The Issue The issue is whether Respondent, the Department of Children and Families (the "Department"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2010),1/ by discriminating against Petitioner based on her race or national origin.
Findings Of Fact The Department is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Petitioner, a Hispanic female, began employment with the Department on July 2, 2004, as a child protective investigator ("CPI"). Petitioner was assigned to Unit 013 in DeLand. She worked for the Department in that capacity until her employment was terminated on April 1, 2010. In a letter to Petitioner dated April 1, 2010, Reginald Williams, the Department's circuit administrator for Circuit 7, wrote that Petitioner's employment was being terminated “as a result of your inability to Perform Essential Job Duties.” Mr. Williams' letter characterized this as a “Non-Disciplinary Dismissal,” and encouraged Petitioner to reapply for her position “once resolution occurs and you can provide a final disposition of this matter.” The matter to which Mr. Williams referred was a pending criminal charge of battery on a minor child, a disqualifying offense under section 435.04(2)(j), Florida Statutes. On October 30, 2009, Petitioner was involved in a physical altercation at Universal Studios theme park. No one was arrested at the scene, but on January 15, 2010, the state attorney for the Ninth Judicial Circuit in Orlando filed charges of battery and disorderly conduct against Petitioner. William Boyd, the Department administrator who oversaw day-to-day operations of investigative units in a three-county area that included DeLand, testified that Petitioner reported the October 30, 2009, incident to her immediate supervisor as soon as it happened. Petitioner reported that she was the victim in the incident, but that criminal charges were pending against her. Petitioner told her supervisor that the state attorney's office had yet to decide whether to charge her. Prior to the filing of charges by the state attorney, Petitioner continued to perform the job duties of a CPI. A large portion of those duties included making direct contact with families concerning allegations of abuse, neglect, or other maltreatments. The state attorney filed the charges via information on January 15, 2010, and on the same date issued a summons to Petitioner. On the morning of January 28, 2010, Petitioner received the summons. She telephoned her immediate supervisor, Dave Howe, who told her to bring in the paperwork so that Mr. Boyd could be notified of the situation. Petitioner did as Mr. Howe instructed. She had no immediate meeting with Mr. Boyd, and continued to perform her regular duties. On February 12, 2010, the Department's Human Resources office ("HR") received a copy of the summons and sought more detail from Petitioner. On February 16, 2010, Petitioner notified HR that she would not be required to appear in court, that her attorney had entered a plea of not guilty on her behalf, and that a pretrial conference had been scheduled for March 15, 2010. On February 17, 2010, Petitioner provided HR with the police report from the October 30, 2009, incident. On February 19, 2010, Petitioner met with Mr. Boyd and was told that she could not have direct client contact until her pretrial conference. Direct contact was prohibited by section 435.06(2)(b) which provides: If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the employee in a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter. Petitioner was instructed to come to work during her regular hours. Petitioner would perform "light duty" work on her caseload that did not involve client contact, i.e., case processing, telephone contacts with service providers, confirming home services, and closing out cases. Petitioner was not assigned new cases. Petitioner testified that she was able to manage her caseload by engaging in "trade-offs" with other CPIs in her office. Petitioner would enlist a CPI to perform the client contact portion of one of her cases, and in exchange she would complete the office work necessary to close one of the other CPI's cases. On March 15, 2010, Petitioner provided HR with paperwork indicating that her court date had been moved from March 15 to April 7, 2010. It was at this point that Petitioner's supervisors began to question whether the Department could continue to carry Petitioner as a light-duty CPI while the date of resolving her criminal case remained indefinite. In a letter dated March 17, 2010, Mr. Williams notified Petitioner that he was "initiating a non-disciplinary dismissal based on your inability to perform the essential functions of your job as a Child Protective Investigator in our Family Safety program." The letter stated the following as the Department's rationale for its proposed action: During three weeks you have been removed from client contact, the efficiency of the DeLand Child Protective Investigator unit has been affected. Had you been in the case rotation, you would have been assigned 14 cases. In addition, approximately 20 cases in your caseload had to be transferred or handled by other Child Protective Investigators. A typical caseload for the DeLand CPI is 12 to 15 cases. As a result of your inability to take cases during these 3 weeks, each CPI was assigned 3 more cases than they would normally would [sic]. This is an increase of 20% to 25% per CPI. In addition, there were shifts that needed to be reallocated while you were removed from rotation. Specifically, one night on-call shift, six days of swing shifts and one weekend shift had to be distributed to other CPIs in the center. This increased the number of assigned shifts for the DeLand PI's. The overall unit statistics have also been impacted by your removal from rotation. In January, the DeLand CPI unit was ranked 10 out of 13. At the end of February, the DeLand CPI unit was ranked 13 out of 13. In addition, there has been a demonstrated increase in overtime worked, which adversely affects the budget as well as the well-being of the unit. There has been an increase of 30-40 hours of overtime worked in the past 3 weeks. As you may already be aware, we are currently experiencing a high number of vacancies in our Circuit 7 Child Protection units. Your position is vital to the organization and the children & families that we serve. I regret to inform you that we can no longer hold this position for you due to current business levels. We need every available CPI position able to have client contact. However, you may apply for any vacant position that does not require direct client contact in a caretaker position. Once your legal matters have been settled, you are welcome to apply for any employment at the Department. The letter went on to inform Petitioner of her right to meet informally with management representatives "to discuss the reasons why you should not be dismissed at this time." The meeting was scheduled for and held on March 22, 2010, in Daytona Beach. Petitioner's presentation at the March 22 meeting did not change Mr. Williams' mind. In the April 1, 2010, letter notifying Petitioner of her dismissal, Mr. Williams wrote: While we recognize that you have not been convicted of the charges made against you, there are still pending charges which are potentially disqualifying for a Level 2 position, also known as a position of special trust, under F.S. Chapter 435.04. A Child Protective Investigator is considered a position of special trust. We are making our decision based on the needs of the clients and our business. Although a conviction has not occurred, the outcome of your situation could result in conviction. Having a pending charge of Battery where the victim is a minor undermines your credibility and judgment regarding clients. Allowing you to have client contact knowing this charge is pending could cause embarrassment to and discredit to the Department of Children and Families. At this time we cannot hold your position pending resolution due to business needs. There is no definite time frame as to which you resolution [sic] will come to fruition. We need every available Child Protective Investigator position to be able to work with our clients in the field. Once resolution occurs and you can provide a final disposition of this matter, you can reapply to this or any other position for which you feel you are qualified. . . . Court records indicate that Petitioner's case came up for trial on April 12, 2010. The court referred Petitioner to a pre-trial diversion program and held the case in abeyance. On June 8, 2010, Petitioner was approved for participation in the pre-trial diversion program, successful completion of which would result in an order of dismissal or a nolle prosequi by the state attorney. On June 15, 2010, Petitioner signed a "Pre-trial Diversion Contract." The contract provided that prosecution would be deferred for six months if Petitioner abided by the conditions set forth therein, and that the charges would be dropped at the end of six months if Petitioner met all the terms of the contract. The contract provided that Petitioner would complete an anger management class, perform 40 hours of alternative community service, pay fees related to the diversion program, and "pay restitution in the amount of $250.00 joint and several." Petitioner was required to report to an assigned officer once a month. Petitioner testified that she completed the diversion program's requirements within one month, but that her contract did not provide for early termination of the program. The state attorney entered a nolle prosequi on December 23, 2010. Mr. Boyd testified regarding the exigent circumstances that the Department believed necessitated Petitioner's dismissal. When Petitioner was pulled from client contact, her role in the office became very limited. Her unit, which at full strength consisted of six or seven CPIs, was already down one person until a new CPI could be interviewed and hired. Three other CPIs (Carol Suarez, a Hispanic female, and Barry Candage and Rob Westcott, both white males) were out of the office on medical leave for four to six weeks during this period. A fourth CPI, Jodi Cea, a white female, was limited to light duty for medical reasons. She was eventually sent home on medical leave for several weeks because there was not enough light duty work to go around. Mr. Boyd testified that during the time Petitioner was on light duty, her unit had two or three CPIs doing the case load of six or seven. Four cases per CPI were transferred to other units. These transfers were a hardship for the receiving units because the units are arranged geographically, meaning the receiving CPIs were required to travel far outside their usual areas. Some had to travel from Putnam County to the Seminole County line. Mr. Boyd testified that Petitioner was a valued employee. She was a good investigator, and her ability to speak Spanish was a critical asset to the DeLand unit because West Volusia County has a large and growing Hispanic population. Petitioner was one of only two Spanish speakers in her unit, and other CPIs often requested her assistance in the field. Mr. Boyd stated that he fully expected Petitioner to reapply for her position after her criminal charges were cleared, and that she would have been readily welcomed back to the Department. Mr. Williams testified that, given the uncertainty of Petitioner's position in March 2010 and the short-handedness of her unit, there was no alternative to terminating her employment. The possibility of administrative leave was not considered because the resolution of Petitioner's court case was indefinite. The Department was willing to keep Petitioner on light duty when it believed she was going to court for a final hearing on March 15, but it could not continue to do so for an unknown period of time. Even if he had known that Petitioner's case would be resolved in December, Mr. Williams would have dismissed Petitioner because her unit could not function for several months with a CPI who could not perform the essential functions of her position. Mr. Williams decided that a non-disciplinary dismissal was the best option because it would allow the Department to fill the vacancy immediately, and would allow Petitioner to reapply to the Department after the charges were dismissed. Like Mr. Boyd, Mr. Williams left no doubt that the Department would welcome Petitioner's return. Both Mr. Boyd and Mr. Williams denied that Petitioner's race or national origin played any part in the decision to terminate her employment. Mr. Williams testified that the employees out on medical leave were not given special consideration over Petitioner. He stated that he has dismissed employees on medical leave when it became apparent over time that their problems were not resolving and they might never be able to resume a full caseload. In the cases of Ms. Suarez, Mr. Cundage, and Mr. Westcott, physicians had given the Department a time frame for their return to full duties, and they returned to work within that time frame.2/ As of April 1, 2010, it was uncertain whether Petitioner would ever return to the CPI rotation. Petitioner contends that at least one other CPI, an African-American female named Beverly Greenwade, was in a position similar to Petitioner's but was not dismissed from her job. Ms. Greenwade was hired as a CPI in the DeLand unit in June 2007. In October 2007, Ms. Greenwade was removed from the CPI case assignment rotation because her background screening revealed a disqualifying felony on her record.3/ She was kept on light duty until mid-January 2008, when she received an exemption from employment disqualification and returned to her regular CPI duties. Petitioner contends that her position was similar to that of Ms. Greenwade, but that the Department chose to carry Ms. Greenwade on light duty for a period of three and one-half months, pending action on her exemption request, whereas the Department fired Petitioner after slightly more than one month of light duty. Mr. Williams testified that Ms. Greenwade's position was distinct from Petitioner's in two ways. First, Ms. Greenwade's offense did not involve a minor child and was at least 23 years old. Ms. Greenwade had received a pardon from the Governor in 1999, making it much more likely that she would obtain an exemption from the Department. The Department's exemption process was finite; Mr. Williams knew that he would have an answer within 60 to 90 days of Ms. Greenwade's application. Second, Mr. Williams stated that in October 2007, the DeLand unit was not shorthanded. All of the units in the circuit were fully staffed, and the overall caseload was less at the time Ms. Greenwade was seeking an exemption. The Deland unit was able to absorb several months of Ms. Greenwade's placement on light duty. Petitioner pointed to another allegedly disparate aspect of the Department's treatment of Ms. Greenwade. After she was granted an exemption and returned to the CPI rotation, Ms. Greenwade proved unable to keep up with the CPI caseload during her probationary period. Her job performance was such that the Department concluded she could not be retained as a permanent employee in the CPI position. However, rather than terminating Ms. Greenwade's employment, the Department offered her a demotion to ACCESS Florida, which manages the state's food stamp, Medicaid, and temporary cash assistance programs.4/ Petitioner testified that she worked for the City of New York for ten years in the food stamp and Medicaid programs. Petitioner questioned why the Department would not give her an opportunity to move into an ACCESS program position not involving client contact as an alternative to terminating her employment. Mr. Williams testified that Ms. Greenwade had performed unsatisfactorily as a CPI. She no longer had the option of being a CPI, and therefore was offered a position in the ACCESS program. Mr. Williams stated that Petitioner was not offered the lesser job in the ACCESS program because he hoped that she would resolve her legal difficulties in short order and return to the DeLand office as a CPI. Mr. Williams testified that the idea of placing Petitioner in an ACCESS position was never even discussed within the Department because his intent was always to rehire Petitioner in her old position. Mr. Williams stated that, even as of the date of the hearing, he would rehire Petitioner as a CPI. Petitioner's situation differed from that of any of the other employees under consideration because, as of April 1, 2010, her inability to perform the full functions of a CPI was of indefinite duration. If she were convicted of misdemeanor battery on a minor, she would be disqualified from employment for at least the period of her "confinement, supervision, or sanction," see section 435.07(1)(b), plus the time it would take to apply for and receive an exemption. Given the strains that the DeLand unit was already experiencing, it was reasonable for the Department to conclude that it could not carry Petitioner on light duty for a period of time that might well stretch into years. Petitioner offered no credible evidence that the Department's stated reasons for her termination were a pretext for race or national origin discrimination. The logic of the decision not to offer Petitioner a temporary ACCESS position may be questioned, but there was no animus underlying the decision; it reflected the fact that the Department held Petitioner in higher esteem than it did Ms. Greenwade. The Department wanted Petitioner ready to step back into her CPI position as soon as her case was resolved. Petitioner offered no credible evidence that the Department discriminated against her because of her race or national origin in violation of section 760.10. Far from displaying any ill will toward Petitioner, the Department personnel who testified at the hearing spoke highly of her work as an investigator and her value to the DeLand unit as a translator. They expressed not only willingness but an affirmative desire to rehire Petitioner as a CPI. The greater weight of the evidence establishes that Petitioner was terminated from her position with the Department due to the uncertain duration of her inability to perform all the duties of her position, in light of the existing caseload strain being experienced by her unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Children and Families did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 8th day of February, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2012.
The Issue The issue in this proceeding is whether Petitioner's application for licensure as a child care facility should be granted.
Findings Of Fact Petitioner, God's Little Blessings, applied for licensure as a child care facility on March 23, 2015. The application was completed and submitted by Leslie Fudge, the owner and proposed operator of the facility. The proposed director was Adrienne Wimas (spelling uncertain). After review of the application, the Department denied Petitioner a child care facility license on May 1, 2015. The sole reason for the denial was contained in the Department's denial letter dated May 1, 2015. The letter stated: This letter will serve to advise you that your Application . . . is hereby denied based on review of your background screening, including the Florida Central Abuse Hotline Record Search. No other reason for denial was stated in the Department's letter. While not stating the specific facts regarding the background screening and abuse record search, the evidence demonstrated that the denial was based on one confirmed report of neglect (Abuse Report 2003-031849-01) against Ms. Fudge for inadequate supervision of resident R.H., and medical neglect of residents R.G. and J.D. Both incidents occurred at about the same time on or about March 5, 2003, while Ms. Fudge was employed at Tallahassee Development Center (Center). The Center provided residential and direct care to developmentally disabled residents at its facility. At the time, Ms. Fudge was employed as care staff responsible for providing direct one-to-one care to R.H. She was not assigned to provide care to R.G. Other than Ms. Fudge, no witness with personal knowledge of these incidents testified at the hearing. Consequently, many of the statements contained in the 2003 abuse report remain hearsay which was not corroborated by any competent substantial evidence. Additionally, the age of the report, confusing allegations and lack of factual basis for its findings of inadequate supervision or medical neglect cause the abuse report to be unreliable and untrustworthy as evidence. As such, except as found below, the report by itself cannot form a basis for denial of Petitioner's application. Ms. Fudge was the only person who testified at the hearing with personal knowledge about the events of March 5, 2003. She testified, and such testimony is accepted, that on or around March 5, 2003, she was not a shift supervisor, but was assigned as a direct care aide with "one-to-one" supervision of R.H. The testimonial evidence from Ms. Fudge and other employees of the Center during 2003 demonstrated that Tallahassee Developmental Center employees were trained that one-to-one supervision meant that "the person had always to be watched" and "you could never leave [the person] alone." There was no credible evidence that the person could not be alone in the restroom, that the staff assigned to watch the person had to be within arm's length of the resident, or that such observation was not varied according to the behavior plan for an individual resident. Further, the testimonial evidence showed that staff and Ms. Fudge knew R.H. would run away usually to hide in a particular office, but occasionally with the police being called if R.H. were to leave the building and could not be found. The evidence did not demonstrate that R.H. behaviorally was aggressive or dangerous to others, but only that he would run away and hide. Finally, the testimonial evidence showed that the facility was in the process of trying to wean R.H. off of one-to-one supervision by implementing a plan of moving away from him and permitting him times of less supervision. On March 5, 2003, the testimonial evidence demonstrated that Ms. Fudge, R.H., and other residents were gathered in the living room of the house where they lived. The phone in the adjoining office rang and Ms. Fudge answered it. While on the phone she could observe R.H. through the window between the rooms. At some point, R.H. was sent to go to the restroom. It was unclear who sent him. After finishing in the restroom, he did not return to the living room, but "left out of the bathroom" to another office, locked the door and hid behind the desk. Ms. Fudge could see him in the office and called a nurse to bring the key so that the office could be unlocked. At the time, R.H. was not in danger and there was no evidence that demonstrated he was in danger. There was some evidence that another staff person mistakenly may have believed that R.H. had left the building. However, the better evidence showed that Ms. Fudge knew where R.H. was, could see R.H. in the room in which he was locked, and that he was not in danger at the time. Given R.H.'s behavior plan, none of these facts establish neglect by Ms. Fudge in the supervision of R.H. There was no credible, non-hearsay evidence presented at hearing as to the abuse report's allegations regarding resident R.G. or J.D. As such, the Department's evidence consisted only of an old unreliable abuse report consisting of uncorroborated hearsay about an incident involving R.G. and perhaps J.D. and the testimony of the investigator who had no personal knowledge of the facts regarding the incident or the supervisory policies of the Center. Given these facts, Respondent has failed to demonstrate that Ms. Fudge neglected, either in supervision or medically, residents who were in her care. In fact, the evidence showed that Petitioner has been caring for and/or supervising people for many years and has the character and capacity to continue to do so. Since the unproven abuse report was the only basis on which the Department based its decision to deny Petitioner's application, there was nothing in the record to support its determination that Petitioner lacked moral character or the ability to safely operate a child care facility. Therefore, Petitioner's application for such licensure should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner's application for licensure as a child care facility is granted. DONE AND ENTERED this 2nd day of November, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 2nd day of November, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Building 2, Suite 204 Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 (eServed) Leslie Fudge God's Little Blessings Apartment F-8 216 Dixie Drive Tallahassee, Florida 32304 Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308-5333 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families 1317 Winewood Boulevard, Building 2, Room 204 Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families 1317 Winewood Boulevard, Building 1, Room 202 Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether the Petitioners are entitled to participate in the Florida Retirement System (FRS).
Findings Of Fact The Respondent, Department of Management Services, Division of Retirement (Respondent or Department), is the state agency charged with the responsibility of administering the FRS. Accordingly, the Respondent must resolve as part of its normal course of duties whether or not individuals are eligible to participate in the FRS. The Petitioner, Eric Eggen, is an attorney authorized by the Florida Bar to practice law within the State of Florida. Mr. Eggen has practiced law since 1974. On March 15, 1991, Mr. Eggen was appointed by the Chief Judge of the First Circuit to serve as a "part time Child Support Hearing Officer." Mr. Eggen was directed to perform such duties as part of a program that coordinates the enforcement of child support. Although Florida's First Circuit encompasses more than two counties, the vast majority of Mr. Eggen's work has been performed for and funded primarily by Escambia County and Santa Rosa County. The child support program pertinent to these cases is a federally funded program that channels monies from the federal government to local governments through the State Department of Revenue. Local governments are required to "match" a certain percentage in order to receive the federal funds. In these cases, the First Circuit (when the program was initiated) decided to use non-Article V hearing officers to perform the work. This process had been approved by the Florida Supreme Court and allows the judges of the First Circuit more time to perform their other responsibilities. Accordingly, for reasons not fully set forth in this record, Mr. Eggen was selected to be the hearing officer for the First Circuit child support enforcement program. How or by whom Mr. Eggen would be compensated for his efforts was not set forth by any written document. He was simply designated by the Chief Judge to be the person who would do the work. The work consisted of conducting child support hearings to determine whether child support was owed, whether someone had the ability to pay child support, and whether someone might be willfully refusing to pay child support. Issues such as paternity required an Article V judge. Mr. Eggen was not authorized to make such determinations. Initially the work was considered part-time, but as the volume of cases increased over time Mr. Eggen's ability to perform other legal work diminished. He maintains that the child support enforcement work now consumes his full-time schedule. Exactly when Mr. Eggen went to full-time work as a hearing officer was not proved. The contracts governing how monies are treated by Escambia County and Santa Rosa County do not include any specification regarding the Petitioners by name. Presumably any individual performing Mr. Eggen's duties would be entitled to the compensation he receives for the work performed. In fact, when Mr. Eggen substitutes for another hearing officer he is similarly compensated. Mr. Eggen does not have a permanent office within the court facilities, does not receive office supplies through the court or county facilities, and does not have sick leave or annual leave through any agency. When Mr. Eggen performs the work, he is paid by submitting invoices to the counties for whom the work is performed. Neither the First Circuit, the Court Administrator's Office, nor the Department of Revenue pays Mr. Eggen directly for the work performed. In remitting funds to Mr. Eggen the counties do not deduct social security, withholding, or any other amount such as medical insurance costs. There is no evidence that Mr. Eggen receives any benefits such as medical insurance, dental insurance, or deferred compensation through any entity. Further, there is no evidence that those types of benefits were made available to Mr. Eggen but declined by him. Typically those types of benefits are available to full- time state employees. At all times prior to the initiation of these cases, the Petitioner Eggen held himself out as "self-employed." Mr. Eggen's work as a hearing officer did not preclude him from representing private clients on matters not in conflict with his role as the child support enforcement hearing officer. The extent of Mr. Eggen's private practice before the volume of child support enforcement hearings caused him to work full-time as a hearing officer is not proved. Whether or not he could perform other legal work at this time is also unknown. The Petitioner Munro is a full-time employee of Mr. Eggen. She is paid a salary and receives a W-2 from Mr. Eggen. Her services to the child support enforcement program are billed to the counties at a daily rate as "clerical assistance." Mrs. Munro designates herself as a "judicial assistant." Mr. Eggen uses monies from the paid county invoices to partially fund Mrs. Munro's monthly wage. Mrs. Munro was hired by Mr. Eggen in approximately 1975. No one from the counties, the Court Administrator's Office, or the Judges of the First Circuit had any input to Mr. Eggen's selection of Mrs. Munro. No one from those entities can fire Mrs. Munro, discipline her, reward her, or pay her. Her sole source of remuneration flows through Mr. Eggen. How Mrs. Munro accounts for her work time to Mr. Eggen was not proved. Neither Mr. Eggen nor Mrs. Munro is required to account for time spent on child support cases to the Court Administrator's Office, the Judges of the First Circuit, or the Department of Revenue. The Petitioners Eggen and Mrs. Munro set the hearing schedule for the child support cases, coordinate the hearings with court space available to conduct the cases, and complete the paperwork associated with the cases at their own designated pace. No one instructs Mr. Eggen as to when he must work, how he must work, or whether he must work. If Mr. Eggen chose not to work, he would not be paid. The completion of the work drives the payments. No work and no invoice to counties would lead to no compensation to Mr. Eggen. Whether Mrs. Munro would be paid by Mr. Eggen under those circumstances was not proved. Neither Petitioner is identified or specified as an employee of the Court Administrator's Office. Neither Petitioner is identified or specified as an employee of the First Circuit. Neither Petitioner is identified or specified as an employee of the Department of Revenue. Neither Petitioner holds a position or job classification that has been identified, specified, or funded by the Florida Legislature. Prior to the initiation of this action, neither Petitioner had ever publicly claimed to be a "state employee." There is no evidence that either Petitioner received a statement of benefits accrued from any state entity setting forth the Petitioners' entitlements or declined benefits. Whether or not any entity pays workers' compensation, leave, or insurance benefits for the Petitioners was not proved. There is no evidence that any state, court or county agency does so. The Court Administrator of the First Circuit is a state agency as contemplated by Chapter 121, Florida Statutes. When the Petitioners first believed they were entitled to benefits as an "officer" or "state employees" was not proved. Clearly, the first claim for FRS entitlement was not filed until 2001, some ten years after Mr. Eggen had been designated to do the work as a child support enforcement hearing officer. Other child support enforcement hearing officers who are considered "state employees" for purposes of working through the Court Administrator's Office are designated "OPS." As such, those employees are not eligible to participate in the FRS nor do they receive other benefits afforded to state employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, issue a Final Order denying eligibility to these Petitioners. DONE AND ENTERED this 1st day of April 2004, in Tallahassee, Leon County, Florida. S J. D. Parrish 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 1st day of April, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 George R. Mead, II, Esquire Moore, Hill & Westmoreland, P.A. SunTrust Tower, Ninth Floor 220 West Garden Street Pensacola, Florida 32501
