The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, the City of Crystal River, is required to report Myrl David Sallee as a member of the Senior Management Services Class (SMSC) of the Florida Retirement System (FRS) for the period from June 7, 1999, through July 2000, and remit the required contributions for that period.
Findings Of Fact The Petitioner, the City of Crystal River (City) is a Florida municipal corporation which has elected to participate in the Florida Retirement System (FRS). The Respondent is an agency of the State of Florida charged with administering the Florida Retirement System and enforcing the statues and rules which pertain thereto. On June 7, 1999, the City hired Myrle David Sallee as its City Manager, pursuant to a written contract which required Mr. Sallee to begin his employment on that date. The City's contract with Me. Sallee provided, "City shall contribute an amount equal to 24 percent of salary to agreed upon retirement plan in lieu of city retirement." The term "city retirement" refers to the FRS, of which the city normally was a participating member. Upon commencement of his employment, Mr. Sallee elected to have his city retirement contributions paid into a retirement plan operated and managed by the International City Manager's Association (ICMA) and the city agreed. From the date of his employment with the city until his employment terminated on June 6, 2001, the city made the required 24 percent contributions for Mr. Sallee to the ICMA plan. Mr. Sallee's position as city manager was one which is required to participate in the FRS Senior Management Service Class pursuant to Section 121.055(1)(b)1, Florida Statutes, and Rule 60S-1.0057(1)(c)2, Florida Administrative Code. Persons in such a position may, however, elect to withdraw from the FRS altogether, pursuant to Section 121.055(1)(b)2, Florida Statutes. There is no rule that corresponds to such an unconditional withdrawal; however, Rule 69S-1.0057(2)(c), Florida Administrative Code, provides that some person eligible to participate in the Senior Management Service Class of the FRS, including city managers, may elect to participate in a lifetime annuity program provided by their employer, in lieu of being a member of the FRS Senior Management Service Class. Local government employees participating in the FRS Senior Management Service Class are obligated by Rule 60S- 1.0057(3)(b)1, Florida Administrative Code, to complete and file with the division a form SMS-3 and a form FRS-M10. Pursuant to Rule 60S-1.0057(3)(b)2, Florida Administrative Code, the election to withdraw from the FRS altogether and participate in an employer-provided lifetime annuity program is also made by filing a form SMS-3. According to Rule 60S-1.0057(2)(c)1, such an election is effective the first day of the month following the month in which the form SMS-3 is received by the Division. Mr. Sallee was unaware of his obligation to participate in the FRS until July 7, 2000, at which time he completed and filed with the Division a form SMS-3. In his form SMS-3, Mr. Sallee elected to withdraw from the FRS and participate in an employer-provided annuity program instead. Mr. Sallee never did file with the Division a from FRS- M10. The City made a required FRS contribution for Mr. Sallee for July of 2000, but no other. On November 20, 2000, the Division notified the City, by letter, that FRS contributions were due for Mr. Sallee from the date of his employment, June 7, 1999, until the effective date of his election to withdraw from the FRS, August 1, 2000. By various telephone calls and letters, the City informed the Division of its position and requested relief from making the contributions payments that the Division claimed were due. On September 30, 2002, the Division notified the City, by letter, that it had not changed its position and that the letter of that date constituted final agency action, to the effect that the Division was maintaining its claim that the City owed the contribution payments at issue. Rule 60S-1.002(2), Florida Administrative Code, provides that the Division "shall deny membership" in the FRS to any employee who does not comply with statutory requirements for membership or requirements for membership set forth in Chapter 60S, Florida Administrative Code. In addition to Rule 60S- 1.0057(3)(b)1, Florida Administrative Code, Rule 60S-1.002(2), Florida Administrative Code also requires an employee to file a form FRS-M10 with the Division for enrollment into the FRS. The Division has admitted that the City does not have to make FRS contributions for employees who are not me member of the FRS. Within a week after Sallee was hired by the City, the City's Finance Director and Assistant Finance Director resigned their positions. According to witness Linda Stilson, during the thirteen months from when Sallee was hired on June 7, 1999, until July 7, 2000, the date he completed and filed with the Division a form SMS-3 (electing not to be a participant in the FRS) the City hired and lost another finance director; hired another finance director who left in October of 2000; hired and lost another assistant finance director; and hired Ms. Stilson as assistant finance director on May 25, 2000. It was Ms. Stilson who discovered that Mr. Sallee had not been enrolled in the FRS. Although the Division put on testimony that the City had been sent notices of the general requirements for enrollment in the FRS, there was no testimony that the City had actually received such notices prior to Mr. Sallee's hiring. Rule 60S- 3.011(2) provides for the assessment of delinquent fees for FRS contributions which have not been timely made; however, Florida Administrative Code Rule 60S-3.011(4) allows the Division to waive delinquent fees because of exceptional circumstances beyond an employer's control.
The Issue Whether Petitioner, who was convicted of three felony counts in federal court, must forfeit his rights and benefits under the Florida Retirement Systems (FRS), pursuant to Section 112.3173, Florida Statutes (2006).1 Whether Petitioner's conviction in U.S. District Court in the underlying criminal case is not final because a petition for writ of habeas corpus, based upon ineffective assistance of trial counsel, is pending in the U.S. District Court.
Findings Of Fact Based on the joint exhibits and joint stipulation of facts submitted by the parties, the following findings of fact are made: The Division of Retirement (Respondent) is charged with the responsibility of managing, governing, and administering the FRS on behalf of the Department of Management Services. The FRS is a public retirement system, as defined by Florida law. As such, Respondent's proposed action regarding the forfeiture of Petitioner's rights and benefits under the FRS are subject to administrative review. Petitioner was formerly employed by the Charlotte County Sheriff's Department as a deputy sheriff. Petitioner retired from the aforesaid employment and began receiving FRS benefits in March of 2003. Petitioner is a special risk class member of the FRS. On May 28, 2003, Petitioner was charged by Incident in the U.S. District Court for the Middle District of Florida, Fort Myers Division, in case number 2:03-cr-00065, with (1) One Count of Deprivation of rights under color of law, in violation of 18 U.S.C. Section 242; (2) One Count of engaging in misleading conduct, in violation of 18 U.S.C. Section 1512(b)(3); and (3) One Count of making a false statement, in violation of 18 U.S.C. Section 1001. On September 18, 2003, a Superseding Indictment was entered charging the same offenses. Count One of the Superseding Indictment, dated September 18, 2003, provides: On or about May 21, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, while acting under color of the laws of the State of Florida, did willfully deprive C.G., a juvenile, resulting in bodily injury to C.G. and did thereby willfully deprive C.G. of the right preserved and protected by the Constitution of the United States not to be deprived of liberty without due process of law, which includes the right to be secure in his person and free from the intentional use of unreasonable force by one acting under color of law. All in violation of Title 18, United States Code, Section 242. 18 U.S.C. Section 242 provides, in relevant part: Whoever, under color of any law, . . . willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, that are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more that one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both. . . . Count Two of the Superseding Indictment provides: On or about May 22, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, did knowingly engage in misleading conduct toward another person, with intent to hinder, delay or prevent the communication to a law enforcement officer of information relating to the commission or possible commission of a Federal offense, namely, Deprivation of Rights Under Color of Law, as charged in Count One of this Indictment, by submitting to Sergeant Jerry White of the Charlotte County Sheriff's Department an incomplete and inaccurate statement regarding the arrest on or about May 21, 2002, of C.G., a juvenile. In violation of Title 18, United States Code, Section 1512(b)(3). 18 U.S.C. Section 1512(b)(3) provides, in relevant part: (b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to -- * * * (3) hinder, delay, or prevent the communication to a law enforcement officer . . . of information relating to the commission or possible commission of a Federal offense . . .; Shall be fined under this title or imprisoned not more that ten years, or both. Count Three of the Superseding Indictment provides: On or about October 4, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, did knowingly and willfully make a false and fictitious statement and representation of material fact in a matter within the jurisdiction of the Federal Bureau of Investigation, an agency of the United States, in that the defendant stated and represented while being interviewed by agents of the Federal Bureau of Investigation, that on or about May 21, 2002, prior to pushing C.G., a juvenile, to the ground, the defendant threw his handgun into the window of his car, whereas the defendant then knew that on or about May 21, 2002, he did not throw his handgun into the window of his car prior to pushing C.G., a juvenile, to the ground. In violation of Title 18, United Stated Code, Section 1001. 18 U.S.C. Section 1001 provides, in relevant part: Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -- falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; Shall be fined under this title, imprisoned not more that 5 years . . . or both. The charges contained in the Superseding Indictment were committed prior to Petitioner's retirement under the FRS. On December 10, 2003, a jury returned a verdict of guilty of all three counts in the Superseding Indictment. On March 12, 2004, the Amended Judgment in a Criminal Case was entered on the aforesaid verdict, by the Honorable Anne C. Conway, United States District Judge. Therein, Petitioner was adjudicated guilty of all counts charged in the aforesaid superseding indictment. Petitioner was sentenced to a term of imprisonment in the custody of the United States Bureau of Prisons. Petitioner appealed his conviction and in an opinion issued on May 23, 2005, the U.S. Court of Appeals for the Eleventh Circuit, in case number 04-11545, affirmed the aforesaid judgment in part, vacated the same in part, and remanded the case to the District Court. See United States v. Henderson, 409 F.3d. 1293 (11th Cir. 2005), certiorari denied, 126 S.Ct. 1331 (2006). The Circuit Court issued its mandate on July 26, 2005. On May 3, 2006, a Judgment on Remand in a Criminal Case was entered by the District Court on the aforesaid verdict, wherein Petitioner was again adjudicated guilty of all counts charged in the aforesaid Superseding Indictment and was re- sentenced. An appeal was again taken and in an opinion issued on December 22, 2006, the U.S. Court of Appeals for the Eleventh Circuit, in case number 06-12816, affirmed the aforesaid judgment on remand. See United States v. Henderson, 211 Fed. Appx. 919, 2006 U.S. App. LEXIS 31565 (11th Cir. 2006). The Circuit Court issued its mandate on January 22, 2007. On July 24, 2006, Petitioner filed a Petition for Writ of Habeas Corpus and Motion to Vacate and Set Aside Sentence in the U.S. District Court for the Middle District of Florida, in case number 2:06-cv-00373. Said Petition and Motion are now pending before the U.S. District Court (M.D. Fla.). On March 19, 2007, Petitioner received the Notice of Action to Forfeit Retirement Benefits signed by Sarabeth Snuggs, State Retirement Director, by certified letter, dated March 15, 2007. The letter advised Petitioner of the proposed agency action to forfeit his FRS rights and benefits as a result of the above referenced conviction. Petitioner timely requested a formal hearing before an Administrative Law Judge to challenge the proposed agency action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order forfeiting Petitioner's rights and benefits under the FRS. DONE AND ENTERED this 10th day of September, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 September, 2007.
Findings Of Fact At all times relevant to this matter, Respondent, Paul Meloy, Sr. (Meloy), was Volunteer Fire Chief of the Fire Protection and Rescue District for Alva, Florida. As such, he was a "public officer" of an "agency" within the meaning of Sections 112.312(2) and 112.313(1), Florida Statutes. Meloy helped to establish a volunteer fire department in the rural community of Alva, Florida in 1973. Meloy was selected as the volunteer fire chief. In 1976, the Alva Fire Protection and Rescue Service District (District) was established. The firefighting equipment and vehicles were originally located in Meloy's garage, where he maintained an automotive repair shop. Meloy received a fixed reimbursement from the District each month for the use of his garage and for repair services which he rendered for the District. In approximately 1984, Meloy took a 40-hour volunteer firefighting course and became certified as a volunteer firefighter. Full-time firefighters were required to complete a 280-hour firefighting course to become certified as firefighters pursuant to Section 633.35, Florida Statutes. Meloy never took the 280-hour course and has never been a state certified fire fighter pursuant to Section 633.35, Florida Statutes. In 1988, the District joined the State of Florida Retirement System (FRS). At that time the District employed four full-time firefighters and a part-time secretary. Meloy worked part-time as the administrator for the District, but did not draw a salary but continued to receive remuneration in the form of the monthly reimbursement for expenses. The full-time firefighters were enrolled in the FRS in 1988 as special risk members, which would allow them to retire at an earlier age than regular members of the FRS and with greater benefits. In June, 1990, Meloy was interviewed by an investigator from the Florida Commission on Ethics (Commission) concerning an Ethics Complaint unrelated to the complaint filed in the instant case. Meloy told the investigator that he was not receiving a salary from the District, but that he was receiving reimbursement for expenses. Additionally, he told the investigator that he was not certified to be a full-time professional firefighter. In 1990, Connie Bull, was employed as a part-time secretary for the District. Until the District received a letter from the Commission explaining that part-time employees should be enrolled in the retirement system, neither Ms. Bull nor Meloy was aware that part-time employees filling established positions were to be enrolled in the retirement system from the date of their employment. Ms. Bull called the Division of Retirement (Division) which is the agency responsible for administering the FRS. She talked with Ira Gaines concerning the requirement for the enrollment of part-time employees. Ira Gaines is the retirement services representative with the Division who is responsible for determining eligibility for members in the special risk plan of the FRS. Neither Ms. Bull nor Mr. Gaines recalls any discussion they may have had concerning certification requirements for enrollment in the special risk class. Ms. Bull obtained enrollment forms from the Division. She and Meloy filled out and signed the enrollment forms. The form Ms. Bull used for her enrollment was for regular membership. The form used by Meloy was for enrollment in the special risk plan. On September 22, 1990, Meloy represented on his enrollment form that he was a firefighter certified, or required to be certified, by the Bureau of Fire and Training and that he was the supervisor or command officer of special risk members whose duties included on the scene fighting of fires. Additionally, Meloy in his capacity as fire chief certified that his position meets the criteria for special risk membership in accordance with Section 121.0515, Florida Statutes, and Florida Retirement System Rules, and he was certified or required to be certified in compliance with Section 943.14 or Section 633.35, Florida Statutes. When he was completing the enrollment form, he told Ms. Bull that he knew that he was not certified. Meloy testified in his defense that when he signed the application form that he knew that he was not a certified full-time firefighter and that he knew that special risk members were required to be certified. Meloy stated that by signing the application he was acknowledging that special risk members were required to be certified not that he was certified. Having judged the credibility of Meloy, I find that Meloy's testimony is not credible. Ms. Bull sent the executed enrollment forms to the Division on October 17, 1990, with a cover letter stating that she and Meloy had worked for the District for some time on a part-time basis, but were unaware that as part-time employees they should have previously have been enrolled in the retirement system. In either 1990 or 1991, after he had executed the enrollment form, Meloy began receiving a salary from the District instead of reimbursement for expenses. In January, 1991, the District purchased back retirement benefits for Meloy from August, 1985 through June, 1988 for $4,207.97. Sometime after the enrollment forms were submitted and Meloy had been enrolled in the FRS, Ira Gaines and Meloy discussed Meloy's certification. Meloy told Mr. Gaines that he had taken a course which certified him as a firefighter. Meloy did not tell Mr. Gaines that he was a firefighter certified pursuant to Section 633.35. Meloy sent Mr. Gaines a copy of a letter dated September 16, 1991, from the Department of Insurance which stated that Meloy had held a Certificate of Competency entitled Volunteer Basic since July 11, 1984. Meloy did not qualify for special risk membership in the FRS. In May, 1992, Meloy was interviewed by an investigator for the Commission concerning the allegations in the Ethics Compliant which had been filed against Meloy. Meloy told the investigator that he knew that the enrollment application which he signed required that the employee had to have taken the 280-hour course to be eligible for the special risk class. By letter dated June 29, 1992, the Division notified Meloy that his membership in the FRS and the Florida Retirement Special Risk Class was being terminated. The grounds for termination were that Meloy had been receiving payments for expenses and not compensation and that he was not certified in compliance with Section 633.35, Florida Statutes. Meloy did not appeal the Division's decision. If Meloy had been allowed to remain as a special risk member in the FRS, he would have been eligible to draw annually at least $2,024.92 in special risk benefits beginning as early as August, 1995. There was no evidence presented that established that Mr. Meloy had anything to do with Assistant Volunteer Fire Chief Brent Golden's application, membership, or retention of any benefits from the FRS and the parties so stipulated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Paul Meloy, Sr. violated Section 112.313(6), Florida Statutes, as it relates to the allegations concerning his retirement benefits but not as to the retirement benefits of the Assistant Fire Chief, imposing a civil penalty of $2,024.92, and issuing a public censure and reprimand. DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 8th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5984EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact Paragraph 1: Accepted. Paragraph 2-4: Accepted in substance. Paragraph 5: Accepted. Paragraphs 6-7: Rejected as unnecessary detail. Paragraphs 8-12: Accepted in substance. Paragraph 13: The first, third, and fourth sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. In practice both Mr. Tiner and Meloy supervised the firefighters during on-the-scene fighting of fires. The last sentence is rejected as irrelevant to the extent that Meloy listed all the duties that he was actually performing for the fire department. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. There was no evidence presented to show that Meloy knew that the Commissioners and not he should have executed the enrollment form on behalf of the employer. Paragraphs 16-17: Rejected as subordinate to the facts actually found. Paragraph 18: Rejected to the extent that it implies that Meloy took no steps to seek help from the Division. He did direct Ms. Bull to call the Division which she did. Paragraph 19: Rejected as subordinate to the facts actually found. Paragraphs 21-22: Accepted in substance. Paragraph 23: Accepted in substance except as to the amount. 13. Paragraphs 24-25: Rejected as constituting argument. Respondent's Proposed Findings of Fact 1. Paragraph 1: Rejected as constituting a conclusion of law. COPIES FURNISHED: Stuart F. Wilson-Patton Advocate For the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 John H. Shearer, Jr., P.A. Post Office Box 2196 Fort Myers, Florida 33902-2196 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
Findings Of Fact Petitioner, John F. Morack, is a member of the Teachers Retirement System (TRS). The TRS is administered by respondent, Department of Administration, Division of Retirement (Division). On April 18, 1988, petitioner began working for a new employer and concurrently filled out an application form to enroll in the Florida Retirement System (FRS), a plan also administered by the Division. By letter dated June 27, 1988, the Division, through its chief of bureau of enrollment and contributions, Tom F. Wooten, denied the request on the ground Morack failed to qualify for such a transfer. Dissatisfied with the agency's decision, Morack initiated this proceeding. Petitioner first enrolled in the TRS on September 18, 1970, when he began employment as a dean at Broward Community College. At that time, he had no option to enroll in any retirement program except the TRS. Under the TRS, an employee did not have to make contributions to social security and earned "points" for calculating retirement benefits at a rate of 2% for each year of creditable service. In contrast, under the FRS, which was established in late 1970, members earned benefits at a rate of only 1.6% per year but were participants in the social security program. Finally, a TRS member could not purchase credit for wartime military service unless he was an employee at the time he entered the military service and was merely on a leave of absence. On the other hand, an FRS member could purchase credit for military service after ten years of creditable service as long as such military service occurred during wartime. When the FRS was established in late 1970, members of the TRS were given the option of transferring to the newly created FRS or remaining on TRS. Morack executed a ballot on October 15, 1970 expressing his desire to remain on the TRS. In November 1974, the Division offered all TRS members an open enrollment period to change from TRS to FRS. Morack elected again to remain on the TRS. In the latter part of 1978, the Division offered TRS members a second open enrollment period to switch retirement systems. On November 21, 1978, Morack declined to accept this offer. On January 1, 1979 Morack accepted employment with the Department of Education (DOE) in Tallahassee but continued his membership in the TRS. He remained with the DOE until July 1981 when he accepted a position in the State of Texas. However, because Morack intended to eventually return to Florida, he left his contributions in the fund. Approximately two years later, petitioner returned to Florida and accepted a position at Florida Atlantic University (FAU) in Boca Raton as assistant vice president effective July 11, 1983. About the same time, he prepared the following letter on a FAU letterhead. To Whom it May Concern: This is to indicate that I elect remaining in TRS rather than FRS. (Signature) John F. Morack The letter was received by the Division on July 19, 1983, and the enrollment form was processed on November 2, 1983. Although Morack stated that he was told by an FAU official that he could not transfer plans at that time, there is no competent evidence of record to support this claim since the testimony is hearsay in nature. On November 18, 1985, Morack requested the Division to audit his account for the purpose of determining how much it would cost to purchase his Korean War military service. On January 24, 1986, the Division advised Morack by memorandum that because he had "no membership time prior to (his) military service, that service is not creditable under the provisions of the Teachers' Retirement System." During the next two years Morack requested two audits on his account to determine retirement benefits assuming a termination of employment on July 31, 1987 and June 30, 1988, respectively. On April 14, 1988, Morack ended his employment with FAU and began working on April 18, 1988, or four days later, at Palm Beach Junior College (PBJC) as construction manager for the performing arts center. When he began working at PBJC he executed Division Form M10 and reflected his desire to be enrolled in the FRS. As noted earlier, this request was denied, and Morack remains in the TRS. The denial was based on a Division rule that requires at least a thirty day break in service with the state in order to change retirement plans after returning to state employment. Because Morack's break in service was only four days, he did not meet the requirement of the rule. At hearing and on deposition, Morack acknowledged he had several earlier opportunities to transfer to the FRS but declined since he never had the benefits of the FRS explained by school personnel. As retirement age crept closer, petitioner began investigating the differences between the TRS and FRS and learned that the latter plan was more beneficial to him. This was because the FRS would allow him to purchase almost four years of military service, a higher base salary would be used to compute benefits, he could participate in social security, and there would be no social security offset against his retirement benefits. Also, petitioner complained that school personnel were not well versed in retirement plans and either were unaware of alternative options or failed to adequately explain them. As an example, Morack points out that when he returned from Texas in 1983 he was not told by FAU personnel about the change in the law now codified as subsection 121.051(1)(c). Finally he thinks it unfair that the Division counts four days employment in a month as a full month's creditable service for computing benefits but will not count his four days break in service in April 1988 as a full month for computing the time between jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to change retirement plans be DENIED. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4183 Respondent: 1. Covered in finding of fact 6. 2-4. Covered in finding of fact 7. 5. Covered in finding of fact 10. 6-7. Covered in finding of fact 11. Covered in findings of fact 8 and 11. Covered in findings of fact 1 and 10. COPIES FURNISHED: Mr. John F. Morack 10474 Green Trail Drive Boynton Beach, Florida 33436 Stanley M. Danek, Esquire 440 Carlton Building Tallahassee, Florida 32399-1550 Andrew J. McMullian, III State Retirement Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Adis Maria Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire general Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Petitioner's position of employment with the Respondent was properly reclassified from Career Service to Selected Exempt status.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Dr. Edouard is a physician who was employed by the Department as the Senior Human Services Program Manager for the Miami-Dade County Childhood Lead Poisoning Prevention Program. This program operates under a grant from the federal Centers for Disease Control, and Dr. Edouard worked out of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department. Prior to July 2001, Dr. Edouard's position was classified as a Career Service System position. As Senior Human Services Program Manager, Dr. Edouard supervised a staff of four to five persons, including an epidemiologist, an environmental specialist, a nurse, and a secretary specialist, and she spent the majority of her time supervising these employees: Dr. Edouard prepared the work assignments for her staff; trained the members of her staff; monitored the progress of the staff members in completing their assignments; prepared evaluations for each staff member and made recommendations for improvement; approved or disapproved requests for leave; had the authority to recommend members of her staff for disciplinary action; had the authority to recommend salary increases and/or to recommend promotion for members of her staff; and prepared the budget for her program grant. Dr. Edouard was considered by her supervisor to be a very creative, hardworking, dedicated healthcare professional who established Miami-Dade County's Childhood Lead Poisoning Prevention Program. In July 2001, Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position because the position included substantial supervisory responsibilities. After the reclassification, the formal job description for the Senior Human Services Program Manager position remained the same in all material respects as the job description for the Career Service System position. Dr. Edouard was terminated from her position several months after it was reclassified. At the time Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position, there were other supervisory employees of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department whose positions were not reclassified but remained Career Service System positions. These employees were registered nurses serving as nursing program specialists.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision to reclassify the position of employment with the Department of Health formerly held by Marie-Michelle Edouard be sustained. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 16th day of April, 2004.
The Issue Whether Petitioner's employment as Executive Director of the State Commission on Local Government during the period July 1972 - December 1973 should be credited to his retirement account, and whether he should be allowed to purchase such service under Chapter 121, Florida Statutes. At the hearing, Petitioner testified in his own behalf and submitted three exhibits in evidence. Respondent did not call any witnesses or submit documentary evidence.
Findings Of Fact Petitioner William James Tait, Jr. was employed by the State Legislature in 1972 during its regular session. On March 9, 1972, Chapter 72- 44, Laws of Florida, was enacted which created a Commission on Local Government for a period of two years for the purpose of advising the Governor and Legislature on appropriate measures to improve local government in Florida. The Act directed the Commission to employ and set the compensation of an executive director who in turn could employ and set the compensation of the Commission staff. The Act further provided that employees of the Commission would be paid for travel and per diem as provided by law. The express legislative intent was that the Commission was a temporary study commission. Section 9 of the Act provided in part as follows: . . . The Commission is not an agency within the legislative intent of chapters 216, 282, and 287, Florida Statutes. The selection of employees, their qualifications and compensation, and the establishment of policies relating to their work, and the payment of expenses of the commission, shall be as determined by the com- mission. In mid-June 1972, Petitioner was employed as the Commission's Executive Director and served full time in that capacity from July 1, 1972 through December 19, 1973. From January 1974 through June 1974, Petitioner served as Executive Director of the Commission on a half-time basis in addition to employment with the Department of Administration. During the course of his employment as Executive Director, Petitioner was paid from "Other Personal Services" appropriations, as were the other Commission staff employees. Petitioner made no contributions to the Florida Retirement System because he was being paid as an "Other Personal Services" employee. Support services for the Commission were received from the Joint Legislative Management Committee. The Commission terminated by Section 3 of Chapter 72-44 on July 1, 1974. (Testimony of Petitioner, Petitioner's Exhibit 1) By letter dated April 10, 1981, to the State Retirement Director, Petitioner requested a decision as to whether he could purchase.prior service credits in the Florida Retirement System for the period during which he had served as Executive Director of the Commission on Local Government. By letter of May 12, 1981, the State Retirement Director informed Petitioner that he was not considered eligible under the Florida Retirement System to purchase and receive credit for the period of service in question because his compensation was from Other Personal Services during his employment with the Commission. Petitioner thereafter requested a Section 120.57, F.S., administrative hearing on the denial of his request. (Testimony of Petitioner, Petitioner's Exhibits 2-3)
Recommendation In view of the foregoing findings of fact and con- -clusions of law, it is RECOMMENDED that Petitioner's request be DENIED. DONE and ENTERED this 30th day of November, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 30th day of November, 1981. COPIES FURNISHED: Augustus D. Aikens, Jr., Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32301 William James Tait, Jr. 809 Devon Drive Tallahassee, Florida 32308 Andrew J. McMullian, III Director, Division of Retirement Department of Administration Cedars Executive Center 2639 North Monroe Street Suite 2O7C - Box 81 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993).
Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993). Respondent employed Petitioner, a black female, in March of 1980 as a Clerk-Typist II. Over the years, Petitioner worked in the position of Secretary II, Clerk-Typist Specialist, and Secretary Specialist. Petitioner held the position of Administrative Secretary when she filed her Petition for Relief in September of 1996. At the time of the hearing, Petitioner was working as a Staff Assistant. In September of 1992, Otto Hough became the Accounting Services Director in Respondent’s Office of Financial Management. He was responsible for several sections including General Accounting, Accounts Receivable, Accounting Systems and Procedures, and Contract Administration. The Office of Financial Management lost eleven (11) of eighty-eight (88) employees due to reorganization of the agency in the early months of 1993. One of the positions that Respondent eliminated was the Staff Assistant position assigned directly to Mr. Hough’s office. As Accounting Services Director, Mr. Hough had the authority to recommend position reclassifications and pay additives for employees in the Office of Financial Management. One of his initial objectives was seek higher pay classifications for as many positions as possible. In 1993, Petitioner worked as an Administrative Secretary in the General Accounting section of Respondent’s Office of Financial Management. Her direct supervisor was the Finance and Accounting Director, a position held by a career service employee. Mr. Hough developed a job reclassification package that impacted about sixty (60) full time positions in the spring of 1993. As a part of that package, Mr. Hough recommended an upgrade of Petitioner’s position from Administrative Secretary to Staff Assistant. He made similar requests for two other Administrative Secretaries. Linda Ball, a black female, worked as an Administrative Secretary in the Accounts Receivable section. Rita Cook, a white female, worked as an Administrative Secretary in the Accounting Systems and Procedure section. The agency’s Comptroller, Personnel Office, and Program Advisory Council approved Mr. Hough’s recommendations to reclassify most of the positions. However, they declined to upgrade the Administrative Secretary positions because the agency’s rules required a select exempt employee to supervise Staff Assistants. In this case, a career service employee supervised all three Administrative Secretaries. Mr. Hough advised the Administrative Secretaries that he would seek a special pay increase for them. Linda Ball subsequently vacated her position as an Administrative Secretary when she transferred to Respondent’s office in Tampa. Her transfer left only Petitioner and Rita Cook occupying the positions of Administrative Secretary. In late 1993 or early 1994, Mr. Hough physically relocated Ms. Cook to his work area. He moved her work station into his office because he lacked secretarial support. At the time, he was officially serving as Accounting Services Director. However, he also acted as Accounting Staff Director for Revenue Management, Financial Support Director, and Comptroller. Except for the position of Accounting Services Director, all of these positions were vacant from March through June of 1994. After her relocation, Ms. Cook continued to occupy the position of Administrative Secretary in the Accounting Systems and Procedure section. She performed eighty (80) percent of her work for that section. The rest of her time was spent providing secretarial support to Mr. Hough. Ms. Cook’s relocation made her position eligible for reclassification from Administrative Secretary to Staff Assistant because Mr. Hough was a select exempt employee. Petitioner had more seniority in time than Ms. Cook. Nevertheless, Ms. Cook was more qualified than Petitioner to work in the office of the Accounting Services Director because of her prior experience in the Accounting Systems and Procedure section. Ms. Cook possessed more expertise and knowledge about Respondent’s district offices. She was familiar with the interaction between the district fiscal offices and the central office in Tallahassee. Mr. Hough was aware that Petitioner did not want to relocate from General Accounting to Accounting Systems and Procedure before he relocated Ms. Cook to his office. In February and May of 1994, Mr. Hough gave Petitioner the opportunity to move upstairs to work in the Accounting Systems and Procedures section. A lateral transfer to a position in that office would have allowed Petitioner to gain knowledge and experience similar to Ms. Cook’s. However, Petitioner declined the offer. She decided to stay downstairs in General Accounting and wait for a position reclassification or a special pay increase. The work environment in the General Accounting section was less stressful than the Accounting Systems and Procedures section. The latter had the additional pressure of interacting with the Deputy Secretary of Administration and Budget. It also was involved with the flow of information to the Legislature. Toward the end of the 1993-1994 fiscal year, Respondent’s Deputy Secretary of Administration selected Glenda Guess as the new Comptroller. The Deputy Secretary directed Mr. Hough to arrange for Ms. Guess to have the level of staff that she was expecting when she came "on board." Pursuant to this directive, Mr. Hough realigned the duties of staff in the offices of the Comptroller and the Accounting Services Director. On June 8, 1994, Mr. Hough approved a reclassification of Ms. Cook’s position from Administrative Secretary to Staff Assistant. Mr. Hough signed the Request for Payroll Action form as the Respondent’s Acting Comptroller. On June 10, 1994, Glenda Guess became Respondent’s Director of Financial Management/Comptroller. The "promotion due to reclassification" resulted in a five (5) percent pay raise for Ms. Cook. She began to devote one hundred (100) percent of her time to duties within the office of the Accounting Services Director. In 1994 and 1995, the agency was in the process of decentralizing its functions. In the short run, this process required the central office to perform additional functions until the district offices could assume those responsibilities. In 1995, Respondent closed the Jacksonville office, phased out twenty-nine (29) positions, and brought the child welfare voucher system into General Accounting at the Tallahassee office. When this change occurred, Petitioner assumed the additional duty of controlling the inflow of documents for the child welfare vouchering system from all the districts. As Petitioner’s responsibilities increased, she and Mr. Hough discussed the possibility of changing her classification from Administrative Secretary to some type of accounting position. However, Petitioner preferred to remain in the secretarial/clerical niche and not seek a position with an accounting orientation. In April of 1995, Mr. Hough sent Ms. Guess a memorandum requesting a ten (10) percent "pay additive for additional duties" for Petitioner. Ms. Guess denied the request because it was not in the correct format. Additionally, she thought a three-to-five percent increase was a more appropriate raise for employees assuming additional duties. At that time, Respondent’s ability to provide pay increases for additional duties was a new concept. Ms. Guess was not aware of a precedent for a ten (10) percent pay increase for additional duties. In May of 1995, Mr. Hough revised Petitioner’s position description to reflect Petitioner’s additional duties. On May 16, 1995, Mr. Hough again requested a ten (10) percent pay additive for Petitioner. He felt the salary increase was justified because Petitioner handled the Child Welfare Vouchering System input documents, as well as the reconciliation documentation from the districts each month. According to Mr. Hough, these additional duties were beyond the scope of Petitioner’s normal tasks as an Administrative Secretary. On May 25, 1995, Petitioner wrote Mr. Hough a memorandum to advise that she would not be satisfied with a three-to-five percent raise. She demanded a ten (10) percent salary increase. Petitioner sent Ms. Guess a copy of the memorandum. On May 31, 1995, Ms. Guess properly denied the second request for Petitioner’s salary additive for the following reasons: (a) the additional duties were of a clerical nature; (b) the additional duties did not require Petitioner to work overtime except for her involvement in year-end closing; (c) Petitioner’s salary was in line with other clerical positions in the Office of Financial Management; (d) funds for pay increases were insufficient to raise the salary of every employee in the Office of Financial Management who were performing additional duties; and (e) a raise of three-to-four percent was more in line with raises given to employees in Respondent’s Office of General Services for assuming additional duties. On or about June 25, 1995, Ms. Guess learned that funds were available for pay increases based on added duties and/or sustained superior achievement. The next day, Ms. Guess sent the Deputy Secretary for Administration a request for pay increases for the following: (a) Melissa Pugh, white female, 7.5 percent for sustained superior achievement and added duties; Beverly Smith, white female, 5 percent for added duties; Kimmie Canfield, white female, 10 percent for added duties and superior performance; (d) Gail Kruger, white female, 5 percent for superior performance; (e) Cindy Philips, white female, 5 percent for superior performance; (f) Barbara Huskey, white female, 5 percent for superior performance; (g) Sonja Bradwell, black female, 5 percent for superior performance; and (h) Petitioner, 5 percent for additional duties. Ms. Canfield worked for Respondent as Staff Assistant to the Financial Support Director for approximately seven months as of June 26, 1995. Her 10 percent raise was due in part to her salary being substantially below the salary of other support staff. Petitioner’s salary remained higher than Ms. Canfield’s even though she was in a more responsible position. Petitioner’s performance evaluations for 1994-1995 and 1995-1996 indicate that she was an above-average employee. She performed her duties in a timely manner with little or no supervision. She willingly assisted her co-workers when they needed help. However, Petitioner’s performance was not superior. Therefore, Ms. Guess properly did not consider awarding Petitioner more than a five (5) percent pay increase for sustained superior performance in June of 1995.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed in this case. DONE AND ORDERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997. COPIES FURNISHED: Curley R. Doltie, Esquire Post Office Box 1325 Tallahassee, Florida 32302 Sandra R. Coulter, Esquire Department of Children and Family Services Building 1 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dana Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent Employer is guilty of an unlawful employment practice, pursuant to Chapter 760, Florida Statutes, by its failure to promote Petitioner, an African-American female, and its promotion of a Caucasian female who was less qualified.
Findings Of Fact Petitioner is an African-American female. Respondent School Board of Lake County, Florida, is the corporate body politic responsible for the administration of schools within the Lake County School District. At all times material, Paul Haskins (Caucasian male) was the supervisor of the Warehouse and Grounds Department. In that capacity, he supervised the functions of Plant Operations, Central Warehouse, Grounds, and Property Control, including the Property Control Specialist position. Mr. Haskins has been employed with the School Board for approximately 33 years. For the past 20 years of his employment with the School Board, Mr. Haskins has served in a supervisory capacity. In that position, he has the authority to hire and fire employees under his supervision. Mr. Haskins made the decision to hire Jane Adams (a Caucasian female) for the Property Control Specialist position in 2003-2004. His hiring of Ms. Adams is the subject of Petitioner's charge of discrimination/Petition for Relief. In 1976-1977 Petitioner worked for the federal government at Robbins Air Force Base as a clerk typist, where she performed numerous duties at Pay Grade GS XI, Civil Service Supervisor. While at Robbins Air Force Base, Petitioner held the position of Shipping Clerk. In her last year at Robbins Air Force Base, she held a temporary position supervising four clerks. Petitioner continued work at MacDill Air Force Base, where she concluded her civil service career of over 10 years. During the course of her civil service experience, Petitioner was Custodian of Records, Classified Air Craft Designs. Immediately prior to being hired by Respondent, Petitioner worked in a clerical position for the City of Eustis, Florida. Petitioner has been employed with Respondent Lake County School Board for approximately 17 years. Petitioner was hired by Respondent in April of 1988, as a Maintenance Worker III. In 1992, Petitioner was promoted to the position of Fiscal Assistant II with Respondent's Maintenance Department. She continues to be employed in that capacity today. Petitioner has worked for Respondent in the capacity of Fiscal Assistant II for approximately 15 years. However, she has never worked under the supervision of Mr. Haskins and has never worked directly with Ms. Adams. The Fiscal Assistant II position is an accounting support position and does not require an accounting degree. The duties Petitioner performs as a Fiscal Assistant II include assisting and preparing the documents related to budgets and purchase orders in the maintenance department. She prepares orders for materials for that department. She maintains property for the department with respect to its locations, and if the materials have a value of over $1,000.00, Petitioner is responsible for in-putting the data in the SA 400 computer software system, which is Respondent's current financial network. Petitioner is very skilled in using the SA 400, but Petitioner's computer system work has been primarily office or secretarial work related to accounting for its four million dollar budget. By the date of hearing, Petitioner had completed over 30 semester hours at Lake-Sumter Community College in Leesburg, Florida, towards an Associate of Arts degree. The hearing occurred nearly two years after any date material to the promotion involved in this case. In December 2003, Darlene Elliot (Caucasian female), Respondent's Property Control Specialist, announced her retirement. The Property Control Specialist position operated under the umbrella of the Warehouse and Grounds Department, managed by Mr. Haskins. The opening was posted and advertised. The pay grade for the position was Level Eleven. Current School Board employees could apply for the upcoming vacancy simply by providing a letter of intent or completing an application for the position. Several applicants applied for the position. Petitioner submitted a letter of interest, along with her resume which detailed her qualifications and background for the position. Ms. Adams submitted only an application, which was not signed or dated. Several other employees from different departments also submitted their letters of intent for the Property Control Specialist position. Mr. Haskins unilaterally selected only six applicants to be interviewed. All the applicants selected to be interviewed were already employees of Respondent. Petitioner and Ms. Adams were among them. The six applicants interviewed were: Petitioner, Ms. Adams, Sonja Charlene Gore, Stephen Miller, Debra Parker, and Laura D. Sullivan. Of the applicants, both Ms. Gore and Petitioner are African-American, and both are Fiscal Assistants. The remainder of the applicants are Caucasian. All six applicants, with the exception of Mr. Miller, were female. Mr. Miller also was a Fiscal Assistant II, with a background in data processing and records keeping. He also had already earned an associate's degree. Ms. Sullivan was a Grounds Worker III with prior bookkeeping experience. Ms. Parker's experience is not clear. Petitioner's charge of discrimination initially stated an allegation of sex discrimination, but she did not pursue that claim at the disputed-fact hearing. The job description for the Property Control Specialist position listed the requisite job duties for that position. Among the requisite job duties were: performing audit and inventory procedures pursuant to state and federal statutes and pursuant to rules of the Auditor General; in- servicing each school's new property custodian and insuring correct records at each school; coordinating purchasing, bookkeeping, and warehouse and grounds maintenance with each school; tagging all new equipment; processing tags, titles and registrations on rolling stock; reconciling property records with expenditures; working with various auditors; preparing lists of equipment and rolling stock for insurance renewal each year; coordinating disposal of surplus equipment; and preparing and reviewing audit reports and dispositions to go to the School Board. The Property Control Specialist job description also sets forth the necessary knowledge and skills for that position. Among the knowledge and skills listed are: knowledge of accounting procedures; knowledge of equipment used in schools; ability and desire to establish and maintain an amiable relationship with vendors and all School Board personnel; physically move student desks, chairs, and equipment from one cost center to another; ability to withstand extreme heat and cold for extended periods of time; ability to lift 30 lbs; and ability to walk, bend, stoop, and climb stairs. Also, a valid Florida Driver's License was required, and a high school diploma or a GED was preferred. The Property Control Specialist position was described as very physical. Many audits are performed in the summer, and much of the work is done out in the field, which can be very hot and dusty. Mr. Haskins, Beth Minnix (Caucasian female), and Barbara Harper (Caucasian female), participated in interviewing the six candidates selected for interviews. However, the selection of one of the interviewees to fill the position was made unilaterally by Mr. Haskins. The retiring Ms. Elliot had hurt feelings because Mr. Haskins did not make her a member of the interview team. During the six interviews, Ms. Minnix and Ms. Harper did not ask the interviewees questions, but they were encouraged to take notes and privately offer their opinions to Mr. Haskins on each of the applicants interviewed. They were also intended to serve as witnesses, in the event that Mr. Haskins needed them to recall an applicant's response. They were also intended to observe Mr. Haskins' conduct of the interviews. Ms. Adams has a high school education and has worked as a farm worker and a custodian. For 14 years she has been a grounds worker in Respondent's employ. She was familiar with all the schools in the District and had done heavy duty deliveries and pest control at most of them. She had covered for Ms. Minnix, Mr. Haskins' Purchasing Agent, during Ms. Minnix's two pregnancies and had been cross-trained by her in purchasing. Ms. Harper, Mr. Haskins' Fiscal Assistant, was also familiar with Ms. Adams' training, experience, and personality, because Ms. Adams had covered for Ms. Harper during Ms. Harper's vacation. At the time of the interviews, Ms. Adams had worked for the School Board for approximately 14 years, and her current primary function was pest control. She was initially hired in a custodial position. Five months later, she was promoted to the position of Grounds Worker III. At all times during her 14 years of employment with the School Board, she had worked under Mr. Haskins' supervision. Over that period of time, she had performed various duties such as "jack rabbit" mail courier to all the schools; general secretarial work; answering phones; filing; processing purchase and work orders; inventory and warehouse receiving; tagging inventory, property, and equipment; transferring property; performing custodial work; using the SA 400 computer system; inventorying and auditing of physical, tangible property; payroll; setting up new schools' physical plants; pest control; and supervision and direction of summer employees. A few of Ms. Adams' foregoing skills and functions had been performed under Ms. Elliot's direction. However, a lot of Ms. Adams' work for Ms. Elliott, which was directly that of the position she sought in 2003-2004, had occurred 10 years before the vacancy at issue. In approximately 1994, Mr. Haskins, who was always Ms. Elliot's supervisor, had given Ms. Elliot a choice of selecting either Ms. Adams or Ronnie Calloway to become her assistant Property Control Specialist. Ms. Elliot had selected Ronnie Calloway (an African-American male) over Ms. Adams (a Caucasian female). In Ms. Elliot's view, Ms. Adams was not dependable, was consistently tardy in her arrival at work; and took off early from work. However, Ms. Elliot had no factual knowledge that Ms. Adams was abusing sick or annual leave. Indeed, there is affirmative evidence that Ms. Adams often left work early with permission to care for a sick husband. In Ms. Elliot's opinion, Mr. Calloway was an excellent worker in every respect, so she hired him. Ms. Elliot did no interviewing for the assistant position to which she promoted Mr. Calloway at that time. Mr. Calloway retired after approximately six years. His position was filled by another male (race unspecified). After Ms. Elliot hired Mr. Calloway as her assistant Property Control Specialist about 1994, Ms. Adams did much less work with property control. However, over the intervening years until 2003-2004, Ms. Adams had sporadically worked in the property control office for Ms. Elliot, helping her in some periods less than others. Race was not discussed during the interviews conducted by Mr. Haskins to replace Ms. Elliot or during any of the discussions among the interviewers regarding the candidates. Mr. Haskins asked the same initial questions of each applicant. Those questions were: (1) Tell me about yourself from school up to today's date, including education and employment; (2) Tell me what you know about the Property Control Specialist position; (3) Why are you applying for this position; (4) Explain a situation where you had a conflict and how you handled the situation; and (5) Tell me about your knowledge of all the various computer programs that you have used. After his initial six questions, Mr. Haskins then asked follow-up questions based upon each applicant's individual responses to the initial questions posed. Each applicant also was required to draft and type a letter on the topic of why s/he should be hired for the position. Ms. Harper administered that portion of the interview process to each of the interviewees in another room.1/ After the interviews, Mr. Haskins scored the applicants in the following nine categories, which he deemed important for the position: appearance; verbalization; knowledge; experience; technology skills; compatible with operations; physical demands per job description; written expression; and initiative. Mr. Haskins' scoring methodology was his own and had not been previously approved by Respondent's School Board or Human Resources Director. No standard criteria was used. No key for assigning scores was used. The assignment of points was at Mr. Haskins' will. No School Board requirement provided otherwise. Prior to the interviews, Mr. Haskins had knowledge of Ms. Adams' work performance for him over the whole of her employment. He had conducted evaluations of Ms. Adams' work performance each year. Each of his evaluations had complimented her positive attitude, her flexibility in the various tasks assigned to her, her ability to fill in wherever needed, or her initiative in enhancing her computer skills. Prior to conducting the interviews in December 2003, Mr. Haskins also had knowledge that Ms. Adams had a very good rapport with the school principals, custodians, and other personnel from working out in the schools, got on well with the other office staff, and had taken some computer classes. It is entirely possible, and, frankly, probable, that Mr. Haskins allowed his prior high opinion of Ms. Adams to color his rating of her interview sheet. However, there is no indicator that race or racial animus played any part in his scoring system or in his actual scoring of any interviewee. Indeed, Ms. Elliot (Caucasian female) and Chloe Womack (African-American female), both of whom testified on Petitioner's behalf, would not say they believed race affected Mr. Haskins' dealings with employees. They both testified that African-Americans were only hired by Ms. Haskins for outside jobs, and Ms. Womack testified that Fiscal Assistants like herself and Petitioner had always been discouraged from applying for work in the Grounds and Warehouse category by being told how dusty and physical it was.2/ However, Ms. Womack further testified that "the good old buddy" system was apparent in Mr. Haskins' office and that those who worked there, including Ms. Adams, probably got preferential treatment in promotions for that reason, as well as for having more inside knowledge of the jobs there. This belief that office preference or favoritism was the reason for promoting from within the Warehouse and Grounds Department or from the vicinity of Mr. Haskins' office also was expressed by other witnesses who had been applicants for the promotion in question. Ms. Elliot testified that she had no factual information that Mr. Haskins discriminated in hiring on the basis of race but that she felt he discriminated on the basis of whom he liked and disliked. She conceded she did not know how he came to like some people, and not others, and that she could not relate his dislikes specifically to race.3/ Mr. Haskins scored each applicant on a possible 100 points. He assigned total scores to the applicants as follows: Jane Adams 94; Charlene Gore 91; Stephen Miller 81; Petitioner 80; Dee Sullivan 78; and Debra Parker 65. Charlene Gore, an African-American female who received the second highest score of all applicants, testified that she did not feel that there was anything racially discriminatory about the selection process or the selection of Ms. Adams. Had she felt there were race discrimination, she would have complained about it. Ms. Adams, Ms. Gore, and Petitioner were scored by Mr. Haskins as follows: Adams Gore Petitioner (Caucasian) (African- (African- American) American) Appearance 10 10 10 Verbalization 8 10 8 Knowledge 10 8 5 Experience 15 10 10 Technology Skills 13 14 13 Compatible with Operations 10 9 8 Physical Demands per Job Description 10 10 10 Written Expression 8 10 9 Initiative 10 10 7 94 48. No weighting clearly in favor 91 of the Caucasian 80 candidate over the African-American candidates is evident in the foregoing scores rated by Mr. Haskins. Ms. Adams was rated highest, by comparison to the others, in the categories of knowledge, experience and compatible with operations. All three of these categories were ones in which Mr. Haskins had personally observed Ms. Adams over many years. Mr. Haskins testified that he considered a good attitude to be important for the Property Control Specialist position. He also looked for an individual who would fit in with the structure of his department. He explained that the nature of the position required the Property Control Specialist to possess the ability to work cooperatively with the other individuals in the department and in the School District. He wanted to select a person with "people skills" who had the demonstrated ability to handle conflict effectively and deal with school administrators regarding sensitive issues. Upon Mr. Haskins' inquiry during the interview, Petitioner cited as an example of handling conflict, an incident where another employee asked her to order supplies and she replied, "I can’t buy pencils, that’s not my job. I don’t do that. I buy trucks." This response caused Mr. Haskins concern that Petitioner would not be a good fit for the position. Her answer was confrontational, and Mr. Haskins had concerns with her willingness to multi-task and to be flexible in performing job duties. Mr. Haskins explained that the employees who work under him are often called upon to perform tasks that are technically outside their job description. Petitioner has been critiqued in a past evaluation by a different supervisor for her lack of ability to maintain composure when dealing with stressful situations with co-workers or vendors. However, Petitioner has been evaluated as improving in this regard. At one point during her interview, Petitioner's voice became elevated when describing a perception that the women in her department did not get along, and asserted that such a perception was not accurate. Petitioner became very loud and confrontational, and spoke about the topic for several minutes. This left a bad impression with the whole of the interview committee.4/ Mr. Haskins perceived Petitioner as lacking knowledge of what the Property Control Specialist position entailed, particularly in comparison to Ms. Adams, because when he asked Petitioner during the interview what she knew about the Property Control Specialist position, she replied, "You go out and tag property, I guess." Ms. Adams' response included a detailed explanation of the process and paperwork involved in the position she sought. Several of the applicants, including Petitioner, Ms. Gore, and Mr. Miller had experience as fiscal assistants. Experience as a fiscal assistant and working with budgets were not preferred criteria for Mr. Haskins and the remainder of his committee, nor did they feel such qualifications warranted any particular weight in considering the requirements for the Property Control Specialist position. Mr. Haskins selected Ms. Adams for the position. He felt Ms. Adams was the most qualified applicant, since she was familiar with many of the duties of a Property Control Specialist and had experience in performing them. He may have believed her experience under Ms. Elliot was greater than it actually was or not realized that much of her experience with Ms. Elliot was remote in time (see Findings of Fact 32 and 35), but among the relevant duties Ms. Adams had performed prior to the interviews were: taking inventory; tracing and reconciling any discrepancies in inventory; servicing property custodians; coordinating with schools; purchasing; bookkeeping; warehouse and grounds, and maintenance; tagging new equipment; transfer of equipment when cost centers separate, move, or disband; and working with various auditors. Mr. Haskins also had observed Ms. Adams perform receiving, accounts payable, work on the budget; other work involving accounts procedures and mathematical computations. He observed that she kept her secretarial and computer skills up-to-date and was very knowledgeable of all the equipment used in schools. Because of the physicality of her then-current job position, he felt Ms. Adams also had demonstrated the physical ability to lift 30 pounds, move equipment, and withstand extreme heat and cold. Ms. Adams also demonstrated the ability to make decisions and to work independently. She was familiar with the relevant computer program, the SA 400, and had been authorized to use it since 2000. Ms. Minnix and Ms. Harper agreed with Mr. Haskins' assessment of Ms. Adams as the most qualified applicant for the position. In an attempt to establish a pattern of racial discrimination by Mr. Haskins, Ms. Elliot testified that years prior to her retirement, Mr. Haskins had given her a choice of selecting whom she wanted to assist in her office and had approved her selection of Ronnie Calloway, an African-American male, to assist her instead of Jane Adams. (See Finding of Fact 33.) This does not pass muster as discrimination against African-Americans. Ms. Elliot then testified that on multiple occasions, several Caucasian male employees called Mr. Calloway "Shine;" that Mr. Haskins heard them; and that Mr. Haskins, himself, had referred to Mr. Calloway as "Shine." Mr. Haskins vehemently denied ever using that term. Mr. Haskins testified without refutation that he had overheard another employee use that term toward Mr. Calloway, and thereafter, in the presence of several other employees, he had reprimanded the employee for using the racially derogatory nickname. Mr. Calloway never reported any further problems to Mr. Haskins, so Mr. Haskins believed the problem with the nickname "Shine" had been resolved. Ms. Elliot conceded that Mr. Calloway previously told her he was not offended by the nickname, anyway. Likewise, to establish a pattern of racially disparate treatment, Ms. Elliot asserted that an African-American male who smelled of alcohol was fired, while three Caucasian males who smelled of some controlled chemical substance were not fired. Her evidence on this issue was not corroborated by anyone, and it was not clearly indicated what was known by Mr. Haskins or anyone else in management about any of the four men. Petitioner believed that Mr. Haskins did not select her for the Property Control Specialist position because of her race. She testified that she did not know of any African- American females that Mr. Haskins had ever hired; knew of only two African-American males he had hired; and believed that none of the African-American males Mr. Haskins had hired worked inside the office, as opposed to working in the warehouse or in the grounds. Petitioner admittedly was unaware of how many individuals Mr. Haskins had hired in the last 20 years, of how many African-Americans applied for open positions under Mr. Haskins' supervision or control during that time, or of any instance where Mr. Haskins hired a less qualified Caucasian candidate over a more qualified African-American candidate. The greater weight of the evidence demonstrates that Mr. Haskins has hired at least 20 African-Americans for positions under his supervision in the Warehouse and Grounds Department, including Petitioner's daughter for a summer job. The evidence also demonstrates that there were only three employees who actually worked in the office setting for the majority of the day. Of those positions, there was very little turnover. Caucasians have been hired to replace Caucasians recently. However, the credible evidence as a whole demonstrates that Mr. Haskins hired Ronnie Calloway as an assistant Property Control Specialist in the office upon Ms. Elliot's request, and hired Archie Mitchell, who worked in the warehouse. Both were African-American males. One element of office turnover appears to have been Bernice Odums, an African-American female fiscal assistant, who voluntarily took early retirement six months to a year after a reorganization placed her in Mr. Haskins' office, under the supervision of, or at least in close contact with, Ms. Harper and Ms. Minnix. Ms. Elliot and Ms. Womack credibly represented that Ms. Odums was desperately unhappy due to her relocation and the atmosphere in the Warehouse and Grounds Office. However, whether Ms. Odums' extreme unhappiness was the result of the physical move of her office, was the result of being overseen by others as opposed to being in charge of fiscal matters in the way she had been previously, was the result of having a mere secretary with no prior fiscal experience placed over her as a superior, was the result of personality problems among the women, was the result of racial animus, or was the result of something else entirely is simply not clear. No racial reason for Ms. Odums' tearful retirement was clearly proven.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 13th day of April, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 13th day of April, 2006.
The Issue Whether Petitioner, Betty E. New, is entitled to membership in the senior management services class (SMSC) of the Florida Retirement System (FRS) from July 1, 2004, through her retirement in 2015.
Findings Of Fact Petitioner, on February 1, 2002, was employed by the Pinellas County Board of Commissioners (Pinellas County) as court counsel. In her position as court counsel, Petitioner, through an inter-local agreement, was under the supervision and control of the chief judge of the Sixth Judicial Circuit, but her salary and benefits were paid by Pinellas County. Specifically as to benefits, Pinellas County was solely responsible for paying employer contributions to Petitioner’s state retirement account. When initially hired as court counsel, the position was designated in the Regular Class of the FRS. In March of 2003, Pinellas County requested that Petitioner’s position be added to the SMSC of the FRS, and the request was granted by Respondent, retroactive to her hire date of February 1, 2002. On June 30, 2004, Petitioner ceased being employed by Pinellas County and she received a payout of all unused leave, pursuant to the termination payout rules of Pinellas County. Additionally, on June 30, 2004, Pinellas County ceased being responsible for making employer contributions to Petitioner’s state retirement account. On June 30, 2004, Judge David A. Demers, then chief judge of the Sixth Judicial Circuit, requested that Petitioner be paid a $10,000.00 bonus due to the fact that Petitioner would “no longer be a member of the senior management class for retirement purposes.” The bonus was approved and Petitioner accepted the same. Effective July 1, 2004, funding for all court system employees was transferred to the State. Consequently, Petitioner, on July 1, 2004, was reported to the Division of Retirement as an employee of the Office of State Courts, in the Regular Class of the FRS. Petitioner was aware that her position would no longer be included in the SMSC at least as early as September 2004, and chose not to request an opportunity to challenge the determination until several years later. Petitioner asserts that she was continuously an employee of the Office of State Courts from February 1, 2002, and that she was never an employee of Pinellas County. Stephen Bardin credibly testified that if Petitioner had been an employee of the Office of State Courts, rather than of Pinellas County, her position would never have been eligible for inclusion in the SMSC in 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order denying Petitioner's request for SMSC credit from July 1, 2004, through the date of her retirement in 2015. DONE AND ENTERED this 13th day of April, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 13th day of April, 2016.
Findings Of Fact Petitioner John T. Barnes is currently employed by Santa Rosa County in the capacity of Veterans Service Officer. At some undisclosed date, apparently in 1985, Petitioner submitted a request to Respondent that he be permitted to "purchase" a period of employment with the Santa Rosa County School Board from 1939-1941 as creditable service under the Florida Retirement System (testimony of Petitioner, Hearing Officer Exhibit 2). In his petition, Petitioner claims that he worked as a full time employee as a janitor at the Chumuckla High School from July 1, 1939 to June 30, 1941. He was a student at the school during this period, but would have been unable to return in the fall of 1939 since his father died and it was necessary for him to work to support the family. With the janitorial job, Petitioner was able to attend school while performing his janitorial duties before and after regular school hours, plus weekends. He testified that his salary was $30 per month, which was paid by check that he received from the Superintendent each month. Petitioner performed his duties under the supervision of the school principal. Petitioner is unsure as to whether or not he had a written agreement with the Superintendent. Both the Superintendent and Principal at that time are now deceased. Petitioner was the first janitor to be employed at the Chumuckla High School (testimony of Petitioner, Petitioner's Exhibit 1). In order to establish his claim of prior service, Petitioner requested that the School Board of Santa Rosa County search the School Board's records concerning his employment from 1939-1941. Pursuant to this request, the School Board Personnel Officer, Gertrude E. Wolfe, searched the School Board records for the period in question, but was unable to find any mention of Petitioner. However, subsequent to that search, a copy of the minutes of a regular meeting of the Board of Public Instruction of Santa Rosa County on June 3, 1941 was discovered. It stated that the sum of $7.50 was paid to Petitioner for an unstated purpose and was simply characterized as a "bill." Petitioner submitted the affidavits of his sister, Clara B. Lloyd, who had been a teacher at the Chumuckla School during the period of June 1, 1939 to May 31, 1941 and therein certified that Petitioner had served as a janitor at the school during that period and had received a salary of $30 per month from the Santa Rosa County, Florida school system. Another affidavit to like effect was submitted by a "student and co-worker," Jack D. Jernigan, to the same effect, except that it showed the period as July 1, 1939 to June 30, 1941. Another affidavit from Mrs. A. L. Gillman, who was a teacher and assistant principal at the school during the time in question, certified also that Petitioner had been employed by the School Board during that period at a salary of $30 a month (testimony of Barnes, Wolfe, Petitioner's Exhibits 1- 2). By letter, dated February 27, 1987, the Respondent's State Retirement Director denied Petitioner's request for retirement service credit on the basis that he had been a temporary student employee during 1939-41 and did not therefore meet the definition of a regularly established position, and thus the service was not creditable and could not be purchased under the Florida Retirement System. The letter noted, however, that Respondent had received a letter from the Superintendent of Schools, presumably of Santa Rosa County, which stated "We have researched our records for the employment of John T. Barnes for the school terms of 1939-40 and 1940-41 as janitor for the Chumuckla High School and failed again to find such employment for him. We feel that it is possible that Mr. Barnes was paid by the Principal with School Funds or General Funds which each school had funds of this type. If he were paid in this manner, the County office would have no record to substantiate his salary or employment." (Hearing Officer's Exhibit 2) Based on the foregoing uncontroverted evidence, it is found that the Petitioner did in fact perform janitorial duties for the Santa Rosa School Board during the period July 1, 1939 to June 30, 1941, at a salary of $30 a month.
