The Issue Whether Petitioner is entitled to creditable service with the Florida Retirement System (FRS) from February 1, 1997 through November 30, 1999.
Findings Of Fact Hendry County is governed by the Hendry County Board of County Commissioners (Board). The period in dispute is February 1, 1997, through November 30, 1999. During this 32- month period, Petitioner served as legal counsel for the Port LaBelle Utility System (PLUS), a division of Hendry County, under the direction of the County Administrator. (Stipulation e.2.b., modified. See also Finding of Fact 11.)1/ Both immediately prior to and immediately following the period in dispute, Petitioner was employed full-time by Hendry County in the regularly established position of "County Attorney." (Stipulation e.1.a. modified) Regularly established positions in Hendry County, such as "County Attorney," are created by the Board and supervised by the County Administrator. When Petitioner resigned the County Attorney position in 1997, he was approached by a Board member to work on two specific PLUS projects for $500.00 per month minimum, at the rate of $100.00 per hour. The Board and Petitioner initially called the $500.00 a "retainer fee" and anticipated that Petitioner would only work on two specific PLUS projects. Petitioner is only claiming that this guaranteed $500.00 per month, which was paid for 32 months, should have been covered by FRS. The new County Attorney had no experience in water and sewer utilities, so Hendry County and Petitioner later struck a deal for Petitioner to take up the additional role of counsel of record for all routine PLUS matters, including special projects, and to act (as he had when he was County Attorney) as PLUS contact person between PLUS and all governmental regulatory agencies at the rate of $100.00 per hour for every hour he worked above the guaranteed minimum of $500.00 per month. Petitioner was hired in this capacity due to his legal expertise in the area of utilities. Both Petitioner and the Board contemplated that he would personally render his legal services, and it was never anticipated by either party that Petitioner would sub-contract out those legal services. All of his services were rendered personally by Petitioner during the disputed period of time. At the commencement of the agreement, both parties anticipated their arrangement would continue indefinitely. No formal written contract was executed between Petitioner and the County for the period at issue. Either Petitioner or the Board could terminate the oral contract at any time without financial liability, but Petitioner would have had a professional duty to assist in the transition of cases to a replacement attorney. (Stipulation e.l.k. expanded.) The County Administrator could terminate the County Attorney, but only the Board could terminate Petitioner. During the disputed period of time, Petitioner's responsibilities and services as counsel for PLUS became essentially the same as the responsibilities and services he had provided to PLUS in his regularly-established position as County Attorney prior to the disputed period and which he subsequently provided to PLUS as County Attorney after the disputed period. However, during the period at issue, Petitioner did not perform all the other non-PLUS duties of the County Attorney. The oral agreement between Petitioner and the Board provided for Petitioner to be paid $500.00 per month by the County on behalf of PLUS. (Stipulation e.2.b., modified. See also Finding of Fact 1.)2/ Originally, Petitioner understood that the agreement guaranteed him $500.00 minimum per month even if he did no routine or special project work for PLUS. Ultimately, the oral agreement also contemplated that Petitioner could charge the County at an hourly rate of $100.00 per hour for any time he spent working on PLUS projects. This was substantially more money per hour than the full-time regular employee salary Petitioner had previously received from the County as its County Attorney. Petitioner is not claiming FRS coverage for any additional amounts of money above $500.00 per month that he charged Hendry County for PLUS work during the 32 months at issue. Petitioner is only claiming that the $500.00 per month constitutes his part time employee "salary" for this period of time. The parties stipulated that the $500.00 fee was paid to Petitioner by the County on a monthly basis, and Petitioner was not required to submit a time card to his supervisor setting forth his time worked each month in order to be entitled to the $500.00 payment. (Stipulation e.1.d. expanded.) Petitioner was not required to submit a timesheet or to similarly account for his time. However, Petitioner, in fact, billed the County for his services. The testimony is that he billed monthly, but his invoices appear to have been rendered every two or three months. Petitioner referred to the $500.00 as a "retainer" on each invoice he prepared. Each of his invoices included a vendor number, recognizable by the County Finance Department. Regularly established positions in Hendry County have no numbers. He sent his invoices from a law office in his home. Most, if not all, of the months during the disputed period, Petitioner billed more than $500.00, including time for projects and legal work not originally anticipated. Most of his services were frequent and sometimes recurring; other were not. Despite his testimony that his agreement with the County guaranteed him a retainer of $500.00 per month, regardless of how few or how many hours he worked on PLUS projects, Petitioner conceded that from the first invoice, he always credited the guaranteed $500.00 to the County and deducted it from the total hours of legal work he billed the County. Petitioner's invoices itemized all services for PLUS and any other projects he performed for the County in tenths of hours worked at the rate of pay of $100.00 per hour, and the $500.00 was always applied each month against the total PLUS hours worked. The County's Finance Department's policies were directed by the Board. Testimony shows that during the period at issue, Petitioner's monthly $500.00 was paid by the County's Finance Department, out of funds exclusive to PLUS, in response to Petitioner's invoices. However, the invoices which are in evidence show that the $500.00 and all additional charges were paid by a single County check for a lump sum in response to the total on each invoice, whenever the invoice was received. The accompanying check stub differentiated between specific projects and general charges, but the $500.00 was not isolated on the check stub. The greater weight of the credible evidence is that during the period at issue, the County Administrator's Office, Human Resources Office, and Clerk of Court did not handle Petitioner's situation as if he were an employee filling a regularly established part-time position. Rather, they treated the whole of his services, invoices, and remuneration as if he were a vendor or independent contractor. Payments to him were designated by the Finance Department as paid out of "professional services." However, the County's current Finance Director, an accountant who was not hired by the County until later, testified that the County should have separated out the $500.00 retainer and the cost of Petitioner's monthly services above that amount into separate amounts because Petitioner was performing non-vendor services for the $500.00 base amount. The County reported Petitioner's pay by Form 1099 for an independent contractor, rather than by Form W-2 for an employee. The Hendry County Personnel Manual requires that one work 7.5 hours per day in order to qualify as a full-time County employee. By law, the County is required to withhold income tax, social security, and medicare deductions for its employees, even the part-time ones. The County withheld no taxes, social security, or medicare deductions from the amounts it paid to Petitioner during the period at issue. The County did not make matching contributions for social security or medicare from the amounts it paid to Petitioner in this period. (Stipulation e.1.c., expanded.) The County did not include any fees paid to Petitioner in its wage computations for its workers' compensation insurance premiums, but had Petitioner claimed to have been injured on the job, and coverage denied by the company, only litigation would have determined if he were "covered" by workers' compensation. (Stipulation e.1.c., expanded.) Petitioner did not accrue, and was not paid, sick pay or vacation time during this period. (Stipulation e.1.c., expanded.) According to the County Personnel Manual, a County employee who works less than 22 hours per bi-weekly pay period does not earn sick or vacation leave, but would still be eligible for FRS. No FRS payments are linked to Petitioner's employment during this period. All County employees in regularly established positions, both part-time and full-time, are paid bi-weekly. Petitioner billed every two or three months. In response, the Finance Department paid Petitioner's invoices in lump sums, as if Petitioner were a vendor or independent contractor. Petitioner did not consider himself a County employee during the disputed time period, and, in fact, considered his arrangement with the County to be a classic retainer agreement. Petitioner treated his income from the County as "other income" by paying both the employer's and employee's share of social security during this period. During the period at issue, Petitioner did not list himself in the business section of the phone book or the yellow pages or otherwise offer his services to the general public, although he could have done so without violating his arrangement with the County. Petitioner had a separate and independent law office in his home during this period and charged individuals for occasional deeds and wills. Petitioner did not have to account to the County for any of his time not on the clock for County business. During this period, Petitioner also acted and was paid as counsel for the Central County Water Control District. Prior to accepting the District as his client, Petitioner sought from the Hendry County Board of County Commissioners permission to represent the Central County Water Control District, because of the Florida Bar Rules on attorneys' conflicts of interest and, presumably, rules on full disclosure to clients, but not because Hendry County was his employer. During the period at issue, Petitioner advised the Hendry County Attorney of what work he was performing, but the County Attorney could not instruct Petitioner how to do his job and did not assign him tasks or direct him. (See Findings of Facts 40 and 42.) During the period at issue, Petitioner received no training from the County. Most of the knowledge Petitioner had regarding County procedures and PLUS issues had been acquired prior to the period in question while he had been serving as the County Attorney. Some of the additional issues Petitioner represented Hendry County on during the disputed time period were assigned by the County Administrator or the Board, but Petitioner could prioritize issues and had discretion as to when he would work on them. The Board, as Petitioner's client, could direct certain of Petitioner's actions as its utilities counsel and had to agree or disagree to certain proposals. On most of these matters, votes of the Board were necessary. A major part of Petitioner's duties as counsel for PLUS during the disputed period involved attendance and providing advice to the Board and other County personnel at meetings or appointments scheduled unilaterally by the County Administrator. Petitioner was required to make reports at these events. No one in the County's administrative hierarchy could instruct Petitioner how to do his job as an attorney but the Board, County Administrator, and Utility Director could assign him tasks and instruct him on projects. In the main, however, the Board and its County Administrator had to rely on Petitioner's expert legal capabilities and professionalism as would any client in an attorney-client situation. During the disputed period, almost all of Petitioner's work for PLUS was done at a County office facility or at meeting sites designated by the County. The County made available office materials, books, and other equipment to Petitioner. All of the clerical and other staff assisting Petitioner in the performance of his duties for the County were employees of the County in regularly established County positions. Petitioner reimbursed the County for its paralegal's services at the rate of $15.00 for each hour she worked on PLUS projects. Petitioner's reimbursement to the County was in the form of a deduction from his invoices. The County paid Petitioner's cell phone and travel expenses or provided reimbursement of these expenses during this period, as billed on his invoices. Petitioner submitted his travel expenses as starting from the County courthouse, not from his home with its private law office. During this period, the services provided by Petitioner were critical and essential to the continued operation of PLUS. Petitioner did not use any of his personal capital in performing the services as counsel for PLUS during the disputed period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order ratifying its denial of FRS creditable service for February 1, 1997 through November 30, 1999. DONE AND ENTERED this 7th day of April, 2005, 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 7th day of April, 2005.
Findings Of Fact The Respondent was employed by the School Board of Volusia County from September 1, 1981 until November 14, 1989 as a painter or painter mechanic. T- II-39,40. The terms and conditions of the Respondent's employment was governed by the contract between the Petitioner and the American Federation of State, County, and Municipal Employees, Council 79, Local 850. This contract provides that employees can be disciplined, to include discharge for just cause. Joint Exhibit 1. The Respondent was employed as a painter within the Board's facilities support operations department. This department employs approximately 130 craftsmen and 20 clerical and supervisory staff. T-I-38. The Respondent's immediate superior was foreman of the painters, Joe Isaac, who has held that position for the past 18 years. T-I-38,64 The chain-of-command from the top of the facilities support department is Charles Lambeth, who is Director of Facilities Operation; Terry Ellis, who is Assistant Director in charge of the crafts area; and Clifton Robertson, who is the Director of Facilities Support Operations or the personnel administrator for the facilities support department. Clifton Robertson investigated the allegations against the Respondent, counseled with the Respondent, and issued the disciplinary letters and reprimands given to the Respondent. On October 24, 1989, Mr. Florio engaged in a loud, profane, and inappropriate shouting match with a coworker, Larry Brazil, while on the job scraping paint outside a classroom at Seville School. Their conduct was such that a teacher left her classroom, outside of which they were working, and cautioned them about the disturbance they were causing. The acting foreman, Don Jenkins, overheard the exchange between the Respondent and Brazil in which the Respondent used obscene or profane language. The acting foreman did not hear Brazil use such language, and other witnesses testified that they had never heard Brazil use such language on the job. On October 25, 1989, the Respondent got into another argument with another coworker, Ken Griswold. During this argument, the Respondent threw his paint scraper at Griswold, who had made no threat to the Respondent. With only the verbal provocation, the Respondent threw the scraper at Griswold and would have struck him had Griswold not jumped back out of the way. There was dissatisfaction among the Respondent's coworkers about the way he did his job. The Respondent had been injured in 1987 and was restricted from working on ladders over six feet tall, lifting regular ladders, and spray painting. Sometime later, the Respondent's restrictions were altered to permit him to work on a six-foot aluminum ladder. His refusal to do any type of work which was covered by his medical restrictions was a source of contention with his coworkers. In addition, he had a history of not following regulations and requirements which the other men were required to follow. On October 24 and 25, 1989, the Respondent was assigned to a team of painters to scrape and paint the exterior of a school. On both days, arguments between the Respondent and coworkers arose over the Respondent's refusal to scrape paint from the ladder. On October 24, 1990, this led to a shouting match with Larry Brazil and to the Respondent throwing a paint scraper at Ken Griswold on October 25, 1990. On March 21, 1989, the Respondent was directed at 7:00 a.m. to report to work at Seabreeze Senior High School by his foreman, Joe Isaac. The Respondent did not do so and stayed at the main maintenance facility until 8:45 a.m., when he was discovered by the Assistant Maintenance Director, Terry Ellis, who instructed him to report to the high school. The Respondent again refused to go and remained at the main maintenance facility until 8:54 a.m., when the Maintenance Director, Charles Lambeth, arrived. The Respondent had asked his foreman, Joe Isaac, to see Lambeth; and Isaac had told Florio to report to work at the high school and if Lambeth wanted him, Lambeth would send word through Isaac for Florio to report to Lambeth. When confronted by Ellis, the Respondent told Ellis he wanted to see Lambeth. Ellis also told Florio to report to the school immediately. Florio remained at the maintenance headquarters until Lambeth arrived. Lambeth asked Florio why he was there, and Florio stated that he had been told Lambeth wanted to see him. Lambeth told Florio that he had not wanted to see him, and Florio blamed the incident on the men lying to him. Florio did not report until told to do so by Lambeth. The Respondent had his pay docked for two hours and received a letter of reprimand for failure to follow direct instructions. The letter of reprimand described the Respondent's actions as malingering and insubordination. Painters reported each day to the maintenance headquarters, after which they took School Board vehicles to the job sites. Similarly, after being released at the job site, the painters were supposed to return to the main maintenance facility, where employees were dismissed for the day. On September 11, 12, 13 and 14, 1989, the Respondent drove his private automobile to the school at which the paint team was working. Although the Respondent had been given permission to drive his car on Monday of that week because his stomach had been giving him problems, he took his car the rest of the week and left directly from the school, not returning to the maintenance headquarters, as required on the dates indicated above. The Respondent received written notice that he was being docked 160 minutes. On or about September 21, 1989, the Respondent told a coworker that he refused to drive. The Respondent did not deny telling the coworker that he would not drive but asserted that he had been kidding. On September 22, 1989, the Respondent slammed open the door of a School Board truck striking another School Board truck in the door and damaging both trucks. The property damage was $121.63. The Respondent had slammed the door open because he was angered by the remarks of a coworker who chided him about driving. The letter of reprimand which the Respondent received for his conduct on September 21 and 22 indicated that the Respondent had been encouraged to enter the Employee Assistance Program. The Respondent did not avail himself of the program. The Respondent frequently complained to his supervisors about what he described as "harassment" and "kidding" by his coworkers although the Respondent engaged in similar behavior with his coworkers. As a result of his complaints, his superiors counseled his coworkers not to tease, harass, or kid the Respondent. The Respondent is a malingerer. He developed a pattern of avoiding work by failing to report when he was supposed to report; by refusing to perform duties within his ability as requested by his fellow workers; and by asserting he was ill. The Respondent was ill-tempered and acted out inappropriately with increasing frequency and violence. The Respondent refused to acknowledge that there was a problem, that the problem was him, and to seek assistance for it. The employer counseled with the Respondent and used progressive discipline to attempt to modify the Respondent's behavior to no avail. The employer had just cause to discharge the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that the Respondent be discharged. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6360 The parties filed proposed findings of fact which were read and considered. The following is a listing by party of the findings which were adopted and those which were rejected and why: Petitioner's findings by paragraph number which began with paragraph 7: Paragraph 7 Adopted Paragraph 8 Adopted Paragraph 9 Adopted and rewritten Paragraph 10 Rejected; restates exhibit Paragraph 11 1st sentence adopted; remainder irrelevant Paragraph 12,13,14 Adopted and rewritten Paragraph 15(a) Irrelevant Paragraph 15(b) Rejected; restates exhibit Paragraph 16-20 Adopted and rewritten Paragraph 21 Irrelevant Paragraph 22-29 Adopted and rewritten Respondent's findings by paragraph number beginning with paragraph 1: Paragraph 1-4 Adopted and rewritten Paragraph 5 Irrelevant Paragraph 6-10 Adopted and rewritten Paragraph 11 Whether Brazil was disciplined is unknown Paragraph 12 Rejected as contrary to fact Paragraph 13-14 Adopted and rewritten Paragraph 15 Rejected that Florio did not throw the scraper at Griswold; remainder adopted and rewritten Paragraph 16 Adopted and rewritten Paragraph 17 Evidence was received that coworkers were counseled on several occasions; however, it is also irrelevant because the disciplinary records of the other employees were not introduced. Evidence was received that; at least one other employee was discharged for similar types of behavior. Paragraph 18 Adopted and rewritten Paragraph 19-24 Irrelevant Paragraph 25 The statement is true, but gives the erroneous impression that Florio was discharged because he did not participate in the program. The employer's reference of the employee to this program was relevant because it shows the employer had such a program and it was available. The employee's rejection was relevant because it indicates how confused the employee is about his situation and condition. Paragraph 26 Rejected as contrary to fact COPIES FURNISHED: Harrison C. Thompson, Esq. THOMPSON, SIZEMORE & GONZALEZ P.O. Box 639 Tampa, FL 33601 Ben Patterson, Esq. P.O. Box 4289 Tallahassee, FL 32315 Dr. Jame D. Surratt, Superintendent Volusia County School Board P.O. Box 2118 Deland, FL 32720 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issue in this case is whether the Orange County School Board (Petitioner) has just cause to terminate the employment of teacher, Monica Mahtani (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed as a first grade classroom teacher at Shingle Creek Elementary School (SCES) by the Petitioner under a professional services contract. According to performance evaluations, the Respondent has been considered as an effective teacher. The Respondent was on authorized medical leave from May 3, 2010, through June 4, 2010. The Respondent did not return to work on June 7, 2010, and was absent from that date through June 11, 2010. Attempts by school personnel to contact the Respondent during June 7 through June 11, 2010, and to determine her whereabouts were unsuccessful. By letter to the Respondent dated June 11, 2010, the SCES principal noted that the Respondent's approved leave had expired on June 4, 2010. The letter advised the Respondent that, because school personnel had been unable to contact the Respondent and no documentation to support the unapproved absence had been submitted, the unapproved absence was being classified as unauthorized leave without pay. In response to the principal's letter, the Respondent submitted a document dated June 23, 2010, purporting to be authored by "The Providers at Orlando Behavioral Healthcare," which stated that the Respondent had been under the care of doctors and therapists at the facility for a period of time including June 7 through June 11, 2010. The document was not printed on letterhead paper and bore no signature. Upon review of the document and after contacting officials at Orlando Behavioral Healthcare (OBH), the Petitioner determined that the document dated June 23, 2010, was not generated by OBH. Upon inquiry at a predetermination meeting conducted on August 18, 2010, the Respondent insisted that the document was genuine and had been provided by OBH. At a termination meeting conducted on August 31, 2010, the Respondent admitted that she had generated the document. No one from OBH was involved in the creation of the June 23, 2010, document. At the time the Respondent falsified the document, she knew the difference between right and wrong and knew that creating the document was wrong. At the hearing, the Respondent asserted that she submitted a written request for leave for the period of June 7 through June 11, 2010, but there was no documentation or additional testimony offered in support of the assertion, and it has not been credited. The Respondent testified that certain medications may have affected decisions underlying the circumstances at issue in this proceeding, but there was no credible medical or pharmacological evidence offered in support of the assertion, and the testimony has not been credited. Because the Respondent falsified the document and then insisted upon inquiry that the document was authentic, the SCES principal testified, without contradiction, that she did not believe that the Respondent could be trusted. The principal testified that she would be "very uncomfortable" were the Respondent returned to teach in the SCES classroom. The testimony has been credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order, terminating the employment of Monica Mahtani. DONE AND ENTERED this 6th day of April, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2011. COPIES FURNISHED: Derek B. Brett, Esquire Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802 John C. Palmerini, Esquire Orange County School Board 445 West Amelia Street Orlando, Florida 32801 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald (Ron) Blocker, Superintendent Orange County School Board 445 West Amelia Street Orlando, Florida 32801
The Issue Whether Petitioner is entitled to additional reemployment services from the Bureau of Rehabilitation and Medical Services. 1/
Findings Of Fact Petitioner was employed by UPS from July 1987 until her employment was suspended on February 10, 1997, for cause unrelated to the job-related injuries at issue in this proceeding. Following an investigation of the unrelated matter, UPS terminated Petitioner’s employment on February 19, 1997. At the time of her discharge, she was working a 40-hour week, was receiving full benefits, and was being paid at the rate of $19.97 per hour. Petitioner’s duties with UPS required her to drive a truck, load and unload trucks, and deliver packages. On January 13, 1997, Petitioner sustained certain injuries on the job when she fell between a truck and a loading dock. Petitioner received medical treatment for her work-related injuries beginning February 12, 1997. Dr. Bruce M. Berkowitz is an orthopedic specialist who treated Petitioner. On May 19, 1997, Dr. Berkowitz observed that Petitioner had multiple areas of discomfort that did not fit into specific orthopedic problems that he could treat. He discharged Petitioner from orthopedic care with a 3% whole person impairment rating based on painful organic syndrome as outlined by the Florida Impairment Rating Guide. Dr. Berkowitz recommended that Petitioner’s care be continued by a physiatrist (a doctor who specializes in physical medicine or physical therapy). Dr. Berkowitz also recommended that Petitioner not lift, carry, push, or pull objects weighing over 30 pounds, and that she not bend from the waist. Dr. Berkowitz saw Petitioner again on August 1, 1997, but he merely reiterated the findings and recommendations from May 19, 1997. After Dr. Berkowitz discharged her, Petitioner received treatment from Dr. Scott D. Tannenbaum, a physiatrist. At the time of the final hearing, Petitioner continued to experience chronic pain, which she attributed to the injuries she sustained January 13, 1997. At the time of the final hearing, Petitioner’s limitations as described by Dr. Berkowitz in May and August 1997 had not improved. Because of her physical limitations, Petitioner is unable to perform her former duties with UPS. At the time of the final hearing, Petitioner was 47 years old. She has no formal education beyond high school other than a computer-training course. She has no special training and no special marketable skills. Petitioner was unemployed between February 19, 1997, and March 1998. Since March 19, 1998, Petitioner has been employed by the DBPR in an OPS 2/ clerical position that has no fringe benefits. In April 2000, Petitioner was earning $11.09 per hour. At the time of the final hearing, Petitioner was paid at the rate of $11.29 per hour. In the fall of 1999, Petitioner applied to Respondent for reemployment services. The goal of this program is to return eligible injured workers to suitable gainful employment as soon as possible. The reemployment services program is a return-to- work program, not a retraining program. The program is voluntary, and must be initiated by the injured worker or by the worker's compensation carrier. Section 440.491, Florida Statutes, defines suitable gainful employment to be: . . . employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earning at the time of injury. In December 1999, Petitioner attended an orientation program and a training workshop pertaining to employability skills. She completed a formal application for services from Respondent, which included releases for medical and employment history. A rehabilitation nurse reviewed Petitioner’s medical records and determined that Petitioner was able to return to work. Thereafter, Eva-Lyn Facey, a vocational rehabilitation counselor employed by Respondent, was assigned Petitioner’s file to make sure that all needed information was provided. Respondent typically explores three options for injured workers seeking reemployment services in the following descending order of preference. The first, and preferred option, is to place the injured worker with his or her former employer. If that option is not available, the next preferred option is on- the-job training for the injured worker. The last option is for full-time classroom re-training of the worker. The preferred option was not available because Petitioner’s prior employment had been terminated for cause and because Petitioner was no longer physically able to perform her former job. On April 6, 2000, Petitioner met with Ms. Facey. After that meeting, Petitioner’s application was complete and she had provided all information required by Respondent to determine whether option two or option three should be pursued. After the application file was complete, Ms. Facey turned the file over to her supervisor 3/ who reviewed the file with Angel Ivan Miranda, a vocational consultant. The supervisor and Mr. Miranda determined that Petitioner's employment with DBPR constituted "suitable gainful employment" as defined by Section 440.491(1)(g), Florida Statutes. They further determined that Petitioner was not entitled to further reemployment services pursuant to Rule 38F-55.009(5)(c), Florida Administrative Code, which provides as follows: (5) Following a Division screening the Division shall not provide any additional reemployment services or refer the injured employee for a vocational evaluation: * * * (c) if the injured employee has returned to and maintained suitable gainful employment for at least 90 days. In attempting to comply with the provisions of Section 440.491, Florida Statutes, Respondent attempts to determine what employment is reasonably attainable for the injured worker. Mr. Miranda determined that Petitioner's employment with DBPR constitutes suitable gainful employment despite the considerable disparity between Petitioner's pre- injury average weekly wage and her post-injury average weekly wage because better employment for Petitioner is not reasonably attainable. In making that determination, Mr. Miranda considered Petitioner's age, education, work history, transferable skills, and physical restrictions. It is unlikely that Petitioner will be able to find employment that pays as well as her former employment with UPS. Petitioner wants to be retrained in order to be able to work with computers. Mr. Miranda testified that it was likely that an independent evaluator would find that such retraining to be the most appropriate for Petitioner. Mr. Miranda also determined that after such retraining, Petitioner would likely start employment as a computer technician at a lower hourly rate than she was earning at DBPR. The greater weight of the credible evidence established that Petitioner's employment with DBPR constitutes suitable gainful employment within the meaning of Section 440.491(1)(g), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner further reemployment services. DONE AND ENTERED this 19th day of March, 2001, in Tallahassee, Leon County, Florida. ___ CLAUDE B. ARRINGTON 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 19th day of March, 2001.
The Issue Barkley has petitioned for the determination of the invalidity of Section 1101.1.3.2-15.i of the LES Personnel Manual. That section provides standards for disciplinary action when an employee commits the offense designated "falsification of records." The issues, therefore, are whether the standard is a rule as defined in Section 120.52(15) F.S. and whether Barkley is substantially affected by the standard. If the answer to both questions is yes, then it necessarily follows that the "rule" is invalid, as the parties have stipulated that the standard was not adopted as a rule.
Findings Of Fact Earnest O. Barkley, Jr. was employed by the Department of Labor and Employment Security in June 1980, and was continually employed until October 13, 1987. At the time of his separation he worked as a Statistician I, a position within the Florida career service system. During the course of his employment Barkley and other employees were given copies of the LES Standards for Disciplinary Action and were told that these would apply in agency discipline cases. The LES Standards for Disciplinary Action comprise section 15 of a much larger LES Personnel Manual. The Forward to that manual provides as follows: FOREWARD The LES Personnel Manual transmits to Managers, Supervisors and employees, the personnel policies and procedures for staff in the Florida Department of Labor and Employment Security. This manual provides direction and information in the areas of retirement, employment and pay administration, attendance and leave, employer/employee relations, employee benefits, labor relations, training and classification and pay. Further, this manual is to be utilized constructively to better manage and enhance the efficiency of the department's human resources. (Respondent's Exhibit #1) The Forward is signed by former DLES Secretary, Wallace E. Orr. The preamble to Section 15 provides as follows: 15. Standards for Disciplinary Action Included below are standards for the administration of disciplinary actions for various types of offenses. The list includes the most commonly occurring offenses and is not meant to be all inclusive. The disciplinary actions for the listed offenses have been established to help assure that employees who commit offenses receive similar treatment in like circumstances. Within each level of occurrence, a range has been provided to allow the supervisor flexibility in selecting appropriate discipline in order to take into consideration mitigating circumstances. * * * (Joint Exhibit #1) According to Floyd Dorn, DLES Personnel Officer and Ken Hart, Deputy Secretary and former General Counsel for 15 years, the disciplinary standards are utilized for precisely the purposes set out in the Forward and in the preamble. The standards are not considered the legal authority nor the basis on which the agency takes disciplinary action. That authority is found in the statutes and rules governing the Florida career service system. The standards are viewed by the agency as guidelines, with specific actions in each case governed by the unique circumstances. The termination letter dated October 13, 1987, does not reference the standard, but rather cites Rule 22A-7.010(7) F.A.C. as authority for the agency's action. The text of the section at issue reveals a wide range of discretion: Falsification of Records Includes misrepresentation, falsification or omission of any fact, whether verbal or written, on such records as, but not limited to: time and attendance (leave) , employment status, employment application, travel vouchers, and work and production. First occurrence Written reprimand to dismissal Second occurrence 3-day suspension to dismissal Third occurrence Dismissal (Joint Exhibit #1) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.56 and 120.57(1) F.S. Subsection 120.56(1) F.S. provides: (1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. "Invalid exercise of delegated legislative authority" is defined as "... Action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a) The agency has materially failed to follow the applicable rule making procedure set forth in S. 120.54; * * * Subsection 120.52(8)(a) F.S. (1987) The threshold question, therefore, is whether the LES disciplinary standard is a rule. Section 120.52(15) F.S. defines "rule", with certain exceptions, as "... each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. * * * Citing State Department of Administration v. Stevens, 344 So.2nd 290 (Fla. 1st DCA 1977), and McDonald v. Dept. of Banking and Finance 346 So.2nd 569, 581 (Fla. 1st DCA 1977), the First District Court in State, Department of Administration v. Harvey, 356 So.2nd 323, 325 (1978) explains the definition: Whether an agency statement is a rule turns on the effect of the statement, not on the agency's characterization of the statement by some appellation other than "rule." The breadth of the definition in Section 120.52(14) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it "purports in and of itself to create certain rights and adversely affect others," Stevens, [citation omitted] or serves "by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Dep't. of Banking & Fin. [citation omitted]. See also Straughn v. O'Riordan, 338 So.2d 832 (Fla. 1976); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977). Some ten years later these cases are still good law. Both parties rely on Harvey, and on two cases decided by the First District Court of Appeal on the same day in 1981. In Department of Highway Safety v. Fla. Police Benevolent Association, 400 So.2nd 1302 (Petition for cert. den. 408 So.2nd 1093), the Highway Patrol's general orders prescribing standards of physical fitness for patrolmen and guidelines for supervisors in assessing discipline were held not to be rules, since, unlike the "bumping" guidelines in Stevens and the minimum training and experience requirements in Harvey, the general orders were "... effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer." p. 1303. In Florida State University v. Dann, 400 So.2nd 1304, the document setting forth procedures for awarding merit salaries and other pay increases was held to be a rule, as the procedures were self-executing and were issued by the agency head for implementation with little or no room for discretionary modification. Under the evidence elicited in this case, the LES Disciplinary Standard is not self-executing; it does not, in and of itself create or adversely affect certain rights; and it does not have the direct and consistent effect of law. Like the Highway Patrol's order prescribing disciplinary guidelines in Police Benevolent Assn., supra, the LES Disciplinary Standard is inchoate and unenforceable without the authority of Rule 22A-7.010(7) F.A.C., and Section 110.227 F.S., governing dismissals of career service employees for cause. 19. Section 110.227(1) F.S. (1986) provides: 110.227 Suspensions, dismissals, reductions in pay, demotions, layoffs, and transfers. Any employee who has permanent status in the career service may only be suspended or dismissed for cause. Cause shall include, but not be limited to, negligence, inefficiency or inability to perform assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime involving moral turpitude. Each agency head shall ensure that all employees of the agency are completely familiar with the agency's established procedures on disciplinary actions and grievances. Rule 22A-7.010(7) F.A.C. provides in pertinent part: Dismissals. A dismissal is defined as the action taken by an agency against an employee to separate the employee from the Career Service. An agency head may dismiss any employee for just cause. Just cause shall include, but not be limited to, negligence, inefficiency, or inability to perform assigned duties; repeated and/or gross substandard performance of assigned duties; insubordination; willful violation of the provisions of law or agency rules; conduct unbecoming a public employee; misconduct, habitual drug abuse, or conviction of a crime involving moral turpitude. Neither statute nor rule specify that falsification of records is just cause. The LES standard therefore, provides guidance to employees and their supervisors that this violation is one that might result in dismissal. This does not, however, make the standard a rule. Depending on the generality of the statute, an agency definition of a statutory term not set forth as a promulgated rule may or may not constitute a "policy" statement. Island Harbour v. Dept. of Natural Resources 495 So.2nd 209, 221 (Fla. 1st DCA 1986). The LES standards satisfy the requirements of Department of Administration Rule 22A-10.003 F.A.C., that agency heads establish "rules and procedures" including ranges of penalties for various types of work deficiencies and offenses to insure reasonable consistency in disciplinary actions. The policy relied upon the agency in this instance is found in the promulgated rules of the Department of Administration and the statute governing dismissals of career service system employees. In each, the non-exclusive examples of just cause are specific enough to compel the conclusion that in certain circumstances falsification of records will constitute just cause for dismissal. Whether those circumstances exist here is a matter for determination in a different proceeding, for rule or no rule, the employee is entitled to a due process hearing de novo on the ultimate question of whether he has been permissibly fired. Rule or no rule, the agency bears the burden of justifying its action. Department of Administration v. Nelson 424 So.2nd 852 (Fla. 1st DCA 1982), and Nelson v. Department of Administration, 424 So.2nd 860 (Fla. 1st DCA 1982). Section 1101.1.3.2.-15.i of the LES Personnel Manual is not a rule and is not subject to the adoption requirements of Section 120.54, F.S. This conclusion determines, as well, the standing of Petitioner in this proceeding. His "substantial effect" flows from the promulgated rules and statute rather than from the broad guidelines found in the personnel manual. Based on the foregoing, it is hereby, ORDERED: That the Petition of Earnest O. Barkley, Jr. be DISMISSED. DONE and ORDERED this 30th day of December, 1987, in Tallahassee, Florida. MARY CLARK 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 30th day of December, 1987. COPIES FURNISHED: Robert Woolfork, Esquire The Murphy House 317 East Park Avenue Tallahassee, Florida 32301 Dan Turnbull, Esquire Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Donna Poole, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Liz Cloud, Chief Bureau of Administrative Code The Capitol - 1802 Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedure Committee 120 Holland Building Tallahassee, Florida 32301
The Issue Whether Respondent resigned from her position in Career Service by abandonment while employed by the Department of Health and Rehabilitative Services.
Findings Of Fact Prior to August 7, 1989, Gladys Dozier was employed by HRS as a clerk typist. On this date she was absent without authorized leave. On August 7, Respondent called her supervisor to tell her that she wasn't feeling well and would be late coming in. She came in at 9:57 a.m., and at 11:15 a.m. told her supervisor she wasn't feeling well and needed to go home. She left work around 11:20 a.m. On August 8, Respondent again called her supervisor to advise her that she wasn't feeling well but would come in later that morning. Respondent did not come to work that day and was not authorized leave. On August 9, Respondent again called in to say she wasn't feeling well and would not be in for the remainder of the week, but would report to work on August 14, 1989. She was then advised that she needed to bring in a medical statement from her doctor that she was unable to come to work those days she had missed. On August 11, 1989, Respondent again called the office and was reminded that she needed a medical statement for the time she had been absent. By certified letter dated August 15, 1989, and received by Respondent on August 16, 1989, Respondent's immediate supervisor, Mary Simmons, advised Respondent that she was expected at work not later than August 17, 1989, that the medical statement she had sent to the office August 14, 1989 was insufficient to justify more than one day's absence and that if she did not return to work by August 17, 1989, action would be taken to terminate her employment with HRS. Respondent did not return to work. By certified mail dated September 6, 1989 Respondent was advised that she had been absent from work without approved leave since August 14, 1989 and that pursuant to Rule 22A-7.010(2)(c), Florida Administrative Code, she is deemed to have abandoned her position with HRS and to have resigned from the career service system as of the close of business September 7, 1989. Thereafter Respondent submitted her undated letter which was received at the Division of Administrative Hearings on October 26, 1989, and these proceedings followed.
Recommendation It is recommended that the appeal of Gladys Dozier from the determination by HRS that she abandoned her position with the department be dismissed and her resignation from the Career Service be affirmed. ENTERED this 17th day of January, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1990. COPIES FURNISHED: Thomas C. Caufman, Esquire Aletta Shutes Department of Health and Secretary Rehabilitative Services Department of Administration 701 94th Avenue North 435 Carlton Building St. Petersburg, FL 33702 Tallahassee, FL 32399-1550 Gladys Dozier Augustus D. Aikens, Jr. 2032 Quincy Street General Counsel St. Petersburg, FL 33711 Department of Administration 435 Carlton Building William A. Frieder, Esquire Tallahassee, FL 32399-1550 Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact The Respondent's Employment. The Respondent, John Daniel Faughn, is a Labor and Employment Training Specialist for the Department of Labor and Employment Security (hereinafter referred to as "LES"), and has held that position since 1981. (Stipulated Fact). Mr. Faughn served as a contract manager for LES for approximately two years: 1988 and 1989. (Stipulated Fact). At all times relevant to this proceeding, Mr. Faughn was an "employee of an agency" subject to Section 112.313(6), Florida Statutes. Mr. Faughn worked in the Bureau of Job Training of LES. Mr. Faughn's immediate supervisor was Glenn Chilcote, a Specialist Supervisor at the time. Mr. Chilcote's immediate supervisor was Julian Spradlin. Mr. Spradlin's immediate supervisor was Shelton Lee Kemp, then Bureau Chief of the Bureau of Job Training. The Duties of an LES Contract Manager. The duties of an LES Contract Manager included negotiating contracts between LES and contractors to provide services involving the placement of individuals into employment positions, providing technical assistance requested by the contractor, receiving training and placement information from the contractor, and handling invoices submitted by the contractor once placement was made. (Stipulated Fact). Although it was not a contract manager's responsibility to verify all the information provided by the contractor, contract managers did have a general duty to inquire about information which seemed out of line. (Stipulated Fact). CARE, Inc. and Eugene Wood. CARE, Inc., (hereinafter referred to as "CARE"), is a corporation. "CARE" is an acronym for "Center for Aging Research and Education". Eugene Wood was the President of CARE from at least October 10, 1988, to May 1, 1989. (Stipulated Fact). On May 1, 1989, Mr. Wood sold CARE to Mary Lookadoo, a former program participant, and her daughter and granddaughter, for the sum of $1.00. (Stipulated Fact). The weight of the evidence failed to prove that Mr. Faughn was aware of the sale. LES's First Contract with CARE. LES administered federal Title III grant money in 1988 and 1989. Title III grant money was provided to the states for the purpose of increasing employment of individuals, particularly the disabled or long-term unemployed. Grant money for the foregoing purpose was used to pay for training and assistance to be provided by contractors to individuals in order to place them in the work force. LES and CARE entered into a contract (hereinafter referred to as "Z3248"), providing for the payment of Title III grant funds to CARE for providing certain services specified in the contract between LES and CARE. Mr. Faughn was the contract manager for Z3248. (Stipulated Fact). Z3248 was for the period November 1, 1988, through October 31, 1989. (Stipulated Fact). Pursuant to Z3248, CARE was to be paid for any eligible person placed by CARE in unsubsidized employment after a training period. The placement had to be for a minimum of 30 days of "unsubsidized employment". LES agreed to pay CARE an average of $2,317.29 per placement for a maximum of 14 placements. CARE agreed to provide up to 14 placements for 30 days of unsubsidized employment after appropriate training and supervision. CARE also agreed to provide $35,205.00 in matching contributions, including "in- kind" contributions and $4,410.00 in on-the-job-training salaries. Z3248 was "performance based." That is, CARE was to only received payment for successfully placing qualified persons in employment positions. LES' Second, Indirect, Contract with CARE. In 1989 LES and the Department of Health and Rehabilitative Services (hereinafter referred to as "DHRS"), were involved in a contract for $612,000.00 of federal Title III funds to provide job training and placement in employment of mentally handicapped individuals. Mr. Faughn was the contract manager for this contract, Z3458. DHRS in turn contracted with Florida Community College, Jacksonville, Florida, for administration of Z3458. Florida Community College in turn contracted with the Florida Alliance for Employment of the Handicapped (hereinafter referred to as "FAEH"). (Stipulated Fact). In March, 1989, FAEH was interested in finding service providers for Z3458. A contract between FAEH and CARE was ultimately entered into on May 4, 1989. CARE was to receive approximately $2,300.00 for each placement. (Stipulated Fact). Mr. Faughn's Relationship with Mr. Wood and CARE and His Motive to Benefit Them. Mr. Faughn met Mr. Wood during negotiations for the first contract, Z3248. Mr. Faughn and Mr. Wood became personal friends while Mr. Faughn was the contract manager for Z3248. There were occasions when they stayed as overnight guests in each other's homes. Mr. Faughn stayed with Mr. Wood in San Mateo, Florida, where CARE was located, after Z3248 ended. Mr. Faughn, while still the contract manager for Z3248, believed that he would be going to work for Mr. Wood. Mr. Faughn informed Carol Ann Breyer, then Executive Director of the Florida Alliance for the Employment of the Handicapped, that he was considering going to work for Mr. Wood on a child day- care center project. Mr. Faughn told Lucy Shepard, a Senior Management Analyst II with the Department of Health and Rehabilitative Services, that he would probably be going into business with Mr. Wood. Mr. Faughn, during the time that he was contract manager for Z3248, informed his Bureau Chief, Mr. Kemp, that he was resigning to go to work for Mr. Wood. Mr. Faughn later, however, informed Mr. Kemp that the job did not materialize and requested that his resignation be rescinded. Mr. Faughn, again during the time that he was contract manager for Z3248, informed Mr. Wood of two modest houses in Tallahassee, Florida. Mr. Wood expressed an interest in acquiring the houses and Mr. Faughn assisted Mr. Wood in the purchase of the houses by showing the houses to Mr. Wood and informing him of who owned them. Mr. Faughn performed work on the two houses purchased by Mr. Wood, including constructing a porch on one, pressure cleaning and painting both, replacing a door and removing trash. The evidence concerning Mr. Faughn's purpose in working on the houses owned by Mr. Wood and, whether Mr. Faughn was paid for his work, was conflicting. Mr. Faughn's prior statements and his testimony at the final hearing of this case concerning the houses indicate a lack of candor on his part. His explanation of why he performed the work and whether he was paid is, therefore, rejected. Mr. Faughn maintained at the final hearing that he simply performed the work on the houses out of friendship. He also maintained that there was no "formal agreement" concerning the work he was to perform or his compensation. In his deposition testimony, Mr. Faughn indicated that there was never anything "firm" about being paid an hourly rate for his work and that he was never paid. Mr. Faughn gave Mr. Kemp and Mr. Spradlin the impression that he was working on the houses because he had an interest in the houses and would share in any profits when they were sold. Mr. Faughn's denial of having made such statements is rejected. Mr. Faughn told William Geier and Bonita Stokley of LES's Office of the Inspector General that he was to be paid an hourly wage for his work on Mr. Wood's houses. Mr. Faughn's later denial that these statements were correct is rejected. Based upon the weight of the evidence, it is concluded that Mr. Faughn performed work on the houses because he believed he would be compensated in some manner for his effort. Mr. Faughn believed that he would receive an hourly wage, would share in the profits from the sale of the houses or that he would be employed by Mr. Wood in some venture. In all likelihood, Mr. Faughn expected to and, as explained, infra, did receive an hourly wage. Mr. Faughn received a check for $4,500.00 dated August 4, 1989, from Mr. Wood. The check was deposited in Mr. Faughn's personal credit union account. Mr. Faughn's explanation of what the $4,500.00 check he received from Mr. Wood was for and even whether the check existed has varied throughout the investigation and the hearing on this matter. Mr. Faughn's explanation varied depending on who he discussed the matter with: At the final hearing Mr. Faughn testified that the check was merely a reimbursement for materials and supplies used during his work on the two houses. Prior to the final hearing Mr. Faughn failed to inform investigators from LES during questioning that he was reimbursed any amount. Mr. Faughn told an investigator for the Commission that he had only received $300.00 in reimbursement for supplies and materials. His testimony that he had forgotten about the $4,500.00 check is not credible. Mr. Faughn's testimony in his deposition and at the final hearing and his statements to the Commission's investigator concerning the nature of the work he performed on the houses was also inconsistent. After considering all the evidence concerning the $4,500.00 check, it is concluded that Mr. Faughn was paid the $4,500.00, at least in part, as compensation for his services to Mr. Wood for work on the two houses. Based upon the foregoing, it is concluded that Mr. Faughn's relationship with Mr. Wood, the payment by Mr. Wood for work performed by Mr. Faughn, and Mr. Faughn's hope and belief that he would become an employee of Mr. Wood gave Mr. Faughn reason and motive to act in the interest of Mr. Wood and CARE. By acting on behalf of Mr. Wood and CARE, Mr. Faughn was acting on his own behalf. The Performance of Mr. Faughn's Duties: Mr. Faughn's Recommendations to Expand Z3248. Z3248 initially provided that up to $32,442.06, was available for payment to CARE. This amount was increased, in December, 1988, to $64,884.12. (Stipulated Fact). The number of placements to be made by CARE was also increased to 28. The first increase in Z3248 came about after Mr. Kemp informed Mr. Wood by letter dated November 30, 1988, of the availability of additional job placement units which CARE could apply for. Shortly after Z3248 was doubled in December, 1988, Mr. Faughn approached Mr. Spradlin and recommended that the contract be doubled a second time. The second recommendation to increase Z3248 was denied by Mr. Spradlin. Mr. Spradlin declined approval because he thought that there were certain costs incurred by contractors which did not increase as the number of participants increased. Therefore, as the number of participants increased, the amount of a contractor's profit per participant increased. Mr. Spradlin did not believe this was appropriate. Mr. Faughn was upset with Mr. Spradlin's denial of the second request to increase Z3248. Mr. Spradlin, who indicated that most contract managers tend to support the contractors of the contracts they manage, was surprised at the level of Mr. Faughn's interest in the increase. The weight of the evidence proved that Mr. Faughn's actions in recommending the second increase in Z3248 were inconsistent with the proper performance of his public duties. Although it was not inconsistent for a contract manager to recommend that a contract be increased, Mr. Faughn's reaction to Mr. Spradlin's decision not to approve the second increase coupled with Mr. Faughn's motive for benefiting CARE and Mr. Wood supports a conclusion that Mr. Faughn did not recommend the second increase as part of the performance of his public duties. Instead, Mr. Faughn's recommendation to increase Z3248 was made corruptly. The Performance of Mr. Faughn's Duties: Review of Training Hours. The contract for Z3248 (Respondent's Exhibit 5) contained the following relevant provisions concerning training required by CARE: CARE was to provide Employability Skills Training, Occupational Skills Training and On-the-Job Training (hereinafter referred to, respectively as "EST", "OST" and "OJT"). As is normally the case with these type contracts, it was contemplated in the Z3248 contract that EST would be completed before participants began unsubsidized employment: Upon completion of training, participants will then put their skills to practical use by searching for jobs and having actual personal contact with employers. . . . [Emphasis added]. Page 6, Respondent's Exhibit 5. It was contemplated in the contract that OJT would require 8 to 10 weeks to provide: While some training may be limited to the minimum of two weeks, it is anticipated that clients will require between 8-10 weeks of training. Page 7, Respondent's Exhibit 5. Customized training was also a possibility under the contract: This training may be used for the needs of the employer with a written commitment from an employer to employ the trainee after successful completion of training. The predominate activity will be on-the-job training, but could include classroom training. Page 7, Respondent's Exhibit 5. Finally, the contract provided that "[t]he average length of training for OST/EST/OJT should average 235 hours for each participant." Page 12, Respondent's Exhibit 5. It is to a contractor's advantage to report higher training hours. As part of its contract with LES, CARE was required to forward LES Form 104 to Mr. Faughn each time a participant was placed in employment. (Stipulated Fact). This form was used as an invoice for payment for the placement of a participant in 30 days unsubsidized employment. CARE was also required to file LES Form MIS 2. Form MIS 2 was to be used to report, among other things, each participant's date of enrollment, any change in status and the date of termination. The contract also required that "[i]f the contractor is the OST training agency, the participant's total training hours for EST and OST and/or OJT (whichever applies) must be written on the bottom of the MIS 2 Form for termination." Page 13, Respondent's Exhibit 5. CARE filed MIS 2 Forms for its participants and reported the enrollment and termination date for each participant and the hours of EST, OST and OJT (although the training hours information was not included at the bottom of the page). See Advocate's Exhibit 7. CARE also filed an LET 104 Form for its participants. On the LET 104 CARE was to report, among other things: Block 6: The date that the participant began unsubsidized employment. Although it is possible that training can continue after this date, this date is usually a date after all training has ended. It would be very unusual and unlikely that training continued after the date unsubsidized employment began. Block 8: The starting and ending date for OJT. Block 11: The "Total Hours Trained." There was conflicting testimony as to what the information contained in this part of the form signifies. Based upon the weight of the evidence (primarily the testimony of Carol Marks of LES's Bureau of Job Training Compliance and Mr. Chilcote), more information concerning a contract is needed to determine what the information means. Blocks 13 and 15: Finally, the date the form is signed. This date should be at least 30 days after the date unsubsidized employment began. The purpose of the LET 104 was to certify that a participant had completed the required 30 days minimum of unsubsidized employment. Meeting this requirement entitled CARE to payment of $2,317.29 per participant. To determine if CARE was entitled to payment, the date the LET 104 was signed had to be at least 30 days after the starting date of unsubsidized employment reported in block 6 of the LET 104. Each LET 104 and MIS 2 is filed with the contract manager. The contract manager must review each MIS 2. The contract manager must also review each LET 104 to determine if the contractor is entitled to payment. If so, the LET 104 Form is reviewed by the contract manager's supervisor, is then sent to the Bureau of Financial Management and then goes to the Comptroller for payment to the contractor. Participants usually are required to train 40 hours a week. Although it is possible to train for more than 40 hours, it is unlikely that more than 40 hours would be expended by any participant. Based on the Total Hours Trained reported on the LET 104's filed by CARE for Z3248 and the period of time of OJT reported on the LET 104's, CARE participants were investing from 61 to 129 hours a week in OJT. When the Total Hours Trained reported are compared with the period of time from the enrollment date reported on the MIS 2's to the date unsubsidized employment began, although participants spent fewer hours per week, most of them still allegedly were spending more than 40 hours a week in training: from 33.5 to 70.5 hours per week. Mr. Faughn, after reviewing the LET 104's and MIS 2's filed by CARE on Z3248, did not raise any question about the number of training hours being reported by CARE. The testimony concerning whether Mr. Faughn should have noticed and raised some question concerning the Total Hours Trained reported by CARE, was conflicting: Mr. Geier, from the Office of the Inspector General of LES, divided the Total Hours Trained by the number of days of OJT reported in the LET 104's and by the number of days between each participant's enrollment date from the MIS 2's and the date unsubsidized employment began. His calculations, which are contained on Advocate's Exhibits 7 and 8, respectively, indicate that most participants may have been receiving more than 40 hours a week of training. See Finding of Fact 52. Mr. Geier believed that Mr. Faughn should have at least raised a question about the numbers reported as Total Hours Trained. Mr. Chilcote, Mr. Faughn's immediate supervisor, disagreed with Mr. Geier's conclusion: Mr. Chilcote pointed out that contract managers have to review several LET 104's a day (LET 104's were delivered in stacks of 20 to 30 and involved more than 1 contract and, on average, Mr. Faughn reviewed 8 to 10 a day). Mr. Chilcote also explained that contract managers do not have the time to make the calculations that Mr. Geier made. In order to make the calculations Mr. Geier made, it was necessary for Mr. Geier to count the number of possible days of training and then divide the Total Hours Trained by the number of days. Although not a difficult calculation, the evidence failed to prove that the calculation is one that contract managers normally make. Additionally, Mr. Geier had to obtain some of the relevant information necessary to make the calculations from the LET 104's and from MIS 2's. If block 11, Total Hours Trained, was only for OJT hours, Mr. Chilcote agreed that Mr. Faughn should have been alarmed. Block 11, however, was being used to report all training hours: EST, OST and OJT. Mr. Faughn should have been aware that CARE was reporting all of its alleged training hours in block 11 and not just OJT. Therefore, Mr. Faughn did not believe that Block 11 was intended to represent just OJT. Mr. Chilcote did not believe that lumping the hours of EST, OST and OJT was unusual. The Total Hours Trained reported on the LET 104's were not the significant information that contract managers were supposed to review. The purpose of the LET 104 is for contractors to certify that a participant has completed, in this case, 30 hours of unsubsidized employment. Therefore, the most important information on the LET 104 is the date unsubsidized employment began and the date the form was signed. Mr. Faughn initially rejected one payment and wrote to CARE when the information concerning when unsubsidized employment began and the date the form was signed for one participant did not indicate that the participant had been through 30 days of unsubsidized employment. See Respondent's Exhibit 8. Based upon the weight of the evidence, it is concluded that the evidence failed to prove that Mr. Faughn should have questioned the hours being reported as Total Hours Trained by CARE on the LET 104's. In light of the fact that the Total Hours Reported included all hours of training, not just OJT, the fact that Mr. Faughn was aware that the contract required EST, OST and OJT, and the fact that the LET 104's were primarily used to receive payment for 30 days of unsubsidized employment, dividing the Total Hours Trained by the number of days of OJT was not something Mr. Faughn would be expected to do as part of his job. The results of dividing the Total Hours Trained by the number of days from enrollment to the beginning of unsubsidized employment (Advocate's Exhibit also does not support a conclusion that Mr. Faughn should have questioned the information because the results of this computation do not show as great a discrepancy and the evidence failed to prove that Mr. Faughn should have been comparing the information contained on the LET 104's with the information contained on the MIS 2's necessary to make this computation. The Performance of Mr. Faughn's Duties: CARE's Match. CARE was required to provide "Match" on Z3248. "Match" is a requirement that a contractor provide a certain specified amount of time, equipment or 50% of OJT costs. In the case of Z3248, CARE was required to provide 50% of OJT Costs. CARE was required to report the amount of its match monthly on line 7 of a "Report of Monthly Cumulative Matching Contribution-Summary." CARE did in fact file such reports and, according to its reports, provided the required match. The evidence failed to prove that CARE failed to fulfill this requirement. In April, 1989, Ms. Marks and James Harris from LES's Bureau of Job Training Compliance made a site visit to CARE. The Bureau of Job Training Compliance was responsible for auditing contractors to determine whether they were complying with the requirements of their contracts. Ms. Marks and Mr. Harris spent approximately one-half of a day on the visit to CARE. Mr. Harris, who monitored fiscal matters, attempted to find documentation in the form of OJT agreements and time sheets to verify CARE's match of $6,398.00 reported for March, 1989. Mr. Harris was not successful and requested these documents from Mr. Wood. Mr. Wood informed Mr. Harris that the documentation for the $6,398.00 of March, 1989, Match was not available. Mr. Harris told Mr. Wood that the $6,398.00 would have to be removed and Mr. Wood informed Mr. Harris that it would be. Mr. Harris informed Mr. Faughn of the problem concerning the $6,398.00 of unsupported match. Mr. Harris also told Mr. Faughn that Mr. Wood had indicated that the $6,398.00 would be removed from CARE's reported Match. On June 26, 1989, a letter was sent to Mr. Wood from Ron Rigby, LET Supervisor, Bureau of Job Training of LES, stating, among other things, the following: In regard to the finding as noted in the fiscal review, documentation submitted is inadequate to support matching contributions of $6,398 for employer's OJT costs. You are requested to submit employers' OJT agreements and participants' time sheets which may be used to adequately document the matching contributions. We recommend that if adequate documentation is not submitted, the match contributions of $6,398 be deleted from the match report. A copy of the June 26, 1989, letter to Mr. Wood was provided to Mr. Faughn and Mr. Chilcote with a note from Mr. Spradlin which stated: What action will this require if enacted, i.e. are they already short of match or would they be without this etc. Pls track this along with the Gretna thing until resolution. Although there was some dispute over who had the ultimate responsibility for following up on the documentation for the $6,398.00 match, the weight of the evidence proved that while ultimate responsibility may have rested with the monitors of the Bureau of Job Training Compliance, Mr. Faughn had the responsibility to follow up on this matter also. Mr. Faughn had the responsibility as the contract manager and because he was directed by Mr. Spradlin to follow up until resolution. Although there was conflicting testimony concerning whether the documentation was ever provided, it is concluded that it was not. Mr. Faughn's testimony was disputed by other witnesses and, throughout the proceeding, was less than candid. Although the disappearance, and reappearance a few years later, of a file in which the documentation might have been kept and the fact that Mr. Harris left employment with LES in July, 1989, at the time of these events raises some question about whether the documents were provided, ultimately, Ms. Gloria Barton's testimony that the documentation was not provided was persuasive. Ms. Barton took over responsibility for the matter after Mr. Harris left LES. Ms. Barton asked Mr. Faughn about the documentation twice and made a note on August 8, 1989, to this effect. Ultimately CARE reported that it provided more match than it was required to provide. The weight of the evidence failed to prove that it did not meet its match requirement. Although the lack of documentation for a part of the reported match raises a question in the undersigned's mind concerning the accuracy of the other reported match, no evidence was presented to indicate that the required match was not ultimately provided. Nor was any evidence provided that anyone at LES also had such a concern. The weight of the evidence failed to prove that Mr. Faughn's actions with regard to whether CARE's match constituted some act or omission inconsistent with the proper performance of Mr. Faughn's public duties. The evidence, therefore, failed to prove that Mr. Faughn acted corruptly by not following up on the $6,398.00 of match questioned by Mr. Harris. J. The Performance of Mr. Faughn's Duties: Z3458. In March, 1989, Mr. Faughn approached Lucy Shepard, who acted as liaison between DHRS and LES on Z3458, and Carol Ann Breyer of FAEH and recommended that CARE and Mr. Wood be considered as a service provider. (Stipulated Fact). On April 29, 1989, Mr. Faughn held a barbecue at his home for the purpose of getting CARE together with DHRS and FAEH. Ms. Shepard, Charis Wickers of FAEH and Mr. Wood, among others, attended the barbecue. (Stipulated Fact). Mr. Faughn was very enthusiastic in his recommendation that CARE be awarded a contracted from FAEH. It was unusual for a contract manager to suggest service providers. As the contract manager of the ultimate contract from LES, Ms. Shepard, Ms. Breyer and Ms. Wickers were all influenced by Mr. Faughn's recommendation. Although Ms. Shepard, Ms. Wickers and Ms. Breyer all had reservations (based upon the fact that they had not heard of CARE as a provider of mental health services) about entering into a contract with CARE, they ultimately went along because of Mr. Faughn's recommendation and because the contract with CARE was performance based: if CARE did not perform, CARE would be paid nothing. After the contract was entered into with CARE, invoices were submitted. Ultimately, invoices for at least 100 placements were submitted. Ms. Shepard, Ms. Wickers and Ms. Breyer all raised questions with Mr. Faughn about their suspicions and concerns over whether CARE was performing the work it was reporting. Ms. Wickers complained more than once that CARE was not keeping sufficient contact with FAEH. Ms. Breyer questioned CARE's ability to perform as it was reporting. Although Mr. Faughn was not the contract manager of the contract to FAEH, Mr. Faughn and FAEH representatives knew that DHRS and Florida Community College were "pass-thrus" and that the most significant parties were FAEH and LES. Whenever Mr. Faughn was informed of the concerns of Ms. Shepard, Ms. Wickers and Ms. Breyer, Mr. Faughn would assure them that everything was okay, that CARE would perform and he would tell them not to worry. The invoices submitted by CARE were suspicious because they reported employment that mentally handicapped individuals normally do not obtain and some of the telephone numbers and addresses of employers were very similar. Eventually, Ms. Breyer took her concerns about the invoices to Mr. Kemp of LES. She did not go to Mr. Faughn because of his enthusiasm in recommending CARE and his lack of attention to her previous complaints. CARE was not paid any amount by FAEH. The weight of the evidence proved that Mr. Faughn's actions in recommending CARE for Z3458 and in ignoring the complaints against CARE were acts or omissions inconsistent with the proper performance of Mr. Faughn's public duties. But for his relationship with Mr. Wood and his desire to benefit himself indirectly through CARE and Mr. Wood, it is concluded that Mr. Faughn would not have supported CARE as a contractor in the manner that he did and that he should have taken the complaints against CARE more seriously. Therefore, the evidence proved that Mr. Faughn acted corruptly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that John Daniel Faughn violated Section 112.313(6), Florida Statutes. It is further RECOMMENDED that the Commission suspend Mr. Faughn without pay for one month and demote him to a position in which he will not have direct or indirect responsibility for public funds. If Mr. Faughn cannot be demoted to such a position, it is recommended that the Commission suspend him without pay for a period of two months. DONE and ENTERED this day of June, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of June, 1992. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. 1 1. 2 2. 3 5. 4 6. B. 1 7. 2 8. 3 9. 4 Not relevant. See 10. C. 1 11. 2 12 and 21. 3 12 and 14. 4 13. 5 37. Hereby accepted. Not supported by the weight of the evidence. 8 18 and 21. 9 18. 10 19. 11 21. 12 80. D. 1 22-23. 2 24-25. 3 26. 4 27. 5 28-31. 6 31. 7 34. 8 33. 9 31 and 34. 10-14 34. 15 34-36. E. 1 37 and 39. 2 40. 3 41. 4 Not supported by the weight of the evidence. 5 45. 6 48. Hereby accepted. But see 55. See 52 and 54. 51. The Respondent did not have the burden of proving that over 40 hours of training per week was provided. The burden of proof was on the Advocate. See 48. 11 47-48. 12 51. 13 The burden of proof was on the Advocate to prove that participants did not receive training after being placed in unsubsidized employment. Although the evidence raised doubt about whether such training was provided, the evidence did not prove this fact. 14 See 54-55. 15 44. Hereby accepted. But see 55. See 55. Except for the first sentence, this proposed finding of fact is not supported by the weight of the evidence. 18 65. 19 58 and 60. 20 56. 21 63-64. 22-25 66. Not supported by the weight of the evidence. See 67. 69 and hereby accepted. 28 70. 29 71. 30 73 and 76. 31 21 and 73. 32-33 75 and 77. 34 78-79. 35 Not relevant. 36 79. 37 80. 38 33-36. The last paragraph is not supported by the weight of the evidence. Mr. Faughn's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 5. 4 5 and 50. 5 12-16. 6 17, 45 and 49. 7 38. 37 and hereby accepted. Not supported by the weight of the evidence. The evidence failed to prove whether CARE fulfilled its obligations or whether it failed to fulfill its obligations. The evidence failed to prove that Mr. Faughn's performance "was exactly as it should have been." See 22, 45 and 47. The third sentence is hereby accepted. 11-12 Not supported by the weight of the evidence. 13 18, 20 and 69. 14 70. 15 Not supported by the weight of the evidence. 16 21 and 71. Not supported by the weight of the evidence. See 75 and 77. Not supported by the weight of the evidence. See 73 and 76. Not supported by the weight of the evidence. See 81. 33 and See 34-36. The evidence failed to prove that the sole purpose of the $4,500.00 check was for materials. Not supported by the weight of the evidence. See 35- 36. See 55. Not supported by the weight of the evidence. See 42 and 81. 24 See 6, 65 and 68. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Ronald L. Jones, Esquire 1020 East Lafayette Street, Suite 108 Tallahassee, Florida 32301 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue is whether Petitioner is entitled to a vocational evaluation for formal training and education sponsored by the Division of Worker’s Compensation, pursuant to Section 440.491(6), Florida Statutes.
Findings Of Fact On April 30, 1996, Petitioner herniated a disc while lifting materials in the course of his employment as an electrician with General Electric Contracting. He was working at the time as a lead electrician doing residential and commercial installations and repairs. Petitioner underwent low-back surgery about a year later. On May 21, 1997, the surgeon determined that Petitioner had reached maximum medical improvement. The surgeon assigned Petitioner a 9 percent impairment rating and restricted him to lifting up to 35 pounds occasionally, up to 20 pounds frequently, standing and walking four to six hours during an eight-hour day, and driving five to eight hours during an eight-hour day. The surgeon advised Petitioner to avoid bending, squatting, and crawling. Petitioner is 50 years old. He has a high school diploma. Apart from one year's additional coursework in business at a community college, Petitioner has no other formal education. At the time of his injury, Petitioner had been employed as an electrician at General Electric Contracting for six or seven years. After high school, Petitioner served in the U.S. Navy from 1966-70, specializing in weapons. After his honorable discharge, Petitioner worked for two years in route sales--the first year selling ice cream and the second year selling pet supplies. After these jobs, Petitioner began working as an electrician. Petitioner has since worked continuously as an electrician except for the period from 1975-78. During this time, Petitioner opened a sporting goods store in East Fort Myers devoted exclusively to hunting and fishing. Failing to obtain financing for his business, which was not very profitable, Petitioner tried to sell the store, but could obtain no more than the cost of the inventory. He then returned to work as an electrician. Due to his physical limitations occasioned by his work-related injury and surgery, Petitioner can no longer work as an electrician. At the time of his injury, Petitioner was earning an average weekly wage of $554.86. Petitioner has vigorously attempted to find suitable appropriate employment, given his past earnings and current physical limitations. Respondent has given him two job leads as a Code inspector. However, Petitioner failed to get the first job. His application for the second is still pending, but he has not been called for an interview in the six weeks since submitting his application. There is some question whether Petitioner can do the job, which may require bending, squatting, and lifting, but Petitioner has nonetheless pursued this opportunity enthusiastically. On July 9, 1997, Petitioner submitted a request for screening to determine his suitability for a vocational evaluation. Respondent conducted the screening and determined that Petitioner has sufficient transferable skills to allow him to return to suitable gainful employment without a vocational evaluation or vocational training or education. In defending this decision, Respondent's witnesses emphasize the negotiation and marketing skills that Petitioner has presumably developed in his long career as an electrician. However, there is no evidence that Petitioner has developed such skills in any of his prior employment. Respondent's witnesses also emphasize the managerial and bookkeeping skills that Petitioner has also presumably developed, but, again, the record does not reveal that Respondent developed marketable skills of these types in his prior employment. Besides the two leads as a Code inspector, the other leads that Respondent has supplied Petitioner are unsuitable due to physical demands or pay, require skills that Petitioner does not possess, are unavailable in Southwest Florida, or present little chance for employment for a person of Petitioner's education, age, and background. In satisfying his burden of proving entitlement to a vocational evaluation in order to obtain suitable gainful employment, Petitioner's months of good faith, but unsuccessful, job searching persuade more than Respondent's well-intentioned, but speculative or unsuitable, job leads. It is now time for Respondent to provide Petitioner with a vocational evaluation.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order granting Petitioner’s request for training and education sponsored by the Division. DONE AND ENTERED this 13th day of May, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1998. COPIES FURNISHED: Peter C. Burkert Burkert & Hart Post Office Box 2485 Fort Myers, Florida 33902-2485 Attorney Michael G. Moore, Sr. Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Edward A. Dion, General Counsel Office of the General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue The issue is whether Respondent unlawfully determined that the proper way to return Petitioner to suitable gainful employment is through direct job placement, rather than job retraining.
Findings Of Fact Petitioner was born on October 3, 1958. She has been a licensed practical nurse in Florida since 1983. On April 7, 1998, while working as a licensed practical nurse, Petitioner slipped on a wet floor at work and sustained injuries to her right elbow, leg, and back. On August 27, 1998, while in transit to a workers' compensation clinic, Petitioner was involved in an automobile accident in which she sustained a cervical strain and sprain. On October 28, 1998, Petitioner was sitting at work, where she had been assigned light duty, when her chair rolled out from under her, causing her to fall and sustain injuries to her back and neck. Petitioner has not worked since sustaining these last injuries. A physician determined that Petitioner reached maximum medical improvement on April 10, 2000, at which time she had a 23 percent permanent impairment to the body as a whole. Among the physician's diagnoses were concussion with memory disturbances and cognitive difficulties. The physician determined that nearly 60 percent of Petitioner's permanent disability was attributable to "cerebral dysfunction." Among the physician's restrictions were avoiding lifting more than 20 pounds and pushing or pulling and limiting walking, standing, bending, and kneeling. Petitioner first contacted Respondent for job retraining services on January 10, 2001. At the conclusion of an orientation sponsored by Respondent on January 24, 2001, Petitioner signed a request for screening. After examining the file, the Respondent's Vocational Rehabilitation Consultant determined that Petitioner could find suitable gainful employment through direct job placement, rather than job retraining. In particular, the consultant relied on Petitioner's transferable skills and work history. After factoring in her restrictions, the consultant determined that Petitioner could still earn over half of what she had been earning as a licensed practical nurse prior to her first accident. Petitioner complains of delays in Respondent's processing of her request for job retraining services. However, no such delays existed in this case. Nor can Petitioner legitimately seek reimbursement for accounting courses that she began a mere five days after signing the request for screening. Obviously, she did not pursue this alternative after exhausting her options with Respondent and the services that it offers. A transferable skills analysis reveals that Petitioner could obtain suitable gainful employment by direct job placement in various nursing fields, and possibly also certain accounting fields. Clearly, the better approach to the vocational rehabilitation of Petitioner is direct job placement. If Petitioner is able to find and keep suitable gainful employment, she will have obviated the necessity of considering the extent to which her cognitive difficulties may restrict effective job retraining.
Recommendation It is RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing Petitioner's request for job retraining services. DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2002. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Elizabeth Teegen, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Silvia Valdes 4336 Southwest 48th Court Fort Lauderdale, Florida 33314 Elana J. Jones, Senior Attorney Department of Labor and Employment Security 2012 Capital Circle Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
