The Issue Whether Petitioner is entitled to a refund of interest he paid in 1999 on the employee contribution that became due when he opted to change his retirement classification from the regular class to the special risk class for the period September 1974, through September 30, 1975.
Findings Of Fact Petitioner was employed by the Metropolitan Dade County Police Department (now Miami-Dade Police Department) on September 9, 1974, as a Police Technician. He has held that employment since that date of hire. Petitioner was enrolled in the FRS when he was first employed. His employer reported him as a member of the regular class for retirement purposes. During the period September 9, 1974, and September 30, 1975, the FRS was a contributory system, which required both the employee and the employer to make contributions towards the employee's retirement. Since October 1, 1975, the FRS has been a non-contributory system, which means the employer makes all contributions on behalf of each employee. In addition to the regular class for retirement purposes there are other retirement classes, including the special risk class, which requires higher contributions than the regular class, but provides enhanced benefits. In June 1977, Petitioner applied to Respondent for membership in the special risk class. The Director of the Division of Retirement denied this requested change. Petitioner thereafter requested a hearing before the State Retirement Commission. Following a hearing on December 20, 1978, the State Retirement Commission entered a Final Order on February 17, 1979, that reversed the decision denying Petitioner's eligibility in the special risk class. Pursuant to rules in effect when the State Retirement Commission entered its ruling, the Director of the Division of Retirement determined in 1979 that Petitioner was entitled to the special risk class retroactive to June 1, 1977. 1/ In 1982, the Division of Retirement changed its rules to permit employees to claim special risk membership retroactive to the date of employment in any position that qualified for special risk class. 2/ As part of his retirement planning Petitioner asked the Division of Retirement in 1998 to audit his retirement account to provide an estimate as to his retirement benefits. In response to that request, the Division of Retirement reviewed Petitioner's retirement status. On January 26, 1999, the Division of Retirement determined that because of changes in its rules, Petitioner was now entitled to claim membership in the special risk class retroactive to September 9, 1974. On January 28, 1999, the Division of Retirement mailed an estimate of his retirement benefits and options to Petitioner. One of the options contained an estimate that assumed Petitioner would elect to claim membership in the special risk class retroactive to his date of hire. The estimate for that option reflected that Petitioner would owe the FRS the sum of $2,201.69 if he claimed special risk class retroactive to September 9, 1974. In response to Petitioner's request for an explanation as to why he would owe that sum, the Division of Retirement advised him on May 18, 1999, that he would owe the sum of $503.12 for the previously unpaid employee contribution for the period September 9, 1974, through September 30, 1975, and that, in addition, he would owe interest on that unpaid contribution in the amount of $1,698.57. 3/ Petitioner thereafter paid the employee contribution in the amount of $503.12 and he also paid, under protest, the interest that is at issue in this proceeding. 4/ Petitioner was not aware until 1999 that he could claim membership in the special risk class for the period at issue in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing this proceeding. DONE AND ENTERED this 31st day of October, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 31st day of October, 2000.
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 Having listened to the testimony and considered the exhibits presented in this cause, it is found as follows: Since 1964, Petitioner has been employed by the State of Florida, Department of Transportation. His duties consist of operating a tractor pulling a rotary mower which cuts grass on the rights of way of primary and interstate highways. Exhibits 2, 3 and 4. Prior to 1970, Petitioner was a member of the State and County Officers and Employees Retirement System, under which he was not covered for in line of duty disability retirement benefits. In 1967, while employed by the State of Florida, Department of Transportation, Petitioner injured his lower back and left leg when a tractor fell off the back of a lowboy trailer. Exhibits 1, 3, 4 and 11. In 1970, Petitioner transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System (FRS). Exhibit 17. During his regular working hours in March of 1974, Petitioner again injured his back while moving road material. Exhibits 1, 3, 4, 8 and 13. On October 31, 1974, Petitioner applied for disability retirement on the basis of the March of 1974 injury. Exhibit 1. Mr. W. W. Ray, Engineer II with the Department of Transportation, completed a "Statement of Disability by Employer" form on October 21, 1974, answering affirmatively the question of whether petitioner was, prior to his alleged disability, able to perform all of the duties of his position fully and completely. It was further stated by Mr. Ray that petitioner "has been very good employee during his employment. Had worked up to lead worker in his mowing crew." Mr. Ray concluded that "most any job which we have would require a certain amount of working with hand tools and stooping over or standing for long periods of time which could be painful for persons with back problems." Exhibit 2. Two Florida licensed physicians submitted Florida Retirement System Physician's Reports. Form FR-13b. Dr. W. J. Newcomb stated that Petitioner "had strained his back and aggravated the degenerative arthritic condition that existed in his back." He had no "definite indication of proof that the original injury of 1966 [sic] or the subsequent injury of 1974 caused his degenerated condition." Dr. Newcomb felt "it was just probably aggravated by the related accidents." It was opined that Petitioner could do the duties of his occupation in a protected manner, but he would have chronic difficulty with his back. The performance of Petitioner's duties would produce pain because of his current illness or injury. Exhibit 3. Dr. Howard T. Currie opined that Petitioner was unable to, perform any of the duties of his occupation because of his current illness or injury. Exhibit 4. On June 5, 1975, a letter was sent to Petitioner by Administrator, Robert L. Kennedy, Jr., under the signature of David W. Ragsdale, Supervisor, Disability Determination Unit. This letter notified Petitioner that the State Retirement Director was unable to approve his application for in line of duty disability retirement benefits "[s]ince your injury is an aggravation of a preexisting condition and since your initial injury occurred prior to the Florida Retirement System..." However, it was determined that Petitioner did meet the requirements for regular disability retirement as described in F.S. 121.091(4)(b) Exhibit A. In accordance with F.S. Chapter 120, the Petitioner filed a petition requesting a hearing and the Respondent requested the Division of Administrative Hearings to conduct the hearing.
Recommendation Based upon the above findings of fact and conclusions of law, it is my recommendation that Petitioner be awarded the greater benefits allowable for a member totally and permanently disabled in line of duty. Respectfully submitted and entered this 9th day of September, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George Ralph Miller, Esquire P.0. Box 112 DeFuniak Springs, Florida 32433 L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304
The Issue Whether Petitioner was denied reasonable accommodation for his disability by Respondent in violation of the Pinellas County Code, Chapter 70 (“Chapter 70"). Whether Petitioner was wrongfully terminated from his position as a bus operator by Respondent because of his disability in violation of Chapter 70.
Findings Of Fact Petitioner, Richard Mastromarino, is a resident of St. Petersburg, Pinellas County, Florida. Respondent, Pinellas Suncoast Transit Authority, is publicly funded transit agency and is an employer under Pinellas County Code, Chapter 70. Petitioner was employed by Respondent from May 7, 1979, until June 10, 1997, as a bus operator. The position of bus operator requires a commercial driver’s license. After experiencing vision problems, Petitioner visited his primary physician in February 1997. The primary physician diagnosed Petitioner with diabetic retinopathy and referred him to an ophthalmologist. After his diagnosis, Petitioner informed his immediate supervisor of his condition and availability to do light-duty work, and requested a medical leave form to take with him to his appointment with the ophthalmologist. On March 3, 1997, Petitioner visited ophthalmologist Dr. William T. Cobb, who confirmed the diagnosis of diabetic retinopathy, a condition that causes the blood vessels in the retina of the eye to excrete liquid and blood, thus impairing vision. Dr. Cobb informed Petitioner that as a result of his diabetic retinopathy, his vision was insufficient to drive any vehicle, including PSTA buses. In a Progress Report dated March 3, 1997, Dr. Cobb indicated that Petitioner “works as a bus driver and his occupation is threatened by his ocular disease.” Dr. Cobb also completed Petitioner’s medical leave form entitled Certification of Health Care Provider. On the form, Dr. Cobb described Petitioner’s vision as “limited to less than required for driving a bus.” The form also inquired whether Petitioner was able to perform any one or more of the essential functions of his job. In response, Dr. Cobb indicated that Petitioner was “unable to see to drive.” With regard to the probable duration of Petitioner’s incapacity, Dr. Cobb stated that the duration was “unknown.” Petitioner was referred by Dr. Cobb to Dr. W. Sanderson Grizzard for laser surgery. The first of several surgeries were performed in May and June of 1997. During this time, Petitioner was extremely concerned about the outcome of the surgeries. He understood from his physicians that there was a chance that his visual limitations could worsen and that there was a possibility that he might lose his eyesight altogether. Therefore, his immediate goal was to obtain medical leave under the Family Medical Leave Act (“FMLA”) in order to have the surgeries performed. He also desired light-duty work in order to stay employed while he scheduled the surgeries. He was hoping that when his surgeries were complete, he could discuss his future with PSTA as far as which other jobs he could perform. He estimated that he would be able to discuss future work with PSTA in August or September of 1997. This information, however, was not conveyed to PSTA. Petitioner’s inquiries to his immediate supervisor regarding light-duty were referred to Gail Bilbrey, Benefits Specialist. Bilbrey administers a program instituted by Respondent, although not in writing, that assigns eligible employees on workers’ compensation leave to available temporary, part-time light-duty positions that accommodate their physical restrictions. In administering the program, Bilbrey reviews the medical documentation of an employee on workers’ compensation leave and determines if an existing position is vacant within one of several PSTA departments that the employee may be able to perform given the employee’s physical limitations. Because the positions available under this program are existing positions and are part of a bargaining unit of a labor union, light-duty assignments are not created for individual employees. Light- duty positions are extremely limited in number and are often not available for all employees injured on the job. The purpose of PSTA's light-duty program is to save costs of workers' compensation injuries by utilizing employees on workers' compensation leave, whom PSTA is required to pay, in vacant light-duty positions. Temporary light-duty positions, thus, are given to employees on workers' compensation by PSTA. The intent of the program is for the employee to occupy the position only on a temporary basis; thus, light-duty assignments are only granted to employees who are expected to return to work in their regular job. Since Petitioner was not on workers' compensation leave and was not expected to return to his bus-driving job, Petitioner was not eligible for a light-duty assignment. Even if Petitioner had qualified for light-duty, no light-duty positions were available at PSTA at the time of his request. Petitioner was informed of the lack of light-duty work during several conversations with Bilbrey. In response to his request, Bilbrey also prepared a memorandum dated April 23, 1997, indicating that no light-duty was available at that time. The main light-duty positions available at PSTA involved money-counting and ride surveying. Petitioner’s vision impairment prevented him from performing the functions of ride surveying, which includes observing passengers boarding and exiting PSTA buses at each bus stop and recording the results in writing. The money-counting light-duty position required the use of money-counting machines, checking bills, handling coins, and delivering/picking up tickets and money at Respondent’s remote terminals. Despite his vision limitations, Petitioner claims to have been aware of several full-time positions that he alleges he would have been able to perform in June 1997. First, Petitioner claims to have been able to perform the position of fueler/cleaner, which requires a valid Florida Class “B” Commercial Driver’s license, with passenger endorsement and air brakes, the ability to clean buses, and the ability to check coolant and oil levels. However, Petitioner had relinquished his commercial driver’s license in 1997, his physicians had stated he could not drive a bus, and, as observed by Bilbrey, his vision was insufficient to perform the job duty of checking coolant and oil levels. Two other positions became available at PSTA during the time in question which Petitioner now contends he would have been able to perform with adaptive equipment. First, the position of Customer Service Representative was posted by PSTA in early March 1997. This position involves selling tickets and passes, giving route and scheduling information to the public, and delivering supplies to three of Respondent’s remote locations. In 1997, maps and route schedules were not computerized and involved reading very small print. In addition, if Petitioner had qualified for and had been awarded the position, as the least senior Customer Service Representative, Petitioner likely would have been assigned as a “floater,” requiring Petitioner to be able to “float” between different remote terminals at different times to relieve other Customer Service Representatives. The shift of Customer Service Representatives begins at 6:00 a.m., prior to regular bus service. Given the fact that Petitioner was unable to read the fine print of the maps and schedules in a timely fashion and because transportation to deliver supplies, to float between terminals, and to report to work at 6:00 a.m. prior to bus service would have been a significant issue, Petitioner would not have been able to perform the job of Customer Service Representative. Also, in June 1997, the position of Clerk Risk Management became available. Petitioner had limited computer and clerical experience. Therefore, because this position requires extensive typing, computer work, and proofreading, Petitioner did not qualify for the position due to his limited vision and lack of computer experience. Petitioner was unable to perform these functions. After several surgeries, Petitioner's vision has stabilized but he is still legally blind by Social Security disability standards. Regardless of whether Petitioner would have been qualified, Petitioner did not apply for a request consideration for any of these positions or provide any documentation to Respondent indicating his ability to perform these jobs. Instead, in May 1997, Petitioner applied for long-term disability benefits. He completed the application in Bilbrey’s office with the aid of a magnifying glass. Attached to the application for long-term disability benefits was an Attending Physician’s Statement dated April 30, 1997, which was also provided to Respondent by Petitioner. On the form, Dr. Cobb indicated that the approximate date Petitioner would be able to resume any work was “indefinite” and that his prognosis for work was secondary to vision. Petitioner was granted and accepted long-term disability benefits. Pursuant to the long-term disability policy, Petitioner was found totally disabled and could not work. In addition, in April 1997, Petitioner requested an extended leave of absence beyond his FMLA leave that was due to expire in June 1997. However, when applying for the extended leave of absence, Petitioner was unable to specify a time frame in which he would be able to return to work. In fact, in a letter dated May 28, 1997, provided to Bilbrey on June 9, 1997, in support of Petitioner’s request for extended leave, Dr. Grizzard indicated that he “would expect [Petitioner] to not be able to work for at least 3 months.” Because Petitioner’s physicians were not able to provide a specific date when he could return to work, Petitioner’s request for extended leave was denied in accordance with Respondent’s policy. Thereafter, since Petitioner had exhausted all FMLA leave, was unable to perform the essential functions of his job as a bus operator, even with reasonable accommodations, and was unable to provide a definite date of return, Petitioner was terminated from his position as a bus operator on June 10, 1997, in accordance with PSTA policy. After his termination, Petitioner filed a grievance wherein he again requested an extended leave of absence until September 9, 1997, so that he could concentrate on his surgeries and to determine if he would be able to return to work at PSTA. A grievance hearing before Executive Director Roger Sweeney was held on June 30, 1997. At that hearing, Petitioner did not request light-duty assignment or reassignment to a new permanent position. Petitioner’s grievance was denied since Petitioner was unable to perform the duties for which he was hired, had been absent from employment with PSTA in excess of three months, had exhausted all FMLA leave, and was unable to provide a definite date of return. Following the grievance hearing, Petitioner was referred by the Division of Blind Services to Abilities of Florida for vocational rehabilitation training in January 1998. An assessment of his abilities indicated that Petitioner had limited keyboarding, computer, and clerical experience and was unable to score high enough on the 10-key calculator test to qualify for clerical training. Approximately three years after his termination, Petitioner also requested an evaluation to determine whether he could count money. In an informal test, Petitioner counted $55 in petty cash. However, no vocational report was ever provided to PSTA by Petitioner. The evidence fails to prove that Respondent’s employment decisions toward Petitioner were based upon or influenced by his disability.
Recommendation Based on the foregoing, It is RECOMMENDED that Petitioner’s Charge of Discrimination be dismissed with prejudice. DONE AND ENTERED this 9th day of April, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 9th day of April, 2002. COPIES FURNISHED: Craig L. Berman, Esquire Berman Law Firm, P. A. 360 Central Avenue Suite 1260 St. Petersburg, Florida 33701 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie N. Rugg City of St. Petersburg 175 Fifth Street, North St. Petersburg, Florida 33701 Alan S. Zimmet, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759
The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th day of February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
The Issue Whether Petitioner is entitled to "in-the-line-of-duty" death benefits as the surviving spouse of a member of the Florida Retirement System, pursuant to the provisions of Section 121.091(7)(d)1., Florida Statutes.
Findings Of Fact The Petitioner, Cynthia Hylton, is the surviving spouse of Christopher Hylton, a certified law enforcement officer employed as a deputy sheriff with the Orange County, Florida, Sheriff's Department from April 3, 1989, until his death on July 22, 1996. Deputy Hylton was a member of the Florida Retirement System since April 3, 1989. At the time of his death, Deputy Hylton was a 39-year- old male in excellent health, who did not smoke, did not need glasses, and had good reflexes and vision. Deputy Hylton was a full-time deputy sheriff assigned to Zone 42 of Sector 4 in the unincorporated area of Orange County, Florida. Routinely, his law enforcement duties were performed within the geographical limits of that zone. Deputy Hylton generally was on duty 10 hours per day, four days per week. He was assigned to the Zone 42 day shift under the supervision of Sergeant D. Martin. The day shift's regular duty hours extended from 5:30 a.m. to 3:30 p.m. Under the authority of the Florida Sheriff's Mutual Aid Agreement, routine law enforcement assistance by a sheriff or his deputies is permitted across jurisdictional lines with the prior approval of the sheriff having normal jurisdiction in the county being assisted. Two types of law enforcement assistance can be provided under the Mutual Aid Agreement: (1) Operational Assistance during disturbances and disasters and (2) Voluntary Cooperation in enforcement of violations of Florida Statutes. Back-up services during patrol activities are included under voluntary cooperation and cover law enforcement activities of Orange County deputies in Volusia County. An off-duty deputy traveling in another county in Florida who observes a felony or misdemeanor in progress is required to take law enforcement action. In the case of an on- coming vehicle weaving across the center lane of a two-lane roadway, a deputy is required to take evasive action, first by pulling off the roadway, then turning around, and following and observing the vehicle. In addition, the deputy should then contact the local law enforcement agency and notify them of the situation and continue following the vehicle until the local agency can safely stop and arrest the suspect. The officer would then give a statement to the arresting officer and make himself available as a witness. Deputy Hylton, as a law enforcement officer with the Orange County Sheriff's Department, when witnessing life threatening or criminal activity, such as a drunk driver weaving across the center line of a roadway, was required by his employer to immediately take law enforcement action to apprehend the violator. Even when he was not on duty, he was expected to work those irregular hours required to respond to the emergency situation. This sworn duty applies outside of Orange County, Florida. When exercising that duty, as required by the Orange County Sheriff's Policies and Procedures, Deputy Hylton would be entitled to compensation. Deputy Hylton was a resident of the City of Deltona, Florida. Deltona is located in Volusia County near the Seminole/Volusia border. In order to get to work, Deputy Hylton had to drive his own personal vehicle and travel from his home through Seminole County to the Orange County Sheriff's Operation Center and then go on patrol. In the early morning hours of July 22, 1996, Deputy Hylton left his home in Volusia County wearing his uniform, gun, badge, and his identification. He also carried with him a radio capable of communicating directly with Volusia County, the law enforcement agency having primary jurisdiction at the location where he died. At approximately 3:55 a.m., on July 22, 1996, Deputy Hylton was traveling westbound in a residential area on Debarry Avenue, a two-lane paved road near the City of Deltona, in Volusia County, Florida. He observed an oncoming vehicle swerving into the westbound lane. Deputy Hylton immediately took evasive action by applying his brakes and steering his vehicle onto the shoulder of Debarry Avenue. The oncoming vehicle crossed the center line and came across the westbound lane and collided with the deputy's vehicle before he could take any further action. The driver of the other vehicle did not slow down or take any other evasive action prior to the impact. As a result of the collision, a fire erupted and Deputy Hylton died at the scene. At the time of his death, Deputy Hylton appeared to have initiated the process of taking law enforcement action as required by his employer. However, the evidence is not sufficient to prove that Deputy Hylton was killed in-the-line-of-duty as a deputy sheriff while actually performing law enforcement duties during irregular hours as required by his employer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's request for in-line-of-duty retirement benefits of Christopher W. Hylton. DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997. COPIES FURNISHED: Roger D. Helms, Esquire Troutman, Williams, Irvin, Green & Helms 311 West Fairbanks Avenue Winter Park, Florida 32789 Augustus D. Aikens, Jr., Esquire Department of Management Services Division of Retirement Cedars Executive Center 2639 North Monroe street, Building C Tallahassee, Florida 32399 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1550
The Issue What amount of legal fees and costs should be awarded to Petitioner pursuant to Section 120.569(2)(e) or 57.105(5), Florida Statutes, for Respondent’s erroneous classification of Petitioner’s position and subsequent failure to correct that error and reclassify Petitioner’s position back to career service as requested by her in Georgalis v. F.D.O.T., DOAH Case No. 03-4665SED.
Findings Of Fact On April 1, 2002, Petitioner was discharged from her position with the Department without stated cause or hearing. See Petitioner’s Ex. 1-2, Dep’t of Transportation v. FCHR, 842 So. 2d 253, 256 (Fla. 1st DCA 2003). On June 11, 2003, Petitioner was temporarily reinstated by order of the Circuit Court to her position with the Department pursuant to section 112.3187(9)(f). Petitioner’s Ex. 1-3. The administrative case underlying this request for fees and costs was initiated by Petitioner through the filing of a Petition for Formal Administrative Hearing on August 15, 2002. Petitioner’s Ex. 1-4. In that Petition, Petitioner demonstrated, through reference to the position description provided to her by the Department, that she did not fit within any of the categories of employees exempted from career service by Section 110.205(2)(x), Florida Statutes. Petitioner’s Ex. 1-4, paragraph 7. Petitioner also put the Department on notice that she believed the Department’s action in reclassifying her was “frivolous and was done for an improper purpose,” since it was contradicted by the Department’s own documents. Petitioner’s Ex. 1-4, paragraph 12. She also requested that she be awarded appropriate attorneys’ fees and costs. Id. After nearly four months, the Department forwarded the Petition to the Division of Administrative Hearings for a formal administrative hearing regarding whether its decision to reclassify Petitioner was proper. Petitioner’s Ex. 1-5. By this letter, which was filed with the Division of Administrative Hearings on December 10, 2003, the Department requested a formal administrative hearing and manifested its opposition to the relief requested by Petitioner in her Petition. A hearing was held in DOAH Case No. 03-4665SED on April 15, 2004. Following the preparation of a transcript, the parties submitted Proposed Recommended Orders. Petitioner filed a Motion to Strike portions of the Department’s Proposed Recommended Order because it improperly raised an argument that Petitioner could properly be exempted from career service because she was an “administrator.” Petitioner’s Ex. 1-6. That Motion was granted. Petitioner’s Ex. 1-7.1/ On July 2, 2004, the undersigned entered a Recommended Order concluding that Petitioner was improperly reclassified into Select Exempt Service. Petitioner’s Ex. 1-8, p. 12. On September 1, 2005, the Department entered a Final Order adopting the Recommended Order entered in DOAH Case No. 03-4665SED.2/ Petitioner’s Ex. 1-11. Paragraph 13 of the fully-adopted Recommended Order states that: based on the duties and responsibilities contained in Petitioner’s position description and the actual duties she performed, there is no basis for concluding that Petitioner was subject to exemption from career service as concluded by Respondent in July 2001. Petitioner’s Ex. 1-8, paragraph 13. In paragraph 19 of the fully-adopted Recommended Order, the undersigned concluded that: [t]he suggestion of the Respondent’s witness that the exemption should apply if a state employee is assigned to work with anyone retained or commissioned by Respondent to perform services for Respondent, however menial the task, simply misconstrues the statutory exemption: the relevant issue for the purposes of the exemption is whether such persons are department “employees,” not whether a department has contracted or engaged their services as independent technical consultants. Such contract administration is not relevant to the issue of whether Petitioner could properly be classified as a selected exempt employee. Petitioner’s Ex. 1-8, paragraph 19. Following entry of the Recommended Order, Petitioner filed her two (2) Motions for Attorneys’ Fees. Petitioner’s Ex. 1-12 and 1-13. These motions seek an award of attorney’s fees and costs based on the lack of factual or legal support for the Department’s opposition to Petitioner’s request that the Department correct its error in reclassifying her position to Select Exempt Service. Id. Petitioner submitted an affidavit and itemized statement of the requested hours, a summary of hours by the attorney, and a summary of costs incurred in this matter. Petitioner’s Ex. 1-14. Petitioner also submitted the testimony of J. Steven Menton, Esquire, who corroborated the reasonableness of the services and time expended by Petitioner’s counsel and also confirmed the reasonableness of the fees charged and costs incurred by Petitioner’s counsel for those services. The Department did not contest the number of hours sought by Petitioner’s counsel. Respondent did offer the testimony of Michael Mattimore, Esquire, who was also counsel of record for the Department in this case, suggesting that the rates charged by Petitioner’s counsel exceeded those which are normally charged by similar attorneys in the community. Mattimore’s testimony related to fees charged in “employment” law cases in which he has been involved during his career and did not focus on administrative litigation challenging the actions of a governmental agency, such as the present case which involved more than merely examining the factual circumstances surrounding a discharge or other adverse employment action. Confirming the complexity of the underlying case was Mattimore’s testimony regarding the outcome in other reclassification cases. The great majority of reclassification challenges (more than 95 percent of them) have been resolved in favor of the governmental agency or have not been pursued by the impacted employee. Id. The outcome obtained by attorneys for Petitioner in the underlying case is suggestive of fees toward the high end of the range. Petitioner reported the following hours and rates (Petitioner’s Ex. 1-14): LAWYERS: Hours Rate Amount M. Stephen Turner, P.A. 44.40 $400 $17,760.00 David K. Miller, P. A. 1.00 $300 $ 300.00 Martin A. Fitzpatrick 228.50 $250 $57,125.00 Brooke Lewis .90 $200 $ 80.00 TOTAL ATTORNEY HOURS 274.80 $75,365.00 Paralegals: Theresa J. Everhart Hours 1.90 Rate $80 Amount $152.00 Trishia Finkey 1.00 $80 80.00 TOTAL PARALEGAL HOURS 2.90 $ 232.00 TOTAL LEGAL FEES: $75.597.00 The hours and rates requested are found to be reasonable in view of the novelty and complexity of the issues, level of legal skills required, and the result obtained for the Petitioner. The rates sought are in line with fees charged by similarly-situated attorneys for similar work in the community. The amount requested is reasonable and justified under the circumstances. Moreover, the costs and expenses for which reimbursement is sought ($1,523.25) and the expert witness fees of $1400 ($280 /hour for 5 hours) are also reasonable and are of a kind typically billed to clients in addition to the hourly rate charged.
The Issue Should Respondent, Priscilla Phillips, forfeit her rights and benefits under the retirement system of the City of Tampa (Tampa) on account of the termination of her employment because she admitted aiding or abetting a “specified offense?”
Findings Of Fact Background Ms. Phillips worked for Tampa from December 10, 1984, to September 1, 2011. In 2007, Tampa suspended Ms. Phillips for one day for violating computer use policies. Otherwise, Ms. Phillips’ employment history is discipline-free. Throughout her employment, Ms. Phillips worked for the Tampa Police Department as a Data Terminal Operator. Her responsibilities included identifying stolen goods in pawn shops. Ms. Phillips was a public employee of Tampa and a participant in the City of Tampa General Employees Retirement Fund. The Retirement Fund is a public retirement system. On September 1, 2011, Tampa terminated Ms. Phillips’ employment for violating the following provisions of Tampa’s Manual of Regulations: #1814-Restrictions on Revealing Information, #1104-Interference with Cases, and #1005-Standard of Conduct. Tampa relied also on violations of the following provisions of its Personnel Manual as a basis for termination: “B28.2A(3)c(11), Neglect of Duty-Unauthorized release of information or records” and “B28.2A(3)d(2), Moral Turpitude- Violation of City Code or other City policies relating to impartiality, use of public property, conflict of interest, disclosure and/or confidentiality.” Facts Admitted by Ms. Phillips On January 22, 2011, Ms. Phillips received and reviewed a confidential Officer Safety Alert issued by the police department’s Strategic Investigations Bureau. The Strategic Investigation Bureau is responsible for undercover investigations. Ms. Phillips knew this. The Officer Safety Alert included names and pictures of three subjects of an investigation. One was Reginald Preston. Ms. Phillips knew Mr. Preston and had met him about five times. She knew that he was a convicted felon who had been recently released from incarceration. Mr. Preston is the nephew of Ms. Phillips’ friend Beverly Harvin. At the time, Ms. Harvin worked for the police department as a Community Service Officer. The Officer Safety Alert stated: The above listed subjects are part of an on going [sic] investigation. S.I.B./Enforcement Group 2 has purchased firearms from these subject(s) that were taken in a residential burglary. The subjects are still in possession of additional firearms. The subjects are not wanted at this time due to the ongoing nature of the investigation. Use caution when coming into contact with the listed subjects and vehicles. Also use caution if responding to calls at the listed addresses. Due to the ongoing investigations, only distribute to TPD Personnel. LAW ENFORCEMENT SENSITIVE The information contained within this bulletin is the property of the Tampa Police Department and constitutes active criminal intelligence information, and is exempt from public records[.] Ms. Phillips read the alert when she received it. She understood that providing the information in the alert to the subjects identified in it could cause them to flee. Ms. Phillips called Ms. Harvin after reading the alert. Ms. Harvin was at home on medical leave recovering from a broken collar bone.1/ Ms. Phillips told Ms. Harvin about the alert, including the fact that Ms. Harvin’s nephew was identified in it. Ms. Phillips photographed the alert with her cellphone and sent the picture to Ms. Harvin. Ms. Phillips asked Ms. Harvin “could she get in touch with him [Mr. Preston] to come down and talk with the police officer.” Ms. Phillips intended for Ms. Harvin to contact Mr. Preston with the information that he was being investigated. In her words, Ms. Phillips “wanted him to come down and clear himself if he was not involved in this.” Ms. Harvin told Ms. Phillips that she would contact Mr. Preston, and she did. During the entire period of her employment with the police department, Ms. Phillips knew of only one time when an individual turned himself in after learning that he was wanted. Additional Information During an internal investigation of the incident, Ms. Phillips admitted the preceding facts to the investigating officers. Her termination on September 1, 2011, followed. The information in the alert about the stolen guns investigation was not available to the general public. Ms. Phillips obtained the information because she was a public employee. If Mr. Preston learned he was the subject of an undercover investigation, that would have obstructed and impeded the investigation. It would also have endangered the lives of the undercover officers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, City of Tampa General Employees Retirement Fund, enter a final order finding that the employment of Respondent, Priscilla Phillips, with the City of Tampa was terminated because of her admission to committing the commission of a “specified offense” as identified in section 112.3173, Florida Statutes, and that she forfeited her rights and benefits under the General Employees Retirement Fund. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2017.
The Issue Whether Petitioner, pursuant to Rules 22A-7.010(2)(a) and 22A-8.002(5)(a)3, Florida Administrative Code, abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Emily D. McGee, was employed by the Respondent, Department, as a Public Assistance Specialist II in the Department's Medically Needy Unit #87 in New Port Richey, Florida. In that assignment, Petitioner's immediate supervisor was Public Assistance Specialist Supervisor Dorothy White. It is established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. On April 13, 1990, Petitioner was overcome with job stress and was admitted to a residential mental health care facility for four days, which was drawn against Petitioner's earned sick leave. Subsequent to her release, she received outpatient psychological therapy at the Center for the Treatment of Depression in New Port Richey, Florida, with Howard L. Masco, M.D., as her treating physician. On April 20 and again on April 25, 1990, Petitioner was advised by White that in order to properly draw against earned sick leave she must provide a doctor's statement that she was disabled and unable to perform her duties and the projected date of her return to work. On April 25, 1990, a doctor's statement was received, but it did not contain a projected date of return. On April 26, 1990, Petitioner applied to draw against the District V Sick Leave Pool, beginning on May 1, 1990 for an indeterminate period of time. This request was denied by the Committee Administrator. On May 9, 1990, White advised the Petitioner, telephonically and in writing, that her request to draw against the sick leave pool was denied. If she was unable to return to work, Petitioner must submit a written request for leave without pay for her current absence from work, with a beginning date of May 4, 1990 and a projected date of return to work. A physician's statement would also be required. After a period of misunderstanding, a written request with a physicians' statement was submitted by the Petitioner and Leave Without Pay was approved on June 18, 1990 retroactive to May 4, 1990. The physician's statement, dated May 18, 1990, stated that Petitioner has been unable to work since her hospitalization on April 13, 1990 and was still unable to work at the present time. Dr. Masco indicated that he was unable to determine when Petitioner would be able to return to work but that the present diagnosis was depression. Petitioner was advised, in writing, that additional leave could not be granted beyond July 17, 1990 and that Petitioner was required to return to work with medical certification at that time as to her ability to perform her assigned job functions. On the dates between July 18 and July 20, 1990, inclusive, Petitioner neither appeared at work nor informed her supervisor or anyone at HRS that she was going to be absent or was medically unable to return to work. No leave was authorized for her. This period constitutes in excess of three consecutive workdays of absence without approved leave. By letter dated July 27, 1990, Petitioner was advised in writing by the District Administrator that her failure to return to work on July 18 and thereafter constitutes abandonment of position. At the hearing, Petitioner attempted to show that her disability continued beyond July 20, 1990 and up to the present day, and that she had no intention of abandoning her position. That in fact she was physically unable to perform her duties due her continuing stress and depression.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Emily D. McGee, abandoned her position with the Department of Health and Rehabilitative Services and resigned from the Career Service when, on July 18, 19 and 20, 1990, without authority, she absented herself from her workplace for three consecutive days. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of February, 1991. COPIES FURNISHED: Emily D. McGee Post Office Box 1223 Port Richey, Florida Thomas W. Caufman, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida John Pieno, Jr. Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact From August 15, 1967, until his retirement on April 1, 1991, Jackson continued to serve as a game management specialist and a laboratory technician (Petitioner's Exhibit No. 9). As part of his duties, Mr. Jackson would perform controlled burns and post wildlife areas. However, Col. Robert Brantly, the Executive Director of the Commission since 1977 and an employee of the Commission since 1957, stated that those duties were not law enforcement duties and were commonly done by biologists and other non-law enforcement personnel. James A. Carpenter testified that Mr. Jackson worked on controlled hunts and was responsible for the check stations. However, the Commission hired civilians to perform that job, and Col. Brantly stated that the operation of a check station was not a law enforcement function. Mr. Jackson's Commission ID card contained the statement as contained in the Recommended Order, Findings of Fact No. 9. The ID card shows that Mr. Jackson was an "employee" of the Commission and not a "law enforcement Officer". Col. Brantly, was and is a certified law enforcement officer, testified that he had two (2) identification cards (Respondent's Composite Exhibit 2). The first card stated as follows: This card identifies: Robert M. Brantly as a Certified Florida Law Enforcement Officer who has complied with Section 943.14(1) (2), Florida Statutes, and Section 11B-7, relating to Standards and Training Col. Brantly's second ID card contained the following statement: Certificate of Appointment Pursuant to Section 372.07 Florida Statutes State of Florida at Large Be it known that Colonel Robert M. Brantly is a regularly constituted officer of the Florida Game and Fresh Water Fish Commission with full arrest powers to bear arms and to execute and fulfill the duties of said office. This appointment is in full effect until revoked. Dated this 1st day of March, 1990 Col. Brantly's ID card states he is an "officer" with full police powers while the ID cards of Jackson and Carlton Chappel, a biologist employed by the Commission, state that they are "employees" with full authority to enforce the laws relating to protection of the environment and wildlife resources. In fact, the ID cards of Mr. Jackson and Mr. Chappel are identical. (Compare Petitioner's Exhibit No. 7 with Respondent's Exhibit No. 6) Col. Robert Brantly, Executive Director of the Commission, testified concerning Mr. Jackson's claim. Col. Brantly began his career with the Commission in 1957 as a wildlife officer, became the Deputy Director in 1974 and Director in 1977. He has been and is currently a law enforcement officer and has had special risk membership in FRS. He stated that Mr. Jackson and several others classified as game management specialists had been given law enforcement powers in the mid-1960's and had certain limited duties with respect to enforcement of the state fish and game laws. When the Police Standards Commission was established in 1972, Mr. Jackson and the others were "grandfathered" by Police Standards as law enforcement officers. He testified that the Commission had two (2) classes of law enforcement officers in the 1960's and 1970's. Wildlife officers were full time law enforcement officers whose primary duties were law enforcement. Game management specialists were not considered to be law enforcement officers and had no duties in law enforcement. As an exception to that rule were Mr. Jackson and some other game management specialists who had been "grandfathered" in as law enforcement officers by the Police Standards Commission in 1972. These individuals had law enforcement authority but were considered by the Commission to be part-time law enforcement officers. Col. Brantly stated that law enforcement was not a part of their primary or essential duties. The amount of law enforcement that each of the game management specialists performed was up to each individual, but law enforcement was not a duty required of any of them. For example, one of the above specialists could perform no law enforcement activities if he did not want to. Col. Brantly testified that controlled burning was a wildlife management practice and not a law enforcement activity. He stated that the operation of hunt check stations was not a law enforcement activity, and the check stations were manned by citizens of the area. Likewise, posting of the management areas was not a law enforcement activity. Jackson introduced Exhibit No. 10 from the Commission clarifying the Police Standards Board ruling. Field personnel other than those in the Law Enforcement Bureau were "auxiliary officers" who were to call a wildlife officer to the scene of the violation for the arrest, if possible. Petitioner's Exhibit No. 11 makes it even clearer and also explains the policy and the attachment thereto. The attachment, Administrative Directive No. 25, clearly states that "(w)ildlife management duties will remain the first priority job for Division personnel", with clear guidelines for open and closed hunting seasons. The work week was 40 hours with no deviation permitted. Thus, the primary duty of Jackson was game management and not law enforcement. In September, 1979, a number of problems concerning the law enforcement powers of the game management specialists forced Col. Brantly as the agency head to remove the certification (law enforcement powers) from the game management specialists with such power such as Mr. Jackson. The removal of the certification was effective September 6, 1979 (Respondent's Exhibit No. 1, letter to Don Dowling). In Petitioner's Exhibit No. 14, the memorandum from Col. Brantly of September 27, 1979, he made it abundantly clear that the wildlife (game) management specialists were part-time law enforcement personnel. Toby Harris, the personnel officer for the Commission since December, 1979, also testified on both State and Commission personnel practices. He had previous service with the Pay and Classification Section of the Department of Administration and had worked in pay and classification for a state agency for 25 years. He was admitted as an expert in the area of state pay and personnel classification. Mr. Harris stated that at the time Jackson's position questionnaires or descriptions were prepared, it was a requirement that the employee himself prepare the section on "duties and responsibilities" and assign the percentages of time on the form. These forms were not mass produced by the agency but were individually crafted for each job and for each employee. Mr. Harris stated quite emphatically that the position description is (and was for the period in question) the most important document in a state employee's personnel file. It is only on the basis of that position description that the employee knew what his duties were and knew the criteria upon which he would be evaluated. He identified the letter of October 10, 1975, from Brantley Goodson, Director, Division of Law Enforcement, concerning Jackson's status as a grandfathered law enforcement officer in a part-time position. Harris also stated that the evaluations for Jackson up to the early 1970's were above average and that after that date, they were average. The Florida Department of Law Enforcement, Police Standards Commission, kept the files for the Police Standards Commission for all state agencies with law enforcement officers. The records showed whether or not a law enforcement officer was considered full-time, part-time or an auxiliary officer. According to the records of the Commission , Mr. Jackson was considered a full- time law enforcement officer from March 1, 1965, until August 15, 1967, and a part-time law enforcement officer from August 15, 1967, until September 27, 1979, when he was removed from any law enforcement activities by the Commission. Carlton Chappel, an employee of the Commission, testified that in the late 1960's and during the 1970's, he and all field personnel of the Commission, including game management specialists, were issued the same uniforms, badges and identification cards as wildlife officers. On an "as needed basis", the field personnel would be assigned to field duty and had the power to make arrests and enforce the game and fish laws of the State; however, during this time, he did not consider himself to be a law enforcement officer and never had applied for such status. His identification card was identical to the ID card of Mr. Jackson. He further stated that all game management specialists had to prepare work plans for each management area to explain the work that was to be done during the upcoming fiscal year. These work plans included both State and federal projects. (Respondent's Exhibit No. 7) The work plans for the fiscal years 1969-70 and 1970-71 for Mr. Jackson were introduced (Respondent's Exhibit No. 7) and show for FY 1969-70 that Mr. Jackson spent his time in the following projects: PROJECT NO. OF PAY PERIODS Wildlife Research Project 2 No. W-48-4 No. W-35 Mgt. Area Develop. 18 Apalachee Mgt. Area 10 Robert Brent Mgt. Area 4 Point Washington Mgt. Area 2 The work plans for the 1970-71 fiscal year show that Mr. Jackson spent his time on the following projects: PROJECT NO. OF PAY PERIODS Fed. Statistical Harvest & Inventory 1 Fed. Statewide Mgt. Area Development 10 State Hunts 8 State-General Game Management 7 TOTAL PAY PERIODS 26 SPECIFIC PROJECTS NO. OF PAY PERIODS Wildlife Inventory, Harvest & Economic Survey (Project No. W-33-21) 1 Development and Operations (Project No. W-35-20) 10 State-Apalachee Wildlife Mgt. Area 10 Carolyn McGlamery, an employee of the Division, testified that Jackson had transferred from SCOERS to the FRS during the initial transfer period effective December 1, 1970. She further testified about the statutes and the various changes over the years and the administrative rules that concerned high hazard membership under SCOERS and then special risk membership under FRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for high hazard or special risk membership in either SCORES or FRS. DONE and ENTERED this 31st day of March, 1992, at Tallahassee, Florida. DIANE CLEAVINGER, 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 1st day of April 1992.
