, a subordinate officer of the Florida Capitol Police. Said complaint alleged that Petitioner had retaliated against Sergeant Maxwell for testifying at the Goldwich trial. Sergeant Maxwell's allegations also implicated Petitioner's subordinate, Major Robert G. Tippett, as having participated in the alleged retaliation. On or about March 7, 2001, Respondent's Inspector General instructed Petitioner to report to the Florida Capitol Building, specifically to the offices of the Governor's Chief Inspector General. Respondent's Inspector General, Chief Investigator Wallace, and an Assistant Florida Inspector General from the Governor's Office of Inspector General were present when Petitioner arrived at the Capitol. At that time, Petitioner was presented with a memorandum advising that he was the subject of a formal investigation. The March 7, 2001, memorandum stated that Respondent's Inspector General initiated the investigation pursuant to a complaint. According to the memorandum, the principal allegation that formed the basis of the investigation was that Petitioner had engaged in one or more of the following: retaliation, conduct unbecoming, and/or violation of law. Sergeant Maxwell's complaint and a copy of Section 112.532, Florida Statutes, was attached to the memorandum. During the March 7, 2001, meeting at the Capitol, Respondent's Inspector General advised Petitioner that he had a right to representation by counsel. After a brief discussion, Petitioner elected to seek private counsel. Later on March 7, 2001, Petitioner and his attorney returned to the Governor's suite at the Capitol. Upon their arrival, Petitioner was advised again of his rights under the law enforcement officers' and correctional officers' rights, which are codified at Section 112.532, Florida Statutes. Respondent's Inspector General and Chief Investigator Wallace then proceeded to interview Petitioner. Respondent's Inspector General inquired into the complaint against Major Tippett, performed an investigation, and issued an Executive Summary of the investigation dated March 22, 2001. This report concluded that Major Tippett's alleged violations related to conduct unbecoming, retaliation, and violation of law were unfounded. Respondent's Inspector General inquired into the complaint against Petitioner, performed an investigation, and prepared a draft report of the investigation. After consulting with the Chief Inspector General in the Office of the Governor, Respondent's Inspector General issued an Executive Summary of the investigation dated March 26, 2001. This report concluded that Petitioner had engaged in conduct unbecoming. The report also concluded that other alleged violations by Petitioner, including retaliation and violation of law, were unfounded. According to the March 26, 2001, Executive Summary, Respondent's Inspector General recommended that Petitioner be removed from his position as Director of Florida Capitol Police. The report states as follows in relevant part: This recommendation is made after carefully considering the following factors and informed by the fact that the Director serves entirely at the discretion of the secretary: The previous OIG report related to Capitol Police and the issues raised therein. (See attached) The finding of the jury in the US District Court case, filed by Officer Lisa Goldwich, that her working conditions were made so intolerable, by the defendant, that she was forced to resign. (See attached) The finding of "conduct unbecoming an employee/officer" contained in the report above. The likelihood that future retaliation will be attempted against those individuals who participated in the Goldwich trial and against those who testified in the OIG investigation reported above. The ongoing morale problem within the Florida Capitol Police. Subsequently, Respondent's Inspector General prepared a Memorandum of Investigation dated April 2, 2001. This memorandum states again that allegations against Petitioner relative to retaliation and violation of law were unfounded but that allegations relative to conduct unbecoming were founded. The April 2, 2001, memorandum cites Respondent's Policies and Procedures Manual, Section 3.27, Discipline of Career Service Employees, as it relates to conduct unbecoming a public employee. It also cites to Section 110.403(1)(a), Florida Statutes, for the proposition that Respondent's Secretary had discretion to discipline Senior Management Service employees. On or about April 3, 2001, Petitioner and Major Tippett filed a civil suit in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Case No. 01-821. This suit included an Emergency Motion for Temporary Injunctive and Declaratory Relief. It alleged violations of Sections 112.532, 112.533, and 112.534, Florida Statutes. Petitioner subsequently voluntarily dismissed this civil action. On or about April 3, 2001, the General Counsel in the Office of the Governor, requested the Florida Department of Law Enforcement (FDLE) to review and complete Respondent's internal investigation. Thereafter, FDLE's Inspector General performed an investigation into the complaint against Petitioner and Major Tippett. FDLE's Inspector General eventually prepared an undated report of its review and investigation. The FDLE report states as follows in relevant part: As mentioned previously, the OIG report concludes that the alleged violations against Major Tippett were all unfounded. The alleged violations against Colonel Meek for (1) Retaliation and (2) Violation of Law were unfounded. The violation against Colonel Meek for Conduct Unbecoming was founded. Conduct Unbecoming a public employee is a violation of DMS Policy, Section 3.27(C)(2)(e). There is no definition of "Conduct Unbecoming" in DMS' policies or administrative rules. Based upon the interview of the subordinate supervisors regarding the statements made by Colonel Meek, the conclusions rendered by OIG are reasonable. Near the completion of the OIG investigation, IG Varnado prepared a draft report and discussed it with the Chief Inspector General, Marcia Cooke. The draft report did not contain any recommendation regarding a recommended action for the founded violation of Conduct Unbecoming. CIG Cooke instructed IG Varnado to include such a recommendation. IG Varnado recommended that Colonel Meek be removed from his position and discussed the recommendation with Secretary Cynthia Henderson. This RECOMMENDATION was included in the INVESTIGATIVE REPORT dated April 2, 2001. The RECOMMENDATION contained five cited reasons to support Colonel Meek's removal. The OIG investigative report does not specifically support reasons (1), (4), and (5). However, based upon the below recommendation, further discussion of these items is rendered moot. Generally, an investigation regarding possible administrative misconduct is handled independently from the determination to impose action following a sustained finding of a violation. IG Varnado acknowledged that he does not routinely recommend action following an administrative violation. However, according to IG Varnado, the rank of the person involved led him to seek assistance from the Chief Inspector General's Office. It is recommended that the RECOMMENDATION regarding the proposed administrative action be removed from the investigative report. The determination of any action resulting from the OIG investigation should be left solely to the discretion of the Secretary for the Department of Management Services. The FDLE report also addresses Respondent's violations of Sections 112.532(1)(b), 112.532(1)(g), and 112.533, Florida Statutes, which were the subject of the civil suit filed by Petitioner and Major Tippett. The report concludes that these statutory provisions were applicable to Major Tippet but that the question whether they were applicable to Petitioner, as the head of the Florida Capitol Police, was also the subject of the civil suit. By letter dated April 30, 2001, Respondent's Secretary advised Petitioner that the investigation of Sergeant Maxwell's complaint was complete. The letter states as follows in relevant part: [B]ased on the investigation conducted by the DMS Inspector General, as reviewed and completed by the Florida Department of Law Enforcement Inspector General, it has been determined that allegations against you relating to retaliation and violation of law are unfounded, and that allegations against you relating to conduct unbecoming a public employee are founded. Attached hereto for your reference is a copy of the pertinent report of the FDLE Inspector General's Office. As set forth in the attached report (page three), the basis for the conclusions that you are guilty of conduct unbecoming a public employee is that you made statements in the days or weeks following the trial of the civil suit filed by former officer Lisa Goldwich to subordinate officers regarding the removal of duties involving Sgt. Maxwell--who testified for the plaintiff at the trial--and possible adverse action for him and others who testified. Because of this conduct unbecoming a public employee, you are hereby suspended without pay for a period of fourteen (14) days, after which you will return to your post. You are also hereby required to participate in supervisor training with (sic) ninety (90) days. Respondent's agency head, in the exercise of her discretion, made the ultimate decision to suspend Petitioner. In taking the disciplinary action, the agency head did not reference or assert any reliance on career service rules to support Petitioner's discipline. The April 30, 2001, letter was not disseminated to other agencies or to other Senior Management Service employees. The agency head's April 30, 2001, letter was an action taken exclusively regarding Petitioner. It did not affect or impact any other agency, employee, or class of employee. The administration of personnel matters regarding Respondent's Senior Management Service employees did not change following Petitioner's April 30, 2001, discipline. Respondent has not promulgated rules regarding the discipline, suspension, or termination of Senior Management Service employees because such rules are not required. Petitioner resigned his appointment as Director of Florida Capitol Police on July 31, 2001. He is no longer employed by the State of Florida.
The Issue At issue is whether petitioner's four-year service as the Executive Director of the Broward County Convention Center may be upgraded to the Senior Management Service Class of the Florida Retirement System.
Findings Of Fact Petitioner's employment history with Broward County Petitioner, C. Dean Hofmeister, was employed by Broward County from April 1, 1988, through April 28, 1995. During his tenure, he served as Executive Director of the Broward County Convention Center (BCCC), from April 1, 1988, until April 30, 1992, and as President of the Greater Fort Lauderdale Convention and Visitors Bureau (GFLCVB), from April 30, 1992, through April 28, 1995. As the Executive Director of the BCCC, petitioner was its chief executive officer (CEO) and supervised a staff of two employees: a project engineer (Carlos Puentez) and a secretary. As its CEO, petitioner had numerous responsibilities, including contract administration, policy formation and recommendation, fiscal operations, and management of the BCCC's small administrative staff. On April 30, 1992, petitioner was selected to be the next president of the GFLCVB. Significant to his selection was petitioner's proposal to consolidate the GFLCVB and the BCCC operations. Such consolidation was proposed to more closely coordinate the related activities of both organizations, and would save the County certain salary costs by eliminating the need for an Executive Director of the BCCC. The consolidation was approved by Broward County and, following consolidation, the BCCC became an operating division of the GFLCVB. The amendments to Chapter 121, Florida Statutes In 1993, the Florida Legislature passed Chapter 93-285, Laws of Florida, which amended Section 121.055, Florida Statutes, effective January 1, 1994, to authorize the designation of additional positions for participation in the Senior Management Service Class (SMSC) of the Florida Retirement System (FRS) by local agencies. Under the act, a local agency, such as Broward County, could designate one position to the SMSC for every 200 employees. To qualify for SMSC designation, a position had to be a non-elective, managerial or policy-making position, which was filled by an employee who was not subject to a continuing contract. Moreover, an employee serving in a designated position could not have career service protection; rather, the employee had to serve at the pleasure of the employer. Finally, the employee serving in a designated position had to be the head of an organizational unit or hold a position of responsibility that recommended personnel actions, budgetary approval, expenditures and policy decisions. Once the position was designated or added to the SMSC, the member could purchase additional credit for credible service "within the purview of the Senior Management Service Class," retroactive to February 1, 1987. Section 121.055(1)(g), Florida Statutes. This upgrade benefit allowed a member to increase his credible service in the class up to the level allowed by law. "Within the purview of the Senior Management Class" is not defined by the act. The Division has, however, construed such phrase to refer to service in the position preceding the time the position was designated for membership in the class. Under such interpretation, the holder of a position designated for membership in the class could purchase credit for the time he served preceding its designation, limited only by the restriction that credit could not extend further back than February 1, 1987. Where the title of the position changed prior to designation, but the duties and responsibilities remained essentially the same, such prior service is still considered "within the purview of" the SMSC and eligible for upgrade. Moreover, pertinent to this case, where two positions are merged or consolidated prior to designation, and the duties and responsibilities of the eliminated position are subsumed in the new position, prior service in the eliminated position, provided it qualified for SMSC designation, is considered "within the purview of" the SMSC and eligible for upgrade. Consistent with the provisions of subsection 121.055(1), regarding a member's entitlement to upgrade prior service through the purchase of additional retirement credit, the Division has promulgated Rule 60S-2.013, Florida Administrative Code. Pertinent to this case, that rule provides: A member of the Senior Management Service Class as provided in 60S-1.0057(1) who has earned creditable service within the purview of the Senior Management Service Class may purchase additional retirement credit in the Senior Management Service Class for such service retroaction to February 1, 1987, provided that: He notifies the Division in writing of his desire to receive credit for such service, and The required contributions are made in accordance with section 60S-3.013. Petitioner's SMSC designation and upgrade request In February 1994, Broward County, pursuant to the amendments to section 121.055, designated thirty new positions, including petitioner's position as President of the GFLCVB, for inclusion in the SMSC, effective January 1, 1994. Thereafter, on or about March 17, 1994, Broward County submitted a FR-9 (the Division's information request form), completed by petitioner, which sought to purchase additional credible service in the SMSC for his prior service as President of the GFLCVB (April 30, 1992, to December 31, 1993) and his prior service as Executive Director of the BCCC (April 1, 1988, to April 30, 1992). Accompanying such form were various personnel documents, as well as an employment certification from Phillip Rosenberg, Director of Human Resources for Broward County, which stated: C. Dean Hofmeister [Petitioner] was appointed as Executive Director of the Broward County Convention Center on April 1, 1988. On April 30, 1992 he was appointed President of the Greater Fort Lauderdale Convention [and] Visitors Bureau and has maintained responsibility for the Convention Center in what became, through reorganization, a combined responsibility. Petitioner's application, as well as numerous other applications filed by new SMSC members of Broward County, were reviewed by David Ragsdale, a retirement administrator with the Division, and during March and April 1994, he and Mr. Rosenberg had a number of discussions to clarify certain matters regarding the pending upgrade requests, including petitioner's application. The particulars of the conversation regarding petitioner's application are not apparent from the record, except that during the course of the conversation Mr. Ragsdale was apparently informed that the positions of Executive Director of the BCCC and President of the GFLCVB were separate positions. On April 18, 1994, the Division approved petitioner's request to upgrade and purchase his prior service as President of the GFLCVB (April 30, 1992, through December 31, 1993), but took no action to address his prior service with the BCCC. The reason for such failure was Mr. Ragsdale's apparent understanding that, notwithstanding the employment certification that the responsibilities of the two positions had been combined, the two positions were separate. With such understanding, petitioner's service with the BCCC did not qualify for upgrade because that position had not been designated for inclusion in the SMSC. By letter of June 27, 1994, the Division informed Broward County of the upgrade approvals, including petitioner's; however, that notice merely reflected the dollar amounts necessary for each employee to purchase their upgrade credits, and did not reflect the service or time for which credit was approved. 1/ In or about April 1995, petitioner, under the belief he had seven years of credible service under the SMSC, including his four-year service as Executive Director of the BCCC, filed an application with the Division for retirement benefits. Thereafter, it was learned that the Division had not addressed whether, if consolidated, petitioner's service with the BCCC was eligible for upgrade. Consequently, the Division reviewed the matter and in June 1995, formally advised petitioner that such prior service was not eligible for upgrade because "the positions of Executive Director of the Broward County Convention Center and President of the Greater Fort Lauderdale Convention Center (sic) coexisted before the Board of County Commissioners' reorganization [and] [t]he function of Director still exists but appears to have been reclassified to Deputy Director," as opposed to having been merged with the position of President of the GFLCVB, as urged by petitioner and Broward County. Such notice further advised petitioner of his right to request a formal hearing to contest the Division's determination. Petitioner timely requested a hearing, and this proceeding ensued. Petitioner's request for upgrade of his services as Executive Director of the BCCC As heretofore noted, petitioner was employed by Broward County as the Executive Director of the BCCC from April 1, 1988, to April 30, 1992. During that time there were three employees of the BCCC: petitioner, a project engineer (Carlos Puentez), and a secretary. During the course of construction of the convention center, which was completed in September 1991, petitioner, with the assistance of his project engineer, coordinated with the project developer, general contractor and project architectural firm in reviewing plans for value engineering and change orders, and reviewed and approved purchase orders submitted by the general contractor. As the facility neared completion, petitioner began to function more as the contract administrator for the management firm selected by the County to operate the convention center, as well as continuing to fulfill his responsibilities for policy formation and recommendation, and fiscal or operating budgetary matters for the center and the management firm. Moreover, as construction was completed, Mr. Puentez, the project engineer, began to assist petitioner more fully in administrative matters unassociated with construction. On April 30, 1992, petitioner was selected by Broward County to be the next president of the GFLCVB. Significant to his selection was petitioner's proposal to consolidate the operations of the GFLCVB and the BCCC. Such consolidation would more closely coordinate the related activities of both organizations, and would save the County certain salary costs by eliminating the need for an Executive Director of the BCCC, since petitioner would continue to fulfill those responsibilities in his new position. Following his appointment as President of the GFLCVB, the operations of the GFLCVB and the BCCC were consolidated, and the BCCC became an operating division of the GFLCVB. In August 1992, in recognition of the consolidation, the Broward County Board of County Commissioners approved a proposal to eliminate the position of Executive Director of the BCCC, which had remained vacant since petitioner's appointment to the GFLCVB, and to create a new classification, Deputy Director of Convention Center, to "manage the Convention Center section of the Convention and Visitors Bureau." Responsibilities were noted to include "finance, operations/maintenance, human resources, minority participation, risk management, legal matters and general administration." Deleting a vacant position, such as the Executive Director position, to create a new position, such as Deputy Director, is a customary practice for Broward County, given its personnel cap that is established annually by the County Commission. As created, the Deputy Director position had a salary range that was designated as "open range 3," with a pay range of $41,745 to $66,792 (minimum to maximum), as compared to the Executive Director position which had a salary range designated as "open range 6," with a pay range of $55,557 to $88,899 (minimum to maximum). At the time of his promotion, petitioner's salary was at the maximum of the pay range, and upon appointment as President of the GFLCVB his salary range designation was "open range 7," with his initial salary at $93,345. The position description for the Deputy Director, which was created with petitioner's input, is almost identical to the position description that had existed for the Executive Director, except that the Deputy Director was to work "independently with direct responsibility to [petitioner] the President of the County's Convention and Visitors Bureau," whereas the Executive Director had worked "independently with direct responsibility to the County Administrator." That the nature of the work and illustrative tasks of the Deputy Director's position description would track, except for the chain of authority, the previous Executive Director's work description is not unusual or dispositive of this case. Clearly, in the absence of a director, a deputy functions in his stead; however, the ultimate responsibility reposes in the director, as recognized by the position description. Mr. Puentez, who had served as petitioner's project engineer/assistant at the convention center, was appointed to fill the Deputy Director position. Following appointment, Mr. Puentez' role in the day-to-day operations of the center expanded, as they had previously expanded under petitioner; however, notwithstanding Mr. Puentez's expanded role, no new personnel were employed (the convention staff, if it may be so described, continued to consist of petitioner, albeit now as the CEO of the consolidated operations, Mr. Puentez, and a secretary), and petitioner's ultimate authority and responsibility for the operation of the BCCC remained the same. In so concluding, it is observed that petitioner maintained an office at the BCCC, where he addressed convention center matters two to three times a week, continued to develop, implement and maintain strategic plans for the BCCC, and was involved and responsible for the development, implementation and maintenance of the joint operating budget, as well as the physical and capital improvement plans for both operations. Moreover, petitioner continued to attend conferences and public meetings on behalf of the BCCC, including professional conferences and appearances before the Broward County Commission, with respect to agency related agenda items. Given the circumstances, the proof is compelling that the operations of the GFLCVB and the BCCC were consolidated, and that with the consolidation the duties and responsibilities of the Executive Director of the BCCC were merged into the position of President of the GFLCVB. The proof is further compelling that the position of Deputy Director of the convention center is not a clone of the previous position of Executive Director, as advocated by the Division. In reaching the foregoing conclusion, the similarities of the position description of Executive Director and Deputy Director have been noted, but, for reasons heretofore noted, such similarity is not dispositive. What is more telling is that the deputy position, as the name would imply, is subordinate to the CEO of the BCCC (the President of the GFLCVB), who is responsible for its operations. That the prior Executive Director position and the Deputy Director position are not clones is further supported by the fact that, upon petitioner's appointment as President of the GFLCVB, the position of Executive Director remained vacant while he continued to fulfill those responsibilities; the positions of Executive Director and Deputy Directory have significantly different pay grades; the BCCC, organizationally, is now part of the GFLCVB; and, the staff of the BCCC has not been increased following petitioner's new appointment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which approves petitioner's request to upgrade his service as Executive Director of the Broward County Convention Center to the Senior Management Service Class of the Florida Retirement System and that the Division reconsider petitioner's application for retirement benefits consistent with such recommendation. DONE AND ENTERED this 25th day of September, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 25th day of September, 1996.
The Issue Whether Respondent resigned from her position in Career Service by abandonment while employed by the Department of Health and Rehabilitative Services.
Findings Of Fact Prior to August 7, 1989, Gladys Dozier was employed by HRS as a clerk typist. On this date she was absent without authorized leave. On August 7, Respondent called her supervisor to tell her that she wasn't feeling well and would be late coming in. She came in at 9:57 a.m., and at 11:15 a.m. told her supervisor she wasn't feeling well and needed to go home. She left work around 11:20 a.m. On August 8, Respondent again called her supervisor to advise her that she wasn't feeling well but would come in later that morning. Respondent did not come to work that day and was not authorized leave. On August 9, Respondent again called in to say she wasn't feeling well and would not be in for the remainder of the week, but would report to work on August 14, 1989. She was then advised that she needed to bring in a medical statement from her doctor that she was unable to come to work those days she had missed. On August 11, 1989, Respondent again called the office and was reminded that she needed a medical statement for the time she had been absent. By certified letter dated August 15, 1989, and received by Respondent on August 16, 1989, Respondent's immediate supervisor, Mary Simmons, advised Respondent that she was expected at work not later than August 17, 1989, that the medical statement she had sent to the office August 14, 1989 was insufficient to justify more than one day's absence and that if she did not return to work by August 17, 1989, action would be taken to terminate her employment with HRS. Respondent did not return to work. By certified mail dated September 6, 1989 Respondent was advised that she had been absent from work without approved leave since August 14, 1989 and that pursuant to Rule 22A-7.010(2)(c), Florida Administrative Code, she is deemed to have abandoned her position with HRS and to have resigned from the career service system as of the close of business September 7, 1989. Thereafter Respondent submitted her undated letter which was received at the Division of Administrative Hearings on October 26, 1989, and these proceedings followed.
Recommendation It is recommended that the appeal of Gladys Dozier from the determination by HRS that she abandoned her position with the department be dismissed and her resignation from the Career Service be affirmed. ENTERED this 17th day of January, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1990. COPIES FURNISHED: Thomas C. Caufman, Esquire Aletta Shutes Department of Health and Secretary Rehabilitative Services Department of Administration 701 94th Avenue North 435 Carlton Building St. Petersburg, FL 33702 Tallahassee, FL 32399-1550 Gladys Dozier Augustus D. Aikens, Jr. 2032 Quincy Street General Counsel St. Petersburg, FL 33711 Department of Administration 435 Carlton Building William A. Frieder, Esquire Tallahassee, FL 32399-1550 Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact On February 4, 1991 the Petitioner met with Peter Bond the Department's Regional Toll Manager for the Tampa Bay Region and Delene Wilson the Department's Toll Facility Supervisor at the Sunshine Skyway Bridge concerning a transfer to the Tampa Bay Region from her then present position as a Toll Collector in Miramar, Florida. As a result of these meetings with Bond and Wilson, Petitioner was offered a position as Toll Collector on the Sunshine Skyway Bridge. The Petitioner preferred the first shift in order to be available to see about her children when they got out of the day care center. Wilson advised the Petitioner that there may be a first shift opening but that unless that worked out there was only a second shift available. Petitioner understood this when she accepted the position and started the process of transferring. As it turned out, the first shift did not become available and Petitioner was placed on the second shift. Additionally, Wilson was able to transfer another Toll Collector from the north end of the bridge to the south end of the bridge so that Petitioner could work the north end which was closer to her home. With everyone thinking that Petitioner's transfer would be effectuated by February 15, 1991, the Petitioner was placed on the work scheduled for February 15, 1991 through February 28, 1991. As it turned out, Petitioner's last day at Miramar was February 26, 1991. As a result, Petitioner was placed on a new work schedule of March 1, 1991 through March 14, 1991. However, because Petitioner had just moved and needed to get things straightened out, Wilson placed Petitioner on authorized leave without pay (Petitioner had no leave time accumulated) for March 1-2, 1991. Petitioner's regular days off would have been March 3-4, 1991 which required her to report for work on March 5, 1991. The Petitioner did not report for work on March 5, 1991 or at any time during the two week work schedule of March 1 through March 14, 1991. Wilson covered the Petitioner's shift on a day to day basis which did cause the other employees some hardship. From March 7, 1991 Wilson called Petitioner on a daily basis but was unable to reach anyone until March 12, 1991 when she talked to Petitioner's husband, Brian and ask that he have Petitioner call Wilson as Wilson needed her to work. Petitioner did not return this call notwithstanding that her husband gave her that message on March 12, 1991. On March 14, 1991, while Bond was in Wilson's office, Wilson called Petitioner and Petitioner answered the phone. When asked why she had not reported to work the Petitioner explained that she was attending school to better herself and that she could not work the second shift because she had no one to take care of her children after they got out of the day care center. During this telephone conversation on March 14, 1991 Petitioner requested a six month leave of absence without pay, Petitioner was advised by Bond, through Wilson, that Petitioner could file for a leave of absence without pay but she must report for work that day or otherwise she would be considered as having abandoned her position and resigned from career service which would result in her termination. Petitioner did not report for work that day, March 14, 1991 and even though she was on work schedule through March 28, 1991 did not report for work any day thereafter through March 28, 1991 when she was advised by Bond of her termination by letter referred to in Finding of Fact 2 above. Petitioner understood that her transfer would not cause a break in service and that any time off had to be on her regular days off or by authorized leave of absence. Petitioner also understood that since she had no accumulated annual leave any leave time would have to be sick leave or authorized leave of absence without pay. Except for March 3-4, 1991, Petitioner neither applied for, nor was granted, any sick leave or unauthorized leave of absence without pay between March 1, 1991 and March 28, 1991. Between March 1, 1991 and March 28, 1991 the Petitioner was attending school and working on jobs other than with the Department that allowed her to work the first shift. There is sufficient competent substantial evidence to establish that Petitioner intended to abandon her position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Department of Administration enter a Final Order (1) finding that Petitioner did abandon her position with the Department and resigned from career service, and (2) denying the Petitioner any relief. DONE and ENTERED this 18th day of October, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Petitioner did not submit any proposed findings of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. As to the receipt of letter it is adopted in Finding of Fact 3. As to reading the letter the date was sometime around April 6, 1991 and in that regard proposed finding of fact 2 is rejected. See Finding of Fact 4. Not material or relevant since the date letter is postmarked controls and that was earlier than May 30, 1991. Covered in Preliminary Statement. - 7. Not material or relevant. Adopted in substance as modified in Finding of Fact 8. - 14. Adopted in substance as modified in Findings of Fact 9, 7, 7, 9, 10, and 9, respectively. Not material or relevant since Wilson had placed Petitioner on authorized leave of absence without pay on March 1-2, 1991. See Finding of Fact 10. - 17. Adopted in substance as modified in Findings of Fact 11 and 12, respectively. Not material or relevant. The first phrase of proposed finding of fact 19 is adopted in substance as modified in Finding of Fact 12. The second phrase of proposed finding of fact 19 is not supported by the record but see Finding of Fact 12. While the record reflects that Petitioner may have been pregnant, the record does not reflect that her pregnancy would have prevented her from returning to work. - 23. Adopted in substance as modified in Findings of Fact 13, 16 and 12, respectively. Not supported by substantial competent evidence in the record. Adopted in substance as modified in Finding of Fact 13. Goes to credibility and not a finding of fact. 27.-28. Adopted in substance as modified in Finding of Fact 14. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Angelita K. Coley Davis 5919 S. Dale Mabry Apt. A Tampa, FL 33611 Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458
Findings Of Fact Respondent Jerry O. Bryan began working for the State Road Department in 1968. In 1983, he started his most recent assignment with the agency, now called the Florida Department of Transportation, as an engineering technician III, in a career service position. An employee handbook respondent was furnished in 1983 had this to say about "JOB ABANDONMENT": After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. Petitioner's Exhibit No. 1, at page 43. Perhaps with this in mind, respondent requested leave without pay when he learned he faced six months' incarceration, as a result of his criminal conviction for cultivating marijuana on federal property. Respondent's supervisor, Robert Edward Minchin, Jr. denied his request for leave without pay, in accordance with a DOT policy against granting leave to DOT employees who are incarcerated. Mr. Bryan did not request annual leave, although some 220 hours' entitlement had accumulated. Asked whether he would have granted Mr. Bryan's leave request absent "a policy of not authorizing leave while someone was incarcerated," Mr. Minchin answered in the negative, saying Mr. Bryan "was going to be needed during ... [the time] he would be out. T.22. At no time did petitioner ever take disciplinary action against respondent, who received satisfactory or higher job performance ratings, the whole time he worked for petitioner. Aware that Mr. Bryan did not desire or intend to resign, relinquish or abandon his career service position, Mr. Minchin took steps to remove him from the payroll solely on grounds that he was absent without authorized leave for three consecutive workdays.
Recommendation It is, accordingly, RECOMMENDED: That petitioner reinstate respondent and award back pay, but without prejudice to instituting any appropriate proceedings before the Public Employees Relations Commission. DONE and ENTERED this 27th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of November, 1990. COPIES FURNISHED: Jerry O. Bryan Federal Prison Camp Post Office Box 600 Eglin AFB, Florida 32542-7606 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Robert Scanlon, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Petitioner's position of employment with the Respondent was properly reclassified from Career Service to Selected Exempt status.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Dr. Edouard is a physician who was employed by the Department as the Senior Human Services Program Manager for the Miami-Dade County Childhood Lead Poisoning Prevention Program. This program operates under a grant from the federal Centers for Disease Control, and Dr. Edouard worked out of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department. Prior to July 2001, Dr. Edouard's position was classified as a Career Service System position. As Senior Human Services Program Manager, Dr. Edouard supervised a staff of four to five persons, including an epidemiologist, an environmental specialist, a nurse, and a secretary specialist, and she spent the majority of her time supervising these employees: Dr. Edouard prepared the work assignments for her staff; trained the members of her staff; monitored the progress of the staff members in completing their assignments; prepared evaluations for each staff member and made recommendations for improvement; approved or disapproved requests for leave; had the authority to recommend members of her staff for disciplinary action; had the authority to recommend salary increases and/or to recommend promotion for members of her staff; and prepared the budget for her program grant. Dr. Edouard was considered by her supervisor to be a very creative, hardworking, dedicated healthcare professional who established Miami-Dade County's Childhood Lead Poisoning Prevention Program. In July 2001, Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position because the position included substantial supervisory responsibilities. After the reclassification, the formal job description for the Senior Human Services Program Manager position remained the same in all material respects as the job description for the Career Service System position. Dr. Edouard was terminated from her position several months after it was reclassified. At the time Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position, there were other supervisory employees of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department whose positions were not reclassified but remained Career Service System positions. These employees were registered nurses serving as nursing program specialists.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision to reclassify the position of employment with the Department of Health formerly held by Marie-Michelle Edouard be sustained. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 16th day of April, 2004.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. Petitioner, Carolyn Pittman, is a single mother with three children. At all times pertinent to this proceeding, Petitioner was employed by HRS at the Landmark Learning Center ("Landmark") as a Human Service Worker I. Petitioner began working at Landmark beginning sometime around 1980. By certified letter dated January 26, 1990, Respondent advised Petitioner that she was deemed to have abandoned her career service position. That letter advised Petitioner that she had the right to petition the State Personnel Director for a review of the case and that any such petition for review had to be filed within twenty calendar days after the receipt of the letter. The return receipt for the certified letter was signed by Petitioner and indicates the letter was delivered on February 2, 1990. Petitioner's handwritten request for a hearing was sent to the State Personnel Director and received on March 2, 1990. In her request, Petitioner indicates that she received the certified letter on February 14, 1990. However, the greater weight of the evidence established that the letter was received on February 2, 1990. Therefore, the request was not timely filed in accordance with the requirements set forth in the certified letter. On March 29, 1990, the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. That Order states that "This agency accepts the Petition and hereby elects to request the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct a fact finding hearing in this matter. The issue for resolution will be whether or not the Petitioner abandoned her position and is properly deemed to have resigned from the Career Service." During the time she was employed at Landmark, Petitioner was presented with a copy of the HRS Employee Handbook. That Handbook advised employees that they could be deemed to have abandoned their position if they were absent for three consecutive work days without authorization. While employed at Landmark, Petitioner has filed at least seven separate workmen's compensation claims. In addition, Petitioner has taken three leaves of absences totaling approximately one year. As a result, Ms. Pittman was aware of Landmark's requirements regarding workmen's compensation claims and leaves of absence and her need to provide documentation regarding her course of treatment to the Landmark Personnel Office. On September 25, 1989, Petitioner was injured while at work. Petitioner was helping a nurse with a client and claimed to have sustained a back and/or neck injury. She was transported by ambulance to Palmetto General Hospital where she was examined and released. Petitioner was not required to stay over night at the hospital. Whenever an accident occurs at Landmark involving one of the employees, the employee is referred by the Personnel Office to a physician who is on an approved list of doctors established by the Division of Risk Management. In the case of a unique injury or special need, the administrative staff will request permission from the Division of Risk Management to use another physician. On September 27, 1989, Petitioner was sent by the Landmark Personnel Office to a Medical Clinic, the Worker's Compensation Medical Center, for follow-up treatment. At the Worker's Compensation Medical Center, Petitioner was diagnosed as having a strain of the neck and back. She was given a neck collar, a prescription for drugs and advised to rest in bed. After two weeks, Petitioner claimed there was no improvement in her condition. On October 11, 1989, the Landmark Personnel Office staff scheduled an appointment for Petitioner with an orthopedist, Dr. Steven Nadler. Petitioner visited Dr. Nadler on October 17, 1989. After examining the patient, Dr. Nadler issued a report dated October 23, 1989. Dr. Nadler's report was sent to the Personnel Office at Landmark. Dr. Nadler found no spasm, no limitations, excellent range of motion, no neurological deficit, no fractures or dislocation and no signs of root irritation. The closing comment on Dr. Nadler's report states as follows: It appears at this time that Ms. Pittman has sustained a soft tissue injury to the neck and possibly the lower back at the time of her accident in September of this year. At this time I find no evidence of neurologic deficit or signs of nerve root irritation on examination today. I find no objective findings to go along with her subjective complaint and is [sic] also interesting to know [sic] that merely touching of her skin causes her to complain of pain which is sometimes seen in patient's [sic] who are exaggerating their symptoms. I feel at this point that no treatment is needed from an orthopedic point of view. I would recommend that she return to her regular activities and work. I do not feel she has sustained any permanent disability from this injury. After seeing Dr. Nadler, Petitioner requested a neurological examination. Because none of the previous treating physicians had found a need for a neurological consult, the Landmark Personnel Office initially denied Petitioner's request. However, the Personnel Office did offer to send Petitioner to a chiropractor or another orthopedist. One of the reasons for agreeing to send Petitioner to another doctor was to confirm whether a neurological examination was necessary. The Personnel Office scheduled an appointment for Petitioner with another orthopedic specialist, Dr. Kerness, on November 2, 1989. However, Petitioner did not keep this appointment. After missing her appointment with Dr. Kerness, Ms. Pittman arranged on her own to see another orthopedic physician, Dr. Bermann. Dr. Bermann called for authorization to see the patient on November 3, 1989. Although Dr. Bermann was not on the Division of Risk Management's list of approved physicians, Landmark agreed to pay him for his treatment of the Petitioner. Dr. Bermann provided Petitioner with a slip indicating she should not work until November 10, 1989, after he was scheduled to see her. That slip was provided to the Personnel Office. Petitioner was advised that she was required to provide the Personnel Office with documentation regarding her work status after that visit. Petitioner was also advised that she was required to keep her supervisor and the Personnel Office apprised of why she was not at work and that her reports should include a medical statement from an authorized physician. On November 9, 1989, Dr. Bermann put Petitioner on a therapy program for two weeks and advised her not to return to work. After Petitioner completed therapy, Dr. Bermann approved her return to work on a light-duty status. Petitioner returned to work on December 1, 1989. Petitioner was assigned to light duty work in the card shop pasting greeting cards together. After working for four days, Petitioner complained that she was unable to continue and left work on December 5, 1989. Petitioner returned to Dr. Bermann on December 7, 1989. At the end of that visit, Dr. Bermann provided her with a note that indicated she was not to return to work until she returned to see him again on Friday, December 29, 1989. That note was provided to the Landmark Personnel Office. Prior to the Petitioner's visit to Dr. Bermann on December 29, 1989, Elaine Olson, a personnel technician with Landmark, contacted Dr. Bermann. Dr. Bermann agreed to provide Ms. Olson with documentation as to Petitioner's ability to return to work after her next visit. The Petitioner was seen by Dr. Bermann on December 29, 1989. In his report regarding that visit, Dr. Bermann noted "[f]rom the orthopedic point of view, patient can return to work on a trial basis. However she wants to see what the consultant will say." This report was sent to the Personnel Office. Petitioner denies ever receiving a copy of Dr. Bermann's December 29, 1989 report indicating that she could return to work and there is no evidence indicating that she was provided with a copy of that report. Although Dr. Bermann indicated that he saw no reason why Petitioner could not return to work, he requested permission from Landmark to refer her to a neurologist, Dr. Bader, to confirm his findings. Dr. Bader was not on the list of approved physicians prepared by the Division of Risk Management. However, Landmark arranged for authorization of Dr. Bader's treatment of Petitioner. On January 9, 1990, Elaine Olson advised Petitioner that she had received the report from Dr. Bermann indicating that she was able to return to her job as of December 29. Ms. Olson was aware that Petitioner had an appointment with Dr. Bader scheduled for the next day. Ms. Olson advised Petitioner that if Dr. Bader did not find anything wrong with her, Petitioner would be removed from Workmen's Compensation and placed on unauthorized leave without pay and therefore could be subject to abandoning her position. Petitioner indicated that she intended to see another doctor whose name was not disclosed. Ms. Olson advised her that no other doctor had been approved and that Petitioner would be responsible for paying any other physician that she saw. Dr. Bader saw the Petitioner on January 10, 1990. Following his examination of the patient, Dr. Bader advised Elaine Olson that he did not find any neurological problems with the Petitioner and that her complaints were inconsistent with her report of the accident. Dr. Bader indicated that he saw no neurological reasons why she should not be working, but that it was Dr. Bermann's role to decide when the patient could return to work. Although Dr. Bader did not find anything wrong with her, Petitioner did not return to work on January 11 nor did she obtain authorization from her supervisors or provide any documentation to them regarding her absence on that date. Beginning on January 11, 1990, Petitioner's absence from work was treated by Respondent as unauthorized leave without pay. From January 11 through January 26, 1990, Petitioner did not return to work and did not provide any documentation from any doctor stating that she was unable to work. Between January 10 and January 26, 1990, Ms. Olson attempted to contact Petitioner without success. On January 26, 1990, Petitioner prepared its letter to Petitioner indicating that she was deemed to have abandoned her position. Petitioner contends that she did not return to work because she never received a note from Dr. Bermann advising her that she should return to work. She claims that she thought she was supposed to return to Dr. Bermann after seeing the neurologist. The evidence established that Petitioner was advised that she was to return to work on January 11, 1990 unless Dr. Bader provided a report indicating that she was unable to work. Petitioner was also advised that her failure to return to work or provide medical authorization for her absence would result in her being considered absent without authorization. There is some indication that Petitioner may have been seen at the Worker's Compensation Medical Center and by Drs. Nadler and Bermann on occasions other than those detailed above. However, no persuasive evidence was introduced to establish the dates and/or results of those visits. More importantly, Petitioner never provided any additional documentation to the Personnel Office that her physicians had advised her not to return to work. At the hearing, Petitioner provided a handwritten note dated January 18, 1990 that indicates it is "from the desk of Dr. Stuart A. Kaplan." Dr. Kaplan is a chiropractic physician to whom Petitioner was apparently referred by her attorney. That note states that Petitioner had been receiving treatment from December 7, 1989 to January 18, 1990 and that she been unable to work due her back condition. Petitioner also produced at the hearing a type written note on the stationary of Dr. Kaplan dated January 26, 1990. This second note states that Dr. Kaplan began treating Petitioner in October and that she was still unable to work due to her condition. Neither of these notes were properly authenticated and there is no evidence to establish who wrote them or when. Dr. Kaplan did not testisfy at the hearing. Dr. Kaplan is not on the Division of Risk Management's approved physician list. Petitioner's visits to Dr. Kaplan were not approved by Landmark and Landmark had previously advised Dr. Kaplan that it would not be responsible for payment of his fees. No records of Dr. Kaplan's treatment of Petitioner were provided to the Personnel Office prior to February, 1990. Petitioner contends that she provided the Personnel Office and/or her supervisors with a copy of Dr. Kaplan's reports prior to receiving the January 26, 1990 certified letter. However, the more creditable evidence established that from January 10 through at least January 26, 1990, the Personnel Office was not provided with any documentation from any physician that Petitioner was unable to work. On February 21, 1990, Petitioner attempted to return to work, but was instructed that she was deemed to have abandoned her position. On her February 21, 1990 visit to Landmark, Petitioner presented her supervisors with a form from Dr. Bermann's office which indicates that she was approved to return to work on a trial basis. This form was dated February 19, 1990. Petitioner contends that she had never previously received a "return to work slip" by Dr. Bermann. However, the evidence established that she was alerted at least by January 9, 1990, that Dr. Bermann did not believe she needed to stay home from work and that Dr. Bermann had cleared her to begin work as of December 29, 1989. In order for her absence from work subsequent to January 10, 1990 to be justified, Petitioner knew that she had to provide a physician's report indicating that she could not work. Petitioner did not present any further documentation to justify her refusal to return to work until some time after January 26, 1990. Even then, the only documentation was from an unapproved chiropractor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying Carolyn Pittman's challenge to the determination that she abandoned her position of employment with the Department and dismissing the petition in this case with prejudice. DONE and ENTERED this 4th day of February, 1991, at Tallahassee, Florida. J. STEPHEN MENTON 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 4th day of February, 1991. COPIES FURNISHED: Carolyn Pittman, pro se, 4270 NW 192nd Street Miami, Florida 33055 Julie Waldman, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Suite S424 Miami, Florida 33128 William A. Frieder, Esquire Senior Attorney Department of Administration 438 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On July 7, 1978, Petitioner, Amelia M. Park (Park), was hired as District VI Legal Counsel of Respondent, Department of Health and Rehabilitative Services (Department). The position was included in the Florida Career Service System, and Park obtained permanent status in the position in January 1979. The Legislature exempted the position from the Career Service System and made it a Senior Management Service position on November 12, 1981. On the morning of November 9, 1984, Park was in Bradenton to attend a hearing for the Department in Manatee County Court. She had scheduled a meeting with Bill Presmeyer at the Manatee Health Department, but the meeting was cancelled at the last minute. Because Park had pre-approved annual leave for the afternoon, she went to her vacation home located in Holmes Beach on Anna Maria Island. Late in the morning, Park received a telephone call from her secretary, Muriel Pages, who informed Park that Assistant District Legal Counsel, Dennis Palso, who had been on the job only one week, and District Program Manager, Stephanie Watson Judd, wanted to talk to her. Park knew or should have known that the matter to be discussed was considered important by the Department staff or they would not have telephoned her at her home. Judd told Park that the Department had received a court order committing a juvenile to the Department but that they were not sure what the Department properly should do in response to the Order. Palso, who only had been on the job for one week, pointed out internal inconsistencies in the Order. The Order found the juvenile both incompetent to stand trial and not guilty by reason of insanity. The Order also cited the rules of criminal procedure instead of the rules of juvenile procedure. At the request of Carl Neill, the Department's District Administrator, Park's immediate supervisor, Judd and Palso relayed this information to Park and sought her advice on several questions: (1) whether the Order was legal; (2) whether the juvenile could be placed in a mental health facility based on the Order alone without bringing a Baker Act proceeding; and (3) whether and how the Department should take the child into custody. Park responded that the Order was sufficient for the Department to take the juvenile into custody and place him in a mental health facility. Notwithstanding the questions Park was being asked, she assumed that the juvenile was in custody because she would not have expected the judge to release such a juvenile into the community. Park told Palso that he or she would be able to clear up the internal inconsistencies and problems in the Order the following week by filing a motion in court. Park recommended that the Department's staff telephone "central admissions" in Tallahassee since Park believed that office of the Department had experience with similar orders and would know how to proceed. After talking to Park, Judd telephoned Sam Ashdown in Tallahassee to discuss the case and receive advice on how to proceed. In the course of their discussion, Judd read the Order to Ashdown over the telephone and, to her surprise, Ashdown took the position that the Order was illegal and that the Department could not act upon it. Judd informed Ashdown that Park, as District VI's legal counsel, had given the District VI staff a contrary opinion and suggested that Ashdown talk directly with Park, giving him the telephone number at Park's vacation house. Later in the afternoon of November 9, Judd telephoned Park again to inform her about Judd's conversation with Ashdown and to prepare her to receive a telephone call from Ashdown. Park became angry at Judd for having given Ashdown her telephone number. She denied ever having given a legal opinion that the Order was legal, but told Judd that there was nothing that could be done about it by the end of Friday afternoon. Park told Judd to call Ashdown back and tell him not to telephone Park about the matter. In the face of Park's tirade, Judd informed Carl Neill of what Park had said and telephoned Ashdown to relay Park's message and tell him not to call Park. Neill became very concerned about the manner in which Park handled the matter earlier in the afternoon of November 9, 1984. Although Park was a knowledgeable lawyer and able advocate for the Department, she had a history of difficulty working, relating, and communicating with certain members of the Department's District VI staff. This history included several occasions in which Park's personal relationships with Department staff deteriorated to the point of affecting Park's ability to work with or even talk to staff. Neill suspected that a recent deterioration in the personal relationship between Judd and Park may have been partially responsible for the manner in which Park handled the juvenile matter on November 9. Park's work relationship with each of the two assistant attorneys working under her before Palso had deteriorated to the point that Park could communicate with them only in writing and not very well. Park's personality and deficient interpersonal skills was at least partially responsible for those problems in District VI's legal office. Park also had a deserved reputation among District VI's staff for being unpredictable. For no apparent reason, Park would sometimes be unreasonably irritable and rude. For example: Park has chastised Joseph Tagliarini in front of other staff for operational (not legal) difficulties in dealing with the local Sheriff's Office. This rebuff was hostile and angry, inappropriate and unwarranted. On another occasion, Park refused to dis- cuss a personnel matter with Allen Mundy and William Stanley, became rude and directed them to leave her office. Personnel officer, David Stoops, had asked Mundy and Stanley to discuss the matter with Park. At a training session she was giving on child support enforcement, Park became angered by questions being asked by one of the partici- pants, became progressively more hostile and angry, and ended up yelling at the employee from the podium in the middle of the training session. James Freyfogel, one of Park's own wit- nesses, was unfairly accused by Park with having concealed information material to a real estate transaction entered into by the Depart- ment. Because of Park's conduct, Freyfogel tried to avoid any contact with her for about a year and a half. Another of Park's witnesses, Judy Wichter- man, testified that Park was "a nasty person" and that she and other counselors avoided con- tact with Park whenever possible. Park was not even aware of the effect of her personality on Freyfogel and Wichterman. The strained work relationships described in paragraph 9 above (and others) do not typify all of Park's relationships with members of the staff of the Department's District VI. Park had many good days and many positive working relationships. However, Neill was aware that Park's personality had caused several problems in work relationships at District VI and that it was not a matter of one or two isolated incidents. At least part of the blame for these problems rests with Park's personality. Problems caused by Park's personality were not limited to lower staff members whom Park intimidated. For example: Neill also was aware that Park had unknow- ingly offended Larry Overton, then Deputy As- sistant Secretary For Operations for the De- partment in Tallahassee. Overton related to Neill that Park had become hysterical during a meeting he had with her concerning problems with a nursing home in District VI. In the fall of 1984, Park insisted on be- ginning a letter to a private attorney with whom she was dealing on behalf of the Depart- ment by stating that she was "outraged" at some of the attorney's tactics and conduct. Neill had specifically requested that Park, as representative of a State agency, not express "outrage." Neill told Park that he thought this form of expression was inappropriate, and he directed that the letter be reworded. Despite Neill's direct request, Park sent the letter as originally written with the justifi- cation that she was indeed "outraged." Park also angered two judges before whom she appeared as attorney for the Department, a Judge Pope and a Judge Calhoun. In compliance with Neill's suggestion and request, Park wrote a letter of apology to Judge Pope. When Park returned to work after the weekend and Monday holiday on Tuesday, November 13, 1984, Neill asked her into his office to discuss the events of November 9. During the discussion, Neill referred to the events of November 9 as an emergency, and Park attempted without success to learn from Neill why it was an emergency. Neill explained his position that it is unacceptable for senior managers on leave to refuse to permit HRS staff to contact them to discuss matters staff believes need to be discussed. Neill stated that senior managers must be available in such circumstances. Park became very angry and upset at having been accused of less than satisfactory performance. She lost her temper in front of Neill. She stated that she was incensed that Judd had given her home telephone number to Ashdown and stated that, in the future, she would avoid this situation by not leaving a telephone number where she could be reached. Park then stormed out of Neill's office. As a result of all of the events referred to in these Findings of Fact, including Neill's meeting with Park on November 13, 1984, Neill's confidence and trust in Park was shaken. Neill did not believe he could continue to function with Park as his legal counsel. Neill did not think he could count on Park to make herself available to Neill and his staff when needed. Neill also believed he could retain competent legal counsel who would be able to get along better with a larger part of Neill's staff so that Neill's staff could function more smoothly and effectively as a whole. Neill telephoned HRS supervisors in Tallahassee for advice and was told that he had authority to terminate Park in his discretion. After spending the rest of the day and evening of November 13 making up his mind, Neill decided to terminate Park as his legal counsel. On November 14, 1984, Neill again met with Park and informed her that he intended to make a change in the position of legal counsel and asked for Park's assistance in making the transition smooth. Park interpreted Neill's comment as a request for Park's resignation, and Park responded that she could not agree to resign without giving the matter further thought and discussing it with her husband, Park's counsel in this case. Because of Park's work schedule she requested until Monday, November 19, 1984, to give Neill an answer, and Neill agreed. On November 19, 1984, Park and her husband met with Neill as scheduled at 8:30 in the morning. Neill handed Mr. Park a letter informing Park of Neill's intent to terminate Park's employment effective November 27, 1984. Mr. Park asked if the meeting was a pre-termination conference. Neill stated that he did not believe a pre-termination conference was required for senior management but that he was willing to treat the meeting as a pre-termination conference and would consider anything Mr. or Mrs. Park had to say about the matter. Mr. Park suggested to Neill that Neill was exposing himself to possible personal liability by terminating Mrs. Park but had nothing else to say about the matter. The Parks stated that they had all they needed and left Neill's office. Towards the end of the final hearing, Park stipulated that she was not dismissed for political reasons.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Health and Rehabilitative Services, enter a Final Order consistent with the previous exercise of its discretion to terminate Petitioner, Amelia M. Park, from her Senior Management Service position. RECOMMENDED this 15th day of November, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4443 Rulings on Petitioner's Proposed Findings of Fact Adopted. See Finding 1. Rejected as unnecessary, irrelevant and subordinate. As reflected in the Conclusions Of Law, the ultimate issues of fact are narrower than Petitioner perceives. Unless the subordinate facts in proposed Finding 2 persuade the finder of fact that the alleged legitimate reasons for termination of Petitioner's employment were mere fabrications, they are unnecessary and irrelevant. In any event, they are subordinate. Covered by Findings 2 through 6. Covered by Finding 12. Covered by Finding 14. Covered by Finding 15. See Paragraph 1 above. See Paragraph 1 above. Also covered in part by Findings 9 and 10. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. Covered by Findings 2 through 4. See Paragraph 8 above. Also covered in part by Findings 2 through 6. Rulings on Respondent's Proposed Findings Of Fact Covered by Finding 1. Rejected in part as being subordinate. Also covered in part by Finding 11(a). Covered by Finding 9(a).* Covered by Finding 9(b). Covered by Finding 9(c). Rejected in part as subordinate or cumulative. Covered in part by Finding 8. See Paragraph 6 above. See Paragraph 6 above. Covered by Finding 11(b). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 9. Covered by Finding 8. Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 8. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. Also covered in part by Finding 7. Rejected in part as subordinate. Covered in part by Finding 11(c). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Findings 8 thorough 11. See Paragraph 20 above. Covered by Finding 9(d). Rejected in part as subordinate and cumulative. Covered in part by Finding 9. See Paragraph 23 above. Covered by Finding 9(e). Rejected as subordinate, unnecessary, and argumentative. Rejected in part as subordinate, cumulative, unnecessary, and argumentative. Covered in part by Finding 10. Covered by Findings 7 through 10. Rejected as subordinate and unnecessary. 30-35 Covered b Findings 2 through 6. Covered by Finding 12. Rejected in part because Rule SM-1.09, Florida Administrative Code, is a conclusion of law, not a finding of fact. Rejected in part because there was no evidence of HRS Regulation 60-49. In part covered by the Findings 2 through 6. Covered by Finding 14. Covered by Finding 15. Covered by Finding 15. Rejected as subordinate and unnecessary. Covered by Finding 16. *It should be noted that parts of this proposed finding of fact and many others have been rejected to the extent that they contain excessive argument. COPIES FURNISHED: William M. Park, Esquire Building 501, Suite A 8001 N. Dale Mabry Tampa, Florida 33614 Jay Adams, Esquire Deputy General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
