The Issue The issue is whether Respondent should be terminated from employment with the City of Clearwater (City) for falsifying his pre-employment medical application, as alleged in the City's Termination and Dismissal Notice (Notice) dated July 7, 2014.
Findings Of Fact From 1995 until early 1999, Respondent was employed by Pinellas County (County) as a Maintenance Worker II. See Ex. A, p. 5. In April 1998, he suffered a knee injury during a County- sponsored softball game. Due to the injury, he was dismissed from employment with the County on February 25, 1999, on the ground he was incapable of performing the essential functions of his job classification, even with a reasonable accommodation.1/ See Ex. I, p. 6. At that time, Respondent was determined to have reached maximum medical improvement with a permanent impairment rating of 36 percent. See Ex. I, p. 7. This meant that he could only perform his job duties at a 64 percent level. In return for releasing all claims, in 2005 he received a payment from the County in the amount of $100,000.00 as settlement for his on-the-job injury. See Ex. I, pp. 28-31. In October 2011, Respondent applied for a position with the City.2/ See Ex. A. As a part of the employment process, an applicant is required to complete an Application for Employment (Application). The Application required Respondent to certify that "the information contained in this application is correct and complete to the best of my knowledge" and that "any false information provided by [him] to the City may constitute grounds for immediate discharge regardless of when the information is discovered by the City." Id. at p. 4. If the City decides to hire an applicant, he must then complete and submit a Medical History Questionnaire (Questionnaire). Respondent completed and filed the Questionnaire on November 21, 2011. See Ex. C. Based upon his Application and Questionnaire, Respondent was offered a position as a Park Service Technician I, a "basic manual, landscape" entry-level position in the Parks and Recreation Department. He began working in December 2011. In January 2013, he was reclassified as a Park Service Technician II. Both positions are labor-intensive and required Respondent to lift, push, or pull items weighing up to 75 pounds. See Ex. B., p. 2. In short, the job involves physical work 100 percent of the time and is considered "one of the [City's] heaviest positions, in terms of the physical labor requirements." Because of the nature of the work, the City will not hire any applicant with an existing medical disability for these positions. The City has adopted a Performance and Behavior Management Program manual that applies to all employees and contains Citywide, Integrity, and Departmental standards of conduct. Also, pursuant to the Code of Ordinances (Code), the Civil Service Board has adopted a set of rules and regulations that apply to all positions in the civil service, including Respondent's position. Among other things, those regulations set forth additional grounds for disciplining an employee. Question 2.10 of the Questionnaire asks if the applicant has "[a]ny permanent physical condition which received an impairment rating?" Respondent answered no. In response to question 2.11, he denied having any health-related reason that might affect his ability to work as a park service technician. In response to question 2.6, he denied having any injury, operation, disease, or disability not covered by previous questions. In response to question 2.10, he denied having any physical conditions which received an impairment rating. Each of these responses was not true. He also failed to answer questions asking if he had ever filed an injury report with a previous employer (question 2.5) or had ever received a settlement for inability to work (question 2.9). In the comments section of the Questionnaire, Respondent stated that he twisted his knee in 1998, he had arthroscopy on the knee (a minimally invasive surgical procedure), but he had no existing problems. For unexplained reasons, the City either failed to notice that questions 2.5 and 2.9 were not answered, or it did not ask Respondent to complete the form. Respondent had two injuries on the job while working with the City, both of which resulted in him filing workers' compensation claims. When the second injury was being processed by the insurance carrier in May 2014, it noted that Respondent had previously filed a claim with the County in 1998 and instructed the City's Risk Department to contact the County.3/ The City then learned for the first time that Respondent had a permanent disability rating of 36 percent assigned in 1998 and that, in 2005, he had received a $100,000.00 settlement for his injury. Apparently for the first time, the City also noticed that Respondent had not answered questions 2.5 and 2.9 on his Questionnaire. After discovering this information, the Parks and Recreation Department Director recommended that Respondent be terminated for violating City rules and standards. The Director testified at hearing that had this information been initially disclosed, he would not have hired Respondent due to the labor- intensive nature of the work. Civil Service Board regulations allow an employee to present the circumstances which led to his dismissal and other mitigating evidence. See ch. 13, § 8, Rules and Regs. Pursuant to that regulation, Respondent requested a disciplinary determination meeting with the Department of Human Resources, which was conducted on July 1, 2014. Respondent was represented at the meeting by the president of his union. After considering Respondent's explanation, on July 2, 2014, the Parks and Recreation Department again recommended that Respondent be terminated. On July 7, 2014, the City Manager notified Respondent that he was being terminated effective the following day, July 8, 2014. Respondent timely requested a review of that decision by a hearing officer (administrative law judge). The record does not disclose why the case was not referred to DOAH for almost one year. The evidence shows that Respondent knew, or should have known, that by disclosing that he had a permanent disability rating, he received a settlement from the County for an injury on-the-job, and he was discharged by the County because of a disability, he would not have been hired by the City. The failure to disclose that information is contrary to City policies, standards, and regulations. Respondent testified that he probably answered the medical questions incorrectly because he failed to pay close attention to the information being requested and he filled out the form quickly. He further explained that he was always under the impression that the County did not discharge him in 1999 because of a disability, but rather because it could not hold his position open for more than ten months. The evidence, however, shows otherwise. See Endnote 1. He had no explanation for failing to answer questions 2.5 and 2.9, except that he may have overlooked those items. Had he completed the Questionnaire accurately and completely, he would not have been hired. At hearing, Respondent testified that the investigation which led to his dismissal was triggered by bad relations with his landscape manager, who became upset when he observed Respondent using a handicapped license plate to park his car in a handicapped space and did not believe Respondent was disabled. Respondent suggested that this led to the City's examination of his Application and Questionnaire, and his ultimate dismissal. Respondent obtained the special license plate in 1999 when he was given a disability rating by the County, and he continued to renew the tag for around 15 years. However, the issue concerning the license plate played no role in the City's decision to terminate Respondent. Respondent had a blemish-free record while working with the City. He testified without dispute that even with a disability rating and a brace on his left leg, he performed every assigned task and was always given good evaluations by his supervisors. He wants to continue working for the City in order to support his wife and seven children. While termination may be a harsh penalty, the City has ample authority under its Code to take that action. Whether Respondent is eligible to be hired in another position that requires no physical labor is not of record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Notice are sustained, and that Respondent be terminated as a Park Service Technician II. DONE AND ENTERED this 13th day of October, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 October, 2015.
The Issue The issue in this case is whether the Petitioner's application for supplemental compensation pursuant to Section 633.382, Florida Statutes, should be granted or denied.
Findings Of Fact 1. The Petitioner holds a Bachelor of Arts degree from Michigan State University. The degree was earned in the College of Communication Arts and Science. The major on the Petitioner's degree is advertising. 2. The transcript of the courses taken by the Petitioner to earn his bachelor's degree does not list any courses that appear to come within the criteria listed at Rule 4A- 37.084(5) (b)1, Florida Administrative Code. 3. The transcript of the courses taken by the Petitioner to earn his bachelor's degree lists several courses that appear to come within the criteria listed at Rule 4A-37.084(5) (b)2, Florida Administrative Code. However, there are not enough of such courses to comprise a major. 4. The transcript of the courses taken by the Petitioner to earn his bachelor's degree lists one course that appears to come within the criteria listed at Rule 4A.37.084(5) (b)3, Florida Administrative Code. 5. The Petitioner is presently employed by the Miami Beach Fire Department as a Firefighter I. The Petitioner has been employed full-time in his present firefighter position at all times material to the pending application. 6. The Petitioner's fire department duties are described in a written position description for the Firefighter I position. It is clear from the description of those duties that a Firefighter I position with the Miami Beach Fire Department is not one of the "management positions within a fire department," nor is it a position that includes "arson investigators." Such a position is also not one of the "special positions" contemplated by Rule 4A-37.084(5) (b)4, Florida Administrative Code. 7. When the Petitioner submitted his present application, Floyd Jordan, the Fire Chief of the Miami Beach Fire Department, by letter dated November 15, 2000, advised the Bureau of Fire Standards and Training as follows: After review of the attached college transcript and the City of Miami Beach Job Description for Firefighter I, it is my conclusion that this request does not meet the requirements of the Firefighters Supplemental Compensation Program. As of the date of the final hearing, Chief Jordan continued to be of the same view of the matter. 8. The Petitioner was previously employed by the Boca Raton Fire-Rescue Services as a firefighter/paramedic. The Petitioner's job duties in the Boca Raton position were essentially the same as his job duties in his present position. While employed with the Boca Raton Fire-Rescue Services, the Petitioner applied for supplemental compensation on the basis of the same bachelor's degree on which he bases his present application. The Petitioner's prior application was approved and he received supplemental compensation while employed with the Boca Raton Fire-Rescue Services.
Conclusions For Petitioner: Chuck Pereny, pro se 259 Northwest 90th Avenue Coral Springs, Florida 33071 For Respondent: Elenita Gomez, Esquire James B. Morrison, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333
Recommendation On the basis of the foregoing, it is RECOMMENDED that the Department issue a final order denying the Petitioner's application and dismissing the petition in this case. Tallahassee, Leon County, Florida. = DONE AND ENTERED this CS “day of June, 2001, in CH heseu Loe € MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this Q — day of June, 2001.
The Issue The issue is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System (FRS) pursuant to Section 112.3173, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the hearing, on the stipulations of the parties, and on the entire record of this proceeding, the following factual findings are made: Respondent is charged with managing, governing, and administering the FRS. The FRS is a public retirement system as defined by Florida law. The Duval County School Board (DCSB) employed Petitioner as a teacher at Ribault High School. As a teacher, Petitioner was subject to the Code of Ethics of the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.001. Petitioner also was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. Petitioner’s employment with the DCSB began on or about August 19, 1986. By reason of this employment, Petitioner was enrolled in the FRS as a Regular Class member. On or about December 7, 2001, Petitioner was arrested in connection with Officer David Coarsey's sworn information, which provided as follows in relevant part: On 12-07-01, Lt. Remolde called the Jacksonville Sheriff’s Office Sex Crimes Office and stated that a student at Ribault High School had reported to the principal, Mr. Ken Brockington, that she had penile/vaginal intercourse with this suspect. On 12-07-01, I arrived at Ribault High School and interviewed the victim. She stated that approximately three weeks ago, she went to the suspect’s classroom at his request after school hours. The suspect asked the victim to help him with some of his work. While she was there, the suspect put his arm around the victim and began rubbing her waist. The suspect then began talking to the victim about sex. The suspect then put his hand up the victim’s skirt and inserted his finger in her vagina. The suspect also pulled the victim’s shirt and bra down and “sucked” on her breast. The victim said that she did not attempt to stop the suspect. The victim then told the suspect, “I don't think we should do this”, and she walked out of the room. Approximately one week later, the suspect asked the victim to come back to his classroom after school. When the victim arrived at the room, the suspect began “rubbing” on the victim’s body. The victim stated that the suspect retrieved a condom from a “grey file cabinet” and then sat down in a chair. The suspect pulled his penis out and the victim put the condom on his penis. The victim pulled her shorts down and sat on the suspect’s lap, at which time the suspect put his penis in the victim’s vagina. After having penile/vaginal intercourse with the suspect for a short period of time, the victim stood up and the suspect masturbated until he ejaculated. On 12-07-01, the victim met the suspect in the “Book Room”. The suspect pulled the victim’s shirt and bra down and “sucked” on her breast. The suspect then pulled his penis out of his pants and asked the victim to masturbate him. The victim masturbated the suspect until he ejaculated. The victim wiped the suspect’s semen off of her hands with a paper towel and threw it in the trash can in the “Book Room”. The victim then left the room and reported the incident to a substitute teacher, Mr. Carlos Bowers (12-25- 59, 3701 Winton Dr., B/M), who in turn, reported it to the principal, Mr. Brockington. The victim stated to me that all of the sexual encounters with the suspect were consensual. I retrieved the trash bag that contained the above mentioned paper towel from the “Book Room” and put it in the JSO Property Room. The suspect was transported to the JSO Sex Crimes Office by Officer D.W. Holsey #6044 and I transported the victim to the Sex Crimes Office. I contacted the victim’s mother and asked her to come to the JSO Sex Crimes Office. When she arrived, she transported the victim to the Child Crisis Center for a medical exam (swabs of the victim’s breasts). I advised the suspect of his constitutional rights and asked him to sign the rights form. The suspect signed the form and agreed to speak to me and Det. Romano #7527 about the allegations. The suspect admitted to having penile/vaginal intercourse with victim one time, “sucking” on the victim’s breast on two different occasions, and rubbing on her vagina once. The suspect stated that all of the sexual encounters happened at the school. The suspect stated, “It was a huge mistake, my life is fucked”. The suspect gave a written statement in regards to having penile/vaginal intercourse with the victim. The suspect was arrested and transported to the PTDF. The information reported in the sworn information truly and accurately recounts the events that occurred and to which Petitioner admitted. The arrest and booking report is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. Petitioner resigned his employment with the DCSB on or about December 27, 2001, effective on or about January 15, 2002. By reason of his employment with DCSB, Petitioner earned approximately 15.80 years of service credit in the FRS. On or about February 14, 2002, Petitioner was charged, by amended information, in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in case number 2002-599-CFA, with (a) one count of sexual battery, a second-degree felony, in violation of Section 794.011(8)(b), Florida Statutes; and (b) one count of lewd or lascivious molestation, a second-degree felony, in violation of Section 800.04(5)(c)2., Florida Statutes. The amended information provided in relevant part: HARRY.L. SHORSTEIN, State Attorney for the Fourth Judicial Circuit of the State of Florida, in and for Duval County, charges that ARTHUR JOHN MARSLAND, JR, on or between the 1st day of November, 2001 and the 7th day of December, 2001, in the County of Duval and the State of Florida, did, while in a position of familial or custodial authority, engage in an act which constitutes Sexual Battery with * * * a person 12 years of age or older, but less than 18 years of age, by placing his penis in or upon the vagina of * * * contrary to the provisions of Section 794.011(8)(b), Florida Statutes. SECOND COUNT And for the second count of this information, your informant further charges that ARTHUR JOHN MARSLAND, JR., a person 18 years of age or older, on or between the 1st day of November, 2001 and the 7th day. Of December, 2001, in the County of Duval and the State of Florida, did in a lewd or lascivious manner force or entice * * * a child l2 years of age or older, but less than 16 years of age, to touch the genital area or clothing covering the genital area of Defendant, contrary to the provisions of Section 800.04(5)(c)2, Florida Statutes. The amended information is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. The victim of the alleged crimes was a student at the school where Petitioner taught. The alleged crimes took place in Petitioner's classroom or in the book room at the school where Petitioner taught. On or about April 8, 2002, Petitioner entered a plea of guilty to the second count of the amended information. Petitioner pled guilty because he was in fact guilty. Petitioner made the plea freely and voluntarily. On or about April 29, 2002, judgment was entered on Petitioner’s guilty plea. He was adjudicated guilty. The judgment and corrected order of sex offender probation are filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. During the hearing, Petitioner admitted that, but for his job position as a teacher, he “probably [would] not” have had an opportunity to have sexual relations with a student in the school’s classroom or book room. Petitioner also admitted that having sexual relations with one of his students was “obviously not” one of his duties and responsibilities as a teacher. Petitioner wrote three letters of apology in connection with the matter. He apologized in writing to the victim, to his spouse, and the DCSB. On or about September 27, 2002, Charlie Crist, as Commissioner of Education, filed an Administrative Complaint, before the Education Practices Commission of the State of Florida, in case number 02-0681-RT. The complaint sought disciplinary action against Petitioner’s educator’s certificate. The Administrative Complaint charged Petitioner in part with the following statutory and rule violations: STATUTORY VIOLATIONS COUNT 1: The allegations of misconduct set forth herein are in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. COUNT 2: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(e), Florida Statutes, in that Respondent has been convicted of a misdemeanor, felony, or other criminal charge, other than a minor traffic violation. COUNT 3: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(f), Florida Statutes, in that Respondent, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. COUNT 4: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by State Board of Education. COUNT 5: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(j), Florida Statutes, in that Respondent has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate. COUNT 6: Section 231.2615(2), Florida Statutes, provides that the plea of guilty in any court or a decision of guilty by any court is prima facie proof of grounds for the revocation of the certificate. RULE VIOLATIONS COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(2), Florida Administrative Code, in that Respondent has failed to have his primary professional concern always be for the student and for the development of the student’s potential and has failed to seek to exercise the best judgment and integrity. COUNT 8: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(3), Florida Administrative Code, in the Respondent has failed to be aware of the importance of maintaining the respect and confidence of his colleagues, of students, of parents, and of other members of the community and that Respondent has failed to achieve and sustain the highest degree of ethical conduct. COUNT 9: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical safety. COUNT 10: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 11: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(h), Florida Administrative Code, in that Respondent has exploited a relationship with a student for personal gain or advantage. The Administrative Complaint is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. In consideration of the Administrative Complaint, the Education Practices Commission entered a Final Order permanently revoking Petitioner’s educator’s certificate. The Final Order is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. On or about October 20, 2003, Petitioner applied for early service retirement. Petitioner’s effective date of retirement was established as November 1, 2003. By certified letter dated May 2, 2008, Respondent notified Petitioner of the intended action to forfeit his FRS rights and benefits as a result of his guilty plea. The Division suspended payment of Petitioner’s monthly retirement benefits in May 2008. Petitioner had received approximately $41,309.56 in FRS retirement benefits from November 2003 through April 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 15th day of December, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Arthur J. Marsland, Jr. 1856 B Hereford Road Middleburg, Florida 32068-3104 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee,, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issues for determination are whether Petitioner, Paul F. Meloy (Meloy), is an employee of Petitioner, Alva Fire Protection and Rescue District (District), and is entitled to participate in the Florida Retirement System (FRS) pursuant to Section 121.051, Florida Statutes (2001). (All references to statutes are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Section 121.051 requires participation in the FRS by all employees hired after December 1, 1970. The District hired Meloy after 1970. Meloy has worked for the District as the fire chief and administrator since the District's inception in 1976. Meloy was instrumental in establishing the District. The other requirement imposed by Section 121.051 for participation in the FRS is that Meloy must be an employee. Section 121.021(11), in relevant part, defines an employee as any person receiving salary payments for work performed in a regularly established position. Respondent denies that the payments Meloy receives from the District are salary payments. Respondent asserts that the payments are reimbursement for expenses. Respondent denies that the payments to Meloy are compensation. Section 121.021(22) defines the term "compensation" to mean: . . . the monthly salary paid a member by his or her employer for work performed arising from that employment. The payments from the District to Meloy since October 1990 have been compensation. In October 1990, the District began paying Meloy a monthly salary "for work performed arising from his employment with the District." Before October 1990, the District reimbursed Meloy for expenses he incurred in housing fire trucks in the garage at Meloy's auto service business. The District also reimbursed Meloy for the maintenance and repair of District vehicles. In 1988, the District began reporting the payments made to Meloy as salary for purposes of the federal income tax. Each year from 1988 to the present, the District has reported the payments to Meloy on a W2 Wage and Tax Statement. Between 1988 and October 1990, the District stopped housing vehicles in Meloy's garage, and Meloy stopped servicing vehicles for the District. In October 1990, the amount of the monthly payment to Meloy increased substantially. Thereafter, the District provided annual cost of living increases to Meloy. The payments to Meloy from October 1990 to the present have been unrelated to expenses incurred by Meloy. Those payments have been regular monthly salary payments for work performed to implement the policy of the District and to administer the day-to-day operations of the District. Even if the payments are salary payments, Respondent argues that Meloy did not receive those payments for work performed in a regularly established position. Section 121.021(52)(b) defines a regularly established position as one that will be in existence for six months. Meloy's position has been in existence since 1976. It will be in existence for six months. Respondent asserts that the position occupied by Meloy is a temporary position defined in Section 121.021(53)(b). Section 121.021(53)(b) defines a temporary position as one that will exist for less than six months or as defined by rule, regardless of its duration. Respondent claims that the position occupied by Meloy is a temporary position because it is an "on call position" defined in Florida Administrative Code Rule 60S- 1.004(5)(d)5. The rule defines an on call position as one filled by employees who are called to work unexpectedly for brief periods and whose employment ceases when the purpose for being called is satisfied. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) Meloy performs some of his duties unexpectedly when called anytime 24 hours a day. He performs his other duties in the normal course of business. Meloy does not maintain any time sheets, and the District does not require Meloy to perform his duties within an established work schedule. Meloy does not occupy an "on call position" within the meaning of Rule 60S-1.004(5)(d)5. Meloy's employment does not cease when the purpose of his being called is satisfied. Meloy has been performing his on-call duties and his other duties for approximately 25 years. In 1994, Mr. William D. Wilkinson became the Chairman of the District (Wilkinson). Wilkinson is also the Court Administrator for the Circuit Court in the Twentieth Judicial Circuit of Florida, in which the District is located. After Wilkinson became Chairman, he determined that Meloy receives compensation in a regularly established position and is entitled to membership in the FRS. Wilkinson testified at the hearing. Meloy has sole responsibility for implementing the District's policy and administering the day-to-day operation of the District. Relevant portions of Wilkinson's testimony are instructive. Q. And whose job is it to carry out that policy? A. Mr. Meloy. Q. When you came on board in 1994, Mr. Meloy, was he employed by the district? A. That's correct. Q. How many other administrators does the district employ? A. None. Q. Who runs the day-to-day affairs of the fire district? A. Mr. Meloy. Q. He is required to work a certain work schedule? A. No, sir. Q. What is he required to do as far as hours go? A. Once we set the policy, then we expect, you know, the chief to carry that out. And for however many hours it takes during the week, you know, the month to see it is fulfilled. Q. Do you know if he is on call? A. He is on call 24/7. Q. And what does that mean? A. 24 hours a day, seven days a week. Q. Is that 365 days a year? A. That's correct. * * * Q. Let me ask you to put your other hat on as the court administrator for the 20th Judicial Circuit. Are you involved with the Florida Retirement System? A. Yes, I am. Q. And you are a participant? A. Yes, I am. Q. Your duties as the court administrator, how would you compare that to Mr. Meloy's duties as the fire chief administrator of the Alva Fire District? A. Well, with the exception that I certainly make a lot more than he does for the duties that he has, it is similar. You know, I'm paid an annual salary and expected to get the job done. If you have to work 60 hours, you have to work 60 hours. If you get through sooner, hopefully you do. But that never happens. The District requires Meloy to spend as much time as is needed to implement the policy of the District and to administer the day-to-day business of the District. The hours vary, and there are no set hours. Some days, Meloy's day begins at 6:00 a.m. Other days, Meloy does not get to work until 9:00 a.m. or noon. Some days, Meloy leaves work at 5:00 p.m. and then must return immediately to the office. "It is whatever is needed." The District employs four individuals. One is Meloy. Two are certified firefighters. The other is a part- time bookkeeper. The bookkeeper and the two certified firefighters are members of the FRS. The two full-time firefighters maintain time sheets, and the District pays them for overtime. The District compensation of its full-time firefighters is consistent with compensation on an hourly basis. Meloy is not a certified firefighter, and the District does not compensate Meloy on an hourly basis. Meloy does not maintain or submit time sheets. The District does not pay Meloy for overtime. Like the certified firefighters, Meloy performs some of his duties when called anytime, 24 hours a day. However, neither the certified firefighters nor Meloy has the option to refuse to work when called. The employment positions of the certified firefighters and Meloy do not cease when the purpose for being called is satisfied. Although the bookkeeper for the District is never on call, she maintains a schedule similar to that of Meloy. She works those hours necessary to perform her duties. Like Meloy, the bookkeeper's position does not cease when she completes her work. The District pays compensation to Meloy in accordance with an annual salary rather than an hourly rate. Meloy does not have an established schedule during which he must implement the board's policy and administer the day-to- day operations of the District. Meloy occupies a regularly established position within the meaning of Section 121.021(52)(b). Meloy is the District administrator. The position has been in existence since 1988 and is not a temporary position within the meaning of Section 121.021(53)(b) or Rule 60S-1.004(5). Respondent's final argument is that a determination of Petitioners' request to enroll Meloy in the FRS is barred by the judicial doctrines of res judicata or collateral estoppel. Respondent argues that final agency action determined that the payments received by Meloy through June 29, 1992, are reimbursement for expenses. Respondent argues that nothing has changed since that time, and Meloy cannot now revisit the issue of his compensation. Findings regarding Respondent's final argument require some historical perspective. The District joined the FRS in 1988. At that time, the District purchased past service credit for a number of employees, including Meloy. Meloy enrolled as a member of the Special Risk Class. When Meloy enrolled as a member of the Special Risk Class, a question in the enrollment form asked Meloy if the applicant was certified as a firefighter or required to be certified as a firefighter. Meloy answered in the affirmative. Meloy has always been required to be certified as a firefighter in order to receive retirement benefits as a member of the Special Risk Class. However, Meloy has never been certified as a firefighter pursuant to Section 633.35. Meloy has never completed an essential firefighting course that is a statutory prerequisite to certification. By letter dated June 29, 1992, Respondent notified Meloy that Respondent was terminating Meloy's membership in the FRS. The letter stated two grounds for termination. One ground was that Meloy had not completed the firefighting course required for membership in the Special Risk Class. The second ground was that the payments Meloy received from his employer are reimbursement for expenses rather than compensation. Meloy did not appeal either ground stated by Respondent on June 29, 1992, for the termination of benefits. Meloy does not contest the first ground and is not now seeking enrollment in the FRS as a member of the Special Risk Class. Rather, Meloy now seeks benefits as a member in a regularly established position defined in Section 121.021(52)(b). Meloy does contest the second ground stated by Respondent on June 29, 1992, for terminating Meloy's membership in the FRS. Respondent determined that Meloy did not receive compensation from 1988 through June 29, 1992. The time for appealing that determination has expired, and Meloy cannot now amend the scope of this proceeding to include any payments he received on or before June 29, 1992. Respondent asserts that its determination on June 29, 1992, also establishes that payments received by Meloy after June 29, 1992, are not compensation. Respondent argues that Meloy's duties have not changed, and the payments Meloy receives are reimbursement for expenses. On June 1, 1999, Respondent sent a letter to Wilkinson explaining Respondent's denial of Meloy's application for enrollment in the FRS. In relevant part, the letter stated: By certified letter dated June 29, 1992 (copy enclosed), the State Retirement Director, Mr. A.J. McMullian III, advised Mr. Meloy that he was inelligible for Florida Retirement System (FRS) participation since the monthly payments he received were for "expenses" and not compensation. Subsequent to Mr. McMullian's letter, a hearing was conducted by the Division of Administrative Hearings and Mr. Meloy's payments were defined as expenses as a statement [sic] of fact (copy enclosed). In light of this, the Division has already made a determination that Mr. Meloy is ineligible for FRS participation from 1979 through 1992. Since your letter indicates that Mr. Meloy's duties and payments he has received have not changed since 1988, he remains ineligible for FRS participation. Respondent's Exhibit 10. The DOAH hearing referred to in the letter on June 1, 1999, involved allegations that Meloy had violated state ethics laws when he first attempted to enroll in the FRS in 1988. In 1992, the Florida Commission on Ethics (Commission) investigated Meloy's participation in the FRS. The Commission entered an order finding probable cause that Meloy violated Section 112.313(6) when he submitted his enrollment form for retirement benefits by corruptly using or attempting to use his official position to retain retirement benefits for himself and his assistant fire chief when neither was qualified to receive benefits. The findings concerning the assistant fire chief are neither relevant nor material to this proceeding. Meloy requested an administrative hearing, and the Commission referred the matter to DOAH to conduct the hearing. ALJ Susan B. Kirkland conducted the administrative hearing and entered a Recommended Order on July 8, 1994. The Recommended Order found that Meloy misrepresented his entitlement to membership in the Special Risk Class and did so with wrongful intent. The Order concluded that Meloy violated the relevant statute because Meloy attempted to use his position, or the property and resources entrusted to him, to secure a benefit. The Order recommended a civil penalty, public censure, and a reprimand. The Final Order of the Commission adopted the Recommended Order. The Recommended Order contains three paragraphs that discuss the payments received by Meloy. Those three paragraphs state: 3. In 1976, the . . . District was established. The firefighting equipment and vehicles were originally located in Meloy's garage, where he maintained an automotive repair shop. Meloy received a fixed reimbursement from the District each month for the use of his garage and for repair services which he rendered for the District. * * * 5. In 1988, the District joined the . . . (FRS). At that time the District employed four full-time firefighters and a part-time secretary. Meloy worked part-time as the administrator of the District but did not draw a salary and continued to receive remuneration in the form of the monthly reimbursement for expenses. . . . * * * 18. By letter dated June 29, 1992, [Respondent] notified Meloy that his membership in the FRS . . . was being terminated. The grounds for termination were that Meloy had been receiving payments for expenses and not compensation. . . . The Recommended Order does not operate under the judicial doctrines of res judicata or collateral estoppel to preclude a determination of whether the payments received by Meloy after 1988 are compensation. The Recommended Order limits the finding that Meloy received payments for expenses to those received in 1988. Paragraph 5 expressly states, "At that time. . . Meloy . . . continued to receive . . . reimbursement for expenses. . . ." The findings in paragraph 18 merely recite the grounds stated by Respondent but do not make findings on the merits of the stated grounds. The findings in paragraph 3 are not probative. The Recommended Order made no findings concerning the payments Meloy received after 1988. Respondent determined that the payments between 1988 and June 29, 1992, were payments for expenses rather than compensation. Irrespective of whether Respondent's determination was legally and factually correct, Meloy did not appeal Respondent's determination. The determination by Respondent on June 29, 1992, involved a separate and distinct application from the application at issue in this case. No determination has been made that the payments since June 29, 1992, either are or are not compensation. The application at issue in this case is a new application for different benefits. Meloy is not applying for benefits to which he would be entitled if he were a member of the Special Risk Class. Nor can Meloy apply for benefits related to the payments received on or before June 29, 1992. Respondent argues that nothing has changed in the course of Meloy's tenure with the District. Payments that were reimbursement for expenses before 1992 arguably have not now been transformed into compensation. Respondent is incorrect. Something has changed in the course of Meloy's tenure with the District. Sometime after September 1990, the payments to Meloy changed from reimbursement for expenses to monthly salary payments. The District no longer housed equipment at Meloy's garage, Meloy no longer serviced the equipment at the garage, and the amount of the monthly payments to Meloy increased from $540 to $833. Relevant portions of the transcript of the administrative hearing in the ethics case are instructive. Meloy asserted in the ethics case that in 1988, he was a volunteer fireman. As a volunteer, rather than a salaried employee, Meloy argued that he was not required to be certified as a firefighter. The attorney who represented the Commission sought to show that Meloy was not a volunteer after 1990 but was a salaried employee of the District. As long as I'm volunteering, I don't have to have it. Q. Okay. You are also the administrator for the full-time firemen, is that right? A. Yes. Q. You have the power to hire and fire them? A. Yes. Q. You set their hours? A. Yes. Q. The district also has a part-time secretary, is that right? A. Yes. Q. And currently that's Ms. Connie Bull? A. Correct. Q. She handles payroll matters? A. Yes. Q. She writes checks? A. Yes. Q. Pays bills? A. Yes. Q. She and you both answer questions that the full-time firemen might have about vacation or sick leave or retirement, is that right? A. To the best of our ability, yes. Q. Okay. Now, before 1990 you were not an employee of the fire district, is that right? A. According to how you define it, I guess. I was paid more as an expense type arrangement up until sometime around '90. I don't remember the exact date. Q. Okay, you received the expense reimbursement prior to 1990 for working on the fire equipment; is that right? A. It covered a lot of things. We worked on the fire equipment there in my business, we housed a lot of equipment there, used my facilities for -- well, we have used my facilities as a station for awhile. Q. When you say your facilities, you mean the Alva garage that you used to own? A. Right. Q. When you got the expense reimbursement, you would get the same amount every month, is that right? A. Yes. Q. It changed some over time, though, didn't it from '73 to 1990? A. Yes. Q. You got that same reimbursement amount regardless of the number of hours that you worked for the district? A. Yes. Q. And regardless of what any actual expenses might be? A. Correct. Q. Now, sometime in 1990 you became an employee of the district on a part-time basis; is that right? A. That's when they started taking out taxes and all and that reverted to more of a salary type reimbursement rather than expense. In other words, I was paying income tax and Social Security and everything and at that time it was considered more of a salary. Q. And they started doing that in 1990 sometime? A. I don't remember the date. It was approximately then. Q. When you started receiving a salary, you stopped getting the reimbursement; is that right? A. Right. Q. Isn't it true that when you first started getting the salary that the amount of the salary was several hundred dollars a month more than what the reimbursement had been? A. I couldn't tell you. Q. Isn't it a fact that the last-- A. I don't believe that would be right, though, because it didn't go up very much any one time, I don't think. I would have to see the figures to tell for sure. Q. All right. Isn't it a fact that the last time you received a monthly reimbursement you were receiving about $540 a month? A. I don't have those figures in front of me. Q. You don't remember? A. No. Q. Isn't it a fact that when you first got a salary in October 1990, you got $833 a month? A. I still couldn't tell you. I don't have those figures in front of me. I have them wrote down if I can get my papers. Q. All right. You don't know how much you get now? A. Yeah, but this ain't 1990. Respondent's Exhibit 3 at 29-32. The state argued in the ethics case that Meloy has been salaried since October 1990 and was required to be certified as a firefighter before enrolling in the FRS as a member of the Special Risk Class. The state now argues that Meloy has never been salaried and cannot enroll in the FRS as member of the regular class. The state cannot have it both ways. Meloy is entitled to membership in the FRS for the period after June 29, 1992. During that time, the District has paid a salary to Meloy that is compensation for duties performed in a regularly established position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioners' request for Meloy to participate in the FRS. DONE AND ENTERED this 7th day of January, 2002, in Tallahassee, Leon County, Florida. _________ ________________ DANIEL MANRY 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 7th day of January, 2002. COPIES FURNISHED: J. Frank Porter, Esquire Porter & Jessell, P.A. 1424 Dean Street Ft. Myers, Florida 33901 Thomas E. Wright, Esquire Division of Retirement P.O. Box 3900 Tallahassee, Florida 32315-3900 Erin B. Sjostrom, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Mallory Harrell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact When the events herein occurred, respondent, Shalom Manor, Inc. d/b/a King David Manor Retirement Home (King David), was licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregte living facility (ACLF) at 5800 N.W. 27th Court, Lauderhill, Florida. The corporate headquarters of Shalom Manor, Inc., were located at 901 South Federal Highway, Suite 200, Fort Lauderdale, Florida. On March 29, 1984 two HRS inspectors performed a routine annual survey of King David to determine whether King David was complying with all HRS requirements necessary for licensure. During the course of the survey, the inspectors noted that King David did not have an established fire and emergency plan. They accordingly charged respondent with having violated Section 3-8.a of HRS Manual 140-3. That manual is entitled "Fire Safety Standards for Adult Congregate Living Facilities." The manual is not a formal rule, but has been adopted and incorporated by reference in Rule 10A-5.23(15), Florida Administrative Code. The cited section (3-8.a) provides in relevant part that "a Fire and Emergency plan shall be established." It does not specifically require that the plan be in written form, or that it be posted in each resident's living area. According to the HRS inspectors, respondent was charged with a Class III statutory violation because it had no acceptable written plan, and the plan was not posted in each resident's room. When the survey was completed, the inspectors reviewed this deficiency with the facility's administrator, Graeme Burne, and advised him that the deficiency must be corrected within thirty days, or by April 29, 1984. They also described to him the type of plan necessary to comply with the HRS Manual, and told him it must be posted in each area where a resident resided. A thirty- day compliance period was used since the inspectors considered the deficiency to be a "paperwork" item that could be easily corrected within that time period. After returning to their office, the inspectors had a Form 1806 prepared. This form is entitled "ACLF Corrective Action Plan" and contains each deficiency noted during the survey, the class of violation, date for correction action, provider's plan of correction, when such correction is completed and the status of correction or follow-up. The form noted that the deficiency in question had to be corrected by April 29, 1984. The form was then signed by the HRS area supervisor and mailed to Burne on April 4, 1984. Burne received the form, inserted the comment "Being Prepared" in the column under the provider's plan of correction, signed it as respondent's administrator on April 27, 1984 and returned it to local HRS offices in Miami. On May 1, May 18, June 11, August 22 and October 31, 1984, the two inspectors made repeat surveys of King David's facility. They found no satisfactory fire and emergency plan had been established on any of those dates. On the August 22 visit Burne showed to the inspectors a diagram he had prepared, but was told it did not meet HRS requirements. On the March 29 visit, the inspectors also noted several other deficiencies besides the lack of a fire and emergency plan. All deficiencies, including the lack of a fire and emergency plan, were the subject of administrative complaints issued on July 12 and 26, 1984 in Case Nos. 85-0359 and 85-0360, respectively. 1/ By the issuance of these complaints, the corporate license received actual written notice of the surveys and cited deficiencies. Prior to that time, Burne had apparently neglected to tell the owners about the matter. On July 2, 1985, or approximately one year later, HRS issued the amended administrative complaint in this cause charging respondent with having failed to correct the deficiency by the August 22 visit. 2/ The complaint was served on Shalom Manor, Inc., at its Fort Lauderdale corporate address. After receiving the earlier complaints in July 1984 a representative of Shalom Manor contacted HRS offices in Miami and requested that all future correspondence regarding the matter be sent to the corporate owner's address in Fort Lauderdale. Respondent acknowledged that it had no fire and emergency plan posted on its premises. However, it established that the corporate licensee (Shalom Manor, Inc.) was never given any documentation regarding the alleged violation until the administrative complaints in Case Nos. 85-0359 and 85-0360 were filed. Moreover, neither the licensee or its administrator was given a document entitled "notice of deficiency" as required by Rule 10A-5.27, Florida Administrative Code. However, the corrective action plan sent to the administrator on April 4, 1984, contained all information referred to in the rule. Respondent also points out that after finally learning of the deficiency, it attempted to comply with HRS requirements, and through its administrator, presented a written plan to HRS inspectors on their August 22 visit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed on July 2, 1986, be DISMISSED, with prejudice. DONE and ORDERED this 19th day of August 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of August 1986.
The Issue Whether a final order dismissing the Petitioner's rule challenge should be entered because Respondent, United Safety Council, Inc., doing business as Florida Safety Council (United Safety Council), is not an "agency" within the Florida Administrative Procedures Act (APA), and there is no claim challenging a rule enacted by Respondent, Department of Highway Safety and Motor Vehicles (Department). HOLDINGS United Safety Council is not an “agency” within the definition of section 120.52(1), Florida Statutes (2010); thus Project Refocus' rule challenge against United Safety Council is not subject to the APA. Consequently, United Safety Council's Motion for Summary Final Order is Granted. Project Refocus' petition in the instant case does not challenge a Department rule or action, and the Department was never added or served as a party. Therefore, the Department's motion to remove it as a party is Granted.
Findings Of Fact At all times material hereto, Respondent was employed as a fire inspector by the City of Clearwater with permanent status in the civil service system. Respondent has approximately nine years experience with the City of Clearwater as a fire inspector, and prior to this incident had never been the subject of disciplinary action. As a permanent civil service employee, Ordinance 1831 of the City of Clearwater, Guidelines of Disciplinary Action dated October 23, 1978, and Civil Service Rule 14 dealing with Suspensions, Demotions and Dismissals are applicable to the facts of this case and govern disciplinary action taken against Respondent. On September 17, 1985, Respondent was suspended for three (3) working days, without pay, and given forty (40) disciplinary points. In the Notice of Suspension the grounds for this action are stated as follows: Inspector Christopher Kingsley violated Rule 14, Section 1, Paragraph (k) of the Civil Service Rules and Regulations: "Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public. * * * On June 15, Captain Yaudes dispatched Inspector Kingsley to 1468 Belleair Road to observe and assist Inspector Mattheus with the fire investigation. When Inspector Kingsley arrived at the fire scene he more or less worked independently. He did not provide the assistance or opinion to Inspector Mattheus when requested. This is further violation of the Guidelines for Disciplinary Action, Level 4, #3 offense: "Insubordination by refusal to perform work assigned or by failure to comply with written or verbal instructions of the supervisory force." Based upon the testimony and documentary evidence presented, the following findings of fact are made about Respondent's actions relative to the fire at 1468 Belleair Road on June 15, 1985: Between approximately 7:30 a.m. and 7:40 a.m. on June 15, 1985 Respondent arrived at work, although his shift did not begin until 8:00 a.m. When Respondent arrived, Captain Gordan Yaudes was talking with Captain Coleman about a radio transmission they had just overheard indicating that Inspector Harry Mattheus had been dispatched to investigate the Belleair Road fire. Since neither Captain Yaudes or Captain Coleman knew Inspector Mattheus, Captain Yaudes called Respondent into the office to see if Respondent knew anything about Mattheus' qualifications or background. Although Respondent and Mattheus had been working out of the same office for two months at the time, Respondent had only a brief acquaintance with Mattheus. They had never been introduced after Mattheus had been hired, their shifts and assignments were different and Mattheus had not yet done a fire scene investigation in the City of Clearwater. Therefore, Respondent told Captain Yaudes he did not know about Mattheus' qualifications. Captain Yaudes ordered Respondent to go to the Belleair fire scene, find out what was going on, and assist Inspector Mattheus, if necessary. Captain Yaudes testified that he wanted Respondent to take command of the investigation if Respondent determined that Mattheus was not properly certified. He specifically denied that he ordered Respondent to do a joint investigation with Mattheus. This order was given prior to 8:00 a.m., and thus prior to either Respondent or Captain Yaudes being on duty. Captain Coleman, who was on duty at the time, concurred in the order. Mattheus had been on the scene for thirty minutes before Respondent arrived. When Respondent arrived he put on protective pants, boots and gloves and entered the premises, a small flower shop. The fire had already been extinguished. Fire damage was confined to a twelve foot by twelve foot area at the front of the store where the cash register had been. Mattheus was not wearing protective gear since he had not been issued any at the time, although he was wearing his own steel reinforced boots. Upon approaching Mattheus at the scene, Respondent asked why he was there and on whose authority. Mattheus indicated he had been placed on the "call list" the night before by Fire Marshal Nic Lewis, and he was responding to a call to investigate the scene he received that morning at home. In making this inquiry, Respondent was responsive to Captain Yaudes' order that he go to the scene, find out what was going on and assume command of the investigation if he determined Mattheus was not qualified. Inspector Mattheus had been employed as a life safety inspector approximately two months prior to this incident. He is a certified fire inspector and was therefore qualified to be on the "call list" and to investigate fires. This was his first investigation for the City of Clearwater. After determining what was going on at the scene and that Mattheus was qualified to do the investigation, Respondent proceeded to assist Mattheus in several ways, including: surveying and discussing the scene together examining electrical wire and sockets, as well as the floor at the scene for possible causes of the fire clearing the area where the cash register had been and suggesting initially that Mattheus keep an aerosol can that had been punctured by a nail as possible evidence. Later, when arson was ruled out, he concurred in Mattheus' decision to discard the can. Respondent also helped clean up the scene since he was wearing protective clothing and Mattheus was not, and discussed an early morning thunderstorm with Mattheus as a possible cause of the fire. In this manner Respondent was responsive to Captain Yaudes' order that he render assistance, if necessary. On several occasions during the approximately thirty minutes when Respondent was at the fire scene, Inspector Mattheus asked him his opinion on the cause of the fire. Respondent responded by saying he did not know, or by shrugging his shoulders. He told Mattheus to list the cause as "unknown" if Mattheus could not determine a cause. Respondent also said to Mattheus on several occasions, "This is your fire." When Mattheus asked if Respondent was going to write a report on this fire, Respondent replied in the negative since this was Mattheus' fire. It is standard operating procedure for the first inspector on the scene to be the primary investigator who writes the report, and for other inspectors to assist the primary investigator. Mattheus was the primary investigator in this fire, and was in charge of the investigation. The terminology, "It's your fire," is commonly understood among firefighters and inspectors to mean that "you are in charge and will write the report." Respondent's use of this phrase in responding to Mattheus was therefore accurate and in recognition of standard operating procedures, and does not indicate any lack of cooperation on his part. Respondent was not ordered to conduct a "joint investigation," according to Captain Yaudes. When the term "joint investigation" is used, it is understood by firefighters and inspectors to mean an investigation which involves another agency, such as the State Fire Marshal's Office or the Electrical Department, in which the other department assists the Fire Department in trying to determine the cause of a fire. On June 14, 1985, the day prior to the Belleair fire, Respondent had called Inspector Jeff Daniels and expressed concern that life safety inspectors would be used to investigate fires since he felt they were not qualified. He also expressed concern about Inspector Mattheus' qualifications. Despite this prior expression of concern, when Respondent was ordered to the fire scene the next day, he did determine that Mattheus was qualified and assisted him as ordered. The testimony of Lieutenant Frank Hill and Firefighters John Milano and Charles Daniels, who were all at the scene on June 15, 1985, specifically confirms that Respondent and Mattheus worked together on the investigation without discord.
Recommendation Based upon the foregoing, it is recommended that the disciplinary charge against Respondent be dismissed, and that Respondent receive three days back-pay and the removal of all disciplinary points in his record arising from this charge. DONE and ENTERED this 27th day of January, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1986. COPIES FURNISHED: Miles Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518 Stuart M. Rosenblum, Esquire, 220 South Garden Avenue.C3 Clearwater, Florida 33516 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in part in Finding of Fact 4(c) and rejected in part in Finding of Fact 4(g). Adopted in Finding of Fact 4(a). Adopted in Finding of Fact 4(f). 4-6 Adopted in part in Finding of Fact 8, but otherwise rejected as irrelevant, unnecessary and not based on competent substantial evidence. Rejected in Finding of Fact 4. Adopted in Findings of Fact 4(h) and 6. Rejected in Finding of Fact 4(g). 10,11 Adopted in part in Finding of Fact 4(h), but otherwise rejected as irrelevant. Adopted in Finding of Fact 4(i). Rejected in Finding of Fact 4. Respondent did cooperate and assist as necessary. Adopted in Finding of Fact 4(h) and 6, but otherwise rejected as erroneously stating Respondent failed to aid Inspector Mattheus. 15,16 Rejected as simply a summation of testimony rather than a proposed finding of fact. 17 Adopted in part in Finding of Fact 4(e), but otherwise rejected as irrelevant and unnecessary. 18,19 Rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 8 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Rulings on Respondent's Proposed Findings of Fact, as contained in Sections A and B of Respondent's Memorandum, Proposed Findings and Conclusions of Law: Adopted in part in Finding of Fact 4 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. 4,5 Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 1 and 2. Rejected as irrelevant and unnecessary. 8-12 Adopted in Findings of Fact 4(a)-(e). Adopted in part in Finding of Fact 4(g), but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 4(h), (i). Adopted in Finding of Fact 6, but otherwise rejected as irrelevant. Adopted in Finding of Fact 3.
