The Issue Proposed transfer of Bernice Ino, as specified in letter of Anthony Ninos, Director of Division of Hotels and Restaurants, dated July 27, 1976. This is an appeal of a career service employee pursuant to Section 110.061, Florida Statutes. The appeal was referred to the Division of Administrative Hearings by the Career Service Commission on November 24, 1976.
Findings Of Fact By the General Appropriations act emanating from the 1976 state legislative session, 38 employee positions of the Respondent's Division of Hotel and Restaurants were abolished. Although the specific positions were not identified in the appropriations act, the Division director was informed by a staff representative of the legislative committee on appropriations that 25 Hotel and Restaurant Inspector I positions and six Inspector II positions should be among those eliminated. The Division previously had 103 Inspectors of the two classes. Respondent identified the positions statewide to be eliminated and requested the Secretary, Department of Administration, to approve the concept that the competitive area for layoff of employees be statewide within the Division. Approval of this plan was secured and Respondent proceeded to abolish the positions and to layoff Inspectors in its various districts throughout the state. Since the Division at the time had eight vacancies for Inspector positions only 23 employees were actually eliminated. Layoffs were carried out under a retention point system based on length of service and performance evaluations, computed and applied under the provisions of Department of Administration Emergency Rule 22AER76-1, Subject "Emergency Rule Governing Layoff of Career Service Employees". As to Inspectors I, the 83 such positions in the state were placed on a numerical list, according to total number of retention points of each employee, and those with the lowest numbers were selected for layoff. Seven employees were terminated in District I (Jacksonville) and one in District IV (Ft. Lauderdale). (Testimony of Ninos, Dorn, Exhibits 1, 9-12) As a result of the abolishment of Inspector positions, there was an imbalance in manning levels in the various state districts. In Jacksonville, there had been eight inspector positions. The abolishment of three of these left five vacancies that had to be filled. On the other hand, there were negative vacancies in the Ft. Lauderdale district. The Division director therefore instructed the Respondents' personnel officer, Lee Dorn, to reapportion the state to effectively cover all inspection areas. Specifically, he directed that five Inspector I positions be transferred to Jacksonville, 3 of them to come from the Ft. Lauderdale district. In a Memorandum to Dorn, dated July 15, 1976, the director identified the three positions in Ft. Lauderdale for transfer as those held by A. V. Maloni, Bernice N. Ino, and J. F. Friedman. The retention points of these employees had been calculated respectively at 210, 169, and 165. These three employees, and two others to be transferred to Jacksonville from District V, were those Inspectors who had the lowest number of retention points after those having less retention points had been laid off. It was stipulated by the parties that the number of retention joints calculated for Petitioner is correct based on the criteria set forth in the Department of Administration's Emergency Rule. (Testimony of Ninos, Dorn, Exhibit 2) It thereafter developed that of the three Ft. Lauderdale employees, Petitioner was the only one who would actually have had to take an involuntary transfer to Jacksonville. Mr. Friedman, who had less retention points, secured a new position with another agency. Maloni, who had more retention points than Petitioner, was reassigned to a position in the Ft. Lauderdale district that was vacated when the incumbent, in turn, was reassigned to another position made vacant by the illness and eventual separation of its incumbent, John W. Murray. The person replacing Murray, A. J. Pergament, had 792 retention points. (Testimony of Ninos, Dorn, Smith, Exhibits 4, 6-8, 14-21) Petitioner was orally informed in late June of her proposed transfer by her District Supervisor, Chauncey D. Smith. This was followed by a letter, dated July 27, 1976, from the Division director that formally advised her of the transfer of her position to the Jacksonville district, effective August 1, 1976. The letter gave as a basis for the transfer the fact that legislative abolishment of positions made it necessary for the Division to reapportion its staffing to effectively cover all inspection areas and that the proposed changes were being made to obtain "equity, effectiveness, and efficiency within our districts". The letter further advised Petitioner of her right to appeal the transfer to the Career Service Commission. Although this letter did not reach Petitioner through the mail due to an incorrect address, a copy was personally served on her on July 29. Petitioner acknowledges that the incorrect address was due to her negligence in advising Respondent correctly as to the same. In a memo to Petitioner, dated July 28, Smith had conveyed Division instructions for her to report to Jacksonville on August 2. Petitioner declined to accept the transfer. She filed her appeal by letter of July 31, 1976 and thereafter resigned, effective August 2, 1976. Her appeal letter stated that she had not been given sufficient notice to relocate and that the transfer would be a great financial hardship due to the fact that she had purchased a home in the area recently. (Testimony of Dorn, Smith, Ino, Exhibits 3, 13, 22-23) At a meeting with Smith and the Division's Chief of Enforcement, B. E. Fernandez, in early August, Petitioner was informed that she would be given the next opening in Ft. Lauderdale. In fact, Inspector Murray was not separated until November but his job had been filled on a temporary basis by Maloni. When Murray was finally separated, Maloni stayed in the position. Petitioner had been told by Smith that it would be a hardship for Maloni to suffer a transfer because of family considerations, but would not be so difficult for her because she could obtain unemployment compensation and she need not be concerned because her husband was working. When Murray finally departed, Petitioner called the Division director regarding the promise that she would have the next opening and he wrote her in December, 1976, that, although she was next in line for any vacancy, Maloni had received Murray's job because he had more retention points. Also, during this period, Fernandez and Smith offered Petitioner openings in Gainesville and Daytona Beach, but she declined to accept them because she wished to stay in Broward County. Smith also suggested that she get a job as a hostess or cocktail waitress because she was cute and petite. (Testimony of Ino, Smith, Fernandez, Exhibit 4) Petitioner testified that she was of the opinion her sex was a factor in the matter because nothing was done for her by Division personnel and because of the comments made by Smith concerning her eligibility for unemployment compensation and his comments concerning the possibility of her becoming a cocktail waitress. (Testimony of Ino) Petitioner was employed by Respondent from June 1, 1973 to August 2, 1977. She had performed her duties in an exemplary manner. (Testimony of McCulley)
Recommendation It is recommended that the Career Service Commission deny the appeal. DONE and ENTERED this 23rd of March, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Lawrence D. Winson Staff Attorney Department of Business Regulation The Capitol Tallahassee, Florida 32304 Roger D. Haagenson 800 E. Broward Building Suite 610 Ft. Lauderdale, Florida 33301
The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th day of February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
The Issue Whether City of Belleair Beach Treasurer Robert K. Hebden was an independent contractor or an employee of the city.
Findings Of Fact The Petitioner City of Belleair Beach (City) is a participating local agency of the Florida Retirement System (FRS) and is subject to the laws applicable to the FRS. The City began participating in the FRS through the adoption of City Ordinance 99 in 1973. The Respondent Division of Retirement (Division) is the state agency charged by statute with the administration of the FRS. On a date unspecified, the Division's Management Review Section audited the City as required by statute. Based on the audit, the Division concluded that Mr. Hebden was not an independent contractor, but was a part time employee of the City. The Division communicated this information to the City by letter of May 27, 1992. The Division's Enrollment Section, responsible for enrolling employees in the FRS, conducted an analysis of the materials obtained by the Management Review Section, and concurred in the initial employment status determination. By letter of October 11, 1993, the Director of the State Division of Retirement notified the City that the Division had determined Mr. Hebden to be have been an employee in a regularly established position for purposes of the FRS from July 1979 through February 1991, and that FRS contributions were due for that period. On October 15, 1993, Mr. Hebden signed an FRS application for service retirement. The application was filed with the FRS. Mr. Hebden completed the application on the suggestion of the Enrollment Section Administrator. Mr. Hebden considers himself to have worked for the City as an independent contractor and would not have filed an FRS application without the request by the enrollment administrator. In concluding that Mr. Hebden was an employee, the Division reviewed all materials furnished by the City. Such materials included copies of contracts, billing statements and IRS forms. At all times, the Division has been amenable to reviewing any additional documents submitted by the City. Beginning in 1972, and continuing to February of 1991, Robert K. Hebden provided various services to the City. Beginning in July 1979, Mr. Hebden served as the City Treasurer. The position of Belleair Beach City Treasurer is established by city ordinance. The position description for the City Treasurer sets forth duties as follows: The treasurer works on a daily basis primarily under the mayor's supervision but is ultimately accountable to the city council. Compiles operating and capital expense estimates for annual budget. Forecasts problem areas of income and expense and proposes possible solutions. Maintains general accounting system and appropriate operating cash balances. Submits to council a monthly detailed statement of revenue and disbursements in contrast with annual budget. Prepares for submission to council a detailed financial statement as of the end of each fiscal year. Invests surplus General Government Funds in conjunction with the Mayor or Deputy Mayor and recommends investment of Sewer Trust Funds in conjunction with the approved Trustee. Provides for payment of bonds and interest and maintains files for cancelled coupons and bonds. Maintains capital assets inventory including acquisition and disposition. Between July 1, 1979 and February 12, 1991, Mr. Hebden was the Belleair Beach City Treasurer. He performed the duties of the position description and such additional duties as were assigned at the discretion of the Mayor and Council. In February 1983, Mr. Hebden and the City entered into a written contract regarding his service as Treasurer. The initial contract was retroactive to October 1, 1982. Prior to this point, Mr. Hebden acted as City Treasurer under an oral agreement with the City officials. The February 2, 1983 contract identifies Mr. Hebden as "the Contractor." The contract is for the one year period of October 1, 1982 to September 30, 1983 and provides as follows: The Contractor will be allowed twelve (12) days of paid sick leave and at times mutually agreeable fifteen (15) days of vacation without adjustment to the monthly fee. Absence in excess of this amount will be adjusted on a prorata basis. The work week will be 8:30 A. M. to 12:30 P. M. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. Services will be reimbursed on a monthly basis at the rate of SEVEN HUNDRED DOLLARS ($700.00) per month, plus an allowance of SEVENTY DOLLARS ($70.00) for expenses upon receipt of a statement. This agreement may be extended beyond the original term of One (1) year upon such terms and conditions as the parties shall mutually agree between them. Beginning with the subsequent agreement dated July 14, 1983, all contracts identify Mr. Hebden as "the City Treasurer" rather than "the Contractor." The July 14, 1983 contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. The duties of the City Treasurer shall include but not be limited to: -compilation of current and capital expense estimates for the annual budget -maintenance of a general accounting system -submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget -preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be EIGHT HUNDRED THIRTY DOLLARS AND NO/100 ($830.00) per month. THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 10, 1984 contract for the one year period to September 30, 1985 is identical to the agreement of July 14, 1983 except that the retainer fee was increased to $900.00 monthly. The July 15, 1985 contract for the one year period to September 30, 1986 is similar to the agreement of September 10, 1984. The retainer fee was increased to $1100.00 monthly and paid leave was again included. The agreement provides as follows: ....In addition, the City Treasurer shall receive three work-weeks vacation annually (allowing for a base figure of 3 work-weeks for the current fiscal year) and twelve work-days sick leave annually (allowing for twelve work-days for the current fiscal year). THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall commence October 1, 1985, and shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 23, 1986 contract for the one year period to September 30, 1987 is substantially similar to the preceding contract, however, an amendment was made to the paid leave provisions. The agreement provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be ELEVEN HUNDRED THIRTY DOLLARS AND NO/100 ($1100.00) per month. In addition, the City Treasurer shall receive three work-weeks vacation annually and twelve work-days sick leave annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned. The August 3, 1987 contract for the one year period of October 1, 1987 to September 30, 1988 is substantially similar to the preceding contract except that the work hours were amended to 8:00 a.m. to 12:30 p.m. and monthly payment was increased to $1300.00. The September 12, 1988 contract for the one year period of October 1, 1988 to September 30, 1989 is substantially similar to the preceding contract except that monthly payment was increased to $1350.00. In 1989, some Council members questioned Mr. Hebden's performance and considered termination of his contract. The September 25, 1989 contract for the one year period of October 1, 1989 to September 30, 1990 is substantially similar to the preceding contract except that the agreement provides "for a six months performance evaluation." Apparently, the concerned Council members were satisfied with the review and the contract was again renewed. The September 10, 1990 contract reflected Mr. Hebden's intention to leave his position. The contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:00 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year * A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be [[THIRTEEN HUNDRED AND FIFTY DOLLARS AND NO/100 ($1350.00)]] <<FOURTEEN HUNDRED FIFTY DOLLARS AND NO/100 ($1450.00)>> per month. In addition, the City Treasurer shall receive [[three work-weeks vacation annually and twelve]] <<three>> work-days sick leave [[annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned.]] <<Annual leave earned through September 30, 1990 and not taken will be paid on completion of this contract.>> [[THIS AGREEMENT shall provide for a six months performance evaluation.]] [[THIS AGREEMENT shall be reviewed annually by the personnel committee of the City Council, the Mayor and the City Treasurer.]] THIS AGREEMENT shall commence October 1, 1985, and shall expire on <<December 31, 1990>> [[September 30 of each year unless renewed by Council prior to that time.]] THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. * Note: In the above quotation, language which has been added is within the <<>>; deleted language is within the [[]]. All the contracts identified herein were between the City and Mr. Hebden personally. Mr. Hebden signed the contracts. Except as otherwise stated herein, the terms of the contracts were negotiated between Mr. Hebden and the City. Mr. Hebden performed all the responsibilities of the contract personally. For a brief period, he was assisted by a man identified as "Mr. Denman," a person employed by the City. He hired no assistants. Mr. Hebden performed his responsibilities according to practices and procedures he created. He was not provided instructions by the City on how to perform his tasks. The City provided no training to Mr. Hebden. Prior to terminating his tenure as City Treasurer, Mr. Hebden trained his successor in the practices and procedures Mr. Hebden had developed. At all times during Mr. Hebden's employment with the City, he worked the hours specified by the contracts in his office at City Hall. Mr. Hebden testified that he could not recall how his office hours had been determined. The space was provided by the City. The responsibilities of Mr. Hebden's position required utilization of city records, and it was therefore appropriate for such tasks to be performed in an office at City Hall. All furnishings for the office and materials used in performing his tasks were provided by the City. During the period between July 1979 and February 1991, Mr. Hebden submitted to the City statements for payment. Generally, the statements were submitted on a monthly basis. Mr. Hebden had no risk of profit or loss based on any actions of the City. He had no personal investment in the City. Mr. Hebden was paid according to the terms of the contract. He did not receive additional remuneration for his appearance at or participation in Council meetings, work sessions or committee meetings as directed by the Council or Mayor. In the first written contract, Mr. Hebden received a payment for "expenses" in addition to the monthly remuneration. Additionally, Mr. Hebden was reimbursed for personal expenses related to City business use of his car and his boat. Although only one formal performance evaluation was completed during his service, the contracts provide for annual review, except for the final contract which terminated Mr. Hebden's service to the City. Upon said termination, Mr. Hebden was paid for the accrued annual leave. Under the terms of the contract, Mr. Hebden's services could be terminated without penalty upon thirty days notice by either party. Mr. Hebden did not advertise his services to the general public, because he was not interested in taking on additional work, however, for a time, he provided accounting consulting services to the Indian Rocks Fire Control District and was compensated for his work. He also provided volunteer services to the Church of the Isles. During the period relevant to this proceeding Mr. Hebden held no business or occupational licenses. For the years 1979 through 1982, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-NEC, the form used to report "Nonemployee Compensation." For the years 1983 through 1991, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-MISC, the form used to report "Miscellaneous Compensation." The City did not provide health or life insurance coverage to Mr. Hebden. The City did not pay federal social security or withholding taxes for Mr. Hebden. The City did not provide or pay workers compensation benefits or unemployment benefits for Mr. Hebden. The City did not pay retirement contributions to the FRS for Mr. Hebden.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order determining that as City Treasurer of the City of Belleair Beach from July 1979 through February 1991, Robert K. Hebden was an employee of the City, and as such was a compulsory member of the Florida Retirement System for which contributions from the City are due. DONE and RECOMMENDED this 21st day of March, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1994. APPENDIX TO CASE NO. 93-6518 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3. Rejected, contrary to the greater weight of the evidence. Mr. Hebden submitted invoices for payment as early as July, 1979. 11. Rejected, not supported by greater weight of the evidence. Because Mr. Hebden developed his own procedures for performing the duties of the City Treasurer, and trained his successor in performing the tasks of City Treasurer, it is not possible to conclude that Mr. Hebden's services were "not essential to the success or continuation of the City's operation." Rejected, irrelevant. Rejected, contrary to greater weight of evidence. Mr. Hebden testified on direct examination that he could not recall who chose the work hours set forth by contract. All contracts specify the hours to be worked. As to leave time, the first contract provided that such leave could be used only "at times mutually agreeable...." Subsequent contracts required annual leave to be used in four hour increments. Rejected, contrary to greater weight of evidence. Mr. Hebden testified that some auto and boat expenses had been reimbursed. First contract and invoices for payment through September 30, 1982 include payment of sums for "expenses." Rejected, contrary to greater weight of evidence. The contracts specify standard hours of employment and require attendance at meetings as directed by the Mayor and Council. The Respondent's assertion that Mr. Hebden "could make a profit or suffer a loss" is unsupported by credible evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, as to employment status of Mr. Hebden's predecessor or successor as City Treasurer, irrelevant. 28, 30. Rejected, as to employment status of Mr. Hebden's successor as City Treasurer, irrelevant. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Thomas J Trask, Esquire Frazer, Hubbard, Brandt & Trask 595 Main Street Dunedin, Florida 34698 Jodi B. Jennings, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issue for determination is whether Petitioner’s position was properly reclassified by Respondent under the Service First Initiative from Career Service to Select Exempt Service.
Findings Of Fact Ms. Blow-Beasley was employed with DCFS, formerly known as Department of Health and Rehabilitative Services, hereinafter HRS, in Broward County, Florida from February 1, 1988 to June 7, 2002. From August 3, 2000 to July 2001, as part of her employment with DCFS, Ms. Blow-Beasley worked for Economic Services. On September 29, 2000, Ms. Blow-Beasley was hired as a Public Assistance Specialist Supervisor by DCFS, which was a Career Service position. From September 29, 2000 to July 2001, a Public Assistance Specialist Supervisor was a supervisory position with HRS and/or DCFS. From September 29, 2000 to July 1, 2001, in her role as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley supervised two or more employees. As part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. By letter dated June 15, 2001, Ms. Blow-Beasley was notified by DCFS that her position in Career Service was being “transferred” to SES, effective July 1, 2001. Her position in Career Service was reclassified as a SES position. Ms. Blow-Beasley informed her supervisor that she did not want to remain in SES and would accept a demotion to be in Career Service. Her request was not granted. From July 2001 to June 7, 2002, as part of her employment with DCFS, Ms. Blow-Beasley worked for the Economic Self-Sufficiency, hereinafter ESS, Program. From July 2001 to June 7, 2002, Ms. Blow-Beasley’s position title was, and she was employed as, ESS Supervisor Specialist. From July 2001 to June 7, 2002, an ESS Supervisor Specialist was a supervisory position with DCFS. As part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. Ms. Blow-Beasley does not dispute that, from September 29, 2000 to June 7, 2002, she was a supervisor and had been in both Career Service and SES as a supervisor. Ms. Blow-Beasley does not dispute that, when her position was reclassified from Career Service to SES, her duties and responsibilities did not change, but remained the same. No direct evidence was presented to demonstrate that Ms. Blow-Beasley had the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. However, an inference is drawn and a finding of fact is made that, based on her duties, she had the authority to effectively recommend the action to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. Approximately one year after the reclassification, on June 7, 2002, Ms. Blow-Beasley was dismissed from employment with DCFS. On the said date, she signed a letter acknowledging receipt of the notice of dismissal from DCFS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Ms. Sherry A. Blow-Beasley’s Career Service position was properly reclassified as a Select Exempt Service position. DONE AND ENTERED this 18th day of November 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2008.
The Issue The issue in the case is whether Petitioner’s reclassification and transfer from career service to the selected exempt service pursuant to Section 110.205(2)(x), Florida Statutes (2001), was valid and lawful. All citations are to Florida Statutes (2001) unless otherwise stated.
Findings Of Fact Prior to July 1, 2001, Petitioner was a career service employee of Respondent, for whom she had worked since 1988. On that date, Petitioner was involuntarily reclassified as a selected exempt employee of Respondent. Both before and after her reclassification, Petitioner’s job required her to act as a liaison and contract administrator for technical consulting contracts relating to Respondent’s information technology systems. Respondent contends that it reclassified Ms. Georgalis to selected exempt service in July 2001 as a result of amendments to Section 110.205(2)(x), Florida Statues. Consequently, the Section then read, in pertinent part, as follows: (2) EXEMPT POSITIONS.--The exempt positions that are not covered by this part include the following: * * * (x) Effective July 1, 2001, managerial employees, as defined in s. 447.203(4), confidential employees, as defined in s. 447.203(5), and supervisory employees who spend the majority of their time communicating with, motivating, training, and evaluating employees, and planning and directing employees' work, and who have the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees or effectively recommend such action, including all employees serving as supervisors, administrators, and directors. Respondent reclassified all persons who were "Level VI managers and Level 5 supervisors" to select exempt service as a result of the content of Section 110.205(2)(x), Florida Statutes. Respondent did not confirm that the responsibilities and duties of the position occupied by Petitioner necessitated reclassification to select exempt employee status. Petitioner’s job duties were substantively different from other persons within the DP Level VI occupational group.1 Petitioner did not primarily oversee the work of Respondent's employees as required by the career service exemption. Moreover, she did not even oversee the work of non-governmental supplemental or augment persons who were providing services that could otherwise be provided by departmental employees, assuming such oversight is relevant to the statutory exemption. Petitioner's role was primarily that of liaison and coordinator between Respondent's management and end users of Respondent’s planned technology services, including Respondent's employees who would use the technology that was being developed, as well as construction companies and engineers outside Respondent's department who would ultimately use such technology in working on department's construction projects in the future. Another part of her duties was the administration of contracts between the Department and outside contractors, and in doing so she dealt with independent subcontractor technical consultants who had subcontracts with those outside contractors. These technical subcontractor consultants were not augment employees, and Petitioner was not knowledgeable enough to supervise them on a technical basis. In Petitioner's words, "They spoke an entirely different language." She presented them with broad goals formulated by higher management and served as the conduit to inform them as to whether their work product was acceptable to Respondent and other end users. Petitioner’s job description, both before and after her transfer, confirmed that her position was a “senior level career service data processing position.” She was not required to spend the majority of her time “communicating with, motivating, training, and evaluating employees, and planning and directing employees’ work.” Petitioner was only expected to spend approximately 10 percent of her time overseeing the work of the two state employees working in her area. As established by her testimony, Petitioner never spent more than 3 percent of her time supervising those state employees. Furthermore, the two state employees assigned to specialized technologies were supervised by another employee after the Summer of 2001. At hearing, Respondent's only witness, suggested that Petitioner spent 60 percent of her time supervising “employees,” but he did not know what percentage of that time was spent overseeing the work of career service employees. Testimony of Respondent's witness, Nelson Hill, in this regard is not credited in view of his admission that he was not housed in the Rhynne Building in 2001, where Petitioner was located, and thus had no first-hand knowledge of the day-to-day activities of Petitioner or the other persons working at that building. In any event, a majority of the persons which Hill contends were “supervised” by Petitioner (six out of eight) were not employees of Respondent, but were rather independent subcontractors whose services Respondent retained through contracts with outside third parties. These technical consultants were subcontractors under state approved contracts. They were not “hired” by Respondent. Further, they were not paid by the State, but were rather compensated pursuant to their agreement with the third party state contractor. They were not provided with any insurance, pension, unemployment or worker’s compensation benefits, but were instead treated as true independent contractors; and, most importantly, they were not protected by career service protections, as would have been required if they were indeed state employees. In sum, Respondent's position, as expounded by Hill at the final hearing, is that the application of the exemption provided in Section 110.205(2)(x), Florida Statutes, may be justifiably applied to Petitioner due to Petitioner's alleged oversight of the independent subcontractors even though they were not “employees” of Respondent.2 The evidence does not support a conclusion that Petitioner spent a majority of her time “supervising” anyone. Petitioner’s position description confirms that her contract administration activities consumed no more than 35 percent of her time. By that description, Petitioner was required to provide “daily direction of consultant activities” and “manage, direct, and supervise technical and administrative staff." In actuality, Petitioner spent less than 25 percent of her time in such activities. Petitioner spent the vast majority of her time gathering and transmitting information regarding technological and budgetary needs and facilitating the flow of information from the end users (i.e., Respondent's employees or outside construction contractors and engineers who would use the proposed technology) to Respondent management and back again. Any oversight provided by Petitioner to the technical consultants was exactly the same as that provided to other third-party companies with which Respondent had contracts. These outside companies and technical consultants were engaged by Respondent because they had the skill to achieve the goals that were presented to them within the budget that was established by Respondent. Petitioner's interaction with these persons was not “supervision” of a state employee, but rather “contract administration.” Petitioner’s position descriptions specifically confirm that she was not a “managerial” or “confidential” employee as that term is defined in Section 447.203(4) and (5), Florida Statutes. Accordingly, based on the duties and responsibilities contained in Petitioner’s position description and the actual duties she performed, there is no basis for concluding that Petitioner was subject to exemption from career service as concluded by Respondent in July 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Department of Transportation should enter a final order finding that the position held by Petitioner Mavis R. Georgalis on July 1, 2001, was not properly classified into the selected exempt service. Petitioner was, and should continue to be, classified as a career service employee. DONE AND ENTERED this 2nd day of July, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 2nd day of July, 2004.
The Issue This matter concerns the Petitioner's attack on Rules 22A-13.04 and 22A- 7.10(4)(a), Florida Administrative Code, on the grounds that they are invalid exercises of delegated legislative authority within the meaning of Section 120.56, Florida Statutes.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the Petitioner notified the Respondent of his intention to run for a School Board Seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Petitioner's Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the Petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the Petitioner that he would not he allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the Petitioner determined to offer his candidacy without the permission of his agency head and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by Petitioner's Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the Petitioner to inquire why the Petitioner had offered his candidacy without permission of the agency. The Petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the Petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as petitioner's Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Petitioner's Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the school Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the Petitioner were ones of resignation from his position as A Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the school Board of Wakulla County and also the concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the Petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that the had not. Subsequent to that latter conversation with Wood, the Petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Petitioner's Exhibit No. 5. This letter informed the Petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1990, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. After August 15, 1980, the Petitioner was removed as a permanent party Career Service employee with the Respondent. Following his dismissal, the Petitioner through his counsel in the subject case has attacked the Joint Exhibit Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. The Petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary Forest Ranger at this time.
The Issue Whether Petitioner's request to be a candidate for election to the Office of County Commissioner should be approved?
Findings Of Fact Petitioner has been a DOT employee for five years. At all times relevant, Petitioner held the position of Engineer Technician II. By letter dated February 11, 1988, Petitioner requested DOT's approval to seek election to the office of County Commissioner in Columbia County, Florida. By letter dated April 6, 1988, DOT denied Petitioner's request. The letter stated that the denial was based on DOT's interpretation of the Federal Hatch Act. By letter dated April 18, 1988, Petitioner requested a hearing under Section 120.57, Florida Statutes. The qualifying period to run for County Commissioner was July 22-24, 1988. On August 25, 1988, DOT forwarded the request for a hearing to the Division of Administrative Hearings. The duties of a county commissioner in Columbia County include enacting laws as deemed necessary, levying taxes to fund county operations, promoting the safety and general welfare of the citizens and carrying out other duties as directed by Florida Statutes. A county commissioner is required to attend regular meetings of the Board of County Commissioners. Regular meetings of the board are held on the first and third Thursdays of each month, beginning at 7:00 p.m. Additional hours of service are discretionary. A county commissioner is paid $16,918.00 annually. Petitioner works in DOT's construction division, constructing roads and bridges. His job is to check the density and compaction of asphalt and sub-base that is poured on highways and bridges. Petitioner does not make any policy decisions with DOT and the determination of what jobs he should work on and where he should make density checks is made by the project engineer. Petitioner works on some projects that are federally funded. On May 2, 1988, the DOT's general counsel wrote a memorandum in which he stated that while he remained of the opinion that all of DOT's employees were covered by the Federal Hatch Act; the determination of whether an employee was covered was to be made by the Federal Merit System Protection Board and not by DOT. The position of County Commissioner of Columbia County is not considered a full-time job. The five current county commissioners hold other full-time jobs: one is in a supervisory position with the Division of Driver's Licenses; one is a school teacher; two work for private companies; and one is self-employed and does a lot of DOT-related work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order granting Petitioner's Request to be a candidate for the Office of County Commissioner of Columbia County. DONE AND RECOMMENDED this 7th day of February, 1989, in Tallahassee, Leon County, Florida. JOSE A. DIEZ-ARGUELLES 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 7th day of February 1989. APPENDIX Rulings on Respondent's Proposed Findings of Fact Accepted. Rejected. The evidence establishes that Petitioner worked on some federally funded projects. It cannot be determined if he only worked on those projects. 3-4. Rejected as irrelevant. Accepted. Accepted. Rejected as irrelevant. Supported by the evidence but irrelevant. Rejected as contrary to the weight of the evidence. Rejected as not a finding of fact. No evidence was presented as to what the Secretary believes. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Martin L. Black, Esquire 505 East Duval Street Suite C, DeSoto Place Lake City, Florida 32055 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the respective bid protests should be upheld.
Findings Of Fact Section 7(b) of the Wagner-Peyser Act (the Act), 29 U.S.C. Section 49f.(b), is a federal grant source which provides certain funds for the funding of job placement services at the discretion of the Governors of the respective states. Included among such services are job placement services for groups determined by the Governor of Florida, in his discretion, to have special needs within the parameters set forth in the Act. These funds are commonly referred to as "the Governor's Discretionary Funds" or "the 10 percent program". In 1982, Congress passed the Job Training Partnership Act (JTPA), 29 U.S.C. Sections 1501 et seq., which amended the Wagner-Peyser Act so as to provide the 10 percent program referred to above and which also provided for separate JTPA programs. The provisions of 29 U.S.C. Section 1517, require that the "primary consideration" to be given in the procurement of services under JTPA grant programs is to "... be the effectiveness of the agency or organization in delivering comparable or related services based on demonstrated performance " The procurement of services under Wagner-Peyser grants are not governed by the provisions of 29 U.S.C. Section 1517, but are, instead, governed by what is referred to as "the common rule." Circular A-102, informally known as "the common rule", is codified at 29 CFR 97.36(d)(3)(iv), and provides that a state, in the procurement of services under the 10 percent program is to use the same policies and procedures it uses for procurement from non-federal funds. Respondent issued a Request For Proposals (RFP) on January 26, 1990, seeking proposals for projects to be funded through the 10 percent program. Before the deadline for the submission of responses of March 21, 1990, Respondent conducted three RFP workshops and distributed answers to questions raised at the workshops. Adults Mankind Organization submitted two proposals in response to the RFP. The Center for Independent Living in Central Florida, Inc. (CIL) and Goodwill Industries of Central Florida, Inc. (Goodwill Industries) each submitted one proposal in response to the RFP. Key personnel for both CIL and for Goodwill Industries were experienced in responding to the type RFP issued by Respondent. Both CIL and Goodwill Industries had, in prior years, been successful proposers and had successfully managed contracts with Respondent that were funded by the Act. Respondent selected a three person team to review all applications that were filed in response to the RFP. The rating system employed by the team was devised by the State Job Training Coordinating Council and was essentially the same system that had been used to rate applications in the previous program year. The process contemplated that the rankings and recommendations of the three person team was to be submitted to the Job Training Committee, a committee of the State Job Training Coordinating Council. The Job Training Committee would review the work of the three person team during a public meeting and thereafter make its recommendations to the State Job Training Coordinating Council. The State Job Training Coordinating Council would thereafter review the recommendations that had been made to it by the Job Training Committee and make its recommendations to the Governor. All proposals were evaluated and ranked, by the evaluation committee in the order of their respective cumulative scores. The more points a proposal received, the higher its ranking. The top ranked proposal achieved the highest number of points and was ranked number one. Following the first ranking of the applications, the top 31 ranked proposals were recommended for funding. There was insufficient funding for projects ranked lower than 31 and, consequently, no project ranked lower than 31 was recommended for funding. Following the first ranking, none of the proposals submitted by the Petitioners were ranked high enough to merit a recommendation for funding. CIL's project ranked 39. Goodwill Industries' project ranked 47. Adults Mankind's two projects ranked 51 and 53, respectively. The initial ranking of the applicants by the evaluation team was published on April 24, 1990, before the recommendations were submitted to the Job Training Committee. The maximum score an applicant could score for all categories was 100 points. One of the rating categories, worth a total of 10 points, related to the demonstrated capabilities of the proposing organization. In the first rating, each of the proposals submitted by the Petitioners received the maximum score of 10 in this category. However, any newly formed organization, regardless of the qualifications of the key employees of that organization, received no points in this category in the first rating of the proposals. Two days after the publication of the initial evaluation a member of the Florida House of Representatives, asked Director Johnston to visit with him about the RFP process. Ernest Urassa was present at this meeting. Mr. Urassa is a former employee of Respondent who has experience in providing the type services required by the Act. Mr. Urassa formed a new organization and, on behalf of that new organization, submitted proposals in response to the RFP. In the first rating of the proposals, Mr. Urassa's proposals received zero points in the organizational capability category. Mr. Urassa had complained to this Representative and to several of Respondent's employees about the rating of the organizational capability category. During this meeting, this Representative asked Director Johnston to explain the rationale behind the rating of the organizational capability category, but there was no evidence that this Representative was attempting to improperly influence the procurement process. Mr. Johnston thereafter determined that the organizational capability category had not been fairly rated by the evaluation team. He thereafter ordered the evaluation team to rerate that one category and make its recommendations based on the revised rankings. The evaluation committee was told to consider the experience of key individuals in rating the organization's capabilities, but there was no attempt to give one proposer an unfair advantage over another. The evaluation committee rerated all of the proposals and gave all proposers a rating of 10 in the organizational capability category. Following the second rating, the proposals submitted by these Petitioners were again below the cutoff for those projects that would be recommended for funding. CIL's proposal was ranked 44, Goodwill Industries' proposal was ranked 51, and Adults Mankind's proposals were ranked 57 and 58, respectively. No project ranked lower than 36 received a recommendation for funding. The evaluation committee thereafter submitted its rankings and its recommendations to the State Job Training Committee, a committee of the State Job Training Council. The fact that the proposals had been rerated in this one category and the reasons for the rerating were discussed in public meetings before both the State Job Training Committee and the State Job Training Council. The State Job Training Council decided to cut the funding of all projects that were recommended for funding by 25% so that none of the projects that would have been funded following the first rating would be totally excluded from funding after the second rating. This 25% funding cut did not effect any of the Petitioners since their projects were not selected for funding. Petitioners failed to establish that there was any illegality, fraud, oppression or misconduct involved in the preparation of the RFP, in the selection of the evaluation committee, in the instructions given the evaluation committee, or in the work done by the evaluation committee. Mr. Johnston acted within his discretion in reviewing the method by which this category was being evaluated, in determining that the committee was not fairly evaluating the category, and in ordering the committee to rerate the proposers in the way he thought the category should be rated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the bid protests filed by the respective Petitioners in Cases 90-3543BID, 90-3544BID, 90-3545BID and 90-3546BID be dismissed. DONE AND ENTERED this 16th day of August, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASES 9O-3543BID, 9O-3544BID, 90-3545BID and 90-3546BID The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted July 27, 1990 (the proposed recommended order does not specify by whom it was submitted, but it is apparent that it was submitted by one or more of the petitioners): The proposed findings of fact in paragraphs 1-8, 13, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 9-12, 14, 16, 19, 20, and 22-25 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 17 are rejected as being unsubstantiated by the evidence. The proposed finding misconstrues Mr. Johnston's testimony. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence and as being argument. The proposed findings of fact in Paragraphs 21 and 26 are rejected as being unnecessary to the conclusions reached and as being argument. The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted by Respondent: The proposed findings of fact in Paragraphs 1, 3-6, and 10-12 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order, and are rejected in part as being the recitation of testimony. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. COPIES FURNISHED: David J. Bush, Senior Attorney Florida Department of Labor and Employment Security The Montgomery Building Suite 131 2562 Executive Center Circle East Tallahassee, Florida 32399-0657 Sara Bravo Executive Director Adults Mankind Organization, Inc. 1850 S. W. 8th Street, Suite 411 Miami, Florida 33135 Shelton Kemp Chief, Bureau of Job Training Florida Department of Labor and Employment Security Division of Labor Employment and Training The Atkins Building, Suite 300 1320 Executive Center Drive Tallahassee, Florida 32399-0667 Nan Griggs Executive Director Treasure Coast Private Industry Council, Inc. 3405 Northwest Federal Highway Suite 101 Jensen Beach, Florida 34957 Lee Ann Pendergrass Director Center for Independent Living in Central Florida, Inc. 720 North Denning Drive Winter Park, Florida 32789 Cherie Johnson Director of Rehabilitation Development Goodwill Industries of Central Florida, Inc. 6400 S. Orange Avenue Orlando, Florida 32859-0557 Hugo Menendez, Secretary Berkely Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron General Counsel 307 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0658
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
