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
The Issue Whether Respondent, Department of Juvenile Justice (“Respondent” or “Department”), is liable to Petitioner, Tequilla Lockwood (“Petitioner”), for employment discrimination in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes (2019).1
Findings Of Fact The Department is a criminal justice agency of the State of Florida, whose mission is to increase public safety by reducing juvenile delinquency through effective prevention, intervention, and treatment services, designated to strengthen families and turn around the lives of troubled youth. See § 20.316, Fla. Stat. Petitioner is a Black female, age 61,2 who has been employed by the Department as a secretary specialist, in career service, in the Office of 2 Respondent’s age is as stated in her Petition filed on September 10, 2020. Probation and Community Intervention (“Probation”), Northwest Region, Circuit 2, since February 9, 2007. Petitioner was hired as a secretary specialist, in Position No. 80019949, at an initial salary of $20,734.74, or $797.49 biweekly. State Personnel System The Department is a state agency in the State Personnel System (“SPS”), which is the employment system for the Executive Branch of state government and its applicable pay plans. Section 110.2035, Florida Statutes, authorizes the SPS classification and compensation program for positions in the career service, selected exempt service, and senior management service. In addition, Florida Administrative Code Rule 60L-31, Classification Plan, addresses management of the classification system, and rule 60L-32, Compensation and Benefits, addresses management of salary and other benefits. “Compensation” within the SPS is governed by section 110.2035, as is the classification system. In addition, rule 60L-32 establishes the policies and procedures applicable to all occupations in the SPS. In the broadband system of the SPS, pay is determined through a salary range or pay band. Pay bands establish the lowest base pay and the highest base pay for a particular class code. The pay band for a Department secretary specialist is $797.49 to $1,379.66 biweekly, or an annual salary from $20,734.74 to $35,871.09. Upon appointment, a state agency sets an employee’s base rate of pay within the pay band for the broadband level to which appointed. See Fla. Admin. Code R. 60L-32.001. An agency may increase an employee’s base rate of pay within the established pay band at any time, based upon documented justification, provided funds are available for the increase, and the increase is not specifically prohibited by law. See Fla. Admin. Code R. 60L-32.0011. Pursuant to the “DJJ Delegation of Pay Authority,” effective July 1, 2016, and the “DJJ Spending Guidelines for FY 2019-2020,” effective July 1, 2019, Respondent authorizes increases to an employee’s rate of pay for a variety of reasons, including added duties and responsibility, receipt of a competitive job offer, and merit. A position with a Competitive Area Differential (“CAD”) designation is one that has been approved by the Department of Management Services (DMS) and the Legislature to receive a pay additive which is designed to attract and retain workers in geographical areas where other employers pay comparatively more for similar jobs. See Fla. Admin. Code R. 60L-32.0012(1)(h). Allegation of Paycut Prior to her employment with the Department, Petitioner was employed by the Department of Children and Families (“DCF”) as a data entry operator, at a salary of $20,478.38, or $787.63 biweekly. When Petitioner was hired by the Department, although she was hired at the lowest base pay for a secretary specialist, she received a slight increase in salary ($256.36) from her prior position with DCF. Allegation of Failure to Increase Compensation During her employment, the Department has increased Petitioner’s annual salary. On October 1, 2013, her salary was increased to $22,134.84. On October 1, 2017, her salary was increased to $23,534.94. As of January 10, 2020, Petitioner’s base rate of pay was $905.19 biweekly. As of October 1, 2020, Petitioner’s base rate of pay is $943.66 biweekly. Based upon a biweekly base pay of $943.66, paid 26 times in a year, Petitioner’s current annual salary is $24,535.16. Allegation of Discrimination in Starting Salary At the time Petitioner filed her Complaint alleging that younger, White secretary specialists were being hired at a greater rate of compensation, Petitioner offered no comparators. As a result, the EEO Officer, Aldrin Sanders, conducted a statewide data comparison for Department secretary specialists. As of January 9, 2020, the Department had 84 employees in secretary specialist positions. Of those employees, one was Asian, 41 were Black, nine were Hispanic, and 33 were White. Mr. Sanders determined that Petitioner’s salary was higher than all secretary specialists hired after her, with the exception of four—one Black and three White—whose salaries were equal to that of Petitioner. Mr. Sanders further determined that all 34 secretary specialists whose salaries were higher than Petitioner’s—18 of whom were Black, five Hispanic, and 11 White—were hired before Petitioner. Furthermore, five of those with higher salaries were part of the 2010-2011 Statewide Workforce Reduction efforts and were demoted from other positions to the secretary specialist position, and one was a voluntary demotion with a five percent decrease in salary pursuant to spending guidelines. Additionally, the data obtained by Mr. Sanders indicated that, on average, secretary specialists who are 40 years of age or older made $63.45 more than their counterparts who are 39 and under; and Black secretary specialists, on average, made $8.09 more than their non-Black counterparts. At the final hearing, Petitioner identified particular Department secretary specialists as comparators for her claims of unlawful discrimination. She highlighted specific positions from the spreadsheet listing the Department’s secretary specialists statewide, which was included as a part of Mr. Sanders’ report. Petitioner also submitted into evidence screenshots about employee salaries from the website, “Florida has a Right to Know,” https://www.floridahasarighttoknow.myflorida.com/search_state_payroll. The secretary specialist in Position No. 80004540 is a Black female, 26 years old, who was hired by the Department on November 9, 2018, at a starting base pay rate of $877.24 biweekly. That rate is higher than Petitioner’s starting base pay rate of $797.49 biweekly in 2007. That position is in Probation Circuit 11, Dade County, as of November 7, 2020. According to the screenshot from “Florida Has a Right to Know,” the secretary specialist in that position has an annual salary of $25,077.26, higher than Petitioner’s current salary of $24,535.16. The secretary specialist in Position No. 80048017 is a Black female, 37 years old, who was hired by the Department on August 16, 2019, at a base pay rate of $877.24 biweekly. The secretary specialist in that position was initially hired by the State of Florida on December 7, 2007, but the evidence is insufficient to determine which agency previously employed her, her position title, or her salary. That position is in Probation Circuit 17, Broward County, as of September 5, 2018. According to the screenshot from “Florida Has a Right to Know,” the secretary specialist is reported as having a current annual salary of $24,077.04, which is lower than Petitioner’s current annual salary. The secretary specialist in Position No. 80002854 is a Black female, 37 years old, who was hired by the Department on November 9, 2018, at a base pay rate of $877.24 biweekly. That position is in Probation Circuit 15, Palm Beach County, as of November 6, 2018. According to the screenshot from “Florida Has a Right to Know,” the secretary specialist is reported as having an annual salary of $24,077.04, which is lower than Petitioner’s current annual salary. According to a screenshot from “Florida Has a Right to Know,” a secretary specialist in Position No. ***002456, by the name of Kenneth David Devilling, assigned to Department Community Interventions & Service, purportedly earns $29,050.84. That position is not in Probation. Petitioner introduced no competent evidence on which to base a finding of either the race or age of that particular secretary specialist. When an employee is hired, they negotiate their salary with the hiring manager. Determining an employee’s salary is a subjective process. Managers can adjust starting salaries within the pay bands based on consideration of many factors, including the type of appointment; the knowledge, skills, and abilities (“KSAs”) required of the position; the KSAs possessed by the employee; difficulty in recruitment for the position; geographic location of the position; years of service and experience of employees; licensure; certification and registration requirements; collective bargaining agreements; layoff, etc. These factors are not to be considered all- inclusive, and each appointment or employment decision may vary because of the different factors from one situation to another. Regional Structure of Probation Probation is divided into North, Central, and South regions. Probation North region is further divided into Northeast and Northwest regions. The Northwest region encompasses judicial circuits 1, 2, 3, and 14. Gwen Steverson has served as Northwest Regional Director for Probation since March 2019. Ms. Steverson reports directly to Assistant Secretary Paul Hatcher, who supervises and manages Probation statewide. Ms. Steverson’s duties and responsibilities include assisting the assistant secretary in directing and operating all activities within the Probation Northwest region; ensuring that Probation’s programs are administered in accordance with applicable laws, rules, and regulations; managing her assigned circuits; and managing all human resource decisions. Ms. Steverson has three counterparts: Jill Wells, regional director for Probation Northeast; Cathy Lake, regional director for Probation Central; and Wydee’a Wilson, regional director for Probation South. Each regional director has ultimate responsibility for the Probation regions, and the judicial circuits therein, to which they are assigned. Secretary specialist positions in the South Region are subject to a CAD to account for cost-of-living differences in that region, compared with Central and North. The record does not contain competent evidence to determine the amount of the differential. Ms. Steverson has ultimate management authority only in Probation Northwest for recruitment, selection, hiring, and salary offers to job candidates and pay raises to employees. She has no management authority in the other Probation regions or in any other Department program areas with respect to job candidates and employees. Likewise, other Department managers have no authority concerning job candidates and employees in Probation Northwest. Petitioner is employed as the sole secretary specialist in Probation Northwest, Circuit 2, Gadsden County Office, in Quincy, Florida. There are other secretary specialist positions in Circuit 2, and the Northwest Region more broadly, but the evidence was insufficient to determine how many positions and to which circuits they are assigned. Petitioner’s duties and responsibilities as secretary specialist include the following: managing the office; serving as a receptionist for Probation Circuit 2 by receiving and routing all incoming calls; receiving and directing visitors; ensuring that office supplies are maintained and stocked; performing background juvenile records checks for law enforcement and/or other agencies; running monthly caseloads and distributing daily court dockets to supervisors; performing data entry tasks, including maintaining required tracking logs, such as Pre-Disposition Reports (PDS) and Rep-Release Notification (PRN) logs, and entering “at larges” in the Juvenile Justice Information System (JJIS); and performing other duties as assigned. Ms. Steverson has management authority over Juvenile Probation Officers (“JPOs”) in the Probation Northwest Region. The duties and responsibilities of a JPO differ greatly from those of a secretary specialist. Key JPO duties are case management of a youth and their family, including understanding the court process; attending court for a youth that has been arrested; arranging for all assessments, whether mental health or substance abuse, to determine the needs of the youth and the family; making referrals to Department contract providers, based upon the results of the assessments; ensuring that all court-ordered sanctions are completed by the youth; filing violations of probation; conducting face-to-face visits; working with the schools; and carrying the youth through the process. The qualifications for JPOs differ from those for a secretary specialist. A JPO must have a bachelor’s degree; successfully complete the JPO Academy Certification process within the first 180 days of employment; obtain certifications in Protective Action Response (PAR), Cardiopulmonary Resuscitation (CPR), and First Aid; and be trained in the Detention Risk Assessment Instrument (DRAI). A secretary specialist in Probation is required to have a high school diploma and is not required to successfully complete the trainings or obtain the certifications required for a JPO. Petitioner complained that she was performing the functions of a JPO, for which additional compensation was due her, such as interpreting arrest affidavits, “at larges,” entering charges in the Department system for four counties, documenting status of prior cases in the case notebook, etc. However, Petitioner did not prove that these tasks were outside of her assigned job duties. Ms. Steverson testified, credibly, that Petitioner has not been working “out of class,” that is, Petitioner has not been performing job duties above and beyond those in her position description.
Recommendation Based upon the Findings of Fact and Conclusions of Law herein, the undersigned RECOMMENDS that the Commission issue a final order finding that the Department of Juvenile Justice did not discriminate against Petitioner, Tequilla Lockwood, based upon either age or race, and dismiss Petition for Relief No. 2020-21773. DONE AND ENTERED this 13th day of January, 2021, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 13th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Tequilla Y. Lockwood 351 Carter Road Quincy, Florida 32351 Debora E. Fridie, Esquire Department of Juvenile Justice Suite 3200 2737 Centerview Drive Tallahassee, Florida 32399-3100 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue presented is whether Petitioner is entitled to retirement service credit for certain additional periods of time.
Findings Of Fact Petitioner was employed by the Miami-Dade County Public Health Trust--Jackson Memorial Hospital (Dade County) in September 1970 as a full-time employee. As such, he was eligible to earn service credit for retirement. Dade County is an employer in the Florida Retirement System (FRS). Petitioner is a member of the FRS. There are approximately 870 employers within the FRS, and approximately 600,000 employees are members of the FRS. In the late 1990s the FRS began sending to each member an annual statement regarding that member's retirement account. The statement also advised that a member of the FRS could request an audit of that member's account at any time. The FRS sent these statements to the employing agency for distribution to that agency's employees who were members of the FRS. The procedure changed in 2000 after the FRS obtained member-employees' addresses. Statements were subsequently sent by the FRS directly to each member-employee. Prior to July 1, 1979, the employing agency determined which of its employees were eligible for membership in the FRS. On that date a new rule promulgated by Respondent became effective. Thereafter, the FRS determined which employees were eligible. At the time of the final hearing in this cause, Petitioner had 34.83 years of service for which he had obtained retirement service credit. He was not given retirement service credit, however, for the time periods of January 11, 1976, through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. In this proceeding, Petitioner seeks retirement service credit for these additional three time periods. What benefits an employee receives is within the discretion of the employing agency. Similarly, how an employee is categorized, and what budgetary item or code an employee is paid from, is within the discretion of the employing agency. During the time periods in question Dade County used four different budget codes or statuses for paying its employees. Budget codes 1 and 2 signified regular full-time employees. However, budget codes 3 and 4 signified employees in temporary, part-time, or summer positions, the equivalent of the State of Florida's other personnel services category. Those employees within budget codes 1 and 2 received retirement service credit, but those within budget codes 3 and 4 did not and were not eligible. Petitioner's personnel file contains a copy of Dade County's Advice of Personnel Action form dated January 11, 1976, changing his status from full-time to part-time and placing him in budget status 3. Another Advice of Personnel Action form dated May 2, 1976, changed his status from part-time back to full-time and placed him in budget status 1. A third Advice of Personnel Action form dated August 22, 1976, changed Petitioner's status from full-time back to part-time and placed him in budget status 3. A Payroll--Employee Master Record shows that on May 29, 1977, Petitioner was promoted from a respiratory therapy tech 2 to a respiratory therapist, but his status remained part-time. A second Payroll--Employee Master Record shows that Petitioner was changed from part-time back to full- time on August 7, 1977. Petitioner admitted during the final hearing in this cause that there were times when he was given reduced hours of work at his request. His personnel file indicates the impact of his requests. Although he had been hired as a regular, full- time employee, during the time periods in question, he was only a part-time employee. Contrary to his testimony, Petitioner's personnel file reflects that he was aware at the time that his periods of part- time employment did not provide him with retirement service credit. His file contains a copy of a form enrolling him in the FRS signed by him on August 17, 1977. The form provides that Petitioner was employed by Jackson Memorial Hospital from September 14, 1970, through January 11, 1976, and again from May 16, 1976, through August 22, 1976. The file also contains a second FRS form which he signed on September 17, 1976, indicating that the reason he was submitting it was that he was going to full-time employment from part-time. Accordingly, Petitioner knew that he was not accruing continuous retirement service credit and understood that he needed to enroll in the FRS whenever he changed from part-time employment back to full- time. A one-page payroll register submitted by Petitioner as one of his exhibits in this proceeding covers one of the time periods in question. Although it shows that Petitioner paid for insurance and union dues, it does not reflect any information regarding retirement and, therefore, cannot support the implication that Petitioner suggests, i.e., that he is entitled to retirement service credit. Petitioner was careful to re-enroll in the FRS whenever he changed to full-time employment with Dade County. Similarly, Dade County changed the budget code each time Petitioner changed his employment status, which indicates an appropriate budget code was specifically selected.
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 retirement service credit for the time periods of January 11, 1976 through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. DONE AND ENTERED this 27th of October, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th of October, 2006. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Luis J. Morrina 6211 Southwest 161 Avenue Southwest Ranches, Florida 33331 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Steven S. Ferst, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue Whether the Petitioner's rights and benefits under the Florida Retirement System ("FRS") have been forfeited as set forth in the Notice of Forfeiture of Retirement Benefits dated August 26, 2004.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, on the stipulation of the parties, and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency charged with the responsibility of managing, governing, and administering the FRS on behalf of the Department of Management Services. The FRS is a public retirement system as defined by Florida law. It provides benefits to local and state employees, including teachers, state legislators, and local public officials. Mr. Childers was employed as a school teacher in Escambia County from 1955 to 1957, and this employment continued for approximately two and one-half years. During this time, Mr. Childers was a member of the Teacher Retirement System, which later became part of the FRS. His two and one-half years of service as a teacher is credited service under the FRS. In November 1970, Mr. Childers was elected to serve as a member of the Florida Legislature, and he continued to serve as a state legislator until November 2000, when he left office as a result of term limits. As a state legislator, Mr. Childers was a member of the FRS class of State Elected Officials, and his 30 years of service is credited service under the FRS. In November 2000, Mr. Childers was elected to serve as a member of the Escambia County Board of County Commissioners. In this position, Mr. Childers was a member of the FRS class of County Elected Officials, and his years of service as a County Commissioner is credited service under the FRS. On or about June 17, 2002, Mr. Childers was charged by indictment with one count of money laundering, a second-degree felony pursuant to Section 896.101(3)(a)1. and 2.a. and (5)(b), Florida Statutes (2002)1; one count of bribery, a third degree felony pursuant to Section 838.015, Florida Statutes2; and one count of receipt of unlawful compensation or reward for official behavior, a third degree felony pursuant to Section 838.016(1), Florida Statutes.3 The charges in the June 17, 2002, indictment were based solely on activities allegedly occurring subsequent to November 2000 and arising out of Mr. Childers's service as a member of the Escambia County Board of Commissioners. Mr. Childers was tried and found guilty by a jury of two counts in the indictment, bribery and unlawful compensation or reward for official behavior.4 On or about May 16, 2003, Mr. Childers was adjudicated guilty of these two crimes and was sentenced to 42 months in prison, to be followed by 18 months probation. Mr. Childers has not, to date, applied for retirement benefits under the FRS. Mr. Childers was a public officer who was adjudicated guilty of two offenses specified in Chapter 838, Florida Statutes, which arose out of his service as a member of the Escambia County Board of Commissioners. None of the actions related to his service as a state legislator or as a teacher in Escambia County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that W.D. Childers committed specified offenses, as defined in Section 112.3173(2)(e), Florida Statutes, prior to his retirement from public service and ordering that, pursuant to Section 112.3173(3), Florida Statutes, W.D. Childers forfeit all his rights and benefits under the Florida Retirement System, except for the return of any accumulated contributions. DONE AND ENTERED this 31st day of August, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 August, 2007.
The Issue The issue is whether Petitioner was terminated unlawfully from employment by the City of Orlando (City) on the basis of his national origin and disability, and in retaliation for engaging in a protected activity.
Findings Of Fact Petitioner is a 55-year-old male of Hispanic (Cuban) heritage. He worked full-time as a police officer with the City until 2011, when he resigned his full-time status and was granted permission to begin working as a reserve officer. Reserve officers are appointed by and serve at the discretion of the Chief of Police. Only retiring or resigning sworn officers with at least ten or more years of consecutive service and in good standing can be members of the reserve unit. Currently, around two dozen reserve officers work for the City. A reserve officer must be a sworn law enforcement officer and able to exercise law enforcement authority and make arrests. If a reserve officer is unable to perform law enforcement functions, the Chief of Police will exercise his authority to withdraw his or her reserve status. Reserve officers have no employment or promotion rights. In addition to their contract assignment, they must satisfy a volunteer commitment by working at least 12 hours per month in either a patrol first-responder assignment or pre-approved special assignment. However, the volunteer commitment does not apply to reserve officers working at the Orlando International Airport (Airport). If a reserve officer is unable to fulfill this 12-hour requirement, the Chief of Police will exercise his authority to withdraw his or her reserve status. Beginning in January 2012, Petitioner worked exclusively as an Airport Specialist at the Airport on successive one-year contracts. Reserve officers working at the Airport are called Temporary Employee Police Reserve Officers (TEPROs). The TEPRO program was initiated by the City in 2012 and is designed to augment the number of police officers working at the Airport. This is because the Airport law enforcement contingent has been understaffed for many years.2/ TEPROs have arrest powers, wear uniforms, carry a gun and taser, and are required to take police action just like full- time law enforcement officers. The Greater Orlando Airport Authority (GOAA) contracts with the City to provide law enforcement services at the Airport and reimburses the City for salaries and equipment of full-time officers and TEPROs. Therefore, TEPROs cannot be assigned to any other division in the Police Department. Approximately 70 to 80 officers, including command staff, full-time officers, and TEPROs on one-year contracts, work in the Airport Division (Division). When the events herein occurred, the number of TEPROs working at the Airport was capped at nine. In January 2012, Petitioner entered into his first Temporary/Seasonal Employment Contract with the City, whereby the City agreed to employ Petitioner in the Police Department as a TEPRO for one year from January 2012 through January 2013. At that time, Petitioner was capable of performing the full duties of a law enforcement officer without accommodation. Petitioner was not hired for any particular assignment and could be assigned to any number of posts throughout the Division. In March 2013, March 2014, January 2015, and January 2016, Petitioner entered into new employment contracts with the City, whereby the City agreed to hire Petitioner as a TEPRO for one year. The last contract was executed on January 13, 2016, and ran through January 13, 2017.3/ When he signed each contract, Petitioner was capable of performing the full duties of a law enforcement officer without accommodation. On September 8, 2016, Petitioner was injured in an on- the-job accident at the Airport. He had pulled over a taxicab for a traffic stop when another vehicle struck his police car from behind, driving Petitioner underneath the dashboard and pinning him there while pushing his car into the taxicab he had stopped. The accident required Petitioner to undergo cervical fusion of his C-6 and C-7 vertebrae in February 2017 and damaged his ulnar nerve causing numbness in his right hand. He still experiences severe pain in his back and neck on a daily basis. Petitioner’s injuries limit his ability to perform manual tasks for extended periods. His musculoskeletal functions are substantially limited, and he cannot sit or stand for prolonged periods. The range of movement in his neck is also substantially limited. He is restricted from pushing or pulling any amount of weight, and from lifting more than ten pounds. As of April 2018, or 15 months after his last contract expired, these medical conditions still existed and prevented Petitioner from performing the job duties of a full-time police officer, such as carrying a weapon, making arrests, responding to calls, assisting other officers, and taking other police enforcement action. Unfortunately, there is still no definitive timetable for a full recovery. Although the City had the discretion to immediately terminate Petitioner’s contract when the accident occurred, it permitted him to assess the injury and address the medical issues. A few weeks after the accident, Petitioner requested an accommodation that would permit him to go on light duty. His request was approved. The City’s policy is to allow full-time officers to remain on light duty for no more than twelve months; they then are required to be medically retired or terminated from employment unless the Chief of Police, at his discretion, authorizes another six-month extension. While he was not sure, the Deputy Chief of Police believed this policy did not apply to reserve officers. Petitioner returned to work on October 13, 2016, in a light-duty capacity because of restrictions imposed by his physician. As noted above, these restrictions prevent Petitioner from responding to a situation that could escalate and require him to take police action. From October 13, 2016, through January 16, 2017 (or three days after his contract expired), Petitioner worked in a light-duty capacity in “district 285.” District 285 is the nomenclature for a police officer position in the Division’s office at the Airport that takes walk-up calls for matters such as stolen vehicles or answering calls from outside or within the Airport for general questions. The office is manned by an officer 24 hours per day, seven days per week. If the officer is on light duty, he works in plain clothes, does not carry a firearm, and, pursuant to Police Department policy, cannot take police enforcement action. District 285 refers to the position during the day shift, while district 185 refers to the position during the night shift. The position cannot be filled by a civilian. At least one officer must fill each shift (day and night) at the front desk of the office. The position is filled by a mix of full-time officers and TEPROs, a few of whom from time to time may be on light duty. If an officer on light duty works the front desk, this would enable an officer with no restrictions to be assigned to a patrol position. If a full-time or reserve officer without restrictions works the front desk, he or she is required to respond to calls for service and take police action for any incidents that may arise. From October 13, 2016, to January 16, 2017, Petitioner worked one to three shifts per week (ten hours per shift) in the front desk position. Officers on light duty are required to submit an Alternative Duty Update (Update) every 30 days in order to remain on light duty and to continue to work. On December 14, 2016, Petitioner provided the City with an Update in order to remain on light duty. The Update indicated that he still had work restrictions (no pushing, pulling, or lifting anything over ten pounds, limited bending, no overhead work, and changing his seated or standing position every 30 to 60 minutes); his physician recommended surgery (which was approved by Risk Management on January 18, 2017, and performed the following month); and there was no estimated date for his return to full duty. After the surgery, Petitioner would be in no-duty and light-duty status until the recovery was complete. The Chief of Police approved his alternative duty request on January 3, 2017. This allowed Petitioner to finish out his one-year contract, which expired ten days later. Contrary to Petitioner’s suggestion, the Update did not constitute a request for an accommodation under a new contract. On or about January 6, 2017, Petitioner was informed by his direct supervisor, Lieutenant Boos, that the City would not be offering him a new employment contract after his current contract expired a week later. When told that his contract would not be renewed, Petitioner did not request an extension of his light duty, a transfer to a light-duty position downtown, a leave of absence, or any other accommodation. Also, he did not ask the City to reconsider offering him a new contract. When he asked Lieutenant Boos if there was a reason why it was not renewed, his supervisor responded “no,” and Petitioner was told that the City just wanted to exercise its right not to renew the contract. Neither Lieutenant Boos, nor the commander of the Division, Captain DeSchryver, knew the exact reason for this action; they knew only that the Deputy Chief had told Captain DeSchryver not to renew the contract. According to Captain DeSchryver, he recommended that the City renew the contract, but after reviewing the matter, the City decided it needed a full-time officer at the Airport. Petitioner filed his TAQ with the FCHR a few weeks later. Even then, he did not suggest a specific accommodation. At the time his contract was not renewed, Petitioner was unable to exercise law enforcement authority or make arrests. The City could not assign Petitioner to the district 285 position for another 12 months because there was no timetable for his return to full duty. Also, the City needed all positions at the Airport staffed by as many full-duty officers as possible who were capable of performing the essential functions of the job. As explained by the Deputy Chief, the City needed to have “a number of full-body officers out there to work the calls and to assist each other and to keep everybody at the airport safe,” and not to just have a certain number of officers assigned to the Airport, even if they could not perform the essential functions of the job. The Deputy Chief went on to explain that “it was decided that we would take another course of action and terminate the contract and get a full-body person at the airport.” He also testified that the City “needed a full-fledged officer out there [at the Airport]”; “we needed an officer who could do the full job of a police officer”; “we just need to have as many full-time officers or full-service officers as we can”; and by hiring a full-time reserve officer, that would give him “a full-time officer out there who can respond to any kind of call out there and also assist the other officers out there to handle anything that comes up.” The Chief of Police added that “it’s really a waste of taxpayers’ money to keep someone on contract in light- duty status when they cannot perform the function of a reserve officer or TEPRO.” Petitioner contends the statements of the Chief of Police and Deputy Chief fall within the category of “the most blatant remarks,” whose intent could be nothing other than direct evidence of discrimination. However, this testimony is not evidence of discrimination, given the fact that Petitioner’s latest Update in mid-December 2016 indicated that he faced impending major surgery, he had numerous doctor-imposed physical limitations, and there was no timetable on when, if ever, he would return to full-duty status. For the first time, in his PRO, Petitioner contends that, as an accommodation, the City should have: (a) executed a new contract and assigned him to the district 285 position for another year, or (b) executed a new contract with a different reserve unit and transferred him to a light-duty position in another division. In essence, Petitioner argues that the City should have given him another one-year contract, even though he was awaiting major surgery (which was performed the following month) and would be on light-duty or no-duty status for an indefinite period of time. Indefinite light duty or no duty is not a reasonable accommodation. If the TEPRO contract was renewed, transfer to another light-duty position in another division was not possible. As a contract employee with GOAA, Petitioner could not be transferred to another division. If Petitioner signed a new contract with another reserve unit, it would be a burden on the City, and an unreasonable accommodation, to assign him to a light-duty position for an indefinite period of time. As it turns out, Petitioner would have been on light-duty or no-duty status for the duration of the renewed contract. Assuming another contract was executed in January 2018, Petitioner would still be on light duty as of April 2018, with no timetable for returning to full service, if ever. In sum, assuming that Petitioner’s injury constitutes a disability, there was no reasonable accommodation that the City could have offered. Petitioner was replaced by another reserve officer, Don Luezzi, a white male, who formerly worked in the Airport Division before he retired and expressed interest in an Airport Specialist position. In 2017, the City also hired Izzy Hernandez, a Cuban, as a TREPRO. His contract was renewed in 2018. Even though his contract was not renewed, Petitioner remained a reserve officer, serving at the pleasure of the Chief of Police. To retain reserve status, however, Petitioner was required to file Updates on his medical status. On April 2, 2017, Petitioner submitted an Update, advising that he remained in no-work status (due to his recent surgery) and that his next follow-up appointment was scheduled on June 1, 2017. On June 26, 2017, Petitioner was issued a Return to Duty Notice (Notice), advising him that his reserve status would be revoked effective September 8, 2017, if he was not able to return to full duty by that date. A Notice is an administrative form letter that is generated and issued automatically to all employees who are on alternative-duty status or medical leave for the preceding six months. From January 2017 through July 2017, Petitioner was unable to work any off-duty jobs as a reserve officer because of his medical condition and work restrictions. During this same time period, he was unable to work as a patrol first-responder or in a pre-approved special assignment as a law enforcement officer. He did not identify any reasonable accommodation which would have allowed him to do so. On July 26, 2017, Petitioner’s reserve status was withdrawn, effective immediately, by the Chief of Police on the advice of counsel and because Petitioner was unable to fulfill the requirements of the reserve unit. Actually, the reserve status could have been revoked earlier because Petitioner was unable to fulfill the requirements of the reserve unit, specifically the requirement that he volunteer 12 hours per month as a law enforcement officer. The withdrawal of Petitioner’s reserve status occurred six months after the TAQ was filed, was not considered by the FCHR, and is not a relevant issue. Assuming arguendo that it is a relevant consideration in the case, there is no evidence that this action was taken for discriminatory reasons. Petitioner is not precluded from re-applying for reserve status or as a TEPRO once he is able to perform the functions of a law enforcement officer and fulfill the requirements of the reserve unit. Petitioner contends the City treated another TEPRO, Kathy Tomas, a white female, more favorably than him by offering her a new one-year contract while she was on light duty. Ms. Tomas suffered an on-the-job injury on March 18, 2017, while attempting to arrest an unruly JetBlue passenger who was refused boarding because of too many carry-on bags. At the time, she was working under a one-year contract that expired in January 2018. Because of a fractured elbow and torn rotator cuff suffered during the arrest, Ms. Tomas went on light duty after the incident. After the elbow injury was resolved, she had surgery performed on her rotator cuff, and, as of April 2018, still remained on light duty. In September 2017, the City entered into new contracts with all of its TEPROs, including Ms. Tomas, in order to effectuate a pay raise. New contracts were necessary because the existing contracts provided for a set pay rate, and without a new contract, the new pay rate could not be implemented. If Ms. Tomas is unable to return to full duty at the expiration of her current contract in September 2018, the City will not enter into a new employment contract with her. Although her accommodation was longer, Ms. Tomas received the exact same accommodation as Petitioner. Petitioner was not treated less favorably than other employees who were similarly situated, based on his national origin or perceived disability. In his PRO, Petitioner asserts the December 14 Update is the protected activity that forms the basis for the retaliation charge. On the other hand, the City’s PRO asserts the only protective activity identified by Petitioner is his TAQ filed in March 2017. (The TAQ was actually filed on January 23, 2017, not in March 2017.) However, both assertions miss the mark, as the TAQ alleges the protected activity is Petitioner’s filing of a workers’ compensation claim. The exact date on which he filed his claim is not of record, but an email indicates that Petitioner spoke with the “workers’ comp case manager” on September 14, 2016, or eight days after he was injured. Resp. Ex. 1. In any event, the TAQ trumps the other assertions and is the only protected activity that has been considered. There is no evidence that the filing of the workers’ compensation claim was in any way related to the non-renewal of the TEPRO contract. The City’s decision to not renew the contract was not based on Petitioner’s heritage (Cuban), disability, or in retaliation for him filing a workers’ compensation claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 18th day of July, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2018.
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 The issue is whether Petitioner has forfeited her rights and benefits under the Florida Retirement System (“FRS”) pursuant to section 112.3173, Florida Statutes (2017).1/
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the stipulation of the parties in the Joint Response to Pre-hearing Order, the following Findings of Fact are made: The FRS is a public retirement system as defined by Florida law. The Florida Division of Retirement is charged with managing, governing, and administering the FRS on behalf of the Florida Department of Management Services. For over 21 years, Ms. Painter was the head softball coach for Gulf Coast, an FRS-participating employer. By virtue of her employment, Ms. Painter was enrolled in the FRS. On May 5, 2014, the Bay County Sheriff’s Office commenced an investigation into allegations that Ms. Painter had misappropriated cash that had been provided to her to pay for players’ meals during a softball tournament in Las Vegas and that Ms. Painter was collecting and keeping rent money from softball players who were on full room-and-board scholarships and had their rent paid by the college. In the summer of 2014, Ms. Painter was charged by information with one count of grand theft, a third-degree felony. Gulf Coast did not terminate Ms. Painter’s employment. Gulf Coast allowed Ms. Painter’s employment contract to expire on June 20, 2014. On January 9, 2015, the information was amended to include seven counts of grand theft, each constituting a third degree felony under section 812.014(1) and (2)(c), Florida Statutes (2014). Though some counts dealt with other allegations, for the purposes of this proceeding, the essential charges involved the meal money and the rental payments. Ms. Painter ultimately entered a plea of nolo contendere to one count of grand theft. During the hearing before the court, the state attorney specified that Ms. Painter was pleading to Count IV, which alleged theft of the meal money. The contemporaneous notes taken by the court clerk state that Ms. Painter was pleading to “Count 4.” The order of probation states that she pled to “Count 4.” However, the actual written “Plea, Waiver and Consent” signed by Ms. Painter and the attorneys shows the numeral “1” under the heading, “Count.” It is unclear from the document whether Ms. Painter was pleading nolo contendere to one count of grand theft, or to Count I of the information. Count I involved the allegation that Ms. Painter had improperly collected rent from one of the scholarship players, Megan Griffith. At the circuit court hearing, no mention was made of the specific factual allegations in the count to which Ms. Painter was pleading. The court made no findings of fact. Ms. Painter was not required to allocute to any facts.2/ Upon entry of the nolo contendere plea, the court withheld adjudication. Ms. Painter was given two years’ probation and ordered to make restitution of $4,400, perform 100 hours of community service, and was directed to have no contact with Gulf Coast or her former players. The undersigned finds that the understanding of all parties, including the court, was that Ms. Painter was pleading nolo contendere to Count IV of the information. The amount of restitution ordered is roughly consistent with the amount of meal money that was at issue in Count IV. The numeral “1” on the plea document is either a misprint or was intended to convey that Ms. Painter was pleading to a single count of grand theft. At the final hearing, Ms. Painter testified that she was given $4,752 in cash to pay for meals during the Las Vegas trip, which began on January 31, 2014, and ended on February 4, 2014. Ms. Painter testified that if the girls were splitting up to eat at different restaurants, she would dole out cash to each group. If everyone was eating at the same restaurant, all the girls would place their orders, and Ms. Painter would pay the entire tab. Ms. Painter testified that this had been her practice on team trips for some time. She stated that she used to give each girl her portion of the total meal money at the start of a trip. However, some girls would inevitably spend all of their money before the end of the trip and Ms. Painter would have to pay for their meals out of her own pocket. By doling out the money one meal at a time, Ms. Painter ensured that it would last the entire five days. Ms. Painter denied keeping any of the meal money for herself. She admitted that she did not keep receipts from each meal she purchased, but testified that meal receipts were not required on multiple day trips, such as the Las Vegas tournament. Nothing she did on this trip was different than her usual practice. At the end of the trip, she returned $132 in unspent meal money to the athletic department. Ms. Painter testified that her nolo contendere plea was made for financial and emotional reasons. The case had dragged on for 17 months. The ordeal was humiliating and exhausting. She stated that accepting the plea deal was the hardest decision she had ever made, but that she did not in fact take any of the meal money from her softball players. The Department offered no admissible direct evidence to contradict Ms. Painter’s version of events. The undersigned did not admit the deposition of Gulf Coast Athletic Director Gregg Wolfe because it was a discovery deposition taken in Ms. Painter’s criminal case. The undersigned did admit the Bay County Sheriff’s Office case file on Ms. Painter’s criminal case, which included witness interviews and Ms. Painter’s bank statements. However, the case file was admitted on the understanding that it was a hearsay document that could only be used to supplement or explain other evidence. In the absence of competent non-hearsay evidence, or any showing by the Department that elements of the case file would be admissible over objection in a civil trial, the case file was of no utility. The Department’s only witness aside from Ms. Painter was its employee Allison Olson, the benefits administrator in the Bureau of Retirement Calculations. Ms. Olson’s knowledge of the case was gleaned purely through her review of the paper record, including the case file and the transcripts of depositions taken in the criminal proceeding. She had no first- hand knowledge of any of the events in question. Ms. Painter offered the deposition testimony of Joanne Booker, a member of Ms. Painter’s softball team at the time of the Las Vegas trip and currently an assistant basketball coach for Gulf Coast. In most essentials, Ms. Booker corroborated Ms. Painter’s testimony. Ms. Booker did not recall many particulars as to how the meals were purchased, but testified that at each meal the players were either given cash by Ms. Painter or had their meals paid for by Ms. Painter. Ms. Booker recalled no problems as to meals and recalled no one complaining about food on the Las Vegas trip. Even if it were found that Ms. Painter’s plea was actually entered as to Count I, the findings would be much the same. Ms. Painter testified that the “rent” she was accused of collecting and pocketing from the scholarship players was actually a voluntary contribution toward the rent of the non- scholarship players, to enable the entire team to live together in the same apartment complex. Ms. Painter testified that any money she collected was turned over to the lessor of the apartments. Again, the Department offered no admissible direct evidence to contradict Ms. Painter’s version of events. Ms. Painter’s testimony was at least credible enough to be accepted in the absence of any competent non-hearsay evidence to the contrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order restoring to Susan Painter her rights and benefits under the Florida Retirement System and providing for payment to her of any past due benefits, together with interest at the statutory rate. DONE AND ENTERED this 25th day of September, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 25th day of September, 2018.
Findings Of Fact Petitioner, Joseph F. Friedman, was born January 17, 1926, and was, at the time of final hearing, 58 years of age. In 1980 Petitioner noticed an advertisement for the position of Crimes Compensation Field Representative with the Respondent's Bureau of Crimes Compensation. At that time Petitioner registered with the Department of Administration (DOA) and was certified as eligible by DOA to fill the position. Although certified by DOA, Petitioner did not file a State of Florida Employment Application with Respondent, or take any other action which would have affirmatively apprised Respondent of his interest in any employment position. In 1982 Petitioner again saw an advertisement for the position of Crimes Compensation Field Representative and this time filed a completed State of Florida Employment Application with Respondent on April 23, 1982. By letter dated May 11, 1982, Respondent's Chief of the Bureau of Crimes Compensation, Herbert G. Parker, advised Petitioner that his ". . . application would be retained on file for reference should a vacancy occur in the immediate future. (Emphasis added.) Respondent's personnel manual (Respondent's Exhibit 3) provides in Section 1-A-4A(5): To ensure department wide consistency in accepting applications for vacant positions, the guidelines listed will be followed as positions are advertised and certificates of eligibles are worked. In order to be considered as an applicant and to be considered for appointment, persons must file a properly completed and signed appli- cation for the position applied for. A person who expresses interest in a position but does not file a formal application is not considered an applicant. Persons who have filed an application for a position within an office previ- ously may have their application reactivated by the office at the option of the office manager or at the specific request of the applicant. (f) Offices will retain the applications of all applicants for positions for two years following the filling of a position. Although Respondent's policy requires that applications be retained for two years following the filling of a position, there is no agency policy which requires that they be considered for any future vacancies. Petitioner neither reapplied nor requested that his original application he held in the active file for future consideration. Notwithstanding the absence of a formal agency-wide policy, Mr. Parker has established a policy in his bureau that applications on file will be considered if a vacancy occurs within six months after that application had been previously considered. This six-month period is the "immediate future" referenced in his letter to Mr. Friedman of May 11, 1982. In early 1983 Petitioner noticed an advertisement for an opening for a Crimes Compensation Field Representative in Respondent's office. Petitioner did not formally apply for this position but, rather, engaged the services of an attorney to see why he had not been contacted regarding this vacancy. As a consequence of that contact, Respondent advised Petitioner's counsel that: . . . It is the Rule of the Department of Administration that non-state employees are purged from the list of eligibles every six months. In this case, Mr. Friedman should have asked for recertifi- cation in order to maintain his eligibility for consideration for the position in question. Respondent also advised Petitioner's counsel that Petitioner would be contacted for an interview for the current opening of Crimes Compensation Field Representative and, if found to be the most qualified, would be offered the position. Petitioner was in fact contacted and interviewed by Mr. Parker, along with ten other applicants. Among the applicants interviewed were three who were above 50 years of age, three who were above 40, one who was over 30, and four who were in their 20s. Ms. Sally Heyman, age 28 at the time, was selected to fill the position. Petitioner was advised by letter dated March 10, 1983, that he had not been selected. Mr. Parker evaluated the respective qualifications of Ms. Heyman and Petitioner. He found Petitioner qualified but felt Ms. Heyman's qualifications were exceptional and that she was clearly the better-qualified applicant. An examination of Ms. Heyman's credentials, as evidenced by her application and resume, reflects that in addition to considerable experience in the specific field of victim assistance, she also held a bachelor's degree in criminal justice, a master's degree in criminal justice, and was certified in crimes prevention. Mr. Friedman on the other hand held a bachelor's degree in social sciences (education) and his prior work experience had been as a detective for the New York City Police Department (retired) and as an investigator for Calder Race Course and security director for Gulf Stream Race Course. The respective credentials of Ms. Heyman and Petitioner demonstrate that Ms. Heyman was the better-qualified applicant. Further, Mr. Parker had reservations concerning Petitioner's ability to work closely with crimes compensation victims. The work of a Crimes Compensation Field Representative requires a caring, compassionate person who can empathize with the crime victim and establish a rapport which will engender a feeling of confidence that "This person can help me." Victims of crime are not only brutalized by the crime itself but are often emotionally battered by the Criminal Justice System. Consequently, a Crimes Compensation Field Representative must be capable of exhibiting the care and empathy essential to aid the victims of crime. Mr. Parker's reservations concerning Petitioner's ability to fulfill this criteria, though subjective, are clearly pertinent, job-related, and not discriminatory. On August 23, 1983, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations, in which he alleged that he was not employed for the March, 1983, vacancy because of his age, and that Respondent had a policy of discrimination because of age. Subsequent to the filing of Petitioner's charge of discrimination, two additional positions were filled which Petitioner asserts substantiate his claim that Respondent had a policy of discrimination because of age. The first position was for an opening in the Respondent's Miami field office and was filled by Ms. Carol Springer, age 28, in September, 1983. Ms. Springer was an employee of Respondent in its Tallahassee office at the time in question, and previously had requested a transfer to Miami. Under Respondent's employee policies, current employees are entitled to first consideration when vacancies occur in an area to which they desire to be transferred. The second position, the vacancy created in the Tallahassee office by Ms. Springer's transfer to the Miami field office, was filled by Ms. Barbara Bobo, age 32, in September, 1983. Ms. Bobo's application and resume reflect considerable experience working with child abuse victims, the emotionally and financially disadvantaged, the mentally retarded, the elderly, and the disabled. She also held a Bachelor of Arts degree in special education. Petitioner did not submit an application for either of these positions or otherwise apprise the Respondent of his interest. Therefore, Petitioner was not contacted or considered for either vacancy. The current staffing pattern of Respondent's Bureau of Crimes Compensation reveals that a total of 16 persons are employed, including Mr. Parker. Of that number, 33 percent are over the age of 40, including two over the age of 50 years-- Mr. Parker, age 55, and one George Peters, age 57, a Crimes Compensation Field Representative.
Findings Of Fact Since 1968 the Petitioner, Donald W. Hulmes has been attorney for the Broward Community College. Previously he was attorney for the Broward County Board of Public Instruction (School Board), having held this position since 1955. During the Petitioner's employment with the School Board he was a member of the State and County Officers and Employees Retirement System (SCOERS). In 1968 the college was separated from the School Board by the legislature, and became autonomous under its own Board of Trustees, which appointed the Petitioner as its college attorney. For four more years in this capacity, until 1972, the Petitioner continued to be enrolled as a member of SCOERS. The college's finances were examined on an annual basis by legislative auditors. As a result of these audits performed for fiscal years 1969-1970 and 1971-1972, the auditor commented adversely on the college's practice of processing the Petitioner's annual retainer as salary payments with applicable payroll deductions taken. When the Petitioner was employed by the college there was no change in his contract status relative to duties and responsibilities, and the college had continued to make retirement deductions for him the same as was done during his School Board employment. As a result of the adverse comments from the legislative auditor the college fiscal personnel considered whether the Petitioner's position was as an employee, or was contracted services. If the position of college attorney was to be on an employee basis, time reports would have to be maintained and other policies affecting employees would have to be adhered to. If the position was contracted services, compensation would have to be in a form other than salary payments. Based on these considerations, the college provided the Petitioner with a contract for one year with a stipulated retainer, and in 1972 the Petitioner was disenrolled from SCOERS. Alternatively, the college could have determined that the Petitioner's position was as an employee. Although the Petitioner was not formally notified of the action taken by the college, he and the college comptroller discussed the matter, and the Petitioner assumed he was going to have some problems. Subsequently, he noticed that his checks were a different color, and had different slots and blocks, but his secretary handled the deposit of the checks into his account, so little attention was paid to these changes, including the absence of a deduction for retirement. Sometime thereafter the Petitioner began to make inquiries of the college fiscal personnel relative to reentering the retirement system. However, no formal or written inquiry was made until 1978 when the Petitioner had been out of SCOERS for six years. During these years, and until 1979, the Petitioner's compensation arrangement with the college was by annual retainer for specified services, plus an hourly rate for special services. He has been and remains the senior partner of a law firm consisting of himself and four other attorneys. He is free to provide legal advice to and represent members of the public. This law firm maintains two offices, one in Hollywood and one in Fort Lauderdale, and the Petitioner has a private listing in the telephone directory. He has a $1,000 per month draw with his law firm, although he does not pay into the firm or contribute to its income substantially. When the Petitioner applied to get back into the retirement system, the college was given an Employment Relationship Questionnaire to complete, for the purpose of determining the facts relative to his eligibility. Among other information submitted by the college, it indicated that the Petitioner was engaged by the college on a part-time basis. In addition, in June of 1978, the president of the college analyzed the nature of the services rendered by the Petitioner as college attorney, and estimated that on a monthly basis he spent approximately 30 hours on routine and special issue work. Further, the Petitioner provides his own office space, library, secretarial assistance, and in his absence his law partner was available to advise the college, if necessary. Faculty members at the college have a 30 hour work week, and administrative staff personnel and other classified employees are required to work 37 1/2 hours per week. The Petitioner's relationship with the college does not require him to maintain any special working hours as other college employees are required to do. He is not subject to a pre-employment physical examination. He does not receive annual leave or sick leave. No written performance evaluations are prepared for the Petitioner, as is done for other college employees except the president. Accordingly, the Petitioner has not been a full-time employee of Broward Community College. In 1979 the college began making deductions from the Petitioner's payments as contributions to the Florida Retirement System, and these contributions were reported. As a result the Division of Retirement advised the Petitioner that he is not eligible for membership in the Florida Retirement System, and denied him reinstatement in SCOERS. Previously, in 1970, the Petitioner had rejected an opportunity to become a member of the Florida Retirement System. He has left his contributions of SCOERS on deposit. His contributions to the Florida Retirement System since 1979 are in the process of being refunded. Essentially, the Petitioner contends that he was disenrolled from membership in SCOERS by the college wrongfully, as a result of administrative error; the Respondent claims that there was no error because the Petitioner was not eligible for membership in the SCOERS retirement system, and does not meet the criteria for membership in the Florida Retirement System.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED, that the Petitioner, Donald W. Hulmes, be denied reinstatement in the State and County Officers and Employees Retirement System, and that he be denied membership in the Florida Retirement System. THIS RECOMMENDED ORDER entered on this 24th day of June, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1981. COPIES FURNISHED: M. Terry McNab, Esquire Post Office Box 12 Tallahassee, Florida 32302 Augustus D. Aikens, Jr., Esquire Division Attorney Division of Retirement Cedars Executive Center 2639 North ionroo Street Tallahassee, Florida 32303
