The Issue The issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Scott R. Blair (Respondent Blair) was certified by the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner) as a correctional officer, having been issued correctional certificate number 30982 on December 22, 1989. At all times material hereto, Charles A. Piazza (Respondent Piazza) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 25166 on August 11, 1988. At all times material hereto, Robert C. Singleton, Sr. (Respondent Singleton), was certified by Petitioner as a correctional officer, having been issued correctional certificate number 71355 on August 24, 1988. At all times material hereto, Thomas A. Sayed (Respondent Sayed) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 98281 on March 27, 1987. At all times material hereto, all of the Respondents were employed as correctional officers with the Martin County Sheriff's Department in the Martin County Detention Center. In or around December 1989, a new Detention Center was constructed and opened. Prior to that time, the old Detention Center, called the "stockade," was located in Indiantown approximately 19 miles from the site of the new facility. The stockade contained a commissary which was used by both inmates and correctional officers. The commissary was a separate area of the stockade, which contained a variety of snack foods, cigarettes, and sodas for the benefit of the inmates of the facility, who could purchase the items with monies maintained in their individual accounts controlled by the Detention Center. 3/ None of the inmates had unsupervised and continuous access to the commissary. Even though the commissary was for the benefit of the inmates, correctional officers from time to time would remove items from it. There existed an unwritten honor policy that any item removed by a correctional officer would have to be paid for by that officer. A container was placed in the commissary and a correctional officer would place money in the container for the item removed. If an officer was unable to pay for the item at the time of its removal, a supervising officer could approve payment at a later time. An inventory was performed on a weekly and monthly basis, with no shortage of money being reported. This honor policy was well known to and acquiesced in by the commanding officer of the stockage, Major Murphy. Respondent Singleton, who was employed at the stockade, frequently used this honor policy. He would remove items from the commissary and put money in the container for the items. At times, he would not be able to pay for an item until payday, and he was allowed to pay for the item at that time by his superior officer on duty at the time. Respondent Blair was also employed at the stockade and used this honor system. When the new facility opened in or around December 1989, the commissary structure and procedure pertaining to inmate use remained the same, but the procedure pertaining to correctional officer use was changed by Major Murphy. Although the commissary continued to be for the benefit of the inmates, no longer were the correctional officers suppose to utilize it. The container for payment by the correctional officers for items removed no longer existed. Now, the correctional officers were suppose to obtain their items from an area within the new Detention Center specifically set-aside for them, which was separate and some distance away from the commissary. This area contained coin-operated machines which contained a variety of snack foods, cigarettes and sodas. However, although there was suppose to be this new policy, no one, other than administrative personnel and high ranking correctional officers, were aware of the change. No written policy was issued for the new facility to countermand the unwritten policy used at the stockade. This nonaction resulted in no notification to the correctional officers of the new policy. Without the written policy, some correctional officers who worked at the stockade continued their practice in the new facility of removing items from the commissary even though no container existed in which the officers could pay for the items removed. In particular, at the new facility one correctional officer on the night shift had removed some items from the commissary. Being unsure as to how to pay or who to pay for the items, he waited the next morning, before going home, for the person who purchased items for the commissary, so that he could pay for the items. The commissary purchasing person worked only on the day shift. At that time, he was notified by the commissary purchasing person that he no longer could obtain items from the commissary, but she did accept his money for the items and informed the officer's superior of the incident. Then and only then did he become aware of the policy change. Major Murphy continued as the commanding officer at the new Detention Center. He too used the commissary and the honor policy. At the stockade he would order boxes of cigars through the commissary, either prepaying for them or paying for them when they came in. He continued this practice at the new facility, which was at odds with his new unwritten policy of prohibiting correctional officers from using the commissary. Everyone was aware of Major Murphy's practice. Approximately a year and a half after the new facility opened, on June 13, 1991, through an inmate informant, Major Murphy became aware of possible inmate theft of cigarettes from the commissary. The alleged theft occurred the night before on June 12, 1991, which was the usual periodic time that inmates' requests for commissary items were filled by other inmates under the supervision of correctional officers. The inmates who were assigned to fill inmate requests from the commissary were questioned by an officer assigned to the investigation by Major Murphy. Implicated by the inmates interviewed in the June 12, 1991 theft of cigarettes were themselves, other inmates and several correctional officers, including Respondents. Besides officers actually removing cigarettes, one inmate was allegedly directed by one officer to deliver some cigarettes to another room and by another officer, Respondent Piazza, to deliver some cigarettes to her. Possible officer theft was a surprising development. On the basis of only the inmates' statements, on June 13, 1991, Respondents were notified to report to Major Murphy without notifying them about the nature of the meeting. The written procedure for investigating officers was not followed. Major Murphy dictated the procedure to be followed in the investigation. Respondents Blair, Piazza and Sayed met with Major Murphy and two of his ranking officers. Major Murphy did all the talking at the meeting. He cited the theft statute, notified them of the allegation against them and instructed them to tell what they had done. Major Murphy further told the Respondents that, if they did take the cigarettes, it would be the most expensive pack of cigarettes that they had ever had. At least one of Major Murphy's ranking officers perceived this statement by Major Murphy as a threat to the Respondents. Only Respondent Blair admitted to removing, but not stealing, two packs of cigarettes after changing his story several times as to how many packs he had removed. Respondent Sayed denied taking anything but at the conclusion of the meeting requested to meet with Major Murphy privately. In that private meeting, with one of Major Murphy's ranking officers also present, Respondent Sayed admitted to removing, but not stealing, two packs of cigarettes and attempted to give Major Murphy the money for the cigarettes. Major Murphy refused to take the money. Respondent Piazza denied taking any cigarettes from the commissary. Respondent Singleton was late for the meeting because he had not received notification of it. Again, Major Murphy did all the talking. He gave Respondent Singleton the same introductory comments regarding the theft statute, what was alleged, and requested his story of what happened. When Major Murphy completed his comments, Respondent Singleton admitted that, during his night shift, he had taken, but not stolen, a pie to eat because he lacked change for the machines and had intended to pay for the pie later. Respondent Singleton also admitted that in the past he had removed snack items from the commissary but had paid the commissary purchasing person for them later. 4/ His statement pertaining to paying for the items later is found not to be credible. If he had engaged in this type of conduct, it is reasonable to assume that the commissary purchasing person would have informed him that he could no longer engage in such conduct, as she had done with the correctional officer discussed in Finding of Fact 15. Respondents were suspended from their positions that same day and subsequently terminated. Prior to the meeting with Major Murphy, there was nothing other than the statements by inmates to connect the Respondents to the theft of cigarettes from the commissary. Moreover, no inventory was performed on the commissary items. No evidence existed to show that any unauthorized items had been taken from the commissary or that Respondents had taken any items from the commissary. Even though Major Murphy found the inmates' statements, standing alone, credible to initiate an investigation against the Respondents and personally question them, he failed to find these same statements from these same inmates credible to investigate any of the other correctional officers named in the statements and question them. Furthermore, no other correctional officer named on that evening shift was disciplined by Major Murphy. One of the inmates from whom the so-called credible statements were taken testified at the hearing that, when he assisted in the new commissary, it was not uncommon for correctional officers to remove items from the commissary. 5/ At the hearing, the inmate refused to name correctional officers other than those named in his investigative statement, which included Respondents Blair, Piazza and Sayed, because he was fearful of what might happen to him at the new Detention Center at which he was now again incarcerated. Importantly, before he agreed to give a statement during the investigation in which he named officers, he was told by the investigating officer that other inmates had already given statements and named officers. The inmate's testimony at hearing is found to be credible. Regarding Respondent Piazza, this inmate was directed by Respondent Piazza to take some cigarettes to another room within the facility where other officers were located, but none of whom personally accepted or received the cigarettes. Approximately four days after the Respondents' meeting with Major Murphy, on June 17, 1991, he issued a written memo regarding correctional officers removing items from the commissary. Major Murphy indicated in the memo that through an investigation, without revealing the nature of the investigation, "apparently there was a practice of correctional employees removing items from the commissary, on all four shifts, without paying for them but that the practice would not be tolerated." Moreover, he further indicated that employees who had participated in the practice could remain anonymous and pay for the items, describing the procedure to follow, and that in the future a container would be placed in the commissary for the correctional employees who remove items to pay for them at the time they are removed. It is inferred from Major Murphy's memo that he believed, and it is found, that it was common practice for correctional officers to remove items from the commissary without paying for them as described by the Respondents. Even though other correctional officers who participated in the practice were provided an opportunity to pay for the items they had removed from the commissary, Major Murphy denied the Respondents this same opportunity. Prior to the memo of June 17, 1991, and after Major Murphy's meeting with the Respondents, another officer who was named in an inmate statement admitted to Major Murphy that he had removed a cigar from the commissary without paying for it. No disciplinary action was taken against that officer. Also, additional correctional officers were named in additional statements by one inmate. Major Murphy determined the extent of the investigation (limited only to the evening of June 12, 1991), and who would be investigated and disciplined (only Respondents and the inmates). Before issuing the memo of June 17, 1991, Major Murphy had decided not to pursue an investigation of any additional correctional officers because he believed that the disciplining of Respondents had sent a message to the other officers that the practice would not be tolerated and because he did not want to have to suspend and possibly terminate the majority of his staff. No criminal charges were recommended or filed against Respondents. The investigating officer recommended, and Major Murphy agreed, that the incident did not warrant theft charges. Respondents have not been employed as correction officers since June 13, 1991. Respondents have no prior history of disciplinary action. The inmates who stole cigarettes on the evening of June 12, 1991, were also disciplined.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding the Respondents. Placing the Respondents on probationary status for six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June 1994. ERROL H. POWELL 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 17th day of June 1994.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Respondent has stipulated that Petitioners have "standing" to challenge the rules and the policy and procedure directives which are the subject of this proceeding. At the time the petition in this cause was filed, Petitioners challenged the validity of Rule 33-3.081, Florida Administrative Code, as it existed as of its latest revision on May 22, 1981. However, subsequent to the filing of the petition in this cause, and prior to the date of final hearing, Respondent amended Rule 33-3.081, and filed these amendments with the office of the Secretary of State on June 23, 1983. At final hearing in this cause, the parties stipulated to the Petitioners maintaining a challenge to newly amended Rule 33-3.081(4), (5), and (9)(a) and (d), Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.11, which was subsequently revised on June 14, 1981. This directive contains 13 separately titled sections. The first section, entitled Authority, simply lists the authority, both statutory and rule-based, for issuance of the directive. Section three contains definitions which, with a single exception not relevant here, are identical to those contained in Rule 33-3.081(2). Sections four through thirteen likewise recapitulate provisions contained in Respondent's rules or in relevant statutes. The following is a list of titles of sections four through thirteen, each of which is followed with a parenthetical reference of the rule provision substantially incorporated therein: Staff Selection (33- 3.081(10)); Basis for Placement (33-3.081(1)); Placement (33-3.081(4)); Protection Cases (33-3.082); Visiting (33-3.081 (5)); Gain Time (33-11.11 and Section 944.28, Florida Statutes); Review of Administrative Confinement (33- 3.081(6)); Self-Improvement Programs (33-081(7)); Facilities (33-3.081(8)); General Provisions (33-3.081(9)(a)-(k)). Sections 13(l) and (m) of the policy and procedure directive essentially reiterate the provisions of Rule 33-3.081(6) and 33-3.081 (11) , respectively. On or about June 14, 1981, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.20, entitled "Discipline." This directive which purportedly issued pursuant to the authority contained in Sections 944.09, 944.14, 944.15, 944.28 and 945.21, Florida Statutes, and Chapter 33-3.08, Florida Administrative Code. In fact, each of the 20 separately numbered portions of this directive substantially recapitulate requirements already contained in Rule 33-3.08, Florida Administrative Code. The single exception is Section 7 of the directive, entitled Administrative Confinement, which finds its support in Rule 33-3.081. Neither Policy and Procedure Directive 4.07.11 nor Policy and Procedure Directive 4.07.20 purport to create or otherwise adversely affect rights of inmates in any manner which differs from corresponding provisions of Rules 33- 3.081, 33-3.08 or the provisions of the Florida Statutes cited as authority for issuance of the policy and procedure directive. Rather, the rights of inmates are specifically determinable pursuant to those cited statutory provisions and the requirements of Rules 33-3.081 and 33-3.08, and the challenged policy and procedure directives simply recapitulate the requirements contained therein.
The Issue Whether prison inmates' television viewing privileges are a legal interest of which the Administrative Procedure Act takes cognizance?
Findings Of Fact Until the memorandum and institutional operating pro- cedure here challenged were implemented, petitioners and other inmates at Union Correctional Institution were permitted (when not required to be doing something else) to watch television in common areas between three o'clock and eleven o'clock weekday evenings, and on holidays, between eight o'clock in the morning and two or three o'clock the following morning. After somebody donated equipment for cable television at Union Correctional Institution, and after inmates, including Lionel E. Chase, had installed the cable, James D. Stephens, recreation director at Union Correctional Institution, met with six other members of a committee which included Colonel D. E. Jackson, Jim Reddish, Assistant Superintendent for Prisoners, Lieutenant Rothman (phonetic) and an inmate representative who had no say in developing policy. As a result of the meeting, a memorandum dated January 23, 1984, was addressed to the inmate population, stating: T.V. programs including sporting events beginning at 10:00 p.m. or before, shall be viewed to completion. Any program starting after 10:00 p.m. shall be terminated at 11:30 p.m., unless authorized in advance by the T.V. Policy Committee. Petitioners' Exhibit No. 3. Earlier, on January 3, 1984, Superintendent Massey signed Union Correctional Institution Operating Procedure No. 83-30, "Institutional T.V. Policy" (IOP 83- 30) Petitioners' Exhibit No. 2. This document specified "selection and viewing procedures....[for] each respective housing area." With respect to every housing area in Union Correctional Institution, IOP 83-30 provides: On Monday through Friday, sets will be turned on at 3:00 P.M.; on weekends and holidays, sets will be turned on at 8:00 A.M. All t.v.'s shall be turned off exactly at 11:30 P.M. Sports programming and special events that air past the time limit shall be viewed to completion. IOP 83-30.5(D)(4). Although signed by Superintendent Massey on January 3, 1984, IOP 83-30 is dated December 30, 1983. The memorandum and IOP 83-30.5(D)(4) have been enforced against petitioners. In enforcing the new policy, correctional staff have not only turned the television sets off earlier on weekends, they have also closed the dayrooms earlier. The guards now padlock the dayroom doors when they turn off the television sets. In the past, the dayrooms remained open even after television viewing stopped, and inmates were allowed to read, paint, write letters and so forth. The inmates filed a grievance petition protesting this change in practice. Petitioners' Exhibit No. 1. Rule Rationale Before installation of the cable, inmates had a choice of two or three programs, but they now have a much wider choice, at least when the cable is in good repair. A person or persons unknown have slashed the cable some half dozen times. There are inmates who believe the guards, some of whom reportedly do not feel inmates should watch television at all, have sabotaged the cable. According to some prison officials, it is the inmates who have slashed the cables, which, they say, is an indication of how high feeling runs between the inmate faction that prefers sports programs and the faction that does not. In any event, according to respondent's witnesses, it was for fear of inmates' quarrelling in choosing among the larger number of options cable television has brought that viewing hours on weekends and holidays were shortened. This does not, of course, explain why they were lengthened on weekdays. Nor was there any evidence that the greater range of television programs has caused any dissension among the inmates. The hearing officer has had the benefit of the parties' posthearing submissions, including petitioners' proposed findings of facts, conclusions of law and final order. To the extent proposed findings of fact have not been adopted they have been deemed unsupported by the weight of the evidence, immaterial, subordinate or cumulative.
Findings Of Fact Petitioners are all inmates at the Florida State Prison (FSP) and are subject to the terms of DOC Rule 33- 3.04(9), which requires that the return address of all outgoing mail must contain the inmate's name, identification number and institutional name and address with abbreviations. Petitioner Herzog, in March, 1985 failed to receive directly a letter sent to him from a correspondent in Beacon, N.Y., which was addressed to "Mr. Frederick Herzog, 081003, P. 0. Box 747, Starke, Florida 32091" because, as is indicated by stamp on the front of the envelope, the inmate's number and cell location must be included in the address. As will be seen below from the testimony of Ms. Seally, an inmate's cell number is no longer required. On two other occasions Mr. Herzog attempted to send letters to Beacon, N.Y., utilizing envelopes which reflected his return address merely as P. O. Box 747, Starke, Florida, 32091. These letters were not put into U.S. mail channels by prison mail room personnel because of the failure to reflect the institution's name and address in the return address. Petitioner Abdul Hakgem Jahmal N. Shabazz, also known as Owen D. Denson, on at least two occasions attempted to send letters to various individuals, one in Ft. Pierce, Florida, and one in Nokomosis, Florida, in envelopes bearing the return address, Post Office Box 747, A-013625, either Florida State Prison, Starke, Florida or merely Starke, Florida without identification of the prison. Both were returned to him for failure to have the institution's full name in the return address. Allen Penoyer, representative for Petitioners herein, was denied receipt of mail sent to him which included nude photographs. Neither Petitioner Milton nor Mummakil testified at the hearing or presented any evidence in their behalf. According to Mr. Dugger, Superintendent of FSP, the full identification without abbreviation of the prison name is required in inmate return addresses because of experience in the past which has indicated that inmates often misrepresent their location in correspondence to outsiders which sometimes results in extorting or gaining by fraud, money or other favors. The inclusion of the full prison return address would, it was hoped, give the outside addressees information as to where the letters originate. In one instance, a woman sent an inmate correspondent $10,000.00. The checks were intercepted and when questioned by prison officials, the woman indicated that from the mail she had received, she had no knowledge or indication that she was sending money to an inmate. Another reason for the rule was that some prisoners were subscribing to stock market publications and other periodicals and not paying for them when billed. Without the full return address, the publisher had no idea its publication was coming to a prison. In several instances, the publishers contacted prison officials requesting something be done about the situation. Mr. Dugger further indicated that some correspondents, even those who know an inmate is incarcerated, think the facility is a jail rather than the state prison and that the inmate's sentence is shorter than it actually is. Some correspondents have even shown up on a misrepresented discharge date expecting to see an inmate to whom they have sent money when in reality, the discharge date has been far in the future. Brenda Sealey, the supervisor of the mail room at FSP insures all mail comes in and goes out in proper fashion and that DOC rules for mail are followed. At one point, prison officials interpreted the rule which requires complete address to include the cell number but this policy is no longer followed. Currently, mail will be delivered to prisoners if mail room personnel can in any way find the prisoner somewhere within the DOC. Even though the rule requires an inmate number as a part of the address, as a courtesy, mail room personnel will deliver mail that does not contain this if they can find the prisoner. They will send the mail to another institution if the inmate has been moved. The rule requiring the use of the complete, unabbreviated name of the institution is still being implemented and applies to all routine mail but not to legal mail. Christmas cards, graduation and birthday cards, and the like are all routine mail and must have full return address. Identified legal mail is not held up because of technicalities.
The Issue Whether the Petitioner abandoned his position or resigned from the Career Service System.
Findings Of Fact The Petitioner received an approved education leave of absence without pay from his Career Service position at Hendry Correctional Institution from August 29, 1986, until May 15, 1987. The purpose of the leave was to allow the Petitioner to obtain a master's degree in library science through a government sponsored, professional training grant program. As a condition of the grant program, the Petitioner agreed to return to Hendry Correctional Institution following the completion of his degree. The anticipated completion date was May 15, 1987. If there was no vacancy on staff at that time, the Petitioner agreed to accept employment first in another state correctional institution library in Florida. If no vacancies were located in state correctional institutions, the Department of State, Division of Library Information Services, would assist him in finding suitable employment in other Florida libraries. On May 5, 1987, and June 26, 1987, the personnel manager at Hendry Correctional Institution wrote to the Petitioner to inquire whether he intended to return to the institution. The Petitioner did not reply to the inquiries. On June 30, 1987, the personnel manager at another correctional institution in Florida wrote to the Petitioner and offered him employment as a Librarian II. The Petitioner counteroffered with a conditional acceptance of employment if he could begin work on September 1, 1987. The personnel manager wrote to the Petitioner to determine why the counteroffer was made. The Petitioner had no further contact with the institution. Upon completion of the master's degree course work, the Petitioner wrote to various persons involved in the grant administration and attempted to demand unilateral changes in the terms and conditions of the agreement which would inure to his benefit. All of these attempts to change the terms of the contract were unsuccessful. The Petitioner accepted employment in another state sometime between May 1987 and September 27, 1987, the date he wrote to Respondent about his new job. The letter was received by the Bureau of Personnel on October 15, 1987. In the same letter, the Petitioner acknowledged that he had breached the terms of the professional training grant program. He offered to repay the grant by making monthly installments of $50.00 toward the outstanding balance. On October 21, 1987, Hendry Correctional Institution sent the Petitioner a letter which stated he had been deemed to have abandoned his position at the institution and resigned from the Career Service system effective October 21, 1987.
Findings Of Fact The Petitioners, Luis A. Pacheco, Joel Estremera, Felipe Pichardo and Owen D. Denson, are inmates in the custody and control of the Department. The Department is a state agency. On December 26, 1991, the Petitioners filed a Petition for Determination of the Invalidity of an Existing Rule against the First Respondents. The Petition was filed against "John T. Shaw, Superintendent, Glades Correctional Institution, et. al." In the Petition, the Petitioners challenged the validity of "the revision of Glades Correctional Operating Procedure 91-07, sec. 7.09" pursuant to Sections 120.54 and 120.56, Florida Statutes. The Petition failed to challenge a rule or an alleged rule of any "agency" as that term is defined in Section 120.52(16), Florida Statutes. On January 10, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered granting a Motion to Dismiss filed by the First Respondents and giving the Petitioners an opportunity to file an amended petition on or before January 21, 1992. No amended petition was filed by the Petitioners on or before January 21, 1992. Therefore, on January 29, 1992, an Order Concerning Proposed Final Orders was entered informing the parties that they could file proposed final orders on or before February 24, 1992, and that this Final Order would be entered on or before March 16, 1992. On February 7, 1992, the Petitioners filed an Amended Petition for Determination of Invalidity of An Existing Rule and requested that it be accepted. On February 25, 1992, an Order Concerning Amended Petition was entered accepting the Amended Petition and informing the parties that this case would be disposed of by a summary final order. In the Amended Petition the Department was named as the Respondent. Although the amended petition indicates that the Petitioners are challenging Rule 33-5.01, Florida Administrative Code, pursuant to Sections 120.52, 120.54 and 120.56, Florida Statutes, in fact the Petitioners are challenging a memorandum issued at Glades Correctional Institution changing Policy and Procedure Directive 3.04.12 (hereinafter referred to as the "Policy and Procedure Directive"). In the Amended Petition the Petitioners allege, in part, the following: Respondent through his designee, John T. Shaw, has adopted exhibit " A " as a rule, which governs petitioners [sic] visitors to select from, " Saturday or Sunday as their regular visiting day. Petitioners are therefore substantially " affected " and this case includes an invalid exercise of delagated [sic] authority because the department of corrections failed to promulgate it's Policy and Procedure Directive number 3.04.12 as a rule, contrary to the requirements of section 944.09, Florida Statutes. The Amended Petition fails to challenge a rule or an alleged rule of any "agency" as that term is defined is Section 120.52(16), Florida Statutes.
The Issue Whether Broward County committed the unlawful employment practice alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should Petitioner be granted by the Florida Commission on Human Relations.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. Among the various departments of County government is the Community Services Department. The Libraries Division is administratively located within the Community Services Department. The Libraries Division operates a main library, five regional libraries, 36 branch libraries, and various reading centers. There are approximately 900 employees in the Libraries Division, about 200 more than there were in 2000. Librarian IV is a "high level administrative position" in the Libraries Division. The position description for Librarian IV (which has been in effect at all times material to the instant case) reads as follows: Nature of Work This is professional work at the administrative level of the library system. Work involves responsibility for assisting administrative superiors and coordinating assigned major units of the library system. Work involves assisting in interpreting and implementing all library policies, assisting in staffing and supervising assigned major units, and assisting in coordinating support services within the library system and with other agencies. Duties are performed with considerable independence and initiative within the framework of established policies and procedures. Work is subject to review and evaluation through periodic conferences, attainment of desired management objectives, and conformity with established policies and procedures. Distinguishing Characteristics This class is distinguished from Librarian III by the additional administrative responsibilities. Illustrative Tasks Assists administrative superiors in coordinating, staffing, and supervising the operations of assigned major units of the library system; assists in coordinating library system supportive services. Assists subordinate librarians in planning, coordinating, and organizing specific functional, programmatic, and physical aspects of library services and facilities. Assists in interpreting and implementing all library policies. Serves as assistant library staff officer for contacts and communications services within the county library system and the community at large. Conducts assigned library research and procedural studies; prepares reports relative to recommended solutions or courses of action. Cooperates with governmental and private agencies in special surveys, studies, and programs. Performs related work as required. Knowledge, Abilities and Skills Considerable knowledge of professional library principles, practices, and techniques. Considerable knowledge of the current literature, trends, and developments in the field of library science and administration appropriate to the areas of specialization. Considerable knowledge of general community needs and interests in relation to library services in the areas of specialization. Considerable knowledge of the principles of supervision, organization, and administration. Considerable knowledge of research techniques and the sources and availability of current information. Ability to analyze facts and exercise sound judgment in decision making. Ability to plan, direct, and coordinate the work of subordinates. Ability to express ideas effectively, both orally and in writing. Ability to serve the public and fellow employees with honesty and integrity in full accord with the letter and spirit of Broward County's Ethics and Conflict of Interest policies. Ability to establish and maintain effective working relationships with the general public, co-workers, elected and appointed officials and members of diverse cultural and linguistic backgrounds regardless of race, religion, age, sex, disability or political affiliation. Desirable Experience and Training A Master's Degree in library science from a college or university accredited by the American Library Association; considerable experience of a supervisory nature in the operation of a library system, including some experience in administrative aspects of the work; or any equivalent combination of training and experience. In or about the fall of 1999, the County issued a job announcement for a Librarian IV position (Librarian IV Job Announcement), which read, in part, as follows: CIVIL SERVICE OPPORTUNITY OPEN-COMPETITIVE Librarian IV Salary Range- $38,552-$57,168 per year DESCRIPTION OF DUTIES: This is professional work at the administrative level of the library system. Work involves assisting administrative superiors in coordinating, staffing, and supervising the operations of assigned major units of the library system; assisting in coordinating library system supportive services; and assisting subordinate librarians in planning, coordinating and organizing specific functional, programmatic, and physical aspects of library services and facilities. Employees in this class assist in interpreting and implementing all library policies; serve as assistant library staff officer for contacts and communication services within the county library system and the community at large; conduct assigned library research and procedural studies; and prepare reports relative to recommended solutions or courses of action. Work also involves cooperating with governmental and private agencies in special surveys, studies, and programs. Performs related work as required. QUALIFICATION REQUIREMENTS: Master's Degree in Library Science from a college or university accredited by the American Library Association and five (5) years experience in a supervisory capacity in the operation of a library system or a major library, which must have included six (6) months experience in administrative aspects of the work. BASIS OF RATING: NO WRITTEN TEST IS REQUIRED The selection procedure shall consist of two parts. Part I will be an unassembled rating consisting of an evaluation of experience, training and education shown on the application, plus any corroborative or supplementary information which may be obtained. Part II will be an oral panel interview designed to evaluate each applicant's knowledge in this field of work. Applicants must attain a passing score on both parts of the examination to be certified. In arriving at a final numeric score which will determine the order of the eligible list for the position the following values will be applied. Unassembled Rating- 50% Oral Panel Interview- 50% * * * EXAMINATION, NOTICE OF RATING AND TERM OF ELIGIBILITY: Candidates who complete the application and exam process are sent a Notice of Rating indicating if they are qualified for the position. Status of the eligible list established from this announcement is for one year beginning with the issue date of the Notice of Rating. . . . * * * STARTING PAY: Starting salary is normally the minimum of the salary range. * * * SPECIAL ACCOMMODATION AND COMMUNICATION NEEDS: Broward County is pleased to provide necessary reasonable accommodations in the testing process for disabled applicants. It is the responsibility of applicants requesting reasonable accommodation to submit requests in writing to the Applications Center staff at the time of submission of the application. . . . * * * NOTE: Upon completion of the rating portion of the examination, only candidates who are considered most qualified will be invited to participate in an oral panel interview. The remaining qualified applicants will stay on record and may be invited in for an oral panel interview at a later time. As necessary, the list established under this announcement may be used to selectively certify on a promotional basis Classified County Merit System Regular Employees. The Librarian IV Job Announcement was widely advertised. Petitioner is a highly experienced and accomplished librarian having both a masters degree and doctorate in library science. He met the "qualification requirements" set forth in the Librarian IV Job Announcement. After seeing the Librarian IV job announcement, Petitioner submitted an application for the position. Documents he attached to the application revealed that his date of birth was June 20, 1932 (although the application form that he filled out did not ask for such information). Petitioner has various health problems, but he did not request any special "accommodation in the testing process." (Petitioner has had "lens implants in [his] eyes [since] 1999," but he still needs to use a magnifying glass to read. In addition to having poor eyesight, he has been diagnosed with Charcot's foot (a foot deformity) and autonomic neuropathy (which "causes [him] to get dizzy when [he] get[s] up or climb[s] stairs or if [he] walk[s] too far or tr[ies] to get out of bed")). The United States Department of Veterans Affairs has determined that Petitioner has a 100 percent service-connected disability. Petitioner was one of 26 applicants who responded to the Librarian IV Job Announcement. All 26 applications received by the County were reviewed by a panel of three County employees. The panel consisted of two "subject matter experts" and one human resources person. Susan Stokes2 and Miriam Hershenson were the two "subject matter experts" on the panel. They were both Librarian V's. The remaining panel member was Cynthia Munn, a Human Resource Analyst II. Petitioner was one of 17 applicants to be selected, based upon the panel's evaluation of the application materials submitted, for an oral interview before the panel. Fifteen of the 17 selected applicants, including Petitioner, appeared for such an "oral panel interview." Each applicant was interviewed separately by the panel. "[T]he interviews [were] all conducted in the same manner." At the outset of each interview, the applicant was advised that the interview would last 25 to 30 minutes and that the "time factor" should be "ke[pt] in mind" in answering the panel's questions. It was emphasized that answers should be "clear and concise." The interview questions were "formulated ahead of time" by the panel's "subject matter experts," Ms. Stokes and Ms. Hershenson. A total of ten questions were used during the interview process. The questions were asked in the same sequence during each interview "in an effort to make it an even playing field." Following the interview, each panel member, without discussing the matter with the other two members of the panel, independently rated the applicant's interview performance. Petitioner was interviewed on or about January 28, 2000. Like the other 14 interviews, Petitioner's interview was "strictly an oral [one]." Contrary to the assertion made in Petitioner's employment discrimination charge, he did not use a magnifying glass during the interview. Indeed, there was no need for him to do so since there was no reading (or writing, for that matter) involved as part of the interview. Petitioner did not physically stumble, nor was he unsteady on his feet at any time during the interview. Petitioner performed poorly during his interview. His answers were rambling and, at times, non- responsive. The panel's efforts to "redirect and refocus him" were unavailing. He was so long-winded that he was only able to answer five questions in the time allotted for the interview (which was the same amount of time the other interviewees were given). Ms. Munn gave Petitioner failing scores of "F" in "communicative skills" and "D" in "job knowledge." Petitioner also received a failing score (of "C") in "communicative skills" from Ms. Hershenson. Neither Petitioner's age, nor his poor eyesight and other health problems, were factors in either Ms. Munn's or Ms. Hershenson's scoring of Petitioner's interview performance. The scores that they gave him were based solely on their good faith evaluation of how Petitioner performed during his interview. Petitioner was not extended an offer by the County to fill a Librarian IV position. The County hired (as Librarian IV's) four of the 15 applicants who were interviewed by the "oral interview panel." One of these new hires had a hearing impairment, to compensate for which she used hearing aids and lip read. According to their applications, all four of the applicants who were hired received their undergraduates degrees at least seven years after Petitioner received his undergraduate degree,3 and the three that provided the date of their high school graduation on their applications graduated high school at least 16 years after the date (1949) Petitioner's application indicates he received his high school diploma. There has been no persuasive showing made that the County's decision not to offer Petitioner employment was motivated by anything other than legitimate business considerations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding the County not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 11th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2003.
Findings Of Fact At all times relevant hereto Petitioners were inmates incarcerated at Lake Correctional Institution (LCI) are affected by the challenged rule, and have standing to bring the rule challenges here involved. Respondent stipulated that neither PPD No. 4.07.05, LCIOP No. 84-3, nor Form 50-16 was promulgated as rules pursuant to the provisions of Chapter 120, Florida Statutes. Prior to receipt of incoming legal mail or sending out legal mail, inmates at LCI are required to sign Form 50-16 acknowledging mailing or receipt of such mail. Some testimony was submitted that on occasion inmates received their legal mail opened contrary to established procedures and directives. Also, one witness testified that he had not always received returned receipts for registered mail. Those parts of PPD 4.07.05 (Exhibit 2) and LCIOP No. 84- 3, which involve action to be taken either by inmates or Department of Corrections personnel, are identical to, or a paraphrasing of, similar provisions in Rules 33-3.03 through 33- 3.12, Florida Administrative Code. Those sections not directly relating to action taken or to be taken constitute internal management memoranda which have no application outside LCI.
The Issue Whether the Respondent discriminated against the Petitioner on the basis of his race or sex when it did not hire him for a position at Respondent's library contrary to the Human Rights Act of 1977.
Findings Of Fact The Petitioner, a black male, was by Respondent hired in a temporary, part-time position from February 16, 1990, until September 30, 1990. The Petitioner worker 20 hours per week, and his duties were to enter data on library books into a computer utilizing cataloging software programs. In addition, he was required to maintain computer backup data, type or call in book orders, reshelve books, and perform general building maintenance as necessary. The Petitioner's employment with the Jefferson County Public Library was funded through a State aid to libraries grant. A new position, Technical Specialist, was created beginning in the new fiscal year which started in October of 1990. The Petitioner filed an application for this position. The Petitioner was advised of this new job position at a staff meeting and a notice of the opening of the new position was posted on the library bulletin boards. The Petitioner alleges that Cheryl Turner, the Library Administrator, predetermined that she would hire a white female, Cynthia Anglin, for the position of Technical Specialist; that he was required to perform maintenance duties; and that he was not hired for the new position because he was a black male. The Respondent called Cheryl Turner who testified regarding the Petitioner's job performance and the matters which she considered prior to hiring Cynthia Anglin. Concerning the Petitioner's job performance, Petitioner was late for work; came to work obviously "hung over;" did not input an adequate number of records into the computer; and was unable to perform general library duties assigned to him. The new job position, Technical Specialist, involved original cataloging of books and performing other library oriented duties. These included shelving books, handling the circulation desk, answering reference questions, and filing cards. Cynthia Anglin had previously been employed by the Jefferson County Library, and had shown excellent job skills and abilities while in that position. Subsequently, Cynthia Anglin was employed by the Leon County Library where she obtained additional skills and experience. Another job position which came open in October of 1990, was that of Associate Librarian, a position which required a Masters Degree in library and information studies. The Petitioner did not apply for this position and did not possess the skills or training to qualify for it. The Petitioner was unemployed from October 1, 1990, until his incarceration in June of 1991. During that period of time, he received $356.27 of unemployment benefits paid to him by the Jefferson County Commission. The Petitioner raised several additional issues which he alleged indicated racial bias on the part of the Respondent. These included no written job performance evaluation, performance of maintenance duties around the library, and not being sent to job enhancing courses. There was no requirement for written evaluation of the temporary position held by the Petitioner. All members of the small library staff were required to perform some maintenance activities as part of their assigned duties. No money was contained within the grant under which the Petitioner was hired to provide additional training or education. None of these allegations indicated racial or sexual bias.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the petition of Kelvin Groover. DONE AND ENTERED this 26 day of February, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26 day of February, 1992. APPENDIX The Respondent filed a Proposed Recommended Order which contained proposed findings which were read and considered. The following states which of those findings were adopted and which were rejected and why: Paragraphs 1-3 Adopted. Paragraphs 4-5 Summarized in Paragraph 10. Paragraph 6 Irrelevant. Paragraphs 7 Summarized in Paragraph 10. Paragraph 8 Irrelevant. Paragraph 9 Adopted. Paragraph 10 Irrelevant. Paragraph 11 Summarized in Paragraph 10. Paragraph 12 Irrelevant. Paragraphs 13-14 Adopted. COPIES FURNISHED: Kelvin Groover, pro se DC #569040, "L" Dorm Brevard Correctional Institution Post Office Box 340 Sharpes, Florida 32959-0340 T. Buckingham Bird, Esquire Post Office Box 247 Monticello, Florida 32344 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
Findings Of Fact 1. Incorporated in Finding of Fact 1. 2-7. Incorporated in Finding of Fact 16. Incorporated in Finding of Facts 3 and 4. Incorporated in Finding of Fact 6. 10-11. Incorporated in Finding of Facts 7 and 8. Incorporated in Finding of Facts 10 and 11. Rejected as contra to the weight of the evidence. Incorporated in Finding of Fact 17. Incorporated in Finding of Fact 16. Incorporated in Finding of Facts 12-14. Incorporated in Finding of Fact 15. Incorporated in Finding of Facts 12-14. Incorporated in Finding of Fact 15.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore RECOMMENDED that: Respondent's certification as a corrections officer be revoked, but that the revocation be suspended and respondent placed on probation for a-period of two years at which time if there is no further evidence of misconduct by the Respondent, the revocation be remitted and the probation terminated. RECOMMENDED this 22nd day of July, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings This 22nd day of July, 1986. COPIES FURNISHED: Joseph S. White, Esq. Assistant General Counsel Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Gene "Hal" Johnson, Esq. 233 W. College Avenue Tallahassee, FL 32301 Robert R. Dempsey Executive Director Department of Law Enforcement O. Box 1489 Tallahassee, FL 32302 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
