The Issue Whether Respondent failed to properly represent Petitioner when she was terminated from her position as a school bus driver by the Seminole County School District on or about June 1994, on the basis of her race (African-American) and handicap, in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Seminole County School Bus Drivers' Association, Inc. (Respondent), is a labor organization as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by the Seminole County School Board (District) as a school bus driver during the relevant period of time from 1985 until June 1994. At the end of the 1993-1994 school year, Petitioner was terminated as a bus driver by the District. At said time, Petitioner was a member of the Seminole County School Bus Drivers' Association. Petitioner is an African-American female and a licensed bus driver. Joe Wicks (Wicks), who worked for Respondent and assisted Petitioner in her efforts to preserve her job at the end of the 1993-94 school year, is also African-American. Respondent is a public sector union affiliated with the Florida Teaching Profession/National Education Association (FTP/NEA). The FTP/NEA manages the staff associated with its affiliated unions through entities called UniServ offices. Nancy Wheeler (Wheeler) served as the executive director of the Seminole UniServ at the time Petitioner's employment was terminated by the District in 1994. In that capacity, Wheeler managed UniServ staff members who provided assistance to Respondent's members. Another of Wheeler's duties as executive director was to advise Respondent's Board about the merits of particular grievances for which arbitration is requested by the member. Respondent's Board has authority over the arbitration process used to enforce the collective bargaining agreement between bus drivers and the District. Over the years Wheeler served as executive director, 30 to 40 percent of Respondent's members have been African-American and Respondent's Board has been proportionally represented with African-Americans as well. The grievance process available to members of Respondent consisted of the following steps: 1) Informal efforts to resolve dispute; 2) Step I hearing before the employee's immediate supervisor; 3) Step II hearing before the Superintendent or his designee; 4) Step III binding arbitration before neutral arbitrator. At the end of the 1993-94 school year, District transportation officials proposed the employment termination of eight of Respondent's members because of their poor attendance patterns. In late May 1994, Respondent filed a grievance on behalf of Petitioner concerning the District's proposed termination of her employment in which it alleged that the District did not have just cause to support Hampton's termination. That grievance was pursued through Step II. Although the District ultimately decided to retain the employment of five of these bus drivers, no driver received assistance from Respondent beyond the Step II level of the grievance process. Further, there was no obvious race- related pattern in the District's decision to retain only some of the drivers. Three of the eight drivers were African- American, and three white drivers and two African-American drivers from among them were ultimately retained by the District in June 1994. Petitioner experienced depression, a brief period of situational grief due to the unexpected death of a boyfriend, in early 1994 but suffered from no other medical condition during the 1993-94 school year. At the end of January 1994, Petitioner's treating physician (Dr. Fraser) authorized her to return to work after a short leave period. Petitioner, in fact, returned to her job as a driver for the rest of the 1993-94 school year. Petitioner fully recovered from her "depression" several months later and was able to return to full-time employment elsewhere by the end of 1994. Although information about Petitioner's situational depression and her medical and other absence excuses was presented to Joseph Wise, Transportation Director (Wise), at the Step I Grievance hearing and to Dr. Paul J. Hagerty, Superintendent (Superintendent), at the Step II Grievance hearing, the School District's decision-makers (Wise and Superintendent Hagerty) determined there was just cause for Hampton's termination due to her long history of excessive absenteeism. In deciding whether to take Petitioner's grievance to arbitration, Respondent followed its normal practice including a personnel file review by Wheeler followed by her recommendations to Respondent's Board. Wheeler reviewed Petitioner's evaluation and disciplinary history concerning attendance problems and determined her case lacked sufficient merit to warrant taking it to arbitration. Those records reflected a five-year history of poor attendance, disciplinary warnings, and discipline imposed for poor attendance. Respondent's Board accepted Wheeler's recommendation that it not take Petitioner's case to arbitration. Respondent had successfully assisted Petitioner with prior employment problems she encountered over the years without incident or complaint by Petitioner. Neither Respondent's Board nor any staff member of Respondent, including Wicks and Wheeler, harbored any animus toward Petitioner. Assistance with her 1994 termination grievance though Step II was provided by Respondent absent any consideration of race or disability. Further assistance was appropriately denied to Petitioner on the basis of her employment history which strongly supported the charges against her and rendered an arbitration proceeding to challenge the termination futile. Petitioner's race and disability status played no role in Respondent's decision to forego taking Petitioner's grievance to arbitration. Transportation Department officials, and ultimately the Superintendent, had complete authority over the final employment decisions made regarding Petitioner and the other bus drivers whose termination had been recommended by Wise at the end of the 1993-94 school year. At no time did Respondent, or any agent thereof, have any authority to control or reverse these decisions. On May 27, 1994, Wicks and Petitioner signed and submitted a request for legal services to the FTP/NEA on the same day Respondent filed the grievance on Petitioner's behalf. The legal services document is a request that the FTP/NEA provide any legal assistance it might deem appropriate. The form specifically states that the FTP/NEA may decide to do so in its discretion. Wheeler did not have the authority to provide any legal services to Petitioner for the FTP/NEA; rather, that authority rested with the General Counsel of the FTP/NEA. Had Respondent taken Petitioner's grievance to arbitration, Wheeler, and not an attorney, would have handled the matter as was Respondent's usual practice. Petitioner's position that her request for legal services must be honored or it would be a violation of the labor contract is not supported by the evidence. Petitioner did not suffer from a medical condition of sufficient severity and duration to entitle her to the disability protections of the Florida Civil Rights Act. The medical evidence showed, however, that even those documents proved Petitioner's own physician (Dr. Fraser) repeatedly approved her return to work during the months in question, and that he did not expect the condition to have a significant impact on her once the proper medication regimen could be established. In fact, Dr. Fraser's note of May 11, 1994, states that he expected the medication-related side effect problem to be corrected over the next few weeks. Petitioner testified, and the medical records confirm, that she took a period of leave because of her grief- related problems and that she worked from February to June 1994. Although Petitioner missed some days intermittently during the remainder of the year. Dr. Fraser returned her to work in short order each time. Petitioner also testified that she obtained and sustained other full-time employment by the end of 1994 and that she has not been treated for "depression" since 1994. It is obvious from the record that Petitioner's physician did not consider her condition to be so significant as to prevent her from working after the immediate period of grief for which she sought and was granted leave. Neither Wicks, Wheeler, Respondent's Board, nor any agent of Respondent took any action concerning Petitioner which was motivated by her race or medical condition. Petitioner filed her Petition for Relief with the Florida Commission on Human Relations (FCHR) on April 5, 1999. The filing of the Petition was more than 35 days after the determination of no reasonable cause by the FCHR.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which dismisses the Petition for Relief for lack of jurisdiction and/or denies the Petition on the merits. DONE AND ENTERED this 24th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings 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 this 24th day of February, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Mae Vanessa Hampton Laurel Oaks Apartments 8775 Orange Court Tampa, Florida 33637 Pamela Cooper, Esquire FTP/NEA 213 South Adams Street Tallahassee, Florida 32301 Anthony D. Demma, Esquire Meyer & Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
The Issue The issues for determination are: Whether Respondent violated Section 112.313(6), Florida Statutes, by directing Public Defender's Office employees to work on Respondent's re-election campaign during their public working hours; Whether Respondent violated Section 112.313(6), Florida Statutes, by directing Public Defender's Office employees, during public working hours and using public resources, to prepare and deliver materials for courses that Respondent was teaching; Whether Respondent violated Section 112.313(6), Florida Statutes, by directing a Public Defender's Office employee to take Respondent's personal automobile in for repairs during public work hours; Whether Respondent violated Section 112.313(6), Florida Statutes, by directing a Public Defender's Office employee to make personal bank deposits for Respondent and her mother during public work hours; and Whether Respondent violated Section 112.313(6), Florida Statutes, by directing Public Defender Office employees to type personal letters for Respondent during public work hours.
Findings Of Fact THE RESPONDENT Respondent currently serves as the Public Defender for the Thirteenth Judicial Circuit in Tampa, Florida, and has served in that capacity since taking office after her election in 1992. Respondent is subject to the requirements of Part III, Chapter 112, the Code of Ethics for public officers and employees, by virtue of the fact that Respondent serves as Public Defender. Respondent is a public official within the meaning of Part III, Chapter 112, Florida Statutes, by virtue of Respondent’s position as Public Defender, and is subject to the provisions of Section 112.313(6). The Thirteenth Judicial Circuit Public Defender Employee Manual, revised February 1, 1996, sets forth the Public Defender Office’s policies and standards applicable during the 1996 campaign. BACKGROUND OF COMPLAINT TO ETHICS COMMISSION This complaint arose from allegations made by Scott Moore and others, including members of Scott Moore's family to the newspapers, the Florida Department of Law Enforcement and the Ethics Commission.7/ Joe Moore, the patriarch of the family, was an old and close friend of the Respondent. Their relationship was described as being as close as brother and sister, and this closeness extended to Joe's children: Scott, Mike and Melissa Moore Dearing. In addition, Scott Moore married Wanda Granado, who was secretary to the Respondent during a portion of time covered by these charges. The Moore family assisted the Respondent at home and at the office in a familial manner, painting, running errands, and looking after one another. This was mutual, and the Respondent tendered regular employment to three members of the family, and part-time employment to Melissa when she was home on Christmas and summer breaks from school. Scott Moore was employed by Respondent in various capacities. Scott Moore was, like all of the employees of the office, an at-will employee serving at the pleasure of the Respondent. There had been a history of problems with Scott Moore arising from his failure to accept supervision from the management staff of Respondent's office. Scott Moore consistently went to his father, Joe Moore, who in turn went to the Respondent in an effort to circumvent supervision. This resulted in staff dissention to the extent that the Respondent found it necessary to have a meeting with the Moores and their supervisors to address this issue in 1999. At this meeting, the Respondent told the assembled Moores that, notwithstanding their personal friendship, they were subject to the direction of their supervisors at work. This was sufficiently disturbing to Scott Moore that he stood up with such force at the meeting, that his chair rolled back into the wall and knocked two pictures off the wall. He resigned, and walked out of the meeting. His belongings were packed up by a secretary, but Scott Moore returned, apologized to the Respondent, and asked to come back to work. The Respondent permitted him to do so. Scott Moore worked for the Public Defender's office until May 4, 2000, at which time he was the network administrator for the computer system of the Public Defender's office. After an investigation of an incident in which a document was copied from a file, printed out, and left anonymously in an employee's office, it was determined that Scott Moore had improperly accessed the files of other employees and inappropriately copied multiple materials from their files. When confronted with the materials he had copied from files in the office, he refused to explain his conduct. He was discharged by Respondent on May 4, 2000, for accessing and disseminating confidential documents, accessing employees’ computer accounts, and general dereliction of duties. Scott Moore's malfeasance included not backing up files as required and not establishing firewalls between files as appropriate. When discharged, Scott Moore stated to the Respondent that he would get even with her. Scott Moore made allegations of misconduct by the Respondent to the local newspaper, the Florida Department of Law Enforcement (FDLE), and the Florida Ethics Commission. Because of the situation, the Respondent eventually found it necessary to discharge Joe Moore, Scott's father. Mike Moore, Scott's brother, and Wanda Granado Moore, Scott's wife, resigned their employment. In sum, the firings of Scott and Joe did not favorably dispose the members of the family towards the Respondent. Their animus is recognized in considering their testimony. In addition, Scott Moore contacted many former employees of the Respondent's office and encouraged them to come forward with any allegations of wrong-doing with which they were familiar. As a result of this, allegations of wrong-doing going back many years were presented to the Ethics Commission. Some of the allegations were subject to the statute of limitations, and this limited the testimony of some witnesses about their actions and observations. One of the employees to come forward was Sharon Slater, who was the Respondent's secretary/assistant from 1993 until 1997 when she asked to be moved to a new social services section in Respondent's office. Slater worked in social services for over a year, but because of complaints and Slater's failure to complete certain educational requirements, she was moved to a secretarial position in the office in October of 1998. Slater tendered her resignation in April 1999, to be effective at the end of that month; however, before the end of the month, she became upset about the way an investigation of allegations she had made about Mike Moore's diverting mail belonging to her was handled, most particularly about her husband being contacted, and she resigned, effective immediately. Slater was the source of much of testimony which was introduced in support of the allegations that she and others did personal and campaign-related work during working hours at the direction of the Respondent. The "hard" evidence of this work was taken from computer disks which Slater stated she copied in 1999 from the hard disk of Respondent's secretary long after Slater had left that position. The admissibility and credibility of these records are at issue in these proceedings as electronic records and as the printouts of those electronic records. Although Slater testified that she copied all the records on the disk, only portions of these records were being introduced by the Advocate because other portions of the records downloaded by Slater related to confidential client files. Slater was able to remember some of the records/documents which she had typed. Of the documents she identified, at least one she remembered typing at her home. Some of the other records/documents bore her initials as typist. Evidence was received from Melissa Moore Dearing that she typed letters on the same computer as Slater, and letters which she typed would have been saved upon the same directory that Slater copied. However, Ms. Dearing could not independently identify any of the letters which she typed. Ms. Dearing also stated that frequently when typing form letters bearing the initials of Slater as the typist, that she forgot to change them to reflect she had typed them. Nicole Hanscom, a person knowledgeable in the operation of computers and the electronic files, testified. In sum, she testified that the "last modified date" is the date upon which the document was last saved. An existing document can be accessed, modified, printed out, but not saved and it will continue to reflect the date upon which it was previously saved notwithstanding that it was the source of a hard-copy piece of mail. Conversely, a document can be called up, no changes made to it, and be saved, whereupon the file will reflect the last date it was saved as being the date upon which it was modified. These results are possible without any intentional "tinkering" with the files by knowledgeable persons. Because of the ability to alter and manipulate files as described above, these documents and records would have been inadmissible but for the Respondent agreeing to their admissibility. Very little credence is placed in the disks, the directories of the disks, and the materials printed from those disks, notwithstanding their having been received. CAMPAIGN ACTIVITIES Respondent ran for re-election as Public Defender in 1996. Many of the activities for that campaign occurred in 1995 and 1996. A number of Public Defender Office employees were involved in Respondent’s 1996 re-election campaign activities. Ms. Slater worked on Respondent’s 1996 re-election campaign. This campaign work was voluntary and performed on Ms. Slater’s own time. Ms. Slater’s volunteer activity for Respondent’s 1996 re-election campaign included holding signs, displaying a yard sign, working a campaign golf tournament, and appearing at several campaign functions with other office staff. Notwithstanding Ms. Slater's testimony to the contrary, it appears from the campaign rosters she signed and the testimony of others that she was a active participant in the Respondent's campaign who did what she could to further the Respondent's re-election. This is consistent with Slater's perception of her own self interest about which she clearly was concerned. As an at-will employee and secretary/assistant to the Public Defender, it was highly unlikely she would be retained by anyone who defeated the Respondent for the office. In addition, Ms. Slater also did other campaign work for Respondent’s 1996 re-election campaign including typing campaign thank-you letters and keeping current a yard-sign list for Ms. Holt’s review. Many of the campaign thank-you letters typed by Ms. Slater were prepared on Public Defender office computers. Some were prepared on a Public Defender laptop at Ms. Slater’s home; however, many were prepared on a Public Defender computer during public work hours. Ms. Slater volunteered to maintain and update a typed list of sign locations and people who volunteered to display campaign signs for Respondent’s re-election campaign. Information regarding signs came to Ms. Slater in writing and verbally from a variety of persons. The Respondent frequently provided information to Slater in the form of sticky notes, which included information on persons volunteering to put a sign up at their business or home. A folder was maintained on Slater's desk into which notes about thank-you letters and sign information were placed by the Respondent or other office staff. Ms. Slater would also get information for the sign placements from telephone calls made to the office and from other employees. Although Sharon Slater occasionally updated the sign lists on a Public Defender Office computer at her home, some of the updates were done during public work hours. As pointed out in Respondent's proposed findings, the modified dates when compared with the Respondent's calendar reveal that many of the documents were prepared when the Respondent was out of the office. Clearly, the Respondent was unaware of what Slater did at Slater's home. Although Slater's testimony establishes that she prepared campaign letters and maintained the sign list at work and on equipment belonging to the Public Defender's office, she did so outside the presence of the Respondent and without Respondent's knowledge. Credible evidence was received from many witnesses that Slater and all the other employees of the Respondent's office were instructed that they should not and could not engage in campaign activities at the office. The Respondent provided a campaign office down the street from her office where volunteers could work. It was announced to the employees that they should do campaign work there or at home and not on state time. The Respondent was not constrained by law from putting notes about signs or other campaign work she wanted accomplished in Ms. Slater's campaign work folder. It was understood that this work was not to be performed in the office. Evidence was received that employees were counseled about failing to obey the directive not to do campaign work on the job. As stated above regarding the thank-you letters, the fact that much of the work alleged to have been done by Slater at work was done when the Respondent was not in the office substantiates that when work was done at the office by Slater it was in contravention of the policy. Melissa Moore Dearing,8/ who worked as an OPS employee for the Public Defender’s Office on and off for years, also prepared campaign thank-you letters for the campaign. She obtained her work assignments from Slater's desk, and received her instruction in the same manner as Slater, by writings on legal paper or sticky-notes. It appeared that, except when pursuing a particular project for the Respondent, Dearing received her work assignments from Slater. Dearing testified that she did not remember receiving any instructions on what she could and could not do for the campaign during office hours. It was clear from her testimony as a whole, that Dearing appreciated the job opportunities inherent in her OPS work for the Respondent, and was willing to do any work she was given to do. Although a member of the bar at this time and more knowledgeable of the restrictions imposed upon officers and employees, at the time these events occurred, Dearing did not consider her actions illegal or inappropriate. Christine Sleater worked at the Public Defender’s Office from January 1993 until 1998. While an employee of the Public Defender’s Office, Ms. Sleater worked as an administrative assistant; was promoted to computer trainer during the beginning of 1996; and, thereafter was promoted to director of automated systems, which position she held until leaving in 1998. From 1994 until the early part of 1996, Ms. Sleater did work as an administrative assistant for the Respondent as a back-up to Ms. Slater. Ms. Sleater prepared at her home thousands of thank- you letters for the Respondent’s campaign. After completing the campaign letters, Ms. Sleater put them in an interoffice envelope and either gave them to Sharon Slater or placed them in the Respondent’s in-box. The Respondent directed Ms. Sleater to tell the head of the Public Defender’s Office technology department, Mike Effner, to let her take a computer home so that she could do the thank-you letters. Mr. Effner was in charge of the computers at the Public Defender's office and for the campaign and was Ms. Sleater’s boss at the time. The Respondent testified that Mike Effner advised her that he had several of his own computers which were available to people working in the campaign. Her testimony was confirmed by others. It is alleged that computer Ms. Sleater used was one belonging to the Public Defender's office. Even if Mr. Effner did provide Ms. Sleater a Public Defender’s Office personal computer and printer, the Respondent did not know that Ms. Sleater was using Public Defender Office equipment to prepare thank-you letters for Respondent’s 1996 campaign. Ms. Vicky Butts served as the Respondent’s Budget Director for the Public Defender’s Office from March 1994 until March 1999, and was in charge of the Public Defender’s Office computer inventory. Ms. Butts testified that Christine Sleater had Public Defender Office equipment at home to work on the Respondent’s 1996 re-election campaign. She based her recollection upon a diary entry made in October 1996, regarding an office collection that was taken up for Ms. Sleater’s birthday gift. While Butt's recollection may have been jogged by this unrelated diary entry, it certainly does not buttress her testimony. Neither her testimony nor that of Sleater demonstrates that the Respondent knew that Effner had provided Sleater a Public Defender office machine as opposed to computer owned by Effner which was the Respondent's intent. Although Sleater testified she got an office machine, the Respondent testified that Sleater did not sign out for one according to internal equipment inventories. Butts testified Sleater did sign out for a Public Defender computer. The inventories were not introduced by either the Advocate or the Respondent. The testimony is conflicting. The fact that most of the Respondent’s requests for the preparation of campaign thank-you letters were made on notes written by Respondent and placed in Sharon Slater’s in-basket during office hours does not establish that the Respondent knew or should have been on notice that campaign thank-you letters were being prepared in the office on Public Defender’s Office Equipment during public work hours. The procedure was for those personnel who were typing letters to pick up letters to be typed from the folder on Slater's desk; to type them at home or at the campaign office; print them out at the campaign office; and return them to the Respondent for signature. The Respondent verified that the campaign letters were delivered to her at the Public Defender’s Office during public work hours. These were placed in an old brief case reserved for campaign related materials and picked up and delivered to the Respondent at various places. After the Respondent signed the letters on campaign stationary, the Respondent put them back in Sharon Slater’s in- box at the Public Defender’s office, and Sharon Slater had them mailed out, using postage that was paid for by Respondent’s 1996 re-election campaign. Sharon Slater's testimony that she complied with Respondent’s requests because she was afraid if she complained she would lose her job is not credible. Her testimony that she was afraid she would lose her job if she did not work to get the Respondent re-elected is credible because as an at-will employee, she very likely would have been replaced by a new incumbent. Melissa Moore Dearing complied with the Respondent’s requests because the Respondent provided her with employment during school breaks at Christmas and summers. She recognized that she was extremely fortunate to have such a benefactor in the Respondent's position. All employees of the Public Defender's Office were “at will” employees. The Public Defender Employee Manual effective during the 1996 campaign explains: All employment and compensation with the Public Defender’s office is “at will” in that any employee can be terminated with or without cause, and with or without notice, at any time, at the option of either the Public Defender or yourself, except as otherwise provided by law. All employees are exempt from the State of Florida Career Service System and serve at the pleasure of the Public Defender. Sharon Slater did feel uncomfortable about working on the Respondent’s campaign during public work hours on Public Defender’s Office equipment. The record in this case indicates that she engaged in these activities when the Respondent was out of the office. The extra copies of the campaign materials which Slater stated she printed out and retained on the day that they were prepared were received into evidence; however, having had access to the disks, she could have printed them out at any time, and, as long as she did not execute a save on the document, it would have retained its original "modified" date. The campaign letters would have gone out on campaign letter head which was blue and yellow. Clearly the copies introduced may have been drafts, but they were not unsigned copies of final documents. The Respondent was aware that it was improper for office staff to work on the Respondent’s campaign during office hours. The Respondent testified that the typing of campaign letters on Public Defender’s Office equipment and during office time was not appropriate. These prohibitions were emphasized with all personnel from her office who were working on the campaign. The Respondent’s manual for Public Defender Employees which was in use during the 1996 campaign states: “Employees will not engage in political activity during working hours.” The manual also stated that office equipment was to be used exclusively for Public Defender business purposes. There is no evidence that the Respondent knew that personnel were typing campaign letters on office equipment. Slater and Dearing testified they "concluded" that the Respondent knew, but their conclusions were conjectural. The allegation that the Respondent "directed" both Sharon Slater and Melissa Dearing to type campaign-related documents during public campaign work hours is based upon the assumption that placing the campaign work into a folder on Slater's desk during the day constituted a clear countermand of the instructions not to use Public Defender’s Office equipment and not to work on public time. The facts show that campaign materials were kept separate in the office; that employees received appropriate instructions regarding what they could and could not do; and that Slater's work on campaign materials occurred when the Respondent was out of the office. There is no evidence that the Respondent ever "directed" Slater or Dearing to do campaign work at the office on office equipment, and there is no evidence that the Respondent knew that Public Defender equipment was used for campaign purposes. PREPARATION AND DELIVERY OF COURSE MATERIAL After becoming Public Defender, the Respondent began teaching as an adjunct professor at local colleges and universities. Prior to this time, other than substitute teaching in law school, the Respondent had never taught. The first institution where the Respondent taught was Hillsborough Community College in 1995. She has since taught courses at the University of Tampa, the University of South Florida, and the University of Phoenix. The Respondent taught a course in American Government at Hillsborough Community College in the Spring and Fall semesters of 1995. The Respondent was paid $1,500 per semester for teaching American Government at Hillsborough Community College. After that, the Respondent taught one semester, at the University of Tampa in 1998 or 1999 and was paid $1,000 for her teaching. The Respondent taught one semester at University of South Florida (USF) in 1997, and then taught at USF the spring and fall semesters of 1998, the spring and fall semesters in 1999, and one semester in 2000. The Respondent was paid $2,500 for each semester she taught at USF. The Respondent has taught at the University of Phoenix since 1998. The University of Phoenix is a private university. Respondent receives between $1,300 and $1,600 for each 6 week term of classes, consisting of one 4-hour class each week, that she taught at the University of Phoenix. Throughout her tenure as an adjunct professor, the Respondent has used Public Defender office staff and resources during public work hours to prepare course materials for her students. She has used her secretary/assistants to type lesson plans, type syllabi, type and edit examinations, deliver materials, and proctor make-up examinations for the courses that Respondent was teaching. In one instance, Melissa Dearing proctored one or more examinations for the Respondent at night, but purely on a voluntary basis.10/ While most of the documents typed by staff in support of this activity were between one and three pages, the total, over time, cannot be considered de minimus. Neither can the income be called de minimis from teaching these courses, which for a portion of the time ran between $2,500 and roughly $7,500 annually. Slater and Melissa Moore Dearing readily assented to doing this work, and Dearing volunteered to proctor the examinations at night. Wanda Granado Moore assented to the preparation of these materials, and records indicate that she was paid between $5,000 and $6,000 in overtime. The Respondent did not feel that these activities at work were wrong; she considered that the work was within the range of work which could be assigned to these personnel; but she did not consider it contrary to their duties or to her duties. The Respondent asserts that her actions were justified because there was an overriding public purpose to her teaching. In support of her argument that her teaching served a public purpose, the Respondent offered the testimony of several judges and retired judges. The reason that a judge's teaching serves a public purpose is that the Code of Professional Responsibility encourages judicial officers to educate bench, bar, and the public about the law. The de minimis use of public office resources to assist in teaching courses is not inconsistent with a judge's public duties. All of the judges who testified indicated that the use of public resources should be de minimis in light of the requirements that it not interfere with the performance of the judge's judicial duties. Although a public purpose is served by education, and teaching is not antithetical to the duties of the Public Defender, unlike judges, education is not part of the Respondent's public duties. Therefore, her teaching does not further the aims and goals of her office. Although the Respondent contends that she really does not teach for the pay and that her outside teaching activities are a form of “community service,” as stated above, her compensation was more than de minimis and must be considered as personally benefiting the Respondent. DIRECTING PUBLIC EMPLOYEE TO TAKE RESPONDENT’S PERSONAL AUTOMOBILE IN FOR REPAIRS It is alleged that on more than five occasions while Sharon Slater was employed as Respondent’s secretary with the Public Defender’s Office, Respondent had Ms. Slater take or retrieve Respondent’s Mercedes from the repair shop during public work hours. At least some of these occurrences were after August of 1995 and in 1996. Other Public Defender’s Office employees also took Respondent’s car to the shop. On at least some of these occasions, another Public Defender Office employee was also required for the pick-up or delivery of the vehicle. One of the repair shops where Ms. Slater dropped off or picked-up the Respondent’s car was located approximately 10 to 15 minutes from the Public Defender’s Office. One of the shops she used was immediately across the street from the Respondent's office. One of the problems with these allegations and the evidence presented in support of them is that they are vague with regard to when, where, why and how the event(s) occurred. If two employees were involved, and if it was during work hours, and if the garage to which the car was delivered was the one further away, then the pick-up or delivery of the Respondent’s automobile might require approximately one hour of Public Defender Office staff time, and if it was after October of 1995, it would not be barred by the statute of limitations. If the accusation is that the Respondent directed Slater to pick up or take her car to the garage, the evidence adduced from several members of the staff and the Respondent was that Sharon Slater volunteered to take Respondent’s car to and from the repair shop. Sharon Slater's testimony is not credible that she did not volunteer. Slater may have felt this was demeaning, but her public demeanor and overt conduct was one of helpful collegiality, and there was specific testimony stating she volunteered to pick up the Respondent's car during at least one staff conference. In addition to the conference mentioned above, other instances in which staff picked up or took the Respondent's car included when the Respondent was in trial. The judicial district the Respondent is in covers a large geographic area. Her car is a tool in her management of her office. Sharon Slater's was more than a secretary for the Respondent; she also assisted her in non-clerical duties. While taking or picking up the Respondent’s automobile benefited the Respondent personally, if it permitted the Respondent to stay in a staff meeting rather than leaving to pick up the car before the garage closed, it directly supported and assisted the Public Defender in conduct of her office. The "service" was for more than the Respondent's benefit. In sum, Slater's allegations and the evidence presented in support of them are vague as to time, number and circumstances, to include whether Slater made up the lost time. They are vague about how many occurred with the period for which Respondent can be prosecuted. The long delay between the events complained of and the prosecution of this case prevent either side from presenting the detail necessary to determine this issue. The Advocate's original allegations went to the Respondent's "requiring" Slater to pick up the car; however, the evidence showed categorically that this was not the case. The Advocate failed, as stated above, to show how many times this happened; when it happened; the circumstances under which it happened; and whether Slater failed to make up the time if she volunteered to pick up the car. These details are necessary to determine whether there is no benefit to the state and a violation, and to determine if it is not barred by the statute of limitation. DIRECTING A PUBLIC EMPLOYEE TO MAKE BANK DEPOSITS FOR RESPONDENT AND HER MOTHER DURING PUBLIC WORK HOURS Throughout the Respondent’s tenure as Public Defender, Joseph Moore, while employed as an investigator for the Public Defender’s Office, made bank deposits for the Respondent and her mother during public work hours. The overwhelming evidence is that all of these deposits were made by Moore voluntarily, frequently in conjunction with the deposit of his own check, and while in the direct pursuit of other office business in such manner that the loss of time was negligible. As stated above regarding the pick up of the car, when the errand is undertaken voluntarily, and the public is better served by having the subordinate take care of a personal task for an official, it serves a public purpose. If it is not voluntary, it opens the door to abuse. In this case, there is no question that it was voluntary, and the public was not ill- served by Moore's actions. DIRECTING PUBLIC EMPLOYEES TO TYPE PERSONAL LETTERS DURING PUBLIC WORK HOURS The evidence shows that Sharon Slater typed up a number of documents unrelated specifically to Public Defender business during public work hours on Public Defender Office equipment while Ms. Slater was employed as the Respondent’s assistant. Campaign letters are discussed above. The Respondent admits that Slater typed other non-legal materials for her. These documents include thank-you letters, business letters, and other type-written materials not related to the Public Defender's office or campaign. The Respondent gave the thank-you and business letters to Slater to be typed as part of her general work. An example of this type of correspondence is Advocate's Exhibit 6 Slater- S\McDowell.let, which is a letter thanking Mr. McDowell for inviting her to an event welcoming an Olympic Gold Medalist. While this is not legal in nature, it clearly is not a campaign letter, but one of the type of letters that elected officials write to constituents thanking them, congratulating them, and recognizing them. This type of correspondence is not "personal," and it generally furthers the work of the office. Other letters which the Respondent had Slater type were business letters not related to the Public Defender's office. They include, but are not limited to, letters about a leasehold interest, a letter tendering payment of a credit card bill, and a release of liability for a pet grooming business in which the Respondent had an interest. See Slater_S\Hobbs.let; Slater_S\Julpet.WPD; Slater_S\RCI.let; Slater_S\USAIR.Let. According to the Respondent, Ms. Slater always volunteered to type up the private business documents because she was the Respondent’s friend. Ms. Slater, however, testified that she typed up the documents because the Respondent directed her to do so. It is more consistent with Slater's general conduct that she volunteered to type these documents. The evidence clearly showed Slater typed the personal documents for the Respondent on the Public Defender Office computer and on public time. The Respondent contends that occasional use or “incidental abuse” of Public Defender Office equipment for personal letters, on a minimal basis, was permitted. The Respondent was not the only person to take advantage of this opportunity, and the files presented included a letter Slater had written in her own behalf, and a letter she had written in Scott Moore's behalf. Ms. Slater served as the Respondent's assistant for four full years. In mitigation, the personal business letters typed for Respondent presented at the hearing given the time covered are not numerous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Count 1 be dismissed regarding the Respondent's directing employees to work on the re-election campaign; Count 3 be dismissed regarding the Respondent's directing an employee to take her personal automobile in for repairs; Count 4 be dismissed regarding the Respondent's directing an employee to make bank deposits for her and her mother; A civil penalty of $1,500 be imposed because the Respondent violated Section 112.313(6) by having personal letters typed by public employees during public working hours; and Restitution in the amount of $2,000, and a civil penalty of $2,000 be imposed because the Respondent violated Section 112.313(6) by having school materials prepared by public employees during public work hours. DONE AND ENTERED this 30th day of October, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 30th day of October, 2003.
Findings Of Fact Both parties filed proposed findings of fact. Except as noted below, I have incorporated the substance of these proposed findings into my findings of fact. Rejected DOT Proposed Findings of Fact The following proposed findings are rejected because they are not facts but only recitations of testimony: Rule 22I-6.006 - proposed finding 1 - second and third sentence. Rule 22I-6.037 - proposed finding 1 - second sentence. proposed finding 2 - first and second sentence. The following proposed findings are irrelevant to the resolution of this case: Rule 22I-6.006 - proposed finding 4 and 5 because the proposed rule applies to other agencies than DOT. proposed finding 6 because whether another method of notifying all bidders is more efficient is not the standard to determine validity of the rule. Rule 22I-6.037 - proposed finding 3, 5, and 7. Rejected DOAH Proposed Finding of Fact The following proposed finding of fact are rejected because these are more in the nature of legal argument or conclusions of law rather than findings of fact: Proposed finding 5 - sentences 5 and 6. Proposed finding 6 - second paragraph, sentences 1 and 2; third paragraph, sentence 4 and 5; and fourth paragraph Proposed finding 7 - second paragraph; third paragraph; and fourth paragraph, fifth sentence Proposed finding 8 - fourth paragraph; fifth paragraph; and sixth paragraph The follow proposed findings are rejected as being irrelevant to the resolution of the issues presented in this case. Proposed finding 1 - fourth sentence Proposed finding 6 - second paragraph, sentence 5 and 6 Proposed finding 7 - fourth paragraph, sentence 1 through 4 The following proposed finding is rejected as not supported by the record evidence: Proposed finding 6 - fourth paragraph, sentence 4 fifth paragraph, sentence 4 ANALYSIS Standing The first issue that must be addressed is DOT's standing. DOAH asserts that Dot lacks standing to challenge Proposed Rules 22I-6.035 and 22I-6.037. DOT has the burden to establish that it would be substantially affected by the proposed rules should they be adopted by DOAH. Section 120.54(5)(b), Fla. Stat. (1985); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979). In order to resolve whether DOT has met its burden, a review of the pertinent decisions on standing is appropriate. 5/ The case cited most often on standing is the First District Court of Appeal's decision in Florida Department of Corrections v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla. 1978). The court held that an inmate who had been confined for committing an assault while in prison lacked standing to challenge an existing rule concerning disciplinary confinement and forfeiture of gain-time. Because the inmate was no longer confined under the rule and had not lost any gain-time when he filed the rule challenge, the court reasoned that the inmate had not suffered an injury in fact at the time of the challenge, end therefore, was not substantially affected by the existing rule. Whether the inmate would be subject to the rule again depended on the likelihood he would commit another infraction. The court deemed this too speculative and subject to conjecture to grant standing. 353 So.2d at 1236. In a later case, the Florida Supreme Court overruled Jerry to the extent it required associations to demonstrate a specific injury to the organization itself rather then to some of its members. Florida Home Builders' Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982). In reaching its decision, the court warned against an overly restrictive application of the concept of standing in the rule challenge cases by noting: "Expansion of public access to activities of governmentally agencies was one of the major legislative purposes of the new Administrative Procedure Act." 412 So.2d at 352-53. Standing to challenge proposed agency rules was addressed in Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). There, the court held that all women of child bearing age who received medicaid benefits were not substantially affected by a proposed rule denying medicaid payments for abortions except under limited circumstances. In denying standing to a woman who was not pregnant at the time of the rule challenge, the court specifically rejected the argument that standing to challenge a proposed rule under Section 120.54(4), Florida Statutes (1985), is less restrictive than standing to challenge an existing rule under Section 120.56, Florida Statutes (1985), by stating: There is no difference between the immediacy and reality necessary to confer standing whether the proceeding is to challenge an existing rule or a proposed rule. 367 So.2d at 1052. In Professional Fire Fighters of Florida v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981), the court held that a group of paramedics had standing to challenge rules establishing additional requirements for renewal of a paramedical certification. There was no showing on any of the individual paramedics had attempted to comply with the new rules or that anything in the new rules would disqualify them from retaining their certification. In rejecting the hearing officer's ruling that these individuals could not claim an injury because they had not yet applied for certification under the new rules, the court stated: The order below would preclude a challenge by anyone who had not first complied with a rule and suffered injury, no matter how clear the rule's applicability to, or substantial its effect on, the challengers... The APA permits prospective challenges to agency rulemaking and does not require that an affected party comply with the rule at his peril in order to obtain standing to chal- lenge the rule. A party may demonstrate standing by showing that a rule has a real and immediate effect upon his case as well as by proving injury in fact. 396 So.2d at 1195-96 (citations omitted) see also 4245 Corp., Mother's Lounge Inc. v. Department of Beverage, 345 So.2d 934 (Fla. 1st DCA 1977). The court distinguished Jerry and Alice P. on the grounds that the petitioners in the case before it were immediately subject to the rule which rendered their continued employment as paramedics unlawful without compliance with the rule. The individuals were presently affected by the rule because they worked in the area to be regulated. 396 So.2d at 1196. In Village Park Mobile Home Association v. Department of Business Regulation, 506 So.2d 426, 412 (Fla. 1st DCA 1987), the court on rehearing emphasized under the test for standing set forth in Fire Fighters that a party may show "that a rule has a real and immediate effect upon his case, as well as injury in fact." Standing was not found in Village Park for certain mobile home owners to challenge agency approval of the prospectus for a mobile home park because the prospectus only disclosed the method for raising rents and reducing services in the future. It was up to the landlord to implement the prospectus at some unspecified date in the future. 6/ Thus, no standing was found because the alleged injury was contingent upon the future actions of a third party. 506 So.2d at 433-34; see also Boca Raton Mausoleum v. Department of Banking, 511 So.2d 1060 (Fla. 1st DCA 1987). In this case, DOT has not alleged that it has suffered an injury in fact by Proposed Rules 22I-6.035 and 22I-6.037. That is not surprising with respect to Proposed Rule 22I-6.037 since it is a new rule that has not been implemented. However, with respect to the proposed amendments to Rule 22I-6.035, dealing with attorney's fees and costs, most of DOT's challenges concern portions of the rule that were not substantially changed in the proposed rule. For example, DOT objects to the provisions requiring an agency to file a response or affidavit and the provisions which allow for a waiver of the right to an evidentiary hearing when one is not affirmatively requested by either party. Rule 22I-6.035 presently contains such provisions. Therefore, the injury in fact test would be applicable. However, DOT has not presented any facts indicating that a prevailing small business party has ever filed a petition seeking costs and attorney's fees from DOT under Florida Equal Access to Justice Act. Consequently, no injury exists. The alternative test for standing is whether the proposed rules would have a "real and immediate effect" upon DOT. With respect to Proposed Rule 22I- 6.035, DOT has not met this test merely by demonstrating that it is a party to pending cases involving small business parties. In order for DOT to be affected by Proposed Rule 22I-6.035, a small business party would first have to prevail against DOT and then file a petition for costs and attorney's fees based upon its belief that DOT was not "substantially justified" in bringing the administrative action. Whether these contingencies, which are controlled by a third party, will occur in the future is open to conjecture and speculation. The type of immediacy envisioned by the court in the Fire Fighters case does not appear to be present with respect to Proposed Rule 22I-6.035. Therefore, DOT does not have standing to challenge this proposed rule. On the other hand, I conclude that DOT has standing to challenge Proposed Rule 22I-6.037. DOT presently has at least nine pending cases involving administrative complaints. The proposed rule on voluntary dismissals would be immediately applicable to DOT's ability to take a voluntary dismissal on those cases without being contingent upon the acts of a third party. Such a real and immediate effect on pending cases involving DOT is sufficient to provide DOT with the requisite standing. DOT does not have to invoke the rule by seeking a voluntary dismissal in order to have standing to challenge the rule as suggested by DOAH. See Professional Fire Fighters of Florida, 396 So.2d at 1195. Invalidity of Proposed Rules 22I-6.006 and 22I-6.037 The Florida Legislature has recently defined what constitutes an invalid exercise of Legislative authority. Section 120.52(8), Florida Statutes, as amended by Chapter 87-385, Section 2, Laws of Florida, provides: (8) "Invalid exercise of delegated legisla- tive authority" means action which goes beyond the powers, functions, duties delegated by the Legislature. A proposed existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a ) The agency has materially failed to follow the applicable rulemaking procedure set forth in s. 120.54; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); The rule enlarges, modifies, or con- travenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or The rule is arbitrary or capricious. These standards are similar to those used by the courts in Florida to test the validity of agency rules. See e.g., Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979); Humana Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). In Agrico Chemical Co., the First District Court of Appeal stated: [I]n a 120.54 hearing, the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule is encompassed within that grant. The burden is upon one who attacks the proposed rule to show that the agency, if it adopts the rule, would exceed its author- ity; that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious. A capricious action is one which is taken without though or reason or irration- ally. An arbitrary decision is one not supported by facts or logic, or is despotic. Administrative discretion must be reasoned and based upon competent substantial evi- dence. Competent substantial evidence has been described as such evidence as a reason- able person would accept as adequate to support a conclusion. The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one. 365 So.2d at 763. In this case DOT has the burden to demonstrate that adoption of Proposed Rules 22I-6.006 and 22I-6.037 would constitute an invalid exercise of legislative authority. Proposed Rule 22I-6.006 DOAH is statutorily authorized "to adopt reasonable rules to carry out the provisions of this act [Chapter 120]." Section 120.65(7), Fla. Stat. (1985). Regarding bid protests, an agency is required to forward a protest to DOAH for an evidentiary hearing in accordance with Section 120.57(1), Florida Statutes (1985), whenever there is a disputed issue a material fact. Section 120.53(5)(d)2, Fla. Stat. (1985). Section 120.57(1) sets forth certain procedures for conducting evidentiary hearings and proceedings where the substantial interests of a party are determined. In light of these statutory provisions, DOAH proposes to amend Rule 6.006 by requiring that an agency send a copy of the notice of hearing to all bidders, other than the protesting bidder, and attempt to telephonically notify these bidders of the date, time, and place the hearing. The purpose of this requirement is to give notice of the deadline to file a motion to intervene in the protest proceeding to the successful bidder, as well as all other bidders who had not filed a timely protest. Motions to intervene must be filed within five days prior to start of an evidentiary hearing. Fla. Admin. Code Rule 6.010. DOT persuasively argues that this portion of Proposed Rule 22I-6.006 requires an agency to do a useless act because any bidder that has not flied a timely protest is precluded from gaining party status in a bid protest proceeding by filing a motion to intervene. I agree. Section 120.53(5), Florida Statutes (1985), requires an agency to provide notice of its decision, or intended decision, concerning a bid solicitation. The notice must contain the following statement: "Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Paragraph (b) of Section 120.53(5), provides: Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120. The formal written protest shall state with particularity the facts and law upon which the protest is based. These statutory provisions are clear and unequivocal. An unsuccessful bidder must file a protest within the 72 hour limitations period in order to participate in further Chapter 120 proceedings. Xerox Corp. v. Florida Department of Professional Regulation, 489 So.2d 1230 (Fla. 1st DCA 1986); see also Capelletti Brothers v. Department of Transportation, 499 So.2d 555 (Fla. 1st DCA 1986)(72 hour deadline applies to protest challenging bid specifications). An adversely affected bidder cannot, and should not be allowed to, gain a back door point of entry to obtain party status in a bid protest proceeding by filing a motion to intervene when the bidder has already waived its right to participate in the proceeding. The only substantially effected entity that would be entitled to intervene in a bid protest proceeding is the successful bidder. Therefore, there would be a valid purpose in adopting a rule that required the successful bidder to receive the notice of hearing so that it would be aware of the deadline for filing a motion to intervene. However, as to all other non-protesting bidders, there is no statutory basis for providing the notice of hearing to them in light of what appears to be a clear prohibition against allowing those bidders to obtain party status after failing to file a timely protest pursuant to Section 120.53(5)(b), Florida Statutes (1985). DOAH argues that the need for subsection (2) of Proposed Rule 22I-6.006 is dramatized by the case of Spillis Candella and Partners, Inc. v. School Board of Dade County, No. 86-3002 Bid. There, the hearing officer determined that the agency never complied with the notice requirements triggering the 72 hour limitations period. Therefore, the protest filed in that case was determined to be timely since the 72 hour time limit had not expired. This single case does not provide justification for requiring agencies to give notice of the evidentiary hearing to all unsuccessful bidders in all bid protest cases. No evidence was adduced indicating that the failure to provide the requisite statutory notice issue raised in the Spillis Candella case had ever occurred in any other bid protest proceeding that had come before a DOAH hearing officer. Even if this had been a recurring problem, subsection (b) of the Proposed Rule 22I-6.006 could have been more closely tailored to remedy issues similar to that raised in Spillis Candella. The rule should have limited an agency's responsibility to provide a notice of hearing to all unsuccessful bidders if the agency had not previously complied with the notice requirements of Section 120.53(5), Florida Statutes (1985). 7/ In light of the foregoing, I conclude that subsection (2) of Proposed Rule 22I-6.006 is arbitrary because it requires agencies to provide notice of a bid protest hearing to bidders who have waived their right to become parties in the proceeding. The rule also contravenes Section 120.53(5)(b), Florida Statutes (1985), which contemplates that only timely protestors may participate as parties in a bid proceeding. 8/ Subsection (3) is also invalid because it requires that an agency provide to the hearing officer proof that it has complied with subsection (2). DOT's remaining objections to Proposed Rule 22I-6.006 are without merit. The fact that all agencies involved in bid protests must adopt rules end procedures for the resolution of such protests, and that the Administration Commission shall also adopt model rules on the same subject, does not indicate a legislative intent to preempt DOAH from adopting rules pertaining to the procedures for conducting bid protest hearings. Section 120.53(5)(a) and (f), Fla. Stat. (1955). In addition, Section 120.57(1)(b), Florida Statutes (1985), does not prohibit non-parties from receiving notice of an evidentiary hearing. Proposed Rule 22I-6.037 DOT advances numerous arguments in support of its contention that subsections (2) and (3) of Proposed Rule 22I-6.037 constitute an invalid exercise of legislative authority. I am persuaded by two of these arguments that DOT's position has merit. First, with respect to subsection (2), the proposed rule provides a hearing officer with the discretion to grant a motion for voluntary dismissal "upon such terms and conditions as the hearing officer deems just and proper." This language fails to provide any guidance to a hearing officer or to the parties in an administrative complaint proceeding as to what conditions a hearing officer could impose for allowing the agency to withdraw its complaint without prejudice. Instead, the rule gives the hearing officer unlimited discretion to impose any condition the hearing officer subjectively believes is "just and proper." These words cannot be construed as words of limitation because it must always be presumed that a hearing officer will rule in a manner that he or she believes is just and proper. Thus the elimination of the "just and proper" language from the rule would not give any more discretion to a hearing officer than is presently granted by the proposed rule. The fact that Florida Rule of Civil Procedure 1.420(2) provides that a trial court may grant a voluntary dismissal filed after submission of a case to the court "upon such terms and conditions as the court deems proper," does not provide a basis for concluding that subsection (2) of Proposed Rule 22I-6.037 is valid. The Rules of Civil Procedure were adopted pursuant to the inherent power of the courts, a power that administrative agencies do not possess. Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748, 753-54 (Fla. 2nd DCA 1985). Agency rules may not violate the standards set forth in Section 120.52(8), Florida Statutes, as amended by Chapter 57-325, Section 2, Laws of Florida. In this case, subsection (2) of Proposed Rule 22I- runs afoul of paragraph (d) of Section 120.52(8), Florida Statutes, as amended, which provides that a rule is invalid if [t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency." Therefore, subsection (2) of Proposed Rule 22I-6.037 is invalid. Subsection (3) of the proposed rule is also invalid but for a different reason. Unlike subsection (2), nothing is left to the parties' imagination as to the consequences an agency will encounter if it files a notice of voluntary dismissal of an administrative complaint containing nonjurisdictional allegations that were previously the subject of a voluntary dismissal. Those nonjurisdictional factual allegations contained in both complaints will be deemed dismissed with prejudice. The issue with regard to this rule provision is whether DOAH has the statutory authority to adopt a rule that requires dismissal of an administrative complaint with prejudice under these circumstances. Although no cases are directed on point, two district court of appeal decisions are instructive. In Great American Bank v. Division of Administrative Hearings, 412 So.2d 373 (Fla. 1st DCA 1981), the First District Court of Appeal revised a hearing officer's order imposing sanctions for a party's failure to make discovery and for a witness' failure to give responsive testimony. The court ruled that certain portions of the model rules, which purported to give such authority to a hearing officer, were invalid because they conflicted with the discovery enforcement provisions found in the Administrative Procedure Act. Section 120.58(3), Fla. Stat. (1981). The Legislature subsequently amended Section 120.58 to specifically grant hearing officers the authority to pose sanctions to effect discovery. Ch. 84-173, Laws of Florida. In Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748 (Fla. 2d DCA 1985), the Second District Court of Appeal declared Model Rule 28-5.211 invalid to the extent the rule authorized a hearing officer to impose sanctions, including dismissal, to enforce procedural orders. The court rejected the argument that the same general rulemaking authority relied upon by DOAH as authority for Proposed Rule 22I-6.037, Sections 120.53 and 120.65(7), Florida Statutes (1985), authorized the model rule. Rather, any rule that provides a sanction in the form of a penalty must be based upon explicit statutory authority such as that found in Section 120.58(1)(b), Florida Statutes (1985), or Section 120.57(1)(b), Florida Statutes (Supp. 1986). 9/ 472 So.2d at 747-48. Subsection (3) of Proposed Rule 22I-6.037 imposes the sanction of dismissal with prejudice. However, in contrast to the specific saction authority granted to hearing officers in Sections 120.58(1)(b) and 120.57(1)(b)5, no provision in Chapter 120 specifically authorizes DOAH to impose a sanction under the circumstances set forth in subsection (3) of Proposed Rule 22I-6.037. Therefore, while I find the purpose of adopting subsection (3) of the proposed rule, to ensure failness, is laudable, this portion of the rule is invalid because DOAH does not possess the requisite legislative authority to adopt such a rule. Section 120.52(5)(b), Fla. Stat., as amended by Ch. 87-358, Section 2, Laws of Florida.
The Issue Whether Petitioner's application for registration as a trainee real estate appraiser should be denied on the ground set forth in the Florida Real Estate Appraisal Board's Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a 35-year-old divorced man (born in October 1972) who resides in Miami-Dade County, Florida, with his parents. He is the father of a six-year-old son whom he shares custody of with his former wife. In early 2003 (when he was 30 years of age), fueled by a desire to increase his wealth, Petitioner engaged in the trafficking of counterfeit Procrit to drug wholesalers. (Procrit is a prescription drug manufactured by Amgen, Inc.) In so doing, Petitioner recklessly exposed the intended consumers of these counterfeit drugs to the risk of serious bodily harm. Prior to engaging in this criminal enterprise, Petitioner had lived a law-abiding life. Petitioner was arrested on or about February 28, 2003, and subsequently charged in the United States District Court for the Southern District of Florida with the federal crime of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320. The information against Petitioner alleged, in pertinent part, that, "[f]rom on or about January 20, 2003 to on or about February 27, 2003, at Miami, Miami-Dade County, in the Southern District of Florida, and elsewhere, the defendant, Eddy Gorrin, did intentionally traffic and attempt to traffic in goods, that is, Procrit prescription drugs, and knowingly used a counterfeit mark on and in connection with such goods without authorization from Amgen, Inc., such mark being identical with and substantially indistinguishable from the genuine mark in use and registered for those goods by Amgen, Inc. on the principal register in the United States Patent and Trademark Office, and the use of which counterfeit mark was likely to cause confusion, to cause mistake, and to deceive." With Petitioner's post-arrest assistance, the authorities recovered all of the counterfeit Procrit that Petitioner and his co-perpetrators had distributed. On or about May 22, 2003, Petitioner entered into a plea agreement with the federal prosecutor's office. The agreement provided, in pertinent part, as follows: The defendant agrees to waive prosecution by indictment and plead guilty to Count One of an Information, which charges the defendant with intentionally trafficking and attempting to traffic in goods and knowingly using a counterfeit mark on those goods in violation of Title 18, United States Code, Sections 2320 and 2. The defendant is aware that the sentence will be imposed in conformity with the Federal Sentencing Guidelines and Policy Statement (hereinafter "Sentencing Guidelines"), and that the applicable guidelines will be determined by the Court. The defendant is also aware that a sentence imposed under the guidelines does not provide for parole. Knowing these facts, the defendant agrees that this Court has jurisdiction and authority to impose any sentence within the statutory maximum set for his offense. This Office and the defendant agree that, although not binding on the Probation Office or the Court, they will jointly recommend that the Court make the following findings and conclusions regarding the applicable Sentencing Guidelines: Applicable Offense Guideline: That pursuant to Section 1B1.2(a) of the Sentencing Guidelines, the offense guideline applicable to the defendant's offense is Section 2B5.3 of the Sentencing Guidelines, which provides for a base offense level of eight; Amount of Loss: That under Sections 2B1.1(b)(1) and 1B1.3 of the Sentencing Guidelines, the amount of loss resulting from the defendant's offense conduct is between $200,001 and $400,000, increasing the defendant's offense level by twelve levels. Manufacture of Counterfeit Drug: That under Section 2B5.3(b)(2) of the Sentencing Guidelines, the defendant's offense involved the manufacture of the counterfeit prescription drug Procrit and that his offense level should therefore be increased by two levels. Conscious or Reckless Risk of Serious Bodily Injury: That under Section 2B5.3(b)(4) of the Sentencing Guidelines, the defendant's offense involved the conscious or reckless risk of serious bodily harm, and that as a result, his offense level should be increased by two levels. Acceptance of Responsibility: That under 3E1.1 of the Sentencing Guidelines, the Sentencing Guideline level applicable to the defendant's offense should be reduced by three levels based upon his recognition and affirmative and timely acceptance of personal responsibility for the offense, provided further that the defendant makes a full, accurate and complete disclosure to the United States Probation Office of the circumstances surrounding defendant's relevant conduct and does not engage in any misconduct after entering into this agreement . . . . Other Adjustments: That no other additional downward adjustments from Chapters 2 or 3 of the Sentencing Guidelines are applicable in this case. Restitution and Fine: That pursuant to Section 5E1.1(a) of the Sentencing Guidelines, the defendant agrees that he shall pay restitution in the amount of $8,000 to the U.S. Food and Drug Administration, which takes into account the $25,000 voluntarily restituted in March 2003, prior to the filing of the information in this case. It is also agreed that this payment will be a condition of the defendant's probation and/or supervised release. After a through review by the parties of both the offense conduct and the application of the Sentencing Guidelines to this offense conduct as outlined in paragraph 3 of this Agreement, this Office and the defendant agree, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, that the applicable total resulting offense level in this case is an offense level 21. This Office does not object to the defendant's request to be sentenced at the low end of the guideline range, that is, 37 months. The defendant understands and agrees that the Court may impose any sentence authorized by law and that the defendant may not withdraw his plea solely as a result of the sentence imposed. The defendant also understand and agrees that the Court may impose a statutory maximum term of imprisonment of up to ten years, followed by a maximum supervised release term of three years. In addition to a term of imprisonment and supervised release, the Court may impose a fine up to $2,000,000. The defendant understands and agrees that, in addition to any sentence imposed under paragraph 5 of this agreement, a special assessment in the amount of $100 will be imposed on the defendant. The defendant agrees that any special assessment imposed shall be paid at the time of sentencing. The defendant is aware that the sentence has not yet been determined by the Court. The defendant is also aware that any estimate of the probable sentencing range that he may receive from his counsel, the government or the Probation Office, is a prediction, not a promise, and is not binding on the government, the Probation Office or the Court. * * * After entering his plea of guilty, Petitioner was sentenced to 37 months in federal prison. He was also fined and ordered to pay restitution. Petitioner began serving his prison sentence on October 16, 2003. While in prison, Petitioner took a correspondence course in real estate appraising. He also participated in and completed a nine-month alcohol rehabilitation program (for which he was eligible because he had a history of alcohol abuse). As a result of his completion of the program, his prison sentence was shortened. In March 2005, Petitioner was released from prison and placed on supervised probation for a period of three years. For the first six months of his probation, Petitioner was under house arrest and had to wear a monitoring device on his ankle. Petitioner's probation officer recommended that he be discharged early from probation inasmuch as he had "complied with the rules and regulations of probation/supervised release and [was] no longer in need of supervision." On November 22, 2006, the sentencing judge issued an order adopting this recommendation and discharging Petitioner from probation. Since his release from prison in March 2005, Petitioner has led a crime-free life and become a productive member of society. He has abstained from the use of alcohol, with the exception of having an occasional glass of wine. He has gone back to school and completed the necessary coursework to obtain his Associate of Arts degree from Miami- Dade Community College. He has been gainfully employed throughout the post- incarceration period. From March 2005, to April 2006, Petitioner worked for two companies owned by Patsy Stecco: Mortgage Processors of South Florida, Inc., where he helped process mortgages, work that required him to handle money (which he did without incident); and Buyers Home Connection, Inc., where he was a credit analyst with managerial responsibilities. During this time period, he took a "real estate mortgage broker course . . . to get more of an understanding of what the work entail[ed]." Ms. Stecco has known Petitioner for the past ten years,1 having first met him "through a niece of [hers who] was friend[ly] with his ex-wife."2 Ms. Stecco was aware of Petitioner's criminal past when she hired him. In April 2006, Petitioner went to work for a Florida- certified residential appraiser, Gaston Gosselin, Jr. Mr. Gosselin owns his own appraisal business, Precision Appraisers and Company, Inc. He hired Petitioner based upon Ms. Stecco's recommendation. Before hiring Petitioner, Mr. Gosselin did not inquire as to whether Petitioner had a criminal record, and Petitioner did not volunteer that he did. It was not until two or three months after Petitioner began working for him that Mr. Gosselin found out (from Ms. Stecco) about Petitioner's criminal past. When Mr. Gosselin confronted Petitioner about the matter, Petitioner was candid and forthright, and he apologized to Mr. Gosselin for not making the disclosure sooner. While Mr. Gosselin was concerned about Petitioner's "initial[]" lack of openness regarding the matter, Petitioner had so impressed him during the "short time" they had known each other that, despite this concern, Mr. Gosselin retained Petitioner as an employee. Petitioner did research and marketing work for Mr. Gosselin. He also assisted with office personnel matters. In February 2008, Mr. Gosselin had to let Petitioner go because, due to deteriorating business conditions, he could no longer afford to keep Petitioner on the payroll. He has "stayed in touch" with Petitioner, however, and now "consider[s] him a friend." Ms. Stecco and Mr. Gosselin (both of whom testified, credibly, at the final hearing on Petitioner's behalf3) found Petitioner to be a hardworking, quick-learning, reliable, dedicated, competent, honest, and trustworthy employee. Mr. Gosselin would not hesitate to serve as Petitioner's supervising appraiser were Petitioner's application for registration as a trainee real estate appraiser to be granted.4 He believes that Petitioner would be a "great asset to [him] and [his] business." Since February 2008, Petitioner has been a staffing manager with Robert Half International (RHI). RHI does not "know about [Petitioner's] criminal history." It has not "inquire[d] [of Petitioner] about [his] criminal past," and Petitioner has not come forward and made any unsolicited disclosures regarding the matter. In addition to working full-time for RHI, Petitioner works evenings and weekends for his father's company, EDGO General Consulting Services, Inc. (EDGO), which "owns rental properties." Petitioner collects rents and makes deposits, as well as does needed repair work, for the company. Petitioner had worked for EDGO prior to his incarceration. In 2001, he was "involved in overseeing" a residential construction project undertaken by the company. In applying for the staffing manager position he now holds with RHI, Petitioner submitted a copy of a resume, wherein he had listed, "oversee construction development of single family spec homes," as one of his duties at EDGO. In so doing, he meant to convey that "oversee[ing] construction development of single family spec homes" was one of things that he had done during his employment with EDGO, not that it was among his current job duties. The resume also contained the following entry regarding his employment with Precision Appraisers and Company, Inc. (under the heading of "Professional Experience"): Precision Appraisers & Company, Inc., Office Manager/Appraiser 04/2006-02/2008 Establish productive marketing strategies and incentives for existing and potential clients. In charge of interviewing new prospective personnel for clerical and administrative positions. Research all records of properties being appraised and provide all information to the appraiser performing the appraisal. Organize bi-weekly payroll for staff and independent contractors. It was Petitioner's intent, in describing his position as "Office Manager/Appraiser," to indicate that he was an "office manager for an appraiser firm," not that he himself was an appraiser. Under the heading of "Education/Qualifications" on the resume appeared the following: Real Estate Appraiser Real Estate Mortgage Broke[r] Associates in Arts, Business Administration Petitioner listed "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" under this heading to indicate that he had taken "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" coursework. He did not mean to represent that he was authorized to act as a "Real Estate Appraiser" and a "Real Estate Mortgage Broke[r]." While the resume entries discussed above were not models of precision, neither were they intentionally deceptive. Petitioner has become a more mature and responsible person than he was at the time he engaged in the criminal conduct that led to his incarceration. He is repentant and remorseful about his crime and recognizes the importance of his being a positive role model for his son. He understands all too well what his ill-advised decision five years ago has cost him and his family, particularly his son, who did not have a father around during the time Petitioner was in prison. More importantly, he feels "terribly" about the potential harm to which he exposed the public and is "thankful that no one was [actually] harmed." Petitioner is embarrassed and ashamed of what he did and is committed to not making the same mistake again in the future and jeopardizing his freedom and ability to be with his son and the rest of his family. He has "learned [a] lesson" from the price he and his family has paid for his one criminal indiscretion. He has no intention of ever "put[ing] [him]self in a position like that again." In short, in the five years that have passed since his crime, Petitioner has been rehabilitated, and it appears that the interest of the public will not likely be endangered if he is granted the registration he seeks and is able to work as a trainee real estate appraiser under the supervision of a licensed or certified appraiser.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order granting Petitioner's application for registration as a trainee real estate appraiser. DONE AND ENTERED this 11th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 11th day of July, 2008.
Findings Of Fact At all times pertinent to the allegations herein the Division of Real Estate was the state agency responsible for the licensing of real estate sales persons and brokers and the regulation of the real estate profession in Florida. Respondent, Diana C. Verdi, was licensed as a real estate salesperson under license number 0545114, and Respondent, Realtec Group, Inc., was licensed as a real estate broker under license number 0273784. Respondent, Verdi, was employed by Respondent, Realtec, at its office at 3474 Tampa Road, Palm Harbor, Florida. On October 23, 1993, Respondent Verdi, while working for Respondent, Realtec, solicited and obtained an offer from James and Maureen Herhold, to purchase residential property owned by J. and K. Griffin. The contract called for the placement of a $50,000 non-refundable deposit with Realtec, and allowed the Herholds to move in on October 30, 1993, with closing to be held on November 30, 1993. The contract also provided that once the Herholds moved into the house, the Griffins would no longer be responsible for any repairs or maintenance needed by the property. Prior to moving in, the Herholds requested that Respondent, Verdi, obtain for them a seller's disclosure statement which would list any material defects in the property known to the sellers. In that regard, the Griffins' listing agent, Marta Shank, had previously requested they prepare such a statement. The statement was prepared on August 20, 1993, and reflected that the only known defect was a shower leak which had purportedly been fixed and a shower wall which had purportedly been replaced. Notwithstanding the Herholds repeatedly requested the disclosure statement from Respondent, Verdi, and notwithstanding such a statement had been prepared by the Griffins, the statement was not furnished to Respondent, Verdi, by Ms. Shank and, thereafter, to the Herholds until after they moved into the property. Consistent with the terms of the contract, the Herholds were required to pay for the repairs to the shower and shower wall which, it appears, were not properly repaired prior to their move into the property. At closing the Herholds requested the Griffins reimburse them for the cost of the repairs, which was not done. In the interim, however, and before the Herholds moved into the property, Respondent, Verdi, as was her custom in all residential sales, insisted that the Herholds obtain an independent inspection of the home. Mr. Herhold admits she did this. She claims she would not sell a home without this being done. This inspection, conducted by an inspector of the Herholds' choosing, failed to disclose any defect in the shower or shower wall. Respondent, Verdi, also suggested that since her repeated efforts to obtain the disclosure statement were unsuccessful, Mr. Herhold contact the Griffins or their agent directly. She also suggested to him that if he were not satisfied with the condition of the house, or if he had any qualms about moving in without the disclosure statement, he should not move in until he received it. This was verified by Ms. Kissner. Herhold elected not to do this, however, because he feared he might lose his deposit. Respondent, Verdi, represents herself as being an experienced and successful real estate salesperson, and there appears little reason to doubt that representation. She contends that though she never went to Shank's office to pick one up, she repeatedly asked Ms. Shank, the selling agent, for a disclosure statement as she always does, and her testimony in this regard is supported by that of both Ms. Kissner and Mr. Scarati. Both repeatedly tried to contact the selling office to obtain a disclosure statement but their calls were either nonproductive or not returned. There is some indication that when Ms. Verdi asked Ms. Shank for a disclosure statement, she was told that none existed. After the closing, when Mr. Herhold was unable to obtain a reimbursement from the Griffins for the cost of repairs, he filed suit against Realtec, Verdi, Shank and her agency, Coldwell Banker and his own inspection service. He admits that, at court, when he was asked by the judge who he believed was responsible, he did not know. He sued Verdi because he had asked her for a disclosure statement which she did not give him. He claims the sale was not an "as is" sale. At hearing, he was awarded $835.20 plus costs against Verdi and Realtec. She did not pay right away and sought the advice of counsel. When Herhold found she was listing her own home for sale, he filed a lien against it. As a result of that action, because she determined that fighting the lien would cost more than the amount involved, she paid the judgement even though she believed the judgement to be in error. Realtec paid nothing. No evidence was presented as to exactly when the judgement was satisfied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaint filed in this matter against Respondents Diana C. Verdi and Realtec Group, Inc., t/a Re/Max Realtec Group, be dismissed. RECOMMENDED this 6th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 6th day of September, 1995. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802 Diana C. Verdi 2474 Tampa Road Palm Harbor, Florida 34684 Realtec Group, Inc. percentRe/Max Realtec Group 3474 Tampa Road Palm Harbor, Florida 34684 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
