The Issue The issue is whether Petitioner is qualified to take the examination for licensure as a mental health counselor.
Findings Of Fact Petitioner executed an application for licensure as a mental health counselor on June 13, 1989. He filed the application with the Board of Clinical Social Workers, Marriage & Family Therapists, and Mental Health Counselors on July 6, 1989. The application was accompanied by the appropriate fee and disclosed that Petitioner satisfied all of the educational requirements for taking the examination. However, Respondent determined that the application was incomplete because Petitioner failed to show that he had had the requisite clinical experience under the supervision of a qualified person. By letter dated July 17, 1989, Respondent informed Petitioner that his application was incomplete pending receipt of, among other things, documentation of the requisite clinical experience under the supervision of a qualified person. A second letter dated January 17, 1990, from Respondent to Petitioner restated that the application was still missing the items set forth in the prior letter. By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that it was denying his application on the grounds set forth above. Petitioner obtained a master's degree in clinical psychology from the University of Central Florida on December 20, 1985. From October 4, 1985, through October 20, 1988, Petitioner worked full- time as a psychological specialist at the Polk Correctional Institution under the supervision of Gerd Garkisch, Ph.D., who was head of the mental health department at the prison. Petitioner's work qualifies as clinical experience in mental health counseling. Dr. Garkisch does not hold any Florida professional licenses, such as a mental health counselor or psychologist. He is not so licensed in any other state, although he is licensed as a psychologist in Puerto Rico. Dr. Garkisch does not meet the education criteria required for licensure as a mental health counselor. Dr. Garkisch earned a master's degree in clinical psychology, which would otherwise satisfy the educational requirement for licensure as a mental health counselor. However, he received his degree from the Pontifical Catholic University of Rio Grande do Sul, Institute of Psychology, which is located in Brazil. The school is not accredited by an accrediting agency approved by the U.S. Department of Education, Council on Postsecondary Accreditation, or Association of Universities and Colleges of Canada.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation deny Petitioner's application for licensure as a mental health counselor. ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1990. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Linda Biederman, Executive Director Board of Mental Health Counseling 1940 North Monroe Street Tallahassee, FL 32399-0792 Vytas J. Urba, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Suresh Paul Pushkarna, pro se 309 Hidden Hollow Court Sanford, FL 32773
The Issue The issue for consideration in this hearing is whether Petitioner should be granted an exemption from disqualification from certain employment.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, was the state agency responsible for screening the employment of individuals employed in certain occupations within this state. Petitioner, Jose Ramon Arazo, is married to Stephanie Arazo, who at the time and for a number of years prior to the marriage, operated a child day care center in Largo, Florida. Under the provisions of Chapter 435, Florida Statutes, various positions of trust require screening of federal and state law enforcement records to see if the applicants for such positions have a record of charge or disposition. Various positions have differing requirements for screening. Those positions classified as Level II require a finger print and agency check with the Federal Bureau of Investigation and the Florida Department of Law Enforcement. Those positions classified as Level I do not. If the agency check discloses the applicant has been charged with a criminal offense, the Department then determines the disposition of the allegation and obtains court records regarding the court action and verifying any probation imposed. The Department's District V Director has promulgated a policy to be followed in that District that stipulates that an exemption from disqualification will not be granted to any individual who is on probation after conviction of a felony and for three years after release from probation. If probation is not imposed by the court, the same policy provides that an exemption will not be granted within three years of a felony conviction, as is provided for in the statute governing exemptions. Petitioner has been charged with several felonies in the past. On July 18, 1983, he was arraigned on a charge of grand theft, to which he pleaded not guilty. However, on August 29, 1983, he changed his plea to guilty and was placed on probation for three years. Thereafter, in December 1985, a warrant was issued for his arrest alleging various violations of the conditions of his probation, including such offenses as being delinquent in the payment of the cost of his supervision; moving from his residence without the prior consent of his probation supervisor; failing to work diligently at a lawful occupation; and failing to make required restitution. In July 1986, he was again the subject of an arrest warrant for ten further probation violations of a similar nature. No evidence was presented as to what action was taken for those violations, but on April 4, 1986, he pleaded guilty in Circuit Court in Pinellas County to grand theft and was again placed in a community control program for two years. There is also evidence in the record to indicate that in September 1986, he was sentenced to confinement for 18 months as a result of the grand theft in Pinellas County. In May 1989, Petitioner was arrested in Hillsborough County and charged with possession of cocaine, a second degree felony, and with obstructing an officer without violence, a first degree misdemeanor. He entered a plea of guilty to the offenses and on May 2, 1989, was sentenced to three-and-a-half years in Florida State Prison. In an indictment dated December 3, 1991, Petitioner was charged with one count of grand theft in Hillsborough County. He entered a plea of nolo contendere and on October 14, 1994, was sentenced to five years imprisonment. When Petitioner was released from prison in 1998, he was placed on probation for a period of two years and is currently on probation status. He indicates he has successfully participated in this period of probation and was told the probation authorities plan to recommend his release from probation in the near future. No independent evidence to support this contention was offered, though Petitioner presented a statement from correctional officials who supervised him while he was incarcerated at the Tampa Community Correction Center and at the institutional level, that he has shown a significant reformation of character and a good ability to deal with everyday problems in a professional manner. From their joint unsworn statement, it would appear these individuals consider Petitioner a likely candidate to be a productive member of society in the future. Petitioner's wife has been put out of business because Petitioner lives with her in their home which was her place of business. Because of his presence, even though he works outside the home most of the time the children are there, she cannot care for children in the home because of regulations prohibiting it. She has been in business for a number of years and apparently her center has a good reputation in the community. One client, Mrs. Perry, by unsworn written statement commends Mrs. Arazo's performance and indicates that even though she saw Petitioner only a few times, he was one of her daughter's favorite people. He also had a positive influence on her son, preaching the virtue of hard work. Mrs. Perry does not consider Petitioner a threat, and she has no fear of his being near her children. In fact, she is of the opinion it a good thing for the children to see the loving and supportive interplay between Petitioner and his wife. Another client, Mrs. Mineo, has been a foster parent to a number of children over the years, many of whom she has placed in Mrs. Arazo's care, agrees. During the time she has known Petitioner, she has never seen him to be other than very professional. She describes him as a hard worker, well-mannered, and deserving of a chance. She believes him to be trying hard. Mrs. Arazo asserts that Petitioner is no threat to the well-being of any of the children who attend her center. He has, to her knowledge, never hurt a child, and she would have nothing to do with anyone who would. His relationship with the children in her care is very positive, and the children love him when he is there, which is not often. He is not an employee of the center and, in fact, has nothing to do with it. He has made mistakes in the past, has paid for them, and has worked hard to overcome them. In her opinion, he deserves a chance. Petitioner admits he has done wrong in the past on multiple occasions, and he is not proud of the things he has done wrong. He does not believe in rehabilitation except in the physical sense, but he believes in the power of an individual to recognize his wrong ways and reform himself. He believes he has done this. He took the opportunity to learn better life-skills while he was in jail and has reformed his way of thinking and his attitudes. During the total six years he spent in prison, he was given only one disciplinary referral. He learned a trade and has a full-time job. He is doing the best he can and wants a chance to prove himself, so as not to hurt his wife's business.
Findings Of Fact Edward Amsbury, Petitioner, is a Career Service employee with permanent status. The Petitioner timely filed an appeal of the Respondent's actions as set forth above. According to Petitioner, he applied for several jobs under the reorganization of the Department of Health and Rehabilitative Services (HRS) prior to July of 1976. At that time he was advised that inasmuch as he was not an adversely affected employee, he would only be considered after all adversely affected employees were placed in other positions. On July 9, 1976, a letter was sent by George Van Staden, ASO, by Larry Overton to the District Administrator advising that Petitioner was originally to have been adversely affected and he (Van Staden) asked for justification as to why Petitioner's position was continued in the District III personnel structure. Thereafter, on approximately July 22, 1976, according to Petitioner, Richard Dillard, Sub- district III-A Administrator, orally advised him that his position would be abolished prior to January 1, 1977, due to HRS' reorganization. A few days later, Petitioner was advised by Mr. Dillard that his position as Mental Health Representative was being reclassified to that of the Community Resources Development Unit Supervisor as of October 1, 1976, and that the pay grade would be 18 rather than his then existing pay grade, 19. Petitioner was asked to write a new job description for the Community Resources Development Supervisor, at which time he was offered that position. Petitioner was then at the top of Pay Grade 18; however, he was advised by Mr. Dillard that his salary would not be reduced since he, in effect, was adversely affected due to reorganization. In view of the lateness with which the Petitioner was advised that his position was adversely affected, there were then only two positions available within the district, i.e., Community Resources Development Unit Supervisor or Clinical Social Worker II at the North Florida Evaluation and Treatment Center. Petitioner chose the position more closely related to his field of Mental Health, i.e., the Community Resources Development Unit Supervisor, and was told by Mr. Dillard that he would retain his present salary regardless of which position he accepted. All the Petitioner's performance evaluations were satisfactory or above. Based on the record, it appears that the Petitioner was forced to accept a position with a lower pay grade due to HRS' reorganization. By letter dated July 1, 1977, the Petitioner was advised by William H. McClure, Jr., District Administrator, that the Department of Administration had disapproved the District Administrator's request that he (Petitioner) maintain his current salary above the maximum for the class of Clinical Social Worker II, to which he was demoted on September 17, 1976. Correspondence from Conley Kennison, State Personnel Director, reveals that determination was based on the following reasons: Petitioner's voluntary demotion was not directly attributable to reorganization since the position of Mental Health Representative continued in existence until July 1, 1977; He retained his bi-weekly salary of $584.76 upon demotion without approval of the State Personnel Director; and Petitioner was not informed in writing the Mental Health Representative position would be adversely affected, by reorganization. As a result thereof, the Department of Administration contended that it overpaid the Petitioner the amount of $11.16 per bi-weekly pay period and that in accordance with provisions of Chapter 22K-10.04(2) of the Personnel Rules and Regulations, such amount must be recovered and to effect such, said amount would be deducted from each salary warrant for a period of twenty-one pay periods to cover the overpayment from September 17, 1976, through July 7, 1977. Additionally, effective July 8, 1977, Petitioner's salary was reduced to the maximum for Pay Grade 18, i.e., $573.60 bi-weekly. The letter of July 1, 1977, further advised the Petitioner that although he was originally designated adversely affected along with all the other Mental Health Representative positions, positions which were to be abolished on July 1, 1976, the District Administrator was later told that Petitioner's position would not be abolished until January of 1977. Petitioner, as stated in said letter, took his demotion in good faith, feeling that his position of Mental Health Representative would be abolished. On November 17, 1976, the District Administrator forwarded a request to the Department of Administration requesting that Petitioner's salary be maintained; however, no action was taken because no administrative disposition bad been taken with respect to the abolishment of that position. A further request was sent to the Department of Administration in April, and during June of 1977 the request was denied and efforts to recover the overpayment were implemented. Evidence contained in the case files revealed that several employees who were voluntarily demoted pursuant to reorganization were granted permission to maintain their current salaries which amounted to payments above the maximum for the class to which they were demoted. The Respondent offered no evidence to refute or otherwise contradict the statements and contentions of the Petitioner that he was advised by district representatives and personnel that his salary would be maintained even though he was being demoted due to reorganization. It further appears that the Respondent, in relying on statements by the District Administrator (Dillard), was hampered in his efforts to obtain favorable consideration for other positions which were up for bid during the reorganization process. Noteworthy is the uncontradicted statement that the Petitioner was told that inasmuch as he would not be adversely affected by reorganization, he would not be considered for positions until all adversely affected employees had been placed in positions which were open for bid during reorganization. A memorandum from Art Adams of the HRS Personnel Office to John Campbell, Personnel Officer for District IV, dated August 9, 1976, advised that all employees who were asked to take a demotion due to reorganization would retain their salaries over the maximum. For all of the above reasons, including the indefensible position advanced by the Respondent, I shall recommend that the Respondent's action in reducing the Petitioner's pay and seeking to recover amounts allegedly overpaid be reversed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: The Petitioner's salary be reinstated to the level to which he was receiving as of the date of demotion on or about September 17, 1976. That the Respondent make whole any loss of pay the Petitioner suffered as a result of the reduction in his salary and the bi-weekly deductions of $11.16. That the Petitioner be paid interest at the rate of 6 percent per annum based on the amounts withdrawn from his salary warrants through the deductions and the recovery of amounts allegedly overpaid him when his salary was reduced. RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1978. COPIES FURNISHED: Mr. Edward Amsbury 5620 Northwest 25th Terrace Gainesville, Florida 32601 Mrs. Dorothy B. Roberts Career Service Commission 443 Carlton Building Tallahassee, Florida 32304 Joseph E. Hodges, Esquire 2002 Northwest 13th Street 3rd Floor, Oak Park Executive Square Gainesville, Florida 32601 Thomas K. McKee, Jr., Esquire Post Office Box NFETC Gainesville, Florida 32602 =================================================================
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Alvin V. Walker, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in the psychiatric wing of a local hospital with persons suffering from mental illness. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on August 8, 1990. On that date, petitioner was arrested for the offense of "prostitution," a misdemeanor under Chapter 796, Florida Statutes. The circumstances surrounding the incident were not discussed at final hearing. However, the Florida Department of Law Enforcement report stipulated into evidence indicates that on April 30, 1991, adjudication of guilt was withheld by the Duval County Court, and the arrest was sealed. Although the denial of petitioner's request was based solely on his 1990 arrest, at hearing petitioner candidly acknowledged that in 1992 he was invited into the automobile of an undercover police officer in Duval County and was asked what type of sexual things he liked to do. After answering the question, he was given a citation for an undisclosed offense and later pled nolo contendere to the charge. For this, he received one month's probation. Since that time, his record is unblemished. Shortly after the 1992 incident, petitioner began counseling sessions with a mental health counselor. He has continued his therapy since that time. The counselor described petitioner as a "very decent" person with "high morals," and someone who has shown improvement in terms of stability since he began his counseling sessions. From June 1993 until May 1995, petitioner was employed as a rehabilitation counselor with Renaissance Center, Inc. (Renaissance), a residential treatment facility for adults eighteen years of age and older with chronic mental illnesses. In June 1995, Renaissance was acquired by Mental Health Resources and petitioner continued doing the same type of work for the successor firm. He left there in January 1996 for employment with the St. Johns River Hospital as a mental health assistant in the facility's psychiatric unit. In April 1996, however, a background screening disclosed his 1990 arrest, and he was forced to resign pending the outcome of this proceeding. If petitioner's request is approved, the facility will rehire him. Petitioner's former employer at Renaissance established that petitioner was a very conscientious, responsible, and reliable employee who poses no threat to his clients. The employer considered petitioner to be of "good moral character." For the last four or five years, petitioner has been actively involved in the "Outreach" ministry of his church. That program involves providing spiritual support, services and counseling to prisoners in the Duval County Jail each Sunday with follow-up sessions during the week. Members of his church attested to his good moral character. Based on the testimony of witnesses Britt, Toto, Cross and DeWees, as corroborated by petitioner's own testimony, it is found that petitioner has presented sufficient evidence of rehabilitation since his 1990 arrest, he is of "good character," and he poses no threat to the safety or well-being of his clients. The request for an exemption should accordingly be approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 10th day of September, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 200-X Tallahassee, Florida 32399-0700 Richard E. Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Pauline M. Ingraham-Drayton, Esquire 200 West Forsyth Street, Suite 80 Jacksonville, Florida 32202 Roger L. D. Williams, Esquire Post Office Box 2417 Jacksonville, Florida 32231-0083
Findings Of Fact Board No. 9 is a nonprofit Florida corporation. Its primary responsibility is to coordinate community mental health programs in a five- county catchment area consisting of Palm Beach, Martin, St. Lucie, Indian River, and Okeechobee counties. It receives funds from the state and counties; then, by subcontract with third parties, it spends the funds for mental health and alcoholic treatment services in the five-county area. (Testimony of Anderson.) Prior to 1977, when Board No. 9 began operations, the five-county area was provided mental health services by Mental Health District Boards Nos. 18 and On January 1, 1977, Mental Health Boards Nos. 18 and 20 were dissolved and replaced by Board No. 9. In February, 1977, the Department and Board No. 9 entered a written agreement which provided state funds to Board No. 9 for specified mental health programs. As a condition to receiving the state funds, Board No. 9 accepted responsibility for "the collection of all past and present liabilities and obligations due the Department," from the nine listed mental health contractors of former Mental Health Boards Nos. 18 and 20. The agreement, by its terms, terminated on June 30, 1977. (Testimony of Anderson; R-4.) In October, 1981, Board No. 9 was notified by the Department that it must repay $32,102 which had allegedly been overpaid to the former Mental Health Board No. 18, during the fiscal year ending June 30, 1976. The Department's claim was based on a recent audit it had completed on former Mental Health Board No. 18. Board No. 9 opposes the Department's demand. (Testimony of Anderson, Hodnette.) The Department presented no evidence to establish (1) that the 1977 contract was subsequently renewed; (2) that Board No. 9 was notified prior to 1981 that any liabilities and obligations were due the Department from the various subcontractors of former Mental Health Board No. 18; or (3) that Board No. 9 ever agreed to accept responsibility for payment of the nine subcontractors' past and present obligations or liabilities to the Department. Most, if not all, of the nine subcontractors are now defunct or dissolved and recourse against them for past liabilities is impracticable.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department withdraw its claim against Board No. 9 for $32,102. DONE AND RECOMMENDED this 21st day of July, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1982.
The Issue Petitioner, a former employee of Respondent School Board, has alleged that the Respondent violated section 760.10, F.S., by discriminating against him based on his handicap. The basic issue is whether that violation occurred and if so, what relief is appropriate. However, in this protracted proceeding various ancillary issues have been raised and also require disposition. Those issues include: Whether Petitioner's claim of discrimination based on failure to hire was timely; whether Petitioner may also claim discrimination based on wrongful termination or is that claim time-barred; whether evidence of Petitioner's criminal history, acquired by Respondent during the pendency of the proceeding and after the alleged discrimination, is relevant in the proceeding and, if so, whether it is a bar to, or simple limitation on relief; and whether Petitioner's motion to proceed anonymously, filed after the evidentiary hearing, should be granted.
Findings Of Fact Petitioner (Sanford) was first hired as a bus driver by the school board on February 8, 1968, and became an operations administrative assistant on October 1, 1982. As bus driver, and in the early years as an administrative assistant, he received above average, outstanding or (after the evaluation form changed) satisfactory performance ratings. In 1986 Sanford was supervised by the operations chief, Geraldine Hanna. Ms. Hanna initially felt fortunate at having an administrative assistant, but after three or four weeks she had major concerns about his job performance. Sanford required excessive supervision to complete a task; there were errors, and the tasks were not being completed within deadlines. She observed his frustration and inappropriate language over the air and within the dispatch office. The school board had recently initiated an employee assistance program (EAP), and suspecting "something was wrong", Ms. Hanna referred Sanford to the program. Although she never smelled alcohol or observed the employee stumbling or staggering, Hanna felt Sanford had some type of substance abuse problem and told him that she suspected something was going on. The first EAP referral was made through Dave Wofford, Director of Transportation, to Scott Diebler, Senior Manager for the Orange County School Board's EAP. Wofford was considered a "hard-nosed" supervisor, but Scott Diebler felt that he went further with Sanford than normally because of Sanford's long prior excellent record of performance. Sanford was referred again to the EAP, directly by Hanna, in fall 1986 or spring 1987, as the performance problems persisted. These performance problems are detailed in a classified evaluation report dated 4/10/87 and signed by both Gary Sanford and Geraldine Hanna. A narrative attachment to the report cites examples and concludes: The recited examples give evidence of [Sanford's] inability to complete duties in a timely, effective and organized manner. He demonstrates no initiative in the performance of his duties and cannot work without supervision. His lack of proper documentation and follow-through have resulted in frustration on the part of the management staff. (Respondent's Ex. #8) Scott Diebler met with Sanford and his supervisors and arranged to have Sanford evaluated by outside professionals with whom the program contracted for services. At some point, Hanna and Sanford met together with a counsellor. Sanford's initial symptoms were typical of emotional and mental health problems; there were mood swings, hyperactivity and excitability. Shortly after several different professional opinions were obtained, Diebler determined that the primary presenting problem was chemical dependency (alcohol, marijuana and cocaine) and that there were secondary emotional problems. Sanford admits that in 1986 and 1987 he would go home after getting off work at 2:30 p.m. and would drink until he fell asleep. He denies ever drinking on the job. Beginning in September 1986 Sanford was treated by an EAP service provider, Psychological Service Associates, through Recovery Alternatives, Inc. (RAI). He completed Phase I of outpatient intensive group and individual therapy and was transferred to Phase II, which included Alcoholics Anonymous meetings. There is no evidence that Sanford successfully completed Phase II. The treatment he received temporarily alleviated, but in no way "cured" his addiction. According to competent expert witnesses, alcoholism as a disease is never cured. In a proper recovery program and with proper motivation, an individual may recover and arrest the disease. At times throughout his history at the EAP Sanford abstained and showed some progress toward recovery. He also experienced periods of relapse, with no progress. Sanford attended some AA meetings in 1987, but not enough to help. At that stage he was still in "denial" and tended to blame others for his problems. When the performance problems in the Department of Transportation did not improve and Sanford was headed for a "disciplinary scenario", as observed by Scott Diebler, the EAP helped Sanford find a transfer to another department. The idea was that if the performance problems were the result of a personality conflict, a transfer would resolve the conflict. Richard Staples was senior administrator for warehouse and distribution in 1988, when he agreed to accept Sanford for transfer to a courier position with the understanding that Sanford would follow through with his offered assistance through EAP. Sanford's performance improved for a time, and on March 11, 1988, Staples evaluated him as "satisfactory", with "excellent" ratings in dependability, adaptability and attitude. By May 1989, performance deteriorated, and primarily because of attendance problems, Staples referred Sanford back to Scott Diebler and the EAP. Diebler acknowledged the referral with a memo to Staples informing him that Sanford was referred to an outpatient program at Florida Psychiatric Associates. On July 10, 1989, Sanford was absent without authorization during assigned work hours despite having been warned in May that he was to notify Staples personally with regard to any need for absence from the worksite. Staples sent Sanford a written confirmation of their July 13, 1989 meeting regarding the absence, with a warning that reoccurrence would result in a one- week suspension without pay. Sanford admits that the July 10th absence was related to his drinking. He was drinking heavily daily after work and was using cocaine on weekends during this period. He does not know how much alcohol he consumed, but as before, he drank steadily from the time he came home from work until he passed out. On July 17, 1989, someone who identified herself as a parent of an Oak Hill Elementary School child telephoned the mailroom of the courier department and informed Richard Sanders, the relief courier driver helping the mail clerk, that an Orange County School Board courier was drunk and stumbling and falling into the truck. The message was given to Richard Staples. Oak Hill was on Sanford's route. Staples checked Sanford's route schedule and had his secretary call the next two schools to tell Sanford to stay where he was and call Staples' office. Staples then took a relief driver and another administrator, Steve Wind, and found Sanford at West Orange High School, waiting as instructed. While Sanford was waiting for Staples he called Staples' secretary twice, each time talking incoherently and very upset. She kept telling him he had to wait at the school for Staples. When Staples found him waiting at the school lobby, Sanford's demeanor was lethargic and he did not appear to have himself under control. Steve Wind observed Sanford's speech as slurred and his eyes were glassy. He was unsteady, but not staggering. Staples drove Sanford to his house, with Wind in the backseat, and the relief driver finished the route. Sanford asked Staples to take him to the warehouse so he could get his car, but Staples told him that he did not want him driving in his condition. Staples asked several times if Sanford wanted to stop by a clinic on the way home. Sanford said, no. Several times Sanford asked what was going to happen and was he going to be fired. Staples said he did not know, and was only concerned about Sanford getting home. Sanford cried. After taking Sanford home, Staples explained the incident to John Hawco, the school board's senior manager of employee relations. Staples also sent a letter to Sanford, dated July 18, 1989, informing him that he was relieved of duty with pay, pending an investigation into the events of July 17th, and notifying him that a meeting which could result in disciplinary action would be scheduled in the near future. The collective bargaining agreement which covered Sanford as a courier driver provides that an employee may be suspended without pay or dismissed for conviction of any crime involving moral turpitude, drunkenness, gross insubordination, immorality, misconduct in office, willful neglect of duty, or continued failure to satisfactorily meet performance standards for the job. The agreement provides for a pretermination meeting at which the employee may be represented and is given the opportunity to explain the facts and provide other witnesses or sources of information. The pretermination meeting was scheduled for July 20th, but was cancelled because Sanford overdosed on alcohol and cocaine and was temporarily hospitalized. The meeting was held on August 1, 1989. At the meeting, Sanford denied being under the influence on July 17th, but also apologized for what had happened. Sanford was accompanied by a union representative. Staples and Hawco discussed the options and rejected the possibility of moving Sanford to another position. They considered his history of chemical abuse and failure to comply with EAP recommendations. They told Sanford that he would be terminated and urged him to obtain treatment. Hawco advised Sanford that he could resign his position or seek retirement, if eligible, and gave him three days to come to a decision, at which time his employment would be terminated. On August 3, 1989, Hawco was contacted by a staff person in the EAP who advised that Sanford had entered a treatment program. Scott Diebler worked out an arrangement for Sanford's termination to be delayed briefly to give him the benefit of insurance during his detoxification and initial treatment. Hawco's decision to terminate Sanford was based on his determination that Sanford was operating a county vehicle while under the influence, which under the School Board's policy is a termination offense. This, coupled with Sanford's past performance, was the basis for the termination, and not his status as an alcoholic. The termination notice to Gary Sanford from John Hawco is dated August 18, 1989, and informs him that the effective date of termination was August 17, 1989. By this time, Sanford was in a 35-day inpatient treatment program at Cross Roads treatment center. His mother brought him the termination notice on her first visiting day in August, the Sunday after the notice arrived. Because he was not able to have contact with outside persons during the initial stage of his treatment, Sanford asked his mother to call Scott Diebler. She did, and he told her that they could discuss rehire after Gary Sanford was successfully treated, in about six months. No one from the school board informed Sanford or his treatment facility that Sanford had not been terminated or that Sanford would automatically be rehired upon completion of a treatment program. Before termination, Scott Diebler had argued for a "last chance" contract for Sanford, to give him one final chance to be successfully rehabilitated; but the request was denied with an explanation and apology that the job problems had been too severe and there had already been many opportunities to get help. After termination, Diebler got a report from the treatment center implying that Sanford was on a leave of absence. He attempted to assure that the center was properly informed, as there were insurance implications. That is, the first 30 days were covered through the EAP or board's insurance, but thereafter Sanford was responsible. Diebler also assured himself by checking with John Hawco and the union representative that Gary Sanford understood from the August 1st meeting that his employment was to be terminated. Diebler had some contact with Sanford during treatment at Cross Roads and assured him that he could reapply after six months. At some point, Diebler sent him an employment application. Sanford completed the intensive inpatient program and stayed on at Cross Roads for another six to eight months. After the thirty-five day program was completed, he resided in the half-way house and worked various jobs such as Texaco and a dinner cruise ship. He no longer drinks and he attends AA meetings regularly. He has remained employed. In February 1990, Sanford went to see John Hawco at the school board and said he had completed six months successful treatment. Sanford told Hawco that he understood he could get his job back; he also said he wanted payment for his accrued sick leave, which was approximately 1,176 hours at the time of his termination. Hawco reminded him that because he was involuntarily terminated, he was not entitled to accrued leave. Sanford did not specifically ask for his job back and said he wanted the terminal pay (approximately $12,000) in order to get a new start. The non-eligibility for terminal pay was reiterated in writing by John Hawco to Gary Sanford in a letter dated October 1, 1990, in response to a letter Sanford had sent to the assistant superintendent. Sanford never put in an application to be rehired by the school board, contrary to Diebler's earlier advice. Sanford initially contacted the Florida Commission on Human Relations in April 1990, with regard to filing a charge of handicap discrimination. He was advised that his charge was untimely, based apparently on his termination date of August 1989. He later recontacted the commission to complain and was permitted to file his charge on March 12, 1991, based on denial of rehiring, allegedly occurring on February 2, 1990. (Petitioner's Ex. #18) This is the charge which initiated this proceeding. At some point after the charge and petition for relief were filed, and before the formal hearing, the school board requested a criminal record background check on Gary Sanford and uncovered the following: a) On July 16, 1984, after a plea of guilty to driving under the influence (DUI), Sanford was adjudicated guilty, placed on probation, fined, and sentenced to 50 hours community service with a driver's license suspension of six months; b) On October 14, 1988, after a plea of guilty to exposure of sexual organs (in a booth in an adult entertainment center), Sanford's adjudication was withheld and he was placed on unsupervised probation for one year under the condition that he not return to an adult entertainment establishment; c) On August 28, 1990, after a plea of nolo contendere to the misdemeanor of lewdness (soliciting a police agent in a park restroom), Sanford was adjudicated guilty, and was placed on supervised probation with conditions that he participate in substance abuse counselling/screening and would not return to any Orange County park; and d) On August 28, 1991, after a plea of guilty of being in a park after hours, Sanford was adjudicated guilty and sentenced to time served only. (Respondent's composite Ex. #2) On 1/25/85, 1/28/86 and 3/16/87, Sanford filed his forms, "Florida Department of Education Application for License to Drive School Bus and Physical Examination for School Bus Driver Applicant". These were renewal applications as the form indicates that a license to drive a school bus is valid for no more than 12 months from issue date. On each of these forms, Sanford answered "no", and certified his answers to be correct, to questions of whether he had been convicted of a misdemeanor or felony in the last three years and whether his driver's license had been suspended or revoked during the last three years. (Respondent's composite Ex. #3) The Orange County School Board requires Florida Department of Law Enforcement (FDLE) and Federal Bureau of Investigation (FBI) fingerprints and screening of all employees, upon hire, including former employees with a greater than 90-day break in service (separation from employment). Since approximately 1991, the school board has notified law enforcement agencies to advise the board any time a student or employee is arrested for a felony or misdemeanor. Upon receipt of the screening report or arrest report, the employee is given an opportunity to provide court records and explanations surrounding the incident. Board staff, including representatives of personnel and employee relations and the equal employment opportunity office, review the information for recommendation to the Superintendent. These reviews are also conducted for applicants for employment. Any time an employee is found to have falsified an application with respect to criminal background, staff recommends termination. Any time an applicant for a position to drive a vehicle is found with a DUI, that applicant is not recommended for consideration to be employed. If Sanford had actually applied for rehire in 1990, his 1984 and 1988 offenses would have been revealed in the employment screening. The DUI, the "Pee-Wee Herman" offense, and the falsification of his school bus licensure applications would have made him ineligible for further employment under the board's policy. If he had not been terminated, those offenses, and the misdemeanor incidents in 1990 and 1991 would likely not have been discovered by the board, since they predated the notification arrangement the board now has with local law enforcement agencies. SUMMARY OF FINDINGS As an alcoholic and substance abuser, Sanford was handicapped. His drinking and substance abuse interfered with his proper performance of his job duties on occasion. He was referred to the EAP and received assistance; he had a dozen major contacts with the EAP, not including telephone calls and correspondence, from 1986 to 1989. Although he did not receive inpatient treatment until the time of his termination, such treatment was not requested by Sanford, nor is there any evidence that earlier inpatient treatment was recommended by the professionals who were under contract with the EAP and who had worked with Sanford since 1986. John Hawco's termination decision was based on Sanford's employment record and performance at work, rather than on his handicap. Sanford was informed of the decision in August 1989, in a meeting which he attended with his union representative, and later, in writing, when his mother brought him the termination letter. No one, not even Scott Diebler, his most partisan supporter, promised Sanford that he would be rehired. Sanford did not follow Diebler's advice about applying for re- employment. Instead, he contacted Hawco in February 1990, and was told that he would not be rehired by the school board at that time. (Respondent's exhibit #13) Even if he had formally applied for employment, Sanford's prior convictions and falsification of his application would have barred re- employment, according to established school board policy.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a Final Order be entered dismissing Gary Lee Sanford's complaint and petition for relief. DONE AND RECOMMENDED this 19th day of April, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 19th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6332 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1. - 4. Adopted in substance in paragraph 1. 5. - 6. Adopted in substance in paragraph 2. Adopted in substance in paragraphs 3 and 4. Adopted in substance in paragraph 3. Rejected as unnecessary. Adopted by implication in paragraph 10. Adopted in paragraph 7. Rejected as contrary to the weight of evidence. On July 17th he was intoxicated on the job. Adopted in substance in paragraphs 8 and 9. Adopted in substance in part in paragraph 42; otherwise rejected as irrelevant and unnecessary. Adopted in paragraphs 12 and 13. 17. & 18. Adopted in substance in paragraph 13. Adopted in part in paragraph 14; otherwise rejected as unnecessary. Rejected as unnecessary. Adopted in part in paragraph 13; otherwise rejected as unnecessary. & 23. Adopted in paragraph 15. Rejected as unnecessary. The proposed findings are not inconsistent with the fact that Sanford was under the influence at some point on his route. Adopted in part in paragraph 17; otherwise rejected as immaterial and unnecessary. & 27. Rejected as unnecessary. 28. Adopted in part in paragraph 18; otherwise rejected as immaterial. 29.-31. Rejected as immaterial. Adopted in paragraph 18. Adopted in part in paragraph 19, otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 20, otherwise rejected as contrary to the weight of evidence. Adopted in substance in paragraph 21. Adopted by implication in paragraph 21. Adopted in paragraphs 22 and 25. Adopted in paragraph 25. Adopted in substance in paragraph 30. Adopted in substance in paragraphs 24 and 28. Adopted in substance in paragraph 33. Rejected as unnecessary. Rejected as immaterial; see paragraph 42. Adopted in paragraph 33. Adopted in paragraph 34. Rejected as contrary to the weight of evidence (as to Diebler's changing his story). Adopted in substance in paragraph 34. & 49. Adopted in substance in paragraph 35. 50. Adopted in paragraph 33. Respondent's Proposed Findings Adopted in substance in paragraph 1. Adopted in substance in paragraph 2. Rejected as unnecessary. Adopted in paragraph 4. Rejected as unnecessary. Adopted in paragraph 6. - 9. Adopted in paragraph 8. 10.-11. Rejected as unnecessary. 12. & 13. Adopted in paragraph 5. 14.-16. Rejected as unnecessary or cumulative. Adopted in paragraph 7. Adopted in paragraph 11. Adopted in paragraph 13. & 21. Adopted in paragraph 15. Adopted in substance in paragraph 15. Adopted in paragraph 13. & 26. Rejected as unnecessary. Adopted in paragraph 9. Adopted in paragraph 16. Rejected as unnecessary. & 31. Adopted in paragraph 16. 32.-34. Adopted in paragraph 17. 35.-36. Rejected as unnecessary. Adopted in paragraph 18. Adopted in paragraph 19. 39.-41. Adopted in substance in paragraph 20. Adopted in substance in paragraph 21. Rejected as unnecessary. 44.-46. Adopted in substance in paragraph 21. 47. Adopted in paragraph 22. 48.-50. Rejected as unnecessary. 51. & 52. Adopted in paragraph 23. Adopted in paragraph 24. Adopted in part in paragraph 25, otherwise rejected as contrary to the evidence. (He denied being under the influence.) & 56. Adopted in substance in paragraphs 25 and 27. Adopted in paragraph 26. Adopted in paragraph 28. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 32. 62.-65. Adopted in paragraph 34. Adopted in paragraph 38. Adopted by implication in paragraph 41. 68.-72. Rejected as unnecessary. 73.-75. Adopted in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 36. Adopted by implication in paragraph 37. Adopted in paragraph 40. Adopted in paragraph 41. 81.-83 Rejected as unnecessary. 84. Rejected as unnecessary. Further, the hearing officer denied Respondent's request to take official recognition of the weather reports. That denial is based on failure to comply with notice requirement of Section 90.203, F.S. and the unreliability of the report in establishing the fact that Respondent was attempting to establish: that it did not rain in Orlando on a given day. 85.-88. Rejected as unnecessary. 89. Adopted in paragraph 42. 90.-91. Rejected as unnecessary; except that the ultimate fact of the reason for termination is adopted in paragraph 43. COPIES FURNISHED: Tobe Lev, Esquire Post Office Box 2231 Orlando, Florida 32802 Frank C. Kruppenbacher, Esquire 545 Delaney Avenue, Suite 8 Orlando, Florida 32801 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 315 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
