The Issue Should Petitioner's request for exemption from disqualification from employment in a position of trust or responsibility be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of requiring security background investigations of persons employed by employers under its jurisdiction and licensing powers in positions designated by law as positions of trust or responsibility. The purpose of the security background screening is to determine if there are individuals who have committed an offense which would disqualify the individual from working in positions designated by law as positions of trust or responsibility. Petitioner was employed at the Peace River Center for Personal Development, Inc. (Peace River Center) in Polk County, Florida, as a counselor for abused or chemically-dependent children. This job required that Petitioner be screened in accordance with Chapter 435, Florida Statutes. This screening revealed a felony conviction which disqualified Petitioner from his employment. Petitioner and Peace River Center were notified on February 3, 1997. As required by law, Peace River Center removed Petitioner from contact with children and assigned him to other duties. On August 31, 1990, Petitioner was charged with vehicular homicide, a felony, to which he pled nolo contendre. Adjudication was withheld. Petitioner served 3 years probation and paid costs of $275.00. The pertinent facts surrounding the accident are: (a) Petitioner was traveling at approximately 75-to-80 miles per hour in a 45 mile-per-hour zone when he struck and killed a pedestrian who was attempting to cross the street; (b) The victim was a married woman in her mid 50's with an adult son; (c) Petitioner had no excuse for the excessive speed; (d) Both Petitioner and his passenger were severely injured; and (e) There were no drugs or alcohol involved. Petitioner received some counseling after the accident; however, he currently is not receiving any counseling. Even though Petitioner testified that his inability to hold a job was related to the accident, there was no indication that Petitioner felt he needed or intended to get counseling in this regard. Petitioner graduated from high school and has completed approximately 30 hours toward his college degree. Petitioner is planning to begin college again and work toward a degree in Management Information Systems. Since the accident, Petitioner has held six different jobs. Presently, Petitioner is working with Peace River Center (see Finding of Fact 3). Before being disqualified, Petitioner appeared to be doing a credible job for Peace River Center. In April 1994 and March 1996, Petitioner was involved in automobile accidents wherein Petitioner was charged with reckless driving. No one was injured in these accidents, and there was only minimal property damage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Families enter a Final Order denying Petitioner's request for an exemption from disqualification for employment in positions of trust and responsibility. DONE AND ENTERED this 19th day of August, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1997. COPIES FURNISHED: Scot Adams, pro se Post Office Box 212 Highlands City, Florida 33846 Jack Emory Farley Chief Legal Counsel District 14 4720 Old Highway 37 Lakeland, Florida 33813-2030 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact In a case before the Seventh Judicial Circuit, St. Johns County, Florida, Case No. 2154, the 16 Mile Creek Water Control District, a drainage district, was incorporated pursuant to provisions in Chapter 298, Florida Statutes. Subsequently, in Special Act 87-502, the Florida legislature changed the name of 16 Mile Creek Water Control District to Flagler Estates Road and Water Control District. This special act became law without the governor's approval. On December 3, 1990, the District employed Ms. Underwood. From that date until September 1, 1994, Ms. Underwood was employed as a part-time administrative secretary and at times served as secretary to the District governing board. At various intervals Ms. Underwood's work performance was reviewed. The more recent evaluations were made on April 1, 1993 and October 20, 1993, in which the District through its supervisor found that Ms. Underwood met performance expectations in fulfilling her job. On April 7, 1994, Horace Freeman, Sr. was placed on the District's Board of Supervisors. The Board of Supervisors was ultimately responsible for Ms. Underwood's employment with the District. Freeman's principal concerns when taking office were related to procedures followed in the District's administrative office, accountability for equipment and proper utilization of manpower in the District. At that time, Messrs. Martin and Cox were the other Board members. Mr. Martin was the Board President. Mr. Freeman also believed that Chapter 298 required that the minutes be kept appropriately together with other important documents concerning the District's operations. On June 18, 1994, Bobby Stewart was elected to the Board of Supervisors. He took Mr. Martin's position on the Board. Immediately following those events Mr. Freeman was elected Board President. Mr. Stewart became Secretary to the Board. Mr. Cox's service on the Board included dates through September 15, 1994. He was replaced on an interim basis by Mr. Rousseau. In June, 1995, Mr. Rousseau was elected to fill the position that Mr. Cox had filled. Upon taking office as Board President, Mr. Freeman placed Mr. Stewart in charge of the Board's administrative functions. Mr. Freeman, as President was responsible for the overall District operations. In that capacity he instructed Mr. Stewart and Ms. Underwood to update the Board minutes. Mr. Freeman was interested in establishing definite policies and procedures to be followed by the District. He believed that the policies and procedures that existed when he took office were not adequate. When Mr. Freeman took office there was a personnel manual in effect that contained a limited number of instructions as to rights and opportunities for all citizens to be employed with the District; working hours; pay periods; holidays; paid leave; responsibilities of the foreman of the District, who is the day-to-day supervisor at the District; evaluation of employees, and the basis for modification of the personnel manual. The manual made the foreman of the District responsible for interviewing, hiring, and terminating employees with the consent and approval of the Board of Supervisors. The foreman was expected to evaluate each employee of the District once every six months. These evaluations were to be presented to the Board of Supervisors on October 1 and April 1 of each year. The expectation was that the evaluations would be discussed with the employee before presentation to the Board and would be used as a tool to improve employee performance. Before Mr. Freeman and Mr. Stewart took office as Board members, the April 1, 1994 evaluation for Ms. Underwood had not been conducted. In the personnel manual under the heading "Modification of Personnel Manual", the Board reserved the right to make changes to the personnel manual by additions, deletions, or other modifications and to set forth supplemental regulations related to personnel and personnel policy. Under the terms of the personnel manual in effect when Mr. Freeman and Mr. Stewart took office, the District working hours were 7 a.m. to 5:30 p.m., Monday through Thursday. District employees were given 1/2 hour for lunch period and a 15 minute break in the morning and a 15 minute break in the afternoon. Concerning paid leave, employees who were employed for a period of six months accrued 40 hours of annual leave and 20 hours of sick leave. Beyond that initial six months period the employee would earn leave at the rate of 80 hours per year annual and sick leave at 40 hours per year, with sick leave not to exceed a maximum of 200 hours. Ms. Underwood was an employee subject to the terms of the personnel manual that have been discussed. In addition to the personnel manual, the District had a set of statements referred to as the "standardized employee requirements and expectations." This document was modified by Mr. Freeman. In pertinent part this set of requirements and expectations indicates that "excessive tardiness will not be tolerated." That document intimated that prior approval from the Board of Supervisors would be necessary if the employee intended to be late for work. In March 1993 Ms. Underwood had been made aware of the provision concerning tardiness. On June 20, 1994, a meeting was held between Mr. Freeman, Mr. Stewart and Ms. Underwood. At that meeting Mr. Freeman told Ms. Underwood that Mr. Stewart was assuming administrative duties for the Board. At times in the past Ms. Underwood had performed those duties as Board secretary. Under those past arrangements Ms. Underwood as Board secretary reported directly to the Board of Supervisors. Under the arrangements imposed by Mr. Freeman, Ms. Underwood would report to Mr. Stewart who in turn reported to the full Board. In effect, Ms. Underwood was the secretary to Mr. Stewart who was the secretary to the Board. When Mr. Stewart assumed his duties as Board Secretary, Ms. Underwood was not working in that capacity. At that time Ms. Underwood was the administrative secretary in the District office. At the June 20, 1994 meeting Mr. Freeman offered the opportunity for Ms. Underwood to become a full-time employee working 40 hours a week. Mr. Freeman also offered the opportunity to go from the District office to the City of Hastings for her lunch period, assuming her willingness to accept a one hour lunch period, given that the trip to Hastings and back to the District could not be made in 30 minutes. Mr. Freeman specifically told Ms. Underwood that she could not go to Hastings, get her lunch and come back to the District and eat her lunch. Ms. Underwood was left to consider the options to become a full-time employee and expand her lunch period. Ms. Underwood was given a week to decide how much time she wished to work and what lunch hour she wished to use. At the time the discussion was made concerning hours of work, Ms. Underwood was working four days, 32 hours a week. By accepting the 40 hour work week she would be entitled to the benefits of a full time employee. When the question of her work hours was brought to Ms. Underwood's attention again one week beyond the June 20, 1994 conversation, Ms. Underwood was not interested in changing her hours of employment or lunch period. Ms. Underwood was reminded that she would not be allowed to go to Hastings to get lunch and then drive back and still operate under the 30-minute lunch period. In summary, Ms. Underwood continued in her work day of 8 a.m. to 4:30 p.m., Monday through Thursday with 30 minutes for lunch. On June 20, 1994, Mr. Freeman explained to Ms. Underwood that Mr. Stewart would be working and training in the District office on a daily basis. Ms. Underwood was told to show Mr. Stewart all the daily functions of the office, having in mind that Mr. Stewart would make a presentation to the full Board concerning any changes that were needed in the office operations. In the June 20, 1994 meeting Mr. Freeman mentioned the need to update the District Book of Records. Mr. Freeman also mentioned the need to replace the cover to the Book of Records in that the old Book of Records referred to 16 Mile Creek instead of Flagler Estates Road and Water Control District. It was Mr. Freeman's intention to purchase a new binder with a correct title. In particular, Mr. Freeman discussed the need to organize the documents necessary to compile the Book of Records for the District. Ms. Underwood never started this task. Mr. Freeman reminded Ms. Underwood once a week to accomplish the organization of documents for compiling the Book of Records. In the beginning, during the weekly discussions, Ms. Underwood would tell Mr. Freeman that the project to organize documents necessary for the book of records had begun. Then Ms. Underwood told Mr. Freeman that the work had been completed. These remarks to Mr. Freeman concerning the completion of that task were made at a Board meeting in August, 1994. In this conversation Mr. Stewart was there to observe and not comment. On the June 20, 1994 date, a written document was produced and discussed. It was directed to Ms. Underwood and read to her. Ms. Underwood protested that this arrangement in which Mr. Stewart sat there while Mr. Freeman read the document was in violation of her rights. Ms. Underwood stated that Mr. Freeman had no right talking to her as an employee with another supervisor in the office. Mr. Freeman stated that Mr. Stewart was not there to make comments, rather Mr. Stewart has been brought into the room so that he would be aware of what Mr. Freeman was presenting to Ms. Underwood. If Ms. Underwood questioned Mr. Freeman concerning the discussion, then Mr. Stewart would be aware of those topics. When the June 20, 1994 document was presented to Ms. Underwood she did not question its substance. In the June 20, 1994 document presented to Ms. Underwood, Ms. Underwood was told that she was to report directly to the Secretary of the Board, Mr. Stewart. She was told that she was responsible for the daily secretarial duties associated with the administrative affairs of the District Office and matters directed by the Board of Supervisors. Her working hours and lunch period were not filled in pending her decision. Those working hours and lunch period, once the decision was made, would be complied with unless the President or Secretary of the Board instructed Ms. Underwood otherwise. The written document told Ms. Underwood that Mr. Stewart would be working/training in the Office on a daily basis and that she should show Mr. Stewart all functions and daily procedures. Those procedures were to be recorded by Mr. Stewart and that information would be forwarded to the Board of Supervisors for review and establishment of new written procedures to be used by the District. Through discussion and through the document presented to Ms. Underwood, Ms. Underwood was made aware that accounts payable would be placed in chronological order. Ms. Underwood was told through the written document that all forms being used by the District would be reviewed for update and change by July 7, 1994. Moreover, the book of records would be updated and assembled to meet the guidelines in Chapter 298 and the Florida Administrative Code by July 7, 1994. On the week following June 20, 1994, Mr. Freeman reminded Ms. Underwood that the verbatim tapes of meetings and workshops conducted by the Board had not been removed from the floor and placed in the fireproof cabinet as he had told Ms. Underwood to do on June 20, 1994. When Mr. Freeman made his comments on the week following June 20, 1994, Ms. Underwood said that there was no room in the fireproof cabinet. She wanted to know what she was supposed to do to deal with the lack of space in the cabinet. Mr. Freeman told her to keep documents in the fireproof cabinet going back about 5 years and remove the documents older than 5 years and put them in regular cabinets that were not fireproof. Mr. Freeman explained that the tapes of the meetings were more important than some of the documents that were in the file cabinet. These tapes were official records of the District and needed to be protected against destruction. The tapes were in a box sitting on the floor. The dates of the tapes went back several years. In the discussion which Mr. Freeman had with Ms. Underwood about a week after the June 20, 1994 meeting, Mr. Freeman also told Ms. Underwood that she needed to take some of the old records out of the fireproof cabinet, because those records in the cabinet needed to be "straightened out", as well as providing space to protect the tapes. On July 7, 1994, at a Board meeting, Mr. Freeman discussed the employee work assignments for the District, to include Ms. Underwood. At that meeting the employees were presented with a memo concerning work assignments. In addition rules and directives were discussed and a document prepared and provided to the employees concerning rules and directives for employees. The document concerning rules and directives reminded the employees that the administrative office was the responsibility of Mr. Stewart as Board Secretary and Ms. Underwood as secretary to Mr. Stewart. The administrative office, in accordance with this memorandum, was responsible for, among other things, legal records, contracts, bids, materials requested, warrants, and the Book of Records. The rules and directives which pertain to Ms. Underwood and other employees, and about which Ms. Underwood was made aware, indicated that District employees would not leave the District grounds during work hours without the knowledge and approval of the Board or its designee. Employees were made aware that violation of rules and standards set forth by the District Board would result in disciplinary action, including the possibility of termination. The employees did not question the contents in the July 7, 1994 memorandum concerning rules and directives while in attendance at the July 7, 1994 meeting. Mr. Freeman gave verbal instructions to Ms. Underwood about compiling the minutes of the District commencing in 1971 and continuing into the future. Mr. Freeman told Ms. Underwood once a week for several weeks and at Board meetings that the minutes needed to be compiled. This work was not done until January 15, 1995, following Ms. Underwood's departure from the District. In particular, Ms. Underwood was expected to compile the original minutes and place them in a book that was already in existence. Ms. Underwood did not do this. The minutes were to have been copied between June 20 and July 7, 1994 and the originals placed in the fireproof cabinet. Copies were for purposes of public access. The minutes were not copied. Mr. Freeman told Ms. Underwood on a weekly basis, commencing June 20, 1994, to make copies of the original minutes and then place the originals in a fireproof cabinet. When Ms. Underwood would tell Mr. Freeman that there was not room in the cabinet to place the minutes, that is when Mr. Freeman told her to remove some of the older files and put them in another cabinet. Later when room was made to place the original minutes in the fireproof cabinet, it took approximately 5 to 10 minutes to remove other items to make room. Although Mr. Freeman told Ms. Underwood on June 20, 1994 and once a week beyond that date to make copies of the original minutes for public inspection, Ms. Underwood did not do this. The reasons which Ms. Underwood gave for not accomplishing this task that she did not have time or it would just take a little while. At one Board meeting Ms. Underwood told Mr. Freeman that the minutes had been copied and were up to date, when in fact they had not been. This occurred on the first Board meeting in August, 1994. Ms. Underwood did not update the overall office files as required by instructions given on June 20, 1994. Mr. Freeman recounts that Ms. Underwood had been told to update the District files concerning warrants, bills, and information about venders with whom the district did business. The District files had not been in order in the past. Ms. Underwood was instructed to get them in order and the Board allowed Ms. Underwood to use a previous color-code system for updating files, a numbering system or an alphabetical system. Mr. Freeman expected Ms. Underwood to update the files as to vender accounts, warrants and bills, within 30 days from June 20, 1994. Other files that needed to be updated, unassociated with vendor accounts, were to be concluded within a "short time" based upon a representation from Ms. Underwood to Mr. Freeman as to time needed to accomplish the task. Mr. Freeman told Ms. Underwood that in cleaning out the fireproof cabinet that she could make room by taking out vendor information prior to the 1990's. As described Mr. Freeman, commencing June 20, 1994, he instructed Ms. Underwood to put verbatim tapes of Board meetings in the fireproof cabinet. Mr. Freeman reminded Ms. Underwood to do this on a weekly basis. Ms. Underwood never moved the tapes from where they were located and into the fireproof cabinet. Mr. Freeman observed Ms. Underwood entering the Lil' Champ in Hastings, Florida, to get her lunch. He made this observation on two occasions. On one occasion the observation was made at 1:10 p.m. Mr. Freeman consulted with Mr. Stewart and was told that Mr. Stewart had not given permission for Ms. Underwood to go to Hastings at lunch. For the two occasions upon which Mr. Freeman saw Ms. Underwood in Hastings getting lunch, Ms. Underwood made no adjustment to her time records to reflect that she took longer than 30 minutes for her lunch period. Ms. Underwood was obligated to make that adjustment to the time records. Concerning the two occasions upon which Mr. Freeman had seen Ms. Underwood getting lunch at Hastings, this was subsequent to June 20, 1994, when Ms. Underwood had been told that she could not go to lunch and bring the lunch back and eat at the District. Ms. Underwood had not started the project of copying the original minutes for public inspection, replacing the original minutes in the fireproof cabinet, updating District files and making room in the fireproof cabinet for the verbatim tapes of Board meetings and workshops when Ms. Underwood was suspended on September 1, 1994. On June 21, 1994, Mr. Stewart met Ms. Underwood. He told Ms. Underwood to make copies of the minutes and place the originals in the fireproof cabinet. He also told Ms. Underwood to take the verbatim tapes of Board meetings from the floor and put them in the fireproof cabinet. At that point, Ms. Underwood made no comment about the instruction concerning placing the tapes in the fireproof cabinet. As Mr. Stewart clarified in his testimony the original minutes were in the fireproof cabinet and were to be returned to that cabinet once copies were made. The copies of the minutes were to be used to serve the public and need not be placed in the fireproof cabinet. On June 21, 1994, Mr. Stewart told Ms. Underwood to update District files for the last five years and put earlier files in storage by placing the earlier files in a box and putting them upstairs after labeling the earlier files. This referred to placing the earlier files in an upstairs area to the District offices. Later on, Ms. Underwood stated that there was not room in the fireproof cabinet. Mr. Stewart reminded Ms. Underwood that if the files for the work period earlier than the last five years were removed, then there would be room in the fireproof cabinet for the tapes. On June 21, 1994, Mr. Stewart told Ms. Underwood that he wanted Ms. Underwood to compile the records to be placed in the Book of Records and to make copies of those original documents for a duplicate book of records. In compiling the Book of Records, Ms. Underwood was to take into account the records of the supervisors who ran the District's daily operations. The Book of Records includes transactions of the Board of Supervisors, minutes, legal documents, publications, and the accountant's report, together with any other record of the official business of the Board. Following the June 21, 1994 conversation, Mr. Stewart came to the District office approximately every day. On these visits, Mr. Stewart would remind Ms. Underwood concerning the need to make the copies that were referred to on June 21, 1994. From July 19 through July 29, 1994, Ms. Underwood missed work due to illness. After Ms. Underwood's return to work from her illness, Mr. Stewart made mention about making the copies that were discussed with her on other occasions. Ms. Underwood never began the project for organizing the Book of Records and making copies for a duplicate Book of Records. This failure was discussed with Ms. Underwood on several occasions, to include the date upon which Mr. Stewart decided to recommend to the Board that Ms. Underwood be suspended. Ms. Underwood did not make any progress in updating the files, as required by Mr. Stewart. Mr. Stewart examined the files and could not ascertain that the files had even been moved following his instructions to Ms. Underwood. What Mr. Stewart had in mind was that Ms. Underwood should remove from the fireproof cabinet miscellaneous items that did not need to be kept in the fireproof cabinet further back than five years. Ms. Underwood did not remove the miscellaneous documents from the fireproof cabinet and put them in storage, as instructed. Mr. Stewart told Ms. Underwood many times that Ms. Underwood should update the files. On one occasion when Mr. Stewart discussed the need to update the files, Ms. Underwood commented that she had to start updating the files. From Mr. Stewart's observation, which is accepted, Ms. Underwood had adequate time to attend her other duties and perform the tasks that he had assigned. In April of 1994, the District made application to the Department of Environmental Protection (DEP) to replace culverts within the District's jurisdictional boundaries. In fact, what the District really intended was to take the culverts from one location and put them in another location without replacing them in the initial location. Contrary to requirements set forth by the DEP, the District failed to publish the proposed conditions for the permit issued by the DEP. Ms. Underwood was responsible to make the publication in accordance with requirements established by the DEP. Ms. Underwood failed to make the publication through oversight. The failure to publish was not reported to DEP. Consequently, DEP contacted the District around July 1, 1994. Someone employed by the DEP spoke to Mr. Stewart and instructed Mr. Stewart to publish the permit terms in a newspaper which was well circulated in Flagler County, Florida. After that publication was made, the DEP employee told Mr. Stewart to take a copy of that publication out of the newspaper and attach it to a letter and send it to the DEP employee. After receiving that information, the DEP would close its file, thus, avoiding a possible $500.00 fine for noncompliance with the publication requirement. The DEP employee did not request Mr. Stewart to provide an affidavit of proof of publication from the newspaper in concluding the matter, which was the ordinary manner in which publication was proven. In turn, Mr. Stewart had the permit notice published in the July 7, 1994 edition of a local newspaper. Mr. Stewart took the copy of that notice of publication and gave it to Ms. Underwood to put with a letter to be mailed to the DEP employee. Later Mr. Stewart observed the copy of the notice of publication on a pink pad located on Ms. Underwood's desk. Following his instructions to Ms. Underwood nothing had transpired for 26 days, when Mr. Stewart sent a copy of the publication of notice to the DEP on August 14, 1994. The newspaper publication which Mr. Stewart sent was a separate copy from the copy which he observed on Ms. Underwood's desk. Before mailing a copy of the newspaper publication on August 14, 1994, Mr. Stewart observed that the copy of the publication that had been on Ms. Underwood's desk still remained there. When Mr. Stewart initially discussed the newspaper publication with Ms. Underwood, Ms. Underwood remarked that it did not have an affidavit from the newspaper concerning proof of publication and that the affidavit would not be available until the publication notice had been paid for. Nonetheless, Mr. Stewart explained to Ms. Underwood that the arrangement was one in which a copy of the notice of publication would be forwarded without an affidavit from the newspaper concerning proof of publication. On August 22, 1994, in a conversation between Mr. Stewart and Ms. Underwood, Ms. Underwood stated that she had sent the notice of publication to the DEP. Ms. Underwood did not say when she had forwarded the proof of publication. On August 29, 1994, Mr. Stewart notified Ms. Underwood that she was suspended. The grounds for the proposed suspension that Mr. Stewart intended to present to the Board of Supervisors included: Failure to produce assigned work on time. Failure to maintain files and important records. Failure to respond to important agencies as requested. Failure to maintain paperwork. Failure to maintain accurate time records. Reporting for work late. Misleading information to Supervisors. Failure to comply with assigned duties from the Board. Negligence of duties. Ms. Underwood was not presented with this list of alleged misconduct until a Board meeting on September 1, 1994, without discussion. At the meeting of the Board of Supervisors held on September 1, 1994, Mr. Stewart moved and was seconded by Mr. Freeman to suspend Ms. Underwood until further discussion on September 15, 1994. At the meeting the Ms. Underwood asked that she be paid her vacation pay that had accrued. Mr. Stewart moved and Mr. Freeman seconded a motion to suspend Ms. Underwood without pay; however, a decision was made to pay Ms. Underwood one week of accrued vacation pay and that motion for vacation pay carried. Ms. Underwood had worked for the district until the morning of August 29, 1994, when Mr. Stewart informed Ms. Underwood that she was suspended. On September 9, 1994, Ms. Underwood's attorney, Geoffrey B. Dobson, wrote to Mr. Stewart asking that any hearing concerning the charges against the Ms. Underwood be postponed until the specifics of those charges against Ms. Underwood were provided in writing by the Board. The correspondence went on to specify the information which Ms. Underwood wished to obtain. The requests parallel the allegations that had been provided to Ms. Underwood on September 1, 1994. On September 14, 1994, Mr. Stewart responded to Mr. Dobson's request by correspondence in which it was stated: Pursuant to your request for specific written statement, I would like to respond as follows using numbers which correspond to your letter: On June 21, 1994, Mrs. Underwood was given five (5) tasks that pertained to her job duties and the safety and care of records of Flagler Estates Road and Water Control District. These duties were to commence immediately. These duties were: Make copies of all original minutes and file them in the fire proof cabinet. Make copies of copies for public information. As of August 22, 1994 this was never started. On June 21, 1994, Mrs. Underwood was to update files, since files dated back ten (10) years and there was not room for recent files. As of August 22, 1994 this was never started. Mrs. Underwood was to notify the Department of Environmental Regulations of an April publication oversight. On August 22, 1994, this was achieved twenty-six (26) days later. Mrs. Underwood was instructed to maintain the fire proof cabinet so room could be made for meeting tapes that are on the office floor. On August 22, 1994 this was never started. Mrs. Underwood was instructed to start organizing the documents and records needed to compile the Book of Records of the Supervisors for the Flagler Estates Road and Water Control District. On August 22, 1994 this was never started. See paragraph 1(b) above. See paragraph 1(c) above. See paragraph 1(a) above. Mrs. Underwood has often left her job early for lunch, which she gets ten miles away from her job or returns late from lunch. On a thirty minute lunch break she has often been late for work, but her time records show she has been on time. See paragraph 5 above. See paragraph 1(c) above. See paragraph 1(a), (b), (c), (d) and (e) above. See paragraph 1(a), (b), (c), (d) and (e) above. In response to Mr. Dobson's request, the September 14, 1994, correspondence from Mr. Stewart also indicated that any documents to be used in the Board's action against Ms. Underwood together with an employee handbook would be provided at the regular meeting to be conducted on September 15, 1994. In addition, the June 20, 1994, memorandum which had been provided to Ms. Underwood from Mr. Freeman was attached to the September 14, 1994, correspondence from Mr. Stewart. That letter from Mr. Stewart stated that the request by Ms. Underwood to postpone the hearing would be brought before the Board at the September 15, 1994, hearing. Finally, Mr. Stewart in his correspondence indicated in response to Mr. Dobson's request, that the Board of Supervisors who had any involvement with the allegations against Ms. Underwood be recused from considering the case on its merit, would be addressed at the September 15, 1994, meeting. Reference in the September 14, 1994, correspondence from Mr. Stewart to Ms. Underwood's failure to achieve certain tasks by August 22, 1994, is a mistake. The date should be August 29, 1994. Consequently, Mr. Stewart's position expressed in the September 14, 1994, correspondence wherein he described certain responsibilities by Ms. Underwood not being accomplished by August 22, 1994, should read August 29, 1994. With that correction Mr. Stewart's observation that the tasks had not been achieved is accepted. Mr. Stewart established that the reference in the charges concerning documents needed to compile the Book of Records for limited purpose of copying those records commenced with the year 1971 forward. There was no necessity to organize the preexisting Book of Records, the records before Freeman and Stewart took office. Mr. Stewart placed no time limit on Ms. Underwood concerning the making of copies, but no effort was made by Ms. Underwood to make the copies before August 29, 1994, when Ms. Underwood was suspended. Mr. Stewart observed that at times Ms. Underwood would leave for her lunch earlier than permissible or later than permissible and would not document those occasions. A reference by Mr. Stewart to Ms. Underwood taking forty-five (45) minutes of undocumented time is related to being late for work, not related to the lunch period. Instead the forty-five (45) minutes for being late was when Ms. Underwood registered her child for school and did not reflect that she was missing forty-five (45) minutes from her work. On one Thursday morning Mr. Stewart asked Ms. Underwood why she was late for work and she explained that she had been to pick up the payroll. It was not Ms. Underwood's obligation to pick up the payroll and Mr. Stewart had not been told that Ms. Underwood was picking up the payroll. Concerning Ms. Underwood being twenty-five (25) minutes late when she picked up the payroll, the problem was not that Ms. Underwood picked the payroll up. The problem was that Ms. Underwood did not make Mr. Stewart aware that she was going to be late that morning. Prior to this occasion Mr. Stewart had not mentioned Ms. Underwood's activity concerning picking up the payroll. After this occasion Mr. Stewart said that he would bring the payroll to the District office. Although Ms. Underwood was not obligated to pick up the payroll, before Mr. Freeman and Mr. Stewart took office as members of the Board of Supervisors, Ms. Underwood had customarily picked up the payroll and brought it to the District office. Prior to Mr. Freeman and Mr. Stewart becoming members of the Board of Supervisors it had been the policy for Ms. Underwood to make bank deposits during business hours. When Mr. Stewart discovered that Ms. Underwood had made a bank deposit during business hours, Mr. Stewart told Ms. Underwood that he would make the deposits from that point forward. Although Ms. Underwood had been told that Mr. Stewart would make the deposits beyond that point, Ms. Underwood continued to make bank deposits during business hours. By his remarks Mr. Stewart made it evident that he would make bank deposits and Ms. Underwood would not be allowed to make those deposits and there would be no necessity to determine the amounts of deposits as a means of deciding whether to spend the time to travel to Hastings to make the bank deposits. A one-way trip from the District office to the bank in Hastings takes a minimum of eighteen (18) minutes based on Mr. Stewart's observations. It is not clear whether the instances in which the Ms. Underwood would leave early for lunch or arrive late from lunch were occasions upon which she was making the bank deposits before Mr. Stewart had told Ms. Underwood that she was not responsible for making those deposits. On September 15, 1994, the Board considered Ms. Underwood's suspension. In that meeting the Board was represented by John Michael Traynor, Esquire. Ms. Underwood was represented by Ronald W. Brown, Esquire. At the September 15, 1994, meeting, arrangements were made to allow counsel for Ms. Underwood to inspect any documents that might be relied upon by the District in a future meeting that was convened to consider the allegations against Ms. Underwood. The meeting to consider those allegations would be convened upon thirty (30) days notice from the Board to Ms. Underwood. No further action was taken concerning the suspension. On October 31, 1994, attorney, Linda S. Calvert Hanson, who had become the District's counsel, wrote to Mr. Dobson, Ms. Underwood's attorney. In that correspondence Ms. Hanson makes reference to the September 9, 1994, letter from Mr. Dobson that has been discussed and disposition of Ms. Underwood's petition for hearing. That petition had requested that the hearing be conducted in accordance with Section 120.57, Florida Statutes. On November 3, 1994, Mr. Dobson replied to the Hanson correspondence dated October 31, 1994. Dobson's correspondence questioned the validity of the Board of Supervisors' action to suspend Ms. Underwood. It also referred to the belief that the statutory time limits for referring the Ms. Underwood's case to the Division of Administrative Hearings had expired. The correspondence referred to the belief that Ms. Underwood had been denied rights to procedural due process. The letter described the Ms. Underwood's status as being one of termination. The correspondence referred to perceived prejudice against Ms. Underwood by Messrs. Freeman and Stewart. Finally, the correspondence requested an amicable solution to Ms. Underwood's case before the Board. The November 3, 1994, correspondence for Mr. Dobson was responded to by Ms. Hanson on November 8, 1994; in that letter Ms. Hanson took issue with the characterization of Ms. Underwood's status as being terminated. Ms. Hanson was persuaded that Ms. Underwood's status was one of suspension. The letter refers to Ms. Hanson's belief that some informal negotiations had been pursued between the District and Ms. Underwood. Ms. Hanson referred to the impression that the suspension hearing would not proceed until Mr. Traynor, the former Board attorney, had instructed the Board to set the matter. The correspondence refers to the belief that Mr. Traynor had never given that instruction. In summary, Ms. Hanson expressed the belief that the time for affording a hearing consistent with Section 120.57, Florida Statutes had not expired, given the attempts at informal resolution. The November 8, 1994, correspondence also stated that the Board held the opinion that it could consider the case in lieu of appointment of a hearing officer from the Division of Administrative Hearings. Finally, the correspondence invited Mr. Dobson to consult with his client concerning the matters and to contact Ms. Hanson following that consultation. On January 5, 1995, a report by the District's attorney was made concerning Ms. Underwood's status. It stated: Inasmuch as there has been no response to my letter to Brown of November 8, regarding Ms. Underwood's suspension and the fact that she appears to be employed elsewhere, I recommend that the Board terminate her employment. Attached is a draft letter of termination to be sent to Mr. Brown, her attorney for your approval and signatures. Consistent with the attorney's report, Mr. Stewart, upon motion seconded by Mr. Rosseau, moved to terminate Ms. Underwood's employment with the District. The motion carried. Ms. Underwood was not notified of the meeting on January 5, 1995, in which the decision was made to terminate her employment with the District. On January 13, 1995, Ms. Hanson sent a charge letter to Mr. Brown setting forth the basis for the termination: Please be advised that at the January 5, 1995 meeting of the Board of Supervisors a resolution was passed to terminate Ms. Underwood's employment effective immediately for the following reasons: Failure to properly perform her duties of safety and care for the records of Flagler Estates Road and Water Control District including but not limited to: Failure to make copies of all original minutes and file them in a fire proof cabinet as required by instructions of June 21, 1994. Failure to make copies of the minutes for public inspection as required by instructions of June 21, 1994. Failure to update files as required by instructions of June 21, 1994. Failure to make room in the fireproof safe for tape recordings of district board meetings as instructed on June 21, 1994. Failure to organize the documents needed to compile the Book of Records as instructed on June 21, 1994. Repeated instances of leaving work early for lunch and returning late for work after lunch. There were other instances of her reporting late for work. This delinquency is compounded by her failure to correct her time records to properly reflect her compensable time. Failure to timely report to the Department of Environmental Regulation that there was an April publication oversight. In view of the above circumstances, it is the decision of the board that Ms. Underwood has failed to satisfactorily perform her duties and should be terminated from employment for the Flagler Estates Road and Water Control District. Pursuant to the District Rules of Procedure, Ms. Underwood has twenty-one (21) days in which to request a hearing on her termination before the Board of Supervisors for Flagler Estates Road and Water Control District. This letter is sent directly to you as her representative, based upon your letter dated September 9, 1994 giving notice of representation. Although you have not responded to my correspondence of November 9, 1994 concerning the status of Ms. Underwood, I have no notice that your representation has terminated. I trust you will convey the contents of this letter to Ms. Underwood. If you are no longer representing Ms. Underwood, please advise so that I may contact her directly. On January 18, 1995, Mr. Dobson responded to the charge letter by petitioning for a hearing. In that petition he claimed that Ms. Underwood's procedural and substantive due process rights had been violated by the District through a suspension without hearing, termination without hearing, and action taken by persons not disinterested and unbiased. Mr. Dobson asked that the Ms. Underwood be provided a Section 120.57, Florida Statutes hearing as a person affected by the District's proposed action. Further, Ms. Underwood asked that the case be held before a disinterested hearing officer assigned by the Division of Administrative Hearings, and that through this process Ms. Underwood be reinstated with back pay and granted reasonable attorney's fees. On January 27, 1995, Ms. Hanson requested the Director of the Division of Administrative Hearings assign a hearing officer to conduct a formal hearing. That request was granted. On September 9, 1994, Michele Henson was hired as a temporary secretary to fulfill the duties that Ms. Underwood had performed in the past. Ms. Henson's position as district secretary was made permanent on December 15, 1994. In the permanent position Ms. Henson is entitled to medical benefits and to retirement benefits after three (3) years of service. Ms. Henson presently works an eight (8) hour day, Monday through Thursday each week. Ms. Henson spent four (4) days copying the originals minutes. The minutes were copied from 1971 into 1995. Ms. Henson made copies of the documents in the Book of Records and placed them in a book separate from the book containing the originals. It took Ms. Henson four (4) days to copy the originals in the Book of Records. Ms. Henson's efforts produced copies from the Books of Records from 1971 into 1995. Ms. Underwood admits that she did not make room in the fireproof cabinet to place the verbatim tapes as Mr. Stewart requested. Ms. Underwood indicates that she sent a copy of the newspaper publication concerning the District's request for permit from the DEP, however, Ms. Underwood indicated the newspaper publication sat on her desk for probably around three weeks or so before she dispatched the newspaper publication. Ms. Underwood testified that she sent the newspaper publication with a letter. Her testimony concerning the letter and the newspaper publication is unrefuted and is accepted. Ms. Underwood was not aware that the District might be assessed a fine for failure to publish notice attending a permit request. Ms. Underwood admits that she did not make copies of the original minutes. Ms. Underwood states that she did not organize documents necessary to compile the Book of Records. Her reason was that no one told her what they wanted done. Ms. Underwood states that she had asked on several different occasions to discuss the matter with Mr. Stewart. Her claim that no one had explained the manner in which she was to address to the Book of Records is rejected. Ms. Underwood's assertion that she was never given guidance concerning what was to be removed from the fireproof filing cabinet to make room for the verbatim tapes is rejected. Ms. Underwood admits that she was asked to make copies of original documents so that the originals themselves would be protected. Ms. Underwood acknowledges that she did not start making copies of the Book of Records. The reason given for not doing so was because she was not sure what she was supposed to do. Ms. Underwood's claim that she had not been instructed concerning that issue is rejected. Ms. Underwood's assertion that she had been told to make copies of the minutes from June 1994 forward is rejected. In any event, Ms. Underwood had not made copies of the minutes from June, 1994 forward either. Ms. Underwood indicated that she would be late 10 to 15 minutes on Thursdays when she picked up checks for the District. Ms. Underwood's testimony that she had permission to be late for work when she registered her child is accepted. That permission was given by Mr. Stewart. Ms. Underwood recognized the necessity to advise the supervisor when she was going to be late. Her testimony that she would call a supervisor and get permission when she was late is accepted only as found in Paragraph 132, above. Ms. Underwood acknowledges that her lunch hour for the time period in question was one-half hour. In Ms. Underwood's experience, it took twenty to thirty minutes for a one-way trip to Hastings. Ms. Underwood acknowledged that she would go to lunch in Hastings after Mr. Stewart and Mr. Freeman came on the Board. Those lunch trips were when Ms. Underwood would make a bank deposit or would mail something that she felt needed to be mailed. These trips were normally made on Thursday following Board meetings. Ms. Underwood went to Hastings for lunch after Board meetings on Thursday twice a month. On Thursdays when Ms. Underwood would go and get lunch she would bring her lunch back to the District. As Ms. Underwood describes, at times she would go late to lunch when waiting on a District customer. In these instances, Ms. Underwood did not claim extra time for her employment. Ms. Underwood acknowledges that she participated in a meeting with Mr. Freeman on June 20, 1994. Moreover, she acknowledges that working hours were a matter of concern by the Board and that the employees had been instructed not to leave the District during working hours. Her response to those instructions as they would pertain to trips to Hastings to make bank deposits or for mailing, was that this was something she had always done and she just carried it over. Ms. Underwood also acknowledges the guidelines that were provided on July 7, 1994, concerning her employment. Nonetheless, Ms. Underwood believes that when she made a bank deposit or mailings she was right to do that on District time. Her perception concerning the opportunity to continue the practice of making bank deposits and mailings on District time is contrary to District policy and unacceptable. On October 20, 1994, Ms. Underwood began work with the Association for Retarded Citizens of Putnam County at the rate of $6.50 per hour. She worked 24 hours a week through May of 1995. After that time she has worked 32 hours a week. This is in contrast to the 30 hours per week with the District, where she had sick pay, vacation pay, and the right to voluntary participation in a retirement plan through an IRA. Her work with Association for Retarded Citizens of Putnam County allows sick pay and vacation pay but no retirement. Ms. Underwood received a gross salary of $190.80 a week for 30 hours, EIC and insurance when employed with the District. Other than in instances described Ms. Underwood had performed her duties with the District in an acceptable manner.
Recommendation The District has meet it's burden based upon the facts found as they relate to the allegations set forth in the charge letter, it is, therefore: RECOMMENDED: That a final order be entered terminating Ms. Underwood's employment with the District without further benefits. DONE and ENTERED this 19th day of September, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1995. APPENDIX The following discussion is given concerning Ms. Underwood's proposed fact finding: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is contrary to facts found. Paragraphs 11 and 12 are not necessary to the resolution of the dispute. Paragraph 13 is rejected in the suggestion that the practice of picking up the payroll was condoned. Paragraph 14 is rejected in its suggestion that the practice of making bank deposits and mailing in Hastings was condoned. Paragraph 15 is subordinate to facts found. Paragraph 16 is subordinate to facts found in the first sentence and first phrase to the second sentence. Otherwise, it is not necessary to the resolution of the dispute. Paragraph 17 is subordinate to facts found in the first sentence. The second sentence is not necessary to the resolution of the dispute. Paragraphs 18 and 19 are subordinate to facts found. COPIES FURNISHED: Linda Calvert Hanson, Esquire Suite A 24 N.W. 33rd Court Gainesville, FL 32607 J. Michael Davis, Esquire Suite A 24 Northwest 33rd Court Gainesville, FL 32607 Geoffrey B. Dobson, Esquire Law Offices of Dobson and Brown, P.A. 66 Cuna Street St. Augustine, FL 32084 Horace A. Freeman, Sr. Board of Supervisors Flagler Estates Road and Water Control District c/o Linda Calvert Hanson, Esquire Suite A 24 N.W. 33rd Court Gainesville, FL 32607
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Chandler sought exemption from permitting requirement from the Department to perform certain dredging in two artificial dead-end canals located in Placida Point Subdivision (formerly Porto-Fino Subdivision), Charlotte County, Florida. The Department has denied the exemption on the basis that "the proposed work indicates that it is not for maintenance purposes, and therefore, it does not fit the maintenance exemption". The dredging proposed by Chandler would remove the existing earthen plugs between Coral Creek (an adjacent creek) and the two canals. Coral Creek is a natural body of water and is waters of the State. The two canals were excavated (constructed) during the latter part of 1969 and early 1970 (before April 1970). Although no original design specifications were offered into evidence, there is sufficient competent evidence to show that at the time the canals were constructed earthen plugs were left between the canals and Coral Creek which restricted the water exchange between the canals and Coral Creek. The exchange of water apparently occurred at mean high water, and navigation, if any, was restricted to small boats. Porto-Fino Realty Co., Inc., (Porto-Fino) developed the Porto-Fino Subdivision in 1971, and in early 1971 applied to the Board of Trustees of the Internal Improvement Trust Fund (Board) for a dredge permit to connect the certain existing canals, which included the canals in question, to Coral Creek. As part of the application review, a site inspection was made, and it was found that the earthen plugs left between Coral Creek and the canals when they were constructed allowed water to ebb and flow during periods of high tide. As a result of this site inspection, it was recommended that before any further consideration be given the permit application, that the applicant be advised that the canals had to be adequately diked. The record is not clear on whether this permit was granted, but apparently it was not because this subject was raised again in 1974 with Lou Fusz Motor Company, the present owner of Porto-Fino Subdivision, by the Board and the Department of Army, Corps of Engineers (Corps). Apparently, it was determined by the Board, and possibly by the Corps, that the plugs had washed out and needed to be repaired. In 1975, at the request of the Board, the earthen plugs were repaired and culverts placed in the plugs to allow flushing of the canals. The earthen plugs are presently in existence in the mouth of the canals, and are colonized by mangroves, Brazilian pepper and Australian pine. The mangroves are mature trees 10-15 feet in height, and approximately 10-15 years old. The plugs do not show any signs of any recent dredging in or around the mouths of the canals. The plugs form a barrier to navigation between the canals and Coral Creek. The canals have not been used for navigational access to Coral Creek since they were repaired in 1975. The canals have not been previously dredged to maintain navigational access for boat traffic to Coral Creek, and are not presently used for navigational access to Coral Creek. There is sufficient competent substantial evidence to establish facts to show that the earthen plugs, as they presently exist, are man-made barriers that separated the two canals from Coral Creek. There is insufficient evidence to show that the repair of the earthen plugs in 1975 by the developer was illegal. The repair of the earthen plugs in 1975 by the developer was necessary because the original plugs had not been properly constructed or had washed out over the period of years. Coral Creek and the canals in question are surface waters of the state as defined in Rule 17-312.030(2), Florida Administrative Code. Canals which are used for navigation have to be periodically dredged to maintain navigational access. There is sufficient competent substantial evidence to establish facts to show that the dredging proposed by Chandler would not be "maintenance dredging" as contemplated by Rule 17-312.050(1)(e), Florida Administrative Code.
Findings Of Fact Respondent, Lori Goldston, was employed by the Petitioner, City of Clearwater, for approximately seven and one-half years as a Building Construction Inspector II. On April 13, 1994, Respondent was placed on administrative leave and on April 21, 1994, she was terminated and all pay and other benefits were terminated as of 4:00 p.m. on April 21, 1994. Specifically, Respondent was terminated for alleged violations of Rule 14, Sections 1(b), (d), (k), and (1) of the Civil Service Rules and Regulations of Respondent, to-wit: (b) Is incompetent in the performance of the specific duties of [her] position. (d) Has been careless or negligent in the care of the property of the City; or has participated in the unauthorized use thereof. Has been . . . guilty of conduct un- becoming a City employee defined as scandalous or disgraceful conduct while on or off duty where such conduct tends to embarrass the City or bring its service into public disrepute. Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given . . . by [her] superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or the public. During the week of April 4, 1994, Tom Chaplinsky received two complaints that a City vehicle was observed leaving the city limits with a magnetic sign covering the City seal. The complainants related that the driver appeared to be Respondent and that the vehicle was heading north on alternate route 19 when it was so observed. Vick Chadora, assistant central planning director, requested that Chaplinsky investigate the complaints. Chaplinsky along with Kevin Garriot, a building code analyst, initiated an investigation to check Respondent's inspection schedule and job sites for the day of April 11, 1994. Chadora and Chaplinsky reviewed Respondent's inspection schedules and job sites on April 11, 1994, and discovered that most of Respondent's inspections were completed by mid-morning. Chadora then instructed Chaplinsky to check Respondent's residence which is located north of Palm Harbor, approximately 8 to 10 miles outside of the city limits. During mid-morning on April 11, 1994, Chaplinsky parked near the end of the dead end street on which Respondent's residence is located. He saw what appeared to be her city vehicle but was unable to make a positive identification. On Tuesday, April 12, 1994, Chaplinsky again found that a majority of Respondent's inspections had been completed by mid-morning. Chaplinsky contacted her by radio at approximately 11:00 a.m., to determine her location and she replied that she was in Clearwater Beach. Chadora drove to the beach area while Chaplinsky and Garriot drove to Respondent's residence between 11:00 and 11:15 a.m. Messrs. Chaplinsky and Garriot parked at the entrance to the dead end street where Respondent resides and waited. At approximately 11:45 a.m., Chaplinsky and another staff assistant began trying to reach Respondent by radio. At approximately 12:55 p.m., Respondent answered her radio. At that time, Respondent was asked to investigate a complaint on the beach. At approximately 1:20 p.m., Messrs. Chaplinsky and Garriot observed Respondent in her city vehicle, with the City seal covered, leaving her neighborhood. They lost Respondent in traffic but later caught up with her at the site of the complaint. At that time, the City seal on her vehicle was no longer covered. On April 13, 1994, Messrs. Chaplinsky and Garriot again drove to Respondent's residence during mid-morning and waited at the entrance to her street. Respondent was observed leaving the City in the city vehicle with the City seal covered. At approximately 2:55 p.m. on April 13, 1994, with Messrs. Chaplinsky and Garriot present, Respondent was advised by Chadora that two people had complained that she was using her city vehicle with the City seal covered while leaving the city limits. Before Chadora could complete his inquiry, Respondent immediately denied that it was her. Upon Respondent's repeated and adamant denial, Chadora told her that he and Garriot has observed her leaving her residence on Tuesday, April 12 and Wednesday, April 13 in the City vehicle. Upon being confronted with that information, Respondent admitted that they had caught her in a lie and she admitted that she did leave the city limits in the city vehicle. Respondent indicated that she was trying to complete a construction project at home in order to re-finance and satisfy a balloon note which was coming due and the lender was insisting that certain renovations be completed prior to closing. During 1990, Respondent was disciplined for leaving the city limits and going to her home. At that time she was specifically advised that she should not leave the city limits to return home in the city vehicle without first obtaining permission from her supervisor. For that offense, Respondent was suspended for four days. Petitioner has a system of progressive discipline in effect which is utilized to discipline employees who engage in conduct contrary to the City's rules and regulations. An employee who violates the rules accumulates points under the disciplinary system. An employee who receives up to 60 points within a specified period (24 months), can be subjected to discharge. Respondent accumulated 140 points for the alleged infractions that she received for leaving the City limits during the days April 11-13, 1994. Petitioner also has a liberal sick leave policy which employees may avail by demonstrating need to use sick leave. Respondent did not advise Petitioner that she was suffering from any medical disability or other infirmity which would warrant the utilization of sick leave prior to her discharge. Respondent maintained that she failed to advise Petitioner of her need for sick leave -- she suffers from severe depression which is prompted by a chemical imbalance in her brain -- because she did not want other employees to know about her problems as she feared it would be common knowledge among her colleagues. Respondent attempted to show that she was being treated unfairly and more harshly than other employees had been treated for similar misconduct. Specifically, Respondent related an incident wherein an employee threw a temper tantrum during a grievance meeting, tossed a beeper against a bookcase and was generally insubordinate when he was questioned about an infraction. Petitioner explained that that employee "blew up" when he was confronted about a simple rule infraction and that employee was suspended as was Respondent when she was first disciplined for leaving the City in a vehicle without authorization in 1990. Respondent failed to show that she was treated more harshly or that she was the recipient of disparate treatment by Petitioner. Respondent demonstrated that the other employee was similarly treated when Petitioner was disciplined in 1990. Moreover, that employee was subjected to discharge when he later violated the city's rules and regulations (a drug offense-employee failed a urinalysis screen). Petitioner had no way of knowing prior to April 21, 1994, that Respondent requested or was otherwise in need of "an accommodation" due to her health in April of 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing Respondent from her position of a Building Construction Inspector II effective April 21, 1994. DONE AND ENTERED this 28th day of February 1995 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of February 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1, adopted as modified, paragraphs 2, 18, and 19, Recommended Order. Paragraph 3, rejected, unnecessary. Paragraph 4, adopted as modified, paragraph 18, Recommended Order. Paragraph 7, rejected, irrelevant. Paragraph 8, conclusionary and argument. Paragraph 11, adopted as modified, paragraph 22, Recommended Order. Respondent's Proposed Findings of Fact. Paragraph 5, rejected, contrary to the greater weight of evidence, paragraph 16, Recommended Order. Paragraph 8, rejected, irrelevant. Paragraph 11, rejected, contrary to the greater weight of evidence, paragraphs 2, 14, and 19, Recommended Order. Paragraph 13, rejected, contrary to the greater weight of evidence. Paragraphs 15 and 16, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraph 17, adopted as modified, paragraphs 17-20, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraphs 19-22, rejected, irrelevant and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Robert McCormack, Esquire Prestige Professional Park 2655 McCormick Drive Clearwater, Florida 34619 Karleen DeBlaker City Clerk City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on yy” this l ——day of October, 2010. Page 3 FINAL ORDER NO.: DCA 10-GM-203 Paul ord Agency Clerk By U.S. Mail The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Rafael Suarez-Rivas Assistant City Attorney Office of the City Attorney 444 Sw 2™ avenue Suite 945 Miami, Florida 33130-1910 Rsuarez-rivas@miamigov.com (305) 416-1818 Andrew W.J. Dickman Counsel for Intervenor Law Offices of Andrew Dickman, P.A. P.O. Box 771390 Naples, Florida 34107 andrewdickman@comcast.net (239) 434-0840 By Hand Delivery Richard E. Shine Assistant General Counsel Department of Community Affairs Page 4
The Issue Whether Respondent, Volusia County School Board, Florida (Respondent, Volusia County Schools, or the School Board), violated the Florida Civil Rights Act of 1992, sections 760.01 through 760.11, Florida Statutes,1/ by discriminating against Petitioner, Johnnie Lee Canady (Petitioner), based upon Petitioner’s race or disability.
Findings Of Fact The School Board is the duly authorized entity responsible for providing public education in Volusia County, Florida. At all material times, Petitioner was employed by the School Board as a seventh-grade social studies teacher at River Springs Middle School (River Springs). The principal of River Springs was Stacy Gotlib. Petitioner served as the River Springs Professional Learning Community Coordinator (PLCC) during the 2012- 2013 school year. As a PLCC, Petitioner was responsible for organizing staff meetings to collaboratively discuss issues arising in the classrooms. Petitioner testified that he “signed up” for the PLCC supplemental duty position, which was awarded to him by Ms. Gotlib. During the 2013-2014 school year, Don Sarro, who, at the time, was the department chair for River Springs’ social studies department, publicly announced that that he was running for the School Board. Under the circumstances, most employees at River Springs were probably aware that Mr. Sarro would be resigning as department chair, creating a vacancy in the position the following school year. Petitioner claims River Springs discriminated against him on the basis of his race because he “was not told of the vacancy” and “a less qualified white female” was selected for the position. Petitioner did not prove these allegations. At the conclusion of the 2013-2014 school year, Petitioner completed a teaching preference form. Petitioner did not express an interest in serving as the department chair for the social studies department or any other supplemental duty positions. At the conclusion of the 2013-2014 school year, River Springs teacher, Kelly Moore, notified River Springs that she was interested in serving as the department chair for the social studies department. River Springs did not advertise the supplemental duty position, and no teachers made formal applications for the position. Chester Boles, assistant principal intern at River Springs, selected Ms. Moore for the supplemental duty position. She was the only candidate who expressed any interest in the position. She was looking for a leadership position because she was working toward a degree to become an administrator. Petitioner did not offer evidence that he was treated any differently than any other teacher at River Springs regarding the social studies department chair position. In fact, although he alleges that he was discriminated against because he was not told of the vacancy, he admits that he does not know of anyone who was told. He offered no evidence to show how Ms. Moore was informed. In fact, there was no advertisement. And, Petitioner did not show that race was a factor in the hiring decision. Prior to the start of the 2014-2015 school year, Petitioner applied to the School Board for seven teaching positions at four schools outside of River Springs. He interviewed with the principals of those schools for each of those positions, but was not selected. Petitioner believes that he was discriminated against on the basis of his race because the selected applicants “were less qualified” than Petitioner. Petitioner, however, did not prove his claim. In fact, he testified that he does not have specific knowledge of the individuals who were hired for each position, the race of the selected applicants, or the reasons the applicants were chosen for the positions. Petitioner testified, in relevant part, as follows: Q: Do you know what position Brian McClary was hired into? A: No. Q: Do you know his race? A: No. Q: Do you know why he was hired? A: No. Q: Okay. How about Jordan Tager, do you know what position he was hired into? A: No. Q: Do you know who hired him? A: No. Q: Do you know his race? A: No. Q: How about Joseph Martin, do you know what job he was entered – hired into? A: No. Q: Do you know who hired him? A: No. Q: Do you know why he was hired? A: No. Q: Do you know his race? A: No. Q: Amy Tolley, do you know what job she was hired into? A: No. Q: Do you know who hired her? A: No. Q: Do you know why she was hired? A: No. Q: Do you know her race? A: No. Q: How about Elizabeth Stople, do you know what job she was hired into? A: No. Q: Do you know who hired her? A: No. Q: Do you know why she was hired? A: No. Q: Do you know her race? A: No. [...] Q: Do you know Chelsea Ambrose? A: No. Q: Do you know her race? A: No. Q: Do you know what position she was hired into? A: No. Q: Do you know why she was hired? A: No. Q: How about Amanda Muessing, do you know what job she was hired into? A: No. Q: Do you know who hired her? A: No. Q: Do you know why she was hired? A: No. Q: Do you know her race? A: No. Petitioner offered no evidence of the race of the individuals selected for the seven positions. Although he offered the résumés of five of the applicants allegedly hired for five of the positions, he failed to substantiate his claims that he was discriminated against on the basis of his race when he was not selected for one of the seven teaching positions. Petitioner testified that, during the 2013-2014 school year, several teachers were having problems “because the [seventh grade] wing was out of control.” He testified that students were being very “disruptive” and there was a general lack of discipline. According to Petitioner, the situation created a “very difficult and stressful” atmosphere for the teachers. On June 8, 2014, Petitioner emailed the School Board's assistant superintendent, Peromnia Grant. His email stated that the stress from the previous school year may “have aggravated some of [his] Persian Gulf War Syndrome [i]ssues.” The email stated, in relevant part: I have participated in the transfer fair and applied for high schools. If I must return to River Springs or middle school, I might need to take a leave of absence until January, 2015 so the Veterans Administration can conduct a full evaluation of my medical concerns and discuss my retraining for an alternative job. Petitioner sought treatment over the summer with the Veteran Administration Outpatient Clinic (VA). The VA worked “to help stabilize” his condition. He “was in distress” after “a bad [school] year.” He was placed on prescription medication for approximately three months. At the beginning of the 2014-2015 school year, Petitioner had a conversation with Eric Ellis, an eighth-grade teacher at River Springs. Petitioner informed Mr. Ellis that he was admitted to the VA hospital over the summer. Petitioner told Mr. Ellis that the VA had asked him if he had any suicidal thoughts and that he advised the VA that he did not. Petitioner further told Mr. Ellis that when the VA asked him if he had any thoughts of harming or killing anyone else, he responded, “Amanda Wiles.”3/ Amanda Wiles was the assistant principal at River Springs. On or about August 19, 2014, Petitioner attended a pre- planning meeting at River Springs. During the meeting, Petitioner got into a loud verbal exchange with Mr. Sarro. River Springs assistant principal intern, Chester Boles, attended the meeting. Petitioner was upset because he believed Mr. Sarro was using the meeting as a platform to give “a political speech” and to talk about “how wonderful everything” was at the school. Petitioner believed Mr. Sarro was breaking school policy and that he “had to stop him.” Petitioner proceeded to engage in a heated discussion with Mr. Sarro. At some point during the conversation, Petitioner stated something to the effect that, "I better shut my mouth, I'm getting racist,” and shoved a crumpled up piece of paper into his mouth. After the meeting, Mr. Boles informed Ms. Gotlib of the situation. Shortly after the meeting, Mr. Sarro approached Mr. Ellis about Petitioner. Mr. Ellis explained to Mr. Sarro that he too was concerned about Petitioner. Mr. Sarro asked Mr. Ellis if he would like to go with him to the principal’s office to share their concerns about Petitioner with Ms. Gotlib. Mr. Ellis agreed and they both went to the principal's office and spoke to Ms. Gotlib. After speaking with Mr. Sarro and Mr. Ellis, Ms. Gotlib contacted the School Board's director of Professional Standards, Sandy Hovis. Ms. Gotlib informed Mr. Hovis about Petitioner’s reportedly threatening comments and unusual behavior. Mr. Hovis then met with Mr. Ellis and Mr. Sarro to discuss their concerns. Mr. Ellis told Mr. Hovis that Petitioner made a comment to the VA that he would like to hurt or kill the assistant principal at River Springs. On August 19, 2014, Mr. Hovis met with Petitioner and informed Petitioner of the information that was reported to him by administration and his fellow teachers. He advised Petitioner that Petitioner was being administratively assigned to home with pay pending a safety evaluation to be conducted under the School Board’s Employee Assistance Program (EAP). Safety evaluations are requested by the School Board when there are concerns that an employee may be an “imminent risk of danger to [himself] or to others.” Following the meeting, Petitioner sent Mr. Hovis an email, entitled “[a]ccusations from staff at River Springs Middle.” In his email, Petitioner stated that the “first accusation about [him] biting down on folder paper is correct.” Petitioner claimed that it was a heated discussion, which led him to tell Mr. Sarro “a thing or two, or three about himself (about 3 minutes’ worth).” When referring an employee to EAP, the School Board works with Horizon Health, a third-party administrator that contracts with the School Board. Mike Nash with Horizon Health was the liaison between the School Board and independent health care providers. Mr. Nash, who was located in Colorado, was responsible for ensuring that Petitioner met with appropriate healthcare providers to conduct evaluations. In accordance with arrangements made by Mr. Nash, Petitioner met with a licensed mental health counselor, Brianard Hines, PhD, in August and September 2014, for a safety evaluation. Sandy Hovis did not have any conversations with Dr. Hines. Although no contemporaneous written report from Dr. Hines was submitted into evidence, Petitioner introduced a "To whom it may concern" letter from Dr. Hines, dated May 15, 2016, stating: Dr. Johnny Canady was referred to me through the Volusia County Schools Employee Assistance Program as a mandatory referral for three sessions to evaluate current risk to self and others. Mr. Canady had allegedly made statements which other employees believed contained some degree of implicit threat to staff at his school, was suspended from his teaching duties and directed to participate in the assessment sessions with me. Dr. Canady attended sessions at my office in Port Orange Florida on August 24, September 4 and September 11, 2014. On those occasions he participated actively and denied any current or past homicidal or suicidal ideation. He also adamantly denied making any statements which were intended to be or could of been considered to be threatening in any way. He reported some symptoms of Posttraumatic Stress Disorder, which he attributed to his earlier service in the military. After completing his three sessions, the Volusia County School Board apparently decided that he should participate in a fitness for duty evaluation before returning to his job. Fitness for duty evaluations are not performed by Employee Assistance Programs, and it is my understanding that Mr. Canady obtained his evaluation from another provider. Please let me know if I can provide any further information, although complete records are available through the Employee Assistance Program at any time, which were provided through Horizon Health. On or about September 18, 2014, Mr. Nash informed Mr. Hovis that Horizon Health recommended that Petitioner submit to a fitness-for-duty evaluation. Mr. Hovis was not provided with written documentation of Horizon Health's recommendation. Later that day, Mr. Hovis met with Petitioner and directed him to undergo a fitness-for-duty evaluation. Unlike a safety evaluation, a fitness-for-duty evaluation determines whether the employee is capable and able to perform the duties and responsibilities of his or her position. As indicated in the letter from Dr. Hines, Dr. Hines did not perform Petitioner’s fitness-for-duty evaluation. Rather, it was performed by licensed psychologist Dr. William Friedenberg. Petitioner was on placed on paid administrative leave pending the outcome of the evaluation. Dr. Friedenberg’s fitness-for-duty evaluation of Petitioner determined that Petitioner suffered from “Adjustment Disorder with mixed anxiety and depressed mood.” Specifically, Dr. Friedenberg determined: Although it does not appear that Dr. Canady poses a risk of danger to himself or others, he realizes that it is not advisable for him to return to a classroom teaching setting at this time due to the stress associated with this job and his previous reaction to such stressors. It is thus the opinion of this examiner that, within a reasonable degree of psychological certainty, Dr. Canady is not currently fit for return to duty in his previous capacity as a classroom teacher. He will likely, however, be able to return successfully to employment with the Volusia County School system in an administrative capacity. Upon receiving Petitioner's fitness-for-duty- evaluation, the School Board requested further clarification from Dr. Friedenberg. Dr. Friedenberg explained that "administrative capacity" was a non-student contact position. Dr. Friedenberg was unable to provide a timeline as to when Petitioner would be able to return to his previous position as a classroom teacher. Based on Dr. Friedenberg’s assessment, the School Board reviewed its vacancies and determined that there were no vacant positions for which Petitioner was qualified because the positions all involved student interaction. On October 21, 2014, Mr. Hovis met with Petitioner and reviewed Dr. Friedenberg’s evaluation with Petitioner. Because there were no vacant positions available, the School Board, through Mr. Hovis, offered Petitioner the option of resigning, being terminated, or taking a leave of absence in lieu of termination. Petitioner elected to take a leave of absence. During his leave of absence, on May 11, 2015, Petitioner voluntarily resigned from his position. In his Complaint of Discrimination filed with FCHR on April 8, 2015, Petitioner claims that he was discriminated on the basis of his alleged disability. Particularly, Petitioner claims that he was “denied [a] reasonable accommodation” when he was not placed in another position within the school district. Petitioner did not offer any evidence that there were any vacant positions available at the time that he was granted a leave of absence. Since that time, Petitioner has not applied for a single administrative position. At the final hearing, during cross examination, Petitioner testified: Q: [After you received] Dr. Friedenberg’s report, [d]id you apply for any administrative position within the School Board? A: No, because Mr. Hovis said we have nothing for you. [...] Q: Did you ever go on to the Volusia County School Board web site to look to see whether there was any position that you were interested in? A: No. [Mr. Hovis] said they had nothing for me, so there was no reason for me to – in my mind to waste my time doing that. He said they have nothing for me. Q: And to this day you haven’t applied for any other position within the school district, correct. A: No, because they say I’m not fit for duty. I can’t be around – I can’t be in the classroom setting . . . The evidence submitted by Petitioner was insufficient to establish that he was denied a reasonable accommodation or that the School Board otherwise discriminated against him because of his disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 27th day of September, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 September, 2016.
The Issue The issues for determination in this case are whether Respondent is indebted to Petitioner for the purchase of agricultural products, and whether such indebtedness constitutes a breach of the conditions of the bond posted by the Surety for which payment should issue.
Findings Of Fact Petitioner, DONNIS A. BARBER and KATHLEEN BARBER, d/b/a PEACE RIVER GROWERS (PEACE RIVER GROWERS), is a producer of agricultural products, primarily nursery ornamental plants, located in Zolfo Springs, Florida. Donnis A. Barber is an owner of PEACE RIVER GROWERS. Respondent, TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING (GULF BREEZE), is a licensed dealer in agriculture products, holding license number 10091, issued by the Department of Agriculture and Consumer Services. At all material times, David Joy was the manager of GULF BREEZE. Co-Respondent and Surety, FRONTIER INSURANCE COMPANY OF NEW YORK (FRONTIER), posted Bond Number 5004806 in the amount of $9,999.00 in support of Respondent's license as a dealer in agricultural products. The inception date of the bond was April 30, 1996, and the expiration date of the bond was April 30, 1997. Prior to 1997, Petitioner PEACE RIVER GROWERS had sold agriculture products to GULFBREEZE for several years. GULF BREEZE would, in the usual course of business, order products by telephone which would be delivered by PEACE RIVER GROWERS with payment in full due at the time of delivery. GULF BREEZE changed ownership in 1996. Under its new ownership and manager David Joy, GULF BREEZE continued to order and receive agricultural products from PEACE RIVER GROWERS in 1997. GULF BREEZE, for several transactions in 1997, paid in full for the delivered agricultural products. On four business transactions in 1997 GULF BREEZE failed to pay for the agricultural products received from PEACE RIVER GROWERS at the time of delivery. Specifically, on February 26, 1997, PEACE RIVER GROWERS delivered products to GULF BREEZE valued at $831.20; on March 7, 1997, PEACE RIVER GROWERS delivered products valued at $857.50; on March 11, 1997, PEACE RIVER GROWERS delivered products valued at $425.00; and on April 4, 1997, PEACE RIVER GROWERS delivered products valued at $945.00. The total value of the agricultural products delivered by PEACE RIVER GROWERS to GULF BREEZE on these four occasions is $3,058.70. At the time of each of these four deliveries, PEACE RIVER GROWERS was informed by an employee of GULF BREEZE that the manager, David Joy, was not present, but that payment by check would be mailed. Upon failing to receive payment the delivery of April 4, 1997, PEACE RIVER GROWERS ceased making deliveries of agricultural products to GULF BREEZE. After several demands for payment by PEACE RIVER GROWERS, GULF BREEZE on May 27, 1997, remitted $200.00 to PEACE RIVER GROWERS, which amount was applied to a January 17, 1997, delivery, and which is not at issue in these proceedings. GULF BREEZE failed to properly make payment for agricultural products delivered by PEACE RIVER GROWERS and is indebted to SARASOTA GROWERS in the amount of $3,058.70.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered directing Respondent TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING, to pay Petitioner DONNIS A. BARBER, d/b/a PEACE RIVER GROWERS $3,058.70 for agricultural products sold to Respondent, and in the event Respondent fails to make such payment, within fifteen (15) days of that order, that the Surety be required to pay pursuant to the bond posted. DONE AND ENTERED this 14th day of November, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399 Donnis A. Barber, Owner Peace River Growers Highway 66 East Post Office Box 780 Zolfo Springs, Florida 33890 Toulia Xioutas, Incorporated Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000
Findings Of Fact At all times pertinent to these proceedings, Respondent was employed by Petitioner as a school teacher under a continuing contract of employment. At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control, and supervise the public school system for Dade County, Florida. Little River Elementary School (Little River) is one of the schools in the Dade County public school system. Respondent began working as a classroom teacher for Petitioner during the 1968-69 school year. She has been employed pursuant to a continuing contract since the 1971-72 school year. Throughout her employment with Petitioner, Respondent was frequently absent from her teaching position without approved leave. During the 1981-82 school year Allen Starke was the principal of North Hialeah Elementary School and Respondent was a classroom teacher at that school. Respondent was counseled about her absenteeism on multiple occasions by Mr. Starke during the 1981-82 school year. Mr. Starke observed that Respondent lacked planning and that her class lacked control because of her frequent absences. For the school year 1982-83, Mr. Starke moved Respondent from her regular classroom to a Chapter One class with fewer students. This move was an effort to cut down the number of Respondent's absences. During the school year 1982-83, Respondent took a leave of absence that lasted more than one year. Mr. Starke had no further contact with Respondent after she took her leave of absence. Margaree Raiford became the principal of Little River, which is an inner city school, in January 1990. Respondent was a classroom teacher at Little River when Ms. Raiford came to the school. Ms. Raiford observed that Respondent's behavior was erratic and that she was frequently absent from school. Ms. Raiford was of the opinion that Respondent had become ineffective as a teacher. Because she had come to Little River after the school year was half completed, Ms. Raiford gave Respondent an acceptable evaluation for the 1989-90 school year. On March 28, 1991, Ms. Raiford wrote the following memorandum to Respondent on the subject of excessive absences: Please be advised that you have been absent from the worksite during the 90-91 school year since February 4th for illness. Since your absence from duties adversely impact the educational environment, academic progress of the students and continuity of instruction, you are herein issued the following directives concerning future absences: Absences for illness must be documented by your treating physician and a written medical note presented to this principal upon your return to the site. Upon return to the worksite, you must provide an unconditional medical release to return to full duties. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. (Emphasis in the original.) These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program. Enclosed is a copy of Request for Leave form. You must process the leave papers within forty-eight hours upon receipt of this memorandum. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures. Ms. Raiford signed an evaluation form for Respondent on May 30, 1991, that covered the 1990-91 school year. She left the evaluation portion of the form blank because Respondent was not at the school site when Ms. Raiford made her formal observation that is part of the evaluation process. Petitioner's Office of Professional Standards was notified of Respondent's absences without leave. On April 17, 1991, Joyce Annunziata, Director of Petitioner's Office of Professional Standards, advised Respondent to schedule a conference with her prior to returning to Little River. The conference was to address Respondent's medical fitness to perform full classroom duties and her future employment status with Petitioner. On May 16, 1991, Respondent was temporarily assigned to the regional office pending her clearance to return to the worksite by the Office of Professional Standards. A conference on the record scheduled for May 21, 1991, did not occur because Respondent broke her foot in an accident outside the regional office on May 20, 1991. Following Respondent's recuperation from her foot injury, the conference on the record that had been scheduled for May 21 was rescheduled for September 21, 1991. Because of a scheduling conflict, the conference for the record was not held until September 23, 1991. The following attended the conference for the record on September 23, 1991: Respondent, Yvonne Perez (a representative of the teacher's union), Ms. Raiford, Dr. Annunziata, and Robert Thomas (the director of the regional office). It was decided that Respondent should undergo medical evaluation to include psychiatric and psychological testing. Respondent was assigned to an alternative work location pending her fitness evaluation. Respondent was examined by Dr. Stephen Kahn, M.D., on October 15, 1991. It was decided that further testing was appropriate and Respondent was referred to Ronald L. Bergman, Ph.D., a clinical and consulting psychologist. Dr. Bergman examined Respondent on November 21 and 22, 1991. Dr. Bergman's report was forwarded to the Office of Professional Standards. Dr. Waldo Ellison, a psychiatrist, began treating Respondent on November 10, 1991, and was still treating her on a regular basis as of April 28, 1993, the date he gave his deposition in this proceeding. Dr. Ellison testified as to the Respondent's psychiatric history, her diagnosis, and her treatment plan. The record failed to establish that Respondent's mental or physical health prevented her from complying with Petitioner's rules and explicit instructions pertaining to taking leave of absence. A report was received from Dr. Bergman and the recommendations that Respondent be transferred was considered. On December 13, 1991, Dr. Annunziata wrote Respondent a memorandum on the subject of her return to teaching. This memorandum provided, in pertinent part, as follows: . . . Please be advised that your alternative assignment is hereby terminated as of December 20, 1991. Region IV has determined that you will return to Little River Elementary School on January 6, 1992, as no other site is available for your transfer. The recommendations stipulated in the report [from Dr. Bergman] are herein made conditions of your employment as follows: Involvement with the recommended program of therapy is to be monitored by district's referral agency. Acceptable attendance at the worksite must be maintained. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined future absences are imminent, leave must be requested and procedures for Board approved leave implemented. Your compliance with the aforementioned directives will be monitored by the Office of Professional Standards as the directives are considered conditions of employment with Dade County Public Schools. Respondent returned to the school site from her temporary assignment following the conference for the record in January 1992. Ms. Raiford had the occasion to issue a written reprimand to Respondent on February 11, 1992, about an incident that is not at issue in this proceeding. Pertinent to this proceeding, the memorandum advised Respondent as follows: "Further incidents of defiance or refusal to comply with a school directive will result in the initiation of disciplinary actions for the record for insubordination." Respondent worked at Little River until March 6, 1992, when she went on unauthorized leave that lasted the balance of the school year. Respondent was absent during the time Ms. Raiford wanted to schedule the observation that is part of the evaluation process. Consequently, Ms. Raiford noted that she was unable to complete the formal evaluation, but recommended that Respondent not be re-employed. On May 19, 1992, Ms. Raiford wrote Respondent the following memorandum on the subject of unauthorized absences from the worksite: Please be advised that to date you have been absent from the worksite since March 6, 1992 for 46 consecutive days. You have not contacted this administrator since April 19, 1992 nor sought Board approved leave. The UTD Contract states: "An employee shall be deemed to be absent-without-leave whenever he/she is absent and has not given prior notice to the appropriate administrator that accrued sick or personal leave is to be used or other leave has been appropriately applied for and approved. Any member of the unit who is willfully absent from duty without leave shall forfeit compensation for the time of such absence and be subject to dismissal." The employment stipulations given to you from the Office of Professional Standards have not been met in regards to acceptable attendance, notification of absence, providing lesson plans, and processing leave. Based on your neglect of duty, failure to adhere to UTD/DCPS contractual obligations, and violation of employment stipulations, I am submitting a recommendation for termination of your employment. In September 1992, the Office of Professional Standards received reports from Dr. Ellison that Respondent was medically released to return to work. Dr. Ellison believed that teaching at Little River exacerbated Respondent's condition, and he made the request on behalf of Respondent that she be transferred to another school. Dr. Ellison thought she could teach in a more orderly, structured school setting where there is better rapport and less stress. Dr. Ellison wanted Respondent assigned to a site other than Little River, but there was no evidence that Respondent could not teach at Little River because of her medical or mental condition. Because of Hurricane Andrew, Petitioner found it difficult to accommodate Respondent's request that she be assigned to another school site, and Respondent was reassigned to teach at Little River. Dr. Annunziata requested that the principal make sure that Respondent's classroom was cleaned and that the air conditioner filter was changed. Respondent returned to Little River in October 1992. She taught approximately one week and then went on unauthorized leave. She did not leave lesson plans when she left, and she did not obtain approved leave. Respondent did not return to Little River. On November 20, 1992, Dr. Annunziata instructed Respondent to schedule a conference for the record. Respondent did not comply with this directive. On November 30, 1992, Ida D. Whipple, Executive Director of the Office of Professional Standards, advised Respondent that the School Board would take steps to terminate her employment due to her unauthorized leave. On February 17, 1993, the School Board voted to suspend Respondent's employment and to initiate the instant proceedings to terminate her employment. Petitioner established that it had repeatedly instructed Respondent of the necessity to comply with leave procedures and that Respondent repeatedly failed to comply with those procedures. Although Respondent may have had legitimate reasons for being absent from school, she did not establish any reasonable grounds for her repeated failure to obtain authorized leave prior to taking these extended absences. Because Respondent did not obtain approved leave, Petitioner's policies prevented the principal from placing a permanent substitute teacher in Respondent's class. As a result, a series of substitute teachers taught Respondent's class. Petitioner also established that Respondent consistently failed to leave lesson plans during her absences. As a consequence of Respondent's repeated absences, the Petitioner's inability to staff her class with a permanent substitute teacher, and her failure to provide lesson plans, there was no continuity of education in her classroom to the detriment of the students. Petitioner established that Respondent's effectiveness as a teacher had been impaired. Petitioner established it returned Respondent to the classroom after she had been given medical clearance to return to work. Respondent thereafter went on unauthorized leave, which triggered Petitioner's decision to terminate her employment. Respondent's contention that the School Board's action on February 17, 1993, was in retaliation for worker compensation claims that Respondent had filed against the School Board is rejected as being unsubstantiated by the record. Respondent failed to fulfill the terms and conditions of her continuing contract, specifically section 3, which provides, in pertinent part as follows: 3. The teacher agrees to teach the full period of service for which this contract is made, in no event to be absent from duty without leave . . . Respondent repeatedly and intentionally refused to obey the School Board Rules and the explicit instructions that had been given to her to request approval for leave and to provide lesson plans. The instructions were reasonable in nature and given by and with proper authority.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which sustains the suspension of Respondent's employment without pay on February 17, 1993, and which terminates her continuing contract. DONE AND ORDERED this 24th day of August, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993.
The Issue Whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on July 24, 1984, and issued certificate number 19-84-002- 03. At all times pertinent hereto, Respondent was a certified law enforcement officer. The Respondent was employed as a police officer by the City of Miami Police Department during 1985. On May 31, 1985, a drug rip-off occurred in Miami, Florida, at Nuta's Boat Yard. Approximately 187 kilos of cocaine were taken. On July 12, 1985, a second drug rip-off occurred in Miami at the Tamiami Marina. Between 400-450 kilos of cocaine were taken. On July 28, 1985, a third drug rip-off occurred in Miami at Jones Boat yard. Approximately 450 kilos of cocaine were taken. Several City of Miami police officers were involved in these three drug rip-offs and the subsequent resale of the stolen cocaine. The subsequent prosecution of these cases became known as the "Miami River Cops Cases". Respondent Collazo did not participate in any of these three drug rip-offs and he has not been prosecuted criminally. Three of the witnesses in this matter, Rudolfo Arias, Carlos Pedrera, and Regino Capiro were involved in the Miami River Cops Cases and were, at the time of the formal hearing, incarcerated in the federal prison system. Mr. Arias Mr. Capiro, and Mr. Pedrera had each entered into a plea agreement with the federal prosecutors. Each of these witnesses had, in exchange for substantial benefits, agreed to divulge information as to wrongdoing by other police officers and to testify against those implicated officers if necessary. The benefits received by Mr. Arias included his being placed in the Federal Witness Protection Program. Despite his plea agreement, Mr. Pedrera refused to testify in this proceeding and was withdrawn as a witness before he gave any substantive testimony. Although neither Mr. Arias nor Mr. Capiro received any direct benefit for his testimony in this proceeding, the testimony presented by both of these witnesses was a product of his respective plea agreement. Mr. Arias was an officer with the City of Miami Police Department in 1985 and knew Respondent as a fellow officer. Armando Garcia, who was also an officer with the City of Miami Police Department in 1985, was considered by Federal Bureau of Investigation (FBI) Agent Judd to be the most culpable of those police officers involved in the Miami River Cops Case. Mr. Arias was considered to be the second-most culpable. Mr. Arias had been contacted by Mr. Garcia and invited to come to his home on the evening of July 29, 1985, the day after the drug rip-off at the Jones Boat Yard. When Mr. Arias arrived at Mr. Garcia's residence at approximately 6:00 p.m., a drug dealer named Jose Benitez was present with members of the Garcia family. Armando Garcia arrived at approximately 6:30 p.m. and was accompanied by Oswaldo Cuello. Mr. Cuello was, at that time, a City of Miami police officer. Mr. Garcia and Mr. Cuello informed Mr. Arias that they had participated in the drug rip-off at the Jones Boat Yard and recruited him to help dispose of the stolen cocaine. Mr. Arias was shown approximately 100 kilos of cocaine that had been packaged in large, clear plastic bags and stored in the Garcia house inside a bedroom closet. Mr. Arias agreed to help sell the stolen cocaine. Respondent, Mr. Cuello, and Mr. Garcia were, in addition to being fellow officers, friends who socialized together. Mr. Arias, Mr. Garcia, Mr. Cuello, and Mr. Benitez entered into a conversation during which either Mr. Garcia, Mr. Cuello, or Mr. Benitez made certain statements about the Respondent. 1/ Mr. Arias left the Garcia house between 8:30 p.m. and 10:00 p.m. on July 29, 1985, with ten kilos of cocaine in a plastic garbage bag. During that time, different people entered and exited the Garcia house. Those entering brought money into the house in different ways, such as in a paper bag or a gym bag, while those leaving the house left carrying various objects such as paper bags and briefcases. Mr. Arias left the yard area through the front gate, walked down the street to his car, and placed the cocaine he had been given to sell in his car. As he was doing this, Respondent drove up toward the front gate, parked approximately two car lengths in front of Mr. Arias's car, and blew his horn. Mr. Arias then saw Respondent engage in a conversation with Mr. Cuello and Mr. Benitez, but he did not hear the conversation. Mr. Arias was joined in conversation with Mr. Garcia and was not paying close attention to Respondent, Mr. Cuello, and Mr. Benitez. Mr. Arias witnessed either Mr. Cuello or Mr. Benitez place a bag in the trunk of Respondent's vehicle which he described as a light brown bag which could have been a grocery bag or a shopping bag. Mr. Arias did not see Respondent holding this bag and he did not know the contents of that bag. Mr. Arias did not see Respondent either enter or exit Mr. Garcia's house and he did not know whose bag it was or from where it came. 2/ Mr. Arias was later told by Mr. Garcia that the Respondent had taken four kilos on the night of July 29, 1985, but that he had only sold one and had returned three of the kilos. 3/ Mr. Arias was also told by Respondent's partner, Officer Squeeky Morales, that Respondent had made certain statements to him regarding his sale of stolen cocaine. 4/ During 1985, Regino Capiro was a City of Miami police officer who became involved in the Miami River Cops case. During 1985, after the Jones Boat Yard rip-off, Mr. Capiro met with Armando Garcia (both Mr. Capiro and Mr. Garcia were still City of Miami police officers at this point in time) in response to a burglary call. The Respondent also appeared at the scene, even though he was off duty. The Respondent invited Mr. Garcia to come by Respondent's house, which was a half of a block from the burglary scene, after they were through with the burglary call. After completing their work at the burglary call, Mr. Garcia and Mr. Capiro drove to Respondent's house. While they were at Respondent's house, Mr. Capiro overheard Mr. Garcia and the Respondent discussing the fact that Respondent had sold for Mr. Garcia some of the cocaine that had been stolen in one of the Miami River drug rip-offs. Mr. Garcia told Mr. Capiro that the Respondent had sold cocaine for him from one of the drug rip-offs 5/ and that Respondent was available to sell cocaine for Mr. Capiro if Mr. Capiro wanted him to do so. These statements were made by Mr. Garcia to Mr. Capiro in the presence of Respondent and without denial from Respondent. Upon hearing these statements, Respondent did not verbally respond, but he did nod his head in agreement. 6/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which finds that Respondent, Vincent E. Collazo, possessed and sold an unknown quantity of cocaine on or about July 1985, and which revokes his certification as a law enforcement officer in the State of Florida. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991. CLAUDE B. ARRINGTON 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 3rd day of July, 1991.
