The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, a career service employee of the Department working in the economic services unit of the Department's District 9 (hereinafter referred to as the "District"). His employment with the Department began on September 30, 1987, when he was hired to fill a Public Assistance Specialist (hereinafter referred to as "PAS") position. On May 6, 1994, Petitioner was promoted to a Senior PAS position. The Senior PAS classification was relatively new. It was established in August of 1993. Along with his promotion, Petitioner received a 10 percent salary increase. It was then, and it has remained, an accepted general, Department-wide practice (but not a requirement) to give salary increases of 10 percent, if possible, to Department employees upon promotion. Whether such a 10 percent promotional increase should be given in a particular instance to a promoted employee working in a district office is a matter that is within the discretion of that district's district administrator. By letter dated January 6, 1995, the Department requested the Department of Management Services (hereinafter referred to as "DMS") to grant upward pay grade adjustments for the PAS and Senior PAS classifications. 1/ The letter read as follows: As you are aware, Florida's error rates for public assistance programs have been well over the national average and the federal government has imposed penalties in both our food stamp program and . . . Aid to Families with Dependent Children. The department has worked very hard to develop strategies to reduce error rates and subsequent penalties by decreasing fraudulent practices, improving communications between workers and clients, improving the FLORIDA system and providing better training staff. A major effort is being made to attract and retain good employees and to reward and retrain current staff and decrease turnover rates. In order to ensure the success of these efforts, we are requesting upward pay adjustments for the classes of Public Assistance Specialist and Senior Public Assistance Specialist with an effective date of December 30, 1994. We wish to adjust the pay for the Public Assistance Specialist from pay grade 015 to 016 and give employees assigned to the class the difference in the minimum salaries for these pay grades. This increase will be in the amount of $40.91 biweekly per employee. We also wish to adjust the pay for Senior Public Assistance Specialists from 016 to 017. Because these employes were recently promoted and received a promotional increase at that time, we are requesting approval to only increase the salary of those employees assigned to the class who are below the new minimum. These employees will receive an increase to the minimum of the new range. Employees who are above the minimum salary of the adjusted pay grade will receive a one- time lump-sum bonus payment using productivity enhancement monies in lieu of a salary increase in order to provide some equity in the class. There is sufficient rate and budget to support this request. If you have any questions, please let me know. We will be happy to meet with you or your staff to discuss this request. PASs and Senior PASs are included in a collective bargaining unit represented by AFSCME Council 79 (hereinafter referred to as the "Union"). In accordance with the provisions of the collective bargaining agreement covering this bargaining unit, DMS, by letter dated March 15, 1995, notified the Union of the Department's proposed pay grade adjustments and invited the Union to comment on the proposal. On March 20, 1995, the Union gave DMS written notice that it "approved" of the proposed pay grade adjustments. By letter dated March 23, 1995, DMS informed the Department of its decision to make the requested adjustments (hereinafter referred to as the "1995 pay grade adjustments"). The letter read as follows: This is in response to your January 6 letter requesting pay grade adjustments for the classes of Public Assistance Specialist and Senior Public Assistance Specialist. Based on the information provided and that funding is available, we concur with your request and have adjusted the pay grades for the classes of Public Assistance Specialist, Class Code 6057, from Pay Grade 15 to 16, and Senior Public Assistance Specialist, Class Code 6050, from Pay Grade 16 to 17. All other designations remain the same. The pay grade adjustment for the class of Public Assistance Specialist will be accomp- lished by increasing the employees' base rate of pay by the difference between the minimum of the pay grades, provided it does not place their salary above the maximum of the range. The class of Senior Public Assistance Specia- list was established effective August 4, 1993. Based on your statement that employees were promoted over a year ago into this class and received a promotional increase at that time, we concur with your request to increase the salary of those employees assigned to the class who are below the new minimum to the minimum of Pay Grade 17. As requested in your letter and our conver- sation with the Office of Planning and Budgeting, these actions are effective December 30, 1994. If you have any questions concerning this matter, please call me or Ms. Mary Dinkins at . . . . Petitioner was among the Senior PASs employed by the Department whose salary was below the minimum salary for Pay Grade 17. Accordingly, as a result of DMS having reassigned the Senior PAS classification from Pay Grade 16 to Pay Grade 17, Petitioner's salary was increased (by $1.47 biweekly, retroactive to December 30, 1994) to $813.96, the minimum salary for the newly assigned pay grade. The salaries of all other similarly situated Senior PASs in the state were likewise increased to the minimum salary for Pay Grade 17. 2/ There are employees in the District presently filling Senior PAS positions who have fewer years of service with the Department than Petitioner, but whose salaries (for reasons that have no apparent connection to their job performance, qualifications or duties) are nonetheless greater than his. 3/ (These are employees who were promoted to their Senior PAS positions after the pay grade for the Senior PAS classification was upgraded to a Pay Grade 17 and who, in addition to their promotions, received a 10 percent increase in salary upon their promotions, as Petitioner had when he was promoted to his Senior PAS position.) On May 24, 1995, Petitioner filed an employee grievance with the Department requesting that the Department "make [his] salary equitable with those Senior P[ASs] whose promotions were granted after 12/31/94 and . . . restore to [him] all pertinent back pay, since 1/1/95." Petitioner's grievance was presented to a grievance committee, which issued the following written "summary/recommendation:" It is the findings of this Committee that while the public assistance upgrades caused some variations with how individual PAS[s] and Senior PAS[s] ended up on the pay scale in comparison to each other, based on when promoted to a Senior PAS, all staff in like positions were treated in the same manner statewide. The variations resulted in trying to create a career ladder as well as upgrade entry level positions. Mr. Chernaik is correct in that he- and also other Senior PAS[s]- might be paid less and have more experience than a PAS who now gets promoted to Senior PAS. This issue may be resolved on a statewide basis. However, if the statewide resolution does not occur, this Committee recommends that every effort should be made to correct this inequity by like compensation for all Senior PAS[s] at the local level. As stated in the grievance filed by Mr. Chernaik, this inequity began 12/31/94 and compensation should begin retroactive to this date if salary and rate would be available. Although difficult to establish a definite time frame for action, this Committee will suggest that the State of Florida act upon this matter by December 31, 1995. At that time, if no resolution can be found at the State level, this Committee recommends that District 9 pursue all options to correct this inequity by 6/30/96 retroactive to 12/31/94. After reviewing the grievance committee's written report, the District Administrator denied Petitioner's grievance on September 7, 1995. On September 21, 1995, Petitioner requested "Secretarial review" of the District Administrator's decision to deny his grievance. By letter dated December 18, 1995, the Department's Human and Labor Relations Administrator, David Wilson, responded to Petitioner's request. Wilson's letter read as follows: This is in response to your request for a Secretarial Review of your Career Service grievance dated May 2[4], 1995. I have been designated by the Secretary to review the concerns expressed in your grievance. Our examination of the relevant data finds that the Grievance Review Committee did a thorough job in its investigation. The committee found that subsequent to the public assistance specialist pay grade adjustments, some newly promoted senior public assistance specialists may have received a higher salary than existing senior public assistance specialists with more experience. The committee recommended that if this situation could not be resolved as a statewide issue, means should be found to address it within District 9. Finally, the committee recommended that any compen- sation adjustments should be retroactive to December 31, 1994. The threshold issue in this grievance is whether or not there have been any violations of the state's pay rules. In its letter of March 23, 1995, the Department of Management Services (DMS) approved the Department of Health and Rehabilitative Services' (HRS) request to adjust only the salaries of those Senior Public Assistance Specialists " . . . assigned to the class who are below the new minimum of Pay Grade 17." This method of implementation was requested by HRS due to the limitation of available funds at the time the pay grades for the classes in ques- tion were adjusted. Personnel Rule, Section 60K-2.006(2), Florida Administrative Code, Upward Pay Adjustments, states in relevant part, "When the department has reassigned a class to a pay grade having a higher minimum salary, each employee's base rate of pay in the class shall be adjusted in an amount equal to the amount by which the minimum salary for the class is adjusted. This procedure for granting pay adjustments shall apply unless a different method of implement- ation is required by the department." Based on the fact that DMS approved this method of implementation as provided for in the above cited rule, there is no violation of the Rules of the Career Service System. As it relates to the recommendation that there should be retroactive salary increases, there is no provision in the Personnel Rules of the Career Service System for retroactive pay. In fact, it is specifically prohibited. Section 60K-2.022(3) states in relevant part: "An agency shall not establish a retroactive effective date for any salary action." In the September 7, 1995 response to your grievance, District Administrator Suzanne Turner correctly stated that pay grade adjust- ments and pay adjustments related to the minimums of classes are statewide issues, as noted above. Subsequent to her response, it was determined that this issue was to be handled at the district level after conside- ration of available budget and rate. Based on the foregoing, I find no violation of the Rules of the Career Service System. Petitioner thereafter requested the Department to "grant [him] a Section 120.57 hearing on the matter." The Department granted the request and referred the matter to the Division. In addition, on or about January 11, 1996, Petitioner brought his grievance to the attention of DMS. DMS responded by sending Petitioner a letter, dated February 7, 1996, which read as follows: We received the documents you submitted regarding your career service grievance on which a final decision was issued by Mr. David Wilson of the Department of Health and Rehabilitative Services on December 18, 1995. Rule 60K-9.004(7), states that the agency head's decision on a grievance is final except as provided in Section 60K-9.004(6), which states: "That, in grievances alleging the agency's failure to comply with the provisions of the Personnel Rules and Regulations, the employee shall have the right to file a grievance with the Department of Management Services if dissatisfied with the agency head's or designee's decision." We have reviewed Mr. Wilson's answer and concur that there has been no violation of any Career Service rules and regulations. Inasmuch as your grievance does not cite additional violations of Career Service rules and regulations, we consider the agency head's decision final on the matter. On February 23, 1996, DMS sent the following letter to Petitioner: 4/ This is in reference to your February 20 tele- phone call to Ms. Mary Dinkins regarding my February 7 letter to you. We have again reviewed your grievance and do not find any violations by the Department of Management Services (DMS) in approving the pay grade adjustment for the Senior Public Assistance Specialist class. Section 60K-2.006(2), Florida Administrative Code, indicates "This procedure for granting pay adjustments shall apply unless a different method of implementation is required by the department." The Department of Health and Rehabilitative Services requested the method of implementation and DMS has the authority to approve it. On April 30, 1996, DMS sent a third letter to Petitioner, which read as follows: 5/ This replies to your career service grievance of January 11, 1996, asserting that the Department of Management Services violated section 110.209(1), Florida Statutes, by creating an inequitable pay plan when it approved, by letter of March 23, 1995, the request of the Department of Health and Rehabilitative Services to adjust the pay grade of the classification of Public Assistance Specialist, class code 6057, from pay grade 15 to pay grade 16 and the class- ification of Senior Public Assistance Specia- list, Class Code 6058, from pay grade 16 to pay grade 17. We understand the basis of your assertion that DMS created an inequitable pay plan to be that when the upgrade was put into effect you received a pay raise only to the minimum pay for the classification and that thereafter employees who were promoted from PAS to Senior PAS were promoted with pay raises that gave them higher salaries than yours although you had more seniority. The HRS letter of January 6, 1995, requested approval to increase the salaries of only those in Senior PAS positions who were below the new minimum, and to increase them to the new minimum, because those employees had been recently promoted and received a promotional increase at that time. The DMS approval of that request was authorized by Rule 60K-2.006(2). On March 15, 1995, DMS wrote to the President of AFSCME pursuant to Article 1, Section 3 of the collective bargaining agreement, explaining the proposed action. AFSCME approved it in writing on March 20. Under Section 110.209, DMS provides a broad salary range for each class, and each employing agency determines the specific salaries. DMS was not involved in the pro- motions and salary decisions that were made after the pay upgrade. HRS did not submit those proposed actions to DMS for approval, and DMS does not exercise approval authority over such actions. The later promotions with higher pay were not contemplated in the March 23 approval. It is our position that our approval did not create an inequitable situation and that DMS did not have any responsibility for the subsequent pay decisions. Your letter of March 4 requests a hearing on the grievance. Rule 60K-9.004(5) provides for a 14-day deadline to file a grievance; that is, 14 calendar days after the event that give[s] rise to the grievance. Your grievance against DMS is untimely. There is no statute or rule providing for a hearing on a career service grievance, even if the grievance had been timely. The DMS decision on a career service grievance is the final action. Your request for a hearing is denied. The Public Employees Relations Commission has ruled that it does not have jurisdiction of career service grievances. Copies of two PERC orders to that effect are enclosed (Goll and Sullivan cases).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department (1) find that Petitioner did not receive an "underpayment," as defined in Rule 60L-8.003(1), Florida Administrative Code, and is not entitled to the backpay he has requested; and (2) exercise its discretion, pursuant to Rule 60K-2.006(1)(g), Florida Administrative Code, to increase Petitioner's rate of pay (prospectively) so that it is no longer lower than that of less experienced (but otherwise similarly situated) Senior PASs in the District. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of July, 1996. STUART M. LERNER, 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 29th day of July, 1996.
The Issue The issue is whether Respondent unlawfully determined that the proper way to return Petitioner to suitable gainful employment is through direct job placement, rather than job retraining.
Findings Of Fact Petitioner was born on October 3, 1958. She has been a licensed practical nurse in Florida since 1983. On April 7, 1998, while working as a licensed practical nurse, Petitioner slipped on a wet floor at work and sustained injuries to her right elbow, leg, and back. On August 27, 1998, while in transit to a workers' compensation clinic, Petitioner was involved in an automobile accident in which she sustained a cervical strain and sprain. On October 28, 1998, Petitioner was sitting at work, where she had been assigned light duty, when her chair rolled out from under her, causing her to fall and sustain injuries to her back and neck. Petitioner has not worked since sustaining these last injuries. A physician determined that Petitioner reached maximum medical improvement on April 10, 2000, at which time she had a 23 percent permanent impairment to the body as a whole. Among the physician's diagnoses were concussion with memory disturbances and cognitive difficulties. The physician determined that nearly 60 percent of Petitioner's permanent disability was attributable to "cerebral dysfunction." Among the physician's restrictions were avoiding lifting more than 20 pounds and pushing or pulling and limiting walking, standing, bending, and kneeling. Petitioner first contacted Respondent for job retraining services on January 10, 2001. At the conclusion of an orientation sponsored by Respondent on January 24, 2001, Petitioner signed a request for screening. After examining the file, the Respondent's Vocational Rehabilitation Consultant determined that Petitioner could find suitable gainful employment through direct job placement, rather than job retraining. In particular, the consultant relied on Petitioner's transferable skills and work history. After factoring in her restrictions, the consultant determined that Petitioner could still earn over half of what she had been earning as a licensed practical nurse prior to her first accident. Petitioner complains of delays in Respondent's processing of her request for job retraining services. However, no such delays existed in this case. Nor can Petitioner legitimately seek reimbursement for accounting courses that she began a mere five days after signing the request for screening. Obviously, she did not pursue this alternative after exhausting her options with Respondent and the services that it offers. A transferable skills analysis reveals that Petitioner could obtain suitable gainful employment by direct job placement in various nursing fields, and possibly also certain accounting fields. Clearly, the better approach to the vocational rehabilitation of Petitioner is direct job placement. If Petitioner is able to find and keep suitable gainful employment, she will have obviated the necessity of considering the extent to which her cognitive difficulties may restrict effective job retraining.
Recommendation It is RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing Petitioner's request for job retraining services. DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2002. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Elizabeth Teegen, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Silvia Valdes 4336 Southwest 48th Court Fort Lauderdale, Florida 33314 Elana J. Jones, Senior Attorney Department of Labor and Employment Security 2012 Capital Circle Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
Findings Of Fact In March 1987 DHRS published a Request for Proposal (RFP) for a Comprehensive Manpower Employment Service Programs for Refugees and Entrants (Exhibit 5) which established a time frame for bidders to submit proposals to provide services for the year beginning July 1; 1987 and ending June 30, 1988; established criteria for the services to be provided; and contained all information necessary for a bidder to submit an acceptable bid. Pursuant to this RFP, Hillsborough County, Lutheran Ministries of Florida, Inc., and Catholic Social Services submitted proposals to provide the services authorized by federal statute to be provided to refugees and entrants predominantly from Cuba/Haiti and Indochina. Pursuant to this RFP; bidders are required to submit a plan which identifies the services to be provided and a line item budget of anticipated allowable costs that will be incurred in the delivery of the services. Each bid is to be reviewed by at least three HRS employees familiar with the objectives and requirements of this social services program using the rating sheet as shown in an appendix to the RFP. The raters grades are totalled, and the contract is to be awarded to the bidder whose proposal is determined, through the evaluation process, to be most advantageous to the State, taking into consideration program and organizational capability, previous experience and understanding of the project (Exhibit 5 p. 25) Five qualified raters evaluated the proposals submitted by the bidders. The totals of the grades given by these raters, four of whom testified in these proceedings, was 603 for Petitioner and 1360 for Lutheran Ministries, thereby indicating the bid by Lutheran Ministries to be far superior to the bid by Hillsborough County. For the past three years, Lutheran Ministries has held the contract to provide services to refugees and entrants while Hillsborough has held the contract, also from HRS, to operate a program intended to mitigate the impact on counties affected by the large influx of Cubans and Haitians entering this country at the time of the Mariel boat lift and after. The former funds are social services funds and the latter are designated Targeted Funds. Although both funds are operated out of the same DHRS office, they are distinct and separate appropriated funds. The 1986 Legislature failed to provide Targeted Funds for the year beginning January 1, 1988. Accordingly, there will be no Targeted Funds awarded to Hillsborough County to use after December 31, 1987. Apparently to preserve the jobs to carry out assistance to various aliens, Hillsborough County submitted its bid to provide services to refugees similar to the services it has been providing to immigrees. Petitioner's bid provided for payment of salaries totaling $40,197 for six months, travel costs for six months and specialized transportation costs for six months. Petitioner apparently intended to use the anticipated funds, if its bid was accepted, to continue the staff employed in carrying out the mission to be accomplished with Targeted Funds for the six months between January 1, 1988 and June 30, 1988, with their salaries for the first six months (July - December 1987) paid from Targeted Funds. Having submitted a bid which clearly shows only six month funding for personnel and certain travel costs, Petitioner's contention that the raters misinterpreted the proposed program year is without merit. Although the bid proposal showed it was for the period July 1 1987 to June 30, 1988, the cost for one year's operation was not shown and Petitioner's bid was properly downgraded for this reason. That Petitioner's proposal was intended as a substitution and/or continuation of the Refugees/Entrants Employment Services (REES) program which it had administered for the past three years is shown in their proposal (Exhibit 2 p. 7) that "Effective July 1; 1987; the REES program will increase its level of services by adding 0JT and day care to its comprehensive employment." It shows targeted assistance dollars funding comprehensive employment and transportation for the first six months of the program year through December 31, 1987. Such language rightfully led the raters to question what type services would be provided to the refugees under Petitioner's proposal. Petitioner's contention that bid proposals were not rated on their individual merit, but rather were compared to each other, not only is unsupported by any evidence but also every rater who testified stated that no comparison of bids was made. The remarks on the rating sheets which were relied upon by Petitioner to support this contention disclose another failure by Petitioner to comply with the RFP. The RFP (Exhibit 5) provided under Part IV General Information (p. 13) that specific questions regarding the RFP and its provisions should be addressed to Millie Coten and that an original and nine copies of the proposal are required. The Hillsborough County audit which was required as a part of the proposal comprised some 80 or 90 pages, which was nearly half of the proposal submitted. In order to eliminate the cost of reproducing 10 copies of this audit, Jimmy Keel, director, Department of Public Assistance for Hillsborough County, called Michael Simmons, district budget officer for HRS Tampa office to see if they had to include audits in all of these copies. Simmons told Keel that since there would be only five raters, if the audit was included in five copies of the bid, that would be acceptable. Simmons was not the contact officer in the RFP to answer questions regarding the RFP and no evidence was presented that he had such authority. This discrepancy in complying with the RFP came to light during a meeting of the raters when it was discovered that at least two of them did not have a complete bid from Petitioner. Petitioner's contention that it was rated on criteria not contained in the RFP is allegedly supported by raters' comment on the rating sheets that the salaries for those running the program proposed by Petitioner are too high. For the four positions proposed by Petitioner to run the program, the annualized salary is in excess of $80,000. The cost of providing the proposed services for one year is expected to be less than $80,000. In looking at proposed salaries in such bids, the raters use salaries paid HRS employees for similar duties and responsibilities as well as common sense. The fact that some such standard is used to determine the appropriateness of salaries in bids received should surprise no one. It is well understood by people bidding on HRS service projects that such a salary comparison is made to determine the appropriateness of salaries to be paid by contractors providing the contracted for service. The contention by Petitioner that it was rated on criteria not contained in the RFP is without merit. Petitioner's next contention that raters were not familiar with all of the definitions and requirements of the RFP was supported by no credible evidence. The four raters who testified all stated unequivocally that they fully understood the definitions and requirements of the RFP. The second allegation to support this position involved the fact that as a governmental agency Hillsborough County does not have a board of directors and articles of incorporation and because of this did not receive maximum points on their rating item. This position is not supported by the evidence. The grades of less than maximum on those items were changed to give Petitioner the maximum grade score before the totals were added. Finally, Petitioner's contention that the raters were confused by, and misunderstood the contents of, Petitioner's proposal yet failed to contact Petitioner for clarification not only is not supported by any credible evidence, but also ignores the RFP requirement (Part V p. 20) that: It is the responsibility of the applicant to develop the proposal as clearly and succinctly as possible in order to avoid misinterpretation of the information presented. Proposals will be reviewed and evaluated solely on the basis of the information contained therein. No evidence was submitted by Petitioner to show that even if Petitioner had been incorrectly rated on some of the rating sheets, a change in those ratings would have brought Petitioner's total score, and hence rating, up to that attained by Lutheran Ministries so as to make Petitioner the successful bidder.
Findings Of Fact The Respondent's Employment. The Respondent, John Daniel Faughn, is a Labor and Employment Training Specialist for the Department of Labor and Employment Security (hereinafter referred to as "LES"), and has held that position since 1981. (Stipulated Fact). Mr. Faughn served as a contract manager for LES for approximately two years: 1988 and 1989. (Stipulated Fact). At all times relevant to this proceeding, Mr. Faughn was an "employee of an agency" subject to Section 112.313(6), Florida Statutes. Mr. Faughn worked in the Bureau of Job Training of LES. Mr. Faughn's immediate supervisor was Glenn Chilcote, a Specialist Supervisor at the time. Mr. Chilcote's immediate supervisor was Julian Spradlin. Mr. Spradlin's immediate supervisor was Shelton Lee Kemp, then Bureau Chief of the Bureau of Job Training. The Duties of an LES Contract Manager. The duties of an LES Contract Manager included negotiating contracts between LES and contractors to provide services involving the placement of individuals into employment positions, providing technical assistance requested by the contractor, receiving training and placement information from the contractor, and handling invoices submitted by the contractor once placement was made. (Stipulated Fact). Although it was not a contract manager's responsibility to verify all the information provided by the contractor, contract managers did have a general duty to inquire about information which seemed out of line. (Stipulated Fact). CARE, Inc. and Eugene Wood. CARE, Inc., (hereinafter referred to as "CARE"), is a corporation. "CARE" is an acronym for "Center for Aging Research and Education". Eugene Wood was the President of CARE from at least October 10, 1988, to May 1, 1989. (Stipulated Fact). On May 1, 1989, Mr. Wood sold CARE to Mary Lookadoo, a former program participant, and her daughter and granddaughter, for the sum of $1.00. (Stipulated Fact). The weight of the evidence failed to prove that Mr. Faughn was aware of the sale. LES's First Contract with CARE. LES administered federal Title III grant money in 1988 and 1989. Title III grant money was provided to the states for the purpose of increasing employment of individuals, particularly the disabled or long-term unemployed. Grant money for the foregoing purpose was used to pay for training and assistance to be provided by contractors to individuals in order to place them in the work force. LES and CARE entered into a contract (hereinafter referred to as "Z3248"), providing for the payment of Title III grant funds to CARE for providing certain services specified in the contract between LES and CARE. Mr. Faughn was the contract manager for Z3248. (Stipulated Fact). Z3248 was for the period November 1, 1988, through October 31, 1989. (Stipulated Fact). Pursuant to Z3248, CARE was to be paid for any eligible person placed by CARE in unsubsidized employment after a training period. The placement had to be for a minimum of 30 days of "unsubsidized employment". LES agreed to pay CARE an average of $2,317.29 per placement for a maximum of 14 placements. CARE agreed to provide up to 14 placements for 30 days of unsubsidized employment after appropriate training and supervision. CARE also agreed to provide $35,205.00 in matching contributions, including "in- kind" contributions and $4,410.00 in on-the-job-training salaries. Z3248 was "performance based." That is, CARE was to only received payment for successfully placing qualified persons in employment positions. LES' Second, Indirect, Contract with CARE. In 1989 LES and the Department of Health and Rehabilitative Services (hereinafter referred to as "DHRS"), were involved in a contract for $612,000.00 of federal Title III funds to provide job training and placement in employment of mentally handicapped individuals. Mr. Faughn was the contract manager for this contract, Z3458. DHRS in turn contracted with Florida Community College, Jacksonville, Florida, for administration of Z3458. Florida Community College in turn contracted with the Florida Alliance for Employment of the Handicapped (hereinafter referred to as "FAEH"). (Stipulated Fact). In March, 1989, FAEH was interested in finding service providers for Z3458. A contract between FAEH and CARE was ultimately entered into on May 4, 1989. CARE was to receive approximately $2,300.00 for each placement. (Stipulated Fact). Mr. Faughn's Relationship with Mr. Wood and CARE and His Motive to Benefit Them. Mr. Faughn met Mr. Wood during negotiations for the first contract, Z3248. Mr. Faughn and Mr. Wood became personal friends while Mr. Faughn was the contract manager for Z3248. There were occasions when they stayed as overnight guests in each other's homes. Mr. Faughn stayed with Mr. Wood in San Mateo, Florida, where CARE was located, after Z3248 ended. Mr. Faughn, while still the contract manager for Z3248, believed that he would be going to work for Mr. Wood. Mr. Faughn informed Carol Ann Breyer, then Executive Director of the Florida Alliance for the Employment of the Handicapped, that he was considering going to work for Mr. Wood on a child day- care center project. Mr. Faughn told Lucy Shepard, a Senior Management Analyst II with the Department of Health and Rehabilitative Services, that he would probably be going into business with Mr. Wood. Mr. Faughn, during the time that he was contract manager for Z3248, informed his Bureau Chief, Mr. Kemp, that he was resigning to go to work for Mr. Wood. Mr. Faughn later, however, informed Mr. Kemp that the job did not materialize and requested that his resignation be rescinded. Mr. Faughn, again during the time that he was contract manager for Z3248, informed Mr. Wood of two modest houses in Tallahassee, Florida. Mr. Wood expressed an interest in acquiring the houses and Mr. Faughn assisted Mr. Wood in the purchase of the houses by showing the houses to Mr. Wood and informing him of who owned them. Mr. Faughn performed work on the two houses purchased by Mr. Wood, including constructing a porch on one, pressure cleaning and painting both, replacing a door and removing trash. The evidence concerning Mr. Faughn's purpose in working on the houses owned by Mr. Wood and, whether Mr. Faughn was paid for his work, was conflicting. Mr. Faughn's prior statements and his testimony at the final hearing of this case concerning the houses indicate a lack of candor on his part. His explanation of why he performed the work and whether he was paid is, therefore, rejected. Mr. Faughn maintained at the final hearing that he simply performed the work on the houses out of friendship. He also maintained that there was no "formal agreement" concerning the work he was to perform or his compensation. In his deposition testimony, Mr. Faughn indicated that there was never anything "firm" about being paid an hourly rate for his work and that he was never paid. Mr. Faughn gave Mr. Kemp and Mr. Spradlin the impression that he was working on the houses because he had an interest in the houses and would share in any profits when they were sold. Mr. Faughn's denial of having made such statements is rejected. Mr. Faughn told William Geier and Bonita Stokley of LES's Office of the Inspector General that he was to be paid an hourly wage for his work on Mr. Wood's houses. Mr. Faughn's later denial that these statements were correct is rejected. Based upon the weight of the evidence, it is concluded that Mr. Faughn performed work on the houses because he believed he would be compensated in some manner for his effort. Mr. Faughn believed that he would receive an hourly wage, would share in the profits from the sale of the houses or that he would be employed by Mr. Wood in some venture. In all likelihood, Mr. Faughn expected to and, as explained, infra, did receive an hourly wage. Mr. Faughn received a check for $4,500.00 dated August 4, 1989, from Mr. Wood. The check was deposited in Mr. Faughn's personal credit union account. Mr. Faughn's explanation of what the $4,500.00 check he received from Mr. Wood was for and even whether the check existed has varied throughout the investigation and the hearing on this matter. Mr. Faughn's explanation varied depending on who he discussed the matter with: At the final hearing Mr. Faughn testified that the check was merely a reimbursement for materials and supplies used during his work on the two houses. Prior to the final hearing Mr. Faughn failed to inform investigators from LES during questioning that he was reimbursed any amount. Mr. Faughn told an investigator for the Commission that he had only received $300.00 in reimbursement for supplies and materials. His testimony that he had forgotten about the $4,500.00 check is not credible. Mr. Faughn's testimony in his deposition and at the final hearing and his statements to the Commission's investigator concerning the nature of the work he performed on the houses was also inconsistent. After considering all the evidence concerning the $4,500.00 check, it is concluded that Mr. Faughn was paid the $4,500.00, at least in part, as compensation for his services to Mr. Wood for work on the two houses. Based upon the foregoing, it is concluded that Mr. Faughn's relationship with Mr. Wood, the payment by Mr. Wood for work performed by Mr. Faughn, and Mr. Faughn's hope and belief that he would become an employee of Mr. Wood gave Mr. Faughn reason and motive to act in the interest of Mr. Wood and CARE. By acting on behalf of Mr. Wood and CARE, Mr. Faughn was acting on his own behalf. The Performance of Mr. Faughn's Duties: Mr. Faughn's Recommendations to Expand Z3248. Z3248 initially provided that up to $32,442.06, was available for payment to CARE. This amount was increased, in December, 1988, to $64,884.12. (Stipulated Fact). The number of placements to be made by CARE was also increased to 28. The first increase in Z3248 came about after Mr. Kemp informed Mr. Wood by letter dated November 30, 1988, of the availability of additional job placement units which CARE could apply for. Shortly after Z3248 was doubled in December, 1988, Mr. Faughn approached Mr. Spradlin and recommended that the contract be doubled a second time. The second recommendation to increase Z3248 was denied by Mr. Spradlin. Mr. Spradlin declined approval because he thought that there were certain costs incurred by contractors which did not increase as the number of participants increased. Therefore, as the number of participants increased, the amount of a contractor's profit per participant increased. Mr. Spradlin did not believe this was appropriate. Mr. Faughn was upset with Mr. Spradlin's denial of the second request to increase Z3248. Mr. Spradlin, who indicated that most contract managers tend to support the contractors of the contracts they manage, was surprised at the level of Mr. Faughn's interest in the increase. The weight of the evidence proved that Mr. Faughn's actions in recommending the second increase in Z3248 were inconsistent with the proper performance of his public duties. Although it was not inconsistent for a contract manager to recommend that a contract be increased, Mr. Faughn's reaction to Mr. Spradlin's decision not to approve the second increase coupled with Mr. Faughn's motive for benefiting CARE and Mr. Wood supports a conclusion that Mr. Faughn did not recommend the second increase as part of the performance of his public duties. Instead, Mr. Faughn's recommendation to increase Z3248 was made corruptly. The Performance of Mr. Faughn's Duties: Review of Training Hours. The contract for Z3248 (Respondent's Exhibit 5) contained the following relevant provisions concerning training required by CARE: CARE was to provide Employability Skills Training, Occupational Skills Training and On-the-Job Training (hereinafter referred to, respectively as "EST", "OST" and "OJT"). As is normally the case with these type contracts, it was contemplated in the Z3248 contract that EST would be completed before participants began unsubsidized employment: Upon completion of training, participants will then put their skills to practical use by searching for jobs and having actual personal contact with employers. . . . [Emphasis added]. Page 6, Respondent's Exhibit 5. It was contemplated in the contract that OJT would require 8 to 10 weeks to provide: While some training may be limited to the minimum of two weeks, it is anticipated that clients will require between 8-10 weeks of training. Page 7, Respondent's Exhibit 5. Customized training was also a possibility under the contract: This training may be used for the needs of the employer with a written commitment from an employer to employ the trainee after successful completion of training. The predominate activity will be on-the-job training, but could include classroom training. Page 7, Respondent's Exhibit 5. Finally, the contract provided that "[t]he average length of training for OST/EST/OJT should average 235 hours for each participant." Page 12, Respondent's Exhibit 5. It is to a contractor's advantage to report higher training hours. As part of its contract with LES, CARE was required to forward LES Form 104 to Mr. Faughn each time a participant was placed in employment. (Stipulated Fact). This form was used as an invoice for payment for the placement of a participant in 30 days unsubsidized employment. CARE was also required to file LES Form MIS 2. Form MIS 2 was to be used to report, among other things, each participant's date of enrollment, any change in status and the date of termination. The contract also required that "[i]f the contractor is the OST training agency, the participant's total training hours for EST and OST and/or OJT (whichever applies) must be written on the bottom of the MIS 2 Form for termination." Page 13, Respondent's Exhibit 5. CARE filed MIS 2 Forms for its participants and reported the enrollment and termination date for each participant and the hours of EST, OST and OJT (although the training hours information was not included at the bottom of the page). See Advocate's Exhibit 7. CARE also filed an LET 104 Form for its participants. On the LET 104 CARE was to report, among other things: Block 6: The date that the participant began unsubsidized employment. Although it is possible that training can continue after this date, this date is usually a date after all training has ended. It would be very unusual and unlikely that training continued after the date unsubsidized employment began. Block 8: The starting and ending date for OJT. Block 11: The "Total Hours Trained." There was conflicting testimony as to what the information contained in this part of the form signifies. Based upon the weight of the evidence (primarily the testimony of Carol Marks of LES's Bureau of Job Training Compliance and Mr. Chilcote), more information concerning a contract is needed to determine what the information means. Blocks 13 and 15: Finally, the date the form is signed. This date should be at least 30 days after the date unsubsidized employment began. The purpose of the LET 104 was to certify that a participant had completed the required 30 days minimum of unsubsidized employment. Meeting this requirement entitled CARE to payment of $2,317.29 per participant. To determine if CARE was entitled to payment, the date the LET 104 was signed had to be at least 30 days after the starting date of unsubsidized employment reported in block 6 of the LET 104. Each LET 104 and MIS 2 is filed with the contract manager. The contract manager must review each MIS 2. The contract manager must also review each LET 104 to determine if the contractor is entitled to payment. If so, the LET 104 Form is reviewed by the contract manager's supervisor, is then sent to the Bureau of Financial Management and then goes to the Comptroller for payment to the contractor. Participants usually are required to train 40 hours a week. Although it is possible to train for more than 40 hours, it is unlikely that more than 40 hours would be expended by any participant. Based on the Total Hours Trained reported on the LET 104's filed by CARE for Z3248 and the period of time of OJT reported on the LET 104's, CARE participants were investing from 61 to 129 hours a week in OJT. When the Total Hours Trained reported are compared with the period of time from the enrollment date reported on the MIS 2's to the date unsubsidized employment began, although participants spent fewer hours per week, most of them still allegedly were spending more than 40 hours a week in training: from 33.5 to 70.5 hours per week. Mr. Faughn, after reviewing the LET 104's and MIS 2's filed by CARE on Z3248, did not raise any question about the number of training hours being reported by CARE. The testimony concerning whether Mr. Faughn should have noticed and raised some question concerning the Total Hours Trained reported by CARE, was conflicting: Mr. Geier, from the Office of the Inspector General of LES, divided the Total Hours Trained by the number of days of OJT reported in the LET 104's and by the number of days between each participant's enrollment date from the MIS 2's and the date unsubsidized employment began. His calculations, which are contained on Advocate's Exhibits 7 and 8, respectively, indicate that most participants may have been receiving more than 40 hours a week of training. See Finding of Fact 52. Mr. Geier believed that Mr. Faughn should have at least raised a question about the numbers reported as Total Hours Trained. Mr. Chilcote, Mr. Faughn's immediate supervisor, disagreed with Mr. Geier's conclusion: Mr. Chilcote pointed out that contract managers have to review several LET 104's a day (LET 104's were delivered in stacks of 20 to 30 and involved more than 1 contract and, on average, Mr. Faughn reviewed 8 to 10 a day). Mr. Chilcote also explained that contract managers do not have the time to make the calculations that Mr. Geier made. In order to make the calculations Mr. Geier made, it was necessary for Mr. Geier to count the number of possible days of training and then divide the Total Hours Trained by the number of days. Although not a difficult calculation, the evidence failed to prove that the calculation is one that contract managers normally make. Additionally, Mr. Geier had to obtain some of the relevant information necessary to make the calculations from the LET 104's and from MIS 2's. If block 11, Total Hours Trained, was only for OJT hours, Mr. Chilcote agreed that Mr. Faughn should have been alarmed. Block 11, however, was being used to report all training hours: EST, OST and OJT. Mr. Faughn should have been aware that CARE was reporting all of its alleged training hours in block 11 and not just OJT. Therefore, Mr. Faughn did not believe that Block 11 was intended to represent just OJT. Mr. Chilcote did not believe that lumping the hours of EST, OST and OJT was unusual. The Total Hours Trained reported on the LET 104's were not the significant information that contract managers were supposed to review. The purpose of the LET 104 is for contractors to certify that a participant has completed, in this case, 30 hours of unsubsidized employment. Therefore, the most important information on the LET 104 is the date unsubsidized employment began and the date the form was signed. Mr. Faughn initially rejected one payment and wrote to CARE when the information concerning when unsubsidized employment began and the date the form was signed for one participant did not indicate that the participant had been through 30 days of unsubsidized employment. See Respondent's Exhibit 8. Based upon the weight of the evidence, it is concluded that the evidence failed to prove that Mr. Faughn should have questioned the hours being reported as Total Hours Trained by CARE on the LET 104's. In light of the fact that the Total Hours Reported included all hours of training, not just OJT, the fact that Mr. Faughn was aware that the contract required EST, OST and OJT, and the fact that the LET 104's were primarily used to receive payment for 30 days of unsubsidized employment, dividing the Total Hours Trained by the number of days of OJT was not something Mr. Faughn would be expected to do as part of his job. The results of dividing the Total Hours Trained by the number of days from enrollment to the beginning of unsubsidized employment (Advocate's Exhibit also does not support a conclusion that Mr. Faughn should have questioned the information because the results of this computation do not show as great a discrepancy and the evidence failed to prove that Mr. Faughn should have been comparing the information contained on the LET 104's with the information contained on the MIS 2's necessary to make this computation. The Performance of Mr. Faughn's Duties: CARE's Match. CARE was required to provide "Match" on Z3248. "Match" is a requirement that a contractor provide a certain specified amount of time, equipment or 50% of OJT costs. In the case of Z3248, CARE was required to provide 50% of OJT Costs. CARE was required to report the amount of its match monthly on line 7 of a "Report of Monthly Cumulative Matching Contribution-Summary." CARE did in fact file such reports and, according to its reports, provided the required match. The evidence failed to prove that CARE failed to fulfill this requirement. In April, 1989, Ms. Marks and James Harris from LES's Bureau of Job Training Compliance made a site visit to CARE. The Bureau of Job Training Compliance was responsible for auditing contractors to determine whether they were complying with the requirements of their contracts. Ms. Marks and Mr. Harris spent approximately one-half of a day on the visit to CARE. Mr. Harris, who monitored fiscal matters, attempted to find documentation in the form of OJT agreements and time sheets to verify CARE's match of $6,398.00 reported for March, 1989. Mr. Harris was not successful and requested these documents from Mr. Wood. Mr. Wood informed Mr. Harris that the documentation for the $6,398.00 of March, 1989, Match was not available. Mr. Harris told Mr. Wood that the $6,398.00 would have to be removed and Mr. Wood informed Mr. Harris that it would be. Mr. Harris informed Mr. Faughn of the problem concerning the $6,398.00 of unsupported match. Mr. Harris also told Mr. Faughn that Mr. Wood had indicated that the $6,398.00 would be removed from CARE's reported Match. On June 26, 1989, a letter was sent to Mr. Wood from Ron Rigby, LET Supervisor, Bureau of Job Training of LES, stating, among other things, the following: In regard to the finding as noted in the fiscal review, documentation submitted is inadequate to support matching contributions of $6,398 for employer's OJT costs. You are requested to submit employers' OJT agreements and participants' time sheets which may be used to adequately document the matching contributions. We recommend that if adequate documentation is not submitted, the match contributions of $6,398 be deleted from the match report. A copy of the June 26, 1989, letter to Mr. Wood was provided to Mr. Faughn and Mr. Chilcote with a note from Mr. Spradlin which stated: What action will this require if enacted, i.e. are they already short of match or would they be without this etc. Pls track this along with the Gretna thing until resolution. Although there was some dispute over who had the ultimate responsibility for following up on the documentation for the $6,398.00 match, the weight of the evidence proved that while ultimate responsibility may have rested with the monitors of the Bureau of Job Training Compliance, Mr. Faughn had the responsibility to follow up on this matter also. Mr. Faughn had the responsibility as the contract manager and because he was directed by Mr. Spradlin to follow up until resolution. Although there was conflicting testimony concerning whether the documentation was ever provided, it is concluded that it was not. Mr. Faughn's testimony was disputed by other witnesses and, throughout the proceeding, was less than candid. Although the disappearance, and reappearance a few years later, of a file in which the documentation might have been kept and the fact that Mr. Harris left employment with LES in July, 1989, at the time of these events raises some question about whether the documents were provided, ultimately, Ms. Gloria Barton's testimony that the documentation was not provided was persuasive. Ms. Barton took over responsibility for the matter after Mr. Harris left LES. Ms. Barton asked Mr. Faughn about the documentation twice and made a note on August 8, 1989, to this effect. Ultimately CARE reported that it provided more match than it was required to provide. The weight of the evidence failed to prove that it did not meet its match requirement. Although the lack of documentation for a part of the reported match raises a question in the undersigned's mind concerning the accuracy of the other reported match, no evidence was presented to indicate that the required match was not ultimately provided. Nor was any evidence provided that anyone at LES also had such a concern. The weight of the evidence failed to prove that Mr. Faughn's actions with regard to whether CARE's match constituted some act or omission inconsistent with the proper performance of Mr. Faughn's public duties. The evidence, therefore, failed to prove that Mr. Faughn acted corruptly by not following up on the $6,398.00 of match questioned by Mr. Harris. J. The Performance of Mr. Faughn's Duties: Z3458. In March, 1989, Mr. Faughn approached Lucy Shepard, who acted as liaison between DHRS and LES on Z3458, and Carol Ann Breyer of FAEH and recommended that CARE and Mr. Wood be considered as a service provider. (Stipulated Fact). On April 29, 1989, Mr. Faughn held a barbecue at his home for the purpose of getting CARE together with DHRS and FAEH. Ms. Shepard, Charis Wickers of FAEH and Mr. Wood, among others, attended the barbecue. (Stipulated Fact). Mr. Faughn was very enthusiastic in his recommendation that CARE be awarded a contracted from FAEH. It was unusual for a contract manager to suggest service providers. As the contract manager of the ultimate contract from LES, Ms. Shepard, Ms. Breyer and Ms. Wickers were all influenced by Mr. Faughn's recommendation. Although Ms. Shepard, Ms. Wickers and Ms. Breyer all had reservations (based upon the fact that they had not heard of CARE as a provider of mental health services) about entering into a contract with CARE, they ultimately went along because of Mr. Faughn's recommendation and because the contract with CARE was performance based: if CARE did not perform, CARE would be paid nothing. After the contract was entered into with CARE, invoices were submitted. Ultimately, invoices for at least 100 placements were submitted. Ms. Shepard, Ms. Wickers and Ms. Breyer all raised questions with Mr. Faughn about their suspicions and concerns over whether CARE was performing the work it was reporting. Ms. Wickers complained more than once that CARE was not keeping sufficient contact with FAEH. Ms. Breyer questioned CARE's ability to perform as it was reporting. Although Mr. Faughn was not the contract manager of the contract to FAEH, Mr. Faughn and FAEH representatives knew that DHRS and Florida Community College were "pass-thrus" and that the most significant parties were FAEH and LES. Whenever Mr. Faughn was informed of the concerns of Ms. Shepard, Ms. Wickers and Ms. Breyer, Mr. Faughn would assure them that everything was okay, that CARE would perform and he would tell them not to worry. The invoices submitted by CARE were suspicious because they reported employment that mentally handicapped individuals normally do not obtain and some of the telephone numbers and addresses of employers were very similar. Eventually, Ms. Breyer took her concerns about the invoices to Mr. Kemp of LES. She did not go to Mr. Faughn because of his enthusiasm in recommending CARE and his lack of attention to her previous complaints. CARE was not paid any amount by FAEH. The weight of the evidence proved that Mr. Faughn's actions in recommending CARE for Z3458 and in ignoring the complaints against CARE were acts or omissions inconsistent with the proper performance of Mr. Faughn's public duties. But for his relationship with Mr. Wood and his desire to benefit himself indirectly through CARE and Mr. Wood, it is concluded that Mr. Faughn would not have supported CARE as a contractor in the manner that he did and that he should have taken the complaints against CARE more seriously. Therefore, the evidence proved that Mr. Faughn acted corruptly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that John Daniel Faughn violated Section 112.313(6), Florida Statutes. It is further RECOMMENDED that the Commission suspend Mr. Faughn without pay for one month and demote him to a position in which he will not have direct or indirect responsibility for public funds. If Mr. Faughn cannot be demoted to such a position, it is recommended that the Commission suspend him without pay for a period of two months. DONE and ENTERED this day of June, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 day of June, 1992. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. 1 1. 2 2. 3 5. 4 6. B. 1 7. 2 8. 3 9. 4 Not relevant. See 10. C. 1 11. 2 12 and 21. 3 12 and 14. 4 13. 5 37. Hereby accepted. Not supported by the weight of the evidence. 8 18 and 21. 9 18. 10 19. 11 21. 12 80. D. 1 22-23. 2 24-25. 3 26. 4 27. 5 28-31. 6 31. 7 34. 8 33. 9 31 and 34. 10-14 34. 15 34-36. E. 1 37 and 39. 2 40. 3 41. 4 Not supported by the weight of the evidence. 5 45. 6 48. Hereby accepted. But see 55. See 52 and 54. 51. The Respondent did not have the burden of proving that over 40 hours of training per week was provided. The burden of proof was on the Advocate. See 48. 11 47-48. 12 51. 13 The burden of proof was on the Advocate to prove that participants did not receive training after being placed in unsubsidized employment. Although the evidence raised doubt about whether such training was provided, the evidence did not prove this fact. 14 See 54-55. 15 44. Hereby accepted. But see 55. See 55. Except for the first sentence, this proposed finding of fact is not supported by the weight of the evidence. 18 65. 19 58 and 60. 20 56. 21 63-64. 22-25 66. Not supported by the weight of the evidence. See 67. 69 and hereby accepted. 28 70. 29 71. 30 73 and 76. 31 21 and 73. 32-33 75 and 77. 34 78-79. 35 Not relevant. 36 79. 37 80. 38 33-36. The last paragraph is not supported by the weight of the evidence. Mr. Faughn's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 5. 4 5 and 50. 5 12-16. 6 17, 45 and 49. 7 38. 37 and hereby accepted. Not supported by the weight of the evidence. The evidence failed to prove whether CARE fulfilled its obligations or whether it failed to fulfill its obligations. The evidence failed to prove that Mr. Faughn's performance "was exactly as it should have been." See 22, 45 and 47. The third sentence is hereby accepted. 11-12 Not supported by the weight of the evidence. 13 18, 20 and 69. 14 70. 15 Not supported by the weight of the evidence. 16 21 and 71. Not supported by the weight of the evidence. See 75 and 77. Not supported by the weight of the evidence. See 73 and 76. Not supported by the weight of the evidence. See 81. 33 and See 34-36. The evidence failed to prove that the sole purpose of the $4,500.00 check was for materials. Not supported by the weight of the evidence. See 35- 36. See 55. Not supported by the weight of the evidence. See 42 and 81. 24 See 6, 65 and 68. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Ronald L. Jones, Esquire 1020 East Lafayette Street, Suite 108 Tallahassee, Florida 32301 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether Glen Markee can return to suitable gainful employment without further training and education.
Findings Of Fact Glen Markee, a 44-year-old male, was employed as a roofer by Sam Damm Roofing, Inc. in Port Richey, commencing in November 1992. Mr. Markee’s duties included lifting bundles of shingles weighing up to 90 pounds, tearing off roofing, and lifting tar kits weighing 100 pounds. On April 6, 1999, he sustained a right shoulder and cervical injury while lifting shingles and ripping out roof. The accident was accepted as compensable. Mr. Markee received medical treatment, and was eventually referred to Dr. Harold Colbassani, a neurosurgeon. Following an MRI, Dr. Colbassani diagnosed a right-sided disc herniation. Due to Mr. Markee’s apprehensions about surgery, a conservative course of treatment was attempted, including epidural injections and physical therapy. The conservative treatment proved ineffective, and Mr. Markee underwent a cervical diskectomy and fusion on January 27, 2000. Dr. Colbassani certified Mr. Markee at maximum medical improvement on July 5, 2000, with an impairment rating of seven percent. His restrictions include no lifting over 50 pounds, occasional lifting of 21 to 50 pounds, no repetitive bending, crouching, or stooping, and no reaching above shoulder level. After being certified at maximum medical improvement, Mr. Markee sought further treatment from a pain management physician, starting in October 2000 and continuing to the time of the hearing. Petitioner claims that this continuing treatment indicates that Mr. Markee has not reached maximum medical improvement and thus that his application for re- employment services was premature. Glen Ellis, a vocational consultant with Respondent and an expert in the field of vocational rehabilitation, evaluation and training, testified that Mr. Markee’s seeking pain relief would not necessarily mean that he had not reached maximum medical improvement for purposes of retraining. Mr. Ellis testified that if an employee is medically stable and in need of no further active treatment for the injury itself, the Division may go forward with a retraining program. Examples of medical instability cited by Mr. Ellis were the need for further surgery, incapacitation for significant periods of time, or taking medications which prevent the employee from driving or attending class. None of these problems applied to Mr. Markee’s seeking treatment for his chronic pain. Thus, Mr. Markee was medically stable for purposes of retraining. Mr. Markee did not return to work after his injury. He never formally approached Sam Damm Roofing about coming back to work, though he did have an informal conversation with the owner of the company, Sam Damm. Mr. Damm told Mr. Markee that he had no work for him consistent with his medical limitations. Mr. Markee is a high school graduate. His prior work experience was almost exclusively as a roofer. He has also done some carpentry and briefly worked as a factory laborer. Section 440.491, Florida Statutes, creates the re- employment services program and authorizes all recommended programs and expenditures to injured employees. The ultimate goal of that statute in regard to an injured worker is to return the worker to suitable gainful employment. "Suitable gainful employment" is defined to mean "employment or self-employment that is reasonably attainable in light of the employee's age, education, work history, transferable skills, previous occupation, and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earnings at the time of injury." Section 440.491(1)(g), Florida Statutes. At the time the Division approved Mr. Markee for retraining services, the general salary criterion established by rule was to restore the employee to at least 80 percent of his or her average weekly wages at the time of injury. Rule 38F-55.001(16), Florida Administrative Code (defined "underemployment" as employment in which the post-injury average weekly wage is less than 80 percent of his or her pre- injury average weekly wage). The Division has established a process to determine whether an individual merits re-employment services. The process begins with orientation. The employee is given a DWC- 23, which is the application for re-employment services. The employee is requested to sign the DWC-23 and to have the employer sign a section of the form that says it has no job available either modified or accommodated for the employee at this time. Shortly after orientation, the Division requests medical records from the carrier to determine the employee's restrictions. Once all the paperwork is received, one of the Division nurses reviews the medical records from the claimant's physician, the maximum medical improvement date, and permanent restrictions, work history, and education. The Division performs a transferable skills analysis, evaluating the claimant's educational background, hobbies, and interests to determine the best way to return the injured employee to work. In the effort to return the employee to suitable gainful employment, the Division considers three options. First, the Division determines whether there are any direct placement options for the employee with another employer. If this is not feasible, the next option is on-the-job training. If that is not a viable choice, the file goes to an independent evaluator to determine what, if any, retraining options are available to the employee. Once an injured worker is approved for retraining and education, the insurance carrier is obligated to pay temporary total rehabilitation benefits for at least 26 weeks, with an option to provide an additional 26 weeks for a maximum of 52 weeks of benefits while the injured employee is in retraining. Rehabilitation temporary total disability benefits are calculated by taking 66 2/3 percent of the claimant's average weekly wages 13 weeks prior to the claimant's date of accident. Mr. Markee followed the prescribed orientation steps with Mr. Ellis of the Division. Mr. Ellis then referred him to Nancy Drwal, a vocational evaluator who was accepted as an expert in vocational rehabilitation, training and evaluation. Mr. Ellis provided Ms. Drwal with background information describing Mr. Markee's accident, work history, medical restrictions and other relevant medical information. Ms. Drwal met with Mr. Markee on March 9, 2001, and gave Mr. Markee six tests over the course of five hours. The tests were designed to assess his intellectual, achievement, and aptitude levels. Among the tests Ms. Drwal administered was a transferable skills analysis to identify jobs that would be compatible with Mr. Markee's work history, education, capabilities, and functional limitations. This analysis revealed no transferable occupations for Mr. Markee. Ms. Drwal continued to search for some appropriate occupation short of retraining, because Mr. Markee was anxious to work and hesitant to enter a training program. Ms. Drwal testified that Mr. Markee's reluctance to enter a training program was not unusual for a person who has been out of school for 20 years and is not academically inclined. Despite the results of the transferable skills analysis, Ms. Drwal looked at the local markets for an appropriate job for Mr. Markee. Mr. Markee expressed an interest in locksmithing. Ms. Drwal contacted every locksmith in Pasco County, but could find none that were hiring or interested in on-the-job training for Mr. Markee. Ms. Drwal looked into security guard positions, because that occupation easily accommodates physical restrictions, but could not find a position close to Mr. Markee's average weekly wage of $530.65 per week, or $14.26 per hour. The security guard openings paid between $5.75 and $7.00 per hour, far short of 80 percent of Mr. Markee's pre-injury average weekly wage. Mr. Markee expressed an interest in working with animals. Ms. Drwal looked into positions with zoos and animal sanctuaries. These employers either had no positions, had experience requirements that Mr. Markee could not meet, or paid significantly less than his pre-injury average weekly wage. Ms. Drwal concluded that Mr. Markee would require retraining. She first suggested computer training, but upon investigation Mr. Markee found the scholastic requirements overwhelming. Ms. Drwal then suggested medical assistant school as more within the range of Mr. Markee's academic abilities and interests. Mr. Markee investigated the program and told Ms. Drwal that he thought he could do it. Ms. Drwal conducted a labor market survey to make sure there would be medical assistant jobs in the local market when Mr. Markee completed his training. In a labor market survey, Ms. Drwal contacts employers to ascertain that positions are available at the time of the survey, or that the employer has hired within the past six months and anticipates hiring again in the next six months. Ms. Drwal contacted five employers and determined that there would be jobs available and that the average starting salary was $10 per hour, ranging as high as $12 per hour. She determined that the job availability and salary made this an acceptable training program for Mr. Markee. Ms. Drwal determined that the duties of a medical assistant fell within Mr. Markee's medical restrictions. Medical assistants perform patient preparation, take vital signs, weigh patients, draw blood, and enter some patient information into the office computer. The job does not involve lifting. Ms. Drwal determined that Mr. Markee was a "very motivated" person and would be able to complete the program. The medical assistant school is not academically intense. The student must learn medical terminology, but the program lasts only 31 weeks and involves a hands-on internship at a doctor's office. Mr. Markee was approved for retraining in the medical assistant program at the Central Florida Institute in Palm Harbor. He commenced the program in April 2001. He has been a straight "A" student and at the time of the hearing was completing a 35-hour per week internship at the New Port Richey Medical Center. Based on Mr. Markee's transferable skills analysis, previous work history, previous educational background, and the results of testing done by the independent evaluator, the best way to return him to suitable gainful employment is through retraining. Petitioner failed to show that retraining Mr. Markee through the medical assistant program will not return him to suitable gainful employment. The record gives no indication that Petitioner ever informed the Division indicating whether it had suitable employment within Mr. Markee's restrictions. Mr. Markee's restrictions prevent him from returning to the occupation of a roofer. Mr. Markee appeared to have the capability to obtain a job. However, the Division's goal, as mandated by statute, is to assist him to obtain employment at or near his pre- injury average weekly earnings of $530.65.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered denying the relief requested by Petitioner. DONE AND ENTERED this 27th day of December, 2001, in Tallahassee, Leon County, Florida. __________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2001. COPIES FURNISHED: Janet Poluse, Esquire Matusek, McKnight, Poluse and Cangro, P.A. Post Office Box 7729 St. Petersburg, Florida 33734-7729 Elana Jones, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 John H. Thompson, IV, Esquire John H. Thompson, IV, P.A. Post Office Box 13188 St. Petersburg, Florida 33733-3188 Mary B. Hooks, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Elizabeth Teegen, General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
Findings Of Fact The Petitioner is a black female who has been continuously employed by the Respondent, at the Gretchen Everhart School since approximately February of 1975. Prior to that time she worked for approximately seven years as a licensed practical nurse. The Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes. The Petitioner initially interviewed for an employment position with the Respondent in February, 1975. She was hired as a "pupil personal services worker," a combination social worker and guidance counselor. She was paid out of the Respondent's "social worker budget" and was not hired specifically as a nurse. The Petitioner maintains that upon her hiring she requested that her beginning salary be adjusted to reflect her prior work experience as a licensed practical nurse and that request was denied. However, the record reflects that she did not make any formal request for prior work experience pay credit at that time. Her formal complaint was not actually filed with the Florida Commission on Human Relations until October 28, 1985, well in excess of the 180 day requirement for filing such an action imposed under Section 760.10(10), Florida Statutes. Thus, even if she had made a formal request for such pay credit in 1975, its denial then would not now be actionable. Moreover, the Petitioner did not establish that any salary schedule, implementing regulation or collective bargaining agreement existed which provided for a salary adjustment of this type in 1975. On October 9, 1984, the Petitioner filed a written supplemental salary request with Dr. Paul Onkle, then the director of employee relations for the Respondent. She requested that she be given experience pay credit for seven years of prior experience as a licensed practical nurse at Sunland Hospital in Tallahassee, Florida. That request was denied. There is no evidence which would establish the date on which an initial, collective bargaining agreement between the Respondent and the Leon Classroom Teachers Association (LCTA), was first ratified. The Petitioner has been employed in a position included in that bargaining unit represented by the LCTA ever since the date of the first collective bargaining agreement, however. Accordingly, the terms and conditions of Petitioner's employment have been fixed by the terms of the collective bargaining agreement, ever since ratification of the initial agreement. On April 8, 1985, the Petitioner again wrote to Dr. Paul Onkle requesting his review of certain experience pay credit granted to Carolyn Peterson and Joanne Cox Arnette, in conjunction with which she requested his reconsideration of her request for experience pay credit. Ms. Peterson and Ms. Arnette are white female employees of the Respondent. Dr. Onkle instructed her on the proper means of filing a grievance and thereafter she executed a "Level I grievance" document on April 23, 1985, and delivered it to her immediate supervisor, Mrs. Susan Raker, the principal of Gretchen Everhart School. On April 24, 1985, Mrs. Raker denied the Level I grievance request on the ground that the Petitioner's salary had been set in compliance with the terms of the collective bargaining agreement then in effect. Thereafter, pursuant to the terms of the collective bargaining agreement then in effect, the Petitioner filed a "Level II grievance" with Dr. Onkle, who was then the director of Employee Relations. Dr. Onkle denied that grievance on June 24, 1985. Under the terms of the collective bargaining agreement in effect at that time, the responsibility to pursue the grievance after this denial was upon the Petitioner and the LCTA. No further review of Petitioner's request was ever formally sought, however. Under the terms of the collective bargaining agreement in effect when the requests for salary credit were filed in 1984 and 1985, no prior work experience credit was permitted for any non-teaching position, except for military service and certain work experience for vocational certification. The position in which the Petitioner was employed at that time did not involve any verified work experience which was required for vocational certification and there were no other provisions in the collective bargaining agreement in effect at that time by which the Petitioner would be entitled to receive a salary increase based upon her prior, non-teaching, licensed practical nurse employment. The Petitioner has alleged that the Respondent discriminated against her on account of her race by refusing to compensate her for prior work experience, while allegedly compensating similarly situated white employees an additional amount based upon similar work experience, thus violating Section 760.10, Florida Statutes. In view of this allegation, the work experience credit granted to a number of white employees, and the circumstances under which it was granted, must be examined. Carolyn Peterson was a white employee who began working with the Respondent in 1974 and became a full-time Occupational Specialist in 1976. In 1979, she was granted a salary increase based upon her prior work experience as an area sales manager and assistant buyer for Maas Brothers Department Store. Her position with the Respondent that year required her to be vocationally certified by the Florida Department of Education, and she was so certified. The collective bargaining agreement in existence at the time she was granted the salary increase for prior work experience specifically allowed such credit for each year of verified work experience above that required for certification of vocational teachers. The Petitioner, on the other hand, has not, in her employment position with the Respondent, ever been required to be vocationally certified by the Florida Department of Education. Thus, the Petitioner and Ms. Peterson are not "similarly situated" nor or they comparable employees with respect to their entitlement to any salary adjustment for prior work experience. Joanne Cox Arnette is a white person employed by the Respondent who was initially employed as a teacher in 1977. On approximately April 21, 1977, she requested credit for certain prior work experience, including four years of teaching in a public school system in Florida, four years of employment with the Florida Department of Education, and one year of teaching experience at the Florida A & M University. Her position was among the positions included in the bargaining unit represented by the LCTA. The collective bargaining agreement in existence at the time Ms. Arnette requested that credit specifically included and allowed for such credit for prior employees of the Florida Department of Education, by virtue of Section 238.01, Florida Statutes (1977) having been incorporated by reference in the terms of that collective bargaining agreement. That particular provision providing salary adjustment for prior work experience as an employee of the Department of Education terminated with the collective bargaining agreement entered into between the Respondent and the LCTA in 1979. It has been the practice and policy of the Respondent, however, at least as early as 1977, to continue to maintain experience credit for prior employment to an individual employee who was initially qualified for such a salary increase based upon prior employment experience; even though subsequent collective bargaining agreements, entered into after that employee obtained that salary increase, no longer included provisions authorizing such increases. Further, it has been the policy and practice of the Respondent, at times pertinent hereto, to consider and determine any requests for salary increases, based upon prior work experience, in the context of the collective bargaining agreement or other appropriate provisions prevailing and applicable at the time the request is made. Thus, for the reasons stated above, the Petitioner and Ms. Arnette are also not "similarly situated" employees and their positions are not comparable, within the meaning of Section 760.10, Florida Statutes. Gary Coates is a white person who was employed by the Respondent in March of 1976. In 1982, he requested and was granted a salary increase based upon credit for certain prior work experience. He was employed at that time in a position which was included in the bargaining unit represented by the LCTA. He was granted a salary increase for three years of teaching experience in a public hospital. An examination of the collective bargaining agreement in effect at the time Mr. Coates requested the salary increase reflects that credit was allowed for prior teaching experience in a public hospital or public institution. Mr. Coates met those requirements and was granted work experience credit for those three years. He also requested a salary increase for other work experience, and that request was denied by reason of the Respondent's determination that the experience involved did not qualify him under the terms of the collective bargaining agreement. Therefore, the Petitioner and Mr. Coates are not "similarly situated" employees and their prior work experience was not comparable within the meaning of Section 760.10, Florida Statutes. Mr. Tom Heiman, a white person, was hired in September, 1985. He was hired as a social worker, which is a non-teaching position, also included within the bargaining unit represented by the LCTA. Social workers have been included within that unit since the unit was first certified by the Public Employees Relations Commission. In administering the collective bargaining agreement with respect to social workers, the Respondent has followed a policy and practice of interpreting that collective bargaining agreement to allow credit for prior social work experience as if such experience was in fact prior "teaching" experience. Mr. Heiman was granted work experience credit for six years of prior social work, although he was denied work experience credit for other prior work experience. Under the terms of the collective bargaining agreement in effect in 1985, he was entitled to be credited with each year of teaching or social work experience in a public hospital or a public institution which required teacher certification in an area "in field" with a corresponding teaching position assignment. He was properly certified in that field and was otherwise entitled to receive work experience credit for his six years prior social work experience. Thus, Mr. Heiman and the Petitioner are not "similarly situated" employees either, and their work experience is not comparable. Mr. Gerald Torano, a white person, was first hired in October, 1985, as a social worker. His position with the Respondent was also included within the LCTA bargaining unit. He was granted a salary increase in 1985 based upon five years experience as a social worker in a public institution, as well as with the Florida Department of Health and Rehabilitative Services. He was granted a salary increase pursuant to the same collective bargaining agreement by which Mr. Tom Heiman became eligible for such an increase. Just like Mr. Heiman, Mr. Torano requested additional work experience credit for other past experience which the Respondent denied, based upon the fact that such additional work experience did not qualify him for increased salary credit under the terms of the collective bargaining agreement prevailing at the time he made the request. Thus, the Petitioner and Mr. Torano are also not "similarly situated" employees, nor was their prior work experience comparable. Ms. Jean Schneggenberger is a white person first hired by the Respondent in February, 1985. She was a registered nurse and was hired in that capacity as a Registered School Nurse. Her position is not included within the bargaining unit represented by the LCTA, rather, she is known as a "classified employee," which is a term used by the Respondent to describe those employees whose positions are not included within any accepted bargaining unit, for which there is a collective bargaining agreement in force. Although the Petitioner never asserted in these proceedings that Ms. Schneggenberger was an example of another white employee who had been treated differently and more favorably then Petitioner, the Petitioner offered substantial testimony in an attempt to demonstrate that she had in fact engaged in comparable "nursing duties" or in "nursing related duties" while engaged as a counselor and social worker at the Gretchen Everhart School. Thus, an examination of the manner in which Ms. Schneggenberger's salary as a nurse was computed is relevant to this proceeding. The record establishes that for the year 1984-85, the Respondent adopted a separate salary schedule and implementing regulations related to all "classified" employees. Those implementing regulations applicable to Ms. Schneggenberger are found in the Respondent's Exhibit 4, beginning at paragraph 2A. Ms. Schneggenberger is the only person employed by the Respondent in the position of "Registered School Nurse." Accordingly, neither the Petitioner nor any other employee of the Respondent is "similarly situated" or comparable in his position to Ms. Schneggenberger and her position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Petition for Relief from an alleged unlawful employment practice filed by the Petitioner, Annie M. Francis, be dismissed in its entirety. DONE and ENTERED this 18th day of March, 1988, in Tallahassee, Florida. P. MICHAEL RUFF 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 18th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3185 Petitioner's Proposed Findings of Fact: 1. Accepted. 2-3. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. Rejected as subordinate to the Hearing Officer's findings. Accepted, but not for its material import. 6-7. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 8. Rejected, as contrary to the preponderant weight of the evidence. 9-13. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 14-16. Accepted. 17. Rejected as to its material import. 18-20. Rejected as subordinate to the Hearing Officer's findings. 21-22. Accepted. 23. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 24-25. Rejected as immaterial. 26-27. Rejected as subordinate to the Hearing Officer's findings. 28. Rejected as subordinate to the Hearing Officer's findings and as contrary to the preponderant weight of the evidence. 29-30. Rejected as subordinate to the Hearing Officer's findings. 31-33. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 34. Rejected, as contrary to the preponderant weight of the evidence. Respondent's Proposed Findings of Fact: 1-2. Accepted. 3. Rejected as subordinate to the Hearing Officer's findings on this subject matter. 4-8. Accepted. 9. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 10-17. Accepted. COPIES FURNISHED: Danni Vogt, Esquire 308 East Park Avenue, Room 209 Post Office Box 11301 Tallahassee, Florida 32302 C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Charles Couch, Superintendent Leon County School Board 2727 West Pensacola Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent, Jeffrey R. Baxter (Mr. Baxter) is eligible for vocational training and education at Petitioners’ expense to allow for him to return to suitable gainful employment.
Findings Of Fact The Department of Financial Services, Division of Workers’ Compensation, is the agency of the state of Florida charged with administration of medical care coordination and reemployment services that are necessary to assist employees injured in the workplace to return to suitable gainful employment. Mr. Baxter was, at the time of the hearing, 45 years of age. During the periods relevant to this proceeding, he was five feet, seven inches in height, and his weight ranged from 285 to 307 pounds. Mr. Baxter was employed by Ring Power as a mechanic from June 2006 until July 2011. In July, 2008, Mr. Baxter suffered a non-compensable injury while at home. He was seen by Dr. Phil Riddlehoover, a primary-care orthopedist practicing with The Orthopaedic Institute, who noted that Mr. Baxter complained of a sudden onset of lower-back, left buttock, and left hip pain. Dr. Riddlehoover related that Mr. Baxter had experienced similar back pain problems on several occasions over the past “couple of years,” for which he received chiropractic treatment. Mr. Baxter related to Dr. Riddlehoover that he had some lessening of pain with the chiropractic treatments, but still had significant limitation of range of motion and spasm. During his examination, Dr. Riddlehoover noted that Mr. Baxter had “marked limitation of range of motion in flexion and extension as well as side-to-side rotary movements.” An X- ray was taken, which showed minimal osteophyte formation in the lumbar spine, with well-maintained vertebral body heights and normal disk spaces. Dr. Riddlehoover’s assessment was low back pain, for which he recommended physical therapy for three weeks, prescribed medications, and “encouraged . . . light duty activity.” Based on stipulated facts submitted by the parties, the following findings are made: Mr. Baxter was involved in a compensable work- related accident while employed with the employer, Ring Power, on or about September 18, 2008. Petitioners accepted the September 18, 2008, work- related accident as compensable and provided medical treatment for same. Mr. Baxter was treated by Dr. Edward Samby, an authorized treating physician, for the September 18, 2008, work- related accident. On October 7, 2008, Dr. Samby opined that Mr. Baxter had reached MMI as a result of the September 18, 2008, workplace accident with a zero percent PIR. At that time, Dr. Samby released Mr. Baxter to full duty with no restrictions. Despite the foregoing stipulated facts, there is not an iota of competent substantial evidence in the record of this proceeding of the nature of the September 18, 2008, work-related accident, whether it involved or affected Mr. Baxter’s back, or whether it has any bearing whatsoever on any issue in this proceeding. Therefore, other than the bare stipulations, no findings regarding that purported accident are or can be made. On August 24, 2010, Mr. Baxter suffered a workplace injury that was determined to be compensable under the Florida Workers’ Compensation Act. Mr. Baxter’s injury was to his lower back. On September 16, 2010, Mr. Baxter was again seen by Dr. Riddlehoover. Dr. Riddlehoover related that Mr. Baxter experienced a sudden onset of lower-back discomfort while lifting and twisting a heavy object that was exacerbated when he twisted. Dr. Riddlehoover noted that Mr. Baxter “has a significant history of low back pain complaints within the last two to three-year time frame.”1/ Dr. Riddlehoover noted limitation to Mr. Baxter’s range of motion and tenderness to palpation. X-rays of Mr. Baxter’s back were taken in the office, and compared to previous X-rays. Dr. Riddlehoover noted that there was “a transitional vertebra at L5,” and in comparison with previous X-rays, there was “some loss of disk space height at L5-S1 with some scoliosis of the endplates. There are also some small posterior osteophytes that seem to have developed at L4-5 and L5-S1 as well.” Mr. Baxter was thereupon placed on light-duty status, and referred for physical therapy. On October 7, 2010, Mr. Baxter had a follow-up visit with Dr. Riddlehoover. Mr. Baxter stated that he had no improvement from his physical therapy, though Dr. Riddlehoover noted that “[i]t seems as though the physical therapy note that accompanies him from Health Works indicates to the contrary.” Since Mr. Baxter continued to complain of intermittent sharp pains, Dr. Riddlehoover ordered a MRI “as there seems to be a discrepancy as far as what the patient is reporting with his low back pain and what the physical therapist is reporting.” Physical therapy was discontinued. On October 8, 2010, Mr. Baxter underwent a MRI of his lumbar spine. The MRI, as interpreted by Dr. Riddlehoover, showed a disk herniation at L4-5, and a disk bulge at L5-S1. He determined the most significant problem was related to the disk bulge at L5-S1. Dr. Riddlehoover referred Mr. Baxter for a series of epidural steroid injections. By November 9, 2010, Mr. Baxter reported modest improvement from the epidural injections. Dr. Riddlehoover decided to wait three to four weeks in order to determine whether Mr. Baxter was responding to treatment. Mr. Baxter was provided with a note reiterating his work limitations. On December 2, 2010, Mr. Baxter reported to Dr. Riddlehoover that he continued to show improvement. Dr. Riddlehoover referred him for a repeat epidural injection, and refilled his medication prescription. On February 2, 2011, Dr. Riddlehoover reported that Mr. Baxter continued to have ongoing discomfort in his back that required continued use of narcotic analgesics. Dr. Riddlehoover further reported that Mr. Baxter was “unable to do a hard days labor and place high demands on his back without serious discomfort.” He refilled Mr. Baxter’s medication prescription, and referred Mr. Baxter to Dr. Troy Trimble, an orthopedic surgeon practicing with The Orthopaedic Institute, to determine his suitability for surgical relief. On March 9, 2011, Dr. Trimble diagnosed Mr. Baxter with low back pain to the left leg, lower thorasic right side back pain, and morbid obesity. He recommended physical therapy, medication refills, and possibly a L3 selective nerve block. He suggested that Mr. Baxter’s symptoms would improve with aggressive physical therapy and weight loss, and concluded that Mr. Baxter was not a surgical candidate. Dr. Riddlehoover relied upon Dr. Trimble’s report in the development of his opinions. At some time prior to March 25, 2011, Mr. Baxter suffered a separate back injury that occurred while he was getting out of a truck. It resulted in a sudden onset of discomfort that caused him to go to an emergency room. The emergency room referred Mr. Baxter back to Dr. Riddlehoover for further evaluation and management. By the time of his visit with Dr. Riddlehoover on March 25, 2011, the discomfort from that injury was completely gone. Dr. Riddlehoover placed Mr. Baxter at MMI with a PIR of zero percent for that claim, but noted that Mr. Baxter was to follow up with him to assess his consultation with Dr. Trimble. On April 26, 2011, Mr. Baxter followed up with Dr. Riddlehoover, continuing to complain of lower-back discomfort from time-to-time. Dr. Riddlehoover extended physical therapy for an additional period of four weeks, and refilled Mr. Baxter’s medication prescription. On June 1, 2011, Mr. Baxter returned to Dr. Riddlehoover, and indicated no improvement with his lower- back and spine pain after six weeks of physical therapy. Dr. Riddlehoover referred Mr. Baxter back to Dr. Trimble for further assessment as to whether he was an operative candidate, and refilled Mr. Baxter’s medication prescriptions. On June 9, 2011, Ring Power determined it was no longer able to employ Mr. Baxter within the light duty restrictions assigned by Dr. Riddlehoover, and therefore terminated his employment. On June 20, 2011, Dr. Trimble reevaluated Mr. Baxter. He again diagnosed Mr. Baxter with lower-back pain to the left leg, and noted evidence of L5-S1 disc degeneration. Dr. Trimble reiterated that Mr. Baxter was not a surgical candidate, and recommended pain management and weight loss. On June 29, 2011, Mr. Baxter returned to Dr. Riddlehoover, who thereupon placed Mr. Baxter at MMI and assigned a seven percent PIR. Dr. Riddlehoover assigned permanent work restrictions that allowed Mr. Baxter to lift no more than 10 pounds, and instructed Mr. Baxter to follow up as needed. As to the cause of the disk abnormalities, Dr. Riddlehoover testified that “I can only assume that [the herniation and bulge] were related to the workplace accident because I had no prior MRIs.” Dr. Riddlehoover concluded that the workplace injury was the major contributing cause of the PIR, based upon the history of the injury; his reading of the October 2010, MRI results; and subsequent treatment. The PIR and work restrictions were not based on a functional-capacity examination or other objective measure, but relied entirely on Mr. Baxter’s relation of his subjective impression as to what he could withstand without discomfort. On August 31, 2011, Mr. Baxter requested vocational screening from DOE. In mid-2011, DOE vocational rehabilitation funding was cut. Thereafter, processing of applications for vocational training and education, including that of Mr. Baxter, was slowed. In the Medical Update Questionnaire that accompanied his request for vocational screening, Mr. Baxter noted that he had completed all medical treatment, but requested a second opinion. On January 5, 2012, at Mr. Baxter’s request, he was evaluated by Dr. Troy Lowell, a board-certified orthopedic surgeon. Dr. Lowell reviewed Mr. Baxter’s 2010 X-ray and MRI, and performed a physical examination. Although Dr. Lowell testified that he did not recall having seen any X-ray other than that taken in 2010, his office visit report indicates that Mr. Baxter “presents with x-rays from that time,” and that “[c]ompared to 2008 films there is no significant change.” Mr. Baxter told Dr. Lowell that he had experienced back pain since 2008. However, Dr. Lowell was unaware of the accident that occurred in 2008 or, seemingly, of the earlier incidents of lower-back pain previously related by Mr. Baxter to Dr. Riddlehoover. Dr. Lowell analyzed the 2010 MRI, and saw no evidence of the disk herniation noted by Dr. Riddlehoover. Rather, his reading of the MRI showed a slight degenerative bulge at L4-5, and severe degenerative disk disease at L5-S1. Dr. Lowell concluded that the severe degenerative disk disease at L5-S1 was the cause of Mr. Baxter’s ongoing symptoms. Dr. Lowell testified that that it was possible that an injury occurring prior to 2010 could have led to the observed degree of degenerative disk disease in 2012, but that he did not have sufficient information to draw a conclusion as to whether the 2008 injury in particular was the cause. However, he was confident that the level of degeneration could not have resulted from a 2010 traumatic injury. Based on his office examination and review of the X- ray and MRI, Dr. Lowell placed Mr. Baxter at MMI and assigned a zero percent PIR. His assignment of a zero percent PIR was based on his understanding that Mr. Baxter may have had “an exacerbation of symptoms as a result of his work injury,” but that there was no objective evidence of any worsening or aggravation of the preexisting condition, nor was there any evidence of any new injury resulting from the August 24, 2010, workplace accident. In Dr. Lowell’s opinion, it is Mr. Baxter’s preexisting, severe degenerative disk disease that prevents his ability to work at his previous position and duties. At about the time that Dr. Lowell’s report was received, DOE staff was advised that section 440.491 was likely to be repealed during the 2012 legislative session. In response, DOE did nothing to advance any training and education screenings or referrals. Section 440.491 was not repealed during the 2012 legislative session. Rather, duties and responsibilities for the administration of training and education screenings, reemployment assessments, vocational evaluations, and reemployment services that had been the responsibility of the DOE were transferred to the Department. The transfer of duties from DOE to the Department was approved on April 20, 2012, but did not become effective until July 1, 2012. DOE personnel did not act on requests for retraining in the interim because they did not want to obligate funds to be applied to the Department’s budget after the transfer of responsibilities. Given the disruption that resulted from the transfer of duties and staff to the Department, a vocational evaluation for Mr. Baxter was not arranged until October 2012. The vocational assessment of Mr. Baxter was performed on November 2, 2012, by Karla Wooten, pursuant to a contract with the Department. The evaluation resulted in the submission of a Vocational Evaluation Final Report to the Department on November 20, 2012. The Final Report recommended that Mr. Baxter be afforded the opportunity to continue his education through the Computer Information Technology, A.S.-degree program at Florida Gateway College. On December 3, 2012, the Department issued its notice approving vocational education, which determined that the best way to return Mr. Baxter to suitable gainful employment was through the Computer Information Technology, A.S.-degree program at Florida Gateway College. When it made its decision, the Department had the office-visit evaluation reports from Dr. Riddlehoover and Dr. Lowell, along with the information submitted with the Request for Screening and the completed forms and file materials from USIS. The Department accepted Dr. Riddlehoover’s assessment of Mr. Baxter’s injury as carrying more weight because he had seen Mr. Baxter on 10 occasions going back to his 2008 injury, and had authorized treatments over an eight to ten- month period. Ring Power and USIS filed a petition disputing the Department’s notice of approval on the basis that Mr. Baxter does not meet the qualifications for retraining. The vocational education program itself was not disputed. On December 18, 2012, Mr. Baxter was again seen by Dr. Lowell. The visit was apparently non-eventful, as Dr. Lowell had no memory of it until presented with his report at his April 16, 2013, deposition. However, the report indicated no change in Mr. Baxter’s symptoms, and resulted in no change of his diagnosis or opinion. There is no question but that Dr. Riddlehoover was more familiar with Mr. Baxter’s symptoms as a result of his multiple office visits. However, testimony of Dr. Riddlehoover and Dr. Lowell regarding the cause of those symptoms, i.e., disk herniation versus disk degeneration, was based entirely on their reviews of the same MRI and X-rays. Dr. Riddlehoover had been practicing orthopedics for six years at the time of his May 7, 2013, deposition testimony. He is not board certified in any area. His residency was in family practice, and his professional experience prior to his October 2007, association with The Orthopaedic Institute in Lake City, Florida, was exclusively as an Emergency Department Physician. Dr. Lowell has specialized in orthopedics for the entirety of his professional career. He has been certified since 1996 in orthopedic surgery by the American Board of Orthopaedic Surgery. Dr. Lowell has published and presented on topics directly related to issues relevant to this proceeding, including disk herniations and epidural steroid treatments. To be clear, the undersigned in no way discounts or denigrates Dr. Riddlehoover’s record of medical training, experience, and service, which appears to be exemplary. However, based on Dr. Lowell’s depth of specialized knowledge, and the substance and certainty of his testimony regarding the cause of Mr. Baxter’s inability to continue working at his previous level of exertion, the undersigned accepts Dr. Lowell’s conclusion that Mr. Baxter’s medical condition is the result of degenerative conditions that predate the workplace injury as being the most persuasive evidence on that issue.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Respondent, Jeffrey R. Baxter, is not eligible for reemployment services at Petitioners’ expense. DONE AND ENTERED this 3rd day of July, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of July, 2013.
The Issue The issue for consideration in this case is whether the Pinellas County School Board can cancel Respondents' Professional Service Contracts and terminate their employment due to their failure to meet certification requirements.
Findings Of Fact At all times pertinent to the issues herein the Pinellas County School Board, (Board), was the agency responsible for the provision of public education from preschool through primary and secondary schooling to vocational and adult technical courses in Pinellas County. Respondent Edwards has taught agricultural subjects including horticultural service, animal service and small and large animal services, among other courses she has taught at Tarpon Springs High School since July, 1990. Respondent Corbin, Edwards' brother, has taught at Countryside High School since 1989 in the fields of horticulture, small and large animal service, and practical skills agriculture for grades 9 - 12. Neither Respondent Edwards or Respondent Corbin has a Bachelor's degree in agriculture or in any other field. Edwards has an Associate of Science degree in veterinary technology and has taken courses in agricultural education for certification at the University of Florida as well as 20 credit hours at the University of South Florida in a course in technical vocational training programs she was required to take. She was certified by the State Department of Education in horticultural science and agricultural production in 1992. Respondent Corbin has between 30 and 40 college credit hours. About 2 years after starting work, when he finished the beginning teacher program and the required technical vocational training courses, he was certified by the state to teach horticulture and agricultural production. This allowed him to teach students in grades 9 - 12, and at the adult technical/vocational level. According to Dr. Brown, the Assistant Superintendent for Personnel, sometime prior to March, 1995 it was reported to him that the School Board had two teachers in the agricultural program who were not properly certified. These teachers are the Respondents herein. By state law, the Respondents are not properly certified at the 9 - 12 grade level, but they can teach at the vocational/technical level. Under the provisions of Department of Education Rule 6A-4.054, teachers must hold a bachelor's degree in agriculture or a master's degree with an undergraduate major in agriculture in order to be certified to teach that subject at the 9 - 12 grade level. Neither Respondent has that qualification. When Dr. Brown found out about the problem, he consulted with his staff and then informed the Superintendent of the situation. Dr. Brown also contacted the State Board of Education to see if these Respondents could stay in their current positions. The response received from the State Board of Education indicated the teachers could be considered "out of field" teachers, in accordance with Rule 6A-1.0503, F.A.C., but would need to take a minimum of 6 semester hours of college credit each year to obtain a bachelor's degree in agriculture. After receiving that information, Dr. Brown met with both Respondents and advised them of the situation and what they had to do. At that time the indication he received from them was that they would not consider going to school for 6 credits each year because, as they indicated, this was not their fault. According to Dr. Brown, neither Respondent had taken the required courses this year, and it is his position that though they may be retained as teachers, they cannot be offered a Personal Services Contract unless they do. All that would be available to them would be a year to year appointment. It is quite evident that the 1989 change to the certification rule which creates the problem in this case, that of requiring a teacher in the field of agriculture to have a degree in that area, was not widely publicized, and even high ranking members of the Board staff in Pinellas County were not actively aware of its existence for several years after it was promulgated. Of the two Respondents, Mr. Corbin was hired prior to 1989, and Respondent Edwards was hired after 1989. Both were offered and received Personal Service Contracts after the rule was changed and, in fact, notwithstanding the Board's letter of March 13, 1995, indicating the intention to remove the Personal Service Contract of each, by letter dated in April, 1995, each Respondent was advised of the issuance of a Personal Service Contract for the 1995-1996 school year. This creates a problem for the Board in that, under Florida law, if a program is not properly staffed with properly certified instructors, the state funding for that program can be reduced, and this could, in this case, amount to a substantial amount of money lost to the Board. Dr. Brown considers both Respondents to be excellent teachers whom the Board would like to keep, and he would like to see them participate in the program which would allow them to remain as certified teachers by taking the 6 credit continuing education courses per year. This would be difficult for both Respondents, however. First, the courses to be taken must be approved by the Board as leading to a degree in the teacher's area of expertise. In this regard, Dr. Brown does not know if any of the courses that would qualify for the Respondents are available within a 100 mile radius of Pinellas County. By the same token, he also does not know if the Board would provide financial or time help to the Respondents in the event the courses were available. Another possibility would be for the Respondents to take courses at the University of Florida on Friday nights and Saturdays over a period of time, or during the summer. In that regard, however, Respondent Edwards' inquiry of the University clearly indicates it is not easy to get the required courses at the time when they are needed and Respondents are available. Someone trying to work toward a degree on such a part time basis could take an unreasonably extended period of time to get all the core and prerequisite courses to those which lead toward the degree in the specialty. Notwithstanding this, Dr. Ross is not aware of any instance where the Board has ever waived the requirement for courses because courses were not available locally. The current situation came as a great surprise, specifically to Mr. Corbin. In March, 1992, he was called in by his Vice-Principal, Mr. Moore, and told he was unqualified to teach horticulture. At that same time, however, he was advised as to what he had to do to come up to certification standards, and he took the required courses. As he understood it, that was all that was necessary. With the courses he took at this point, and all the TVT courses he had taken previously, he believed he was in good standing to receive his Personal Services Contract which, in fact, he did receive in April, 1994. However, he first learned of the instant crisis on March 13, 1995 by a copy of a letter to his Principal from Dr. Brown advising that Mr. Corbin's Personal Service Contract was being cancelled. There was no explanation and no reason given then, and Mr. Corbin got no answer to his questions as to the reason for this action. As a result, he sought the assistance of the union. Approximately 7 to 10 days after receipt of the letter, Mr. Corbin was advised by Dr. Brown that his only alternative, if he wanted to continue teaching at Countryside, was to take the courses that would be required for an "out of field" teacher. At this point, Mr. Corbin inquired about the availability of courses and found that a Bachelor's degree in Agricultural Science is available only at the University of Florida. There are no courses offered locally that would help him. He did not, however, check with the University of Florida to see what the availability of the courses was there. Mr. Corbin works from 6:45 AM to 3:00 PM each day at school. He also has a personal lawn maintenance business and he does a lot of extra volunteer work for the school helping out at school fairs, banquets and other similar functions. He has taught summer school off and on. He claims that if he had been aware of the change in the requirements in 1990 when they first went into effect, he would have chosen another career instead of staying with agriculture. He asserts he might well have gone on to get his undergraduate degree and a law degree, but at this time it is too late for that. Mr. Corbin realizes that if he wishes to continue his Personal Service Contract he must take the required courses as an "out of field" teacher. Otherwise he would be no more than an "appointee" to his position on a year to year basis. This would be a very tenuous and stressful position to be in. Such a person serves at the pleasure of the Principal, and Mr. Corbin does not want to be in that situation. However, even though he checked on the local availability of courses and found there were none to help him, he did not check what courses were available at the University of Florida, and he asserts at this time that if any were available he could take during the summers, he would do this. Ms. Edwards first learned of the certification problem when she was advised by an official at the School Board that in order to teach animal science for grades 9 - 12 she had to take a course at Seminole Education Center. She was also told that she would be teaching "out of field", and in order to continue with a Personal Services Contract "out of field" she had to take the additional 6 credit hours per year. She was not aware of the implementation of the 1989 rule change which requires the bachelor's degree. Had she known at any time up until March, 1995 when she first learned of it, she claims she probably would have worked toward a Bachelor of Science degree so she could teach in veterinary technology. The requirements for this would be 120 more hours which she could get only at the University of Florida. The credit hours she earned working toward her Associate degree will not transfer. After Ms. Edwards received the March 13, 1995 letter, she inquired and found she could not get the 6 credit hours she needed for this year before the end of the school year. The advisor at the University of Florida gave her a list of courses she could possibly take locally, but she was given no guarantee they would be transferable toward a degree program. Ms. Edwards is currently enrolled in a 3 hour math course but does not know if it will go toward certification. She contends Dr. Brown did not tell her anything about teaching without a contract, but she would not agree to doing that as an appointee. She feels it would be tenuous and she wants the security of a contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Pinellas County School Board terminate the professional services contracts of the Respondents, Deborah Edwards and Richard Corbin. RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 16. Accepted and incorporated herein. 17. & 18. Accepted but not relevant to any issue herein. Accepted and incorporated herein. Irrelevant to any issue herein as a Finding of Fact. FOR THE RESPONDENTS: 1. - 16. Accepted and incorporated herein. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools P.O. Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301 P.O. Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley, Ed.D. Superintendent of Schools Pinellas County 301 Fourth Street S.W. P.O. Box 2942 Largo, Florida 34649-2942
The Issue The issues in this matter are whether Countrywide Siding and Windows, Inc., failed to secure workers compensation that meets the requirements of Chapter 440, Florida Statutes, and, if so was correctly assessed a penalty for violating, the workers’ compensation laws of Florida.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure workers’ compensation for the benefit of their employees. § 440.107, Fla. Stat. (2009). Respondent is a corporation domiciled in Florida and engaged in the construction industry. On February 13, 2009, Petitioner’s investigator, Carl Woodall, stopped to spot check a house in the Cabrille Lane area of Panama City, Florida, where he saw workers installing siding. Petitioner’s investigator is the only employee for Petitioner who investigated and developed the substantive evidence in this case. Other employees, who have no direct knowledge of the underlying facts, calculated the amounts of the proposed penalties. Mr. Woodall inquired of the workers and ascertained that they worked for Respondent. The investigator then contacted the Respondent to determine whether Respondent had secured or obtained workers’ compensation insurance under Florida’s workers’ compensation law. Respondent’s representative indicated that it maintained workers’ compensation insurance through Employee Leasing Service (ELS), an employee-leasing company. There is no dispute that in February 2009, Respondent leased its workers from ELS and that under the lease agreement, ELS provided workers’ compensation coverage to Respondent and its leased workers. Other evidence suggested that in past years, Respondent had leased its workers from other employee-leasing companies. The evidence was not specific as to who those companies were. The evidence, while not specific, also suggested that Respondent paid its leased employees bonuses and sometimes loaned them money.1/ In general, employee-leasing agreements provide clerical duties to client companies including tax deduction and workers’ compensation, in exchange for a fee. Client companies’ workers who are registered with the leasing company are employees of the leasing company, not the client company. In this case, the specific contract between ELS and Respondent was not introduced into evidence. Likewise, neither the contract nor the proof of coverage between ELS and its workers’ compensation insurer was introduced into evidence and it is unknown who the actual workers’ compensation insurer was or is. Therefore, there is no credible evidence regarding the specific terms of the contract between ELS, Respondent or the workers’ compensation insurer. Importantly, there is no evidence regarding any fee arrangement between ELS and Respondent showing that workers’ compensation coverage was provided based on payroll or that direct payments to Respondent’s workers constituted payroll under the terms of the lease contract for which workers’ compensation had not been secured. Petitioner’s investigator telephoned ELS and learned from some person (purportedly Ellen Clark) that it did have an employee-leasing contract with Respondent and did maintain workers’ compensation on Respondent’s workers. The investigator was also told that ELS intended to or had cancelled its employee-leasing contract with Respondent effective either February 14 or 15, 2009. No one from ELS testified at the hearing and the substance of the above conversation, as with all the testimony about purported ELS statements, constitutes hearsay that was not corroborated by other credible evidence in the record. As such, the substance of these conversations is not found as facts, other than to establish that Petitioner’s investigator had a conversation with a person purporting to Represent ELS. However, on February 14, 2010, the investigator did not take any action against Respondent since he felt Respondent was in compliance with Florida’s workers’ compensation law. On February 17, 2009, Mr. Woodall again returned to the Cabrille Lane area and observed Respondent’s workers installing siding on a house. One of the workers, Mike Moore, revealed to Mr. Woodall that he was a subcontractor of Respondent, but that the other worker, Ryan Grantham, was Respondent’s employee. The subcontractor was in compliance with Florida’s workers’ compensation laws. In order to find out if the other worker was covered by workers’ compensation insurance, Mr. Woodall met with Ronnie Creed, Respondent’s owner and officer, who was exempt under Florida’s workers’ compensation law. Mr. Creed was unaware of Respondent’s workers’ compensation status but put Mr. Woodall in contact with his wife, India Creed, who was also exempt from Florida’s workers’ compensation law. Ms. Creed told Mr. Woodall that Respondent had received a letter from ELS that day, purportedly notifying it that ELS intended to cancel or had cancelled its employee-leasing contract with Respondent. The letter was not introduced into evidence and it is unclear whether the letter discussed the workers’ compensation insurance coverage ELS maintained on its employees that it leased to Respondent. Again, no one from ELS or its workers’ compensation insurer testified at the hearing regarding its lease or which workers were covered under the lease. The record is devoid of any evidence that these employees were no longer employed by ELS and, more importantly, not covered by ELS’s workers’ compensation coverage on February 17, 2009.2/ Mr. Woodall also checked the Department’s Coverage and Compliance Automated System (CCAS) database. CCAS is a database that maintains information on business entities in Florida and whether they have secured workers’ compensation and /or whether exemptions from workers’ compensation have been granted to eligible company officers. CCAS did not reflect that Respondent had a workers’ compensation insurance policy in place. However, the investigator did not check to see if ELS or another employee-leasing company had such a policy. Similarly, the investigator did not investigate the terms of those contracts and whether those contracts considered any bonuses or loans paid by Petitioner to its employees to be payroll, and if it was, whether any workers’ compensation coverage was dependent on such payments being reported to these companies. As such, the information in that system is hearsay which may or may not indicate a need to investigate further. Moreover, CCAS is simply a database of information reported by others and maintained by the Petitioner. Its reliability is questionable in this case given the multiple contractual entities involved in the provision of workers’ compensation to Respondent and the lack of any direct evidence from those contractual entities. Therefore, the fact that CCAS did not reflect that Respondent had workers’ compensation insurance is not given weight in this Order and is neither clear nor convincing evidence demonstrating that Respondent failed to secure workers’ compensation insurance on February 17, 2009, or for prior years. Based on his belief that Respondent had not secured workers’ compensation on its workers, Mr. Woodall issued a Stop- Work Order and Order of Penalty Assessment and a Request for Production of Business Records for Penalty Assessment Calculation to Respondent (Request) asking for Respondent’s business and financial records related to Respondent’s business and employee leasing for the last 3 years. The records were requested to construct Respondent’s alleged payroll and determine the employees of Respondent. There was no evidence that there was any inquiry into past employment leasing companies that Petitioner contracted with or the terms of those contracts. As with the contract with ELS, there was no inquiry into whether loans or bonuses or any other money paid by Respondent to its workers was considered payroll, required to be reported, or had any impact on workers’ compensation coverage that the leasing companies provided on the employees they leased to Respondent. Respondent complied with the Request and provided the requested business records to Petitioner. Mr. Woodall forwarded the financial records to Petitioner’s penalty calculator, Monica Moye. Beyond checking CCAS, Ms. Moye was not responsible for factually determining whether Respondent had properly secured workers’ compensation insurance during the period under review. Using Respondent’s financial records, Ms. Moye calculated a penalty to be assessed to Respondent based on class code 5645 for siding installation as established by the National Council on Compensation Insurance in the Scopes Manual. She also separated Respondent’s periods of alleged noncompliance based on periodically changing approved manual rates. Approved manual rates are set by the National Council on Compensation Insurance and represent the amounts employers would pay in workers’ compensation premiums for tasks performed by their employees. On March 13, 2009, Petitioner issued an Amended Order of Penalty Assessment, assessing a penalty of $159,002.46 to Respondent. Based on additional records submitted by Respondent, Petitioner recalculated the previously-assessed penalty and issued a 2nd Amended Order of Penalty Assessment to Respondent on June 9, 2009, reducing the assessed penalty to $130,914.99. Additionally, following the hearing, the Department revised the assessed penalty and issued a 3rd Amended Order of Penalty Assessment (3rd Amended Order) reducing the assessed penalty to $130,135.03.3/ The list of employees attached to the 3rd Amended Order of Penalty Assessment contains several incidents of imputed employment listed as “cash,” “unknown” or “Star H.” There is nothing in the record that supports a finding that these amounts were paid for employment purposes. However, the evidence did not establish that Petitioner did not secure workers’ compensation coverage and the issues regarding the correctness of the amount of penalty assessed against Respondent is not addressed in this Recommended Order. Since the evidence did not establish that Respondent failed to secure workers’ compensation, the Stop-work order should be cancelled and the 3rd Amended Order of Penalty Assessment dismissed.
Recommendation Based on the findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services enter a Final Order that Petitioner failed to establish by clear and convincing evidence that Petitioner failed to secure workers’ compensation to its employees and canceling the Stop Work Order and dismissing the 3rd Amended Order of Penalty Assessment. DONE AND ENTERED this 2nd day of April, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 2nd day of April, 2010.
