The Issue The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her age, as alleged in her charge of discrimination dated June 6, 1984, and in her petition for relief dated March 6, 1985.
Findings Of Fact Based on the admissions of the parties and on the exhibits received in evidence and the testimony of the witnesses at hearing, I make the following findings of fact: The Petitioner has been employed by the Respondent from July 1, 1980 to the present. She was first employed with the Respondent as a Staff Assistant II following the abolition of the Crimes Compensation Commission by the Legislature, effective June 30, 1980. The crimes compensation program was transferred to the Respondent at that time. As a Staff Assistant, Petitioner's duties included reviewing claims submitted by field investigators. After approximately two months in this position, the Petitioner requested permission to do the actual investigation of claims. The Petitioner's Bureau Chief, Herbert Parker, authorized Petitioner to investigate claims because her duties as a Staff Assistant did not keep her busy full time. Respondent's Monthly Field Representative Reports, maintained by Mr. Parker, reflect that the "Claims Examiners," i.e., Staff Assistants, including the Petitioner and Betty Cureton, completed a combined total of 13 reports in August 1980. In October 1980 these Reports began to break out the investigation work performed by the Petitioner and Ms. Cureton, showing the number of reports they completed as well as those completed by the actual Field Representatives. The Monthly Field Representative Reports show that Petitioner's investigations gradually increased in number over the next two years, so that in the six months from May 1983 through October 1983, she averaged almost 15 reports per month. A Field Representative was expected to produce at least 25 reports per month. In October 1983, Petitioner's position was reclassified from Staff Assistant II to Field Representative, reflecting the continuing transition in the Petitioner's duties from those of a Staff Assistant to the duties of a Field Representative. When her position was reclassified in October 1983, the Petitioner's salary was $1,570.S2 per month. The minimum salary for a Field Representative was $1,139.70 per month and the maximum was $1,635.60 per month. Petitioner's salary was not increased at that time. The reason Petitioner's salary was not increased at that time is that she was already earning over the minimum for the new classification and the Respondent was experiencing budget problems. In response to its budget problems, Respondent had taken a number of corrective measures, including a freeze on promotional pay increases. Within the Division of Worker's Compensation, the freeze was lifted in December 1983 but the Bureau Chiefs within the Division were admonished to be sure their respective units had "rate" and "salary" available before granting any increases. Rate Reports for the Bureau of Crimes Compensation show that that Bureau did not have any available rate from the time of Petitioner's promotion in October 1983 through March l984when she received a salary increase. The Rate Reports reflect a rate deficit occurred in March 1984 equal to the amount of Respondent's and Betty Cureton's combined salary increases. By Waiting until March to award pay increases to Petitioner and Ms. Cureton, the Respondent was better able to project its budget status through the end of the fiscal year and determine that the Division of Worker's Compensation would be able to offset the Bureau's rate deficit. In deciding whether to give promotional increases and, if so, in what amount, the Respondent considers a person's individual qualifications, along with budget considerations. Some employees do not receive any increase at all when they are promoted others have received less than Petitioner's five per cent and some have received more. The class specifications for the class of Field Representative contain the minimum training and experience requirements, which include: "graduation from an accredited four-year college or university and two years of professional experience directly involved in the juvenile or adult criminal justice system." The Petitioner had only two years of college and she did not have any past employment that would have satisfied the requirement for two years of professional experience in the criminal justice system. Respondent obtained a substitution of required training and experience for Petitioner by counting the field investigation work she did between August 1980 and October 1983, while employed as a Staff Assistant. This substitution enabled her to qualify as a Field Representative once the position was reclassified. A similar substitution was obtained for another employee, Ms. Cureton. Petitioner is a very capable efficient employee who has always received outstanding evaluations, receiving a score of thirty-six out of a possible thirty-six evaluative points on the performance of her duties on her performance ratings by her superiors. The Petitioner's age was not a factor in any of the Respondent's personnel decisions affecting the Petitioner's promotion or promotional pay increases.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Geneva Roberts. DONE AND ORDERED this 11th day of December, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 11th day of December, 1985. APPENDIX The following are the specific rulings on each of the proposed findings of fact submitted by the parties. Rulings on Petitioner's proposed findings: Accepted in part and rejected in part. The accepted portions are incorporated in findings proposed by the Respondent. The rejected portions are rejected either as irrelevant details or because they are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Accepted and incorporated in other findings. The portion up to the first comma is accepted. The portion after the first comma is rejected as irrelevant in light of other evidence in the record, especially when note is taken of the fact that a new employee at ten per cent above the minimum was making substantially less than Petitioner. First sentence is accepted in substance. Second sentence is rejected as irrelevant. Rejected because it incorporates irrelevant details and because to the extent it proposes comparisons between Petitioner and Ms. Raker it incorporates opinions, inferences, and conclusions which are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Further, the ultimate conclusion asserted in paragraph 8 of the Petitioner's proposed findings is not supported by the evidence. Rejected as irrelevant and also as misleading in light of other evidence. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The first unnumbered paragraph under the caption SUMMARY OF FACTS is rejected because most of it is not supported by persuasive competent substantial evidence and the remainder is inconsistent with the greater weight of the evidence. The first sentence of the second unnumbered paragraph under the caption SUMMARY OF FACTS is rejected as contrary to the greater weight of the evidence. The last sentence of that paragraph is accepted. Rulings on Respondent's proposed findings: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Most of the first six lines are rejected as constituting summaries of the parties' contentions rather than proposed findings. The substance of lines 7 through 11 is accepted. The last sixteen lines of this paragraph are rejected on the grounds that for the most part they constitute legal argument, conclusions of law, and explication of reasons for making findings of fact, but are not themselves findings of fact. [Some of the material on the last sixteen lines is accepted and incorporated in the Conclusions of Law portion of this Recommended Order.] The substance of this paragraph is accepted, with certain minor corrections and deletions. Accepted. COPIES FURNISHED: Joseph C. Jacobs, Esquire ERVIN, YARN, JACOBS, ODOM & KITCHEN Post Office Drawer 1170 Tallahassee, Florida 32302 Kenneth H. Hart, Jr., Esquire General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue is whether Respondent is guilty of insubordination for the use of excess leave and sleeping in his vehicle during working hours.
Findings Of Fact On or about April 21, 2004, Petitioner hired Respondent as a school custodian. Starting on December 11, 2007, Petitioner transferred Respondent to Toledo Blade Elementary School. One year later, Petitioner transferred Respondent to the Transportation Department, which is the building housing the transportation offices. As a custodian, Respondent is a "classified" employee. He is covered by the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and Petitioner (the contract). Twice on the morning of April 25, 2008, during working hours and not while on a break, Respondent walked from his worksite to his vehicle, climbed into the vehicle, and nodded off to sleep. The first nap lasted for about one hour, and the second nap lasted about one and one-quarter hours. The second nap ended when Respondent's boss and the boss's boss walked out to the vehicle where they found Respondent, who had put the driver's seat down, laid out in the front driver's seat, with the radio on, sound asleep. They woke him and ordered him back to work. Respondent's defenses are: 1) he was not asleep; he was unconscious; and 2) he was suffering from extreme drowsiness due to medications that he was taking following his recovery from a three-month coma into which he had fallen two years earlier. Both of Respondent's defenses are makeshift. According to Webster's online dictionary, "sleep" is the "natural periodic suspension of consciousness during which the powers of the body are restored." (http://www.merriam- webster.com/dictionary/sleep, as found on June 17, 2009) If he had suddenly lost consciousness at the worksite, no one would claim he was sleeping on the job. Instead, without reporting any difficulties to anyone, he walked out to his vehicle, made himself comfortable, and fell asleep. The problem was that his natural period of suspended consciousness coincided with time during which Petitioner was paying him. The requisite restorative effect is inferred. Nor is there any credence to the claim of a medical condition or effect of a medication that would leave Respondent unable to resist falling asleep while on duty. Although ample opportunity existed, Respondent failed, on the day in question, to bring to the attention of his supervisor any medical reason for sleeping on the job, which was exactly what he was doing. Article XXI of the contract authorizes discipline for "just cause." Sleeping while on duty, for over two hours prior to lunch, constitutes insubordination and just cause for discipline. The leave issue is more complicated. Petitioner is on a fiscal year starting July 1. For the entire year, classified, 12-month, hourly employees, such as Respondent, accrue six personal days on July 1. For sick days, these employees accrue one day at the end of July and three advance days. They then accrue a day at the end of each following month through March. Unused sick days rollover to the next year, but unused personal days do not. Personal days count against the sick days. In other words, if an employee has five sick days and six personal days and uses a personal day, he will then have four sick days and five personal days. Employees also earn vacation days. As explained by Petitioner's payroll supervisor, the payroll system facilitated recharacterizations between sick and personal days. However, the system did not incorporate vacation days in the same fashion. Thus, if an employee took off one day, without claiming sick leave, and lacked one day of personal time, the system would dock his pay, even though he might still have had sufficient vacation time to absorb the time that he had taken off. For the 2007-08 school year, Respondent used "personal leave charged to sick" as follows: September 12--8.0 hours; September 24--8.0 hours; December 20--8.0 hours; December 21-- 8.0 hours; January 30--0.5 hours; February 15--8.0 hours; and February 27--7.5 hours. On February 27, Respondent missed the entire day of work. Consistent with acceptable practices, on the next day, he submitted a form entitled, "Certificate of Absence." In it, Respondent requested approval for 8.0 hours of "personal leave charged to sick," rather than one of the other categories, such as sick leave or vacation leave. His supervisor signed the form. When the payroll supervisor checked his balances, she saw that he only had 7.5 hours of personal leave charged to sick, so, on May 2, 2008, Respondent had to sign a form entitled, "Request for Personal/Sick/Vacation Leave in Excess of Earned Leave." This form requested approval for the use of 0.5 hours of personal leave in excess of earned leave. The request was disapproved by the Director of Facilities Services with a signature bearing a date of March 13, 2008. The payroll department's practice was not to deduct personal leave charged as sick against vacation leave, if an employee consumed all of his personal leave charged as sick. On March 14, Respondent again requested 2.5 hours of personal leave charged to sick. His supervisor noted on the form that he "cautioned Tim to make sure he has the time available--Tim told me that he does. 3-14-08." By this time, it is unlikely that Respondent had received a new statement of leave balance reflecting the 0.5 hours that he had been short two weeks earlier. On May 2, 2008, Respondent signed another request for permission to use personal leave in excess of earned leave, and the Director of Facilities denied the request with a signature bearing a date of March 27, 2008. The same process took place again on April 11 for 8.0 hours on April 7. Petitioner notes that this request also violated policy regarding custodial leave on the day immediately after spring break, for which leave requests must be submitted well in advance of the leave sought. Article XVII of the contract requires a special procedure for leave on days immediately preceding and following a school holiday, but the emphasis in testimony was on the importance of adequate custodial staff on such days. However, the purpose of this policy is to address the needs of schools with respect to returning students. Because Respondent was not assigned to a school, nor had he been assigned to one temporarily for returning students, he was not undermining this policy by conforming to general policy, which allowed after-the-fact requests. In any event, as the payroll supervisor testified, it is possible that Respondent still had vacation time each time that Petitioner docked him for requesting personal leave charged as sick when he had already exhausted his personal leave. On these facts, Petitioner does not have just cause to discipline Respondent on the ground of insubordination or any other ground. There is no doubt that Respondent understood the interplay between personal leave charged to sick and sick leave, but there is considerable doubt as to, on the first two occasions on which he overdrew on his balance of personal leave charged to sick that he knew that he was doing so. Additionally, there is a reasonable possibility that he had available vacation leave, against which all of this time could have been charged; absent proof from Petitioner precluding this possibility, the entire dispute is reduced to the level of finding the proper account to debit these relatively few hours of missed work. This does not rise to insubordination, nor does it constitute just cause for discipline. Article XXI of the contract requires progressive discipline, which constitutes a verbal reprimand, written reprimand, suspension with or without pay, and dismissal. The next step in progressive discipline for Respondent is suspension with or without pay, not dismissal.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Sarasota County, Florida, enter a final order dismissing the charge of excessive use of leave and finding Respondent guilty of the charge of sleeping while on duty and suspending him, without pay, for five working days. DONE AND ENTERED this 18th day of June, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2009. COPIES FURNISHED: Hunter W. Carroll, Esquire Matthews, Eastmoore, Hardy Crauwels & Garcia, P.A. 1777 Main Street, Suite 500 Sarasota, Florida 34236 Lisa J. Kleinberg, Esquire Law Offices of Kleinberg, Ingram & Murphy, P.L. 2189 Ringling Boulevard Sarasota, Florida 34237 Mrs. Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Joe Francis, Orvil Ownby, and Roscoe Cleavenger are all permanent Career Service Commission employees with appeal rights to the Career Service Commission. The appellants each filed a timely appeal of their reduction in pay by the Department of Transportation with the Career Service Commission. The parties stipulated to the following facts: The reduction of the pay of the appellants was not a disciplinary action. Under protest, some employees have paid back money allegedly overpaid, and other employees are in the process of paying back money allegedly overpaid. The performance of all the affected employees was rated as satisfactory or above, and no basis existed for any reduction in pay due to unsatisfactory performance. All the affected employees initially had their pay reduced to the "current" maximum salary. Thereafter, those employees who did not elect to pay the money back in a lump sum had their pay reduced by a fixed amount to repay monies allegedly overpaid, or alternatively, the employees have made similar monthly payments by personal check to the State under protest. Exhibits A through E were admitted into the record together with the entire personnel file of each appellant. In 1972, Jay McGlon, then State Personnel Director, authorized employees in the classes of Maintenance Foreman II to be changed from pay class 16 to pay class 17. Similar authorization was given to change Sign Erector Foreman from pay class 16 to pay class 17. Pay class 17 had a pay range of $544.62 to $744.72. This adjustment in pay class was effective November 16, 1972, pursuant to McGlon's letter of authorization. See Exhibit A. In the instant case, the affected employees were being paid a geographical pay differential. When their pay was increased by the difference between the minimum salary of the class of which they had been a member and the minimum salary of the class to which they were raised, their adjusted pay, together with the geographical pay differential, exceeded the maximum pay range of the new class. On October 30, 1975, Conley Kennison, McGlon's successor as State Personnel Director, wrote David Ferguson, personnel officer of the Department of Transportation. This letter was in response to Ferguson's letter of May 23, 1975, requesting retroactive approval of a $16.00 biweekly pay adjustment, effective November 16, 1972, for all Dade County employees in the classes of Highway Maintenance Foreman II and Sign Erector Foreman II. In this letter, Kennison cites that the pay increases were not in accordance with the final implementation instructions. However, from the text of this letter, it is unclear whether the instructions referred to relate to the salary increases or the geographical pay differentials discussed in the letter. Kennison, in this letter, denies the request made by Ferguson and directs that steps be initiated to recover the overpayments to employees. Two weeks were given for the Department of Transportation to inform Kennison the method by which the overpayments would be recovered and the amounts owed by individual employees to which overpayment had allegedly been made. It was determined that Cleavenger owed $971.74, Francis owed $821.30, and Ownby $600.01. The Department of Transportation reduced the pay of the affected employees by $16.00 per pay period in order to recover the amount of the overpayment. This reduction occurred effective the first pay period following December 5, 1975.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Career Service Commission rescind the action taken by the agency, and that all monies collected from the affected employees be returned to them. DONE and ORDERED this 17th day of January, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip S. Bennett, Esquire Mrs. Dorothy Roberts Department of Transportation Appeals Coordinator Haydon Burns Building Career Service Commission Tallahassee, Florida 32304 530 Carlton Building Tallahassee, Florida 32304 Ronald A. Silver, Esquire 2020 Northeast 163rd Street, S204 Joe Francis North Miami Beach, Florida 33162 3830 Day Avenue Coral Gables, Florida Rosco Homer Cleavenger 1901 N.W. 107th Street Miami, Florida 33167
The Issue Whether Respondent, American Pioneer Title Insurance Company, discriminated against Petitioner, Dennise Raines, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is an African-American female who worked for Respondent from 1999 until October 11, 2002, when her employment was terminated. Respondent owns and operates a title insurance company and is subject to Chapter 760, Florida Statutes (2002). Petitioner was first employed as a data entry operator. In January 2001, she was promoted to a research position and received a pay increase. After an initial period of positive work performance and interaction with co-employees, Petitioner's attitude changed. Her work and relationships with co-workers deteriorated. As a result, in July 2002, Ms. Kathy Bowles, who had hired and supervised Petitioner and who had recommended Petitioner's advancement, demoted Petitioner due to Petitioner's negative behavior toward co-employees which included addressing them with profanity and demonstrated disrespect toward her supervisors. Although Petitioner was demoted, her pay remained the same. The July 2002 demotion is memorialized by an Employee Performance Enhancement Plan (Respondent's Exhibit 6). Subsequent to her demotion, Petitioner requested that her work hours be adjusted to allow her to attend classes. This request was approved, and Petitioner's work hours were changed. Thereafter, Petitioner's attendance and punctuality suffered. In September 2002, Petitioner was absent or late more than one-half of the work days; of these days, there were seven instances of tardiness. Petitioner was counseled regarding tardiness on September 27, 2002. Similarly-situated Caucasian employees, Mss. Beverly Dease and Linda Shapiro, had only been late for work one time between them for the entire year. Petitioner was late for work twice during the first five work days of October. Following the second tardiness, on October 7, 2002, Ms. Bowles counseled Petitioner that an additional tardiness would result in her being discharged. On the third work day following counseling, Petitioner was absent from work. Following this absence, Petitioner was discharged for her attitude, tardiness, and absenteeism. She was replaced by a Hispanic female. Respondent has an extensive, well-conceived, Equal Employment Opportunity policy which prohibits unlawful discrimination. This policy is posted in the workplace and is distributed to every employee as a part of the Employee Handbook at the time he or she is employed. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Although she acknowledged awareness of the policy, Petitioner did not avail herself of it. Ms. Bowles, Petitioner's supervisor, hired, promoted and then, demoted Petitioner. No evidence received supports Petitioner's contention that Ms. Bowles or any other employee of Respondent unlawfully discriminated against Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 15th day of September, 2005, in Tallahassee, Leon County, Florida. S 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 15th day of September, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Dennise Raines 1165 West 16th Street, Apartment B Sanford, Florida 32771 Andrew G. Wedmore, Esquire Jill Schwartz & Associates 180 North Park Avenue, Suite 200 Winter Park, Florida 32789-7401 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The only remaining count, Count I, attacks Rules 11B-14.01 and 11B-14.02, Florida Administrative Code. The attack is twofold: (1) the agency's rule is not applicable to the Petitioner; and (2) the rule is an invalid exercise of validly delegated legislative authority.
Findings Of Fact Petitioner is a local school board and political subdivision of the State employing school security officers who meet the definition of Chapter 943, Florida Statutes, of law enforcement officers. Respondent is the Department of Criminal Law Enforcement, Police Standards and Training Commission which has adopted Rules 11B-14.01 and 11B- 14.02, Florida Administrative Code, following the procedures required by law, and applies them to the Petitioner and its law enforcement employees. Those rules substantially affect the Petitioner by mandating, in part, the salary which it must pay its school security officers. The Petitioner has standing to challenge the rules in question under Section 120.56, Florida Statutes.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher, for alleged violations of various School Board rules and policies, as outlined in the Superintendent’s letter to Respondent, dated June 15, 2009.
Findings Of Fact Petitioner is the School Board of Sarasota County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools within Sarasota County, in accordance with Part II, Chapter 1001, Florida Statutes (2009). The School is a middle school operated by Petitioner. Petitioner employed Respondent, Brian Berry, as a teacher at the School for several years. Respondent taught students with ESE designation. Respondent is an “instructional employee” under the Instructional Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association (“Union”), and Petitioner (July 1, 2006 – June 30, 2009, for the 2008-2009 year)(the “Collective Bargaining Agreement”). Article XXV of the Collective Bargaining Agreement governs disciplinary actions against teachers, including Respondent. The Collective Bargaining Agreement requires there to be just cause for any discipline. Normally, the following progressive discipline steps are administered: (1) verbal reprimand; (2) written reprimand; (3) suspension and, (4) termination. Following progressive discipline is not required “in cases that constitute a real immediate danger to the district or other flagrant violations.” During the 2008-2009 school year, Respondent’s classroom was one of four classrooms arranged in a quadrant fashion around a center internal office that connects the four classrooms to each other. Respondent’s room was in the southwest quadrant. Holmes had the room in the northwest quadrant. Brooks had the room in the southeast quadrant. Like Respondent, Holmes and Brooks taught ESE students. Brooks and Respondent shared a paraprofessional, Collins. Bazenas became the School’s principal in April 2006, and has been its principal since that time. Before resorting to the progressive discipline system, School administration routinely counsel employees on an informal basis when there is a concern. Generally, the counseling occurs as a conversation between the administrator and instructor. This informal counseling is non-punitive. Administrators also use Memorandums of Instruction to clarify expectations. A Memorandum of Instruction is also non-punitive in nature; however, failing to abide by the expectation contained in a Memorandum of Instruction could warrant discipline. Respondent’s prior disciplinary history includes: Verbal Reprimand, dated December 17, 2007, for failing to monitor students. Verbal Reprimand, dated January 19, 2009, for failing to submit student attendance on 39 occasions during the 2008- 2009 school year through January 6, 2009. Written Reprimand, dated January 20, 2009, for failing to follow three separate Memorandums of Instruction concerning posting student attendance and for failing to report student attendance on January 7, 2009. Individual Education Plans During the 2008-2009 school year, Respondent was the case manager responsible for drafting Individual Education Plans (“IEPs”) for several of his students. Under federal law, IEPs must be updated at least once each year. Failing to update an IEP by the time the prior IEP becomes out of date means such IEP is out of compliance. This jeopardizes ESE funding, which comes from state and federal sources. During the 2008-2009 school year, there was an ESE liaison (Cindy Lowery) at the School who routinely and timely reminded case managers, including Respondent, of their IEP responsibilities, important deadlines, and steps necessary to be taken by the case manager. At the beginning of the school year, Lowery explained the procedures to case managers, including Respondent. Respondent received numerous reminders prior to the expiration of each IEP for which he was responsible. The expectations relating to IEP completion were clear and known to case managers, including Respondent, at all relevant times. At all times during the 2008-2009 school year prior to his being placed on administrative leave on March 17, 2009, Respondent had the ability to complete in a timely manner each IEP for which he was responsible. He also had access to all materials and assistance necessary to timely complete each of the IEPs. During school year 2008-2009, Respondent was the case manager and responsible for the IEPs of students A.M. (due 11/27/08; completed 12/1/08); J.G. (due 1/17/09; completed 2/25/09); U.S. (due 1/17/09; completed 2/25/09); J.C. (due 2/20/09; completed 2/25/09); N.C. (due 3/3/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009); B.B. (due 3/11/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009). Reporting Attendance Teachers are required to take classroom attendance each period and timely post that attendance into the School’s computer program that tracks attendance. This expectation is contained in the School’s staff handbook, which is developed and reviewed annually by a shared-decision making team, composed of administrators, teachers, and community members. Reporting attendance each period is a safety and security matter. Reporting attendance also assists with accountability for funding purposes. During the 2008-2009 school year prior to being placed on administrative leave on March 17, 2009, Respondent failed to report attendance in at least one period on: August 20, 21, 25, 26, 27, 29; September 3, 4, 9 - 12, 15, 16, 22, 26, 30; October 1, 3, 7 - 9, 15, 16, 22, 23, 28, 29; November 6, 7, 12, 18, 20, 21, 25; December 4, 5, 10; January 6, 7; February 19, 24; and March 3, 4, 10, 13, and 16. In all but six of those dates, Respondent failed to report attendance for multiple periods. On October 20, 2008, November 24, 2008, and January 7, 2009, administrators at the School provided Respondent with Memorandums of Instruction reminding Respondent of the need to submit attendance electronically each period. FCAT Proctoring On March 10 and 11, 2009, the FCAT was administered at the School. Respondent was assigned to proctor students who were permitted testing accommodations. Some permitted accommodations included extended testing time and having proctors read questions. Testing of these students occurred in the School’s media center. Another ESE teacher, Aisha Holmes, was also assigned to proctor similar students. Proctors were instructed that they needed to sign-in and sign-out upon entering and leaving the media center; that they could not engage in personal reading; and that they needed to actively supervise the students at all times. A preponderance of evidence supports the finding that Respondent engaged in the following activities contrary to his duties as proctor: Over the two-day proctoring session, Respondent failed to sign-in and sign-out every time that he took a break. Respondent engaged in personal reading and other non-proctoring activities when he was required to be actively proctoring the FCAT. Respondent stood over student S.L.’s shoulder for a time period exceeding two minutes. While Respondent contends that he was trying to determine if S.L. had finished, S.L. had not finished. Respondent’s actions were intimidating to S.L. On the second testing day, Respondent fell asleep on a couch in the media center for a period of time when he should have been actively proctoring. Respondent snored, causing a disturbance to the students engaged in testing activities. While the length of time Respondent slept was in dispute, the evidence demonstrates that it was considerably longer than a brief moment as advanced by Respondent. On the second day of testing, a student spilled juice on that student’s reference sheet. Respondent placed the reference sheet in the microwave but did not monitor the drying process. The microwave scorched the reference sheet, resulting in a burnt smell invading the testing area and causing another disturbance to the students engaged in testing activities. Use of Video with No Learning Objective in Place In February 2009, Respondent showed the movie “Happy Feet” to his class. He concedes that he had no learning objective in mind in showing this video. Although Respondent explained that in his opinion, no learning could be accomplished that day due to the death of a co-teacher’s fiancé, Respondent conceded that he requested no assistance in addressing this situation despite such assistance being available to him. Lesson Plans Teachers are required to prepare lesson plans at least one week in advance. Teachers are also required to have the lesson plan on their desk and available for review. The lesson plan expectations are contained in the School’s staff handbook. The lesson plans are the guiding document for instruction, which requires teachers to give forethought as to the content of their lessons. It is used by teachers to focus their lessons, by administrators to ensure content aligns with teaching objectives, and by substitutes in the absence of the teacher. It is undisputed that the School’s administration repeatedly counseled Respondent to create and have lesson plans available. Respondent failed to have lesson plans completed and available for the week of October 6, November 17, and December 15, 2008, and January 5, January 20 and February 2, 2009. February 3, 2009 Weingarten Hearing On February 3, 2009, Bazenas and Respondent met in a formal, noticed meeting to discuss Respondent’s failure to complete IEPs for Students J.G. and U.S. That meeting also addressed Respondent’s continued failure to comply with school policy on maintaining lesson plans. It is undisputed that Respondent failed to timely complete the IEPs for students J.G. and U.S., and that he failed to comply with the lesson plan requirement. March 16, 2009 Weingarten Hearing On the afternoon of Monday, March 16, 2009, Bazenas and Respondent and others met in a formal, noticed meeting to discuss: (1) Respondent’s failure to complete IEPs for students N.C. and B.B. prior to their IEPs becoming out of compliance; (2) the FCAT proctoring matters; (3) use of the video “Happy Feet” with no learning objective; (4) continued failure to comply with the lesson plan expectation; (5) tardiness on March 9, and March 10, 2009; and (6) use of the girls’ restroom.1 It is undisputed that Respondent failed to complete the IEPs for students N.C. and B.B. in a timely manner, and that he used the video “Happy Feet” with no learning objective in place. During the meeting, Bazenas presented Respondent with the summary of Holmes’ observations of Respondent’s conduct while proctoring the FCAT. Respondent conceded that he was inattentive at times during FCAT proctoring and did fall asleep for some period of time during the FCAT, although he disputes it was for 45 minutes. March 17, 2009, Confrontation On the morning of Tuesday, March 17, 2009, Respondent entered Holmes’ classroom to “discuss” Holmes’ summary of her observations of Respondent during the FCAT. A student, whom Holmes was tutoring, was present in Holmes’ room at the time. Holmes was uncomfortable with Respondent’s insistence on discussing the FCAT matter at that time in front of the student. Holmes advised Respondent that she would talk to him later. Respondent, however, persisted in continuing his challenge to Holmes’ FCAT proctoring observations in front of the student. At that point, Bazenas entered Holmes’s room. Bazenas observed that the situation was “tense” and that Holmes was backed into a corner of the room. Bazenas also observed that the student that was present looked very uncomfortable. At that point, Bazenas, in a reasonable voice, requested that Respondent return to his own classroom to supervise his students. Respondent immediately became upset and began yelling at Bazenas, telling Bazenas not to interrupt him. Respondent approached him and pointed his finger in Bazenas’ face. At that time, Collins was in Brooks’ room. Collins heard shouting coming from the direction of Holmes’ room. Collins proceeded into the center office of the quad. She observed Respondent shouting at Bazenas that he was a “liar” and that Respondent would see Bazenas “in court.” Collins did not hear Bazenas raise his voice. Collins was fearful of Respondent; she had never seen Respondent act in that way. She also testified that Bazenas looked fearful of Respondent. Respondent then proceeded into his classroom and Bazenas followed Respondent into the classroom. He put himself between Respondent and his students, permitting Collins to remove the students from Respondent’s classroom, taking them into Brooks’ classroom. Respondent continued with his emotional outburst during this time. When Bazenas requested that Respondent leave campus immediately, Respondent threatened Bazenas. Bazenas subjectively believed that Respondent’s agitated behavior and his statement to be a threat of violence. Respondent also directed inappropriate comments to his students about Bazenas during his outburst. As Collins brought Respondent’s students into Brooks’ classroom, Collins was shaking and looked very fearful. After all of Respondent’s students were in Brooks’ classroom, Brooks locked the doors. Locking the doors is an unusual occurrence; however, Respondent did leave campus voluntarily. Respondent was immediately placed on administrative leave. Shortly thereafter, a police officer went to Respondent’s house to advise Respondent to stay away from campus. Respondent complied with the request. Respondent’s outburst on March 17, 2009, constituted a real and immediate threat to the School administration, teachers and students and was a flagrant violation of school policies and the State Principles of Professional Conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating the employment of Respondent from the date Respondent was placed on unpaid leave of absence. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
The Issue The issue in this case, as stipulated by the parties, is whether Respondent violated section 112.313(6), Florida Statutes (2006),1/ by drafting a legal opinion that justified a one-percent raise in salary for herself and others without the need for approval from the Hillsborough Board of County Commissioners.
Findings Of Fact At all times material to this action, Respondent served as the Hillsborough County attorney. Respondent was hired in August 2004, by Pat Bean, then-Hillsborough County administrator. Initially, Respondent reported to the county administrator, who served as Respondent's supervisor. However, shortly after Respondent was hired, a newly approved Hillsborough County Charter took effect and changed the organizational structure by taking the county attorney position out from under the supervision of the county administrator. Under the new county charter, Respondent's line of reporting was directly to the HBCC, which served as her supervisor. Respondent's employment agreement with Hillsborough County (Agreement) obligated her to perform the functions and duties attendant to the position of Hillsborough County attorney. The Agreement specified that Respondent "shall devote all of her professional or business time, attention and energies to Hillsborough legal work[.]" Respondent generally described the scope of her duties as overseeing the prosecution and defense of all actions related to Hillsborough County, rendering legal opinions and advising administrative departments on issues that were brought to the Office of the County Attorney (Office), and supervising the attorneys and staff within the Office. The administrative business of the Office was managed by a non-lawyer office administrator, Beth Novak. Respondent directly supervised Ms. Novak, who, in turn, supervised the administrative support staff and handled such administrative tasks as preparing draft budgets for Respondent's approval and addressing the Office's computer technology needs. The Office was divided functionally into separate legal sections covering different practice areas, such as land use, real estate, commercial transactions, labor and employment/human resources, and litigation. Each legal section had a managing attorney who supervised several attorneys within the section. Although Respondent generally supervised these sections, she described the sections as largely functioning independently, such that she often did not get involved in the matters they handled. Jennie Tarr was the managing attorney for the labor and employment/human resources legal section, which handled all non-litigation employment-related issues. For example, the director of employee benefits in the county's human resources department would bring issues related to employee benefits to Jennie Tarr; if a legal opinion were needed on an employee benefit issue, it would have been requested from Jennie Tarr. Respondent sometimes would receive requests for legal opinions herself. On occasion, she would issue the legal opinion herself. Otherwise, she would delegate the work to a subordinate lawyer by sending an email to someone in the appropriate legal section and asking them to respond directly to the requestor. In 2006, County Administrator Bean initiated a budget efficiency challenge to department directors, asking them to submit budget efficiency proposals for 2006 and 2007 that would reduce departmental costs without reducing services. This was not a completely new effort; department directors had been asked for years to find ways to cut costs in their budget proposals, without great success. Therefore, in 2006, discussions were held between Pat Bean, the deputy county administrator, Wally Hill, and the budget director, Eric Johnson, to identify options for rewarding department directors who submitted budget proposals that met the efficiency challenge. They wanted to provide a reward that would also serve as an incentive for department directors who came up short to do a better job cutting their budgets in the future. Hillsborough County had three different employee award programs. One was the extra mile award program. The recipient of an award under this program would be issued a certificate with no monetary value, to simply recognize the employee's efforts in going the "extra mile." All Hillsborough County employees were eligible for this non-financial award, if nominated. Typically, the deputy county administrator, who functioned as the county's chief operating officer, would identify extra mile awardees and coordinate with staff in the human resources department to have the certificates prepared. Ms. Bean, Mr. Hill, and Mr. Johnson decided to use this award program to recognize all department directors who submitted qualifying budget efficiency proposals. In addition, Ms. Bean, Mr. Hill, and Mr. Johnson discussed whether they also could use other award options that offered a financial reward and incentive. First, they considered whether they could make use of the productivity award program. Under this award program, employees who made suggestions that resulted in cost savings could be nominated for a one-time cash award, with the decisions on award issuance made by an executive committee. The amount of this cash award was measured by a percentage of the cost savings of the employee's suggestion, up to a cap. In October 2006, Mr. Hill sought approval to issue productivity awards to department directors who submitted qualifying budget efficiency proposals. However, his request was denied, because department directors were not eligible for productivity awards; that award program was only available to lower-level employees, and was not available to anyone at the department-director level or above. The only remaining option for providing a financial reward and incentive in connection with the efficiency budget proposals was the county's third award program, the special one-percent salary increase award. This award program was initiated at the suggestion of a former county administrator who recognized that reward systems were in place for the county's classified employees under the control of the Civil Service Board, but that some device was needed to reward unclassified county employees for superior or outstanding performance. Ms. Bean and Mr. Hill believed that the special one-percent salary award could be used to reward department directors who submitted qualifying budget efficiency proposals with three exceptions: the one-percent salary increase award could not be given to department directors who were already earning the maximum allowable salary level for their positions, because their salaries could not be increased; the one-percent salary increase also could not be given to former department directors who had left their county jobs after submitting qualifying budget proposals, because they were not earning a salary that could be increased; and the one-percent salary increase could not be given to the three department directors who were contract employees under contract with the HBCC, because it was believed that they were not eligible. These three contract department directors were Ms. Bean, Respondent, and Rick Garrity, who was the director of the county's Environmental Protection Commission. They decided, in addition to the extra mile awards, to go ahead with the one-percent salary increase award for all department directors who submitted qualifying budget efficiency proposals and who could receive the salary increase. For those directors falling in one of the three exception categories, they would just receive extra mile awards. Extra mile award certificates were prepared for all department directors submitting qualifying budget efficiency proposals and were presented at a January 25, 2007, Board meeting. The extra mile award recipients were also announced and honored at a staff budget-kickoff meeting held on February 1, 2007. At the February 1 budget kickoff, the honored department directors were given one of two different memos acknowledging their award(s). For those department directors just receiving an extra mile award certificate, such as Respondent, their memo acknowledged their budget efficiency proposal for which they were being given an extra mile award certificate. For those department directors who were also considered eligible for a one-percent salary increase award, their memo acknowledged their budget efficiency proposal for which they were being given an extra mile award certificate, and also, for which they would be receiving a one-percent salary increase. As stated in the memo, the one-percent salary increase was awarded retroactive to January 7, 2007. Respondent did not attend the budget kickoff. However, she had received her extra mile award certificate, dated January 25, 2007, and she also received a February 1, 2007, memo, acknowledging her extra mile award (but not a one-percent salary increase award), based on her department's qualifying budget efficiency proposal. After the meeting, the Office administrator, Ms. Novak, sent a curious email to Respondent, stating: At the budget kickoff meeting this morning, Wally handed out "Extra Mile Award" memos to some of the Department Directors, Rick Garrity, and you for your work during the last budget cycle on efficiency measures. Wally announced that each of you would be given a $1,000 award! Congratulations! No explanation was given for this message; Ms. Novak testified that she did not recall these events or the email. The information in the email was, at best, garbled, starting with the inexplicable reference to a $1,000 cash award. In addition, Ms. Novak apparently had not been aware that there were two different versions of memos. The memo with a subject line called "Extra Mile Award," described in the email, was the version given to Respondent and others falling in one of the three exception categories, and the contents of that memo make clear that the recipient is only receiving an extra mile award certificate. The subject line of the other memo version was "Recognition of efficiency." This version of the memo was given to department directors who also received the special one-percent salary increase award, as the contents of that different memo makes clear. Mr. Hill did not recall making any announcement of the financial awards. If any such announcement was made, it would stand to reason that the announcement would have tracked the contents of the two different February 1, 2007, memos--that those department directors receiving an "extra mile award" memo were recipients of the extra mile award only, and that those department directors receiving a "recognition of efficiency" memo were recipients of both the extra mile award and a one-percent salary increase award. Respondent testified that she spoke with Ms. Novak about Ms. Novak's email "later that afternoon" when Respondent questioned Ms. Novak about whether Respondent could really receive a financial award. Respondent elaborated as follows: I was concerned about this being the Productivity Award. And she said that it wasn't the Productivity Award. And I was really very skeptical about receiving an award. And she said, "oh yeah, you have that provision in your contract." You know, "let me get it for you." And she brought my contract into my office. And you know, it was turned to the benefit section of it. And that's the section that she referred to. Approximately 90 minutes after Ms. Novak's email to Respondent, Respondent sent an email to Ms. Bean and Mr. Hill, in which she stated as follows: After attending the Budget kick off meeting this morning Beth [Novak] reminded me that a provision in my contract allows me to receive the award . . . see page 10, Section E. which states: Hillsborough agrees to make available to the Attorney such other benefits that are not specifically covered by this agreement as they now exist, and may be amended from time to time, for other employees of Hillsborough. . . . Thank you for the award. Renee Francis Lee, County Attorney Contrary to Respondent's testimony, one of the few things that Ms. Novak recalled clearly about the events in this time period was that it was Respondent who asked Ms. Novak to get Respondent's contract and that Ms. Novak was not asked her opinion on that contract, nor did she recall offering her opinion. Ms. Novak's version of the events is accepted as more credible than Respondent's version. It is not credible that Ms. Novak, a non-lawyer, would spontaneously offer advice to Respondent regarding the interpretation of Respondent's Agreement, much less that a "very skeptical" Respondent would be immediately convinced by this non-lawyer's legal opinion. Instead, the implication of the credible testimony is that Respondent wanted to attribute the suggestion and rationale that she could accept a financial award to someone other than herself. Despite the fact that Respondent's email to Ms. Bean and Mr. Hill did not explicitly refer to the salary increase award, it was interpreted by Ms. Bean and Mr. Hill to mean that Respondent believed she was eligible for the one-percent salary increase award. Up to that point, Mr. Hill and Ms. Bean believed that Respondent was not eligible because of her Agreement with the HBCC. Likewise, they believed that neither Ms. Bean nor Dr. Garrity, the other two department directors under contract with the HBCC, were eligible. Based on Respondent's email suggesting otherwise, Ms. Bean had the matter referred to the human resources department to resolve. According to Respondent, the next day (February 2, 2007), she received a telephone call from Christina Swanson asking her for an opinion on the eligibility of Respondent, Ms. Bean, and Dr. Garrity for the one-percent salary award. Ms. Swanson was the division director of employee benefits in the human resources department. She was acting in place of the department director in following up on this matter.2/ Ms. Swanson had been contacted by Debbie Dahma, an employee in the executive compensation division of the human resources department. Ms. Dahma told Ms. Swanson that Respondent had requested a one-percent salary increase award and asked Ms. Swanson to find out if Respondent was eligible. Because Respondent was the one who requested the award, Ms. Swanson thought it was appropriate to call Respondent directly. Ms. Swanson told Respondent that she understood that Respondent had requested to be eligible for the one-percent salary increase and asked her for a written legal opinion. Ms. Swanson explained that she asked for a legal opinion, in writing, "knowing the sensitivity of the issue[.]" She also explained that she did not ask Jenny Tarr for this legal opinion because she usually brought "benefit" issues to Ms. Tarr, whereas this was a salary issue involving a specific employee's contract. Ms. Swanson said that she asked Respondent to give her a written legal opinion addressing whether Respondent, Ms. Bean, and Dr. Garrity--the three department directors under contract with the HBCC--were eligible for the one-percent salary increase award. Ms. Swanson did not give Respondent any deadline by which, or time frame within which, she wanted or needed the legal opinion. Respondent testified that she was busy on something else that day, February 2, 2007, and as a result, this matter sat on her desk all day. At the end of the day, she decided to just handle it herself rather than to delegate it to Jenny Tarr or some other lawyer, because "the contract was right there." In addition, Respondent testified that "I think, you know, for some reason I feel like I remember that they were in a rush for something or somebody was going on vacation. Something was happening that they needed it or wanted it right away. I had not gotten to it all day, so I stayed actually and wrote the opinion myself." Respondent's feeling that she may have been asked to expedite the legal opinion is rejected as not credible and contradicted by Ms. Swanson's clear recollection that no time frame was given.3/ After admittedly not working on this matter all day, Respondent issued her legal opinion by email sent to Ms. Swanson, at 5:29 p.m., on February 2, 2007. The legal opinion, in its entirety provided: Christina, You have requested that I review the contracts of three employees (Garrity, Bean and Lee) to determine if they are eligible to receive the 1% salary award granted to the management staff who found efficiencies in their budget which contributed to approximately $17 million savings in the 2006-2007 budget. I do not have access to Garrity's contract, but will be happy to review it when you forward it to me. As it relates to the Bean contract, language supporting the award can be found in Section 15, entitled Other Terms and Conditions of Employment, subsection B. reads [sic] as follows: All provisions of the Hillsborough County Charter and Code, and regulations and rules of the County relating to vacation and sick leave, retirement and pension system contributions, holidays, and other benefits and working conditions as they now exist or hereafter may be amended, also shall apply to Employee as they would to other managerial employees of the County, in addition to said benefits enumerated specifically for the benefit of the Employee except as herein provided. As it relates to the Lee contract, language supporting the award can be found in Section XVI, entitled General Provisions, subsection E. which reads as follows: Hillsborough agrees to make available to the Attorney such other benefits that are not specifically covered by this agreement as they now exist, and may be amended from time to time, for other employees of Hillsborough. Please let me know if you have any other questions. Renee Francis Lee, County Attorney [address, phone, email address] Although Respondent's legal opinion acknowledged that her task was to review the contracts, the legal opinion did not identify other provisions of the contracts that could bear on the framed question of eligibility "to receive the one-percent salary award." For example, in reviewing Respondent's Agreement, well before one finds the "General Provisions" section quoted, in part, in Respondent's opinion, one would find Section III entitled, "Compensation." This section provided in pertinent part: Hillsborough agrees to pay the Attorney for services rendered pursuant hereto an annual base salary of One Hundred Seventy Thousand Dollars ($170,000), payable in installments at the same time that other employees of Hillsborough are paid. Hillsborough shall consider additional salary or benefit increases as it may deem appropriate no later than 60 days after completion of the Attorney's annual performance evaluation[.] Respondent's legal opinion does not discuss the Compensation section or why she concluded, if she did, that this section's procedure for considering "additional salary or benefit increases" was deemed not applicable to a "1% salary award." Similarly, Respondent's legal opinion does not discuss or assess the applicability of the "Salary" section in Ms. Bean's contract, which is similar to the "Compensation" section in Respondent's Agreement. In her legal opinion, Respondent represents that she has quoted Section XVI, subsection E, of her Agreement in its entirety by stating that the provision "reads as follows[.]" Contrary to that representation, Respondent only selectively quoted from the cited subsection, omitting the following sentence that comes after the sentence quoted in the legal opinion: These benefits will include, but not be limited to cafeteria plan options and contributions to the Florida Retirement System, holidays, and any other benefits for specified sick leave accrual as are provided for Hillsborough employees. The omitted language would have reasonably suggested analysis, or at least consideration of, the legal principles of contract interpretation set forth in Florida cases by which the meaning of a general term (such as "but not be limited to") is determined by reference to the specific terms with which it is grouped.4/ Application of this sort of analysis could reasonably lead one to conclude that this subsection has application to employee benefits provided across-the-board to all county employees by virtue of their status as county employees, because that appears to be the nature of the specific benefits mentioned. Respondent's legal opinion, by selectively quoting from the subsection of her Agreement that she chose to address, omitted the legal analysis that would follow from the omitted contract language. Respondent's legal opinion separately sets forth certain language from Ms. Bean's contract and from Respondent's Agreement, without any discussion or analysis of the significance of differences in the quoted language. For example, the provision relied on to support a one-percent salary award to Ms. Bean refers to benefits "as they would [apply] to other managerial employees of the County." In contrast, the quoted language from Respondent's Agreement refers to benefits "for other employees of Hillsborough County." Respondent's legal opinion does not discuss the significance of this difference, despite the fact that the issue as framed in the legal opinion is the eligibility for a one-percent salary award granted to "management staff" in connection with their budget efficiency proposals. Any analysis of the different contract terms could have led Respondent to conclude that this award was only available to managerial employees, and not to all employees of the county. In this regard, Respondent's framing of the issue is itself inconsistent with the facts, which were that this one-percent salary increase award was only available to certain managerial employees, i.e., those who served as department directors. For example, Ms. Novak, the Office administrator, was a managerial employee, but she was not the department director. So too, the managing attorneys of each of the Office's legal sections were managerial employees, but not department directors. Therefore, had Respondent assessed the significance of the "managerial employees" language in Ms. Bean's contract, she might have concluded that this award was not available to all other managerial employees of the county.5/ Respondent's legal opinion, on its face, appears to acknowledge the nature of the award at issue, i.e., that it is the special one-percent salary increase award. However, Respondent testified that she misunderstood the nature of the award she was being asked to opine on and that her confusion was caused, in part, by Ms. Swanson reading to her a description of a one-time cash award program that was not a salary increase. Respondent's testimony was not credible and was inconsistent with other testimony of both Ms. Swanson and Respondent, herself. Respondent testified that she believed the award was a $1,000 one-time cash award. While this testimony would be consistent with Ms. Novak's misstatement in her email, Respondent also testified that she was concerned that the award was a productivity award and that she pointedly asked Ms. Novak and was reassured that it was not a productivity award. There were only two types of financial awards--if the award was not a productivity award, then it had to be a special one-percent salary increase award. Respondent's testimony that she did not understand that she was addressing a one-percent salary increase award is belied by her use of the phrase "1% salary award" in the legal opinion and by her own expressed certainty that this was not a productivity award (which would have been the only type of award providing a one-time cash payment). Respondent also attempted to blame Ms. Swanson for the confusion and uncertainty about the nature of the award on which she opined. Respondent testified that Ms. Swanson did not appear to know very much about the award at issue. Inconsistently, Respondent also testified that Ms. Swanson actually read to her a description of the award from the consultant's study that created the award program, which is how Respondent was led to believe it was a one-time cash payment, with caps. Ms. Swanson denied reading from the consultant's study, testifying credibly that she did not have that study at the time. If Respondent was actually confused or unclear about the facts, it was incumbent on her, in the proper performance of her professional duties, to make inquiry so as to be clear about the facts on which she offered a legal opinion. That is a very basic obligation of any lawyer asked to give a legal opinion to a client.6/ Yet Respondent admitted that she made no such inquiries. Had Respondent asked Ms. Swanson to direct her to the person with information about the award, Respondent would have been directed to Ms. Bean, Mr. Hill, and/or Mr. Johnson, who could have explained their failure to gain approval to use the productivity award program and that the financial award at issue was a special one-percent salary increase award that would result in a one-percent salary raise to the recipients. Had Respondent inquired, she could have been given the "recognition of efficiency" February 1, 2007, memo provided to other department directors, which specifically described the award. Respondent attempted to justify her failure to make these inquiries by testifying to her belief that issuance of her opinion was urgently needed--testimony previously found not credible. However, if Respondent truly was confused about the facts on which she was opining on February 2, 2007, or lacked sufficient time to properly analyze the contract language in accordance with Florida law on contract interpretation, it was incumbent on Respondent to express these limitations on her ability to render a legal opinion based on a complete understanding of the facts and application of the law to those facts. Moreover, Respondent's claim of urgency would not explain why Respondent did not conduct any factual inquiry or legal analysis before issuing a second legal opinion six days later, which extended her legal opinion to include Dr. Garrity after she obtained his contract. The point is not whether Respondent's legal opinion was right or wrong; the point is that Respondent's legal opinions failed to set forth a complete recitation of the facts or a discussion of the legal conclusions that follow from a complete recitation of the facts. Respondent claims confusion about the facts, but no such confusion was expressed in her legal opinion. Respondent claims she was rushed, but that claim was not credible and, significantly, no such limitation was expressed in her legal opinion. If it was not possible for Respondent to obtain a clear understanding of the complete facts and to discuss the legal conclusions that flow from the complete facts, it was incumbent on Respondent to specify the limitations of her opinion. The proper performance of Respondent's professional duties as Hillsborough County attorney required nothing less. Instead of properly performing her professional duties by providing her client with the requisite independent professional judgment based on a complete recitation of facts and analysis of the law applicable to those facts, Respondent's legal opinion on February 2, 2007, was a self-interested advocacy piece. Other than adding language from Ms. Bean's contract, the February 2, 2007, product was nothing more than a repackaging of Respondent's February 1, 2007, email to Ms. Bean and Mr. Hill that purported to describe a non-lawyer's opinion of Respondent's Agreement. Respondent had a second chance to improve her product when she issued a second legal opinion the next week addressing Dr. Garrity's eligibility for the one-percent salary award. Despite the additional time and the fact that Respondent did not claim any rush in issuing this second legal opinion, Respondent took no steps to address the deficiencies from the February 2, 2007, letter that Respondent sought to justify because of perceived time pressure. Respondent attempted to suggest that the facts underlying her legal opinions were incomplete or confused because there was great confusion at the time with regard to the various award programs. That suggestion was not borne out by the credible evidence. Ms. Swanson admitted to not fully understanding the financial award programs at the time, because she was pinch-hitting for the department director. However, it was clear from the credible evidence that the persons involved in making the decision to give financial awards understood the differences between the three award programs, understood that they could not use the productivity award program, and understood that the financial award they were giving was a special one-percent salary increase award. Respondent also seemed to suggest that her legal opinions must have been proper and sufficient, because no one asked her questions about them. In particular, Respondent points to the fact that Ms. Swanson went to law school and passed a bar examination, albeit that Ms. Swanson was admitted to the Ohio State Bar in 1976 and did not practice law. Ms. Swanson testified, credibly, that she did not question Respondent's legal opinions because she did not believe that was her place. Instead, she explained that she was just looking to provide a written legal opinion on the question of eligibility as back-up to provide to the employee relations division of the human resources department, which processed the paperwork that put through the one-percent salary increases. Respondent testified that she was not aware that she had been given a one-percent salary increase after she issued her legal opinion. Respondent claimed to believe that she had, instead, received a $1,000 one-time cash award. Two years later, an audit revealed that she and Ms. Bean had received the one-percent salary increase continuously since 2007. Dr. Garrity did not accept his one-percent salary increase award. Respondent testified that she ultimately returned the proceeds from the one-percent salary increase. When asked why she returned the money two years later, she testified as follows: Well, you know, there was such a brouhaha at the board meeting that day. And I had never intended to have a one-percent increase. I thought it was an award. I thought it was a one-time award. So, I returned it because, if they didn't want me to have it, I should give it back. If it was not what I intended to opine on, then I didn't want to keep it. So, you know, those were the reasons I gave it back. Implicit in Respondent's explanation is that if she had realized that the one-percent salary "award" was a one-percent salary "increase," she would not have been able to opine that she was eligible to receive it without approval by the HBCC, because her Agreement required HBCC approval of salary increases. Yet, assuming Respondent was really confused about this, any appropriate inquiry by Respondent would have confirmed that the only award she could have been opining on was a one-percent salary increase. Whether her zeal to advocate for a financial reward for herself and others caused her to purposely mischaracterize her legal opinion after the fact or whether her zeal simply caused her, at the time, to ignore the process mandated by an attorney properly carrying out her duties to a client in rendering a legal opinion, the result is the same. The undersigned finds as a matter of ultimate fact that Respondent acted with wrongful intent by placing her own self-interest in securing the special financial benefit she coveted above her professional obligations to her client, the HBCC. Respondent did not properly perform her professional duties when she issued first one, and then another, legal opinion to justify a one-percent salary increase for herself and others without the approval of the HBCC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics issue a final order and public report: (1) finding that Respondent, Renee Lee, violated section 112.313(6), Florida Statutes (2006); and (2) recommending as penalties to the proper authority that Respondent be publicly censured and reprimanded, and that a civil fine of $5,000 be imposed. DONE AND ENTERED this 11th day of July, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2012.
The Issue Whether Petitioner is entitled to additional reemployment services from the Bureau of Rehabilitation and Medical Services. 1/
Findings Of Fact Petitioner was employed by UPS from July 1987 until her employment was suspended on February 10, 1997, for cause unrelated to the job-related injuries at issue in this proceeding. Following an investigation of the unrelated matter, UPS terminated Petitioner’s employment on February 19, 1997. At the time of her discharge, she was working a 40-hour week, was receiving full benefits, and was being paid at the rate of $19.97 per hour. Petitioner’s duties with UPS required her to drive a truck, load and unload trucks, and deliver packages. On January 13, 1997, Petitioner sustained certain injuries on the job when she fell between a truck and a loading dock. Petitioner received medical treatment for her work-related injuries beginning February 12, 1997. Dr. Bruce M. Berkowitz is an orthopedic specialist who treated Petitioner. On May 19, 1997, Dr. Berkowitz observed that Petitioner had multiple areas of discomfort that did not fit into specific orthopedic problems that he could treat. He discharged Petitioner from orthopedic care with a 3% whole person impairment rating based on painful organic syndrome as outlined by the Florida Impairment Rating Guide. Dr. Berkowitz recommended that Petitioner’s care be continued by a physiatrist (a doctor who specializes in physical medicine or physical therapy). Dr. Berkowitz also recommended that Petitioner not lift, carry, push, or pull objects weighing over 30 pounds, and that she not bend from the waist. Dr. Berkowitz saw Petitioner again on August 1, 1997, but he merely reiterated the findings and recommendations from May 19, 1997. After Dr. Berkowitz discharged her, Petitioner received treatment from Dr. Scott D. Tannenbaum, a physiatrist. At the time of the final hearing, Petitioner continued to experience chronic pain, which she attributed to the injuries she sustained January 13, 1997. At the time of the final hearing, Petitioner’s limitations as described by Dr. Berkowitz in May and August 1997 had not improved. Because of her physical limitations, Petitioner is unable to perform her former duties with UPS. At the time of the final hearing, Petitioner was 47 years old. She has no formal education beyond high school other than a computer-training course. She has no special training and no special marketable skills. Petitioner was unemployed between February 19, 1997, and March 1998. Since March 19, 1998, Petitioner has been employed by the DBPR in an OPS 2/ clerical position that has no fringe benefits. In April 2000, Petitioner was earning $11.09 per hour. At the time of the final hearing, Petitioner was paid at the rate of $11.29 per hour. In the fall of 1999, Petitioner applied to Respondent for reemployment services. The goal of this program is to return eligible injured workers to suitable gainful employment as soon as possible. The reemployment services program is a return-to- work program, not a retraining program. The program is voluntary, and must be initiated by the injured worker or by the worker's compensation carrier. Section 440.491, Florida Statutes, defines suitable gainful employment to be: . . . employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earning at the time of injury. In December 1999, Petitioner attended an orientation program and a training workshop pertaining to employability skills. She completed a formal application for services from Respondent, which included releases for medical and employment history. A rehabilitation nurse reviewed Petitioner’s medical records and determined that Petitioner was able to return to work. Thereafter, Eva-Lyn Facey, a vocational rehabilitation counselor employed by Respondent, was assigned Petitioner’s file to make sure that all needed information was provided. Respondent typically explores three options for injured workers seeking reemployment services in the following descending order of preference. The first, and preferred option, is to place the injured worker with his or her former employer. If that option is not available, the next preferred option is on- the-job training for the injured worker. The last option is for full-time classroom re-training of the worker. The preferred option was not available because Petitioner’s prior employment had been terminated for cause and because Petitioner was no longer physically able to perform her former job. On April 6, 2000, Petitioner met with Ms. Facey. After that meeting, Petitioner’s application was complete and she had provided all information required by Respondent to determine whether option two or option three should be pursued. After the application file was complete, Ms. Facey turned the file over to her supervisor 3/ who reviewed the file with Angel Ivan Miranda, a vocational consultant. The supervisor and Mr. Miranda determined that Petitioner's employment with DBPR constituted "suitable gainful employment" as defined by Section 440.491(1)(g), Florida Statutes. They further determined that Petitioner was not entitled to further reemployment services pursuant to Rule 38F-55.009(5)(c), Florida Administrative Code, which provides as follows: (5) Following a Division screening the Division shall not provide any additional reemployment services or refer the injured employee for a vocational evaluation: * * * (c) if the injured employee has returned to and maintained suitable gainful employment for at least 90 days. In attempting to comply with the provisions of Section 440.491, Florida Statutes, Respondent attempts to determine what employment is reasonably attainable for the injured worker. Mr. Miranda determined that Petitioner's employment with DBPR constitutes suitable gainful employment despite the considerable disparity between Petitioner's pre- injury average weekly wage and her post-injury average weekly wage because better employment for Petitioner is not reasonably attainable. In making that determination, Mr. Miranda considered Petitioner's age, education, work history, transferable skills, and physical restrictions. It is unlikely that Petitioner will be able to find employment that pays as well as her former employment with UPS. Petitioner wants to be retrained in order to be able to work with computers. Mr. Miranda testified that it was likely that an independent evaluator would find that such retraining to be the most appropriate for Petitioner. Mr. Miranda also determined that after such retraining, Petitioner would likely start employment as a computer technician at a lower hourly rate than she was earning at DBPR. The greater weight of the credible evidence established that Petitioner's employment with DBPR constitutes suitable gainful employment within the meaning of Section 440.491(1)(g), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner further reemployment services. DONE AND ENTERED this 19th day of March, 2001, in Tallahassee, Leon County, Florida. ___ CLAUDE B. ARRINGTON 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 19th day of March, 2001.
The Issue The issue in this case is whether the Respondent, Andy Comacho, should be assigned to J.R.E. Lee Opportunity School.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. Respondent, Andy Comacho, was an eighth grade student at W. R. Thomas Middle School (the "School") during the school year 1990/1991. The School is part of the Dade County, Florida, School District. During the first three grading periods of the 1990/1991 school year, Respondent's academic performance was poor. He had straight F's in three of his seven classes and had F's the last two grading periods in two of his other four courses. Respondent's effort ratings during this time period were extremely low. His academic performance during the 1990/1991 school year reflects a significant deterioration in academic performance from the preceding 1989/1990 school year. During the last part of the 1989/1990 school year, the Respondent's conduct began to deteriorate. His disruptive behavior continued throughout the 1990/1991 school year. Between January 3, 1990 and February 26, 1991, Respondent has received twelve disciplinary related referrals. During the 1990/1991 school year, Respondent has often been disruptive and disrespectful in class and his behavior has not only precluded him from scholastic progress but has also had a negative impact on the learning experience of other students in his classes. In his English class during the 1990/1991 school year, Respondent has rarely participated in any class activity, has seldom brought his books to class and often lacks other required class room materials. He has only submitted about a third of the homework assignments and he has frequently disrupted the class. On one occasion, he kicked over a desk during class. In his History class during the 1990/1991 school year, Respondent has failed to turn in approximately 80% of the homework assignments, has seldom brought materials to class and is often defiant of his teacher's authority. He has frequently been verbally abusive to other students and on one occasion he suggested to a female student that she perform an oral sexual activity with him. On another occasion, he stuck a girl with a pen and on still on another occasion, the teacher was forced to call security after Respondent jumped another student. Respondent was involved in at least three fist fights during the school year. As a result of his disruptive conduct, Respondent was given numerous detentions, many of which he failed to serve. He also received five outdoor suspensions and two indoor suspensions. The School attempted several ways to try to get the Respondent more interested in his school work and/or to correct his behavioral problems. Respondent received extensive one-on-one counseling. Respondent was also referred to an intervention program known as "To Reach Ultimate Success Together" (the "T.R.U.S.T. Program.") This program was an alternative to suspension and required the Respondent to attend counseling sessions once a week for about two hours after school. It also required his parents participate in at least some of the counseling sessions. The T.R.U.S.T. counselor tried to impress upon Respondent and his parents the necessity of active participation in the program. Nonetheless, Respondent skipped most of the sessions and his parents never showed up for any of the meetings. All the disciplinary and counseling strategies available to the School were attempted in an effort to assist Respondent in correcting his behavior. Notwithstanding these efforts, Respondent's behavior has not improved and his conduct has been detrimental to the learning environment for other students. The average number of students in a class at the School is approximately 30. The School does not have the resources to address peculiar student needs nor provide individual students with continuous attention. There are approximately twelve students to a class at the opportunity school and individualized educational plans are developed for the students. There are also more counselors on staff, including a psychologist. Respondent needs the increased structure and discipline that is available to students at an opportunity school. That program should assist him academically.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the assignment of Respondent, Andy Comacho, be assigned to a disciplinary program established pursuant to Section 230.2316(4)(d), Florida Statutes. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of June, 1991. J. STEPHEN MENTON 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 26th day of June, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Petitioner. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 2. 3. Adopted in substance in Findings of Fact 4. 4. Adopted in substance in Findings of Fact 5. Rejected as unnecessary. Adopted in substance in Findings of Fact 8. 7. Rejected as unnecessary. 8. Adopted in substance in Findings of Fact 6. 9. Adopted in substance in Findings of Fact 3 and 7. 10. Adopted in substance in Findings of Fact 9. 11. Adopted in substance in Findings of Fact 10 and 11. COPIES FURNISHED: James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Mrs. Mercedes Urquiza 1721 Southwest 137th Place Miami, Florida 33175 Octavio J. Visiedo Superintendent of Schools Dade County Public Schools Board Administration Building Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Sydeny H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether former Hillsborough County Administrator Patricia G. Bean (Respondent) violated section 112.313(6), Florida Statutes (2011),1/ and, if so, what penalty, if any, should be imposed.
Findings Of Fact Beginning in 2003, and at all times material to this case, the Respondent was employed as the county administrator for Hillsborough County, Florida. In Spring 2006, various departments of the Hillsborough County government were engaged in reviewing their responsibilities and developing proposals to increase efficiencies and reduce costs for upcoming budget years. An "executive team" of county employees met periodically to determine which of the proposals met or exceeded efficiency goals that were targeted towards reducing costs while maintaining services. In the Summer or Fall of 2006, the Respondent, Deputy County Administrator Walter Hill, and County Budget Director Eric Johnson began to discuss ways to encourage and reward department directors who met efficiency goals. At that time, the county government had three existing "award" options that could be used to reward employees for exceptional service. One award consisted of a paper certificate called the "Extra Mile Award." There was no monetary gain associated with receiving an "Extra Mile Award." The second award (the "Productivity Award") included a monetary bonus and was available to most employees (with some exceptions) for exceptional performance. The third award was the "Discretionary 1% Merit Increase" available to senior management employees. This award consisted of a one percent "merit" salary increase over and above any regular pay raise that the employee would have received. The Respondent, along with Deputy County Administrator Hill and County Budget Director Johnson, decided to use the "Extra Mile Award" and the merit salary increase to reward department directors who met efficiency goals. The Respondent was responsible for the final determination as to which employees would receive awards. The "Extra Mile Certificate" awards were announced at a budget "kick-off" meeting on the morning of February 1, 2007. After the meeting, the Respondent issued a written congratulatory memo to each employee who received a certificate. She also used the memo to notify those employees who had been awarded the salary increase. The Respondent's department met the efficiency goals. At the time of the budget kick-off meeting, the Respondent believed that her employment contract with Hillsborough County precluded her from accepting it, and she excluded herself from the salary increase. The Charter of Hillsborough County provided that the "compensation" for the county administrator "shall be fixed by the Board of County Commissioners by ordinance" and that such compensation "may be set by contract if allowed by and pursuant to ordinance." The Respondent's employment contract with Hillsborough County established her initial salary as $179,000. According to Section 6 of the contract, the Respondent was entitled to receive the same "annual market equity increase" provided to "all other unclassified managerial employees of the County." The section also stated that additional salary or benefit increases could be granted by action of the BCC within 60 days of her annual performance evaluation. Hillsborough County Attorney Renee Lee and Director of the Hillsborough County Environmental Protection Commission Richard Garrity also met the efficiency goals, but their employment contracts with the county contained provisions similar to those of the Respondent, and, so, the Respondent excluded Ms. Lee and Mr. Garrity from receiving the salary increase. Both received the "Extra Mile Award" at the budget kick-off meeting. After the meeting had concluded, Ms. Lee sent an email addressed to the Respondent and Deputy County Administrator Hill wherein she asserted that the terms of her contract allowed her to receive "the award." In the email, Ms. Lee cited a provision in her contract that referenced entitlement to "such other benefits" as were made available to other county employees. Although there appears to have been some confusion regarding the names of the awards available to recognize county employees for their performance, it was clear that the reference to the "Extra Mile Award" in Ms. Lee's email referred to the salary increase. The Respondent's employment contract contained language similar to that cited in Ms. Lee's email, whereby the Respondent was entitled to the "benefits" available to other managerial employees in the county. As the county attorney, Ms. Lee reported directly to the BCC and, pursuant to the county charter, was the chief legal advisor for the BCC on all matters of county business, including personnel matters. The Respondent had no managerial authority over the county attorney at any time relevant to this proceeding. There is no evidence that the Respondent discussed the matter with Ms. Lee. After receiving Ms. Lee's email, the Respondent directed Deputy County Administrator Hill to contact Christina Swanson (director of the Employee Benefits Division in the county's Human Resources Department) and ask her to evaluate Ms. Lee's email. Deputy County Administrator Hill apparently did so, and Ms. Swanson thereafter asked Ms. Lee to provide a written legal opinion addressing whether the salary increase could be awarded under the terms of the contracts. On February 2, 2007, Ms. Lee issued a written legal opinion addressed to Ms. Swanson, stating that both Ms. Lee and the Respondent could receive the salary increases under the terms of their respective contracts. Although she had received a law degree, Ms. Swanson had not worked as a practicing attorney. The issues of the whether the salary increases underlying this case constituted a "benefit" of employment with Hillsborough County, and whether Ms. Lee's written legal opinion was correct, are not at issue in this proceeding. After Ms. Swanson received Ms. Lee's written legal opinion, the Human Resources Department processed the forms required to implement the salary increases for the Respondent and for Ms. Lee. The Respondent testified that she discussed the matter with Ms. Swanson after Ms. Lee issued the legal opinion. Ms. Swanson did not recall the conversation. In any event, the evidence fails to establish that the Respondent directed Ms. Swanson, or any other employee in the Human Resources Department, to process the paperwork required to implement the salary increases. On February 7, 2007, George Williams, the director of the county's Human Resources Department, signed the form ("Report of Change of Status"), approving the one percent salary increase awarded to the Respondent. The Respondent's hourly salary rate was increased from $101.82 to $102.84, effective January 7, 2007. The Respondent did not receive a copy of the form. Deb Dahma, a staff member in the Human Resources Department, signed the form approving the one percent salary increase awarded to Ms. Lee. The signature on that form was undated. There is no evidence that the Respondent directed either Mr. Williams or Ms. Dahma to sign the forms. The executed forms were sent to the county's payroll department, and their salary increases were implemented. On February 8, 2007, Ms. Lee authored another email to Ms. Swanson wherein she opined that, upon review of Mr. Garrity's contract, he was also eligible for the salary increase. There is no evidence that the Respondent participated in any effort to award the salary increase to Mr. Garrity, or that he accepted or received the salary increase. Both the Respondent and Ms. Lee accepted the salary increases. The county administrator's staff was responsible for preparation of agendas for BCC meetings. The Respondent participated in the preparation process and could direct placement of items on the agenda. The Respondent did not provide the BCC with an opportunity to consider the salary increases referenced herein and did not seek the explicit approval of the salary increases from the BCC either prior to or after they were implemented. The Respondent believed that the Human Resources Department, which handled personnel matters, would seek any approval of the salary increases required from the BCC, but the Human Resources Department did not bring the matter to the BCC for review. Although the BCC approved the Respondent's salary, including the increase underlying this case, during the Respondent's subsequent performance review, the evidence fails to establish that the BCC was advised that the salary included an increase that had not been approved by the BCC. At some later point, the Respondent's salary increase apparently became a matter of conflict with the BCC, and her salary was reduced to negate the one percent increase. The Respondent reimbursed Hillsborough County for the funds she received through the salary increase. The Respondent's employment as the Hillsborough County administrator was eventually terminated. An investigation of the circumstances of the raise that was conducted by the Florida Department of Law Enforcement resulted in no criminal charges being filed against the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that Patricia G. Bean did not violate section 112.313(6) and dismissing the complaint filed in this case. DONE AND ENTERED this 31st day of May, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2012.
