Findings Of Fact The Town and The Parties The City of Opa Locka is an incorporated municipality within Dade County, Florida. It is approximately 4.5 square miles, with a population of approximately 14,000, and some 5,000 registered voters. If this case is a valid example, citizens of Opa Locka actively and enthusiastically are involved in the local political process. The process can become lusty and raw with acrimony. Timothy Holmes, a citizen of Opa Locka and full-time community activist, receives disability income and is otherwise unemployed. From time to time he has provided various services or errands for attorney, James Greason, and at one time he had cards printed identifying himself as an investigator for Greason. His primary activities in recent years have been related to non- compensated membership on several municipal boards and committees. From approximately 1982, until its abolition in December 1988, Timothy Homes was on the Opa Locka Code Enforcement Board. He was then appointed to the Zoning Board of Appeals. He was on that board in 1989 when he decided to run for the city commission in the 1990 elections, for the seat occupied by Ollie B. Kelley. He did not formally file for the election until early 1990, and it is unclear when his intent was made known, but he had previously endorsed candidates in opposition to seated board members. Ollie B. Kelley is employed as a baker for the Dade County School Board. She is currently vice-mayor of Opa Locka and has served on the commission since 1986. Robert Ingram is a visiting professor at Florida Memorial College and is mayor of the City of Opa Locka, having served in that elected office for approximately 5 years. He previously served as Opa Locka police chief from 1980 to 1985. For the past three years, L. Dennis Whitt has been city manager for the City of Opa Locka. Daniel Reyes was employed as assistant to the city manager, L. Dennis Whitt, from November 28, 1989 until November 30, 1990, when he was terminated for various alleged wrongdoings. Holmes' Removal From The Board When Dennis Whitt came to the city in the middle of June 1989, he was made aware of Timothy Holmes' activities. Holmes exhibited behavior which Whitt considered inappropriate for an official of the city. Whitt received complaints and questions about Holmes as to perceived conflicts between his function as a board member and his services to Attorney Greason, who was representing parties in litigation against or involving the city. Holmes also was alleged to have gained access to city facilities based on his public office, but in furtherance of outside interests. Holmes wrote letters to the newspaper criticizing the city commission and was heard berating the commission in their meetings, calling them "Papa Doc, Mama Doc and Baby Doc", in an unflattering reference to former Haitian dictators. This latter incident was particularly irritating to Commissioner Kelley. She approached Whitt and asked whether something could be done. In response, Whitt researched the city charter for the procedure for removal of board members; he drafted an affidavit of charges based on his conversations with Commissioner Kelley and his own personal observations. He met with Commissioner Kelley on September 27, 1989 and gave her the affidavit. Although Dennis Whitt understood that board members could be removed for cause, the existing procedures applied to employees of the city, so he developed the language of the affidavit from the city's personnel rules, citing violations of a "standard of conduct", "insubordination" and "disgraceful conduct", "antagonism", interference with the proper "cooperation of employees", and use of his official capacity to solicit attorneys in litigation with the city and to conduct a private investigation of a city employee. (Petitioner's Exhibit #7) Commissioner Kelley signed the affidavit; it was presented to the full commission at the September 27th meeting; and the commission unanimously voted (with Kelley abstaining, because she brought the charges) to suspend Timothy Holmes from the Zoning Board of Appeals. The action, reflected in Resolution No. 5138, also set a public hearing on removal for November 8, 1989. At Holmes' request the hearing was continued to a later meeting, January 10, 1990. In the meantime, Dennis Whitt was instructed to conduct an investigation and bring together witnesses and evidence for the hearing. The hearing on removal of Timothy Holmes commenced at 7:00 p.m. on January 10th and proceeded into the early hours of the morning of January 11th. Timothy Holmes was represented by counsel, James H. Greason. The city was represented by its city attorney, Teretha Lundy-Thomas. Ms. Kelley testified, and did not participate as a voting member of the commission. Two law enforcement officers also testified. Three members of the public, including former mayor John Riley, testified on behalf of Timothy Holmes. The Commission voted to sustain the allegations regarding general insubordination and similar charges, but the last two charges regarding misuse of office failed for lack of majority vote. After votes on the separate charges, Dennis Whitt informed the commission that Holmes' removal from the board would need to be finalized with a resolution. The meeting was recessed to allow the city attorney and city manager to prepare the resolution. When the commission reconvened, the resolution removing Timothy Holmes passed 4-0, again with Commissioner Kelley abstaining. Holmes' Complaint To The Ethics Commission Holmes was convinced that his removal was a political vendetta. At some point after the public hearing he was in Attorney Greason's office and met Daniel Reyes. Reyes mentioned that he was with the city when the hearing took place and in Reyes' opinion, the removal in January 1990 was wrong. Reyes had heard Holmes and others referred to as "V.C." or "Viet Cong" - political enemies to be eliminated. Holmes was delighted to get information which he felt confirmed his own suspicions. Reyes executed an affidavit, dated June 11, 1991, stating among other matters, that "In January, 1990, Affiant, while so employed [as assistant to the city manager] witnessed City Manager L. Dennis Whitt and Mayor Robert Ingram conspire together to formulate changes which were used to remove Timothy Holmes as a member of the Opa-Locka Zoning Board . . . " (Petitioner's exhibit #3) That affidavit and an affidavit executed by Timothy Holmes were attached to a Commission on Ethics complaint form executed by Timothy Holmes on October 23, 1991. The affidavits and complaint to the Ethics Commission were prepared with the assistance of James Greason. At some point the above-referenced date on Reyes' affidavit, "January 1990", was struck through, and "September 1989" was substituted. Reyes initialed the change. The "corrected" date on Reyes' affidavit made the affidavit false, since Reyes was obviously not employed by the City in September 1989. He initialed the change at Greason's direction and never really looked at the date or considered it. Reyes was employed at the time of the removal hearing, but not when the process was first initiated. He was present when the resolution for removal was drafted during the January meeting's recess, but admittedly had no personal knowledge of the drafting of the initial affidavit by Whitt or the suspension resolution. The substance of Timothy Holmes' complaint to the Commission in Ethics was that Kelley, Ingram and Whitt conspired to remove him for actions protected by the First Amendment and for the purpose of discrediting him and politically damaging him in the November 1990 municipal election. He based the complaint on his own perception of the political climate and on what he understood were specific first-hand observations by Whitt's former assistant, Daniel Reyes. On January 29, 1992, the Commission issued its public report and order dismissing complaint: . . . On Friday, January 24, 1992, the Commission on Ethics met in executive session and considered this complaint for legal sufficiency pursuant to Commission Rule 34-5.002, F.A.C. The Commission's review was limited to questions of jurisdiction of the Commission and of the adequacy of the details of the complaint to allege a violation of the Code of Ethics for Public Officers and Employees. No factual investigation preceded the review, and therefore the Commission's conclusions do not reflect on the accuracy of the allegations of the complaint. The Commission voted to adopt the legal sufficiency analysis of its Executive Director, a copy of which is attached. Accordingly, this complaint is dismissed for failure to constitute a legally sufficient complaint with the issuance of this public report, which shall include the complaint and all documents related to the complaint. . . . The Petition for Fees and Costs Richard Venditti has handled legal matters for the City of Opa Locka and its officials in the past. He served as special master on contract with the City and also represented a couple of commissioners who were being investigated on charges by a private citizen. He represented Dennis Whitt in an action brought by Daniel Reyes for punitive damages related to his employment termination. When Whitt, Kelley and Ingram were served with Timothy Holmes' complaint to the Ethics Commission, they consulted individually with Richard Venditti. No papers or responsive pleadings were filed by or on behalf of respondents prior to the Ethics Commission's dismissal of the complaint. However each respondent was reasonably concerned and sought their attorney's advice. Petitions for costs and attorney's fees were filed with the Commission on Ethics on behalf of respondents, Kelley, Whitt and Ingram on February 28, 1992. Richard Venditti and L. Dennis Whitt drafted the petitions with information supplied primarily by Whitt. On March 11, 1992, Richard Venditti submitted individual bills to Whitt, Kelley and Ingram in the respective amounts of $1,665.00, $690.00 and $690.00. Most of the time reflected on the bills' itemization relates to the recovery of fees. The bills have not been paid, and the respondents are each unclear as to whether the city will pay the bills for them. They understand that they are personally responsible if the city does not pay the bills. Summary of findings Timothy Holmes filed his complaint with the advice and active assistance of an attorney. He was convinced that since his removal did not relate to specific misdeeds as a Zoning Board member, the removal was politically motivated and was in retaliation for zealous exercise of his rights as a citizen. He relied on those personal convictions and on statements by Daniel Reyes, whom he chanced to meet in his attorney's office and who gave him what appeared to be reliable inside information. Further investigation would have required his confronting the very persons he believed had conspired against him. The handwritten, "corrected" date on Reyes' affidavit was an error, but not Holmes' error. It apparently was an effort by someone other than Holmes to conform the statement to the date the process was initiated. Reyes, himself, explained that the "conspiracy" he witnessed was at the time of the removal hearing. This explanation is consistent with Whitt's testimony regarding the temporary recess required to draft the removal resolution. Reyes, and not Holmes, was negligent in checking the date on his affidavit before he initialled the change. Reyes presence when Dennis Whitt and the City Attorney drafted the removal resolution during the hearing recess makes it easy to understand why he felt the resolution was a foregone conclusion: it was. Each charge against Timothy Holmes had just been voted up or down, and the resolution, according to the city manager, was a necessary final step in the process. For good reason, the vote for removal was then beyond any doubt. The claim that Ollie Kelley had no knowledge of the facts in the affidavit of charges was based on Ms. Kelley's unfamiliarity with some of the terms used by Dennis Whitt in the draft. She was required to read the charges both at the meeting when suspension was voted and at the removal hearing. She stumbled over words such as "antagonistic". These were terms from the city's personnel manual and, although they may not have been part of Ms. Kelley's vocabulary, when explained to her they adequately expressed her personal concerns about Holmes' activities. It is neither necessary nor appropriate here to unravel the tangled web of political intrigue woven by the allegations and counter-allegations of the parties in this proceeding. Like Commissioner Kelley who was ignorant as to how to proceed but instinctively felt that something was wrong, Timothy Holmes reasonably relied on the advice of others in pursuing a remedy for relief. Timothy Holmes was misguided, but was not, himself, malicious.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter its Final Order denying fees and costs to Robert B. Ingram, Ollie B. Kelley and L. Dennis Whitt. DONE and RECOMMENDED this 11th day of September, 1992 in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1992. APPENDIX The following are rulings made pursuant to Section 120.59(2) F.S. the parties proposed findings of fact. Findings of Fact Proposed by Ingram, Kelley and Whitt: Adopted in substance in paragraph 7. and 3. Rejected as unnecessary or immaterial. Adopted in part in paragraph 2, otherwise rejected as unnecessary or immaterial. Adopted in part in paragraph 3, otherwise rejected as immaterial. and 7. Adopted in substance in paragraph 14. 8. - 13. Rejected as immaterial, since Holmes' reliance on Reyes was reasonable and consistent with his own perception of the events leading to his removal. 14. - 19. Rejected as unnecessary or immaterial. Adopted in substance in paragraphs 4 and 9. Adopted in part in paragraphs 10 and 26. Adopted in substance in paragraph 5. 23. - 25. Rejected as unnecessary. 26. Adopted in paragraph 19. 27. Rejected as unnecessary. 28. Adopted in paragraphs 6 and 7. Adopted in paragraph 9. Adopted in paragraphs 10 and 11. Adopted in paragraph 13. 32. - 34. Rejected as unnecessary. 35. Adopted in substance in paragraph 19. 36. - 40. Rejected as unnecessary. Findings of Fact Proposed by Holmes 1. - 3. Rejected as unnecessary. Addressed in conclusions of law. Adopted in paragraph 18. The legal argument is rejected as contrary to prior ruling by the Commission. - 7. Legal argument rejected as provided in paragraph 5, above. The conclusion is adopted generally in paragraphs 23- 27. Adopted in "Recommendation". COPIES FURNISHED: Richard Venditti, Esquire 250 Bird Road, Ste. 102 Coral Gables, FL 33146 Timothy Holmes 275 Seaman Avenue Opa Locka, FL 33054 James H. Greason, Esquire 4165 NW 135th Street Opa Locka, FL 33054 Tracey Maleszewski Clerk & Complaint Coordinator Ethics Commission Capitol, Room 2105 P.O. Box 6 Tallahassee, FL 32302-0006 Bonnie J. Williams, Executive Director Commission on Ethics The Capitol, Room 2105 P.O. Box 6 Tallahassee, FL 32302-0006
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaints are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged, pursuant to Chapter 465, Florida Statutes (2006), with regulation of the practice of pharmacy. At all times material to this case, the Respondent was a licensed pharmacist in the State of Florida, holding license number PS 26142. On May 3, 2005, a Final Order (DOH-05-0782-S-MQA) was filed based on the stipulated resolution of disciplinary proceedings initiated against the Respondent by the Petitioner in DOH Case Nos. 2002-27092 and 2002-25746. The Final Order imposed a suspension of the Respondent's license as follows: Respondent's license to practice pharmacy shall be suspended until such time as Respondent petitions and appears before the Board and can demonstrate that he is able to practice pharmacy with skill and safety to patients. Proof of his ability to practice safely shall include an evaluation of respondent by the Professional Resources Network (PRN) and a recommendation from PRN to the Board that Respondent can practice pharmacy with reasonable skill and safety to patients. The Final Order imposed a probationary period as follows: Upon the termination of suspension of Respondent's license, Respondent's license shall be placed on probation concurrent with the PRN contract or three (3) years whichever is longer. If, after completing an evaluation of Respondent, the PRN deems it necessary for Respondent to execute a contract for supervision and/or treatment, the three-year probationary period shall run concurrent with the PRN's contract. During the period or probation Respondent shall be subject to the following terms and conditions: Respondent or his employer shall submit written reports to the Compliance Officer at the Board office. The written reports shall contain Respondent licensee's name, license number, current address and phone number; current name, address and phone number of each pharmacy in which Respondent is engaged in the practice of pharmacy; the names of all pharmacists, pharmacy interns, pharmacy technicians, relief pharmacists, and prescription department managers working with the Respondent. These reports shall be submitted to the Compliance Officer every three (3) months in a manner as directed by the Compliance Officer. * * * Respondent shall submit documentation evidencing that his employer, or if employed as a relief pharmacist, his supervision pharmacists(s) and the relief agency, have been provided with a copy of the Final Order describing these probationary terms within ten (10) days of the entry of the Final Order or upon initiation of employment. Respondent shall ensure that his employer or, if employed as a relief pharmacist, the supervising pharmacist at each pharmacy at which the Respondent works, submits written reports to the Compliance Officer for the Board of Pharmacy. These reports shall contain: the name, current address, license number, and telephone number of each pharmacy intern, pharmacy technician, relief pharmacist, and prescription department manager working with the Respondent in the prescription department; a brief description of Respondent's duties and responsibilities; and Respondent's work schedule. These reports shall be submitted by the employer to the Compliance Officer every three (3) months in a manner directed by the Board. The Final Order imposed an administrative fine of $2,000. In the stipulation for settlement of the disciplinary cases, the assessment of costs was addressed as follows: Respondent agrees to reimburse the Department for any administrative costs incurred in the investigation, prosecution, and preparation of this case, not to exceed eleven thousand dollars ($11,000). The total amount of the costs will be assessed at the time the stipulation is presented to the Board. The fine and costs are to be paid by the Respondent . . . within sixty (60) days of the filing of a Final Order accepting and incorporating this Agreement. The copy of the stipulation admitted into evidence at the hearing included a handwritten notation related to the time for payment of the fine and costs and appears to indicate that the 60-day deadline for payment was extended to six months. The source of the handwriting was unclear; but in any event, the Final Order adopted the agreed stipulation and assessed costs of $10,852.66. The Final Order extended the deadline for payment of the costs to six months from the date of the Final Order, but did not specifically reference the deadline for payment of the administrative fine. The evidence establishes that both the fine and the assessed costs were to be paid within six months of the date of the Final Order, or by November 2, 2005. The evidence establishes that the Respondent paid neither the fine nor the assessed costs by the November 2, 2005, deadline. There is no evidence that the Respondent has made any attempt to pay any portion of the financial penalty, and the $12,852.66 remained unpaid at the time of the administrative hearing. The Respondent's suspension was lifted pursuant to an Order of Reinstatement filed June 28, 2005, at which time the probationary period began. According to the Respondent's Responses to the Petitioner's First Request for Admissions, the Respondent was placed by "Healthcare Consultants" to work in relief status at the Winn-Dixie #736 pharmacy and at the Winn-Dixie #741 pharmacy for a total of five days during the month of August 2005. According to the terms of the stipulation as adopted by the Final Order, the Respondent's first quarterly report was due three months following the beginning of the probationary period, or approximately September, 28, 2005. Cheryl Sellers, a compliance officer for the Petitioner, was assigned the responsibility of monitoring the Respondent's compliance with his obligations under the May 3, 2005, Final Order. The Respondent had several extended telephone conversations with Ms. Sellers shortly after the Respondent's probationary period began. During the conversations, the specific disciplinary requirements of the stipulation and Final Order were discussed at length. Additionally, in 1997, the Petitioner had incurred a substantially similar penalty, including a suspension, a fine, and compliance with quarterly reporting requirements. It is reasonable to presume that the Respondent was aware of, and understood, his obligations under the May 3, 2005, Final Order. As was her standard practice, Ms. Sellers sent a package of information to licensees with disciplinary restrictions, including various forms, related to compliance with requirements set forth by Final Orders. The package was mailed by regular mail to the Petitioner on August 4, 2005; but for reasons unknown, the information was not delivered to the Respondent and was returned to the Petitioner by the postal service. The package was not re-mailed to the Respondent until October 12, 2005. The Respondent filed his quarterly reports on October 19, 2005, several weeks after the deadline had passed. Apparently the first Employer's Quarterly Report was completed by an individual identified as Robert Miller, presumably employed by Healthcare Consultants, an otherwise unidentified entity which supposedly placed the Respondent in the Winn-Dixie pharmacies for the August 2005 employment. Mr. Miller was not the pharmacist in charge of the Winn-Dixie units where the Respondent had been employed. By letter dated October 21, 2005, Compliance Officer Cheryl Sellers notified the Respondent that he was "not in compliance" with the May 3, 2005, Final Order and stated as follows: Guidelines for submitting Employer Quarterly Reports were sent to you on October 12, 2005, the Employer's Quarterly Report from Robert Miller received on October 19, 2005, is not acceptable. Efren Rivera the PDM at the Winn Dixie store #736 is the appropriate person to complete this form. [sic] The Employer's Quarterly Report subsequently submitted by Efren Rivera was dated and notarized on November 1, 2005, and was filed thereafter. The Respondent filed for Chapter 7 bankruptcy in late 2005 and was discharged from debt on January 31, 2006. The Respondent has asserted that his obligation to pay the administrative fine and assessed costs was discharged through the bankruptcy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Pharmacy, enter a final order directing that the Respondent pay a total of $16,352.66, to the Petitioner. The total reflects the $12,852.66 imposed by the May 3, 2005, Final Order and the additional $3,500 penalty related to the violations set forth herein. Additionally, the final order should extend the Respondent's current probationary period by 18 months to be served consecutively to the current probationary period. DONE AND ENTERED this 10th day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2007. COPIES FURNISHED: Patrick L. Butler, Esquire Billie Jo Owens, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Denis R. Bousquet 5125 Cedar Springs Drive, Unit 203 Naples, Florida 34110 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Rebecca Poston, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C04 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent should be required to pay attorney's fees and costs to Petitioner to compensate her for the defense of an ethics complaint Respondent filed against her with the Florida Commission on Ethics.
Findings Of Fact Respondent J. Curtis Boyd ("Respondent" or "Mr. Boyd") owns property located at 111 Boston Avenue, Fort Pierce, Florida, that he bought in 2002 or 2003. The house on the property was once owned by the late Florida Governor Dan McCarty. Mr. Boyd testified that he has been offered $650,000 to sell the property with the house on it and $1.2 million to sell the land without the house. Mr. Boyd requested and received permission to demolish the house by a 5-to-1 vote of the Historic Preservation Board. That decision was apparently revoked by vote of the City Commission, including that of Petitioner Christine Coke ("Petitioner" or "Ms. Coke"). A complaint filed by Mr. Boyd with the State Attorney accusing Ms. Coke of "misuse of authority" was dismissed on July 6, 2009. Complaint No. 09-087, filed with the Florida Commission on Ethics ("Ethics Commission") on June 25, 2009, was dismissed on July 29, 2009. Mr. Boyd testified that, after the vote of the Historic Preservation Board, he believed Ms. Coke found some unnamed person to appeal the decision to the City Commission. He also testified that, some time later, he found out that the house was not in the historic district and that he did not need permission to demolish it. Mr. Boyd testified that he had overdue property taxes, but that he paid the back taxes and had the assessed value of the property reduced to lower his taxes because of the poor condition of the house. The City of Fort Pierce has waived approximately $70,000 in code enforcement fines on the property, and offered to pay $5,000 for a design fee, but Mr. Boyd noted that the design fee will not go to him but to an architect. Mr. Boyd alleges, with no supporting evidence, that the actions taken by Ms. Coke and others are intended to force him to sell the property to a friend of hers. Based on Mr. Boyd's testimony it is impossible to conclude, as he alleged, that Ms. Coke persuaded some one to appeal the decision of the Historic Preservation Board to the City Commission. There is also no evidence to support or refute Mr. Boyd's allegation that Ms. Coke was motivated by trying to force him to sell his property to a friend of hers. Related to costs and fees, Petitioner's counsel proffered an affidavit of an attorney, filed with the Division of Administrative Hearings on September 23, 2009, representing that the attorney had reviewed the files of Petitioner's counsel and agreed that fees of $1,447.50 for one billing period and of $1,765.00 for another billing period were reasonable. In the absence of supporting testimony and after Petitioner rested her case, the objection to the admission of the affidavit as being untimely filed and unsupported hearsay was sustained. There is no competent substantial evidence that Respondent either made or did not make a complaint against Petitioner with knowledge that the allegations were false or with reckless disregard for whether the complaint contained false allegations. There is also no competent substantial evidence of the amount of fees and costs incurred by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Florida Commission on Ethics dismiss the Petition for Attorney's Fees and Costs filed by Christine Coke. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 22nd day of October, 2009. COPIES FURNISHED: Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Richard E. Coates, Esquire 200 West College Avenue, Suite 311B Tallahassee, Florida 32301 Patrick Farrell, Esquire c/o J. Curtis Boyd 120 Orange Avenue Fort Pierce, Florida 34950 Philip C. Claypool, Esquire Executive Director and General Counsel Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Advocates for the Commission Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint with leave to file an amended administrative complaint alleging post-licensure misconduct only, within twenty days of the order of dismissal. DONE and ENTERED this 13th day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1984. COPIES FURNISHED: Dean Bunch, Esquire P. O. Drawer 1170 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Petitioner may terminate the employment of Respondent for misconduct in office.
Findings Of Fact Respondent graduated in 1963 with a degree in accounting. He earned his juris doctor degree in 1967. He has practiced public accounting and also been employed by W. R. Grace & Company and Getty Oil Company. For most of the 1970s, Respondent was employed as head of construction for the City of Baltimore. In this capacity, he assumed significant responsibilities in the construction of a major convention center and aquarium, as well as over 50 schools. For most of the 1980s, Respondent ran a construction management company. From 1988-92, Respondent developed residential homes. From 1992-96, Respondent was the executive director of the Port of Bridgeport. From March 1996 to January 2000, Respondent was employed as the executive director of the Port of Palm Beach. While so employed, Respondent directed a $100 million redevelopment project for the Port. Following the conclusion of his employment with the Port of Palm Beach, Respondent was employed for a short period in Tampa. Wanting to return to West Palm Beach, Respondent applied for the position of Respondent's Chief Operating Officer. Then-Superintendent Ben Marlin hired Respondent in July 2000. Superintendent Marlin was implementing a School Board plan that divided the District into academic and business sections. As Chief Operating Officer, Respondent headed the business section. As Chief Academic Officer, Dr. Arthur Johnson headed the academic section during the last six months of Superintendent Marlin's tenure, which ended in February 2001. Dr. Johnson succeeded Dr. Marlin as the new superintendent and was a member of the School Board when it adopted the plan dividing the District into academic and business sections. The creation of a separate business section within the District facilitated the implementation of efficient business and management practices. The School Board designed the new organizational plan to obtain greater productivity from the business side of the District and to maximize the academic benefit from available revenues. Currently the 14th largest school district in the United States, the Palm Beach County School District administers a $2 billion annual budget in the service of 157,000 students in 150 schools. Half of this $2 billion outlay is devoted to operational expenses; most of the remainder is devoted to capital expenditures and debt service. The District operates the largest food service and bus company in Palm Beach County. At the time of the hearing, the District was constructing three high schools, three middle schools, and ten elementary schools-- with a total construction value of over $250 million. Striving to meet the needs of a large, but still fast-growing community, the District will open twelve schools in August 2002. Just over half of the District's 17,000 employees are noninstructional. Hired shortly before Respondent, on June 1, 2000, William Malone became Chief of Facilities Management Services. Mr. Malone graduated with a degree in civil engineering in 1971. His prior experience consisted of 21 years with the United States Army Corps of Engineers and 13 years with the South Florida Water Management District. For the last five and one- half years with the South Florida Water Management District, Mr. Malone oversaw the district's construction projects. He left the district shortly after trying unsuccessfully in 1999 to be appointed as the executive director of the South Florida Water Management District. Upon assuming the duties of the Chief Operating Officer, Respondent analyzed all of the divisions reporting to him. An immediate problem was maintenance. The District had just fired Service Master, and the maintenance department was leaderless and in some disarray. Respondent decided to split off maintenance from Mr. Malone's responsibilities. Respondent contacted three Port employees who had worked under him when he was Executive Director of the Port of Palm Beach: Martin Mets, Michael Scheiner, and Lauriann Basel. On July 17, 2000, Respondent hired Mr. Mets as the Director of Maintenance and Plant Operations. At about the same time, Respondent hired Mr. Scheiner as a business manager and Ms. Basel as the liaison between the maintenance department and the schools. As evidenced in part from the fact that he continues to serve as Director of Maintenance and Plant Operations, Mr. Mets has done a good job for the District. He previously handled similar duties for 19 years at the Port of Palm Beach. Among Mr. Met's responsibilities as Director of Maintenance and Plant Operations is the duty of approving all invoices to be paid by the District. Mr. Scheiner continues to serve as a business manager for the District, although, at the time of the hearing, he testified that his contract might not be renewed. After serving as capital projects coordinator with the Port of Palm Beach, Mr. Scheiner, who has a degree in accounting, implemented the orders of Mr. Mets and Respondent to document all maintenance invoices before submitting them to accounting for payment. To perform this task, Mr. Scheiner had to design and implement internal controls to ensure, among other things, that vendors were doing the work in a satisfactory manner for which they were to be paid. One of Mr. Scheiner's first discoveries were that the District did not maintain the records he needed to ensure that the District had received the goods and services for which it was being invoiced. Prominent among the missing information were purchase orders showing that the District ordered goods or services and identifying the specific goods and services. Also prominent among the missing information was documentation showing that someone from Maintenance and Plant Operations physically visited the site that had purportedly received the goods and services to confirm that the goods and services were supplied and they were satisfactory. At the same time that Mr. Scheiner was undertaking the substantial task of designing and implementing much-needed internal controls to cover future operations, he also had to address the deficiencies that had arisen during past operations. Noticing a number of invoices for the installation of vinyl flooring in which the vendor had agreed to reductions in the amount due, Mr. Scheiner suggested to Mr. Mets that he ask Lung Chiu, the District Internal Auditor, to conduct an audit of these vendors. In August 2000, Mr. Mets submitted a request to Mr. Chiu that he conduct an audit of the District's two vinyl flooring installers. Mr. Chiu has served as the District Internal Auditor for eight years. He has a master's degree in accounting, and he is a certified public accountant and a certified internal auditor. Typically, Mr. Chiu reports to the School Board through the Audit Committee. His method of reporting is through the presentation of a final audit to the Audit Committee. Pursuant to Mr. Mets' request, Mr. Chiu conducted an audit of the two vinyl flooring installers from August to October 2000. Having completed his field work, in October 2000, Mr. Chiu prepared a draft audit report and submitted it for comment to Mr. Mets, as head of the maintenance department, and his counterpart in charge of the purchasing department. The draft audit report is dated November 17, 2000, and addressed to the School Board, Superintendent Marlin, and the Audit Committee because, if finalized in time, Mr. Chiu intended to present the final report to the Audit Committee at its next meeting, which was November 17, 2000. On November 6, 2000, Mr. Chiu reported by memorandum to Mr. Mets that he had found an error in the earlier version of the draft audit report dated November 17, 2000. After the correction, the draft audit report, as revised through November 1, 2000, found vendor overbillings (and, presumably, District overpayments) by the two vinyl flooring installers. According to the draft audit report, Buy the Square Yard, Inc. (Square Yard), overbilled the District $2.29 million, and Padron Brothers overbilled the District $2000. The earlier draft audit report had found that Square Yard had overbilled the District by $2.932 million. The tentative findings in the draft audit report caused District administrators to ask District legal counsel to consider various legal questions concerning the possible recovery of these apparent overpayments. In a nine-page legal memorandum dated November 10, 2000, to Interim Chief Counsel Bruce Harris marked "UNFINISHED PRELIMINARY AND TENTATIVE DRAFT FOR INITIAL DISCUSSION PURPOSES ONLY," Randall Burks discussed without resolution several legal issues concerning such a potential claim. At this point, Mr. Chiu referred the matter to the District police department for the purpose of a criminal investigation into the overbillings. In the spring of 2001, the District police department concluded that insufficient evidence existed to pursue criminal charges. In the meantime, in December 2000, Mr. Chiu considered the accounting error that had necessitated the amendment of the draft audit report. After more work, he concluded that his audit conclusion for 1995-99 was "questionable" due to incomplete billing and accounting records. This conclusion had a major impact on his earlier audit conclusions concerning Square Yard, which had tentatively found overbillings of $1.719 million in 1995-99. In May 2001, after the police investigation had concluded, Mr. Chiu resumed the audit work. He reduced the overbillings by Square Yard by removing the 1995-99 data and making another, much less important change. In May 2001, Mr. Chiu finalized the draft. As revised through June 8, 2001, the draft audit report found overbillings by Square Yard of about $387,000. According to a memorandum dated November 5, 2001, from Mr. Chiu to the Audit Committee, in May and June 2001, he "briefed" the committee members about ongoing projects, including the audit of the vinyl flooring vendors. District policy requires Mr. Chiu to update the Audit Committee about his audits, but Mr. Chiu ordinarily does not share with the committee any of the details of any audits, unless he has already submitted to the Audit Committee a finalized draft report. The District Internal Audit Charter outlines the responsibilities of the Audit Committee and District Auditor, although the charter, as contained in this record, does not address confidentiality. However, the premature release of a draft audit would impair the ability of the District Auditor to conduct effective audits. Given his background and service as a member of the Audit Committee, Respondent clearly understood the importance of confidentiality to the integrity of an ongoing audit. In early July 2001, Mr. Chiu shared his updated findings with the maintenance department and purchasing department, again for the purpose of obtaining their responses to the proposed audit findings and possibly incorporating these responses into the draft audit report. On August 2, 2001, Mr. Chiu received the responses of the maintenance department, by way of Mr. Mets' memorandum of the same date. This memorandum largely restates his response several months earlier to an earlier draft of the audit report. Mr. Mets' counterpart in charge of the purchasing department submitted her response in September 2001, and Mr. Chiu submitted the final draft of the audit report to the Audit Committee in November 2001. On August 3, 2001, Respondent attended a breakfast meeting at a motel restaurant with Henry Harper, Sr., the principal of Square Yard, and Isaac Robinson, the President of the City Commission of West Palm Beach. Commissioner Robinson had arranged the meeting so Respondent and Mr. Harper could try to resolve the problems that Mr. Harper felt that he was having with Respondent. Respondent's relationship with Superintendent Johnson was not as good as Respondent's relationship had been with Superintendent Marlin, who had announced his resignation in January 2001. In April 2001, Dr. Johnson switched Respondent and Mr. Malone's jobs. Superintendent Johnson claims to have been concerned about Respondent's interpersonal skills, but evidence of shortcomings in this area are anecdotal and unpersuasive. Superintendent Johnson also claims to have been concerned about Respondent's performance when he failed to produce a requested $50 million reduction from the business side. However, the record fails to establish sufficient details concerning this matter, which Superintendent Johnson did not pursue with Respondent at the time. Mr. Malone had unsuccessfully applied for the Chief Operating Officer position when Superintendent Marlin had selected Respondent. It appears that Respondent and Mr. Malone enjoyed different sources of support, and the replacement of Superintendent Marlin with Superintendent Johnson was an adverse development for Respondent and a favorable development for Mr. Malone. Also, at this time, a member of the School Board, who had strongly supported Mr. Malone's application for the Chief Operating Officer position, had been exploring the possibility of obtaining a position as the administrative assistant to the Chief Operating Officer and preferred to work under Mr. Malone, rather than Respondent. At some point, this factor was mooted when the School Board member secured a position as the director of a newly formed education commission in West Palm Beach. When switching the jobs of the two men, Superintendent Johnson also transferred to Mr. Malone's new position the responsibility for construction that he had previously borne as Chief of Facilities Management Services. At minimum, Superintendent Johnson preferred that this important responsibility remain in a person with whom he was more comfortable. However, Superintendent Johnson was not trying to rid the District of Respondent, as evidenced by his renewal of Respondent's one-year employment contract on June 30, 2001. Sometime after switching jobs with Mr. Malone, Respondent decided to run for the Commission of the Port of Palm Beach. The election is in November 2002, and, although most of the vote campaigning takes place within two weeks of the election, candidates often file early so that they can open campaign accounts and line up support. Campaign expenditures for each seat, which are all at-large, typically range from $30,000 to $40,000. On July 3, 2001, Respondent filed the paperwork to become a candidate for a seat on the Port Commission and advised Mr. Malone of his candidacy for public office. A few days later, Respondent briefly met with Mr. Mets, Mr. Scheiner, and Ms. Basel and informed them of his filing and warned them that they were not to involve themselves with his candidacy while on District time. Shortly after these conversations, Respondent went on a two-week vacation, from which he returned on July 24. Within a few days after returning to work, Respondent presented to Mr. Mets, Mr. Scheiner, and Ms. Basel three identical letters, all dated July 5, 2001. These letters reiterated Respondent's direction not to conduct any campaign business on District time. Each letter had a place for each of the three employees to sign and add the date. As instructed by Respondent, each employee signed his or her name and wrote in the date of July 5, 2001. The evidence does not establish that, in backdating the letters, any of these employees felt intimidated or coerced by Respondent or felt that they were doing anything wrong. None complained about the request at the time. In an abundance of caution, not inconsistent with feelings of blamelessness, Mr. Mets and Ms. Basel later memorialized the backdating of their letters. More likely than not Respondent had these employees backdate the "July 5" letters in late July. Although there is a conflict in the evidence whether the date on which Mr. Mets and Ms. Basel signed their letters was in late July or late August, it appears more likely that Respondent, in acceding to his wife's wishes to get these letters signed, did not delay in performing this task. It also appears less likely, for reasons discussed below, that Ms. Basel would have backdated such a letter in late August after Respondent's difficulties had surfaced. Mr. Scheiner did not testify to any discomfort in backdating the letter, but Mr. Mets and Ms. Basel testified that they felt discomfort at signing their letters. The most obvious objective distinction between Mr. Scheiner, on the one hand, and Mr. Mets and Ms. Basel, on the other hand, is that Mr. Scheiner believes that his continued employment with the District is already in doubt. This distinction is important in evaluating the testimony of Mr. Mets on this point and Ms. Basel on this and other points. Respondent had been the sponsor of all three of these employees, and they may reasonably have felt that their future with the District was tied to Respondent. Mr. Mets is near retirement. He is also understandably irritated at Respondent because Mr. Mets left his former, higher-paying job at the Port in reliance upon Respondent's unfulfilled promise to raise his pay with the District within a reasonable time after the commencement of his employment. Although Mr. Mets proved a credible witness in many regards, his testimony concerning discomfort at backdating the letter was unpersuasive. Ms. Basel suffers obvious anxiety concerning her continued employment with the District. She eagerly treated her obligation to testify as an opportunity to display her fealty to the District, which had already conducted an unsuccessful investigation against her for improperly requesting leave. Ms. Basel never harmonized her decision to join Respondent at the District with her portrayal of him as an easily angered supervisor. It is impossible to credit her proffered justification that Respondent had told her that he had changed; it is unlikely that she would ever work again with the overbearing man whom she describes. Ms. Basel's claims that Respondent intimidated her at work is also impossible to harmonize with her close relationship with Respondent and his wife and Ms. Basel's frequent expressions of loyalty toward Respondent--prior, of course, to his current difficulties with the District. Ms. Basel's lack of credibility undermines her testimony of intimidation, as well as her unsupported testimony concerning a couple of occasions on which Respondent, in her opinion, asked her to do campaign tasks on District time and property. One of her two recollections of conducting political business on District time and property involved her playing back a message from a District telephone answering machine and finding that someone had called Respondent to confirm a meeting and that a check--presumably a campaign contribution--was in the mail. Petitioner did not offer any evidence that Respondent conducted political business in connection with the call--only that someone, presumably a campaign supporter, had called Respondent at work. From the lack of evidence concerning other such recorded messages, this would appear to have been an isolated incident over which Respondent had no control. In any event, Ms. Basel's testimony on this matter does not suggest that Respondent conducted political business on District time or property. The other incident lacks detail. Ms. Basel testified that Respondent directed Ms. Basel to call a union president to get the union's support and 20 minutes later asked her if she had done so. Ms. Basel's evident desire to assist Petitioner's case inspires no confidence in the existence or details of the brief statements from Respondent or the duration of the interval between the two statements, so as to preclude the possibility of an intervening break, during which Ms. Basel would not be on District time. However, the Administrative Law Judge credits Ms. Basel's emphatic denial that she ever did any political work for Respondent on District time or property. But her testimony fails to establish that Respondent conducted political business on District time or property. To the contrary, given Ms. Basel's obvious motivation to protect her job and her close proximity to Respondent, the absence of testimony from Ms. Basel concerning any substantiated incidents or even more unsubstantiated incidents suggest that Respondent did not conduct political business on District time or property. Respondent's purpose in attending the August 3 breakfast meeting is difficult to characterize, but the meeting did not take place on District time or property. Respondent claims that he viewed Mr. Harper merely as a disgruntled vendor, but this claim accounts for only a small part of Respondent's motivation in meeting with Mr. Harper. Respondent testified that he knew that Mr. Harper was trying to prevent other persons from supporting Respondent's bid for a seat on the Port Commission, so the possibility of a political purpose exists. However, Respondent also testified that he returned from vacation to find that Mr. Malone had settled the District's disputes with Square Yard at a meeting in July during which the District agreed to pay Square Yard about $43,000 on unpaid invoices and to try to give half of all future vinyl flooring work to Square Yard. As noted below, the omission of any mention of the $387,000 in overpayments is probably due to the fact that the District had already decided, or was in the process of deciding, not to pursue any overpayments. In fact, as Mr. Malone testified, he had negotiated this settlement at the direction of Superintendent Johnson, who misrecalled that Superintendent Marlin had decided to pay Square Yard $43,000 (a decision that, if Superintendent Johnson's recollection were accurate, would have inexplicably gone unimplemented until five months into Superintendent Johnson's tenure). Given these circumstances, Respondent, in an abundance of caution, might want to appease a person who had such apparent influence with Mr. Malone and Superintendent Johnson, just in case Respondent were not successful in his Port Commission election. Commissioner Robinson facilitated the August 3 breakfast meeting. He asked Mr. Harper to state his concerns. Mr. Harper blamed Respondent for certain problems of Square Yard with the Port of Palm Beach and the District. Respondent explained what he was doing at the Port and that, while with the District, he was merely following orders. Clearly addressing District business, Respondent also emphasized the internal controls that the District had recently implemented and underscored the importance of vendor compliance with these controls. None of the three men discussed Respondent's political campaign. While dealing with Mr. Harper's concerns about the District, Respondent showed him copies of a draft audit, as revised through October 25, 2000, and June 8, 2001, with Mr. Mets' response dated August 2, 2001. Commissioner Robinson asked Respondent if this was public record, and Respondent replied that it was because it had been brought to the attention of the District. Mr. Harper asked for a copy of these documents, and Respondent gave him one. Respondent did not give Mr. Harper copies of other documents, such as the November 10, 2000, unfinished legal memorandum. Mr. Harper likely obtained a copy of this document at the breakfast meeting from Respondent's files, perhaps due to the inadvertent shuffling of papers in the large stack that Respondent had brought with him to the meeting. The key question in this case is whether Respondent improperly supplied Mr. Harper with copies of the draft audits. Respondent testified that he believed that the audit had been completed because Mr. Malone had settled all pending disputes while Respondent had been on vacation. Respondent testified that he knew that the formal audit had been delayed from last fall, but Respondent testified that he thought that the delay was occasioned by the District's investigation during the first half of 2001 of Mr. Chiu for the possible conducting of a lichee nut business for his brother while on District time. Mr. Mets testified that Mr. Chiu told him on August 2, 2001, that Mr. Chiu had discussed the June 8 draft audit with some, but not all, members of the School Board. Evidently based on this discussion, the School Board had decided, according to Mr. Mets' testimony of his conversation with Mr. Chiu, not to pursue the overpayments to Square Yard. This testimony is largely credited. If the School Board could agree not to pursue the overpayments, the discussion with Mr. Chiu must have been more detailed than a mere briefing or updating. On the same day, after his conversation with Mr. Chiu, Mr. Mets told Respondent that Mr. Chiu had explained that the District was not able to pursue any 1995-99 overpayments because of the District's failures in documentation and internal controls and that Mr. Chiu wanted to close the matter promptly. Mr. Mets also told Respondent that Mr. Chiu had told Mr. Mets that Mr. Chiu had discussed the audit in detail with four members of the School Board and intended to discuss the audit in detail with the other three members by the end of the week. Mr. Mets added that the four members had agreed the District could not pursue any overpayments. Two District attorneys have consistently opined that otherwise-confidential audit materials lose their confidential status when distributed to members of the School Board or Audit Committee. One of the attorneys had concluded on June 19, 2001, not to pursue any overpayments for the reasons stated above and had instructed Mr. Chiu to bring the matter to a conclusion. Immediately after obtaining the documents from Respondent, Mr. Harper gave them to his attorney, who promptly returned them to Mr. Harris due to his concern that the release of the documents had been improper. In his cover letter, Mr. Harper's attorney strongly suggested that Respondent's delivery of the materials to Mr. Harper was improper and if the current administration (apparently of Superintendent Johnson) intended to correct the mistakes of the preceding administration, it had better do so quickly, or else its successor would correct those mistakes. On August 15, 2001, Mr. Malone summoned Respondent, falsely telling him that they needed to discuss a school maintenance matter. Mr. Malone prepared the ruse so that Respondent could not prepare untrue responses to the questions that Mr. Malone intended to ask Respondent. At the meeting, when shown some of the documents that Mr. Harper's attorney had sent to the District, Respondent told Mr. Malone that he had met with Mr. Harper, but the meeting had not been political in nature, and that he had given Mr. Harper some of the documents, but not all of them. A later disagreement arose between Mr. Harper and Respondent concerning what Respondent said at the August 15 meeting, but the discrepancies are not material. One week after the meeting, Mr. Malone recommended that the District Department of Professional Standards investigate the entire matter. Mr. Malone suggested that the investigators take testimony under oath because some of the apparent violations were criminal. The Director of the District Department of Professional Standards referred the entire matter to the District police department for investigation. Two District police department detectives interviewed witnesses, including Respondent on August 30, 2001. During his interview, despite being under oath, Respondent three times denied that he had asked Mr. Mets, Mr. Scheiner, and Ms. Basel to backdate their "July 5" letters. Immediately after the conclusion of the interview, Respondent told his attorney, who had accompanied him at the interview, of the misstatements and that he wanted to correct the record immediately. A short delay ensued because Respondent and his attorney had been instructed to go elsewhere immediately after the interview and did so. However, within 20 minutes after the conclusion of the interview, Respondent and his attorney caused the detectives to reconvene the interview, so that Respondent could correct his misstatement about backdating the "July 5" letters. At the reconvened interview, Respondent admitted to asking the three employees to backdate their letters. No evidence suggests that Respondent's 20-minute delay in admitting to the backdating request materially delayed Petitioner's investigation. After examining the facts of the case, the School Board voted on November 20, 2001, to terminate Respondent's contract, effective 15 days later, rather than not renew it when it expired on June 30, 2002. The charges that engendered this case are that Respondent disclosed confidential materials to Mr. Harper and that he did so for personal gain. Respondent gave Mr. Harper copies of two draft audit reports, but they were no longer confidential because Mr. Chiu had already discussed in detail the findings of his audit with a majority of the members of the School Board. The evidence suggests that Mr. Chiu did so to obtain the approval of the School Board to resolve its long- pending overpayment issue with Square Yard. The evidence fails to establish that Respondent gave Mr. Harper a copy of the other materials. As for the November 10, 2000, unfinished legal memorandum, this document was no longer confidential because, in June or no later than July 2001, the District had decided not to pursue possible overpayments to Square Yard. If the materials were no longer confidential, the motivation of Respondent in delivering them, during a breakfast meeting not on District time or property, loses its importance. Undoubtedly, Respondent was dealing with a disgruntled vendor, as Respondent claims. Undoubtedly, Respondent's underlying motivation was a mixture of concern for his political campaign and for his present job situation; mollifying Mr. Harper could help Respondent in both regards. Nor has Petitioner proved misconduct impairing Respondent's effectiveness in his handling of the three "July 5" letters. The record does not sustain the allegation that Respondent coerced or intimidated any of the three employees into backdating these letters. The letters themselves are not legally required documents, nor are they even significant documents. These letters are self-, or, if Respondent's testimony were credited, ally-serving documents whose effectiveness is undermined by their transparency. They have the force and effect of birthday cards. Backdating these ineffective documents inspires little confidence in Respondent's mental acuity or at least in his assessment of the mental acuity of those around him. At best, undisclosed backdating is a precarious practice, and Respondent's claim that backdating is prevalent in the District is beside the point. However, the insubstantiality of the letters themselves reduces their backdating to a meaningless self-indulgence. The closest issue in the case is Respondent's dishonest denial, under oath, that he had the three employees backdate the "July 5" letters. The insubstantiality of the letters themselves is irrelevant to this issue, which raises the question of Respondent's honesty. Respondent knew that he had asked the employees to backdate these letters, and he denied under oath doing so. The proper characterization of this incident does not permit consideration of Respondent's intention to protect his employees or Petitioner's failure to advise Respondent that he was under criminal investigation; these factors are entirely irrelevant. However, the proper characterization of this incident requires consideration of Respondent's near-immediate correction of his misstatement. The 20-minute delay arose due to logistics, not any delay on Respondent's part after the conclusion of the interview. Respondent had not expected questions concerning the "July 5" letters, nor, in retrospect, should he reasonably have expected such questions. When asked about the letters, Respondent panicked and denied three times that he had asked the employees to backdate them. The fairer characterization of this incident is that Respondent immediately corrected his admittedly intentional misstatements, rather than made the misstatements and later recanted. Not Respondent's most shining moment, his lapse from honesty, which obviously never impaired Petitioner's investigation, was short-lived to the point of being momentary, was not so serious as to impair Respondent's effectiveness in the school system, and factually did not rise to the level of misconduct constituting just cause for his termination. These findings do not imply acceptance of Respondent's assertion, in his proposed recommended order, that the "only plausible explanation" for Respondent's termination was Superintendent Johnson's desire to remove Respondent. This is a oversimplification and distortion of the facts of this case. Superintendent Johnson renewed Respondent's contract hardly one month prior to the August 3 breakfast meeting. Although Superintendent Johnson clearly wanted Respondent out of the position of Chief Operating Officer, he displayed no desire to terminate Respondent's employment with the District. From Superintendent Johnson's perspective, Respondent's August 3 meeting with Mr. Harper was ill-timed. The District had just worked out the long-pending dispute between it and Square Yard by paying $43,000 to the company and promising it more business. Superintendent Johnson's misrecollection--corrected by Mr. Malone--that Superintendent Marlin had decided on the $43,000 payment suggests the sensitivity of this matter. For nearly nine months, many persons within the District, and probably a number of persons outside of the District, had credited Mr. Chiu's preliminary findings that Square Yard owed the District over $2 million in overpayments-- an attractive receivable in times of tight revenues. This dramatic preliminary finding left a more lasting impression than the more thorough findings that the overpayments were less than $400,000, poor District recordkeeping during the earlier period in question precluded reliable findings of any additional overpayments, and poor District recordkeeping concerning even the $400,000 in claimed overpayments probably precluded their proof in a civil action for damages. The letter from Mr. Harper's attorney exacerbated the situation for Superintendent Johnson, who testified that the matter was serious because the attorney took it seriously and, if the District took no action after receiving such notification from an officer of the court, the District would leave itself vulnerable to later recriminations. The subsequent discovery of Respondent's requests for his employees to backdate the "July 5" letters and, worse, his momentary lying under oath, even though concerning tangential matters, made it much more difficult for Superintendent Johnson to coordinate public perceptions with the reality of the Square Yard matter. On this record, the reality of the Square Yard matter is that poor District recordkeeping and internal controls--since corrected--meant that the Square Yard might have been entitled to $43,000 on past-due invoices and future District business, rather than that the District was owed hundreds of thousands or even millions of dollars in overpayments.
Recommendation It is RECOMMENDED that the School Board of Palm Beach County enter a final order dismissing all charges against Respondent and awarding him back pay for the period from the date on which he was suspended without pay through the end of the term of his present contract. DONE AND ENTERED this 5th day of June, 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 5th day of June, 2002. COPIES FURNISHED: Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Alan M. Aronson, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Elaine Johnson James, Esquire Edwards & Angell, LLP 1 North Clematis Street, Suite 1400 West Palm Beach, Florida 31301 Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson, P.A. 250 Australian Avenue, Suite 1400 West Palm Beach, Florida 33401
Findings Of Fact Respondent, Invarrary Retirement Center, Inc. (IRC), is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregate living facility (ACLF). The facility operates under the name of Inverrary Retirement Center at 5811 Northwest 28th Street, Lauderhill, Florida. On or about April 4, 1984, two HRS inspectors performed a routine relicensure survey of IRC. The purpose of the survey was to determine whether IRC was complying with all HRS requirements relating to record keeping, sanitation, fire and safety. During the course of the survey, the inspectors noted the following violations of HRS rules: There was no staff member within the facility at all times who was certified in an approved first aid course (Rule 10A- 5.19(5)(f), F.A.C.); The facility failed to keep "current" records of self administered medication (Rule 10A-5.18(6)(f), F.A.C.); Menus were not planned and posted where they could be easily viewed by the residents (Rule 10A-5.20(1)(j), F.A.C.); The kitchen was not equipped with an approved exhaust hood over the stove (Rule 10A-5.23(15)(a), F.A.C.); An electrical extension cord was used to service the coffee maker (Rule 10A- 5.23(15)(a), F.A.C.); One of the buildings had an insufficient means of egress for the residents (Rule 10A- 5.23(15)(a), F.A.C.); There were no manually operated fire alarms capable of being heard throughout the facility (Rule 10A-5.23(15)(a), F.A.C.); Respondent failed to provide documenta- tion reflecting the smoke detectors were tested on a weekly basis (Rule 10A- 5.23(15)(a), F.A.C.); and (j) There was a sliding bolt on an exit door on one of the buildings (Rule 10A- 5.23(15)(a), F.A.C.). All of the foregoing constituted a separated violation of HRS rules. 1/ When the survey was completed, the inspectors reviewed all violations with IRC's manager and advised her that a resurvey would be taken in about thirty days, and that all violations must either be corrected by that time, or some action instituted which reflected an intent on the part of the facility to correct the same. This was in accordance with HRS policy governing ACLFs, and approximated the time given other facilities to make similar corrections. On April 10, 1984, a Corrective Action Plan was issued by HRS and sent to IRC. This document set out in detail the various violations found in the April 4 inspection and set a compliance date of May 4, 1984 for all corrections to be made. A resurvey of IRC's facility was made by the same two HRS inspectors on May 18, 1984. With the exception of item (3)(h), which required documentation verifying that smoke detectors be tested weekly, the inspectors noted that no corrections had been made. However, respondent presented evidence that items (3)(b) and (3)(c) had indeed been corrected by that date and such evidence is deemed to be more persuasive than contrary evidence offered by HRS representatives. Further, the violation in item (3)(f), and turns on whether an HRS publication or the City of Lauderdale fire code was controlling when the inspection was made. Because no evidence was presented to establish which standard was in effect, the allegation that an HRS publication was violated must fail. Accordingly, it is found that IRC failed to timely correct items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i), and (3)(j) as required by the Corrective Action Plan. Respondent eventually made all corrections, although not within the HRS imposed deadline. One of the deficiencies [item (3)(d) required extensive renovations, including bids and a city permit, which took considerable time to accomplish. However, IRC's manager neglected to provide HRS inspectors with any evidence on the May 18 visit showing that bids were being solicited, or that there was any "movement" on the project. The same is true for item (3)(g) which required competitive bids from suppliers. IRC also failed to advise HRS that it could not immediately enroll an employee in the Broward County First Aid Course [item (3)(a)] because of the large number of participants in the class. IRC failed to do so even though its manager had been told that an extension on the May 4 deadline could be obtained where IRC gave some evidence to the inspectors that action was being instituted to correct the deficiency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating agency rules as set forth in items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i) and (3)(j) of the administrative complaint, and that a $900 administrative fine be imposed, to be paid within thirty days after the data of the final order rendered in this proceeding. All other charges should be DISMISSED. DONE and ORDERED this 11th day of March, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent whose Social Security Number is 356-48-9981 was certified as a law enforcement office by the Criminal Justice Standards and Training Commission on December 18, 1985 and was issued certificate number 12- 85-222-02. At all times material to this proceeding, Respondent was a certified law enforcement officer. On or about April 23, 1987 Respondent entered a plea of nolo contendere to the charges of grand theft in the second degree, a violation Section 812.014, Florida Statutes and dealing in stolen property, a violation of Section 812.019, Florida Statutes. The Respondent was adjudged guilty of these offenses by the Circuit Court of Saint Lucie County, Florida on April 23, 1987.
Recommendation Having considered the evidence of record and the candor and demeanor of the witness, it is, therefore RECOMMENDED that the Commission enter a Final Order revoking the law enforcement officer certification (No. 12-85-222-02) of Respondent, Carey A. Reddick. Respectfully submitted and entered this 15th day of February, 1988, in Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1988. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Carey A. Reddick 15424 Loomis Harvey, IL 60426 Robert R. Dempsey Executive Director Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Recommendation In view of my finding that the Petitioner has engaged in a pattern of careless conduct, I recommend that the Board issue a written reprimand to her for having engaged in the conduct as found herein. in all other respects I recommend that the complaint be dismissed in its entirety. DONE and ORDERED this 29th day of July, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact The Department of Professional Regulation, Board of Psychological Examiners initiated an Administrative Complaint in Department of Professional Regulation Case No. 81809, DOAH Case No. 89-0599, against Petitioner, Frank A. Brown, Ph.D., on January 13, 1989. Petitioner is the owner and proprietor of a professional service business engaged in the practice of psychology. At the time of the filing of the Administrative Complaint, Petitioner's business employed less than twenty- five (25) full-time employees and had a net worth under two million dollars. Additionally, Petitioner's residence, business domicile, and principal office were located in Florida, and have been so located since 1976. The Administrative Complaint alleged that the Petitioner was guilty of sexual misconduct in the practice of psychology, that the Petitioner failed to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, and that Petitioner was unable to practice the profession for which he is licensed under Chapter 490, Florida Statutes, with reasonable skill or competence as a result of impairment due to a mental or physical condition or by reason of illness, drunkenness, or excessive use of drugs, narcotics, chemicals or any other substance, pursuant to Florida Statutes, 1981-1987. On August 24, 1989, an Amended Administrative Complaint was filed alleging the same violations pursuant to Florida Statutes, 1981-1986. Petitioner disputed these allegations and requested a formal administrative hearing. Prior to hearing in the underlying proceeding, DOAH Case Number 89- 0599, Petitioner moved for dismissal of the Amended Administrative Complaint. Petitioner's motion was denied by the Hearing Officer. A formal hearing was held in this matter on September 12-13, 1989. At the hearing and after presentation of a portion of the testimony, the Department voluntarily dismissed its allegation of sexual misconduct in the practice of psychology. The hearing proceeded on the remaining two charges in the Amended Administrative Complaint. After the close of the evidence and submission of Proposed Recommended Orders by both parties, the Hearing Officer, on May 14, 1990, filed a Recommended Order recommending dismissal of the Amended Administrative Complaint against the Petitioner. On July 2, 1990, the Department of Professional Regulation, Board of Psychological Examiners, filed a Final Order adopting the Recommended Order and dismissed the case consistent with the Hearing Officer's Recommended Order. Therefore, Petitioner became the prevailing party in the underlying action. The allegations against Petitioner contained in the Administrative Complaint resulted from a complaint received in 1987 from R.B. and D.B. concerning the care and treatment R.B. received from Petitioner in his capacity as a psychologist which centered on the illicit 7-year love affair between R.B. & Petitioner. It was the turmoil caused by the discovery of this affair by D.B., R.B.'s husband, that caused Petitioner, in April, 1987, to be examined and treated at CPC Parkwood Hospital in Atlanta, Georgia by Psychiatrist Warren A. Hinson, M.D. The Petitioner was advised of the complaint made by R.B. and D.B. around April 14, 1987. Petitioner responded through his attorney on at least two separate occasions with factual and legal arguments regarding the complaint lodged by R.B. and D.B. On November 9, 1987, a Probable Cause Panel of the Board of Psychological Examiners met to review the investigative report and responses from Petitioner. The investigative report consisted of several statements from R.B. and D.B., the responses from Petitioner, an interview with a Dr. Trotter, who had rendered psychological services to both R.B. and Petitioner, together and separately, and various documentary evidence. The investigative report was submitted to the Probable Cause Panel of the Board of Psychological Examiners by the Chief Attorney for Allied Health Services of the Department of Professional Regulation under cover of a memorandum dated October 27, 1987. The memorandum states that the case was being submitted without a recommendation for an administrative complaint or closing order in Petitioner's case. The memorandum states: The attached case is being submitted without a recommended A/C or C/O. There are legal problems with charging sexual misconduct, although a strong argument could be made to support a finding that the subject failed to meet minimum standards of professional per- formance. Another issue, is the subject's fitness to practice by reason of emotional problems. Dr. Brown's attorney has suggested that the probable cause decision be deferred to allow Petitioner to enroll in the Impaired Practitioner's Program. Although there is no statutory provision for a psychologist to participate in the IPP, I see no reason why if couldn't be accomplished (by mutual agreement). The Chief Attorney realized that there was a problem with the allegations against Dr. Brown, in light of the retroactive application of a recent rule of the Board of Psychological Examiners defining the psychologist/client relationship as continuing in perpetuity for purposes of sexual misconduct allegations and in light of the fact that Dr. Brown's conduct could be construed to have occurred after the termination of the professional relationship between Petitioner and R.B. The legal problem created by the fact that Dr. Brown's conduct could be construed to have occurred during a time when the practice of psychology was not regulated did not occur to the Chief Attorney at the time of the 1987 meeting. However, as indicated by both the memorandum and transcript of the comments made at the probable cause meeting there were legal arguments which could be legitimately made which might overcome the problems with this case. 1/ These arguments also could be applied to the legal problem caused by the absence of a statute regulating the practice of psychology. The Probable Cause Panel, in the course of their review, considered the suggestion from Petitioner that a determination of probable cause be deferred pending the entry of the Petitioner into a program for impaired practitioners similar to the Impaired Practitioners Program utilized by other professions regulated by DPR. At that meeting, the Probable Cause Panel of the Board of Psychological Examiners, after reviewing the investigative report and attachments, believed there was sufficient evidence to find probable cause. However, in light of the problems with this case and Petitioner's request to attempt to enter an impaired practitioners program (IPP), the Probable Cause Panel agreed to defer a finding of probable cause on condition that Petitioner develop and present to the Probable Cause Panel a comprehensive treatment and practice plan and possibly undergo a psychological/psychiatric evaluation. Around November 10, 1987, the Chief Attorney for the Department of Professional Regulation, Allied Health Services, notified the Petitioner that the Probable Cause Panel of the Board of Psychology voted to "defer the probable cause decision", and requested that Petitioner initiate action to be accepted into an IPP and further, that Petitioner provide a comprehensive practice and treatment plan for the Probable Cause Panel's consideration at its next meeting. The Chief Attorney also requested that Petitioner's attorney contact the Department when he had the requested documentation prepared. Importantly, neither the transcript nor the letter from the Department's Chief Attorney indicates what the Board or the Probable Cause Panel might do after the deferral period. At best, from a reading of the transcript, it appears that the Panel intended to leave its options open as to whether the Panel might later find probable cause even if Petitioner complied with the Panel's instructions. Clearly, both attorney's involved in the matter hoped the case would be settled. However, such attorney's hopes do not translate into a Board or Panel promise or settlement agreement to forgo action against Petitioner should he comply with the Panel's instructions. Given the transcript of the probable cause panels meeting, deferring a decision cannot be translated into an agreement to not take any action by the Panel. 2/ In any event, the Petitioner initiated action to enroll in an IPP. Around January 1988, Dr. Goetz, Director of the Physician Recovery Network accepted Petitioner into the IPP program. Dr. Brown began participation in the Impaired Practitioners' Program by undergoing a five day inpatient evaluation in Atlanta. There was no judgment reached from this five day review that Petitioner was either incompetent or that he could not return to practice. Since there was no actual impairment of Dr. Brown, he returned to Pensacola to continue quarterly evaluations by psychiatrist Lawrence E. Mobley, M.D., and Pat O'Connell, M.D., and psychotherapy supervision with psychologist Jack Keller, Ph.D. The Department received several generalized reports of Petitioner's status and progress with the IPP program. The reports were dated July 29, August 18, August 16, November 10, and December 1, 1988. The Department also received at least two status reports from Petitioner's attorney. Around October 6, 1988, the Petitioner's attorney requested from the IPP program the information necessary to develop a comprehensive practice and treatment plan as requested by the November, 1987, Probable Cause Panel. The Respondent was never provided a comprehensive treatment and practice plan which was satisfactory to it. However, the Petitioner did make attempts to comply with this requirement. 3/ Believing Petitioner had complied with the Board's instructions, sometime around October 6, 1988, Petitioner's attorney informed the Department the Petitioner was established with an IPP program and that the matter was now ready for the Board's consideration. On December 4, 1988, the Probable Cause Panel reviewed the investigative report which included, in part, the diagnosis and report of Dr. Hinson relating to the Petitioner and his hospitalization at CPC Parkwood, in Atlanta, Georgia; the Petitioner's responses and arguments as presented by his attorney's correspondence with DPR; the Petitioner's letter to R.B., returning professional fees previously collected during treatment; the August 5, November 10, and December 1, 1988, reports from the IPP program regarding Petitioner; the opinions of Patrick Cook, Ph.D., and Deborah Frank, R.N. Ph.D., L.M.F.T.; the interviews of R.B. and D.B.; additional sworn statements of R.B. and D.B., and various documentary evidence associated with the underlying case. Neither Dr. Brown nor his attorney were permitted to attend this Probable Cause Panel's meeting. On the same date, the Probable Cause Panel after reviewing the investigative report, discussing the allegations, and consulting with legal counsel for the Board, Mr. Allen Grossman, Assistant Attorney General, by unanimous vote determined the existence of probable cause and directed the issuance of an Administrative Complaint as outlined in paragraph 3 above. At the time a finding of probable cause was made by the Board, at least two factual issues were considered by the Probable Cause Panel. Those issues were whether the Petitioner built his intimate relationship with R.B. upon an existing professional relationship interrelated with whether there had been a termination of that professional relationship and whether Petitioner's romantic involvement with R.B. occurred during a time when the practice of psychology was a regulated profession. The Probable Cause Panel relied upon the interviews of R.B. and her additional sworn statements regarding her romantic and professional relationship with the Petitioner. These statements as well as other evidence in the investigative file supported a finding of probable cause of sexual misconduct with a patient. Additionally, the Probable Cause Panel reasonably relied upon the statements of R.B. and D.B. and Petitioner's responses to DPR, regarding his relationship with R.B. and her family in finding probable cause of practicing below the prevailing standard for practice. On both these issues, the relevant time periods involved in this case were unclear from the information the Probable Cause Panel had before it. However, there was enough evidence in the investigative file for the Board to reasonably conclude that Petitioner had engaged in actions which would subject him to discipline during a time when the practice of psychology was regulated or cause his later behavior to relate back to a time when the practice of psychology was regulated. Additionally, as noted with the 1987 Probable Cause Panel, there were legitimate legal arguments which could be made in an attempt to overcome the problems due to a lack of rules or statutes incurred in the underlying action. Therefore, given the fact that the Board had a reasonable basis in law and fact to find probable cause against Petitioner for violation of Chapter 490, Florida Statutes, Petitioner is not entitled to an award of attorney's fees. The Probable Cause Panel also, considered the issue of Petitioner's mental health vis a vis Petitioner's ability to safely practice psychology. This latter issue and the resultant charge in the Administrative Complaint appears to be a "throw in" charge for which the Panel had no reasonable legal or factual basis to find probable cause. However, the issue of Petitioner's mental health was never seriously prosecuted by the Department and did not play a significant role in the litigation or the fees expended in the litigation. Additionally, the evidence did not demonstrate what portion of the Petitioner's attorney's fees and costs could be attributed to this single issue. Therefore, Petitioner is not entitled to an apportionment of attorney's fees and costs based on this issue.
