The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to Section 112.3173, Florida Statutes (2008).
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the joint pre- hearing stipulation1 of the parties, the following Findings of Fact are made: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent, Department of Management Services, Division of Retirement (Respondent or Division), is charged with managing, governing, and administering the FRS. Petitioner, Mr. Johnson Holsberry, Jr. (Petitioner or Mr. Holsberry), was formerly employed as a teacher at the West Area School of Choice by the Palm Beach County School Board (PBCSB). By reason of his employment with the PBCSB, Mr. Holsberry became a member of the FRS. As a teacher, Mr. Holsberry was subject to the Code of Ethics of the Education Profession in Florida found in Rule 6B- 1.001, Florida Administrative Code. As a teacher, Mr. Holsberry was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. On or about December 5, 2000, Mr. Holsberry resigned his teaching position with PBCSB. On or about October 24, 2001, Mr. Holsberry was charged, by amended information, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, with one count of child abuse, a third degree felony, in violation of Section 827.03(1), Florida Statutes. The same amended information is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. The victim of the alleged crime, R.D., was a female student at the Area School of Choice. In Palm Beach County, Florida, between the dates of January 1, 1999, and December 31, 1999, Petitioner, while teaching in a position of parental responsibility, was alleged to have had contact with R.D. and to have acted in such a manner as to cause mental injury to said child. On or about October 24, 2001, Mr. Holsberry entered an agreement with the State Attorney's Office wherein he agreed to plead guilty as charged in the amended information. The same plea agreement is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF- 001185. Mr. Holsberry's guilty plea was made freely and voluntarily. Mr. Holsberry pled guilty because he was in fact guilty. On or about October 24, 2001, Mr. Holsberry was adjudicated guilty. The same judgment is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. On or about January 8, 2001, Mr. Holsberry applied to the Division for early service retirement from the FRS and began receiving retirement benefits. The Division suspended payment of Mr. Holsberry's monthly retirement benefits in June 2008. By certified letter dated June 13, 2008, Mr. Holsberry was notified of the Division's intended action to forfeit his FRS rights and benefits as a result of his guilty plea in the case styled and numbered State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. At the hearing, Mr. Holsberry testified that R.D. was in his classroom a few times, but that he was not sure of the year, frequency, or why she was there. He testified that he does not remember taking a picture of R. D. sitting at his desk, but that might have taken place. Mr. Holsberry also testified that he does not recall permitting R. D. to access her email from his classroom, or inviting her to join him on trips, to come to his home, or otherwise to meet him any place outside of the school. Mr. Holsberry testified that he does not recall giving R. D. his home telephone number. He recalls having an email screen name of Sameagle1, but does not recall whether he emailed R. D. from that email address or whether he had another screen name, Gutster. He testified that he does not recall referring to himself as H-Man (although he said some students called him "Mr. H.") or referring to R.D. as "Dukey Dufus." In general, Mr. Holsberry's testimony that he does not recall his actions that ultimately ended his career as a teacher is not credible. Mr. Holsberry noted that R.D. was not officially assigned to any of his classes, so that he was not responsible for her education, nor was he involved with her in any after school program that would have made him responsible for her welfare. Mr. Holsberry testified that he probably would not have met R.D. but for his position as a teacher at her school. He also recalled having being interviewed by an investigator named Green. Angelette Green, an employee of the Palm Beach County School District for 15 years, was the investigator assigned to Mr. Holsberry's case. Detective Green testified that Mr. Holsberry admitted that he helped R. D. set up an email account, communicated with her by email, including having sent by internet a picture of her taken in his classroom. She also testified that she remembers emails inviting R. D. to go somewhere. She said Mr. Holsberry called R. D. "Dukey Dufus" after he sent her an email and she questioned who it was from. On July 30, 2002, an Administrative Complaint was filed by the Commissioner of Education seeking disciplinary sanctions against Mr. Holsberry's license based on allegations of professional misconduct. Mr. Holsberry did not contest the disciplinary matter, having already agreed to surrender permanently his teaching certificate as a part of his plea agreement. The Education Practices Commission entered a final order permanently revoking his teaching certificate. On October 24, 2001, a plea conference was held on the following charge: Amended Information For: CHILD ABUSE In the Name and by the Authority of the State of Florida: BARRY E. KRISCHER, State Attorney for the Fifteenth Judicial Circuit, Palm Beach County, Florida, by and through his undersigned Assistant State Attorney, charges that JOHNSON LEO HOLSBERRY JR. on or between January 01, 1999 and December 31, 1999, in the County of Palm Beach and State of Florida, did knowingly or willfully, intentionally inflict physical or mental injury upon R.D., a child, {or} did an intentional act or actively encourage another to do an act that results or could reasonably be expected to result in physical or mental injury to R.D., a child, contrary to Florida Statute 827.03(1). (3 DEG FEL) At the plea conference, the following exchange occurred: [By Mr. Jaegers, Assistant State Attorney:] The defendant will be adjudicated guilty of the offense; he will be placed on five years probation. There will be no early termination contemplated. The defendant will be required to pay Court costs in the amount of $261.00, $50.00 to the Drug Trust Fund, $50.00 cost of prosecution. The defendant must undergo a psychological evaluation and successfully complete any recommended treatment. * * * The defendant is to surrender all and not seek at any time in the future any teaching certificates in any jurisdiction in the world. There will be no contact with children under 18 unless they're in the presence of an adult who is aware of these charges. And those are the terms of the negotiated settlement. The facts in this case, Judge, are that the defendant, Johnson Leo Holsberry, Jr., did in Palm Beach County, Florida, on, between the dates of January 1, 1999 and December 31st, 1999, while teaching in a position of parental responsibility, in that capacity had contact with a juvenile female by the name of, or by the initials of SRD, I think it's on the plea sheet. MR. WILINSKEY [Counsel for Mr. Holsberry] That's right. MR. JAEGERS: -- RD, and did act in a manner such as to cause mental injury to said child. The -- those are the facts that occurred in Palm Beach County. THE COURT: Sir, raise your right hand, please. JOHNSON LEO HOLSBERRY, JR. BEING FIRST DULY SWORN BY THE COURT, TESTIFIED AS FOLLOWS: THE COURT: Your name? THE DEFENDANT: Johnson Leo Holsberry, Jr. THE COURT: How old are you? THE DEFENDANT: 62 * * * THE COURT: Do you understand what the things are you have to do? THE DEFENDANT: Yes, sir. THE COURT: Are you pleading guilty because you are guilty? THE DEFENDANT: Yes. THE COURT: Do you agree with the facts the State Attorney gave me as the basis for your plea of guilty? THE DEFENDANT: Yes, sir.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 24th day of July, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 24th day of July, 2009.
The Issue An Administrative Complaint dated October 21, 1998, alleges that Respondent committed violations of Chapter 475, Florida Statutes, by dishonest dealing, culpable negligence, or breach of trust; by failing to account for delivering certain funds; and by violating a lawful order of the Real Estate Commission. The issues in dispute are whether those violations occurred and if so, what penalty is appropriate.
Recommendation Based on the foregoing it is, hereby RECOMMENDED: that the Agency enter its Final Order finding Respondent did not commit the alleged violations and dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 day of April, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Howard Hadley, Esquire 2352 Carolton Road Maitland, Florida 32751-3625 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: At all times material hereto, the Respondent held teaching certificate number 498171, issued by the Department of Education for the State of Florida. The Respondent's teaching certificate covers the areas of mathematics and physics. The Respondent was hired in mid-October of 1984 to teach chemistry and physics for the 1984-85 academic year at Pompano Beach High School. During a science experiment at a fifth period advanced physics class on December 19, 1984, a student asked Respondent if alcohol could be brought to the class Christmas party scheduled for December 20, 1984. The Respondent replied that students could bring alcohol but that hard liquor would not be allowed. Prior to December 20, 1984, the Respondent announced to his third period class that there would be a party during his fifth period class on December 20, 1984, and that students who wished to come to his fifth period class to participate in the party would be permitted to do so. The Respondent stated that, if necessary, he would write "passes" for students who wanted to attend. On December 19, 1984, the Respondent announced to his seventh period class that some of his other classes were having parties the following day and that they too could have a party on December 20, 1984, and could bring beer if they wanted to do so. On December 20, 1984, the Christmas party in Respondent's fifth period class went on as scheduled. During the fifth period class, several students took a collection for money which was to be used to purchase beer. After the money was collected, the Respondent allowed the students to leave the class in order to purchase the beer. The students later returned with a case of Budweiser beer in a duffle bag. Approximately seventeen students participated in drinking the beer. The Respondent also drank one of the beers. During the party, there were several students in the classroom who were not assigned to the fifth period class, but were in other classes. While the party was taking place, the Respondent permitted the doors of the classroom to be locked and the window panes in the doors to be covered with paper so as to avoid detection from other faculty members and/or members of the administration. Nevertheless, the fifth period Christmas party was interrupted by the assistant principal and a security guard. As a result of the fifth period Christmas party, seventeen students were suspended. None of the students in the Respondent's fifth period class were of legal age to either possess or consume alcoholic beverages. On January 7, 1985, after an investigation had been completed through the office of the associate superintendent for personnel, the Respondent submitted his letter of resignation. This letter of resignation was accepted by the Broward County School Board. Pursuant to School Board policy, a student is allowed to be out of the class to which he is assigned only if he is called from one of the offices on the intercom to report to a different place. Pursuant to School board policy, if a teacher allows a student to leave the campus, the teacher is required to have the student sign in and out at the assistant principal's office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that JERRY JULIUS GOLD's teaching certificate be permanently revoked. DONE and ORDERED this 15th day of September, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 15th day of September, 1986. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Jerry Julius Gold, pro se Post Office Box 941 Nederland, CO 80466 Honorable Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301 Marlene Greenfield Administrator Department of Education Professional Practices Services 319 West Madison Street, Room #3 Tallahassee, Florida 32301
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On November 19, 2008, Respondent Monroe County (County) adopted an amendment to its comprehensive plan by Ordinance No. 029-2008 (Amendment). The Department reviewed the Amendment, determined that it did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not ‘in compliance.” The Department then instituted this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. On May 19, 2010, the County repealed the Amendment by Ordinance No. 016-2010. By virtue of this rescission, the FINAL ORDER No. DCA10-GM-121 instant controversy has been rendered moot, and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department).
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. 3 of 5 FINAL ORDER No. DCA10-GM-121 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of , 2010. Paula Ford Agency Clerk By U.S. Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Robert B. Shillinger, Jr., Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Derek V. Howard, Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Christine Hurley, AICP Growth Management Director Monroe County 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 4 of 5 By Hand Delivery Richard E. Shine Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 FINAL ORDER No. DCA10-GM-121
Findings Of Fact The Respondent. The Respondent, Ilene Lieberman, is the Mayor of the City of Lauderhill, Broward County, Florida (hereinafter referred to as the "City"). The City is a municipal government in the State of Florida. The Respondent has served as Mayor of the City since March of 1988. For approximately four years prior to her election as Mayor, the Respondent served on the City Council of the City. At all times relevant to this proceeding, the Respondent served as Mayor of the City or on the City Council of the City. The Initial Accusation of Sexual Harassment and the Decision to Investigate. From approximately 1988 to 1990, Vita Gunther was employed in the Finance Department of the City as a property control clerk. While employed in the City Finance Department, Ms. Gunther's immediate supervisor was Michael Arciola. Michael Arciola was employed by the City as finance director for the City on March 5, 1981. On Tuesday, July 12, 1988, Ms. Gunther requested a meeting with Robert Lee, assistant to the Respondent. Mr. Lee served as assistant to the Mayor of the City from 1984 to 1990. Mr. Lee was first hired as assistant to the Mayor by David Kaminsky, the Respondent's immediate predecessor. During the July 12, 1988, meeting with Mr. Lee, Ms. Gunther complained about the manner in which Mr. Arciola treated her as an employee. Ms. Gunther was upset and told Mr. Lee that Mr. Arciola's treatment of her made her feel very uncomfortable. Mr. Lee asked Ms. Gunther questions and she began to relate specific examples of Mr. Arciola's conduct, which will be described, infra. Following the July 12, 1988, meeting, Mr. Lee contacted Attorney Richard Weiss to determine how Ms. Gunther's complaint should be handled. Mr. Lee attempted unsuccessfully to contact Mr. Weiss on July 12, 1988. Mr. Lee speak to Mr. Weiss on July 13, 1988. Richard Weiss was an attorney hired by the City to provide legal counsel regarding labor matters. Mr. Weiss had been hired by the Respondent's predecessor in approximately 1987. Mr. Lee met with Ms. Gunther again on July 13, 1988. They met at a restaurant during Ms. Gunther's lunch break because Ms. Gunther wanted her complaint to remain confidential. During the July 13, 1988, meeting between Ms. Gunther and Mr. Lee, Mr. Lee, upon the advice of Mr. Weiss, took notes of the events which Ms. Gunther related to him. Ms. Gunther made the following allegations against Mr. Arciola during the July 13, 1988, meeting with Mr. Lee: Mike Arciola, the City's Finance Director and Vita's immediate supervisor called her at home on numerous occasions since she has worked for the City is working for City approximately one year. When Mike called, he asked whether he could come over to her house or go out to dinner with her. The most recent call was approximately 2 to 3 weeks ago. He again asked her out to dinner and when she refused, (as she always does), he asked whether he could come over to help her pack, as he knew she was planning to move to another house. She again said no, and explained to him that she wants nothing more than an employee/ employer relationship. Since that time, Mike has been very dictatorial, abrupt, and demanding of her work. She has gone home crying the last two nights. Up until 2 to 3 weeks ago, he made her feel uncomfortable by saying she smells nice, that she has a nice smile and a great body. She says that he has not threatened her job. As soon as Mike becomes aware that she is dating, he becomes short and dictatorial. She said she has never attended any functions with him, although asked many times. She said at Christmas he gave everyone in the department a basket of goodies: hers was the only one that included a stuffed animal. She claims she received a card which contained language that should not be given to an employee. She kept card. She said that Mike has talked to Valerie, a co-worker of Vita's, and told her that he's not getting to first base with Vita nor getting the time of day. Vita said that Valerie told her that this kind of harassment [sic] was the reason Mike's former secretary left. Mike also talked to another co-worker, Ruby, about Vita. Vita's roommate (female) and Vita's 12 year old daughter know of Mike's calls. Vita is afraid of Mike. She's afraid he will force her out of her job if she testifies. She's willing, though, to sign statement. The foregoing allegations were included in a document which Ms. Gunther swore to and signed on July 18, 1988. See Exhibit 5. The greeting card Ms. Gunther referred to in her statement included the following: In April, you can fool some of the people some of the time, and you can fool all of the people all of the time . . . and you can fool most of the people part of the time, and you can fool a lot of other people most of the time . . . . But you can fool around with me anytime! Happy April Fools' Day! Mr. Arciola acknowledged that he sent this note to Ms. Gunther. At the close of the meeting with Ms. Gunther on July 13, 1988, Mr. Lee told Ms. Gunther that the allegations were serious enough to require that he advise the Respondent. Ms. Gunther voiced not objection. Following the July 13, 1988, meeting with Ms. Gunther, Mr. Lee met with the Respondent and the City personnel director, Fritz Richter. Mr. Lee informed the Respondent of his meetings with Ms. Gunther and her allegations. Mr. Lee read his notes from his meeting with Ms. Gunther to the Respondent. During the meeting between Mr. Lee, the Respondent and Mr. Richter, on July 13, 1988, the Respondent spoke with Richard Michelson. Richard Michelson is the City Attorney for the City. Mr. Michelson has served as City Attorney since June 1, 1988. The Respondent, on advice from Mr. Michelson, also spoke to Mr. Weiss by telephone. Mr. Weiss advised that Ms. Gunther's allegations should be reduced to writing and should be sworn to by Ms. Gunther. The allegations made by Ms. Gunther were reduced to writing and were signed under oath by Ms. Gunther on Monday, July 18, 1988. Ms. Gunther's statement has been included in finding of fact 16, supra. The Respondent directed that the allegations made by Ms. Gunther be investigated. Based upon the information provided to the Respondent on July 13, 1988, she reasonably concluded that the allegations were serious and should be investigated. The Decision to Suspend Mr. Arciola. Because of concerns expressed by Ms. Gunther and Mr. Weiss's advice, the Respondent decided that Ms. Gunther should not be required to return to her normal assignment to Mr. Arciola. On or about July 13 or 14, 1988, the Respondent assigned Ms. Gunther to a special project and told Ms. Gunther not to go back to her normal assignment. Ms. Gunther was told to report directly to the Respondent. The Respondent also informed Mr. Arciola that Ms. Gunther had been assigned to a special assignment and that Ms. Gunther would not be able to communicate with Mr. Arciola while on the special assignment. Mr. Arciola was not informed of the real reason that Ms. Gunther had been reassigned. The Respondent's action in reassigning Ms. Gunther were reasonable in light of the accusations Ms. Gunther had made and based upon the advice of counsel that to leave Ms. Gunther under Mr. Arciola's supervision after officials of the City had been made aware of the accusations would jeopardize the City's liability for any harm Ms. Gunther might be subjected to. The Respondent's action in reassigning Ms. Gunther and her instructions to Mr. Arciola were consistent with her power as Mayor. On July 14 or 15, 1988, Ms. Gunther informed Mr. Lee that Mr. Arciola had attempted to contact her. Ms. Gunther asked Mr. Lee what she should do. Based upon instructions from the Respondent, Mr. Lee met with Ms. Gunther and the City personnel director and instructed Ms. Gunther not to return Mr. Arciola's telephone calls or see him. Mr. Lee, in the presence of the personnel director, telephoned Mr. Arciola and reminded him of the Respondent's instructions about not contacting Ms. Gunther. The Respondent also reminded Mr. Arciola that he had been instructed not to contact Ms. Gunther. Mr. Arciola became abusive and, in blatant disregard for lawful instructions from the Respondent, indicated that he intended to reprimand Ms. Gunther if Ms. Gunther did not follow his instructions. On the morning of July 18, 1988, Mr. Arciola was waiting at the time clock when Ms. Gunther arrived at work and he gave her a letter of reprimand. In blatant disregard for the Respondent's orders to Mr. Arciola and, in an extreme case of overreaction, Mr. Arciola formally reprimanded Ms. Gunther for following the Respondent's orders and not his. Mr. Arciola informed Ms. Gunther, in part, as follows: You are charged under Civil Service Rules and Regulations, Separation, Retirement and Disciplinary Action, Section 4, Dismissal for: Willful violation of any lawful and reasonable regulation, or order or direction made or given by a superior officer where such violation has amounted to insubordination or serious breach of proper discipline or has resulted in loss or injury to the public. Failure to follow established Personnel Policy and Procedures. Exhibit 8. Mr. Arciola went on to state: I am really disappointed with you in the manner in which you have conducted yourself during the past two days, and I am sorry that the Mayor has created this terrible situation with a member of my staff who I regarded as a trusted employee. Mr. Arciola knew that Ms. Gunther had been told not to return his telephone calls and not to obey his orders. Mr. Arciola's action in reprimanding Ms. Gunther, despite his knowledge as to why she had not obeyed him, corroborated Ms. Gunther's allegations about Mr. Arciola. Ms. Gunther informed the Respondent of the formal reprimand from Mr. Arciola. After learning of Mr. Arciola's reprimand, the Respondent decided to suspend Mr. Arciola with pay on July 18, 1988. The reason why the Respondent suspended Mr. Arciola was explained by the Respondent as follows: A. After Vita had come up that morning with the memo on insubordination, we immediately tried to reach Rick Weiss as what do we do next? We told him to stay away from her. We told him not to have any contact. I specifically told him not to cite her for insubordination, which he threatened to do on Friday. He waist for her at the time clock and hands her this memo, which he was told Friday not to do. How am I going to calm Vita down and make sure that she doesn't feel that he's going after her and investigate her allegations when he's not following simple requests like, don't have any contact with her? And Mr. Weiss just said to us, you're not going to be able to do an investigation unless you suspend him. We suspended him with pay. We didn't suspend him without pay. Reason being is at that point all we had were allegations. We had not reached a determination as to whether or not the allegations were substantiated. So until we did that we suspended him with pay so that he would not be present at his job and we could conduct the investigation. Because Vita was going crazy as he pulled each new stunt. Deposition of the Respondent of July 1, 1991, page 87, lines 4-25 and page 88, lines 1-2. Mr. Weiss and Mr. Lee both recommended to the Respondent that she suspend Mr. Arciola before she made her decision. The Respondent's action in suspending Mr. Arciola was reasonable in light of the information she had at the time and Mr. Arciola's bizarre behavior. The Respondent's action tended to protect Ms. Gunther and the City, and was fair to Mr. Arciola. Mr. Arciola met with the Respondent and Mr. Lee sometime on July 18, 1988. Mr. Arciola was given a memorandum from the Respondent informing him that he was being placed on leave with pay, that he had been charged with sexual harassment of a subordinate female employee (Ms. Gunther) and that a pre- termination meeting had been scheduled for July 22, 1988, at which Mr. Arciola could respond to the charges. Exhibit 9. At the time that the Respondent gave Mr. Arciola Exhibit 9, the Respondent told Mr. Arciola that she did not know whether the allegations against him were true but that if he wanted an opportunity to resign she would give him such an opportunity. This action was reasonable in light of the aggravation to the City, the individuals involved and others that the Respondent probably anticipated would follow and, in fact, has followed as a result of Mr. Arciola's actions. Mr. Arciola ultimately informed the Respondent that he did not intend to resign. On July 20, 1988, upon the advice of Mr. Weiss, the Respondent sent Mr. Arciola a letter setting out in more detail the charges against him. Mr. Arciola was again informed that it had been recommended that he be terminated from employment with the City and he was reminded of his opportunity to explain his position on July 22, 1988, in person and/or in writing. Exhibit 11. The Respondent's action in sending the July 20, 1988, letter was reasonable. The Investigation of Mr. Arciola. Mr. Weiss essentially directed the course of the investigation ordered by the Respondent. Interviews with various employees were conducted. On July 13, 1988, at approximately 5:00 p.m., Mr. Lee met with Valerie McCormick, a City employee who worked for Mr. Arciola. Mr. Lee took notes of this meeting. The meeting was also attended by the personnel director. During Mr. Lee's meeting with Ms. McCormick, she made the following allegations: Valerie said: She's aware of a problem between Mike [Arciola] and Vita [Gunther]. She said it's sexual harassment. She said she found out because both Vita and Mike have spoken to her. Valerie says that Mike told her he tries calling Vita at home and that he loved her. Valerie says Mike has told her that he's a very unhappy man with his home life (he's married) and that there is trouble between he and his wife. Valerie has witnessed Mike being very nasty to Vita since Vita was truthful with him about her feelings. Valerie said she witnessed the same sequence of events with Mary Mann, Mike's former secretary. Valerie said although she has no trouble with Mike, she feels it's because she won't let him and because she is much older. Valerie is willing to sign statement, but she's concerned about what would happen to her if Mike keeps his job after she does this. See Exhibit 7. These allegations were included in a statement which Ms. McCormick signed and swore to on July 18, 1988. Ms. McCormick's allegations corroborated some of the allegations against Mr. Arciola made by Ms. Gunther. Mr. Lee's involvement in the investigation was diminished after July 14, 1988, because of the City Attorney's involvement. The City Attorney actually carried out the investigation. On July 18, 1988, Phyllis Schneps, signed a sworn statement which corroborated Ms. Gunther's allegations concerning Mr. Arciola's rude treatment of female employees, including Ms. Gunther. On July 19, 1988, Mr. Michelson and the Respondent spoke with Ruby Levy, an employee of the City. Ms. Levy made the following statement during this meeting which she signed and swore to: I am the Director of Purchasing of the City of Lauderhill. Vita Gunther told me of the conduct of Michael Arciola towards here at the Lauderhill City Christmas party in 1987. I did not personally witness any of the incidents. After the 1987 Lauderhill Christmas party, Michael Arciola asked me to talk to Vita Gunther to attempt to encourage her to socialize with Arciola outside of their City employment, in effect to "date" Michael Arciola. For five years Michael Arciola has talked to me about his unhappiness with his current marriage. Mary Mann told myself and Valerie McCormick that Michael Arciola wanted to date her. Valerie McCormick told me she witnessed Michael Arciola treating Mary Mann very badly. See Exhibit 10. Ms. Levy's statement corroborated some of the allegations made by Ms. Gunther and Ms. McCormick. On or about July 27, 1988, the following statement, which had been signed under oath, was provided to the City Attorney by Mr. Arciola's attorney: BEFORE ME personally appeared Christopher Cannon, Esquire, who deposes and states: That I am legal counsel for a respected member of the community, whose name shall remain undisclosed. That Vita Gunther was employed by my client prior to her employment with the City of Lauderhill. That my client was charged by Vita Gunther with sexual misconduct and/or sexual harassment on or about February, 1987. That my client's reputation was extremely damaged as a result of Vita Gunther's mis-accusations. Furthermore, my client's family suffered a great deal of anxiety and damage as a result of Vita Gunther's mis-accusations. My client, wishes to remain undisclosed as to not cause further damage to himself or his family. However, my client feels compelled to come forward in an effort to inform the City of Lauderhill of Vita Gunther's background. Exhibit 13. Mr. Arciola's attorney also provided an affidavit from Mary Mann, a/k/a Mary Jones, a former secretary of Mr. Arciola mentioned in the statements of Ms. Gunther and Ms. McCormick, refuting the allegations Ms. Gunther and Ms. McCormick had mad about Mr. Arciola's treatment of Ms. Mann. On July 28, 1988, Ms. Gunther gave a sworn statement to the City Attorney. In this statement, Ms. Gunther was asked about the allegations contained in Mr. Cannon's statement. Ms. Gunther gave a reasonable explanation. Based upon this explanation and the lack of reliability of Mr. Cannon's anonymous hearsay accusations, the City Attorney concluded that little weight should be given to Mr. Cannon's statement. The City Attorney informed the Respondent, who had expressed concern about Mr. Cannon's statement, of his conclusions about Mr. Cannon's statement and the Respondent reasonably relied upon the City Attorney's conclusion about the statement. In the July 28, 1988, statement, Ms. Gunther also confirmed her previous statements and essentially corroborated previous accusations she and others had made against Mr. Arciola. Ms. Gunther also made additional specific allegations about Mr. Arciola's inappropriate behavior. Those allegations are set out in some detail in the Advocate's and Respondent's proposed finding of fact 25. The summary of the allegations contained in proposed finding of fact 25 is a fair and reasonable summary and is hereby incorporated into this finding of fact. It is not necessary to decide whether the allegations are true and no such finding is made. What is relevant to this proceeding is that the allegations were made by Ms. Gunther under oath and the Respondent was made aware of the allegations. At some point after Mr. Arciola was suspended and during the investigation which followed, Mr. Arciola provided the City Attorney an Affidavit Mr. Arciola had executed on July 27, 1988. The Affidavit was provided in lieu of the pre-termination meeting the Respondent had offered. Exhibit 14. In Mr. Arciola's Affidavit, he set out some of the events leading up to the Affidavit, denied the charges against him, addressed some of the specific allegations made by Ms. Gunther, Ms. McCormick, and Ms. Ruby and made accusations against Ms. Gunther's character. Some of the statements made by Mr. Arciola corroborated the sexual harassment charges against him. Most, if not all, of the statements in the Affidavit did little to prove that he did not sexually harass Ms. Gunther. After Ms. Gunther learned of the accusations Mr. Arciola had made about her in his Affidavit and to the press, Ms. Gunther made allegations about possible illegal gambling activities of Mr. Arciola. Consequently, on August 3, 1988, the City Attorney took another sworn statement from Ms. Gunther and on August 19, 1988, the State Attorney's office took another sworn statement from Ms. Gunther. Exhibits 16 and 17. Ms. Gunther's Cold Feet. At some point in the investigation, after all the accusations between Mr. Arciola and Ms. Gunther began to fly, after various City employees began making statements, favorable and negative, to Ms. Gunther and after the investigation began to proceed in a more serious and formal fashion than Ms. Gunther had anticipated, Ms. Gunther told the City Attorney that she was having doubts about whether she wanted to proceed. Ms. Gunther had also been pressured by at least one mutual friend of Mr. Arciola and Ms. Gunther to drop the charges against Mr. Arciola. The City Attorney suggested that Ms. Gunther speak to the Respondent. Therefore, Ms. Gunther and the City Attorney met with the Respondent and Ms. Gunther expressed her concerns. The Respondent informed Ms. Gunther that she could, of course, now indicate that her accusations against Mr. Arciola were incorrect but that the City could not simply drop its investigation. The Respondent explained to Ms. Gunther the potential liability of the City if it did not proceed with the investigation and the potential harm to other female employees if the charges were not fully investigated. The weight of the evidence failed to prove that the Respondent threatened Ms. Gunther in any manner when Ms. Gunther questioned whether the charges against Mr. Arciola could be dropped. The Decision to Fire Mr. Arciola. On August 12, 1988, the Respondent suspended Mr. Arciola's employment with the City. At the time of this action, it was believed that the Respondent's action would require confirmation by the City Council. The Respondent's decision to suspend Mr. Arciola was based upon the events and information described in the foregoing findings of fact, all of which the Respondent was aware of at the time of her decision. The Respondent's decision was made after consultation with Mr. Weiss, the City Attorney, the personnel director and Mr. Lee. None of these individuals advised the Respondent that suspending Mr. Arciola was inappropriate. Mr. Lee in fact recommended that Mr. Arciola be terminated. The weight of the evidence failed to prove that the Respondent's decision on August 12, 1988, to terminate Mr. Arciola's employment with the City or any other action that the Respondent took up to that date was unreasonable. The weight of the evidence also failed to prove that the Respondent's decision on August 12, 1988, to terminate Mr. Arciola's employment with the City or any other action that the Respondent took up to that date was based upon any falsified, fabricated or misrepresented allegations against Mr. Arciola. The City Council's Refusal to Confirm the Decision to Terminate Mr. Arciola. Although there is now some doubt as to whether required, the Respondent's decision to terminate Mr. Arciola was scheduled to be considered for confirmation before the City Council. Prior to the meeting at which the Respondent's decision was to be reviewed, Mr. Weiss telephoned one of the City Councilmen, John Brown. During this telephone call, Mr. Weiss informed Mr. Brown that Ms. Gunther had told him that she had dated Mr. Brown. Mr. Brown accused Mr. Weiss of attempting to blackmail him. Mr. Weiss contended that he was merely warning Mr. Brown so that he would not be surprised at the City Council meeting. The City Attorney later attempted to convince Mr. Brown that Mr. Weiss was not attempting to blackmail him; that Mr. Weiss had merely wanted to warn him. It is doubtful that Mr. Weiss was attempting to blackmail Mr. Brown. Such an attempt would have been incredibly stupid to make, Mr. Weiss would have to somehow control what Ms. Gunther said during the City Council meeting, there was a possible explanation for Ms. Gunther's comments and nothing wrong with any involvement Mr. Brown had had with Ms. Gunther, and there were others who know about the date that Ms. Gunther and Mr. Brown went on (a City picnic). It is not necessary to decide why Mr. Weiss called Mr. Brown. Regardless of whether Mr. Weiss was attempting to blackmail Mr. Brown, the weight of the evidence failed to prove that the Respondent had anything to do with the telephone conversation or the fact that Mr. Weiss spoke with Mr. Brown. On September 1, 1988, the City Council met and considered whether the Respondent's decision to suspend Mr. Arciola should be confirmed. The members of the City Council who participated in the decision of whether to confirm the Respondent's decision to terminate were Howard Berger, John Brown, Ben Dansker, Richard Kaplan and Matt Meadows. Councilmen Berger, Brown (despite his prior personal relation with Ms. Gunther), and Dansker voted against confirming Mr. Arciola's termination. Therefore, Mr. Arciola was reinstated as the Financial Director of the City. The weight of the evidence failed to prove that the City Council failed to confirm the Respondent's decision to terminate because the Respondent had falsely accused Mr. Arciola of sexually harassing Ms. Gunther or because the Respondent had taken any other actions in order to force Mr. Arciola to resign his position as Financial Director for the City. At best, the weight of the evidence proved that the City Council failed to confirm the Respondent's decision to terminate for political reasons (at least one City Councilman, Mr. Brown, intensely disliked the Respondent), because some City Councilmen were biased and had a preconceived position about the allegations against Mr. Arciola or because no evidence was presented to the City Council concerning the allegations against Mr. Arciola. Mr. Arciola was reinstated to his position with the City as a result of the City Council's action on September 1, 1988. Mr. Arciola remained in his position with the City until approximately September, 1989, when he resigned to take another position. Arciola's Attempt to Get Even. On January 24, 1990, Mr. Arciola filed a Complaint against the Respondent with the Commission. In the Complaint, Mr. Arciola accused the Respondent of maliciously and falsely accusing him of sexual harassment against Ms. Gunther and other actions in an attempt to force him to resign as Finance Director of the City. In support of Mr. Arciola's Complaint, he presented an affidavit from Anthony Peccia dated December 21, 1989. Mr. Peccia contended that the Respondent asked him to lie during the City Council meeting of September 1, 1988. Ms. Gunther had made certain allegations about Mr. Peccia's involvement in this matter, i.e., that she told Mr. Peccia that Mr. Arciola was harassing her and that Mr. Gunther asked Mr. Peccia to speak to Mr. Arciola about it. At best, Mr. Peccia's sworn statement indicates that the Respondent and Mr. Weiss believed Ms. Gunther, asked Mr. Peccia to confirm her statements and, when he refused, assumed that he was concerned about being fired. Mr. Arciola also filed an affidavit from John Brown dated December 21, 1989, with the Complaint. Mr. Brown's affidavit contains allegations concerning the telephone call from Mr. Weiss discussed, supra. Finally, Mr. Arciola filed an affidavit from Ms. Gunther which she signed on December 20, 1989, in which Ms. Gunther stated the following: I never accused Michael Arciola of sexual harassment. Mayor Lieberman threatened me that if I was to drop this case, I would be fired. Exhibit 1. Ms. Gunther's statement that she never accused Mr. Arciola of sexual harassment is not totally accurate. Ms. Gunther did, in fact, make such an accusation in her sworn statement of July 28, 1988. Ms. Gunther subsequently explained that what she meant when she said that she had not accused Mr. Arciola of sexual harassment was that when she first went to Mr. Lee she had merely attempted to get Mr. Arciola to quite treating her so mean. Ms. Gunther's statement concerning the Respondent's alleged threat is based upon the events described in findings of fact 60-63. The weight of the evidence failed to prove that any such threat was made by the Respondent. Ms. Gunther's statement is not credible in light of all of the events which led up to Mr. Arciola's termination and the events which have occurred since Ms. Gunther's December 20, 1989, statement. The Respondent was not aware of Mr. Peccia's statement of December 29, 1989, or Ms. Gunther's statement of December 20, 1989, when she took action against Mr. Arciola. These statements fail to prove that any action taken by the Respondent against Mr. Arciola was unreasonable or that she used her position in any manner to harm Mr. Arciola. The Final Word. On July 1, 1991, Ms. Gunther's testimony was taken by deposition. Ms. Gunther's testimony on July 1, 1991, corroborates her previous statements, including her statement to Mr. Lee which she signed on July 18, 1988, and she continued to stand by those statements. Conclusion. The weight of the evidence failed to prove that the Respondent maliciously or falsely accused Mr. Arciola of sexual harassment or took any action against Mr. Arciola which was not reasonable or in any way intended to wrongfully force Mr. Arciola to resign his position with the City. The weight of the evidence failed to prove that the Respondent used her public position to secure a special privilege, benefit or exemption for herself or others, or that she acted with a wrongful intent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the evidence failed to prove that the Respondent, Ilene Lieberman, violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 90-19. DONE and ENTERED this 2nd day of October, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Joint Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. Hereby accepted. 20 and hereby accepted. To the extent relevant, accepted in 8-9. To the extent relevant, accepted in 12. 7 7, 64 and 78. 8 5. 9 8 and 10. 10 12. 11 14. 12, page 5 Hereby accepted. 12, page 6 14-15. 13 17. 14 15-16. 15 87. 16-17 Hereby accepted. 18 25. 19 27. 20 30-31. 21 32-33. 22 34. The reprimand occurred on July 18, 1988, instead of July 28, 1988. 23 37. 24 54. 25 54-55. 26 87. 27 See 82-83. 28 46. 29 48. 30 44. 31 64. 32 68 and 88. 88 and hereby accepted. 89 and hereby accepted. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 Samuel S. Goren, Esquire 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 33308 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
