The Issue application from Sydney McCray on the basis of race or national
Findings Of Fact The City is an employer under the Florida Civil Rights Act. Mr. McCray is a male African-American, and he is a member of a protected class. In his complaint, Mr. McCray claims that on April 4, 1994, the City discriminated against him by failing to hire him for the position of laborer (maintenance worker). Specifically, Mr. McCray alleged that in response to a newspaper advertisement for a laborer’s position, he and his sister, Alice Larkins, contacted the City Manager’s office for the purpose of submitting their employment applications. Both Mr. McCray and Ms. Larkins asserted that they arrived at the office of Mr. Whitson, the City Manager, at the appointed time, and that they waited over an hour to see Mr. Whitson. After waiting an hour, both Mr. McCray and Ms. Larkins left without ever meeting Mr. Whitson. Mr. McCray asserts that Mr. Whitson failed to meet with him or receive his employment application because of his race. The City disputes Mr. McCray’s claims for several reasons. First, the City provided evidence to contradict Mr. McCray’s position that he first learned of the laborer position through an advertisement. Several city employees testified that the City only advertises skilled positions and that the unskilled positions, such as maintenance positions, are handled through the Public Works Department without advertisement. With regard to the Public Works Department, testimony was also received that indicated the process for receiving applications for laborer positions. In particular, it was stated that applications for laborer positions are processed by the Public Works Department and that once the applicant has been interviewed, all qualified applicants are placed on a list for future vacancies. The record is clear that Mr. McCray never applied for a laborer position through the established procedure. Second, even if the position was advertised as stated by Mr. McCray, the City disputes that Mr. Whitson’s office would have ever made an appointment for Mr. McCray. As indicated above, the prospective laborers are processed by the Public Works Department. Mr. Whitson testified that he plays no role in screening laborer applicants and that he is purposefully insulated from the hiring process. Therefore, it makes no sense that his office would have arranged an interview as asserted by Mr. McCray. Third, in addition to Mr. Whitson’s lack of involvement in the employment process for prospective laborers, all the testimony received at the hearing supports a finding that Mr. McCray did not have an appointment with the City manager. Specifically, several City employees, including Mr. Whitson’s personal secretary, testified that neither Mr. McCray nor his sister ever had an appointment with Mr. Whitson. They also testified that neither person appeared at Mr. Whitson’s office on April 4, 1994. When pressed on the date and time of the alleged appointment with Mr. Whitson, Mr. McCray was unable to articulate consistently when the meeting was to take place. Mr. McCray appeared confused and his answers varied from his earlier deposition testimony and the testimony of his sister. Furthermore, based on the records maintained by the City of Milton, Mr. McCray never submitted an application for the position of “Laborer” with the Public Works Department of the City of Milton. Mr. McCray attempts to supplement his claim of discrimination by establishing that the City of Milton has systematically discriminated against him by failing on more than one occasion to hire him. Specifically, Mr. McCray stated that prior to April 4, 1994, he applied for other positions with the City of Milton, and he was denied such positions. In particular, Mr. McCray stated that he applied for the position of mechanic and technician. In both instances raised by Mr. McCray, however, it appears, based on the record, that he either failed to adequately complete his job application or he failed to possess the minimum qualifications for the positions sought. As further evidence supporting his claim, Mr. McCray offered the testimony of his sister, Alicia Larkin. Ms. Larkin testified that she, like her brother, was the subject of discrimination by the City. The undersigned dismissed her testimony as lacking relevancy and more importantly lacking credibility. First, Ms. Larkin has a claim pending against the City alleging similar discriminatory practices and she appears to have a bias against the City. Second, Ms. Larkin’s testimony lacked consistency and lacked credibility. No evidence was presented to indicate that the City of Milton discriminated in its employment practices. Furthermore, the City presented testimony that it has and continues to develop fair employment practices relating to minorities. Specifically, the City of Milton, through Mr. Whitson, has met with the NAACP for the purpose of continuing to improve race relations between the City and the African-American community in Milton. In summary, the City has effectively rebutted the allegations raised by Mr. McCray. The City offered a series of witnesses that had personal knowledge of the employment policies and hiring practices of the City and each corroborated the other. Those witnesses collectively support a finding that the City did not discriminate against Mr. McCray.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this claim with prejudice. DONE and ENTERED this 22nd day of April, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997. COPIES FURNISHED: Bruce Committee, Esquire 8870 Thunderbird Drive Pensacola, FL 32514-5661 Post Office Box 586 Milton, FL 32572 Human Relations Commission Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, Esquire Building F, Suite 240 325 John Knox Road
Findings Of Fact The following quoted provisions of the joint stipulations of fact entered into by the parties, as attached to this recommended order, constitutes the underlying evidential facts to be considered by the undersigned in deliberating the charges in this case. The exhibits mentioned in the quoted provision may be found as a part of the attached joint stipulations of fact and exhibits, which have been made a part of the record herein. The quotation is as follows: JOINT STIPULATIONS OF FACT The charge herein attached as cumulative exhibit #1 was filed by the Charging party on October 21, 1976 and a copy was simultaneously served on Respondent. Pursuant to Florida Administrative Rule 8H-4.03 a copy of the charge is hereby attached. The trial and presentment of the above-captioned cause was assigned to Rodney W. Smith, attorney for the Charging Party on or about February 25, 1977. Respondent is a public employer within the meaning of F.S. 447.203(2) and has its principal place of business in the City of Jacksonville, Duval County, Florida where it is engaged in the business of operating a consolidated municipal government. Respondent is created directly by the legislature of the State of Florida so as to constitute a consolidated government administered by individuals who are responsible to public officials and/or the general electorate. Charging Party is now and has been at all times material herein an employee organization within the meaning of 447.203(l0) of the Act. On March 4, 1976 Respondent filed a PETITION FOR CERTIORARI with the opinion that said petition would stay the "proposed CERTIFICATION ORDER by the Public Employees Relations Commission until final determination of the case was resolved. On or about May 18, 1976 the Public Employees Relations Commission issued a CERTIFICATION ORDER certifying the Charging Party as the exclusive bargaining representative for the Public Employees in the following unit: INCLUDED: Firefighters Lieutenants Captains Employed by the City of Jacksonville Fire Department EXCLUDED: All officers above the rank of captain employed by the City of Jacksonville Fire Department and all other employees of the City of Jacksonville On or about June, 1976 the Respondent filed an APPEAL of the above- stated certification order by PETITION FOR REVIEW in the First District Court of Appeal in and for the State of Florida. At no time was a stay of the certification order sought or obtained by the Respondent. Although the CERTIFICATION ORDER was challenged by PETITION FOR REVIEW, the Charging Party has been the certified representative for purposes of collective-bargaining of all public employees in the unit described in the above paragraph since May 18, 1976. It has been the continuous policy, and most recently by special ordinance, for the City of Jacksonville to extend dues- deductions to firefighters, lieutenants and captains authorizing such deductions since on or about 1969. This policy of extending dues-deductions to captains, lieutenants and firefighters has continued at all times until October 15, 1976. On October 15, 1976 the biweekly paychecks of the captains (sic) and lieutenants employed by the, Respondent did not reflect the usual dues- deduction. The Charging Party was notified of the City's intention to discontinue dues-deductions for the employees "in the ranks of lieutenants and captains during contract negotiations in late September, 1976. On or about October 18, 1976 agents for the City, including Dave Thompson, Administrative Aide for the Public Safety Department and John Waters, Director of Department of Public Safety informed Robert Carver, President of the Charging Party, that the Respondent would not extend dues-deductions to the captains or lieutenants since the Respondent did not feel these positions were properly included in the certified bargaining unit. The action of the Respondent in discontinuing the dues-deductions on October 15, 1976 was resultant from the attached cumulative exhibit B, Memorandum of September 24, 1976 from John M. Waters to Jack Parker, City Accountant for the City of Jacksonville, which directs that positions above the rank of firefighter are to no longer receive dues-deductions. The Director of Employee Relations and chief negotiator for the Respondent, William Davis, was officially notified of the proposed discontinuation on September 29, 1976 by action of the attached cumulative exhibit c." The act complained of by the Charging Party, is the act of the Respondent in discontinuing the dues-deductions for the ranks of lieutenant and captain effective October 15, 1976. (The facts that led up to that action are established in the stipulations of fact entered into by the parties.) In the mind of the Charging Party the discontinuation of the dues-deductions on October 15, 1976, constituted: (1) an interference with the rights of employees as described in 447.501(1)(a), F.S.; (2) a unilateral change during the bargaining process in violation of 447.50l(1)(c), F.S.; and (3) a specific refusal to comply with the provisions of 447.303, F.S. The Respondent disputes and joins issue with that claim. To resolve the conflict, the case is best discussed by dividing the consideration into two broad categories. The first category is concerned with the question of whether the Respondent's initial petition for writ of certiorari filed with the First District Court of Appeal, State of Florida, on March 4, 1976, and/or the Respondent's appeal of the Public Employees Relations Commission's certification order, which was filed with the First District Court of Appeal, State of Florida; imposed an automatic stay of the effect of the proposed certification order by the Public Employees Relations Commission, and/or a stay of the certification order of May 18, 1976, entered by the Public Employees Relations Commission. Any stay of the proposed certification order and subsequent certification order by the Public Employees Relations Commission must have been effectuated by the filing of the initial petition for writ of certiorari on March 4, 1976, and the appeal of June, 1976, because the facts establish that no specific request was ever made of the First District Court of Appeal or the Public Employees Relations Commission to grant a stay. To that end, the Respondent contends that it could justifiably rely on the Florida Appellate Rule to grant an automatic stay in both the initial petition for writ of certiorari of March 4, 1976, and the appeal of June, 1976 Pertinent provisions of Rule 5.12 state: "Rule 5.12 Supersedeas Bond not Required of the State and its Political Subdivisions and their Boards, Commissions, etc.; Security when Required When Security Not Required. When the state or any of its political subdivisions, or any officer, board, commission or other public body of the state or any of its political subdivisions, in a purely official capacity, takes an appeal or petitions for certiorari, the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execu tion or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court. Court May Require Bond. The court may, on motion for good cause shown, require a super sedeas bond or other security, in such amount, form and manner as it may prescribe as a condition for the further prosecution of the appeal or certiorari." On the face of the language of Florida Appellate Rule 5.12, it would appear that the Respondent is correct in its assumption of having an automatic stay; however, there is a subsequent appellate decision which defeats the Respondent's right to rely on the theory it offers as standing for the proposition that an automatic stay is granted. That case is Panama City v. Florida Public Employees Relations Commission, 333 So.2d 470, (1st DCA 1976, Fla.). The decision in this case was initially rendered on May 5, 1976, and a rehearing denied on June 29, 1976. The effective date of the decision is July 14, 1976. The Panama City case, supra, concerns the determination by the Public Employees Relations Commission of an appropriate bargaining unit and direction of an election. Those actions by PERC were not found to be final orders and in discussing the position of that Petitioner requesting a writ of certiorari, the Court stated that a stay of the effect of the enforcement of the agency action does not transpire merely by filing the petition for writ of certiorari. Under the ruling, in the decision, the stay may be granted by the agency or by the Court upon appropriate terms and in keeping with the authority of 120.68(3), F.S. That section of Chapter 120 indicated the following: "(3) The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state. The agency may grant, or the reviewing court may order, a stay upon appropriate terms, but, in any event, the order shall specify the conditions upon which the stay or supersedeas is granted." Moreover, in the opinion of the Court in the Panama City case, under Florida Appellate Rule 5.5, the Petitioner for writ of certiorari shall apply to the agency for supersedeas to forestall the terms of the agency action. Through its memorandum the Respondent in this cause has concluded that there is a distinction in the facts of the Panama City case and the facts sub judice, in that the Panama City case dealt with determination of an appropriate bargaining unit and direction of an election which were interlocutory matters, whereas the question here deals with a certification order which is final agency action on the part of the Public Employes Relations Commission. As an adjunct to this argument, Respondent indicated that it is the June, 1976, appeal taken by the Respondent, challenging the Public Employees Relations Commission order of certification, that becomes the focal point of the inquiry upon the subject of an automatic stay. This latter phase of the argument is accepted and it is the June, 1976, appeal that should be addressed. With that fact in mind, the language of the Court's opinion in the Panama City case on a petition for rehearing clarifies any distinction which might be drawn between the right to stay in an interlocutory situation, and the right to a stay of final action by an agency. The Court, in its discussion on rehearing, stated that the PERC order certifying an employee organization's exclusive collective bargaining representative of employees is a final order, which is subject to judicial review, together with all prior interlocutory orders. The Court goes on to say that if PERC refuses to stay any bargaining pending the Court review, the Court would have authority to grant that relief, in A order to make the Court's jurisdiction effective. For this proposition it cites to Article V, Section (4)(b) 3, Florida Constitution. A close analysis of the Court's statement on the rehearing in the Panama City case, supra, points out that the party who takes an appeal of the final order of certification by the Public Employees Relations Commission should look to the Public Employees Relations Commission to grant a stay prior to turning to the Court for such relief. This is in keeping with the requirements of 120.68(3), F.S. It can be seen by an examination of the facts stipulated to in this cause that the Respondent has failed at any point to request of the Public Employees Relations Commission that the effect of the order of certification be stayed pending the outcome of the consideration of the appeal on its merits. Consequently, in keeping with the decision of the Panama-City case, supra, the effect of the certification order is not stayed and any action which the Respondent took in derrogation of the decision of the First District Court of Appeal in Panama City, supra, subsequent to July 14, 1976, the date the decision became binding, may constitute an unfair labor practice. See also, Duval Cty School Bd v. Fla. Pub. Emp. etc., 346 So.2d 1086 (1st DCA 1977, Fla.) Having determined that the effect of the certification order of the Public Employees Relations Commission has not been stayed, consideration of the effect of the Respondent's action which discontinued the dues-deduction after October 15, 1976 for those ranks of lieutenant and captain can be made. It is clear from the facts In the record that it had been the practice of the employer to authorize the dues-deduction for lieutenants and captains since 1969 and there is no showing that the employees in those ranks who requested the dues- deduction ever asked that the deductions be discontinued. The conclusion on the part of the Respondent that the dues-deduction should be discontinued was a unilateral action, premised upon Respondent's individual evaluation of the propriety of including lieutenants and captains in a unit with firefighters. In view of the history of the dues-deduction process for lieutenants and captains in the City of Jacksonville, and the outstanding unit certification by PERC which includes such employees, it is concluded that deductions should have been continued beyond October 15, 1976. This is authorized under the opinion of United Faculty of Palm Beach Jr. College, Case No. 8H-CA- 754-1158. The failure to continue this deduction program beyond October 15, 1976 constituted an action by the Respondent in regard to conditions of employment and was per se a violation of the duty to collectively bargain. See 447.309(1), F.S., and NLRB v. Katz, 396 U.S.736 (1962). This responsibility on the part of Respondent to continue the dues-deduction has now been specifically established in 447.303, F.S., as amended at 77-343, Laws of Florida which reads: "Any employee organization which has been certified as a bargaining agent shall have the right to, upon request, have its dues and uniform assessments deducted and collected by the employer from the salary of those employees who authorized the deductions, set dues and uniform assessments In a related argument, the Respondent attempts to suggest that the Public Employees Relations Commission has unilaterally expanded and redefined the bargaining unit that had been previously agreed to between the City of Jacksonville and Local 1884 IAFF. Specifically, the Respondent claims that the City of Jacksonville and Local 1884 IAFF had agreed that only fire privates be included in the unit in 1973-1974 and 1974-1975, and that thereafter the Commission expanded and redefined the bargaining unit to include firemen and fire officers. Although this may be a fact, this fact is not in evidence through the stipulation of facts and in view of the limitations imposed by the agreement of the parties through their stipulation, the above-referenced information may not be utilized in reaching conclusions in this case. However, assuming arguendo the propriety of those facts, they would not seem to promote a different result in this cause. This conclusion is drawn from an examination of Clearwater Firefighters Association; Local 1158, IAFF and City of Clearwater, Case No. 8H- RC-766-1O68, 77E-377, reported at 3 FPER 177 (1977) and City of Titusville v. PERC, 3,30 So.2d 733 (1st DCA 1976, Fla.) Even though the Commission and the Court seemed to be stating that the Public Employees Relations Commission may not extend the unit which has voluntarily been recognized by the parties, or offered for recognition by the Petitioner for unit determination, these cases demonstrate that each case that occurs should be examined on an individual basis. Applying that process, it would be necessary to request the Public Employees Relations Commission to reconsider their position in the instant case on the question of the appropriateness of the inclusion of lieutenants and captains in the certified bargaining unit, and that decision could be subject to appeal to the appropriate appellate court. Because a determination has not been rendered on the merits of excluding lieutenants and captains from the certified bargaining unit, either by the Public Employees Relations Commission or an appellate court, the certification order remains in effect and all rights and entitlements for ,the unit employees remain in force and effect until amended by a Perc order. Consequently, the act of discontinuing the dues-deduction for lieutenants and captains in the bargaining unit after October 15, 1976, constituted a specific refusal to comply with the provision of 447.303, F.S.; an interference with the rights of employees in violation of 447.501(1)(a), and an unilateral change during the bargaining process, in violation of 447.501(1)(c) , F.S.
Recommendation It is recommended that the Respondent, City of Jacksonville, be required to reinstate the dues-deduction authorizations of those lieutenants and captains in the certified bargaining unit. DONE and ENTERED this 4th day of November, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 Robert G. Brown, Esquire Assistant Counsel Office of General Counsel City Of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Leonard A. Carson, Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, FLORIDA Exhibit A STATE OF FLORIDA
The Issue Whether Petitioner is entitled to credit for her answers to questions 55 p.m. and 56 p.m. on the Fundamentals of Engineering portion of the engineering licensure examination given on April 15, 2000.
Findings Of Fact Upon consideration of the oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of an engineer in the State of Florida is administered by the Florida Engineers Management Corporation, a not-for-profit corporation, created under Section 471.038, Florida Statutes. A written examination is authorized by Rule 61G15-21.001, Florida Administrative Code. Respondent contracts with the National Council of Examiners for Engineering and Surveying to provide engineering licensure examinations. This practice is approved by Section 455.217, Florida Statutes, and Rule 61G1 5-21.005, Florida Administrative Code. The National Council of Examiners for Engineering and Surveying develops standardized tests given for licensure throughout the United States and ensures that the questions are not ambiguous through a number of methodologies. A candidate for licensure as an engineer intern must attain a "scaled" score of 70 to pass the examination. On the examination taken by Petitioner, the minimum "raw" score required to attain a "scaled" score of 70 was 107; Petitioner's "raw" score was 105. Petitioner had initially challenged five questions; at the hearing, Petitioner withdrew her challenge to three questions; the two remaining challenged questions (55 p.m. and 56 p.m.) were "ethical" questions, i.e., they dealt with questions of engineering ethics. The challenged questions were multiple-choice questions. The test gives the following directions: "Each of the questions or incomplete sentences below is followed by four suggested answers or completions. Select the one that is the best in each case and then fill in the corresponding space on the answer sheet." (Emphasis added.) The challenged question 55 p.m. deals with an engineer hired to prepare a report on the design, manufacture, and assembly of a structure. The report contains references to "shoddy workmanship." Petitioner states that while she agreed that answer A [the graded "correct" answer] is correct, she believed that the inclusion of the word "also" in answer B included answer A in answer B by reference and therefore she chose B as her answer. Petitioner acknowledges that the word "also" in answer B could be referring to language in the question rather than in answer A. Answer A specifically refers to "engineering issues" which the engineer is "qualified to assess"; answer B indicates that the references to "shoddy workmanship" are "personal opinions" and "not professional opinions". An engineer is obligated by his license not to give an opinion for which he does not have expertise. An engineer should not render a personal opinion in a report in which the engineer gives a professional opinion. The challenged question 56 p.m. deals with an engineer who lacks expertise dealing with space frames but designed structures which included same. Regarding challenged question 56 p.m., the Petitioner acknowledged that answer A (the graded "correct" answer) could have been the correct answer as well as the answer she chose, answer D. Answer D indicates that the engineer was unethical because he did not refer that matter to the Registration Board. An engineer should not contact the Registration Board and report to the Board that someone has asked him to do something unethical; it is incumbent upon an engineer to practice engineering ethically without the input of the Board. In both instances in answering the challenged questions the Petitioner failed to provide the "best" answer and at hearing acknowledged that the graded "correct" answer by the National Council of Examiners for Engineering and Surveyors was a "correct" answer even though she chose a different answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Engineers Management Corporation enter a final order denying Petitioner's challenge to questions 55 p.m. and 56 p.m. DONE AND ENTERED this 27th day of December, 2000, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 27th day of December, 2000. COPIES FURNISHED: Yvette Bowman 3401 North Lakeview Drive Apartment 216 Tampa, Florida 33618 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Barton, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301
The Issue Whether the City of Milton failed to accept an employment application from Sydney McCray on the basis of race or national origin, thereby committing an unlawful employment practice.
Findings Of Fact The City is an employer under the Florida Civil Rights Act. Mr. McCray is a male African-American, and he is a member of a protected class. In his complaint, Mr. McCray claims that on April 4, 1994, the City discriminated against him by failing to hire him for the position of laborer (maintenance worker). Specifically, Mr. McCray alleged that in response to a newspaper advertisement for a laborer's position, he and his sister, Alice Larkins, contacted the City Manager's office for the purpose of submitting their employment applications. Both Mr. McCray and Ms. Larkins asserted that they arrived at the office of Mr. Whitson, the City Manager, at the appointed time, and that they waited over an hour to see Mr. Whitson. After waiting an hour, both Mr. McCray and Ms. Larkins left without ever meeting Mr. Whitson. Mr. McCray asserts that Mr. Whitson failed to meet with him or receive his employment application because of his race. The City disputes Mr. McCray's claims for several reasons. First, the City provided evidence to contradict Mr. McCray's position that he first learned of the laborer position through an advertisement. Several city employees testified that the City only advertises skilled positions and that the unskilled positions, such as maintenance positions, are handled through the Public Works Department without advertisement. With regard to the Public Works Department, testimony was also received that indicated the process for receiving applications for laborer positions. In particular, it was stated that applications for laborer positions are processed by the Public Works Department and that once the applicant has been interviewed, all qualified applicants are placed on a list for future vacancies. The record is clear that Mr. McCray never applied for a laborer position through the established procedure. Second, even if the position was advertised as stated by Mr. McCray, the City disputes that Mr. Whitson's office would have ever made an appointment for Mr. McCray. As indicated above, the prospective laborers are processed by the Public Works Department. Mr. Whitson testified that he plays no role in screening laborer applicants and that he is purposefully insulated from the hiring process. Therefore, it makes no sense that his office would have arranged an interview as asserted by Mr. McCray. Third, in addition to Mr. Whitson's lack of involvement in the employment process for prospective laborers, all the testimony received at the hearing supports a finding that Mr. McCray did not have an appointment with the City manager. Specifically, several City employees, including Mr. Whitson's personal secretary, testified that neither Mr. McCray nor his sister ever had an appointment with Mr. Whitson. They also testified that neither person appeared at Mr. Whitson's office on April 4, 1994. When pressed on the date and time of the alleged appointment with Mr. Whitson, Mr. McCray was unable to articulate consistently when the meeting was to take place. Mr. McCray appeared confused and his answers varied from his earlier deposition testimony and the testimony of his sister. Furthermore, based on the records maintained by the City of Milton, Mr. McCray never submitted an application for the position of "Laborer" with the Public Works Department of the City of Milton. Mr. McCray attempts to supplement his claim of discrimination by establishing that the City of Milton has systematically discriminated against him by failing on more than one occasion to hire him. Specifically, Mr. McCray stated that prior to April 4, 1994, he applied for other positions with the City of Milton, and he was denied such positions. In particular, Mr. McCray stated that he applied for the position of mechanic and technician. In both instances raised by Mr. McCray, however, it appears, based on the record, that he either failed to adequately complete his job application or he failed to possess the minimum qualifications for the positions sought. As further evidence supporting his claim, Mr. McCray offered the testimony of his sister, Alicia Larkin. Ms. Larkin testified that she, like her brother, was the subject of discrimination by the City. The undersigned dismissed her testimony as lacking relevancy and more importantly lacking credibility. First, Ms. Larkin has a claim pending against the City alleging similar discriminatory practices and she appears to have a bias against the City. Second, Ms. Larkin's testimony lacked consistency and lacked credibility. No evidence was presented to indicate that the City of Milton discriminated in its employment practices. Furthermore, the City presented testimony that it has and continues to develop fair employment practices relating to minorities. Specifically, the City of Milton, through Mr. Whitson, has met with the NAACP for the purpose of continuing to improve race relations between the City and the African-American community in Milton. In summary, the City has effectively rebutted the allegations raised by Mr. McCray. The City offered a series of witnesses that had personal knowledge of the employment policies and hiring practices of the City and each corroborated the other. Those witnesses collectively support a finding that the City did not discriminate against Mr. McCray.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this claim with prejudice. DONE and ENTERED this 22nd day of April, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1997. COPIES FURNISHED: Bruce Committee, Esquire 8870 Thunderbird Drive Pensacola, Florida 32514-5661 Roy V. Andrews, Esquire Post Office Box 586 Milton, Florida 32572 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Petitioner, Vera Gray (Gray), became employed in the St. Petersburg District Claims Office of Respondent, Allstate Insurance Company (Allstate), in December 1973. She started as a clerk and in June 1977, was promoted to a Claims Service Representative (CSR). A CSR's job was to answer incoming telephone claims, handle minor uncomplicated claims and refer more complicated claims to the claim adjuster with special expertise in the line of insurance for which coverage is claimed. In 1980, Allstate underwent reorganization which changed Allstate's system for handling claims. The CSR position would be phased out and replaced by a new position titled Associate Claim Representative (ACR). The ACR would be more qualified and expected to handle more responsibility. Specifically, the ACR would be expected, among other things, to receive and handle all incoming claims regardless what line of insurance might be involved. The ACR would operate as part of a self-sufficient unit, supervised by a unit manager, which would include personnel with special expertise in certain lines of insurance who would assist the ACR in handling difficult coverage questions. But the responsibility for getting the questions resolved and all claims handled remained the ACR's. Before the reorganization went into effect, Allstate gave CSRs the option of either a demotion to a non-exempt, hourly wage clerical position or a promotion to the new ACR position, an exempt full-time position. The ACR position carried with it a 40 percent pay increase over CSR pay. But opting for the ACR promotion also carried with it a risk: an ACR did not have the right to transfer back to a clerical position, and no clerical position would be created for an ACR who wanted, or needed, to transfer. Allstate explained the benefits and risks to the CSRs. Although she had most recently received only an "adequate" or "performance does not fully meet position standards" performance rating as a CSR in her Progress/Development Summary (PDS) for the period from February to August, 1980, Gray opted for the promotion to ACR. She passed all State of Florida insurance claim adjuster licensure requirements and Allstate training requirements and started work as an ACR under unit manager Clark Gibson in August, 1980. In January, 1981, Gray's PDS for the period August, 1980, to February, 1981, rated her performance "adequate" or performance does not fully meet position standards." Gibson explained to Gray that she should not be concerned because an "adequate" rating was not unexpected for the first six months of work as a new ACR. Gibson told Gray that improvement to "competent" or "performance meets position standards" would be expected for the next rating period in another six months. Before Gray's next evaluation, Gibson was transferred and suggested that Gray transfer into the unit supervised by Linda Galeener. Although Gray had some misgivings about Galeener based on things she had heard, she agreed to transfer to Galeener's unit in late May, 1981. During the next month Gray actually worked under Galeener for only two weeks due to vacation and sick time. Galeener collaborated with Gibson to prepare a PDS--basically a performance evaluation. The PDS, rating Gray's overall performance as an ACR "unacceptable" and "far below position standards," was signed by Clark and Galeener on July 8, 1981. Meanwhile, as the PDS was being prepared, Gray changed her mind about working under Galeener and asked for a transfer to another unit on July, 1981. When the PDS was released, Gray also processed a grievance complaining that Galeener was discriminating against her on the basis of race (black). In accordance with Allstate policy, Galeener followed up the PDS as indicated in the PDS, including monitoring Gray's acceptance of responsibility, file evaluation for severity control, frequent file review for pending control and calendar spot checks for timeliness control. The purpose of this follow- up was both to help Gray improve and to monitor her performance for future evaluation. Regardless of Galeener's intentions, she and Gray did not work well together. Their work relationship probably was doomed to failure from the start. Gray viewed Galeener's supervision as harassment for which she had been singled out. Meanwhile, Galeener also took steps to make sure her unit's work was not overly disrupted trying to help Gray. Gray, in turn, interpreted this as refusing to help or allow the other employees to help her. At some point, Galeener decided that further help would be futile. On occasion, Galeener refused Gray extra help she was giving others. In accordance with Allstate policy, when Galeener did not think Gray had improved, she compared Gray's work to others by use of a Peer Comparison Chart to document that she was being fair to Gray and prepared a Personal Review for the period ending October 23, 1981. The Personal Review notified Gray that her job was in jeopardy and delineated what Gray had to do in the next 90 days to save her job. It is unusual for an employee to obtain a transfer from a supervisor who has put the employee on Progress Review. But, after consideration of Gray's grievance and consultation with the personnel managers in the St. Petersburg District as well as with the Florida Region and Southern Zone personnel managers, it was decided to grant Gray's transfer request in the interest of fairness. In November, 1981, Gray was transferred to Michelle McMahon's unit. There is no claim or proof that McMahon discriminated against Gray. The evidence is that McMahon made every reasonable effort to help Gray improve from "unacceptable" to "adequate" performance. (Immediate improvement to "competent" or "superior" performance was not expected or required of Gray to keep her job.) She reduced Gray's workload in terms of quantity and complexity. She delayed Gray's training for new irresponsibilities to enable Gray to concentrate to improve on her current responsibilities and did not downgrade Gray for not assuming new responsibilities. She reviewed all of Gray's work on a weekly basis to help her improve (as well as to monitor any improvements.) Yet by December 29, 1981, neither McMahon nor her supervisor, Thomas Spencer, the St. Petersburg Office Manager, could see any improvement. On February 12, 1982, after obtaining the various approvals necessary under Allstate's personnel procedures, Gray was discharged. The evidence did prove that Gray was the only black in Galeener's unit. Gray did not, however, prove the percentage of blacks or other minorities employed in other units or in larger organizational units of Allstate. (Nor did Allstate provide those percentages in its presentation.) There was, however, proof that McMahon Supervised black ACRs whom she rated competent and rated at least one white ACR unacceptable. The evidence was that Allstate had legitimate reasons, unrelated to race, for scrutinizing Gray's work closer than other employees. Her work was unsatisfactory and had to be monitored for several reasons: (1) to help her improve; (2) to be able to evaluate whether her performance improved to "adequate"; (3) to maintain customer satisfaction; (4) to avoid lawsuits for improperly adjusted claims; and (5) to meet the legal requirements of the State of Florida for adjustment of insurance claims. Race was not the reason for scrutiny of Gray's files. Two white employees who did not pass their State of Florida examinations for licensure as claim's representatives were transferred to other jobs (one as a dispatcher.) But they were CSRs, not ACRs. Their transfers occurred before the 1980 reorganization of Allstate's claims offices, and there was no policy that CSRs did not have a right to transfer to a lower position. To the contrary, Allstate had made it clear to Gray that, if she opted for a promotion to ACR, she would not have the right to a transfer to a clerical position and that no position would be created for her if she was unable to function as an ACR. There was evidence that the white ACR whom McMahon also rated unacceptable was not offered another position either. To the contrary, she also was notified that she would be discharged, but she resigned before the discharge took effect. There was no evidence that Gray ever asked for a transfer. She spoke of a transfer to the subrogation section, and testified that she was qualified. But she did not know if there were any openings and did not testify that she asked for a transfer to subrogation. McMahon, her supervisor from November, 1981, until her discharge, did not know of any request for a transfer, and no request is reflected anywhere in Gray's personnel file. Despite the paucity of Allstate evidence concerning Galeener (she did not testify) and the absence of any Allstate evidence on Galeener's record for supporting Allstate's affirmative action plan and policies (one aspect of her PDS as a unit manager rated her performance in that regard), the evidence overall did not prove that Galeener or anyone else at Allstate discriminated against Gray on the basis of race. Allstate's employment practices with respect to Gray, including her discharge, were based solely on legitimate factors unrelated to race.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition For Relief in this case. RECOMMENDED this 2nd day of September, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1733 To comply with Section 120.59(2), Florida Statutes (1985), the following rulings on proposed findings of fact are made: Petitioner's Proposed Findings Of Fact. 1.a.-1.d. Accepted and incorporate Rejected. The "buddy system" was an optional means of addressing difficult coverage questions within the unit. Whether to use it or other options was in the discretion of the unit manager. Rejected. Not proven. Accepted and corporate In part, rejected as contrary to facts found. The PDS was based on six months work and was the result of input by both unit managers who Supervised Gray during this time. The last sentence also is contrary to facts found. Otherwise, accepted and corporated. Respondent's Proposed Findings Of Fact. 1.-9. Accepted and incorporated. 10. Unnecessary. 11.-16. Accepted and corporate 17. Rejected as not supported by the evidence. 18.-20. Accepted and incorporate COPIES FURNISHED: Donald A. Griffin Executive Director Commission on Human Relations 25 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 25 John Knox Road Suite 240, Building F Tallahassee, Florida 32399-1925 Regina McGriff, Clerk Florida Commission on Human Relations 25 John Knox Road Suite 240, Building F Tallahassee, Florida 32399-1925 Ms. Vera Gray 2020 - 18th Avenue South, #22 St. Petersburg, Florida 33711 Richard Sutter, Esquire Allstate Insurance Company Allstate Plaza Northbrook, Illinois 60062
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Petitioner is employed by the Florida Department of Transportation (DOT) as an Engineer III in the Consultant Project Management Department in District II, Lake City, Columbia County, Florida. This department manages consultant design projects. DOT is a "state or local agency" as that term is defined in 5 U.S.C.A., Section 1501(2) whose work is "financed in whole or in part by loans or grants made by the United States or Federal agency". Since being employed by DOT in December, 1987, the Petitioner has only been assigned to work on projects that are 100% state funded. The Petitioner's salary is 1paid totally from state funds. However, there is no restriction or prohibition to Petitioner being assigned, at any time, to federally funded projects. All of the projects to which Petitioner has been assigned are being prepared to federal specifications but are still in the design phase and are programmed in later years for construction. If constructed, these projects may be federally funded. However, there was no evidence that DOT would be reimbursed by federal funds for the cost of designing those projects, including Petitioner's salary. Although Petitioner is employed by DOT, his principal employment is not "in connection with an activity financed in whole or in part by loans or grants made by the United States or Federal agency" and, thereby is not a "state or local officer or employee" as that term is defined in 5 U.S.C.A., Section 1501(4). Additionally, Petitioner "exercises no function in connection with" the federally funded activity carried on by DOT. By letter dated March 20, 1990 to W. W. Miller, District Secretary, District 2; the Petitioner requested permission to be a candidate for the office of County Commissioner, Columbia County, Florida, a local public office, in the upcoming election for 1990. In order to seek the office of County Commissioner, Petitioner would be a candidate in a partisan election. Although the Petitioner does not remember the exact date he hand delivered his request, it can be assumed that it was before Mr. Miller's Memorandum to David Ferguson, of April 6, 1990. The deadline for qualifying for the office of County Commissioner is 12:00 noon on July 20, 1990. Section 99.061, 100.031 and 100.061, Florida Statutes. Therefore, Petitioner's request was timely under Rule 22A-13.031(1), Florida Administrative Code, since it was some 109 plus days before the deadline for qualifying on July 20, 1990. Petitioner's request was forwarded by Mr. Miller to David Ferguson, by memorandum dated April 6, 1990, with a recommendation for approval, indicating that Mr. Miller found no conflict. On April 20, 1990 David Ferguson forwarded Petitioner's request to Secretary Watts, with a recommendation of disapproval based solely on a legal opinion of March 2, 1988 by Thomas H. Bateman, III, a previous General Counsel for DOT, and concurred in by Robert I. Scanlan, the Interim General Counsel which opined that all employees, without exception, were prohibited from becoming a candidate in a partisan election based on 5 U.S.C.A. Section 1501 and 1502(a)(3). Secretary Watts without any further determination as to which of DOT's employees were subject to the Federal Hatch Act as required under Rule 22A-13.002(5), Florida Administrative Code, disapproved Petitioner's request. By letter dated May 2, 1990 and received May 3, 1990, David Ferguson advised Petitioner of Secretary Watts's decision to disapprove his request. Some 27 plus days expired between Mr. Miller's memorandum to Mr. Ferguson and Petitioner being advised of Secretary Watts' disapproval. Additionally, 13 days expired between Mr. Miller's memorandum and Ferguson's memorandum to Secretary Watts. DOT was not timely with its response under Rule 22A-13.0031(2), Florida Administrative Code. Before Mr. Bateman's opinion in 1988 on at least one occasion (1986), DOT allowed an employee to become a candidate for the office of County Commissioner, Columbia County, Florida and, determined that this employer was not prohibited from becoming a candidate in a partisan election by the Federal Hatch Act. The Respondent has stipulated that the office of County Commissioner of Columbia County, Florida involves no interest which conflicts with or activity which interferes with Petitioner's employment with DOT as set out in Rule 22A-13.002 (2)(3)(4), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Respondent, Florida Department of Transportation enter a Final Order finding that the Petitioner is excluded from the provision of the Federal Hatch Act and approve his request to become a candidate for the office of County Commissioner of Columbia County. DONE AND ENTERED this 6th day of July, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 6th day of July, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3450 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1, 3 and 4, respectively. Adopted in Findings of Fact 6. Adopted in Findings of Fact 10. Adopted in Findings of Fact 11. Adopted in Findings of Fact 11. Adopted in Findings of Fact 12. Adopted in Findings of Fact 14. Adopted in Findings of Fact 11. Rejected as being a Conclusion of Law rather than a Finding of Fact. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Findings of Fact 1, 3, and 4. 2-3. Adopted in Findings of Fact 6, 8, 10, 11, and 12. COPIES FURNISHED: A. Nelson Bedenbaugh, Pro Se Route 6, Box 507 Lake City, Florida 32055 Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building - MS-58 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Burns Building Tallahassee, Florida 32399-0450
The Issue May Petitioner proceed to a hearing on the merits of her charge of employment discrimination or does the untimeliness of her Petition for Relief bar her claim?
Findings Of Fact On March 10, 1997, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission), alleging that Respondent Department of State had discriminated against her because of her race (Black) when it had discharged her on October 1, 1996. The Commission concluded its investigation into the matter, and on January 31, 2000, the Commission issued its "Determination: No Cause." A "Notice of Determination: No Cause" was mailed by the Commission to Petitioner on January 31, 2000. It contained the following statements: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this cause. DONE AND ENTERED this 24th day of July, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 24th day of July, 2000.
The Issue Whether Petitioner is entitled to creditable service with the Florida Retirement System (FRS) from February 1, 1997 through November 30, 1999.
Findings Of Fact Hendry County is governed by the Hendry County Board of County Commissioners (Board). The period in dispute is February 1, 1997, through November 30, 1999. During this 32- month period, Petitioner served as legal counsel for the Port LaBelle Utility System (PLUS), a division of Hendry County, under the direction of the County Administrator. (Stipulation e.2.b., modified. See also Finding of Fact 11.)1/ Both immediately prior to and immediately following the period in dispute, Petitioner was employed full-time by Hendry County in the regularly established position of "County Attorney." (Stipulation e.1.a. modified) Regularly established positions in Hendry County, such as "County Attorney," are created by the Board and supervised by the County Administrator. When Petitioner resigned the County Attorney position in 1997, he was approached by a Board member to work on two specific PLUS projects for $500.00 per month minimum, at the rate of $100.00 per hour. The Board and Petitioner initially called the $500.00 a "retainer fee" and anticipated that Petitioner would only work on two specific PLUS projects. Petitioner is only claiming that this guaranteed $500.00 per month, which was paid for 32 months, should have been covered by FRS. The new County Attorney had no experience in water and sewer utilities, so Hendry County and Petitioner later struck a deal for Petitioner to take up the additional role of counsel of record for all routine PLUS matters, including special projects, and to act (as he had when he was County Attorney) as PLUS contact person between PLUS and all governmental regulatory agencies at the rate of $100.00 per hour for every hour he worked above the guaranteed minimum of $500.00 per month. Petitioner was hired in this capacity due to his legal expertise in the area of utilities. Both Petitioner and the Board contemplated that he would personally render his legal services, and it was never anticipated by either party that Petitioner would sub-contract out those legal services. All of his services were rendered personally by Petitioner during the disputed period of time. At the commencement of the agreement, both parties anticipated their arrangement would continue indefinitely. No formal written contract was executed between Petitioner and the County for the period at issue. Either Petitioner or the Board could terminate the oral contract at any time without financial liability, but Petitioner would have had a professional duty to assist in the transition of cases to a replacement attorney. (Stipulation e.l.k. expanded.) The County Administrator could terminate the County Attorney, but only the Board could terminate Petitioner. During the disputed period of time, Petitioner's responsibilities and services as counsel for PLUS became essentially the same as the responsibilities and services he had provided to PLUS in his regularly-established position as County Attorney prior to the disputed period and which he subsequently provided to PLUS as County Attorney after the disputed period. However, during the period at issue, Petitioner did not perform all the other non-PLUS duties of the County Attorney. The oral agreement between Petitioner and the Board provided for Petitioner to be paid $500.00 per month by the County on behalf of PLUS. (Stipulation e.2.b., modified. See also Finding of Fact 1.)2/ Originally, Petitioner understood that the agreement guaranteed him $500.00 minimum per month even if he did no routine or special project work for PLUS. Ultimately, the oral agreement also contemplated that Petitioner could charge the County at an hourly rate of $100.00 per hour for any time he spent working on PLUS projects. This was substantially more money per hour than the full-time regular employee salary Petitioner had previously received from the County as its County Attorney. Petitioner is not claiming FRS coverage for any additional amounts of money above $500.00 per month that he charged Hendry County for PLUS work during the 32 months at issue. Petitioner is only claiming that the $500.00 per month constitutes his part time employee "salary" for this period of time. The parties stipulated that the $500.00 fee was paid to Petitioner by the County on a monthly basis, and Petitioner was not required to submit a time card to his supervisor setting forth his time worked each month in order to be entitled to the $500.00 payment. (Stipulation e.1.d. expanded.) Petitioner was not required to submit a timesheet or to similarly account for his time. However, Petitioner, in fact, billed the County for his services. The testimony is that he billed monthly, but his invoices appear to have been rendered every two or three months. Petitioner referred to the $500.00 as a "retainer" on each invoice he prepared. Each of his invoices included a vendor number, recognizable by the County Finance Department. Regularly established positions in Hendry County have no numbers. He sent his invoices from a law office in his home. Most, if not all, of the months during the disputed period, Petitioner billed more than $500.00, including time for projects and legal work not originally anticipated. Most of his services were frequent and sometimes recurring; other were not. Despite his testimony that his agreement with the County guaranteed him a retainer of $500.00 per month, regardless of how few or how many hours he worked on PLUS projects, Petitioner conceded that from the first invoice, he always credited the guaranteed $500.00 to the County and deducted it from the total hours of legal work he billed the County. Petitioner's invoices itemized all services for PLUS and any other projects he performed for the County in tenths of hours worked at the rate of pay of $100.00 per hour, and the $500.00 was always applied each month against the total PLUS hours worked. The County's Finance Department's policies were directed by the Board. Testimony shows that during the period at issue, Petitioner's monthly $500.00 was paid by the County's Finance Department, out of funds exclusive to PLUS, in response to Petitioner's invoices. However, the invoices which are in evidence show that the $500.00 and all additional charges were paid by a single County check for a lump sum in response to the total on each invoice, whenever the invoice was received. The accompanying check stub differentiated between specific projects and general charges, but the $500.00 was not isolated on the check stub. The greater weight of the credible evidence is that during the period at issue, the County Administrator's Office, Human Resources Office, and Clerk of Court did not handle Petitioner's situation as if he were an employee filling a regularly established part-time position. Rather, they treated the whole of his services, invoices, and remuneration as if he were a vendor or independent contractor. Payments to him were designated by the Finance Department as paid out of "professional services." However, the County's current Finance Director, an accountant who was not hired by the County until later, testified that the County should have separated out the $500.00 retainer and the cost of Petitioner's monthly services above that amount into separate amounts because Petitioner was performing non-vendor services for the $500.00 base amount. The County reported Petitioner's pay by Form 1099 for an independent contractor, rather than by Form W-2 for an employee. The Hendry County Personnel Manual requires that one work 7.5 hours per day in order to qualify as a full-time County employee. By law, the County is required to withhold income tax, social security, and medicare deductions for its employees, even the part-time ones. The County withheld no taxes, social security, or medicare deductions from the amounts it paid to Petitioner during the period at issue. The County did not make matching contributions for social security or medicare from the amounts it paid to Petitioner in this period. (Stipulation e.1.c., expanded.) The County did not include any fees paid to Petitioner in its wage computations for its workers' compensation insurance premiums, but had Petitioner claimed to have been injured on the job, and coverage denied by the company, only litigation would have determined if he were "covered" by workers' compensation. (Stipulation e.1.c., expanded.) Petitioner did not accrue, and was not paid, sick pay or vacation time during this period. (Stipulation e.1.c., expanded.) According to the County Personnel Manual, a County employee who works less than 22 hours per bi-weekly pay period does not earn sick or vacation leave, but would still be eligible for FRS. No FRS payments are linked to Petitioner's employment during this period. All County employees in regularly established positions, both part-time and full-time, are paid bi-weekly. Petitioner billed every two or three months. In response, the Finance Department paid Petitioner's invoices in lump sums, as if Petitioner were a vendor or independent contractor. Petitioner did not consider himself a County employee during the disputed time period, and, in fact, considered his arrangement with the County to be a classic retainer agreement. Petitioner treated his income from the County as "other income" by paying both the employer's and employee's share of social security during this period. During the period at issue, Petitioner did not list himself in the business section of the phone book or the yellow pages or otherwise offer his services to the general public, although he could have done so without violating his arrangement with the County. Petitioner had a separate and independent law office in his home during this period and charged individuals for occasional deeds and wills. Petitioner did not have to account to the County for any of his time not on the clock for County business. During this period, Petitioner also acted and was paid as counsel for the Central County Water Control District. Prior to accepting the District as his client, Petitioner sought from the Hendry County Board of County Commissioners permission to represent the Central County Water Control District, because of the Florida Bar Rules on attorneys' conflicts of interest and, presumably, rules on full disclosure to clients, but not because Hendry County was his employer. During the period at issue, Petitioner advised the Hendry County Attorney of what work he was performing, but the County Attorney could not instruct Petitioner how to do his job and did not assign him tasks or direct him. (See Findings of Facts 40 and 42.) During the period at issue, Petitioner received no training from the County. Most of the knowledge Petitioner had regarding County procedures and PLUS issues had been acquired prior to the period in question while he had been serving as the County Attorney. Some of the additional issues Petitioner represented Hendry County on during the disputed time period were assigned by the County Administrator or the Board, but Petitioner could prioritize issues and had discretion as to when he would work on them. The Board, as Petitioner's client, could direct certain of Petitioner's actions as its utilities counsel and had to agree or disagree to certain proposals. On most of these matters, votes of the Board were necessary. A major part of Petitioner's duties as counsel for PLUS during the disputed period involved attendance and providing advice to the Board and other County personnel at meetings or appointments scheduled unilaterally by the County Administrator. Petitioner was required to make reports at these events. No one in the County's administrative hierarchy could instruct Petitioner how to do his job as an attorney but the Board, County Administrator, and Utility Director could assign him tasks and instruct him on projects. In the main, however, the Board and its County Administrator had to rely on Petitioner's expert legal capabilities and professionalism as would any client in an attorney-client situation. During the disputed period, almost all of Petitioner's work for PLUS was done at a County office facility or at meeting sites designated by the County. The County made available office materials, books, and other equipment to Petitioner. All of the clerical and other staff assisting Petitioner in the performance of his duties for the County were employees of the County in regularly established County positions. Petitioner reimbursed the County for its paralegal's services at the rate of $15.00 for each hour she worked on PLUS projects. Petitioner's reimbursement to the County was in the form of a deduction from his invoices. The County paid Petitioner's cell phone and travel expenses or provided reimbursement of these expenses during this period, as billed on his invoices. Petitioner submitted his travel expenses as starting from the County courthouse, not from his home with its private law office. During this period, the services provided by Petitioner were critical and essential to the continued operation of PLUS. Petitioner did not use any of his personal capital in performing the services as counsel for PLUS during the disputed period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order ratifying its denial of FRS creditable service for February 1, 1997 through November 30, 1999. DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 7th day of April, 2005.
The Issue Does correspondence dated August 18, 1997, from John M. Awad, Ph.D., District Administrator for District II, State of Florida, Department of Children and Family Services, directed to Theodore R. Buri, Jr., Regional Director, American Federation of State, County, and Municipal employees, AFL-CIO, identify Respondent’s agency policy? If yes, is that policy a “Rule” as defined in Section 120.52(15), Florida Statutes (Supp. 1996)? If a “Rule," has Respondent promulgated the policy in accordance with Section 120.54, Florida Statutes (Supp. 1996)? If the policy is a “Rule” that has not been promulgated, does a statutory basis exist for its promulgation?
Findings Of Fact The individual Petitioners are employed at the Florida State Hospital. This is a mental health facility operated by the Respondent. The individual Petitioners have contact with the clients who reside in the hospital. Because those individual Petitioners have client contact in performing their employment at the hospital, Respondent, as their employer, is responsible for screening the employees to ascertain whether those individual Petitioners have been convicted of or pled guilty or nolo contendere to certain offenses set forth in Sections 435.03 and 435.04, Florida Statutes (1995). Such a finding would disqualify the employees from working directly with the clients. The requirement for screening is in accordance with Section 110.1127(3), and Section 394.4572, Florida Statutes (Supp. 1996). Florida Public Employees Council 79, American Federation of State, County, and Municipal employees, AFL-CIO (AFSCME), represents the individual Petitioners in collective bargaining between those Petitioners and the State of Florida. Each of the individual Petitioners received notification from Robert B. Williams, Hospital Administrator, Florida State Hospital, that each person had been declared ineligible to hold a position of “special trust” based upon certain offenses attributable to the Petitioners. The basis for the disqualifications was Chapter 435, Florida Statutes (1995). This meant that the individuals could not have client contact. As a consequence, Petitioners were told, through the correspondence notifying them of their disqualifications, that they could seek exemption from disqualification and/or contest the accuracy of the records declaring their disqualifications. All Petitioners sought relief from Respondent in accordance with Section 435.07(3), Florida Statutes (1995), by requesting exemption from disqualification before the Respondent. Bobby Jones, Clarence Cornell Simmons, Freddie Lee, and Frank Lawrence Dickens were denied exemption. Whether those Petitioners have contested the preliminary decision by Respondent denying their exemption through hearing procedures set forth in Chapter 120, Florida Statutes is not known. The other Petitioners were granted exemption from disqualification by action of the Respondent. Before Respondent made its preliminary determination on eligibility, on August 13, 1997, Theodore R. Buri, Jr., Regional Director of AFSCME Florida Council 79, wrote to Dr. John Awad, District Administrator, District II, Department of Children and Family Services. The purpose of the letter concerned the disqualification of the individual Petitioners to continue work in positions of “special trust” by having contact with clients at Florida State Hospital. That correspondence stated: The above referenced employees have been previously notified of disqualification, allegedly under the provisions of Chapter 435, Florida Statutes. These employees have notified Council 79, through their local union, that they are scheduled for a hearing on a possible exemption from the provisions of Chapter 435 on August 27, 1997. I have reviewed the documents of these individuals and I have found, without exception, that the charges which served as the basis of potential disqualification all occurred prior to October 1, 1995. As I am sure you are aware the provisions of Chapter 435, Florida Statutes, did not become effective until October 1, 1995. Further, the notations are consistent throughout Chapter 435, indicating that the provisions of Chapter 435 shall apply only to offenses committed subsequent to October 1, 1995. It appears that these, and other, employees are being improperly required by the Department to defend themselves against provisions of Florida Statutes which do not apply to them. I wish you would immediately review this concern with your legal department and direct Florida State Hospital to immediately make the affected employees whole and to terminate the pending actions against these employees. Your prompt attention in this matter is very much appreciated. On August 18, 1997, Dr. Awad responded to Mr. Buri’s inquiry through correspondence, in which Dr. Awad stated: The concerns expressed in your letter dated August 13, 1997, concerning background screenings were reviewed approximately a year and a half ago by an agency statewide workgroup, which included several background screening coordinators, District Legal Counsels, and attorneys from the General Counsel’s office. The legal research from that group resulted in the issuance of Agency policy addressing this and other statewide issues. In response to a question similar to that raised in your letter, Agency policy is that although Section 64 of Chapter 95-228, Laws of Florida, states that “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date,” it applies only to the new criminal offense of “Luring or enticing a child” created by Section 1 of the law and does not apply to screening provisions. Therefore, in accordance with established principals [sic] of statutory construction, a person being rescreened after 10-1-95, must meet the requirements of the law in effect as of the date of the rescreening, which includes the broadened offenses, just as a new job applicant must meet such requirements. If you have any further questions concerning this matter, you may wish to have your attorney discuss this with the Agency’s General Counsel. The exemption hearings before Respondent were held on August 27, 1997, leading to the grant of exemptions for some Petitioners, and denial for others. Through their Petition to determine the invalidity of a “Rule," Petitioners allege and request the following relief: Although Chapter 435 of the Laws of Florida concerning employment screening specifically states that it applies to offenses committed on or after October 1, 1995, the Respondent applies employment screening to all employees and to all offenses regardless of the date of the offense. The Respondent articulated this policy of application in correspondence addressed to Theodore R. Buri from John Awad dated August 18, 1997,. . . The Respondent’s policy, as more fully described above, is a 'Rule' within the meaning of Section 120.52(16), Florida Statutes, because it is an 'agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of the agency.' Id. This rule should be declared an invalid exercise of delegated legislative authority for the following reasons: The above described rule has not been adopted in substantial compliance with Section 120.54, Florida Statutes; The Respondent has no statutory or rule authority to adopt the above described rule as applied to offenses predating October 1, 1995, thus the rule violates Section 120.56, Florida Statutes. The rule imposes a civil penalty against the individually named Petitioners for which there is no specific statutory authority. The rule is arbitrary and capricious as applied to offenses predating October 1, 1995, and thus violates Section 120.56, Florida Statutes. The rule adversely affects the Petitioners' substantial interest in continued employment in a position of 'special trust.' The rule is an unconstitutional impairment of the contract of employment. It unfairly burdens the Petitioners and others similarly situated with the duty to timely request and prove by clear and convincing evidence that [sic] either an entitlement to an exemption from disqualification or that the records are inaccurate. It is an oppressive and unreasonable condition of employment. As a penalty attached to an offense committed prior to October 1, 1995, the Rule is unlawful as an ex post facto law. The immediate removal from a position of trust before an employee may be heard denies the employee due process. The rule attacks a protected property and liberty interest of the individually named Petitioners and those similarly situated. The Agency’s actions against the Petitioners based on the Rule stigmatizes the employee. Petitioners also request that they be granted costs and attorneys fees pursuant to Section 120.595(3) and (4), Florida Statutes (Supp. 1996). Chapter 95-228, Laws of Florida, referred to by Dr. Awad in his August 18, 1997, correspondence to Mr. Buri, created Chapter 435, Florida Statutes.
