The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In 1975, when she was 36 years of age, Petitioner was dating a married man. When the man's wife found out about her husband's extramarital affair, she began to harass Petitioner and members of Petitioner's family. On March 4, 1975, Petitioner was sitting in her vehicle with her then 17-year old son in the driveway of her home. She was about to leave to take her son to work when her boyfriend's wife drove up and blocked the driveway. Petitioner's son got out of the car and asked the wife to move her vehicle. The wife responded by making what Petitioner perceived to be an "ugly" gesture that was directed to Petitioner's son. Petitioner reacted in anger to the wife's response. She exited her vehicle and physically attacked the wife, bloodying the wife's nose. Police officers arrived on the scene and arrested Petitioner. Petitioner was charged with, and on April 22, 1975, convicted of, aggravated assault as a result of this March 4, 1975, incident. As punishment for committing this crime, she was directed to pay a $50.00 fine and court costs. Petitioner recognizes that her physically aggressive behavior on March 4, 1975, was inappropriate. She is remorseful and repentant. Petitioner has not committed any similar unlawful acts of violence in the more than 22 years since the March 4, 1975, incident. In 1980, Petitioner was arrested and charged with two counts of resisting a law enforcement officer without violence after she had intervened in an altercation involving her son and several police officers, but the charges against her were ultimately dismissed. Petitioner is a certified nursing assistant. She began working as nursing assistant approximately 30 years ago. As a nursing assistant, Petitioner has assisted individuals (in their homes and in institutional settings) needing help in performing their activities of daily living. She has provided such assistance without incident, notwithstanding that she has had to care for some individuals who have been quite difficult, including certain residents of South Florida State Hospital, a state-operated mental health facility, where she worked from 1981 through 1991 (as an employee of two different private nursing agencies with whom the hospital had contracted to provide nursing assistant services) and from January 24, 1997, to July 23, 1997 (as an employee of the hospital).2 There were occasions during the time she worked at South Florida State Hospital that residents would become physically aggressive toward her. On these occasions, Petitioner reacted, not in kind, but rather with restraint and in a professional manner. On July 23, 1997, after a background screening investigation conducted by the Department had revealed that she was not qualified to serve in her position at South Florida State because of her 1975 conviction for aggravated assault, and following the Department's preliminary denial of her request for an exemption from such disqualification, Petitioner was terminated from her position at the hospital. Petitioner has been unemployed since July 23, 1997. Although she has been unable to find work as a nursing assistant, Petitioner still continues to perform nursing assistant services (without compensation) for her elderly aunt, for whom she has cared for the past five years. Based upon Petitioner's history since the March 4, 1975, incident that led to her arrest and conviction for aggravated assault, it appears that she has rehabilitated herself and that she will not present a danger if her exemption request is granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting the exemption that Petitioner has requested. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge 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 22nd day of October, 1997.
Appeal For This Case Unless expressly waived by a party such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Agency Clerk of the Department of Management Services, and a copy, accompanied by. filing fees prescribed by law, with the Clerk of the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. Certificate of Clerk: Filed in the office of the Clerk of the Department of Management Services on this 96% day of December » 2012. MLE Agency Clerk Page 3 of 3 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MICHAEL GLEN O’BRIEN, Petitioner, DOAH Case No. 12-3396 vs. Department of Management Services, Notice of Voluntary Dismissal Division of State Group Insurance, Respondent. / This Respondent files this notice of voluntary dismissal on behalf of both parties, and states: This matter was held in abeyance, pending an external medical review. Based upon that report, the Petitioner has chosen to dismiss his appeal . See Attachment A. Wherefore, the Parties request that this matter be dismissed with prejudice. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. mail, this 10th day of December 2012, to 1833 Halstead Blvd., Apt. 214 Tallahassee, Florida 32309. Respectfully submitted, onja’P. Mathews Florida Bar ID No. 163680 Allison Deison Florida Bar ID No. 0143855 Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 850-922-9665- Telephone 850-922-6312- Telecopier Page 1 of 1 Filed December 10, 2012 1:06 PM Division of Administrative Hearings Mathews, Sonja . From: O'Brien, Michael Sent: Monday, December 10, 2012 11:18 AM To: Mathews, Sonja Subject: appeal Ms. Mathews, | have received MCMC’s review of my case and am hereby dropping my appeal. Thank you, Mike O’Brien Michael O’Brien GIS / Data Services Florida Natural Areas Inventory Florida State University 850-224-8207 ext. 211 mobrian@fsu.edu A\odewact A STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MICHAEL GLEN O’ BRIEN, ) Petitioner, ) vs. Case No. 12-3396 SERVICES, DIVISION OF STATE ) ) DEPARTMENT OF MANAGEMENT ) ) GROUP INSURANCE, ) Respondent. ) ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the parties’ Notice of Voluntary Dismissal filed December 10, 2012, and the undersigned being fully advised, it is, therefore, ORDERED that the file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Management Services, Division of State Group Insurance. DONE AND ORDERED this llth day of December, 2012, in Tallahassee, Leon County, Florida. Unw We SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2012.
The Issue Whether Respondent falsified employment papers by stating no previous arrest, while employed by the School Board was adjudicated guilty of possession of drug paraphernalia, and subsequent to a dismissal made threats against school board personnel.
Findings Of Fact Respondent was employed by the Pinellas County School System on May 17, 1988 as a plant operator at the South Ward Elementary School in Saint Petersburg, Florida. On the date he was employed Respondent signed a document as part of his application entitled Notice to All New and Rehired Employees. That document directed Respondent to list all prior arrests. Respondent wrote "no" on the document and signed it. (Ex 2). Although Respondent denied the signature on Ex 2, is his signature, this document was presented from the personnel file of Respondent and Respondent's contention that someone from the school system forged his signature on this document is not credible. Respondent was arrested in 1983 on charges of kidnapping, aggravated assault and battery, was brought to trial and found not guilty of all three charges. Accordingly, his denial of arrest on Ex 2 is false. In May 1988, shortly after his employment with the School system commenced, Respondent was charged with possession of drug paraphernalia, was tried and found guilty of this offense. During the investigation of the charges brought to light when a background check was done on Respondent as a result of an unrelated matter and the criminal proceedings came to light, Respondent was offered three options: 1) to resign, 2) be terminated, or 3) receive a written reprimand and agree to random drug testing four times during the next year at Respondent's expense. (Ex. 7). Respondent rejected the first and third options and told the personnel officer to "terminate me". On September 14, 1993 Respondent went to the Pinellas County Courthouse and demanded to see the Board of County Commissioners to complain about the actions of the School Board. When told the commissioners were not present, Respondent nevertheless went to the Commission Chambers. When he returned to the receptionist he remarked he guessed he would have to go back to the School Administration Building and shoot the place up. During a telephone conversation with Ted Pafundi, Supervisor of Employee Benefits at the School System, the person who identified himself as Respondent, in an agitated condition told Pafundi that he was coming down to get you all. "I'll blow up the building." When the amended charging letter was sent to Respondent by certified mail it was refused by Respondent and returned to the sender. (Ex. 5).
Recommendation It is recommended that a Final Order be entered confirming the termination of Henry Lee Jackson as an employee of the Pinellas County School Board. DONE AND RECOMMENDED this 5th day of November, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 5th day of November, 1993. COPIES FURNISHED: Keith B. Martin, Esquire Post Office Box 2942 Largo, Florida 34649-2942 Henry Lee Jackson 311 Pennsylvania Avenue Clearwater, Florida 34615 J. Howard Hinesley, Ed.D. Superintendent Pinellas County Schools 301 4th Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a staff augmentation contract, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact The parties' Joint Pre-Hearing Stipulation2 and the evidence presented at final hearing established the facts that follow. The Request for Proposals On July 26, 2001, the District issued Request for Proposals C-11940 (the "RFP"). The purpose of the RFP, as set forth on page one thereof, was to solicit technical and cost proposals from qualified respondents [for a staff augmentation contract.3] The South Florida Water Management District (District) is interested in establishing a single qualified information systems/technology contracting firm to provide the services defined herein on an as-needed basis. Contingent upon the responses received as a result of this Request for Proposals (RFP), the District will determine which respondent meets the required standards and qualifications through an evaluation process. The Vendor meeting the required standards and qualifications will be determined to be “pre-qualified” to provide information systems/technology services to the District. The deadline for submission of proposals in response to the RFP was Monday, August 27, 2001 at 2:30 p.m. Section 1.12 of the RFP, which is relevant to this protest, stated as follows: REJECTION OF RESPONSES The District reserves the right to reject any and all responses when such rejection is in the District's interests. Minor irregularities contained in a response may be waived by the District. A minor irregularity is a variation from the solicitation that does not affect the price of the contract or does not give a respondent an advantage or benefit not enjoyed by other respondents, or does not adversely impact the interests of the District. The District further reserves the right to cancel this solicitation at any time if it is in the best interest of the District to do so. Section 1.13 of the RFP stated, in pertinent part:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a Final Order that declares DUA’s proposal to be materially non-responsive and, accordingly, rescinds the proposed award to DUA. In addition, while recognizing that the choice of remedies for invalid procurement actions is within the agency’s discretion, it is nevertheless recommended that, rather than reevaluate or reject all responsive proposals, the District award the contract to the highest-ranked responsive proposer, Syslogic. DONE AND ENTERED this 18th day of January, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 18th day of January, 2002.
The Issue Whether the Petitioner, Courtyard Center, Inc., was a prevailing small business party in Case Number 95-1970BID as defined by Section 57.111(3)(d)G, Florida Statutes, and, if so, whether the actions of the Department were substantially justified and whether special circumstances exist which would make the award unjust.
The Issue Whether Respondent, Russell Spencer, willfully abandoned his employment with Petitioner, South Florida Water Management District, by unauthorized absence and failure to call-in or report to work for a three day period, without extenuating circumstances.
Findings Of Fact Respondent was employed by the District as a title examiner in its Real Estate Division. Respondent felt aggrieved and dissatisfied with his employment as a result of the denial of two promotions, which he believed he was entitled to receive. Most recently, in February, 1985, his application to fill the position of "Director of the Real Estate Division" was denied. (P-4) The Directorship of the Real Estate Division was vacated on January 31, 1985, as a result of the retirement of Jack W. Braun, who had held that position for approximately 12 years. Upon Mr. Braun's retirement, William C. Brannen, Jr., Director of the Land Management Department (which includes the Real Estate Division) assumed the position of Acting Director of the Real Estate Division until a new director could be hired. As Acting Director, he was Respondent's immediate supervisor during the interim period. The District has a long-standing written policy regarding annual leave, which requires prior written authorization from the immediate supervisor. The policy in effect in November 1982 and continuing through February 1985, states: Use of Annual Leave: a. * * * b. The use of annual leave shall require the prior approval of the employee's Supervisor or Division Director. Annual leave requests for more than 30 calendar days shall require prior written approval of the employee's Department Director. (p-10) The District's attendance and leave policy was revised on February 28,n 1985, but not with regard to the use of annual leave. The District developed and utilized a standard form for requesting annual leave. (P-11, P-12) On February 26, 1985, Respondent approached a co- worker, Andrew DuBois, and asked him to forward to Mr. Brannen (Acting Division Director) the following memorandum dated that day: In reference to the above subject matter, I have, at this writing, 200 plus hours of annual leave accrued and I intend to use whatever necessary to retain legal counsel to file suit on my behalf against this District. (P-1) He also asked Mr. DuBois to submit blank time sheets on his behalf. Mr. DuBois declined to become involved because he believed the matter was between Respondent and his supervisor. He did, however, remind Respondent of the need to obtain prior approval for annual leave. Respondent replied that he would not submit a leave request "for legal reasons." (P-34) He then left the District's offices and went home. Upon receipt of Respondent's memorandum, Mr. Brannen consulted with Mark Chapman, Director of the District's Personnel Department, as to the appropriate response. Mr. Chapman advised Mr. Brannen that Respondent was subject to disciplinary action under the District's Corrective Action Policy for taking unauthorized leave. (P-18, Section F.2.; Testimony of Brannen, Chapman Section C.7. of the District's Attendance and Leave Policy) Instead of initiating disciplinary action, Mr. Brannen telephoned Respondent and asked him to meet with him at 1:00 p.m. that day, February 26, 1985, to discuss his use of leave. At 1:00 p.m., Respondent, Mr. Brannen and the District's legal counsel, Thomas Schwartz, met at the District's offices. Mr. Brannen reminded Respondent that he was his acting supervisor and that his prior approval was required before Respondent could use annual leave. In reply to Respondent's expressed desire to seek legal counsel to file suit against the District, attorney Schwartz told him that his reasons for taking leave were immaterial with regard to whether a leave request would be granted. Respondent then asked for five days leave, through March 1, 1985. He completed the required leave forms and they were approved at the meeting. (P-2 Testimony of Brannen, Schwartz) Two days later, Mr. Brannen prepared a memorandum for the files summarizing the February 28, 1985, meeting. The memorandum, a copy of which was sent to Respondent by certified mail on March 1, 1985, and received on March 2, 1985, contains the following statement: We met at the appointed time and I explained to Russ that us of annual leave must have prior approval by me as his acting supervisor. We discussed how long he felt he needed to be on leave. Russ said he needed to be off through March 1, 1985. He filled out leave slips and I approved use of annual leave through March 1. (P-2) On February 28, 1985, Respondent returned to pick up his paycheck. On that date, Mr. Brannen and Mr. Dubois observed that Respondent's desk and office had been emptied of all personal materials and assumed that Respondent did not intend to return to work. (P-34; Testimony of DuBois, Brannen) Respondent's apparent intention not to return to work disturbed Mr. Brannen because there was a significant backlog of title examination work. Due to recruitment procedures it would have taken considerable time to hire a new title examiner, and recruitment could not be initiated until Respondent expressed a definite intention to resign. (Testimony of Brannen) Respondent's leave expired at 5:00 p.m. on Friday, March 1, 1985, but he did not return to work on Monday, March 4, 1985, the next working day. At 8:09 a.m. that date, Respondent telephoned Mr. DuBois, asking him to relay to Mr. Brannen his request for an additional week of annual leave through March 8, 1985. Mr. DuBois immediately relayed the request to Mr. Brannen, who telephoned Respondent at 8:21 a.m. at his residence, but received no answer. (P-3, P-34; Testimony of Brannen, DuBois) Mr. Brannen discussed Respondent's further unauthorized absence with Personnel Director Chapman, who again suggested that he take disciplinary action against Respondent for failure to follow instructions. Mr. Brannen, however again declined to take disciplinary action and instead decided to approve—after-the-fact—Respondent's verbal request for additional annual leave. On March 4, 1985, he mailed a letter to Respondent advising: Although you did not contact me as I instructed you to do, your use of annual leave through 5 p.m., March 8, 1985, is approved. You will be expected to return to work no later than 8 a.m., March 11, 1985. We have a backlog of title work to complete which requires your help; therefore, even though you have accrued annual leave, any further request for its use must be denied at this time. If you do not report to work as instructed you will be placed on an unauthorized leave without pay status until you return to work. After three days on unauthorized leave you'll be considered to have abandoned your job. (e.s.) Respondent received the letter on March 6, 1985. (P-3; R-2) On March 5, 1985, Respondent sent a letter to Stanley Hole, Chairman of the District's Governing Board, expressing dissatisfaction with the denial of certain promotions and alleging that the District had a policy of affording preferential treatment to friends and relatives. Respondent then stated that "I will interpret no reply or an adverse reply as an involuntary termination of 18 years of employment with District." (P-4) Although this direct communication with the Board circumvented the District's grievance procedures, the Executive Director of the District, fowarded a copy of the letter to the members of the Governing Board with a cover memorandum dated March 8, 1985. On that day, the District's Deputy Executive Director, Tilford C. Creel, sent Respondent a certified letter, which stated in relevant part: We do not agree with the general content of your letter and particularly we do not agree that you will be terminated due to "no reply or an adverse reply" to your letters. The authority to terminate employees resides in the executive office and in your case, Mr. Brannen informs me that you have been granted annual leave through Friday, March 8, 1985. He further informed me that the workload in the title examination area is such that we are in great need of your services and cannot extend your leave any further. There is only one other title examiner and the backlog of work continues to increase. Therefore, we will expect you to report to work on Monday, March 11, 1985, as you were adivsed by Mr. Brannen. (e.s.) (P-5; P-9) Respondent, however, failed to report to work on March 11, 1985. Neither did he telephone District officials, prior to or on that date to request an extension of his annual leave. Respondent also failed to report to work or telephone the District on Tuesday, March 12, 1985 or Wednesday, March 13, 1985. He was not ill or incapacitated or otherwise unable to reach a telephone. (Testimony of Brannen, Spencer) On Thursday, March 14, 1985, the District notified Respondent by certified letter that, effective at 5:00 p.m. on March 13, 1985, he was deemed to have abandoned his employment pursuant to Section C.7. of the District's Corrective Action Policy for failure to report to work for three consecutive working days. Personnel action was initiated that same date by Mr. Brannon. On March 29, 1985, the District notified Respondent by certified mail of his right to petition for an administrative hearing pursuant to Section 120.57, Florida Statutes, after first pursuing the normal grievance procedures. (P-6, P-7, P-8) Respondent requested a grievance hearing by letter dated April 5, 1985. The hearing was held by the Grievance Review Board on April 17, 1985. The Review Board consisted of two supervisory personnel and two non-supervisory personnel, selected at random by Respondent. After Respondent failed to appear at the hearing, the Board concluded that Respondent had ample notice and opportunity to return to work and that termination of his employment was justified and consistent with District policy and procedure. (P-13) Respondent then appealed the Grievance Review Board determination to the Executive Director, who affirmed it. It was a long-standing District policy that unau- thorized absence from work for three consecutive days would result in termination of employment. On March 14, 1985, the District had in effect an interim written guideline, stating: Any employee who fails to report to work for three (3) consecutive working days without notifying the division office or fails to report to work after a leave of absence has expired or after the leave has been disap- proved, revoked, or cancelled will automati- cally be considered to have resigned his/her employment with the District, barring the supervisors consideration of extenuating circumstances. (P-15,P-18, Section C.7.) This interim guideline was ultimately adopted as a rule, effective April 7, 1985. The District policy in effect prior to the adoption of the interim guideline on February 1, 1985, had a similar provision: Any employee who fails to report to work for three (3) full consecutive working days without notifying the District may be considered to have abandoned the position. (P-15,P-16,P-17) In implementing this long-standing policy, the District routinely terminated the employment of employees who failed to report to work for three consecutive days. The revised (interim and final) policy contains an exception for "extenuating circumstances," which is reasonably interpreted by the District to cover situations where a sudden emergency or physical impairment prevents an employee from reporting to work. In any event, the employee was still expected to telephone the District, except where prevented by a physical impairment. (P- l9,P-20,P-21,P-22, P-23,P-24,P-26 Testimony of Chapman Thomas) The District uniformly requires adherence to attendance and leave regulations throughout its work force. At its West Palm Beach Field Station, which is responsible for maintaining District projects in the West Palm Beach area, em- ployees are routinely given written notices of any lateness in reporting to work, even if only a few minutes. Repeated tardiness or other cumulative infractions of the District's attendance and leave regulations, which do not involve a failure to report to work for three consecutive days, have also resulted in discharge. It is also a common District practice to deny leave requests when work duties require an employee or supervisor to be at work. (P-25, P-27, P-29, P-31; Testimony of Thomas; Chapman) Respondent participated in the development of the revised Corrective Action Policy. Several meetings were held among the employees of his division, wherein the employees were given an opportunity to comment on various aspects of the proposed policy. Copies of the policy were distributed to the employees of his division prior to February 1, 1985, when it became effective as an interim guideline. (Testimony of Chapman; Braun; DuBois) Respondent's acting supervisor, Mr. Brannen, did not act in a retaliatory manner against Respondent in terminating his employment for failure to report to work for three consecutive days. On the contrary, on two prior occasions, Mr. Brannen had refrained from disciplining Respondent for violating the Attendance and Leave Policy. He valued Repondent's capabilities and long-term service to the District, and went to considerable lengths to accommodate him. Respondent was not in any way impeded by Petitioner in his attempt to seek legal counsel. He was able to confer with six attorneys during his leave of absence. (Testimony of Respondent)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent be deemed to have abandoned his employment (by failing to report to work for three consecutive working days, without authorized leave or extenuating circumstances) and his employment be thereby terminated effective 5:00 p.m. on March 13, 1985. DONE and ORDERED this 6th day of December, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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 6th day of December, 1985.
The Issue Whether petitioners have standing to challenge the validity of respondent's proposed rules, 38F-5.30 through 38F-5.70, Florida Administrative Code I.
