Findings Of Fact George Jenkins filed an application for licensure with the Department of State for a Class "A" private investigative agency license. Jenkins is qualified in every respect with the exception of his experience, which is at issue and concerning which further findings are made below. Jenkins served in the Air Police of the United States Air Force from 1953 until 1957. He performed those duties generally performed by military policemen from November 17, 1953, until February of 1957. These duties are generally patrol and guard functions as opposed to criminal investigation. Jenkins worked for Montgomery Ward in Lakeland, Florida, for 1.5 weeks; Wooco in Lakeland, Florida, for 11 weeks; and Imperial Bank in Lakeland, Florida, for 12 weeks. His duties were those of a security guard. Jenkins worked in Florida for Wheeler and Associates from June 30, 1975, until June 30, 1976, repossessing cars. He then worked for Frontier International Investigations in Florida from July 1, 1977, until December 15, 1977, repossessing automobiles. Jenkins also repossessed cars for American Bank of Lakeland from 1973 to January of 1980; Barnett Bank of Lakeland from 1975 until 1979; Mid-Florida Schools Federal Credit Union from 1975 until February of 1980; First District DOT Employees Credit Union from February, 1975, until February, 1980; and Publix Employees Credit Federal Credit Union from July, 1974, until January of 1980. All these businesses are located in Florida. Jenkins seeks to obtain the Class "A" license to continue his business repossessing cars. The record reflects that he has been self-employed and employed by other Class "A" licensees to perform the business since 1973. While Jenkins is a full-time employee of the United State Post Office, there is no question that this has been a major part-time occupation. Jenkins' service with the United State Air Force together with his approximately six months' experience as a security guard and his part-time self- employment and employment with others repossessing cars would meet the total experience requirement of three years, and clearly well over one year of that experience has been in Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State grant the application of George Jenkins for licensure as a class "A" private investigative agency. DONE and ORDERED this 13th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Jonnie M. Hutchison, Esquire 145 East Haines Boulevard Post Office Box AL Lake Alfred, Florida 33850
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petition for Determination of the Invalidity of the existing Rules 6A-14.416 and 6A-14.417, Florida Administrative Code, for allegedly being in violation of the provisions of Section 120.56, Florida Statutes. The Petition was filed on September 22, 1978 and the hearing was conducted on October 20, 1978. The hearing rises out of the collateral Section 120.57(1), Florida Statutes hearing in which an administrative complaint had been filed under the guise of Rule 6A-14.416, Florida Administrative Code, (in addition to certain statutory authority) against the current Petitioner, Gregory Bruce Nelson. During the course of that hearing it developed that Gregory Bruce Nelson, through his affirmative defenses to the Complaint, wished to challenge Rule 6A-14.416, Florida Administrative Code for alleged violation of Section 120.56, Florida Statutes. In response to that challenge, the Section 120.57(1) hearing, (which is reported as Lee G. Henderson, as Director of the Division of Community Colleges, Petitioner, vs. Gregory Bruce Nelson, Respondent, DOAH Case Number 78-283), has been stayed pending the outcome of the case sub judice. An order was entered by the undersigned allowing for sufficient time to file the Section 120.56, Florida Statutes challenge to Rule 6A-14.416, Florida Administrative Code and Mr. Nelson has complied with the terms and conditions of that order as to timeliness of the Petition for review pursuant to Section 120.56, Florida Statutes. Concurrently, Mr. Nelson has availed himself of the opportunity to submit a challenge to Rule 6A-14.417, Florida Administrative Code. The issue of consideration of the validity of Rules 6A-14.416 and 6A- 14.417, Florida Administrative Code, is properly joined and will be determined. Respondents moved to strike certain portions of the Petition at the commencement of the hearing and the motion was granted as to paragraphs 3(f), (g) and paragraph 4(d) and a portion of paragraph 5, beginning with the words ".... deprivation to Nelson of due process of law..." to the conclusion of said paragraph 5. In addition, the clause containing the Petitioner's prayer for relief was stricken in its language, "and directing Respondents to dismiss Case No. 78-283 with prejudice." An additional motion was made to strike the name of Lee G. Henderson, as Director of the Division of Community Colleges as a named Respondent. In view of the fact that the Director of the Division of Community Colleges is not responsible for the promulgation of rules and regulations of the State Board of Education, he is hereby deleted and stricken as a party Respondent. The Petitioner, Gregory Bruce Nelson, is an employee of the Florida Junior College, an institution governed by Chapter 230, Florida Statutes. Nelson holds a certificate issued under the terms and conditions of Rule 6A- 14.415, Florida Administrative Code. The pending Amended Petition for Revocation of Mr. Nelson's teaching certificate makes reference to the substantive basis for action as being found in Rule 6A-14.416, Florida Administrative Code, and the due process requirements for such revocation or suspension of the Petitioner's teaching certificate are ostensibly found in Rule 6A-14.417, Florida Administrative Code. The Petitioner's attack on the rules in question falls into two broad categories. The first category concerns the procedural requirements for the adoption of the rules and the second category is a contention on the part of the petitioner that the rules, as adopted, constitute invalid exercises of delegated legislative authority. The rules were adopted under the requirements of the then Administrative Procedures Act, Chapter 120, Florida Statutes. The adoption took place on December 3, 1974 and the rules became effective and operative on December 19, 1974. The controlling requirements for such adoption and effect and operation may be found in the former Administrative Procedures Act in operation in December 1974. Specifically, those provisions were Section 120.031 and Section 120.041,Florida Statutes. The Respondent in this cause met all conditions for the adoption of rules in terms of procedural requirements set forth in the aforementioned sections of the former Administrative Procedures Act. This can be determined by an examination of the Respondent's Exhibit #1, admitted into evidence which is a certified copy from the State of Florida, Department of State, of the promulgation and adoption of the rules in question on December 3, 1974, and of the filing of the rules with the Department of State on December 10, 1974, to become effective on the next day, December 19, 1974. Moreover, the rules were adopted by a public hearing which was noticed through publication in four newspapers of general circulation in the State of Florida on dates 10 to 30 days before the public hearing of December 3, 1974. Copies of the advertisements used in giving the notice may be found as the Respondent's Composite Exhibit #2, admitted into evidence. In view of the fact that the rules were adopted in accordance with the procedures set forth in the former Chapter 120, Florida Statutes, and were adopted by a public hearing properly noticed, it was not necessary to comply with the conditions of the new Administrative Procedures Act, Laws of Florida 1974, Chapter 74-310, which became effective January 1, 1975. In particular, this refers to the requirements set forth in Section 120.54, Florida Statutes, and Section 120.72, Florida Statutes, pertaining to Laws of Florida 1974, Chapter 74-310, effective January 1, 1975. Therefore, the Petitioner's claim of procedural violations as a basis for overturning Rules 6A-14.416 and 6A-14.417, Florida Administrative Code, is not well founded. The remaining question is whether or not the rules on their face constitute invalid exercises of delegated legislative authority within the meaning of the current Section 120.56, Florida Statutes. Turning to a consideration of the Respondent's Exhibit 41, it can be seen that in adopting and promulgating 6A-14.416, Florida Administrative Code, the State Board of Education made reference to Section 230.755, Florida Statutes as their general statement of authority and to the fact that the law being implemented was Section 230.759, Florida Statutes. Those provisions use the following language: "Section 230.755, Minimum standards for community colleges.-- The state board shall prescribe minimum standards which must be met before a community college is organized, acquired or operated, and which will assure that the purposes of the community college are attained. * * * Section 230.759 Employment of community college personnel.-- Employment of all personnel in each community college shall be upon recommendation of the president, subject to rejection for cause by the board of trustees and subject to the rules and regulations of the state board relative to certification, tenure, leaves of absence of all types, including sabbaticals, remuneration, and such other conditions of employment as the division of community colleges deems necessary and proper; and to policies of the board of trustees not incon- sistent with law." Section 230.755, Florida Statutes, is a general statement establishing minimum standards for the organization, acquisition or operation of the various community colleges in the state. it does not create legislative authority for the relocation or suspension of the teaching certificates of those individuals who are employed in the community college system In the State of Florida. Section 230.759, Florida Statutes prescribes the method by which individuals may be hired by the community college. However, that provision is not sufficiently broad enough in its language to authorize procedures for the revocation or suspension of the teaching certificates of those personnel employed by the community college in the State of Florida. One other background item should be examined in discussing the authority for promulgating Rule 6A-14.416, Florida Administrative Code. As was noted in the course of the hearing, the published accounts of Rule 6A-14.416, Florida Administrative Code contains a reference to Section 229,053(1), Florida Statutes, which was not found in the rule as originally filed with the State of Florida, Department of State. Consequently, it may be argued that Section 229.053(1), Florida Statutes, may not be utilized in supporting the promulgation and adoption of rules 6A-14.416, Florida Statutes, because it was left out of the official Rule 6A-14.416, Florida Administrative Code, filed with the Department of State. That provision, Section 229.053, Florida Statutes, reads as follows: Section 229.053 General powers of state board.-- The state board of education is the chief policy-making and coordinating body of public education in Florida. It has the general powers to determine, adopt or prescribe such policies, rules, regulations, or standards as are required by law or as it may find necessary for the improvement of the state system of public education. Except as otherwise provided herein it may, as it shall find appropriate, delegate its general powers to the commissioner of education or the directors of the divisions of the department. " Assuming for purposes of argument that Section 229.053(1), Florida Statutes may be properly attributed to Rule 6A-14.416, Florida Administrative Code, as an attempted statement of authority for the exercise of the powers found in the subject rule, the provision Section 229.053(1), Florida Statutes, could not authorize the exercise of the powers found in that rule; which rule attempts to allow for the revocation or suspension of a teaching certificate held by a member of a staff of the community college in the State of Florida. Section 229.053(1), Florida Statutes is a general statement of the powers of the state board of education, only. No other provisions of Chapter 230, Florida Statutes, were offered in support of Rule 6A-14.416, Florida Administrative Code. Nonetheless, a review of Part II of Chapter 230, Florida Statutes, dealing with community colleges, in existance at the time that the rule was adopted and promulgated, does not reveal any provision of that Part which would allow for the adoption of rules pertaining to penalties against the holders of certificates to teach in the community colleges of the State of Florida. Consequently, Rule 6A-14.416, Florida Administrative Code is an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes, and is invalid in its entirety. Rule 6A-14.417, Florida Administrative Code, is a due process statement of procedure to implement the provisions of Rule 6A-14.416, Florida Administrative Code. Again, it has as its statement of authority found in the Respondent's Exhibit #1, admitted into evidence, the then existing provisions of Sections 230.755 and 230.759, Florida Statutes. That statement of authority is also found in the published compilation of rules made by the Department of State. For the reason that there exists no statement in Chapter 230, Florida Statutes, as it existed at the time that the Rule 6A-14.416, Florida Administrative Code was promulgated, that allows penalties to be placed against the certificate held by the community college teachers, there is likewise no authority to establish procedures for undertaking a consideration of probable cause to revoke or suspend and the subsequent hearing on revocation or suspension. The rationale in reaching this opinion is the same as was utilized in the consideration of Rule 6A-14.416, Florida Administrative Code. Therefore, Rule 6A-14.417, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes and the entire language of Rule 6A-14.417, Florida Administrative Code is invalid.
The Issue Whether or not Respondent appropriately denied Petitioner's retirement benefits and what, if any, amount Petitioner must repay.
Findings Of Fact Petitioner Dr. Evelyn A. Sebree was employed by Lake-Sumter Community College (LSCC) for over 25 years. LSCC is an agency within the State of Florida Retirement System (FRS). Petitioner was employed by LSCC as an instructor and later as a part- time counselor. She was subsequently named the Director of Financial Aid and the Executive Director of the Foundation. She served simultaneously in both capacities for many years. The Foundation is the fund-raising arm of LSCC and a nonprofit corporation separate from LSCC with its own governing board, bylaws and constitution. Only an employee of the college can be Director of the Foundation, but the Foundation Board is not made up of LSCC employees. In her LSCC employment as Director of Financial Aid, Petitioner was responsible for administering the college's student financial aid program. Her immediate supervisor in this employment category was Dr. Dixie Lee, and Petitioner reported ultimately to the Dean of Student Services. In this employment capacity, she administered federal, state, institutional and private grants, loans, and scholarship programs, including but not limited to Pell Grants, the Basic Education Opportunity Grant Program, the GI Bill, and work- study programs. She supervised three work-study students, who were part-time LSCC employees, and a financial aid specialist, a full-time LSCC employee, and had her own private office on campus. As Executive Director of the Foundation, Petitioner was responsible for raising money for the college and for scholarships. She reported to the LSCC President, was responsible for fund raisers, making contacts with potential donors, and soliciting money from various wealthy people for the college. During her LSCC employment as Financial Aid Director and collateral service as Executive Director of the Foundation, Petitioner developed many influential contacts in the fields of higher education and financial administration. These contacts were not only statewide, but also national. Petitioner also served on many state and national boards, including: State Financial Aid Association, Board of Directors of the Southern Association of Student Financial Aid, National Board of Student Financial Aid Directors, and the Florida Association of Community College and College Board Council on Higher Education Services. After her retirement as an employee of LSCC, Petitioner could no longer serve as Executive Director of the Foundation, but Petitioner continued to serve on the Board of the Foundation, as a private citizen. As a result of her contacts with many influential people, Petitioner considered herself to be a mover and a shaker in the community. Petitioner decided to retire after 29 years of service at the college when she was offered an early retirement incentive package. The package included paid health insurance for three years and partial salary for three years. Prior to her retirement, DOR mailed Petitioner a brochure. The brochure advised the Petitioner of the re-employment limitations. Prior to receiving her first retirement warrant, DOR mailed Petitioner a letter, again advising her that benefits would be suspended if she was re-employed within twelve months of her retirement date. As an agency within the FRS, LSCC was mailed several numbered memoranda advising reporting agencies to avoid "sweetheart" arrangements by hiring recently retired employees to fill positions within the system. Petitioner retired, effective July 1, 1992. In the fall of 1992, the LSCC college president quit. Dr. Kenneth Stack was appointed acting president while the LSCC Board of Trustees mounted a search for a permanent replacement president. The LSCC Board of Trustees is the governing board of the college which, among other duties, hires and fires the college president, sets college policy and adopts a budget. The LSCC Board of Trustees decided the new college president should be someone from Florida. They desired a college president who would have knowledge of the Florida educational system. The LSCC Board of Trustees had previously hired two college presidents, one six years previously and one eleven years previously. In each instance, a search committee made up of faculty, students, trustees, townspeople and residents of the two counties, Lake and Sumter, had been formed, and the Board had contracted with an outside "facilitator" to focus the presidential search and assist the presidential search committee. The last facilitator had been hired in 1986 from a professional group of "consultants" from Washington, D.C. This time, in 1992, LSCC's Board of Trustees decided they needed to hire a facilitator with knowledge of LSCC, the geographic area, college personnel within the state, and the Florida Community College System. The Board also believed that an in-state facilitator would help achieve their ultimate desired result of obtaining a qualified Floridian to fill the vacant LSCC presidency. Petitioner was nominated for facilitator by Board of Trustees member, Randall Thornton, an attorney. Due to her past employment and community reputation, Petitioner's education, training, experience, and status in the community were well known to all Board members. The Board considered facilitator candidates from the University of Florida and Florida State University also, but Petitioner was selected instead. All Board members cast a vote for their choice of facilitator. One consideration in favor of Petitioner was that she would accept a contract capped at $5,000, while the last professional out-of-house facilitator's total cost to LSCC was nine times that figure, or roughly $45,000. Petitioner was appointed Presidential Search Committee Facilitator pursuant to a contract drawn by attorney Randall Thornton. This contract significantly paralleled the contract between LSCC and its last out-of-state facilitator in that Mr. Thornton used the old contract as his model for the new one. For purposes of this proceeding, the significant provisions of Petitioner's contract are that: Petitioner was to be paid at the rate of $40 per hour up to a maximum of $5,000, regardless of how long the search took to complete. Clearly, it may be inferred that Petitioner's services would end when a college president was selected. In order to be paid, Petitioner was to bill the Board of Trustees monthly for hours worked and for expenses. She was to be reimbursed for any expenditures or expenses in addition to her hourly fee for personal services. To minimize costs to LSCC, Petitioner's travel expenses were geared to Chapter 112 F.S., normally covering state employees. She also was required to use the college's Watts line "to the extent possible," but she would be reimbursed for all her out of pocket expenses, including but not limited to telephone calls, fax, express mail, travel, and similar items. Because this was a personal services contract, Petitioner could not delegate her duties except with express prior agreement of the Board, but there was no specific prohibition on her hiring subordinate support service helpers. Either LSCC or Petitioner could cancel the contract upon 30 days' written notice without incurring liability to each other. However, Petitioner agreed to indemnify and "hold harmless" the college both for her own negligence in conducting the search and for any other liability arising out of her activities during the search. She was required to comply with equity rules and regulations. This requirement may be inferred to reiterate the obvious, that she, like any other citizen, was bound to comply with all equal opportunity and labor laws for appropriate hiring practices. One contract clause specifically denied Petitioner any employee, servant, or agency authority to bind or incur liability for the college, and described her as an independent contractor. Mr. Thornton modeled LSCC's contract with Petitioner on the contract drafted by the 1986 facilitator from Washington, D.C., who was clearly an independent contractor. According to Dr. Kenneth Stack, the contract as finalized is similar to the standard contract by which LSCC contracts for outside labor, power, and such professional services as those of architects, normally considered to be independent contractors. This facilitator contract differs significantly from Petitioner's employment contract as Director of Financial Aid for LSCC prior to her retirement on July 1, 1992, the form of which employment contract is prescribed by the Florida Community College System. After negotiating with Mr. Thornton, who was acting for the Board in the place of the college's general counsel, Petitioner had input into the final version of the facilitator contract. Exactly what Petitioner's input was, is unclear. Although there is some testimony that the former facilitator was paid in a lump sum of $20,000, there is also testimony that the total payments to that facilitator by LSCC totalled $45,000. Although this fact, together with the contents of the final contract between Petitioner and LSCC is not sufficient to infer that the prior out-of-state facilitator was also paid at an hourly rate up to a certain capped amount plus an expense reimbursement, it is sufficient to infer that expense reimbursement was part of the prior out-of-state independent contractor's agreement with the college. Petitioner's $40/hour fee as "facilitator" constituted a higher hourly rate than she had been paid when employed by LSCC as its Financial Aid Director prior to retirement. Petitioner was not covered for health insurance or unemployment or workers' compensation benefits under her contract as presidential search facilitator. No social security, retirement, or income tax was withheld by LSCC from her hourly rate as facilitator. LSCC provides all its regular employees with these fringe benefits. In practice, as LSCC presidential search committee facilitator, Petitioner used her own telephone and the LSCC telephone. She worked out of an established office in her own home where she simultaneously cared for her 92 year old mother. She also had the use of, and occasionally utilized, the Board room at LSCC which the Board of Trustees had been made available to her and the search committee whenever the Board was not using it. Because there was no college president, the secretary assigned to the president was available for Petitioner's use, and this secretary did some minimal work for Petitioner, primarily copying materials for the search committee members. An employee of LSCC who regularly deals with equity matters also was available to Petitioner and the search committee for advice as needed. As facilitator, Petitioner utilized a comprehensive notebook compiled by a prior Chairman of the LSCC Board of Trustees in the course of the 1986 presidential search. She also utilized two professional books she specifically purchased in order to fulfill her contract with LSCC. Petitioner gave the Board-appointed search committee their direction, worked with a subcommittee to design the advertisement for position, received all applications, analyzed them, and copied and distributed them to the search committee. After the committee read and ranked the applications and selected the finalists, Petitioner did background checks on the finalists and held personal conversations with applicants' employers, prior employers, and colleagues to get a "feel" for each applicant's qualifications. She then reported these findings to the search committee, and apparently another "cut" was made. She coordinated all visits, receptions, and committee interviews for the last five presidential finalists. In this process, she took no direction from LSCC's Acting President, Dr. Kenneth Stack, who was an applicant, and the Board of Trustees' input was more in the nature of questions concerning what was she doing and what were the search committee's time frames, than directions on what to do or how to do it. On her own initiative, Petitioner gave interim reports on the search committee's progress, usually at the regularly scheduled monthly Board of Trustees meetings, until the final presidential candidates were chosen, at which time the Board met weekly for the specific purpose of selecting the college president. Petitioner was required to bill her hours and expenses monthly but was not required to appear before the Board of Trustees. She was never summoned to appear before the Board. She had to ask to be put on the Board agenda each time she gave a report. On the basis of her education, training, experience, investigation, and analysis, Petitioner made suggestions to the Board of Trustees as to search procedures, deadlines, the profile of the president, and advertising the college presidency position. The LSCC Board of Trustees voted on the selection of a college president in April 1993. By its terms, Petitioner's contract terminated with the selection of a college president. The presidential search was not a regularly established function of the college, although employment of a college president was integral to the college's function and purpose. The search committee and search committee facilitator were not regularly established job positions with the college. Petitioner did not incorporate because no state license or certification is required for her services. She also did not advertise her services because she planned to work only intermittently as an independent contractor/consultant in a variety of higher education/administrative fields, relying on her professional networking to get offers of specific projects. At the time of formal hearing, she had the potential for contracts to do financial aid counseling at Seminole Community College and to rewrite a policy and procedure manual for South Florida Community College. LSCC paid Petitioner approximately $435 for her work for LSCC during the month of October 1992, plus some reimbursed expenses. In November 1992, DOR advised Petitioner it had determined that she was an employee and not an independent contractor. Prior to advising Petitioner, DOR requested the federal Internal Revenue Service (IRS) render its opinion. This opinion concluded that Petitioner was an employee of LSCC rather than an independent contractor, but the IRS opinion is not binding upon DOR or dispositive of this instant de novo proceeding pursuant to Section 120.57(1) F.S. It is noted that the review sheets filled out by LSCC and Petitioner and utilized by DOR and the IRS were not as detailed as the evidence adduced at formal hearing, and in some respects the answers were unintentionally misleading. At some point, DOR demanded approximately $435 from Petitioner and $1,018.79 from LSCC for retirement benefits DOR had paid Petitioner during October 1992, but apparently DOR now seeks $2,037.58 solely from Petitioner. Because of the controversy with Respondent DOR, Petitioner did not accept any payment from LSCC pursuant to their facilitator contract after October 1992, when she was notified by DOR that any payment from LSCC for employment would result in a DOR repayment demand and/or withholding of her FRS benefits by DOR.
Recommendation Upon 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 absolving Petitioner of any pay back to FRS for the month of October 1992. RECOMMENDED this 29th day of October, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1993. APPENDIX TO RECOMMENDED ORDER 93-1592 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: The factual matters are accepted. The legal argument is covered in the Conclusions of Law. Accepted (FOF 10). Rejected as argument only. Covered in substance in FOF 3 and 23 and the Conclusions of Law. Accepted (FOF 25). Accepted except as to Conclusion of Law which is covered in the Conclusions of Law. (FOF 22-25). Accepted except to the degree unnecessary, subordinate or cumulative (FOF 16-19). Accepted (FOF 12-15). Constitutes a request to rule certain evidence irrelevant. Not a PFOF. Covered in FOF 27 and the Conclusions of Law. Accepted except to the degree unnecessary or subordinate. (FOF 27). Rejected as related to matters outside the record which apparently occurred after formal hearing. Similar material covered in FOF 27. Respondent's PFOF 1-17 Accepted (FOF 1-16). Accepted in part and rejected in part upon the greater weight of the record as set forth in FOF 15. Accepted (FOF 23). Rejected as a Conclusion of Law. See, Conclusions of Law. Accepted (FOF 17, 22). Rejected because as stated it is misleading. Covered in FOF 17-19. 23-25 Accepted (FOF 17-25). 26-27 Accepted (FOF 9). 28-29 Accepted (FOF 29). 30 Accepted (FOF 30) COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Sylvan Strickland, Esquire General Counsel Department of Management Services Knight Building, Suite 309 2737 Centerview Drive Tallahassee, Florida 32399-0950 Larry D. Scott, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Ms. Evelyn A. Sebree Post Office Box 150 Umatilla, Florida 32784
The Issue Whether Respondent should be terminated from her employment with the Seminole County School Board.
Findings Of Fact Mack has been employed by the School Board for six years. During the 2001-2002 school year, Mack was a school lunch assistant assigned to Seminole High School. Her immediate supervisor was John Caldwell (Caldwell). Mack received satisfactory evaluations of her work for Petitioner until April 2002, when she received an evaluation from Caldwell criticizing her in several areas. On April 12, 2002, a Friday, Mack was upset about her evaluation, showed her evaluation to fellow workers and loudly complained about her evaluation. She was becoming disruptive to the cafeteria operations. Caldwell called Mack into his office to discuss her behavior. She became loud, and Caldwell had to call the Assistant Principal. Mack was sent home. Caldwell did not tell her not to come back, and, at that time, did not tell her that he was going to recommend that she be terminated. On Monday, April 15, 2002, Mack called her workplace and said that she was sick and was going to the emergency room. On April 16, 2002, Mack called in and spoke to Janelle Harris (Harris), who was Caldwell's assistant. Mack told Harris that she had the flu and would not be coming to work. The policy for a food service worker at Seminole High School who was going to be absent from work because of sickness was that the worker was to call either Caldwell or Harris and notify them of the absence. The telephone in Caldwell's office has voice mail capabilities; thus, if Caldwell or Harris were not in the office, the sick employee was to leave a message on the voice mail. Caldwell and Harris were the only two persons who had access to the code to retrieve messages from the voice mail. On April 17, 2002, Mack was absent from work, but did not call in and give an explanation for her absence. Mack continued to be absent from work without calling in. On April 26, 2002, Mack came to the school office and picked up her paycheck. She did not go to the cafeteria and tell Caldwell or Harris why she had not been at work. Learning that Mack had gone to the school to pick up her check, Caldwell called Mack at her home. Mack told Caldwell that she had called in and left a voice mail. No messages were left on the voice mail by Mack between April 17 and April 26. Caldwell explained to Mack that she was required to call in unless she was in the hospital or could not talk. Daniel Andrews (Andrews), the Director of Food Services, prepared a letter to be sent to Mack under Caldwell's signature. The letter, dated May 2, 2002, advised Mack that she had continued to be absent without calling in to notify Caldwell of her absence and to provide a reason for the absence. The letter further advised her that three days of absence without leave required a penalty of termination. Mack was requested to contact Caldwell by noon on May 7, 2002, or the case would be referred to Andrews. Mack did not receive the letter until May 8, 2002; however, she never contacted Caldwell concerning the letter. By letter dated May 10, 2002, Andrews advised Mack that because of her continued absences without leave and her failure to provide justification for her absences that he would be requesting that her termination be recommended to the School Board. Mack received this letter on May 18, 2002. By letter dated May 20, 2002, Paul Hagerty, Superintendent of Public Schools for the School District of Seminole County, Florida, advised Mack that he would be appearing before the School Board on May 28, 2002, and recommending that she be suspended without pay. He further advised her that at the June 11, 2002, School Board meeting he would file a recommendation that her employment be terminated effective June 12, 2002. Mack contacted Andrews by telephone and left a voice mail. On May 21, 2002, Andrews returned her call, and Mack told him that she had gotten the voice mail when she tried to call Caldwell but did not leave any messages. Andrews would have accepted a reasonable explanation from Mack for her absences when she talked to him on May 21, but she did not provide any plausible reason for not notifying Caldwell of her absences nor did she ever provide any documentation from a doctor that she had been ill during her absences. Mack told Andrews that she did not care if her employment was terminated. By letter dated May 25, 2002, Mack requested a hearing on the decision to terminate her employment. Mack did not request a hearing concerning the recommendation for her suspension. On May 28, 2002, the School Board suspended Mack, effective May 29, 2002. Mack had a job at a local barbeque restaurant during the evening hours. While she was absent from her job at Seminole High School, she continued to work at the barbeque restaurant. The Non-Instructional Personnel of Seminole County Board of Public Instruction, Inc., and the School Board have entered into a collective bargaining agreement, effective July 1, 1997, through June 30, 2002, covering the wages, hours, and the terms and conditions of employment of the public employees within the bargaining unit. The collective bargaining agreement applies to Mack's employment with the School Board. Article VII, Sections 5, 11, and 15 of the collective bargaining agreement provide: Section 5. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present: * * * 10. Improper use of sick leave. Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. Section 15 Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommend for termination. The School Board interprets the collective bargaining agreement to mean that each day an employee is absent without leave is a separate offense. At no time did the School Board issue Mack a written reprimand, one-day suspension, or a five- day suspension prior to her termination, as set forth in Section 15 of the collective bargaining agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dorothy Mack was absent without leave, suspending her for one day, and issuing a reprimand. DONE AND ENTERED this 10th day of April, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 10th day of April, 2003. COPIES FURNISHED: Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 Sandra J. Pomerantz, Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jim Horne Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a law enforcement officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is Richard Campbell, holder of Law Enforcement Certificate Number 89955 and Instructor Certificate #130914. Campbell had worked with the Florida State Seminole Boosters for several years as an assistant to George Brand, Assistant Director Of Concessions. Most of Campbell’s duties had to do with the distribution and transportation of money. On the night of October 9, 1993, after the football game between Florida State University and the University of Miami, Campbell receipted for 37 bags of money from the counting room at Doak Campbell Stadium. The bags were placed in his vehicle, a mini-van. Campbell drove his vehicle to the bank, followed by another officer in another vehicle. At the bank, the other officer, Mark Edenfield, stood guard while Campbell transferred the money bags to the night depository. Edenfield, at Campbell’s suggestion, looked in Campbell’s car to insure that there were no money bags inadvertently left in the vehicle. As documented by bank records, upon removal of the bags from the night depository by bank employees the following Tuesday, October 12, 1993, only 36 money bags were discovered. Brand testified at the final hearing that Campbell told him that he, Campbell, would replace the missing funds, estimated at approximately 1500 dollars, to escape prosecution although he, Campbell, was not guilty. Campbell never made such payment and, in the absence of corroborative evidence, Brand’s testimony concerning such a statement by Campbell, is not credited. A subsequent criminal investigation of the theft was undertaken by the University Police Department and the Leon County Sheriff’s Department. Ultimately, the Office of the State Attorney declined to file criminal charges against Campbell in connection with the missing money bag.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mark E. Taps, Esquire Stephanie Johnson, Esquire Legal Services of North Florida, Inc. 2119 Delta Boulevard Tallahassee, Florida 32302-4220 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
