Findings Of Fact One of some 10,000 American-born Sikhs, Harimandir Kaur Khalsa originally became involved with Sikhism, said to be one of the eight major religions of the world, in 1979. Several years ago she took vows to cover her hair, not to cut her hair, and to adhere to a daily spiritual practice called sadhana. An Armidary Sikh, she was ordained a Sikh minister Christmas Day 1991. The parties stipulated to the sincerity of petitioner's religious beliefs. In part, her religious beliefs find expression in her attire. Orthodox Sikhs wear turbans and churidars, a type of legging; and their clothing is white. This mode of dress has symbolic religious significance for Sikhs generally. Turbans are "mandatory." T.93. Dressed as an orthodox Sikh, petitioner Khalsa appeared for a job interview with Putnam County's sanitation director, Joseph Battillo, on or about August 23, 1990. The interview had been arranged after Mrs. Khalsa responded to a newspaper advertisement seeking a "Recycling Director for Putnam County." T.119. Even before she saw the advertisement, she had read about the job and telephoned to inquire. In the interview, Mrs. Khalsa did not tell Mr. Battillo that all the clothes she owned were white, but she did tell him that the way she was dressed was "always the way I dress." T.41. One of Ms. Khalsa's references told the young lady in the Putnam County personnel department who called to inquire about her that "Harimandir always dresses in white . . . because of her religion." T.22. Mr. Battillo understood that Mr. Khalsa wore a turban for religious reasons, although he originally testified that he did not understand (T.122) that the remainder of her outfit was also religiously compelled. (T.111) He eventually conceded that she indicated she wore mostly white "in the context of the conversation that she was a Sikh." T.132. Asked whether it was his "reasonable understanding that the reason she wore white is because she was a Sikh," he answered, "I guess you could assume that." Id. The day after the interview she was surprised to be told over the telephone that the job was hers. (Of six interviewees, she was Mr. Battillo's second choice for the position.) Her experience with graphic arts was an important qualification. Mr. Battillo felt there was some urgency in filling the position: certain deadlines had to be met if grant moneys available to Putnam County were not to be forfeited. Petitioner started working for respondent on August 30, 1990, at an annual salary of $14,400. On her first day on the job, Mr. Battillo summoned her to his office, asked her to shut the door, and told her she would "have to make a few changes" (T.45) in her appearance because "people would have a problem with the way," id., she looked. She told him she did not believe it would be a problem. In her job interview, she had suggested she "would have instant recognition and people would be reminded when they saw [her] to recycle." T.41. When she was hired, Mrs. Khalsa bought an off-white suit, which she wore the second day on the job. The following day, Mr. Battillo thanked her for not wearing all white, again after summoning her to his office and ordering the door closed. He told her she "look[ed] fine from the knees up . . . [but] that the leggins had to go." T.48. He said that she needed to wear colors and that "if you don't change the way you dress, you're not going to be allowed to do your job." T.49. She told him she planned to get new shoes. After leaving his office, she cried. Mrs. Khalsa worked closely with Diane Shoeman, a high school teacher who served as an educational consultant, for about ten hours, developing curriculum on recycling for the Putnam County schools. They enjoyed a good working relationship, which Mrs. Shoeman told Mr. Battillo at the time. On September 18, 1990, when she was in his office on business, Mr. Battillo told her she could not continue dressing as she had been, that it was the same "as if an employee didn't wear a bra to work and he had to tell her to wear a bra." T.52. He told her that, when he had worked in Sarasota, the Mennonite women dressed plainly "but that they wore pastel colors. And couldn't [petitioner] dress that way?" T.53. Mr. Battillo was adamant, and petitioner left his office in tears. He granted her request for a half day off to shop for clothes. The day after she acquired a new pair of shoes, white hose and a blue dress, Mrs. Khalsa wore them to work. When Mr. Battillo asked her if she was comfortable dressed like that, she said she "could live with it" (T.69) even though she felt she was compromising her practice as a Sikh. From then on, she wore white hose rather than churidars as long as she worked for Putnam County, afraid she would lose her job otherwise. The blue dress she wore every few days, even though her mother-in-law was shocked when she first saw it. Mrs. Khalsa met her September 30, 1990, deadline for purchasing certain audiovisual equipment, and for completing numerous other assignments. She drew on her experience as a graphic artist in designing or doing the layout for bookcovers for school children, an educational activities book on recycling, sun visors, bookmarks, decals, magnets, information posters and brochures for which she both wrote the text and "d[id] the art work." T.64. On October 2, 1990, the Monday after meeting the deadline (so avoiding forfeiture of the grant), she was fired by Mr. Battillo, who explained, "I don't like you and I don't like your turban." T.71 Mrs. Khalsa's manner of dress was an important motivating factor for her discharge. During calendar year 1991, Petitioner and her husband together earned approximately $6,000. When he terminated her employment, Mr. Battillo also mentioned friction with the printers with whom Mrs. Khalsa had been dealing. They supposedly resented her asking for proofs, apparently a departure from past practice under County contracts; and were perhaps embarrassed when she pointed out that they had billed for work never done. T.94 When she began work, she was told she "had six months to learn procedures." T.100. Mrs. Khalsa conscientiously sought to comply with County purchasing policies, despite some confusion about just what the policies were in certain particulars. The only "changes" she insisted on without processing change orders were to assure that the county received what the printer had originally agreed to supply, or the equivalent. T.105, 108-9. At hearing, Mr. Battillo testified to complaints about music Mrs. Khalsa listened to at work, but other employees listened to radios at work, and the only other employee in the building where Mrs. Khalsa worked told her at the time that he could not hear music from her office. Mr. Battillo once entered her office to find incense burning, which she extinguished at his request, never to rekindle on the premises. Once, she and her building mate disagreed on the thermostat's setting, she closed her door, shut the cooling vents and opened her windows, until told not to, when she promptly complied.
Recommendation It is, therefore, RECOMMENDED: That the Florida Commission on Human Relations order Putnam County to reinstate petitioner and pay her back wages, along with reasonable attorney's fees and costs. DONE and ENTERED this 11th day of February, 1993, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1993. APPENDIX Petitioner's proposed findings of facts Nos. 1-11, 13, 15, 33 and 34 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 12, 14 and 35 pertain to subordinate matters. Respondent's proposed findings of fact were not numbered. COPIES FURNISHED: Matthew P. Farmer, Esquire Farmer & Fitzgerald, P.A. 2910 Bay to Bay Boulevard Suite 214 Tampa, FL 33629 Ronald E. Clark, Esquire P.O. Box 2138 Palatka, FL 32178-2138 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F. Suite 240 Tallahassee, FL 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Tallahassee, FL 32303-4149
The Issue Whether Respondent, a professional guardian ("PG"), engaged in the violations alleged in the Amended Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact OPPG was statutorily created, effective March 10, 2016, and charged with oversight of registered professional guardians in Florida, including, but not limited to, "[ e]stablishing disciplinary proceedings, conducting hearings, and taking administrative action pursuant to chapter 120." Prior to that time, the oversight of PGs was the province of the circuit courts in which they were appointed. PGs are appointed by the court to serve as legal decision-makers for persons determined incapacitated by the court (commonly referred to as "wards"), who are unable to make decisions that affect their health, safety, and well-being. PGs are fiduciaries entrusted with the care of the wards that they serve, and, as such, have an implied duty to act in good faith. The proper conduct and management of guardianship cases requires that guardians must be independent and impartial. PGs appear in court on behalf of their ward through an attorney hired by the PG. In order to be appointed as a PG for a particular ward, the PG is required to file an application with the court. Respondent used the services of attorneys Sherry Hazeltine and Ellen Morris to represent her in guardianship and guardian advocate1/ cases. Prior to becoming a PG, Respondent worked with the elderly and had a strong interest in serving children with disabilities and their families. In 2010, Respondent took the requisite 40–hour course, passed an exam, and applied for and was granted registration as a PG for Palm Beach County. Since 2010, Respondent acted as a PG or guardian advocate who was paid for her services, except for cases in which she agreed to serve pro bono. For any case in which Respondent sought compensation as a PG, her billing statement was reviewed by a case manager, the Circuit Court's auditor, and then was approved by the judge assigned to the case. In 2012, prior to the enactment of the statute creating the OPPG for purposes of overseeing PGs, the Circuit Court Clerk's Division of Inspector General ("IG"), Investigator Anthony Palmieri, began an investigation of Respondent and her practices as a PG. Mr. Palmieri believed Respondent had a conflict of interest serving as a PG in the same division in which her husband, Martin H. Colin, served as a judge. Mr. Palmieri also examined Respondent's friendship with her husband's colleague, Judge David French, who presided over some of Respondent's cases. Mr. Palmieri also investigated Respondent's practice of taking retainers before services were rendered in some of her guardianship cases. On December 8, 2017, Mr. Palmieri provided his Investigation Report ("Report") concerning Respondent to OPPG. The Report served as a basis for drafting the Complaint and Amended Complaint in this matter. At no time prior to the initiation of this action by OPPG against Respondent was she notified that the IG's office was concerned about any of her practices as a PG. Possible Conflict of Interest--Judge Colin At all times material hereto, Respondent was married to then Circuit Court Judge Martin H. Colin, who served in the South County Courthouse in the Probate and Guardianship Division until 2015, when he transferred to the Circuit Civil Division. Judge Colin retired in 2016. When Respondent became a PG serving in Palm Beach County, Judge Colin raised the issue of a possible conflict of interest, or appearance of a conflict, with his Chief Judge, Judge Peter Blanc. Judge Blanc told Judge Colin that there would be no conflict, or appearance of conflict, as long as he did not handle Respondent's cases. Further, if any other Circuit Court judge was concerned about a conflict, or perceived conflict, with Respondent serving as a PG in one of their cases, they could recuse themselves. The Probate and Guardianship Division of the Circuit Court handles one of the largest guardianship dockets in Florida. Employees in the Clerk's Office were made aware of the marital relationship between Judge Colin and Respondent, and avoided assigning cases involving Respondent as the PG to Judge Colin. If Respondent entered into an existing case which was previously assigned to Judge Colin, he internally transferred the case to another judge.2/ Judge Colin had no role in appointing Respondent to guardianship cases. Generally the family or the attorney representing the ward designates who they would like to use as a guardian. Prior to the implementation of a random "wheel" process in guardianship cases in 2016, it was up to the judge to designate a PG if one was not designated by the party or their lawyer. No evidence was presented that Judge Colin designated Respondent as a PG for any cases in which he presided. Like the other Circuit Court judges, Judge Colin periodically served as the "duty judge" for purposes of signing routine orders when the presiding judges in cases were unavailable. In this capacity, Judge Colin signed between two to four thousands orders in guardianship and probate cases between 2010, when Respondent became a PG, and 2015, when he changed divisions. OPPG makes much of the fact that over this time, Judge Colin signed seven orders in cases in which Respondent served as the PG. The Amended Complaint, paragraph 12, alleges that, "Respondent failed to take any action to have Judge Colin removed as the judge formally assigned to guardianship and/or guardian advocacy cases to which she was appointed." However, neither Respondent nor Judge Colin had any control of which orders he was tasked to sign as duty judge. Two of the seven orders presented by OPPG do not contain Respondent's name as an individual to be served with a copy of the order. Although Attorney Hazeltine's name appears on the service list for these orders, Attorney Hazeltine represented other PGs in addition to Respondent. Seeing Attorney Hazeltine's name alone would be insufficient to alert Judge Colin to his wife's involvement in a case. Further, all of these orders were on routine, uncontested matters. Judge Colin convincingly testified that had he been aware of his wife's involvement in any of these cases, he would not have signed the order to avoid any appearance of impropriety. The Amended Complaint repeatedly asserts that Respondent failed to disclose "the conflict of interest inherent in her relationship to Judge Colin." Respondent denies that there is any inherent conflict due to her marital relationship with Judge Colin. Both Judge Colin and Respondent testified that at no time was any conflict or potential conflict brought to their attention by any litigants, lawyers, other judges, or the IG's office. However, it is undeniable that there would be at minimum an appearance of a conflict if Judge Colin presided over cases to which Respondent was assigned as a PG. As explained by OPPG's experts, Attorney Sketchly and Judge Cohen, the marital privilege protects communications between spouses. If Judge Colin presided over Respondent's cases as a PG, they could have ex-parte communications that would not be discoverable. It is possible that they could discuss the merits of the guardianship case, as well as the fee petition of Respondent as the PG. In fact, this potential for conflict was discussed in Baez v. Koelemij, 960 So. 2d 918, 919 (Fla. 4th DCA 1992), a case in which Judge Colin was directed to be removed on a motion for disqualification because the movant's opposing counsel also represented Judge Colin's then-girlfriend, Respondent. Noting that the judicial canons did not require the disclosure by Judge Colin of his relationship with Respondent because they were not a spouse or a relative of the third degree, the court ruled, "the mere fact that neither the canon nor the rule require disqualification or disclosure where the opposing counsel represented a "girlfriend" of a judge, disqualification is still appropriate where a reasonable litigant would have a well- grounded fear of not receiving a fair trial. While the judicial canons do not apply to PGs, as a fiduciary, PGs have a duty of independence and impartiality. Because of this special role between the PG and ward, the PG should disclose any relationship that creates a conflict or potential conflict of interest. Disclosure must include material facts sufficient to allow a ward, a residual beneficiary, the court, or any other interested party, to make an informed decision regarding the appearance of conflict. Respondent completed an application for appointment in every case for which she served as a PG or guardian advocate. In response to the application form's request to identify spouse, Respondent answered, "Martin H. Colin." According to Respondent, this disclosure was sufficient because the lawyers in the case and the courthouse staff were aware of her marriage to Judge Colin, and the wards were too incapacitated to read or understand the application. However, this simple identification of Judge Colin by his proper name was insufficient to put the ward, their family members, out-of-county lawyers, or other interested persons on notice of the potential conflict. Respondent should have identified her spouse as Judge Martin H. Colin, of the Circuit Court, Probate and Guardianship Division. Significantly, no evidence was presented during the final hearing to demonstrate that Respondent benefited from this failure to adequately disclose her marriage to Judge Colin, or that her wards or other interested parties were in any way harmed. However, failure to adequately disclose a conflict, or appearance of conflict, erodes the public's confidence in the guardianship system. Possible Conflict of Interest--Judge French Prior to Respondent's becoming a PG in 2010, she developed a friendship with her husband's colleague, Judge French, and his then wife. Judge French also served in the Probate and Guardianship Division of the Circuit Court. Respondent and her husband vacationed as the guests of Judge French and his wife on one occasion for a weekend, sometime between 2006 and 2008. The couples also planned a cruise together that did not happen. No other evidence was presented regarding whether Judge French and Respondent socialized on any other occasion. Respondent testified she did not socialize with Judge French. The fact that Respondent and Judge French traveled together one time does not demonstrate a conflict or potential conflict of interest. Accordingly, Respondent had no obligation to disclose a social friendship that she did not believe would pose a conflict. Importantly, although Judge French presided over cases in which Respondent served as a PG or guardian advocate, at no time did he feel he had to remove himself, or otherwise transfer, a case in which Respondent was the PG. Presumably, Judge French believed that despite this social relationship, he could remain impartial and that his relationship with Respondent did not create a conflict or the appearance of a conflict. Improper Taking of Retainers by Respondent PGs have a special relationship with their wards. As a fiduciary, they have a duty of loyalty and an obligation to at all times act in the best interests of their wards, and not for personal gain. See § 744.361, Fla. Stat. PGs are prohibited from borrowing money from their wards. See § 744.454, Fla. Stat. Section 744.108 mandates that guardianship fees must be approved by the court prior to payment. Subsection (1) specifically recognizes that a guardian "is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward." (emphasis added). This language is in the past tense, and does not make any allowance for payment of advance fees or retainers. According to Attorney Sketchly, Judge Cohen, and Mr. Palmieri, PGs normally prepare periodic bills showing services rendered and the amount of time spent which are submitted to the court. After a bill is reviewed by a case manager and the court auditor, it is then submitted to the presiding judge for approval. Only after the bill is approved by the court can fees be paid to the PG. Attorney Sketchly, Judge Cohen, and Mr. Palmieri, in their combined decades of experience, were not aware of any PGs in Florida taking fees prior to court approval. Respondent's expert, Attorney Amy Beller, also testified that it is never permissible for a PG to take a loan from a ward's estate. In three cases between April 2012 and July 2015,3/ Respondent, acting as a PG or guardian advocate, requested and received "retainers"4/ for future anticipated services, without prior court authorization. Two retainers were taken in the amounts of $1,000.00, and one was taken in the amount of $2,500.00. Respondent had no set business practice to establish on which cases retainers would be sought or for what amount. Respondent had no written retainer agreements with her clients. Respondent testified she did this occasionally when she anticipated there would be a lot of work up front on the case. The retainers charged by Respondent were reflected as a credit on the bills submitted to the Circuit Court for approval. No notation was contained on the bill as to when the retainer was collected. Respondent did not recall whether the retainers were collected prior to her appointment as PG or before services were provided. The bills for these cases in which retainers were taken were ultimately approved by the Circuit Court. Section 744.446(2) provides that: (2) Unless prior approval is obtained by court order, or unless such relationship existed prior to appointment of the guardian and is disclosed to the court in the petition for appointment of guardian, a guardian may not: Have any interest, financial or otherwise, direct or indirect, in any business transaction or activity with the guardianship; Acquire an ownership, possessory, security, or other pecuniary interest adverse to the ward[.] By taking money from the ward prior to providing any services and prior to court approval, Respondent created a conflict of interest. Once Respondent took a retainer from her client, she then had a financial interest at stake in seeing her fees were approved. Attorney Sketchly explained that these retainers appeared to be loans to Respondent. The round numbers, randomly taken as "retainers," without any billing prior to the taking of the retainer, or court authorization, suggest Respondent used "retainers" because she needed the money. This constitutes a breach of fiduciary duty, is contrary to the best interests of the ward, and creates a financial interest in the guardianship, which are prohibited by section 744.446. By using retainers, Respondent abused her power as a guardian.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Elder Affairs, Office of Public and Professional Guardians, issue a final order dismissing this case. DONE AND ENTERED this 21st day of December, 2018, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 21st day of December, 2018.
Conclusions This matter is before the Department of Administration for entry of a Final order. A Recommended Order was entered herein on December 30, 1988, by Arnold H. Pollock, Hearing Officer. The record in this case, including the exhibits received into evidence ang the transcript of the hearing, has been reviewed. The Findings of Fact in the Recommended Order (Exhibit "A", attached hereto) are supported by competent substantial evidence and are adopted by the Department of Administration. The Conclusions of Law in the Recommended Order (Exhibit "A", attached hereto) are adopted and incorporated as part of this order. Petitioner's Exceptions Petitioner through his attorney has filed exceptions to the Recommended Order which are responded to as follows: (1) Exception 1: There is no competent evidence in the > record to substantiate the Respondent's assertion. The Hearing Officer's findings are supported by the record. Exception No. 1 is rejected. (2) Exception 2: The record does not support this exception. The prior occasions when the Petitioner was not required to call in each day of his absence were for specific long-term periods. The Hearing Officer's findings are supported by the record. Exception No. 2 is rejected. (3) Exception 3: The Hearing Officer's findings are supported by the Record. Exception No. 3 is rejected. (4) Exception 4: The findings are supported by competent evidence in the record. Exception No. 4 is rejected. (5) Exception 5: The record evidence will support the Hearing Officer's Findings of Fact. Petitioner failed to properly notify his supervisors as required. Exception No. 5 is rejected. (6) Exceptions 6, 7, and 8: The Respondent's exceptions to the Hearing Officer's Conclusions of Law are directed toward the ultimate conclusion of the Hearing Officer and not to the Findings of Fact, which are supported by the competent, substantial evidence in the record. Exceptions No. 6, 7, and 8 are rejected. (9) Exception 9 and 10: The Respondent's exceptions are directed at the Hearing Officer's Conclusions of Law. The Conclusions of Law are supported by the Hearing Officer's findings. An employee who is absent without proper authorization pursuant to Rule 22A-7.010(2) (a), F.A.C. for three consecutive days shall be deemed to have abandoned his position. See Hadley >) “) Vv. Department of Administration, 411 So.2a 184, (Fla. 1982). The exceptions of the Respondent are premised upon a theory of estoppel. The Respondent argues the past conduct of the employer precludes an enforcement of the abandonment rule under the findings of this case and therefore Respondent was justified in not seeking authorization for his absence. The court has held that past conduct of an employer will not preclude an employer from enforcing Rule 22A-7.010(2) (a), F.A.C. Department of Transportation v. Clancy, 521 So.24 376, (Fla. 2nd DCA 1988). Exceptions No. 9 and 10 are rejected.
The Issue Whether Petitioner's request for exemption from disqualification from mental health personnel employment should be granted pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Petitioner, Jack V. Fulford, at the time of hearing, was twenty-nine years old. In June of 1997, he was hired as a member of the mental health personnel at the Heart of Florida Behavioral Center. In order to continue in the position, Mr. Fulford was subject to "level 2 screening," a type of security background check conducted under Chapter 435, Florida Statutes. The background check indicated that Mr. Fulford had been found guilty of a felony prohibited under one of the provisions of the Florida Statutes (or under any similar statute of another jurisdiction) listed in Section 435.04(2), Florida Statutes. It is not clear from the record whether Heart of Florida or the Department notified Mr. Fulford that he was disqualified for employment, but he was so notified. Mr. Fulford then sought an exemption from the disqualification. The Department of Children and Family Services is the licensing agency with discretionary power "to grant to any employee otherwise disqualified from employment [in this case, Mr. Fulford] an exemption from disqualification for . . . [f]elonies committed more than three years prior to the date of disqualification . . .". Section 435.07, Florida Statutes. The Department denied Mr. Fulford's request for the exemption following the recommendation by an Exemption Review Committee that the exemption be granted. An FBI record introduced into evidence shows that Mr. Fulford has a long history of drug and alcohol abuse. Mr. Fulford admitted as much in testimony in which he described in some detail the destructive consequences the abuse has caused to friends, family and himself. His use of drugs and alcohol, begun in high school, continued to the point of unquestionable abuse while he was in the United States Navy, from which he received a discharge classified by the Navy as "other than honorable." Mr. Fulford participated in several programs and different treatment centers after his discharge. Although successfully able to discontinue drug use in the early part of this decade after a fourteen to fifteen-month stint in prison for violation of probation, Mr. Fulford continued to drink. In February of 1997, a conviction for DUI convinced him that he could drink no more. At the time of hearing, Mr. Fulford had been drug and alcohol free for at least 15 months. During that fifteen months he had consumed "no drugs, alcohol or mind- altering substances, whatsoever." (Testimony of Mr. Fulford.) The FBI record introduced into evidence by the Department, although difficult to decipher without any supporting explanation, is full of arrests and convictions suffered by Mr. Fulford since 1987. The only item that reflects an offense that falls within the list for "level 2 screening" is a plea of nolo contendere with a disposition of "guilty/convicted" (Petitioner's No. 1, page 6) for the third degree felony of possession of cocaine. The arrest leading to the disposition occurred on March 2, 1990; the disposition, twenty days later, on March 22, 1990. During his service in the Navy, Mr. Fulford received training in the medical field. He worked as an orderly, emergency room technician, and a mental health facilitator. He was trained in CPR. The only meaningful employment he has enjoyed during his adult life has been in a hospital environment. In one of the treatment programs in which Mr. Fulford participated, one of the steps in the multi-step pdrocess was to participate as a facilitator providing therapy to other patients or participants. Mr. Fulford reached that step. When asked about his work experience, therefore, in the papers reviewed by the Exemption Review Committee, Mr. Fulford listed his "work" as a facilitator for other participants in the abuse program in which he was also a patient or participant. The Exemption Review Committee recommended that Mr. Fulford be granted an exemption. Prior to exemption becoming finalized, however, one of the department's employees, Mr. Miller, discovered that the "work" done by Mr. Fulford in the treatment program was not done as an employee of the program but as a patient/participant progressing along a multi-step process. Thinking that Mr. Fulford had filled out papers of the committee falsely, Mr. Miller advocated that the Department reject the review committee's recommendation. The Department did so. On February 25, 1998, the Department advised Mr. Fulford that his request for an exemption had been denied "because [he had] failed to show clear and convincing evidence that [he had] been sufficiently rehabilitated." Letter from Sue B. Gray, District 14 Administrator, filed with the Department Clerk on April 2, 1998.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department enter a final order either: Granting the exemption subject to a probationary period, (the terms of the probation could include participation by Mr. Fulford as an out-patient in a drug rehabilitation program, monitoring at work at the Heart of Florida Behavioral Center, and participation in regular attendance at Narcotics and Alcoholics Anonymous Groups;) or Denial of the exemption without prejudice to reapply and obtain an exemption upon a showing of rehabilitation by sufficient evidence at the appropriate time in the future. DONE AND ENTERED this 5th day of October, 1998, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1998.
The Issue Whether the Agency for Health Care Administration abused its discretion when denying Petitioner’s request for exemption from disqualification to work in a position of special trust.
Findings Of Fact STIPULATED FACTS On June 28, 2013, Petitioner was arrested, and charged with a single-count of aggravated child abuse in violation of section 827.03(2)(a), Florida Statutes, and a single-count of child abuse in violation of section 827.03(2)(c). On May 12, 2014, Petitioner pled and was adjudged guilty to the lesser included offense of contributing to the delinquency or dependency of a child, in violation of section 827.04(1). Section 435.04(2)(jj), Florida Statutes (2019),1/ provides that a violation of section 827.04(1) is an offense which disqualifies an individual from working in a position of special trust. In 2018 Petitioner sought employment as a customer service supervisor in the call center for Centene’s Sunshine State Health Plan (Sunshine State). Sunshine State has a contract with the Agency to provide managed care services. Petitioner, as a customer service supervisor for Sunshine State, had access to personally identifiable information and protected health information (sensitive information) of individuals serviced by the company. Sunshine State’s contract with the Agency requires that employees who have access to sensitive information must pass a level 2 background screening in order to remain employed by Sunshine State. Petitioner did not pass the background screening. By correspondence dated April 12, 2019, the Agency informed Petitioner that his request for exemption from disqualification was denied after consideration of the following factors: the circumstances surrounding the criminal incident for which an exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; a history of the employee since the incident; and any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed; and [that Petitioner did not provide] clear and convincing evidence of rehabilitation as required by Florida Law. DISQUALIFYING OFFENSE The Agency, in considering Petitioner’s application for exemption, prepared an “exemption decision summary” which provides an overview of Petitioner’s criminal history. The summary states the following with respect to Petitioner’s disqualifying offense: Arrest Report: [Petitioner’s] [s]on, who was six and seven years old during the times of the incidences, has behavioral problems and particularly did not like his father’s girlfriend. [Petitioner] [u]sed varying methods to try and stop his son’s violent behavior, including . . . striking [the son] on multiple occasions, tying him to the table, and causing extensive bruising. . . . Applicant Statement: [Petitioner] admitted that he knew what was done [to his child] was not right; admitted to spanking his son using his hand, once with a belt, and an electrical cord the day before – mark left on thigh; admitted to using zip-ties to loosely secure his son for 20-30 minutes, to a table, when he would not be able to watch him. [Petitioner] denied using cold water or ice cubes; never addressed the use of duct tape; denied denying the child food; stated fold[ing] clothes was not a form of punishment, as everyone had chores; did not address the punishment of forcing the child to stand in the corner; admitted to having child perform pushups before he [started] spanking him. [Petitioner] admitted the child slept in the kitchen, as there was no other place he could sleep where he was able to watch [the child]. [Petitioner] explained that the child also had behavioral issues in school and would frequently have to be picked up from school; stated he had to go on FMLA to protect his job due to having to leave work so often. [Petitioner] explained through all of the help he sought, no one ever offered an explanation for his son’s behavior (i.e. autism, Asperger’s, etc.). DCF removed the children, including the victim and the other children in the home at the time. [Petitioner] voluntarily gave up his rights to said child.[2/] NON-DISQUALIFYING INTERACTIONS WITH THE CRIMINAL JUSTICE SYSTEM Petitioner has no reported interaction with the criminal justice system subsequent to the occurrence of the disqualifying offense. In May 2011, Petitioner was cited for driving under the influence of alcohol (DUI). There is no evidence that alcohol consumption was a factor when Petitioner committed the disqualifying offense. EVIDENCE OF SUGGESTION OF REHABILITATION Petitioner, in support of his suggestion of rehabilitation, offered five letters of reference. Each letter generally attests to Petitioner’s good character and work ethic. One of the letters of reference is from Dr. Frankie Small, Ed.D., Ed.S., MSW, LCSW. Dr. Small’s letter dated November 2, 2018, advises that she provides once-weekly family therapeutic services to Petitioner, his domestic partner, and their five children. Dr. Small indicates that during the year or so that she treated Petitioner, he impressed her as being a supportive and caring individual who has a positive attitude towards his five children. In considering the letter, it is noted that Dr. Small makes no reference to Petitioner’s disqualifying offense, there are no treatment notes provided, and there is no mention of the specific issues which necessitated the utilization of her services by Petitioner. These omissions make it difficult to assess whether Petitioner has meaningfully addressed his personal issues which contributed to, or caused him to commit, the disqualifying offense. In support of his suggestion of rehabilitation, Petitioner also provided to the Agency a copy of a January 23, 2019, psychological evaluation prepared by Dr. Tracey Henley. Dr. Small referred Petitioner to Dr. Henley for neuropsychological evaluation. Dr. Henley’s report notes that Dr. Small did not include with the referral any of Petitioner’s mental health records. Dr. Henley’s report also notes that Petitioner, as part of the proceedings related to the disqualifying offense, was treated by forensic psychiatrist Dr. Michael Mayor, who diagnosed Petitioner “with an adjustment disorder due to family turmoil.” The instant record does not include any treatment records from Dr. Mayor. Finally, Dr. Henley recommended that that Petitioner receive individual counseling to address his “symptoms of emotional distress and to develop appropriate coping skills.” There is no evidence that Petitioner either received, or is receiving, individual therapy as recommended by Dr. Henley. As previously noted, Petitioner was arrested on June 28, 2013, for the disqualifying offense. As part of the adjudicatory process associated with the disqualifying offense, Petitioner, between June 2013 and May 2014, completed a 13 session “Nurturing Dads Course,” started, and eventually completed, a group course in “Anger Management and Emotional Management with Intensive Parenting,” and performed 50 hours of community service. Subsequent to the disqualifying offense, Petitioner, in December 2014, earned a Bachelor of Applied Science degree from St. Petersburg College.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the Agency for Health Care Administration, enter a final order denying Petitioner’s request for exemption. DONE AND ENTERED this 17th day of January, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 17th day of January, 2020.
