The Issue Whether Respondent, a certified public accountant licensed by the Board of Accountancy, violated provisions of the Florida Statutes and Florida Administrative Code as alleged in an Administrative Complaint issued to him by the Board on March 14, 1996. If so, what is the appropriate discipline?
Findings Of Fact The Parties The Petitioner is the Department of Business and Professional Regulation, Board of Accountancy. The Board, "created in the department [of Business and Professional Regulation], Section 473.303, Florida Statutes," is charged with powers and duties under the Public Accountancy Act, Chapter 473, Florida Statutes. Among these is the authority to enter an order imposing penalties up to license revocation whenever it finds "any licensee guilty of any of the grounds set forth in subsection (1). . . [of Section 473.323, Florida Statutes, the '[d]isciplinary proceedings' section of the Act]." Section 473.323(3), Florida Statutes. William David Herron is a certified public accountant, licensed as such by the Board since 1987, having been certified in August of that year. His license number is AC0018690. The offices for Mr. Herron's busy practice are in Sarasota. He describes his practice as unique, "in that most of my clients are elderly, and I still make house calls." (Tr. 277) Approximately 150 clients of Mr. Herron's are senior citizens, that is, over the age of 65. Excluding real estate holdings, Mr. Herron conservatively estimates the net worth of his senior citizen clients to be around 110 million dollars. Among his well-heeled clients (that is, until late 1994 when the Lutheran Ministries of Florida, Inc., was appointed guardian of her person and property and terminated Mr. Herron's professional relationship with her) was an elderly resident of Plymouth Harbor, a Sarasota County retirement center: Florrie Alderson. Florrie Alderson By commencement of final hearing, Florrie Alderson had passed away. At the time of her death, she was in her early 90’s and had been a long-time resident of Plymouth Harbor. When she first began to reside at Plymouth Harbor, where residents are described as a "very affluent group of people," (Tr. 39) Ms. Alderson lived in an individual apartment on the fourth floor. In the first few years of this decade, however, the needs of Ms. Alderson, then in her late 80's, grew more pronounced. She was moved to Plymouth Harbor’s Callahan Center. The Callahan Center is designed for residents in need of a higher level of care than the residents of the area in which Ms. Alderson first resided. Comprised of ten apartments on the second floor, the Callahan Center is close to the nurse's station. Each of the ten apartments is equipped specially to take into account the resident's impairment. (Tr. 45) At the same time, precautions are taken for the protection of the resident. For example, the doors to the rooms automatically close in case of fire. To prevent fires in the first place, none of the Callahan Center apartments have stoves. As an added protection for its residents, the center is equipped with an intercom system. The purpose of the system is self-evident. It is both a communication device, allowing the nurses at their nearby station to interact directly with the residents, as well as a monitoring device, allowing them from time-to-time to hear what is happening inside the apartment of a resident whose needs for assistance and care are numerous and diverse. Part of the intercom system is a red light situated on one of the walls of the resident's room. Whenever the intercom is in use the red light is illuminated. In the case of Ms. Alderson, the intercom system was used for more than just communication and monitoring purposes. It was used to remind her to come down to the dining room. "She did walk to the dining room, but she needed to be reminded." (Tr. 82) In her case, therefore, the intercom system was often in use and, over the years she was in the Callahan Center, it was used "[m]any times." Id. When Ms. Alderson was on the fourth floor of Plymouth Harbor the nurses visited her if she called. When she moved to the Callahan Center, however, and for the two years or so that she lived there prior to January 13, 1994, the nurses "did what they call total care. We did her showers; we assisted her dressing; we combed her hair." (Tr. 84) Ms. Oma Horan, a licensed practical nurse and the person closest to Ms. Alderson with the possible exception of Mr. Herron, described Florrie Alderson and the intimacy with which her care was administered in these words: "Many times I put a little bit of rouge and lipstick [on Florrie]. She was absolutely adorable. She was easy to love, easy to care for." (Tr. 84) Florrie Alderson was also compliant. She was that way with everyone, even other residents of Plymouth Harbor. If someone asked her to do something, she would do it. Oma Horan attributed her compliancy to the sweetness of her nature. Of all the residents "that I cared for" (Tr.85), "she was one of the sweetest." Id. Other than sporadic visits by her attorneys and regular visits by Mr. Herron, Ms. Alderson did not have visitors in the many years she resided at Plymouth Harbor. She had no immediate relatives. The remainder of her family, whom she heard from by letter only on occasion, resided in Great Britain, Florrie Alderson's country of origin. More Than an Accountant-Client Relationship In 1982, prior to being licensed as a certified public accountant, Mr. Herron had a tax and personal bookkeeping practice known as Personal Financial Services of Sarasota. In late 1984, Florrie Alderson was recommended to him as a client. At first their relationship was one of accountant- client. They retained that relationship until Mr. Herron’s dismissal in late 1994. During that time, Mr. Herron on occasion discussed with Ms. Alderson investment options presented by her trustee, Sun Bank. But Mr. Herron did not manage her money. That fell to her trustee, the bank. In contrast, Mr. Herron provided Ms. Alderson with services such as insurance claim filing, balancing her checkbook, preparation of bill payments, reviewing her trust account statements, and preparation of her individual tax returns. But, in Mr. Herron's own words, the relationship grew beyond more than just one of accountant/client. “[I]t evolved into more than that. It evolved into a personal and social relationship over the years. . . ." (Tr. 279) Tea and Bon Bons Sometime in the 1980's, Ms. Alderson invited Mr. Herron to have lunch with her in the dining room at Plymouth Harbor. On later occasions, both Mr. Herron and his wife were invited. Still later, Mr. Herron began seeing Ms. Alderson in her apartment on the fourth floor where "she insisted on making a cup of tea for both of us and having some cookies." (Tr. 279) As might be expected of someone of British origin, Ms. Alderson greatly enjoyed tea. When she moved into the Callahan Center and was without cooking facilities, Mr. Herron purchased a small hot pot with which to heat water to make tea for Ms. Alderson. Ms. Alderson insisted on reimbursing Mr. Herron for the purchase. The two continued to enjoy tea together on a regular basis for as long as Ms. Alderson was at Plymouth Harbor. Ms. Alderson also enjoyed chocolate petit fours. She asked Mr. Herron to order two boxes from a catalog at a cost of $50. Shortly thereafter, Mr. Herron found the same chocolates at a local gourmet grocery store at a cost of only $18 for two boxes. He began buying them for her at a rate of about two boxes twice a month or so until asked by the nursing staff to stop. The chocolate had become too much for Ms. Alderson at her age. During the time Mr. Herron was bringing Ms. Alderson chocolates, however, she insisted on seeing the receipt, reimbursing him and rounding up the reimbursement $5 or so for Mr. Herron's time and gas. At first, Mr. Herron visited Ms. Alderson once a month. Around 1990, he began to visit her twice a month and then in 1991 he began to visit her nearly every week. The increase in the number of Mr. Herron's visits were not far in time from a remarkable gift made by Ms. Alderson to Mr. Herron and a subsequent augmentation of the gift. The gift concerned a revocable trust. Ms. Alderson's Revocable Trust On December 17, 1970, Ms. Alderson executed a Revocable Trust Agreement. Between April 1, 1980 and February 15, 1985, amendments to the trust were executed, numbered the first through fourth. In December 1988, Mr. Herron's wife Sandy, then his office manager, contacted Camden Theodore French, Ms. Alderson's attorney, to advise him of Ms. Alderson's wish to amend the trust a fifth time. Among the changes to the trust to take place by virtue of the fifth amendment, was to name William Herron as a ten per cent (10%) beneficiary of the trust assets. On February 16, 1989, Ms. Alderson executed the fifth amendment. Mr. Herron was now a ten per cent (10%) beneficiary of the trust assets (a value of approximately $30,000,), to be received upon dissolution of the trust, that is, upon the death of Ms. Alderson. Now a beneficiary of a trust of one of his clients, Mr. Herron had concerns about his ethical obligations. His own research into the law and rules governing certified public accountants in Florida revealed only broad standards without specific guidance as to his situation. Feeling that the research failed to provide a satisfactory answer, Mr. Herron consulted an attorney. He was told his concerns were unfounded. He received the same advice from a second attorney. In neither case, however, did Mr. Herron receive an opinion letter. (Nor were the identities of the attorneys revealed at hearing.) In June of 1992, Mr. Herron contacted Mr. French of Ms. Alderson's wish to amend the trust to increase Mr. Herron's interest. On July 8, 1992, Mr. Alderson executed the sixth amendment making Mr. Herron the beneficiary of a 30 per cent (30%) interest, a value of approximately $90,000. In February of 1993, Mr. French received a letter from Ms. Alderson advising him of her wish to amend the trust yet again, this time to increase Mr. Herron's interest to sixty per cent (60%). Questions of Testamentary Capacity Mr. French had been the attorney who had prepared the fifth and sixth amendments to Ms. Alderson's revocable trust and who had assisted her in the execution of the documents reflecting the amendments. When the sixth amendment was executed, Mr. French took pains to ensure that the amendment was, in fact, the will of Ms. Alderson. Although out of the ordinary, Mr. French took another lawyer with him from his office to Plymouth Harbor for its execution. In the presence of this additional lawyer, Mr. French asked Ms. Alderson a series of questions regarding her testamentary capacity. Aside from her advanced age, part of Mr. French’s motivation in asking these questions was his understanding that Mr. Herron was not the natural object of Ms. Alderson’s bounty. In addition to questions about those who would be the natural object of her bounty, he asked her questions about the composition of her assets, their value, and how much she spent a month. The purpose of the questions (asked outside the presence of Mr. Herron to ensure that no "undue influence" was at work,), was so that Mr. French could be satisfied that Ms. Alderson was capable of executing the amendment and fully understood its import. Following this question and answer session, and satisfied that Ms. Alderson possessed testamentary capacity, Mr. French assisted her in the execution of the sixth amendment. When Ms. Alderson sent word to Mr. French in early 1993 that she wanted to amend the trust agreement again to make Mr. Herron a sixty per cent (60%) beneficiary, Mr. French undertook to ascertain her testamentary capacity in much the same manner as he had done with the sixth amendment. On three separate occasions in 1993, the standard questions were asked. On each of the three occasions, it appeared to Mr. French that Ms. Alderson lacked testamentary capacity, so the amendments were not executed. In the interest of caution, Mr. French checked with others. He found that the SunBank trust officer who dealt with the corpus of Ms. Alderson’s trust and her personal physician shared his concern. On each of the three occasions in 1993, when Mr. French visited Ms. Alderson to inquire about her capacity to make Mr. Herron a 60 per cent beneficiary, he made sure that Mr. Herron was not present. By 1993, Mr. French feared that Mr. Herron might have acquired undue influence over Ms. Alderson. Mr. French was also aware that Ms. Alderson, at her advanced age, had good days and bad and that it was possible he had caught her on three of her bad days. He planned to make one final attempt to determine whether she possessed testamentary capacity necessary to execute the seventh amendment to the trust agreement in order to make Mr. Herron a sixty per cent beneficiary. If he were not satisfied at this final inquiry, in all probability he would have concluded that Ms. Alderson was not capable of regaining testamentary capacity. The attempt was scheduled for the day of January 13, 1994. January 13, 1994 Oma Horan, in her capacity as a licensed practical nurse, was with Ms. Alderson almost every day for the years she was a resident of the Callahan Center prior to January 13, 1994. During this period, she observed Ms. Alderson's mental capacity to be failing. Ms. Alderson had begun to dress inappropriately. Left to herself she would not have administered necessary personal care. She had no idea how much money she had or where it came from. Ms. Alderson typically did not know what day it was, even after Ms. Horan showed her the date at the top of the newspaper while reading it to her because, "she was incapable of really reading the newspaper." (Tr. 91) January 13, 1994, was a few days before Ms. Alderson's ninetieth birthday. As Ms. Horan and another nurse, Sally Eisner, emerged from the break room near the nurse's station where they had just finished lunch, they observed Mr. Herron cross the hall from the stairway and enter Ms. Alderson's room. Within a short time, Ms. Horan and Ms. Eisner entered the nurse's station. Ms. Horan pushed down the intercom button to talk to Mr. Herron and Ms. Alderson about plans for the upcoming birthday celebration. The nurses at the Callahan Center are trained to announce themselves immediately whenever they use the intercom system unless they hear conversation in the room. If they hear people talking, out of common courtesy, they wait for a lull in the conversation before announcing themselves. Upon pushing down the intercom button and before she could announce it was in use, Ms. Horan heard Mr. Herron, in a loud voice, explaining to Ms. Alderson how much money she had in her trust. As she listened she heard him also explain to Ms. Alderson what the percentages were of some of the beneficiaries, how much Mr. Herron was now entitled to, and "what it was going to go to." (Tr. 92) Mr. Herron also told Ms. Alderson that there would be people coming to visit her, and she needed to remember what he had told her. Ms. Eisner heard the same thing. It sounded like Mr. Herron was "coaching her. She was to remember exactly the amount of monies that she had because he quoted $300,000; and he was telling her specifically to remember this because there were people coming in for her to sign some papers and that she needed to remember what he was telling her." (Tr. 118) Ms. Horan and Ms. Eisner were alarmed by what they heard. Ms. Horan told Ms. Eisner to call their supervisor, Mrs. Stratton, "because I felt that Florrie was not competent enough to sign anything or -- or to have this change that he wanted changed in the will." (Tr. 93) Ms. Eisner called Ms. Stratton. Ms. Stratton told Ms. Eisner to call the administrator of services. Ms. Stratton then left to go directly to Ms. Alderson's apartment. In the meantime, Ms. Horan and Ms. Eisner left the intercom button down so they could hear Mr. Herron and Ms. Alderson in the room. At no time did Ms. Horan or Ms. Eisner hear Mr. Herron do anything other than speak to Ms. Alderson in a loud voice about her trust assets, beneficiaries' percentages and the impending visit by her attorney, Mr. French. They did not hear Mr. Herron threaten Ms. Alderson. Other than what they interpreted to be "coaching," they did not hear Mr. Herron say anything that could be characterized as coercive. Nor did they hear him promise her anything or seem to be trying to persuade her to do anything. Aside from the effect of whether Mr. Herron was "coaching" Ms. Alderson or simply reviewing her trust documents with her, Mr. Herron's version of the events of January 13, 1994, squares for the most part with Ms. Horan's and Ms. Eisner. Mr. Herron did not threaten, coerce, or make promises to Ms. Alderson. Nor did he attempt to persuade her to do something she did not of her own free will intend. Mr. Herron spoke to her in a loud voice because she was hard of hearing. He reviewed Ms. Alderson’s trust documents with her in order to prepare her for the impending visit by Mr. French. There are, however, some discrepancies in Mr. Herron's versions of what happened that day so fateful to this case when compared with other evidence. In a letter dated March 16, 1995, Mr. Herron related the background and his perspective as to what happened on January 13, 1994, to Daniel J. Hevia, Investigating Officer for the Board of Accountancy and one of the Board's two expert witnesses at hearing. Differing with the evidence establishing that the fifth amendment to the trust was initiated by Mr. Herron’s wife’s telephone call to Mr. French is one of the statements in the letter: The first knowledge I had of being a beneficiary came when Miss Alderson's attorney, Ted French forwarded a copy of the fifth amendment to her trust to Miss Alderson. Miss Alderson told me after she had taken care of all the paperwork. The letter goes on to describe the events of January 13, 1994, and background: As time went along, I saw Miss Alderson on a weekly basis. I would often sit in the early afternoon and have a cup of tea with her as we talked and reviewed whatever business we had. * * * It was clear that she enjoyed the attention and my companionship as much as I enjoyed hers. Miss Alderson would often ask me where her money went when she died. I would review the list with her. One day she decided that the list wasn't right. She said that she didn't want one church to have any, that she hadn't seen her old neighbor in quite a while, and she thought I should have more. I was flattered that she felt such kindness for me. She asked what I would do with the money if she left me more. I told her that my wife and I had a piece of property which we hoped to build a house on one day when we had saved enough money. Miss Alderson said she wanted us to have more to make our dream come true. I was honored. As time went along, Miss Alderson would often ask me where her money was going when she died. I would review the list with her whenever she asked. I began to do this almost weekly. Miss Alderson began saying that I wasn't getting enough. We continued to review the list. Finally she said that she wanted to make a change. Miss Alderson's trust officer left Sun Bank in late February, 1993, and we had not been notified of her replacement. Therefore, when Miss Alderson again decided to change the beneficiaries and prepare a seventh amendment to the trust agreement, she did not know who to contact at the bank. She asked me to arrange for it. She hand wrote a list of beneficiaries for me to keep and sent another list to her attorney, Ted French in February, 1993 . . . Mr. French prepared this amendment and made arrangements to visit Miss Alderson. However, when he did so, he did not feel Miss Alderson was oriented, and he left without her signature. When Miss Alderson again began asking what would happen to her money when she died, we determined that she had not signed the amendment. She asked to do so. She even joked that she might die before she signed! Mr. French again came to Plymouth Harbor to obtain Miss Alderson's signature. Again he left without it since he did not feel she was oriented. This would all happen a third time. At this point I spoke at length to Mr. French because Miss Alderson kept insisting that she wanted to make this change and we better get it done. I was concerned that my continuing to call Mr. French might be misinterpreted; however, Mr. French assured me that he understood that elderly people sometimes had good days when everything was clear and some not so good days when they were confused. At Miss Alderson's request, I agreed to visit with her prior to Mr. French's visit to refresh her memory. Apparently I was overheard during this conversation. Miss Alderson has difficulty hearing, and I had to speak loudly for her to hear me. I had nothing to hide, so the door was open, as it was most every time I visited her. I understand from the petition that the person who overheard me was a nurse, Oma Horan. I know Ms. Horan although I do not recall seeing her on January 19, [sic] 1994. If I had, it would not have seemed unusual to me. Mr. French arrived with two witnesses from his office. I have since discovered that these two people were attorneys in Mr. French's firm. Therefore, three attorneys visited Miss Alderson on January 19, [sic] 1994 to facilitate the signing of this amendment. I had no knowledge of whether or not the seventh amendment had even been signed. I did not pursue the matter any further to determine if it had been signed because Miss Alderson did not ask me to. I had no reason of my own to find out. Petitioner's No. 10, Section F, pgs. F-3 and F-4. When Mr. French arrived with his assistants, Mr. Herron departed. Mr. French conducted his routine inquiry. He determined both that the increase for Mr. Herron represented Ms. Alderson's wishes and that she was competent to execute the amendments. But, Mr. French did not know, although he might have surmised, that Mr. Herron had just gone over with Ms. Alderson the information necessary for her to answer Mr. French's questions. He did not know because Mr. Herron had not told him so. Expectation of Privacy: Behind Closed Doors? While Mr. Herron's letter discloses that he knew his communication to Ms. Alderson on January 13, 1994, had been overheard by Nurse Horan, it appears that at the time of the letter, he did not know it had been heard through the intercom. The letter makes no mention of the intercom. It simply states that, "I understand that the person who overheard me was a nurse, Oma Horan." Id., p. F-4. Indeed, Mr. Herron did not learn that he had been overheard through the intercom until he read the administrative complaint (Tr. Vol. III, pg. 288) issued on March 14, 1996, one year after writing the letter to Mr. Hevia. The letter differs with testimony elicited from Ms. Horan and Ms. Eisner by Mr. Herron's attorney at trial and from testimony given by Mr. Herron under oath at trial. All three testified that the door must have been closed to Ms. Alderson's room during the time that Mr. Herron was reviewing her trust documents with her. Ms. Horan testified that the door closed behind Mr. Herron when he entered the room. (Tr. Vol. I, pg. 96.) Ms. Eisner did not see the door close behind Mr. Herron when he entered but she assumed that the door closed behind him because "[i]t automatically closes." (Tr. Vol. II, Pg. 10.) In describing his visit to Ms. Alderson on January 13, 1994, Mr. Herron testified, "The doors automatically close, so it did close behind me." (Tr. Vol. III, pg. 284.) There is no question that the door was closed. Mr. Herron offered an explanation at hearing of the discrepancy between the testimony and his letter. The reference to the door being "open" in the letter is that he meant that the door was "unlocked." (Tr. Vol. III, pg. 295.) Mr. Herron’s testimony about the door to the room was offered in hopes of establishing that both he and Ms. Alderson had expectations of privacy when the overheard communication about the trust took place. His expectation of privacy is bolstered by the content of the communication: matters related to Ms. Alderson’s trust documents, that is, content normally within the scope of Mr. Herron’s and Ms. Alderson’s accountant- client relationship. But, despite Mr. Herron's claim that he had an expectation of privacy when he was conferring with Ms. Alderson within the bounds of their accountant-client relationship, he has continued to maintain long after his March 1995 letter to Investigator Hevia that he did not have any fear of being overheard. (Tr. Vol. III, p. 325.) Mr. Herron maintains this stance because, in his view, his intent in meeting with Ms. Alderson on January 13, 1994, was to do nothing other than assist her in making sure that her wishes were carried out. Mr. Herron’s written indication, contrary to his testimony, that he did not care whether the meeting was private is supported by what one would expect would have been Ms. Alderson’s expectation (if she were capable of forming an expectation) with relation to the privacy of the communication. As a Callahan resident receiving total care, Ms. Alderson was accustomed to staff coming in and out of her room with regularity. She had been aware for some time that that the intercom could come on at any time whether for a nurse to speak to her, to check on her, or as a reminder to come to the dining facilities. In fact, after the red light came on and remained on in her room as the nurses listened in on January 13, 1994, Ms. Alderson, whether aware of it or not, did not protest that the nurses or others may have been listening through the intercom. There is a legal gloss to whatever Ms. Alderson’s privacy expectations may have been or would have been had she been capable of forming them. The “Residents Bill of Rights,” applicable to residents of facilities such as Plymouth Harbor, states as follows: [E]very resident of a facility shall have the right to unrestricted private communication, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his choice. . . . Section 400.428(1)(d), Florida Statutes. Events After January 13, 1994 Six months after the fateful meeting between Mr. Herron and Ms. Alderson to prepare her for the questions of Mr. French, an Examining Committee appointed by the Twelfth Judicial Circuit Court in and for Sarasota County determined that Florrie Alderson was suffering from senile dementia, rendering her incapable of making decisions as to her finances or care. The committee made its determination as part of a guardianship proceeding. The proceeding had been initiated not as the result of further deterioration of Ms. Alderson’s condition after January of 1994, but rather in direct response to the actions of Mr. Herron and her attorney in allowing her to execute the seventh amendment to her trust. (Petitioner’s Exhibit No. 10, C-4; Finding No. 30, Respondent’s Proposed Findings and Recommended Order.) The response was the result of the judgment of Plymouth Harbor personnel that Ms. Alderson “was not competent to understand the significance of any documents she executed.” (Petitioner’s Exhibit No. 10, p. C-4.) On August 18, 1994, based upon the findings of the Examining Committee, the Circuit Court issued Letters of Plenary Guardianship of Person and Property to the Lutheran Ministries of Florida, Inc., with relation to Ms. Alderson. Mr. Herron was dismissed from Ms. Alderson’s employ, and the guardian asked the Department to review Mr. Herron’s conduct in connection with the case. Nearly one and one-half years later, the Department of Business and Professional Regulation filed an administrative complaint against William David Herron. The Administrative Complaint The Administrative Complaint was filed On March 14, 1996. It charges William Herron with statutory violations under two specific provisions of Section 473.323(1). They are found in subparagraphs (g) and (h): The following acts constitute grounds for which . . . disciplinary actions . . . may be taken: Committing an act of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of public accounting. Violation of any rule adopted pursuant to this chapter or chapter 455. Section 473.323, Florida Statutes. The rules with which Mr. Herron is charged to have violated are Rules 61H1-36.001(1), (17) and (20), Florida Administrative Code: Discipline. The following acts shall constitute grounds for which authorized and appropriate actions may be taken by the Board: A licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of public accounting; * * * A licensee is guilty of fraud or deceit or of negligence, incompetency or misconduct in the practice of public accountancy; A licensee has performed a fraudulent act while holding a license to practice public accounting. After receipt of the complaint, William David Herron requested a formal hearing and this administrative proceeding ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Accountancy suspend the license of William David Herron for a period of one year to be followed by a probationary period of two years with reasonable conditions of probation to include completion of a course in accountancy ethics preferably involving conflicts of interest and gifts from clients. DONE AND ORDERED this 15th day of October, 1997, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 15th day of October, 1997. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Vezina Lawrence & Piscitelli, P.A. Suite 1850 500 East Broward Boulevard Fort Lauderdale, Florida 33394 Paul L. McKean, Esquire 3671 Webber Street, Suite B Sarasota, Florida 34232 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Martha Willis, Executive Director Division of Certified Public Accounting Department of Business and Professional Regulation 4001 Northwest 43rd Street, Suite 16 Gainesville, Florida 32606
The Issue The issue in the case is whether Petitioner’s employment position was properly reclassified from career service to the selected exempt service pursuant to Section 110.205(2)(x), Florida Statutes (2001). All citations are to Florida Statutes (2001) unless otherwise stated.
Findings Of Fact Petitioner was employed with the Department beginning in 1998 as a Grant Specialist. In April 2000, she applied for and was promoted into a newly created position of Operations Management Consultant (OMC) Manager in the Serving Health Insurance Needs of Elders (SHINE) program. The SHINE program is primarily a statewide health insurance counseling program designed to serve Florida’s elders. At the time of her promotion, Petitioner’s new position was classified under the Career Service System. The position was reclassified from Career Service to Selected Exempt Service effective July 1, 2001. Petitioner’s position description describes the duties and responsibilities of the position as follows: The Operations and Management Consultant Manager assists with supervision and coordination of day-to-day volunteer management and program management functions for the SHINE (Serving Health Insurance Needs of Elders) Program. Works [sic] is performed under the supervision of the program coordinator (Senior Management Analyst Supervisor) and in support of the department’s mission, vision and values. The position description also provides percentages of time regarding activities engaged in pertaining to these duties and responsibilities: 30% Manages volunteer support activities for the SHINE Program. Provides orientation, training and ongoing technical assistance to program partners and volunteer leadership; develops resource guides and other tools to assist with programmatic and operational issues; conducts meetings, workshops and seminars to build leadership skills; maintains regular communication with program liaisons and volunteer leadership; disseminates correspondence on key programmatic issues; helps resolve operational challenges; and works to ensure outcomes measures are achieved. 20% Supervises volunteer service functions for the program. Develops protocols and tracking systems for service and support provided to volunteers and staff. Coordinates collection of information for the volunteer database and maintenance of volunteer files. Assists with surveys and evaluations. Supervises activities of program staff. 10% Assists with development, preparation, monitoring and oversight of contracts of agreement with providers and program partners. 10% Performs other duties as assigned by SHINE Program Coordinator. 10% Ensures the aspects of SHINE Program of Information& Referral (I & R), education and outreach are coordinated with the overall agency responsibility in those areas. Supervises staff activities as they relate to these functions. 5% Takes the lead for the preparation for the SHINE grant reapplication and other related new grant applications and opportunities. 5% Assists with budget development. 5% Ensures that required grant reports and narratives are submitted to funder on time and complete. 5% Represents Department of Elder Affairs and SHINE at community education events for the public and the aging network. May make presentations at workshops, community forums and seminars as assigned. Serves as an advocate for elders. Further, the position description lists six positions which are described as “subordinate positions.” This is consistent with the organizational chart of the Division of Self Care and Community Volunteer Initiatives which also reflects six positions directly under her position. However, during the time Petitioner held the position of OMC Manager, there were some reorganizations that resulted in two of the positions being shifted, sometimes being under the authority of Petitioner and sometimes being under the authority of others. In any event, at all times material hereto Petitioner was the supervisor of five to seven persons. Petitioner does not dispute that she performed some supervisory duties. At hearing, she acknowledged that she had supervisory duties, but asserts that she only spent a minimal amount of time in the performance of supervisory activities. Each morning, Petitioner would hold a staff briefing which lasted 15 to 30 minutes with the individuals she supervised. Petitioner described these group staff meetings as an update session to discuss “what’s hot, what are you working on, do you need help, do you need information . . . and more targeted towards continuing to instill a teamwork type of effort in the attitude of the staff.” In addition to her duties regarding staff, Petitioner was also responsible for the oversight of contracts with program providers and with volunteers. These providers and volunteers were not employees of the Department. Petitioner estimates that she spent between 50 and 75 percent of each day on contract management issues. However, in terms of her responsibility to develop, prepare, monitor, and oversee those contracts, she would utilize her staff in order to carry out many of those duties. Tom Reimers has worked for the Department since 1995. He is currently the Director of the Division of Volunteer and Community Services. Prior to that, he served as Director of the SHINE Program. During part of that time, Mr. Reimers was Petitioner’s direct supervisor. According to Mr. Reimers, Petitioner was responsible for the work product of the employees she supervised, in reviewing their work product, in informing those employees when their work product was inadequate, and in evaluating employees including signing their “Review and Performance Planning” forms. Her signature on those employee reviews appears in the line designated for “supervisor’s signature.” Mr. Reimers considered Petitioner to be a full-time supervisor in that Petitioner had the authority to sign time sheets, approve and consider requests for travel, provide information to her employees about their job and about the Department’s mission, ensure that they were carrying out the mission, and provide guidance to her subordinate employees. When Mr. Reimers received communications from the persons under Petitioner’s supervision or needed to communicate something to them, he would generally funnel that communication through Petitioner. Moreover, Mr. Reimers was frequently out of the office due to his job responsibilities. When he was out of the office, Petitioner described herself as a “second-in-command type of individual monitoring the program at home.” Mr. Reimers conducted Petitioner’s employee evaluations. His review of her work included her ability to communicate with employees, whether she was properly assigning and overseeing work of her subordinates, and whether she was motivating her staff. Petitioner received positive evaluations from Mr. Reimers. Petitioner interviewed applicants for at least two employment positions and made recommendations regarding their employment. In both instances, those persons recommended by Petitioner were hired. Petitioner was employed by the Department until March 31, 2002, when her position was eliminated because of loss of grant monies which funded her position. The weight of the evidence supports a conclusion that Petitioner spent a majority of her time supervising employees as contemplated by Section 110.205(2)(x), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Department of Elder Affairs should enter a final order finding that the position held by Petitioner Candace C. McMahon on July 1, 2001, was properly classified into the selected exempt service. DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 17th day of September, 2004.
The Issue The issues in this matter are whether Respondent violated section 112.313(6), Florida Statutes (2013),1/ by obtaining funds from Orange County in the form of a severance payment while remaining employed as General Counsel for the Orange County Clerk of Courts; and, if so, the appropriate penalty.
Findings Of Fact Respondent, Stephan Carter, served as General Counsel for the Orange County Clerk of Courts (the “Clerk’s Office”) from June 2003 through April 1, 2014. Respondent was a public employee at all times material to this action. Respondent was personally hired by Lydia Gardner, the Orange County Clerk of Courts. In January 2005, Respondent and Ms. Gardner executed an employment contract (the “Employment Agreement”). The Employment Agreement was signed by Respondent and Ms. Gardner, in her capacity as the Clerk of Courts, on January 10, 2005, and January 13, 2005, respectively. The Employment Agreement, paragraph 6, entitled “Termination of Employment,” established that the Clerk would pay Respondent a fee should the Clerk terminate the Employment Agreement prior to its expiration date (the “Severance Payment”). Paragraph 6 specifically provided: The Clerk may declare this agreement terminated at any time. . . . The Clerk shall promptly pay to the General Counsel a sum equal to i) the salary and deferred compensation that is accrued but unpaid as of the date of the termination, plus ii) an amount equal to the pro rata portion of his salary for all accrued but unused leave time, plus, iii) an amount equal to the salary and deferred compensation that the General Counsel would have received during the 180 days immediately following the date such termination takes effect, as if this agreement had not been terminated. At the final hearing, Respondent explained that when he accepted the position of General Counsel (then titled “Legal Counsel”) with the Clerk’s Office in June 2003, he informed Ms. Gardner that he would only agree to work for the Clerk’s Office if he could be protected from losing his position. Therefore, Respondent sought and obtained the Severance Payment provision should he be terminated for any reason other than his voluntary resignation. The Employment Agreement provided that Respondent’s term of employment continued until January 6, 2009. On January 7, 2009, Respondent and Ms. Gardner entered a signed agreement wherein the Employment Agreement was “extended indefinitely.” On February 5, 2013, Respondent and Ms. Gardner signed a second amendment to the Employment Agreement.2/ This “clarification of terms” stated: [A]s to the definition of termination in paragraph 6, for the purposes of the contract, termination by the Clerk includes the ending of the employment relationship for any reason other than General Counsel’s voluntary resignation. The amendment also provided that an $11,000 annual payment into Respondent’s deferred compensation plan contained in the original Employment Agreement be considered compensation under Florida Administrative Code Rule 60S-6.001(15)(relating to pensions) and not a fringe benefit. In February 2013, Ms. Gardner became gravely ill. Ms. Gardner’s illness caused her to be absent from the Clerk’s Office. In Ms. Gardner’s absence, Colleen Reilly, the Chief Administrative Officer for the Clerk’s Office, assumed Ms. Gardner’s responsibilities. Ms. Reilly was hired in 2009. At that time, Respondent prepared an employment contract for Ms. Reilly modelled on his own Employment Agreement. In April 2013, Ms. Reilly approached Respondent to talk about their future employment with the Clerk’s Office. Ms. Gardner’s health was deteriorating. Respondent and Ms. Reilly discussed the impact of Ms. Gardner’s death on their positions. Ms. Reilly was also concerned whether the new Clerk of Courts would honor their Employment Agreements. Respondent and Ms. Reilly’s conversation led to a discussion regarding how they could protect the Severance Payments under their respective Employment Agreements. Respondent and Ms. Reilly considered several possibilities. One position was that their Employment Agreements would remain in effect upon Ms. Gardner's death, and they could ask the new Clerk of Courts to honor the payout terms. Respondent, however, determined that the Employment Agreements were not clear on whether he and Ms. Reilly were entitled to the Severance Payments following a change of administration. Therefore, they became concerned whether the new Clerk of Courts would be legally bound to honor the Severance Payments should he or she decide not to retain their services. Respondent, without seeking legal guidance or consulting with outside counsel for the Clerk’s Office, concluded that the Employment Agreements would terminate upon Ms. Gardner’s death. At the final hearing, Respondent explained that he considered his employment to be tied specifically to Ms. Gardner and not the Clerk's Office. Therefore, Respondent reasoned that because both he and Ms. Reilly were hired by and worked directly for Ms. Gardner, her death would terminate their contracts. This termination, of course, would also entitle Respondent (and Ms. Reilly) to the Severance Payment because his employment would have ended for a reason other than his voluntary resignation. Respondent and Ms. Reilly also discussed their plans once their Employment Agreements were terminated. Respondent informed Ms. Reilly that he believed that after the Employment Agreement was terminated, they could continue to work for the Clerk’s Office as “at-will” employees without employment contracts. Respondent encouraged Ms. Reilly to take her Severance Payment then stay in her position with the Clerk’s Office. He intended to do the same. Late in April 2013, Ms. Reilly informed Respondent that she was planning to visit Ms. Gardner, who was on convalescent leave at her home, to ask her to formally terminate the Employment Agreements and make them at-will employees of the Clerk’s Office. Respondent encouraged Ms. Reilly’s endeavor. Respondent then drafted two versions of a memorandum Ms. Gardner could sign to effectuate the termination of their contracts. Ms. Gardner, however, did not agree to terminate the Employment Agreements or sign the paperwork Respondent had prepared. Consequently, the Employment Agreements remained in effect. When Ms. Reilly was not able to obtain Ms. Gardner’s consent to terminate the Employment Agreements, Respondent began to consider Ms. Reilly’s authority to terminate his Employment Agreement. Respondent determined that Ms. Reilly could terminate his contract under section 28.09, Florida Statutes, and they could still receive the Severance Payments. Section 28.09 describes the appointment of a clerk ad interim in the case of a vacancy occurring in the office of a clerk by death. Section 28.09 states that the clerk ad interim “shall assume all the responsibilities [and] perform all the duties” of the clerk. Therefore, because Ms. Reilly would assume all the powers of Ms. Gardner, she would be authorized the terminate his Employment Agreement. Ms. Gardner passed away on May 8, 2013. On May 9, 2013, Ms. Reilly was officially appointed as Clerk Ad Interim for the Clerk’s Office. Also on May 9, 2013, Respondent and Ms. Reilly immediately took steps to obtain their respective Severance Payments. To effectuate their plan, Ms. Reilly promptly terminated both their Employment Agreements using her newfound authority as the interim Clerk. Respondent hoped that this step would remove any questions of their entitlement to the Severance Payment that might be raised by the new Clerk of Courts. Respondent then went directly to the Clerk’s Payroll office. There, he approached Tracy Gasinski, the payroll administrator for the Clerk’s Office. Respondent informed her that Ms. Reilly had approved him to receive a payout. Respondent declared that his payout was authorized because his Employment Agreement was terminated. Respondent also instructed Ms. Gasinski to pay Ms. Reilly’s payout under her Employment Agreement. Respondent stressed that he wanted both payouts processed immediately. Finally, Respondent advised Ms. Gasinski that nobody needed to know about the payout. Ms. Gasinski felt pressured by Respondent. However, based on his representation that Ms. Reilly had approved the payout, she immediately processed a final paycheck for Respondent (and Ms. Reilly), which included the Severance Payment provided in his Employment Agreement. Ms. Gasinski calculated a payout for Respondent in the gross amount of $110,290.61. This figure included a Severance Payment of $76,844.00. In addition, per his request, Respondent was also paid $27,822.10 for all his unused vacation leave (405.57 hours times a rate of $68.60), as well as $5,624.51 for his unused sick leave (327.96 hours times a rate of $17.15). Ms. Gasinski paid 25 percent of Respondent’s sick leave per Clerk’s Office policy. The next day, on May 10, 2013, Ms. Gasinski issued Respondent a check in the amount of $58,400.00 which was deposited directly into Respondent's personal bank account. Ms. Gasinski also deposited a final paycheck into Ms. Reilly's bank account. On or about May 20, 2013, however, Respondent returned to see Ms. Gasinski. He was not happy with his payout. Respondent told Ms. Gasinski that the amount she deposited was incorrect, and he was due more money. Respondent demanded several adjustments which would maximize his Severance Payment. First, referencing the February 5, 2013, amendment to his Employment Agreement, Respondent wanted the $11,000 he received as deferred compensation to be incorporated into his base salary thereby increasing his rate of pay. Second, Ms. Gasinski, in calculating Respondent’s Severance Payment, computed the final payout based on six month’s salary in accordance with the standard practice of the Clerk's Office. Respondent, however, insisted that his Severance Payment be calculated based on “180 days” as specifically stated in his Employment Agreement at paragraph 6. This mathematical adjustment increased Respondent's payout by including payment for all Saturdays and Sundays.3/ Third, Respondent demanded that he receive 100 percent payout for his remaining sick leave instead of just 25 percent as was the Clerk’s Office policy. Fourth, Respondent requested that 56 hours (7 days) be reserved in his vacation leave account and not paid out.4/ Following their meeting, Ms. Gasinski voided the initial payout check. However, she was not comfortable with Respondent’s request based on her understanding of employment contracts. Respondent's and Ms. Reilly's transactions were out of the ordinary course of business for the Clerk's Office. In her experience, final paychecks to Clerk’s Office employees were always accompanied by paperwork from the Clerk’s Office’s Talent Management division. This paperwork came in the form of an Employee Change Notice (“ECN”). However, Respondent did not produce, nor had Ms. Gasinski received, an ECN supporting Respondent’s payout. In Clerk’s Office accounting practices, Talent Management and the Payroll office act as a check and balance for each other. Typically, Talent Management initiates the paperwork, and then Payroll issues the checks. The normal process for a payout when a Clerk's Office employee leaves employment is for Talent Management to notify Ms. Gasinski who then processes the final payout. Respondent did not have the authority to direct Ms. Gasinski to issue the checks. Similarly, Ms. Gasinski did not have the authority to write checks to either Respondent or Ms. Reilly. Furthermore, a final payout upon termination is always via a paper check. Direct deposit to a personal bank account is never an option. The terminated employee picks up the paper check from Talent Management who verifies that the employee's garage pass and badge have been returned. Because of her discomfort with issuing Respondent’s payout check, Ms. Gasinski sought advice from her supervisor, Mike Murphy, the Chief Financial Officer for the Clerk’s Office. Mr. Murphy suggested that Ms. Gasinski contact Talent Management. On May 21, 2013, Ms. Gasinski spoke to Joann Gammichia, the Director of Talent Management, about Respondent’s request for a payout. When Ms. Gammichia learned of the situation, she had immediate concerns. First, Ms. Gammichia wondered why Payroll was issuing a check without any documentation from Talent Management such as an ECN. Ms. Gammichia testified that each employment activity requires completion of an ECN which acts as a recordkeeping system for the Clerk's Office. Because Respondent approached Ms. Gasinski in the Payroll office directly, no ECN or other written record was generated explaining why the Clerk’s Office was issuing the payout to Respondent. Ms. Gammichia explained that the policy of the Clerk’s Office is that payouts, severance checks, termination, or any kind of position change should only occur with an ECN in order to maintain and track the complete history of an employee's tenure with the Clerk's office. Ms. Gammichia also wondered why Respondent went directly to Ms. Gasinski with his demands. The normal starting point for employee changes begins with Talent Management, and the end of the line is financial services and Payroll. The fact that Respondent was attempting to verbally change his employment status in the Payroll office was “highly irregular.” Ms. Gammichia was also puzzled why the Clerk’s Office was issuing a severance payout on an employment contract when the employment was not ending. Consequently, Ms. Gammichia told Ms. Gasinski not to issue the adjusted payout check. Ms. Gasinski then notified Respondent via e-mail dated May 21, 2013, that she could not process the final payout until she received the proper documentation from Ms. Gammichia in Talent Management. Shortly thereafter, Respondent visited Ms. Gammichia’s office to inquire why she was involved in his payout matter. According to Ms. Gammichia, Respondent became “pretty aggressive.” Respondent told Ms. Gammichia that she had no authority or business being involved. It was a personal matter. Respondent warned Ms. Gammichia that she was directly violating an order from Ms. Reilly to make the Severance Payments. Ms. Gammichia informed Respondent that not only was she involved, but she was not authorizing the payout check to go through. Ms. Gammichia further advised Respondent not to contact Ms. Gasinski regarding the payout. Later that day, Ms. Gammichia contacted her supervisor, Cathi Balboa, the Director of Administrative Services for the Clerk’s Office, to discuss Respondent’s payout request. Ms. Gammichia relayed to Ms. Balboa that Ms. Gasinski was upset because she was being asked to prepare a large payout based only on verbal instructions without any supporting paperwork. At the final hearing, Ms. Balboa recalled that Respondent’s urgent request for a payout was highly irregular. Ms. Balboa relayed that the Clerk’s Office should not issue a final payout unless an employee was truly terminated from his or her position. Based on their concerns, Ms. Gammichia and Ms. Balboa called Ms. Reilly, who was sick at home, to confirm whether Ms. Reilly was aware of the payouts that Respondent said she had authorized. Ms. Gammichia also wanted to report the fact that Ms. Gasinski felt that she was being coerced and harassed by Respondent. Ms. Gammichia described Ms. Reilly’s reaction as hostile and negative. Ms. Reilly did not seem happy that others were involved. Ms. Reilly asked Ms. Balboa, “How did you get involved in this?" The next morning, on May 22, 2013, Ms. Reilly returned to the Clerk’s Office and called a meeting with Mr. Murphy, Ms. Balboa, and Respondent. Ms. Reilly opened the meeting by asking Mr. Murphy and Ms. Balboa "what do you think your role is in this organization," and "where do your loyalties lay?" Ms. Reilly then announced that “it was a private matter, it was their personal business, [and] to stay out of it." Ms. Balboa testified at the final hearing that Ms. Reilly intimidated her in their meeting. Mr. Murphy conveyed that he understood that they were not to get involved in the severance payout matter. After the meeting, Ms. Gasinski was told to proceed with the payouts for Respondent and Ms. Reilly. On May 23, 2013, Ms. Gasinski processed a second severance payout check for Respondent and Ms. Reilly. Ms. Gasinski prepared for Respondent a revised final paycheck in the total amount of $156,443.11. This amount included a Severance Payment of $106,387.20. Respondent was also paid $25,826.23 for his vacation leave (349.57 hours times a rate of $73.88), as well as $24,229.68 for all his unused sick leave (327.96 hours times a rate of $73.88). A check in the net amount of $99,125.45 was deposited in Respondent’s personal bank account. On May 23, 2013, Respondent repaid the initial payout of $58,400.00 to the Clerk’s Office by personal check. After Ms. Reilly terminated his Employment Agreement on May 9, 2013, Respondent never left his position with the Clerk’s Office. Respondent considered himself an at-will employee and continued to report to work as General Counsel. There was never any break in his employment. At no time did Respondent (or the Clerk’s Office) initiate or complete any paperwork to rehire Respondent after either Ms. Gardner’s death or Ms. Reilly terminated his Employment Agreement. No documentation was prepared transitioning Respondent from a contract employee to an at-will employee. Respondent continued to perform the same duties under the same terms, conditions, and compensation contained in the Employment Agreement as if he never left office.5/ At the final hearing, Respondent testified why his interpretation of his Employment Agreement justified his actions and motives. Respondent first remarked that his Employment Agreement was not typical for a Clerk’s Office employee. It contained certain provisions which were not to be “exposed generally,” such as the termination clause and the contact termination fee. Therefore, he desired to keep his employment terms quiet. Respondent further disclosed that he did not initiate an ECN because his Severance Payment was not a human resources issue, it was a matter of contract. Respondent also explained that at the end of 2008, when his Employment Agreement was nearing its initial termination date, Respondent became concerned with his future at the Clerk’s Office. He began to wonder what would happen if Ms. Gardner left her position as Clerk. Therefore, he prepared, then executed, the 2009 amendment to the Employment Agreement extending it “indefinitely.” In 2013, Respondent prepared, then executed, the second amendment clarifying the term “termination.” Regarding collecting his Severance Payment without leaving his position with the Clerk’s Office, Respondent contended that just because his Employment Agreement was terminated (thus, entitling him to the Severance Payment) did not mean he had to leave employment with the Clerk’s Office. Respondent characterized the payment as a “contract termination fee.” Therefore, he asserted that the Clerk could terminate his Employment Agreement without actually terminating him from his position as General Counsel. Consequently, nothing prevented him from becoming an at-will employee. Accordingly, when Ms. Reilly terminated the Employment Agreements on May 9, 2013, by exercising her prerogative as the interim Clerk, she also decided that both Respondent and she would stay on with the Clerk’s Office as at-will employees until the new Clerk of Courts determined what to do with them. In February 2014, the new Clerk of Courts, Eddie Fernandez, determined to initiate an investigation to review the propriety of the 2013 Severance Payments to Respondent and Ms. Reilly. On March 28, 2014, Respondent was placed on administrative leave with pay. On April 1, 2014, after the investigation recommended that Respondent’s employment be terminated, Respondent resigned from his position with the Clerk’s Office. As a condition of his resignation, Respondent was not eligible for rehire by the Clerk’s Office. Respondent reimbursed the full amount of the money that he received as the Severance Payment from the Clerk’s Office. Commenting on the circumstances of his resignation and restitution, at the final hearing, Respondent urged that he did not act dishonestly, but, maybe he exercised bad judgment. Respondent also proclaimed that he received his Severance Payment because the interim Clerk ordered it, not by reason of his actions or conduct. Therefore, he personally never violated any duty of his office. Based on the evidence and testimony presented during the final hearing, the competent substantial evidence in the record establishes, by clear and convincing evidence, that Respondent acted corruptly, with a wrongful intent, in seeking and obtaining the Severance Payment when he never intended to leave his public employment with the Clerk’s Office. Accordingly, the Advocate proved that Respondent violated section 112.313(6).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent, Steven Carter, violated section 112.313(6), Florida Statutes; and that Respondent be subject to public censure and reprimand. DONE AND ENTERED this 3rd day of January, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 3rd day of January, 2017.
Conclusions Having reviewed the Notice of Intent to Impose Fine, attached hereto and incorporated herein (Exhibit 1) , and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Exhibit 2) with the parties to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Respondent shall pay, within ninety (90) days of the date of rendition of this Order, the amount of five thousand dollars ($5,000.00). 1 Filed December 2, 2009 10:55 AM Division of Administrative Hearings. Checks should be made payable to the "Agency for Health Care Administration." The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. The Respondent's request for an Administrative proceeding is hereby withdrawn. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. DONE and ORDERED this day of-----=---....:::...:---=-----=--- 2009, in Tallahassee, Leon County, Florida. nold, Secretary alth Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. 2 Copies furnished to: Camilla Walker, RN All Professional Health Care, Inc. 2755 South Federal Highway Boynton Beach, FL 33425 (U.S. Mail) Thomas J. Walsh II, Senior Attorney Agency for Health Care Admin. 525 Mirror Lake Drive N. #330G St. Petersburg, Florida 33701 (Interoffice Mail) Jan Mills Agency for Health Care Admin. 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Admin. Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Administrative Law Judge Div. of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the / f <, 2009. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 3 .j 1m ICA Cet tif1cd Article Number 7160 _3901 9848 138? SENDERS RECORD 0'100J.3S3 CHARLIE CRIST GOVERNOR March 3, 2009 FLOIIIDA/>GENCY FOR HE.Al.lH a.RE.ADMINISTAAllON Better Health Care for all Floridians _tj.... :.·,;'.·.·/; l·: \:'j·1.=\-:. i .:V I-'"·)1l\''-t.'1:!f'';•.r·"•jiF•. ,;,,·"'h HOLLY BENSON SECRETARY AARON L DURALL ll\(1rn_ 1 ] zoog ALL PROFESSIONAL.HEALTH CARE, INC-.. .. LICENSE NUMBER: 299991585 2755 s FEDERAL HWY, STE 20 6f'·"o1.·{, >'1•,6:J'u'1.::i,'-,.,ff) 't l1 ,,tf,,,:··:;t,i'l,' II,/,J'·i y,1.-.(,;u:,:\,•;1•,l BOYNTON BEACH, FL 33435 r,-·'•1.\\:-, {\ fi\ ;:.•!\ ;ii.r, / 1 ':ia!•l:l'.iw,·r·' CASE#: 2009002353 0 , •• , •• ,..., 1....., •, .._,..._ ,., u uu ....,.,,:a, ... J,.,...,:,, K NOTICE OF INTENT TO IMPOSE FINE Pursuant to Section 400.474 (6) (f), Florida Statutes (F.S.), a fine of $5,000 is hereby imposed for failure to submit the home health agency quarterly report within 15 days after the quarter ending September 30. As required in section 400. 74(6) (f), F.S., the agency shall impose a fine of$ 5,000. TO PAY NOW.PAYMENT SHOULD BE MADE WITHIN 21 DAYS AND MAILED WITH A COPY OF THIS NOTICE OF INTENT TO:. Agency for Health Care Administration Finance and Accounting, Revenue Section OMCManager 2727 Mahan Drive, MS #14 Tallahassee, FL 32308 Include License Number: 299991585 and Case Number: 2009002353 in check memo field. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must confotm to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION OF RIGHTS FORM. Agency for Health Care Administration By: Anne Menard, Manager Home Care Unit cc: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 2727 Mahan Drlve,MS#34 Tallahassee, Florida 32308 EXHIBIT_L STATE OF FLORIDA
The Issue The issue in this case is whether Respondent, Florida A & M University Board of Trustees (“Board of Trustees”), improperly reassigned Petitioner, Dale Cassidy, to an alternative position at Florida A & M University (“FAMU” or the “University”); and, if so, whether Petitioner is entitled to damages or other relief.
Findings Of Fact Petitioner is a former employee of the University. He was hired in 2014 as vice president of Finance and Administration/Chief Financial Officer (“vice president of Finance/CFO”). He assumed the position at a starting annual salary of $195,000. In August 2015, he assumed additional duties and his salary was increased to $220,000 in recognition of the additional responsibilities. Petitioner served as vice president of Finance/CFO until March 14, 2017. Respondent is the Board of Trustees for FAMU, a university within the State University System. FAMU is a nationally known, historically black college located in Tallahassee, Florida. On Friday, March 11, 2016, Petitioner was visited in his office at FAMU by two individuals: Jimmy Miller and Santoras Gamble. The two came into his office as emissaries of the then-President of FAMU, Elmira Mangum. Miller was President Mangum’s chief of staff; Gamble was a “special assistant” to the President. The purpose of Miller and Gamble’s visit was to hand-deliver to Petitioner a letter signed by the President notifying Petitioner of a “change-in-assignment.” Specifically, Petitioner was being removed from his position as vice president of Finance/CFO and reassigned to the newly created position of Chief External Compliance and Ethics Officer (referred to herein as the “Ethics Officer”). His annual salary in that position would be reduced to $176,000 and he would receive normal (as opposed to enhanced) fringe benefits.1/ He would no longer be eligible to participate in the Executive Service pay plan which existed for certain high-level administrative and professional (“A&P”) staff. Petitioner’s change in assignment was to take effect the following Monday, March 14, 2016. Petitioner read the letter from President Mangum and dropped it on his desk. The two emissaries asked if he had any questions about the letter. He either told them he did not have any questions or he told them, “[no questions] that you can answer.” Either way, that was the end of the discussion between Petitioner and the two representatives of President Mangum. Miller, Gamble, and Petitioner then left Petitioner’s office and toured Lee Hall, purportedly looking for a new office for Petitioner once he assumed his new role. President Mangum’s office is also located in Lee Hall. Petitioner was ultimately moved to an office in the Foote-Hilyer building. On the day after the reassignment took effect, Jimmy Miller, as President Mangum’s chief of staff, issued a memorandum to the Board of Trustees. The memorandum outlined the changes in senior leadership assignments, including Petitioner’s reassignment to the position of Ethics Officer.2/ Over the next couple of weeks, Petitioner made his displeasure with the reassignment made known to a number of people. He was, however, especially unhappy that news of his reassignment (and presumptive demotion) was reported in the Tallahassee Democrat, the local newspaper. Petitioner moved into his new office on the fourth floor of the Foote-Hilyer building, in a suite of offices occupied by the vice president of Research, within two weeks of receiving the job change notice. On the day before he moved into his new office, Petitioner drafted a memorandum to his personnel file concerning his reassignment. The memo included the statement, “I accept this new role and pledge to perform the related duties . . . to the best of my ability.” On the day he assumed the new position, Petitioner wrote another memo that he asked to be placed in his personnel file. In the memo, Petitioner essentially complained that he had not been given any specific reason for the reassignment from the position of vice president of Finance/CFO. The memo did not mention that President Mangum’s emissaries had asked him if he had questions about the letter or that he had no questions for them. Petitioner did not point to any requirement in University regulations (or otherwise) that the President was required to give him a specific reason for the transfer. In fact, all A&P employees serve at the pleasure of the President and could have their employment terminated at any time, with or without cause. Petitioner received a request from President Mangum for him to meet with her concerning the change in assignment. The meeting was held (albeit on a day other than proposed by the President, pursuant to Petitioner’s request). At the meeting, ultimately held on March 21, 2016, Petitioner was presented with his new employment contract for the Ethics Officer position. He refused to sign the contract, citing his reasons, to wit: 1) He had not been told specific reasons why he could no longer serve as vice president of Finance/CFO; and 2) the President had not shared with him her vision of how she expected him to perform his duties in the new role. By not signing the employment contract, he knew that President Mangum would be within her rights to terminate his employment altogether. Petitioner seems to acknowledged that President Mangum “consulted” him about the new job classification at the meeting. He maintains, however, that it was too late to hold the consultation at that time. He provided no support or rationale for his stance. Petitioner then attempted to negotiate a different job description for the position to which he had been assigned. He asked for more salary, that the position be “interim” in nature, and that he retain his Executive Service benefits. President Mangum informed him that the University’s human relations department had “market priced” the salary and that it would not be changed. There is no evidence the other issues he raised were discussed at that time (or later, for that matter). As noted, Petitioner moved into his new office space on March 14, 2016, and by all appearances, assumed his duties as the Ethics Officer. He nevertheless maintains he did not believe he had ever formally served in that capacity. This testimony contravenes a memo he wrote on the day of his meeting with President Mangum. The memo, written to his personnel file, said, “I currently plan to accept the role [of Ethics Officer].” On June 21, 2016, Petitioner attended a seminar in Orlando relating to ethics and compliance officer regulations. In his travel request form, Petitioner identifies himself as “Officer, Compliance” and affirmed that the seminar constituted official business. His travel was approved and he attended the seminar. At final hearing, Petitioner said he attended the seminar as “an employee of the university” but not as the Ethics Officer. There is no evidentiary support for that contention and it seems unlikely in light of his travel documents. From March 14, 2016, until his resignation from employment, effective December 29, 2016, Petitioner was considered by the University to be its Ethics Officer. He performed duties associated with that position, operated out of the office assigned to that position, and accepted compensation for serving in that position. The University human resources officer (who was called as a witness by Petitioner at final hearing) opined that Petitioner’s actions clearly confirmed that he had accepted the position. A further example: On August 19, 2016, Petitioner issued a report on matters relating to his position as Ethics Officer. He signed the report, noting his position as “Acting Chief Compliance & Ethics Officer.” Petitioner said he signed the report that way because FAMU did not have “acting” administrative employees; they were either permanent or interim. However, Regulation 10.106(1)(b) states, “A&P employees who are appointed to established positions with an appointment status modifier or type, other than Regular (for example, Acting, Temporary or Visiting) are not entitled to a notice of non- reappointment.” Granted that section is referring to non- reappointment and addresses established positions, neither of which is relevant to the instant matter, but it does show that “Acting” is a nomenclature used by FAMU for A&P employees. Petitioner is seeking the difference in pay and benefits he received as Ethics Officer versus what he had been making as vice president of Finance/CFO, for the time period March 14 through December 29, 2016. He asserts that since he never signed the contract to be Ethics Officer, he never officially served in that position. The Personnel Action Request (“PAR”) in Petitioner’s personnel file was signed by President Mangum, the appropriate vice president (Ronica Mathis), and the HR Officer; and it clearly reassigns Petitioner to the position of Ethics Officer, effective March 14, 2017. The PAR, which sets out the employee’s current position, proposed new position, salary and other information, need not be signed by the employee. He or she would only be provided a copy of the PAR if they requested to review their personnel file. When asked what services he performed during his tenure as Ethics Officer, Petitioner responded, “Whatever the President, as my supervisor, asked me to do, which was largely nothing.” Petitioner did not provide further elucidation as to how doing “largely nothing” warranted additional payment from the University. Petitioner maintains he was not properly advised of his proposed reassignment pursuant to relevant University regulations. He cites to Regulation 10.209, Change-In- Assignment of Faculty and Administrative and Professional Employees, which states in pertinent part: The President or President’s designee may for the best interest of the University, at any time, assign a Faculty or Administrative and Professional (A&P) employee to other institutional assignments only after consultation with the employee and the departments or other units affected. Regardless of the change-in-assignment, however, the University is committed to compensate the employee. Despite being asked by the President’s designees (Miller and Gamble) on March 11, 2016, whether he had any questions about the reassignment, Petitioner maintains he had no “consultation” as required by the regulation. Rather, he posits, all he received was “notice” of the reassignment. Petitioner points out that the dictionary definitions of consultation and notice are different and they do not share the same synonyms. From Petitioner’s perspective, consultation would involve some degree of give and take between the President and the employee. Or, as he stated in his PRO filed in this case, the synonym for consultation is “asked to discuss or exchange views” of a matter. Petitioner says that Miller and Gamble asking him if he had any questions was not sufficient “consultation” on the matter. Petitioner provided no other support for his position. Further, Petitioner points out that Richard Givens, vice president of Audit and Compliance, was not notified about Petitioner’s reassignment. Petitioner maintains that Givens’ office was affected by the reassignment and thus should have been consulted as well. Givens stated at final hearing that his office “could have been affected” by the reassignment, but ultimately it had not been affected. Timothy Moore, vice president of Research, maintains that consultation means nothing more than a letter, email, phone call or other means of transmitting the fact to an employee. Clearly, Petitioner was provided notice of the reassignment and had opportunity to consult with the President’s representatives, but he refused to do so. Givens received notice of the reassignment when he read about it in the local newspaper. He does not remember being advised by anyone at FAMU concerning the change before it occurred, but received written notice on the day Petitioner started his new position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Florida A & M University Board of Trustees, upholding the employment action as to Petitioner, Dale Cassidy, and denying Petitioner’s claim for damages or other relief. DONE AND ENTERED this 13th day of April, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2017.
The Issue The issue presented is whether Respondent Fred R. Catchpole is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent Fred R. Catchpole became a licensed appraiser in the State of Florida in 1993. In 2006 he became a certified residential appraiser in the State of Florida. He is still so licensed. Since 1994 he has maintained offices at 5449 Marcia Court, in Jacksonville, Duval County, and at Unit 202, 533 Seabreeze Boulevard, in Daytona Beach, Volusia County. In 1995 he added an office at 303 Hermitage in Valrico, Hillsborough County. He has maintained all three offices continuously from then through the date of the final hearing in this cause. Since opening these offices, he has provided the addresses for all three offices to Petitioner, and Petitioner's employees have visited all three offices. When the law changed, Respondent registered his corporation Worldwide Appraisal Service, Inc., with Petitioner and specifically registered his corporation at all three addresses. Each of the three offices is a stand-alone operation, with its own separate bank accounts and separate accounting systems. Respondent has, historically, worked two days a week at each of the three offices. He considers each of those offices to be his "primary" office since they operate separately and he spends an equal amount of time in each of them. Over the years Respondent has supervised a number of trainee appraisers, among them Fred C. Bowermaster and William E. Woods. He has supervised Bowermaster from January 24, 1995, through the time of the final hearing except for one four-month time period. He has supervised Woods from August 28, 1995, through the time of the final hearing. It is noted that Petitioner's records reflect that Respondent's supervision of Woods started both in 1995 and in 1998. Bowermaster works in Volusia County at Respondent's Seabreeze Boulevard address. Bowermaster is 71 years old and is described by Respondent as "the oldest living trainee." For a while, Woods worked in Duval County and then moved to Hillsborough County. Respondent describes him as "the second oldest trainee." At all times, all required paperwork and notices of address and changes of address were filed by Respondent, Bowermaster, and Woods. When a licensee has more than one business address, Petitioner requires that the licensee register all addresses. At all times, Respondent has complied with that requirement. There is no prohibition against a licensee having more than one office or more than one business address. At all times material hereto, when Respondent has been present at one of his offices, he has maintained communication with the others. He has also had other certified appraisers assisting him in the training and supervision of his trainees. Duval County is not contiguous to Volusia County or Hillsborough County, and Hillsborough and Volusia Counties are not contiguous to each other. Petitioner has never taken any disciplinary action against Respondent, Bowermaster, or Woods.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Amended Administrative Complaint filed against him. DONE AND ENTERED this 11th day of May, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th of May, 2010. COPIES FURNISHED: Robert Minarcin, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757 Martin A. Pedata, Esquire Martin Pedata, P.A. 150 Wildwood Road Deland, Florida 32720 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. O'Bryant, Jr., Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite 802 North Orlando, Florida 32801
Findings Of Fact Petitioner was employed with the Department beginning in 1988 as a Family Services Counselor. In January 2001, she was promoted to the position of Family Services Counselor Supervisor. At the time of her promotion, Petitioner’s new position was classified under the Career Service System. The position was reclassified from Career Service to Selected Exempt Service (SES) effective July 1, 2001. At the time she was promoted, Petitioner carried a full load of cases. Typically, a family services counselor would carry a case load of approximately 40 cases. After her promotion, Petitioner kept working on many of her cases, as opposed to reassigning them to family services counselors who were her subordinates. Petitioner insists that she continued to personally work on cases because there were not enough family services counselors to handle the case load and that the work needed to be done. Some of the duties she continued to perform, which were duties normally performed by family services counselors, were writing judicial reviews for court proceedings involving clients, writing case plans, and completing daycare referrals. Petitioner does not dispute that she performed some supervisory duties. At hearing, she acknowledged that she performed supervisory duties, but asserts that she spent less than 50 percent of her time in the performance of supervisory activities. Petitioner acknowledges, however, that the time she spent on non-supervisory tasks lessened as time went on and that by September 2001, more employees were added to the Department and she performed more supervisory tasks. The supervisory tasks that she performed included approving timesheets, and travel and leave requests of the employees she supervised. Petitioner also reviewed and approved reports prepared by subordinates. She had daily contact with her subordinates, in person and by telephone, providing direction and assistance when needed and encouraging employees to meet responsibilities. Petitioner held monthly staff meetings with subordinates which generally lasted one hour and coordinated the work of her unit, keeping abreast of court hearings and required reports. Petitioner’s position description is not in evidence. However, a 2001 position description of another Family Services Counselor Supervisor is in evidence and describes the duties and responsibilities of the position as follows: This is a highly responsible supervisory position regarding expertise in the management and delivery of the Department of Children and Families services for children and families. The position description also provides percentages of time regarding activities engaged in pertaining to these duties and responsibilities: 60% Supervision and training of counselors and clerical staff who administer the Protective Services and Voluntary Family Services Programs. Administrative duties include, but are not limited to: insuring programmatic policies, goals and procedures are complied with, case review and assignment, evaluates employee performance, develops corrective action plans, statistical reporting, approves leave, maintain case record controls within the unit, and reviews and approves all correspondence including court documents and reports. 15% Coordinate and maintain open communications with other C&F units, law enforcement, judicial system, school system and other public and private agencies. 15% Participate in staffings and meetings with other supervisors, administrators and outside agencies, public speaking, general community relations and training sessions. 5% Performs travel in relation to the above duties in order to provide more effective supervision of direct services staff and to evaluate and monitor the delivery of direct services to clients. Travel is also performed for purposes of attending or conducting staff meetings, conferences, training sessions, etc. and in relation to other duties as required. 5% Performs other related duties as required. Thomas Sylvester is currently Program Operations Administrator for the Department. Prior to that, he served as an Operations Manager Consultant II. During that time, Mr. Sylvester supervised Petitioner’s supervisor, which placed her in his chain-of-command from October 2000 until her resignation in November 2001. He congratulated her when she received the promotion to family services counselor supervisor and advised her to wean her caseload within 30 days. According to Mr. Sylvester, Petitioner was in charge of a foster care unit, which usually consisted of six family services counselors and a secretary. She was responsible for coordinating the activities of the counselors, reviewing the work product of the employees she supervised, giving them direction, and generally seeing that the work allocated to her unit was done correctly and in a proper manner. Mr. Sylvester considered Petitioner to be a full-time supervisor with the authority to evaluate her employees, hire or recommend hiring, promote or recommend promotion, discharge or recommend discharge, discipline or recommend discipline. Mr. Sylvester confirmed that the position description in evidence for a family services counselor supervisor is a standard position description for that position in 2001 and that the duties and responsibilities on the form would have been the same as for Petitioner. That assertion is accepted as credible. Sarah Craney is an Operations Review Specialist for the Department. In 2001, she was a Program Administrator. She was Petitioner's direct supervisor from approximately August 2001 until Petitioner's resignation in November 2001. Prior to August, Petitioner was supervised by Terry Merkerson. Petitioner recalls that in June 2001, Ms. Merkerson instructed her to remove Petitioner's name from all of the cases that she was handling, with the exception of three cases that involved the termination of parental rights. Petitioner transferred cases from her name to one of her family support counselors under her supervision, Debra Baptiste. Ms. Craney and Mr. Sylvester concur that Petitioner should not have maintained a caseload when she became a supervisor and that it was inappropriate for her to do so. Petitioner insists that Ms. Merkerson did not inform her that she needed to transfer the bulk of her cases to her subordinates until June 2001, and that Ms. Merkerson did not specify that she could no longer work on the transferred cases after transferring them to a subordinate. Petitioner's testimony that she continued to work on cases after her promotion in January 2001, which required her to perform many non-supervisory tasks, is accepted as credible. However, she was told in June 2001, the month before the position was reclassified as supervisory, to reassign all but three of her cases. It is not logical that Ms. Merkerson, who did not testify, would instruct Petitioner to transfer the cases yet expect her to continue to do the bulk of the work on them. In any event, as more employees were added, Petitioner began to spend more time on supervisory tasks so that the majority of her time was spent as a supervisor. In October 2001, Ms. Craney wrote a memorandum to Mr. Sylvester and Mr. Barry, the District Administrator, listing concerns Ms. Craney had about Petitioner's work performance as a supervisor and recommending that Petitioner be terminated from employment. Petitioner was employed by the Department until November 2, 2001, when she resigned pending being terminated. The weight of the evidence supports a conclusion that the position of Family Services Counselor Supervisor was properly classified as supervisory consistent with Section 110.205(2)(x), Florida Statutes, and that at the time the position was reclassified in July 2001, Petitioner spent a majority of her time supervising employees as contemplated by Section 110.205(2)(x), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order finding that the position held by Petitioner Janet Mitchell July 1, 2001, was properly classified into the selected exempt service. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 28th day of July, 2006.
Findings Of Fact Tooze holds certificate number R-0434 as a Certified Public Accountant practicing in the State of Florida and held such certificate in good standing on January 1, 1974. At that time, Tooze was subject to professional certification requirements set forth in Chapter 473, Florida Statutes. The records of the Board reflect that Tooze provided no evidence of the completion of any courses or studies that would give him credits toward the reestablishment of his professional competency in the period between January 1, 1974, and April 2, 1977. On October 15, 1976, Tooze sat for an examination which was approved by the Board and given to practicing Certified Public Accountants pursuant to applicable law requiring re- establishment of professional competency. Tooze received a score of 64 out of a possible score of 100. The established passing grade for the examination is 75. Tooze received nine credit hours for the examination he took. On May 13, 1977, the Board suspended Tooze's certificate R-0434 as a Certified Public Accountant for failing to comply with requirements for the reestablishment of his professional knowledge and competency to practice public accounting. The questions to be answered in the uniform written professional examination administered to Tooze on October 15, 1976, were based upon "Current Authoritative Literature" which included Accounting Principles Board's Opinions, Accounting Research Bulletins, Statements and Interpretations of the Financial Accounting standards Board, Statements on Auditing standards, and the Laws and Rules of the Florida State Board of Accountancy. Tooze challenges sixteen of these one hundred questions on the grounds that the approved answers are incorrect and that the answer selected by Tooze is the proper choice. The questions attacked by Tooze are numbers 13, IS, 18, 51, 56, 61, 63, 67, 72, 74, 78, 80, 82, 95, 96 and 99. The title of the uniform written professional examination is "Examination of Current Authoritative Accounting and Auditing Literature and Rules of the Florida State Board of Accountancy. The approved answer to each of the questions on the examination is that which is mandated by the "Current Authoritative Literature." The examination does not purport to seek answers outside of the requirements of the Current Authoritative Literature. Each of the approved answers in the sixteen questions listed above are consistent with the demands of the Current Authoritative Literature. Each of Tooze's answers is contrary to the provisions of the Current Authoritative Literature. Accordingly, the answers selected by Tooze are not the best answers and were properly graded incorrect on his examination answer sheet.
