The Issue Whether Petitioner, Steven A. Ramunni (Petitioner), employed by a city as a part-time city attorney, is entitled to membership and service credit in the Florida Retirement System (FRS) from October 1, 2003, through the present.
Findings Of Fact Based on the evidence, the following Findings of Fact are determined. The City is a Florida municipal corporation classified as a local agency, which participates in the FRS. The city attorney is a regularly-established position, pursuant to Article IV of the Charter of the City. The City has no legal department. The cost for legal services rendered by its city attorney is included as a line item in the City's annual budget. The position is part-time, and Petitioner is permitted to engage in the private practice of law. The city attorney's immediate supervisors are the mayor and City Council of Moore Haven (City Council). Petitioner's primary legal duties consist of mandatory appearances at two regularly-scheduled monthly meetings and attendance at special meetings or workshops, scheduled by the mayor. The meetings always take place in City Council chambers in Moore Haven, Florida. Petitioner's legal duties and the dates and times of all meetings are subject to the discretion and control of the City Council. Petitioner regularly reports to City Council at each meeting. Petitioner provides legal advice/opinions to the mayor, City Council, and to all city department heads. City Council prioritizes all matters assigned to Petitioner. Petitioner represents the City in all litigation and official business. The Petitioner is paid a monthly salary for attendance at the above-described meetings and is obligated to be available, as needed, by city staff or individual council members on a daily basis, if necessary. The salary paid to Petitioner is in the form of W-2 wages, pursuant to the Internal Revenue Service classification. Other legal work is billed to the City by invoice in a pay-as-you-go basis for legal services requested beyond the scope of Petitioner's regular part-time services. The City provides administrative assistance to Petitioner when he is engaged in legal projects for the City and some supplies. Petitioner has no equipment and has limited office space on City premises. More recently, the City hired a city manager whose responsibility, in part, is to draft proposed legislation for review by Petitioner. All costs or expenses incurred by Petitioner are reimbursed by the City. The City hires and supervises the administrative staff. The City pays for legal seminars attended by Petitioner that are related to administrative and local government law. Petitioner is reimbursed for any per diem expenses incurred while performing the City's official business, including travel to and from those seminars. Petitioner has continuously performed legal services as the part-time city attorney since November 25, 1986. Petitioner is hired annually on October 1st (the beginning of the fiscal year), by the majority vote of City Council. Petitioner's services can be ended at will. Likewise, Petitioner can resign at will; there is no written employment contract with Petitioner. The City may not instruct Petitioner how to do his job as an attorney, although the City does have some control over what course of action or inaction he may take in a particular case. As a part-time city attorney, Petitioner may not substitute another attorney to provide legal services assigned to him by the City without expressed authority and approval of the proposed new attorney from City Council and the mayor. Pursuant to an oral employment agreement between Petitioner and City Council on October 1, 2003, Petitioner was included in the FRS. In addition, Social Security and Medicare taxes were paid by the City, and Petitioner was classified as a W-2 employee. The oral employment agreement has been renewed annually since October 1, 2003. However, on October 1, 2007, Petitioner was elevated to Senior Management Classification, under the State of Florida Classification System. Petitioner is paid as an employee. The City reports to state and Federal agencies that annual earned income to Petitioner as "wages for income tax purposes by form W-2." As such, Federal income taxes are withheld and Federal Social Security and Medicare deductions are withheld from Petitioner's annual pay. The City matches contributions for Petitioner's Social Security and Medicare payments. When not engaged in city business, Petitioner is a partner in a law firm, with its principal place of business in Ft. Myers, Florida, from which he offers his legal services to the general public. The City employs other part-time employees, who are all included in the FRS. All part-time employees, including Petitioner, do not receive any additional benefits from the City. Some of these part-time employees have "side jobs" while not in the employ of the City. At least one similarly-situated person, E. Dan Stevens (Stevens), who was employed as the part-time Hendry County attorney prior to 1997 and again in 1999, was not included in the FRS. Stevens, while serving as part-time Hendry County attorney, also maintained a private law practice in the State of Florida and also in the State of Michigan. The evidence demonstrates that the position of city attorney is a regularly-established position as defined by law and the rules of Respondent. The evidence demonstrates that Petitioner's relationship as the part-time city attorney is that of an "independent contractor" with the City, as that term is defined by law and rule. Therefore, he is not eligible for participation in the FRS from October 1, 2003, through present.
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 denying Petitioner's request for membership and service credit in the FRS from October 1, 2003, through the present. DONE AND ENTERED this 3rd day of November, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2010.
Findings Of Fact In recommending that the Public Employees Relations Commission uphold HRS' demotion of petitioner Linda Cook Allen, PERC Hearing Officer Rix wrote: In the instant case, HRS demoted Allen without conducting a special performance appraisal as required by rule 22A-9.009. Rather, Allen was demoted pursuant to HRS Regulation No. 60-10 Section 5(a)(2). This section provides that: As related to this regulation, an employee shall not be demoted as a form of disciplinary action. Rather, this type of action may be used to remove an employee from his class when the employee fails to perform his assigned duties at a satisfactory level. There must be specific documented reasons for such demotion supported by employee performance appraisals and/or documented counseling sessions. See (Exhibit A-10). In short, Powell evaluated Allen's performance over a nine- week period and then initiated action to demote Allen because Powell perceived that Allen was not carrying out her job duties competently. The evidence demonstrates that Powell conducted several counselling sessions with Allen over the nine-week period, which Powell documented pursuant to the above-cited regulation. Recommended Order, page 11. Adopting the Recommended Order, PERC upheld petitioner's demotion from pay grade 19 to pay grade 15, on account of numerous performance deficiencies. The letter HRS sent Ms. Allen notifying her of her demotion made no mention of HRS Regulation No. 60-10. HRS does not have any policy or general practice to rely on "documented counseling sessions" in lieu of employee evaluations before demotions. On September 17, 1990, HRS had in fact prepared a written employee appraisal detailing petitioner's derelictions as a protective investigator, HRS Exhibit No. 3, but petitioner prevailed on a grievance she pursued in connection with the evaluation.
Recommendation It is, accordingly, ORDERED: The petition for administrative determination of rule by hearing officer is denied. DONE and ENTERED this 26th day of March, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 26th day of March, 1992. APPENDIX Petitioner's proposed finding of fact No. 1 was neither established nor refuted. Petitioner's proposed findings of fact Nos. 2 through 7 and 11 through 15 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 8, 9 and 10 are properly conclusions of law. Petitioner's proposed findings of fact Nos. 16, 17 and 18 pertain to subordinate matters. COPIES FURNISHED: James C. McCarty, Esquire P.O. Box 2883 Gainesville, FL 32602 Robert L. Powell, Sr., Esquire Department of Health and Rehabilitative Services 407 Building One 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issue is whether Respondent's statements as set forth in a letter dated April 30, 2001, are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Respondent is an agency of the State of Florida. At all times relevant here, the Florida Capitol Police was a division within Respondent's Facilities Program. The Florida Capitol Police is an accredited law enforcement agency. Its purpose is to provide building security and other law enforcement services. The State of Florida employs individuals in one of four distinct, statutorily defined services: Senior Management Service, Selected Exempt Service, Career Service, or Other Personal Services. At all times relevant here, the Director of Florida Capitol Police was an employment position that was classified within the Senior Management Service. Petitioner is a sworn law enforcement officer. On February 24, 1998, Respondent offered Petitioner an appointment to the position of Director of Florida Capitol Police. At that time, Petitioner understood that the appointment was to a position classified within the Senior Management Service. To the extent possible, Petitioner negotiated the terms of his employment. However, he understood that his position as Director of Florida Capitol Police included all of the benefits and all of the terms of employment of a position established within the Senior Management Service. He knew that he would serve at the pleasure of Respondent's Secretary, as the agency head, if he accepted the job. On February 25, 1998, Petitioner accepted the appointment to Director of Florida Capitol Police. He executed a document acknowledging that he was relinquishing his career service rights. From that time forward, Petitioner was compensated and evaluated as a Senior Management Service employee. He enjoyed all the benefits of his new position. Petitioner was the highest-ranking sworn law enforcement officer in the Florida Capitol Police, holding the "rank" of colonel. He did not report to any higher sworn law enforcement officer. As Director of Florida Capitol Police, Petitioner was responsible for leading and directing the operation of a statewide law enforcement organization, including the administration and oversight of a $6.2 million-dollar budget. Part of Petitioner's duties required him to maintain appropriate relationships with the Sheriff of Leon County and the Chief of the Tallahassee Police Department for support in joint operations when necessary. Petitioner was a member of the Florida Police Chiefs' Association, the State Law Enforcement Chiefs' Association, and the National Police Chiefs' Association. In 1999, a former employee of the Florida Capitol Police commenced a legal action in the United States District Court for the Northern District of Florida against Respondent. The former employee alleged sex discrimination and sexual harassment by the Florida Capitol Police, specifically by Petitioner. A trial was conducted in the lawsuit, Goldwich v. Department of Management Services, USDC ND Fla., Case No. 99-CV-512 (1999) in early February 2001. Petitioner testified as a defense witness at the trial. Several other Florida Capitol Police officers were interviewed as potential witnesses or called to testify at the trial. Respondent prevailed in the district court action. On February 2, 2001, Respondent's Secretary transferred the internal affairs investigation function of the Florida Capitol Police from the Florida Capitol Police to Respondent's Office of Inspector General. Thereafter, the Chief Investigator, Captain Joe Wallace, worked out of the Inspector General's office. On February 15, 2001, Petitioner and Respondent's Inspector General entered into a Memorandum of Understanding regarding the "credentialing" of Chief Investigator Wallace. The purpose of the memorandum was to formulate and establish a commitment between the Office of the Inspector General and the Florida Capitol Police to support the training and educational requirements for sworn law enforcement personnel assigned to each entity. On March 2, 2001, Respondent's Office of the Inspector General received an internal complaint from Sergeant Edwin Maxwell, a subordinate officer of the Florida Capitol Police. Said complaint alleged that Petitioner had retaliated against Sergeant Maxwell for testifying at the Goldwich trial. Sergeant Maxwell's allegations also implicated Petitioner's subordinate, Major Robert G. Tippett, as having participated in the alleged retaliation. On or about March 7, 2001, Respondent's Inspector General instructed Petitioner to report to the Florida Capitol Building, specifically to the offices of the Governor's Chief Inspector General. Respondent's Inspector General, Chief Investigator Wallace, and an Assistant Florida Inspector General from the Governor's Office of Inspector General were present when Petitioner arrived at the Capitol. At that time, Petitioner was presented with a memorandum advising that he was the subject of a formal investigation. The March 7, 2001, memorandum stated that Respondent's Inspector General initiated the investigation pursuant to a complaint. According to the memorandum, the principal allegation that formed the basis of the investigation was that Petitioner had engaged in one or more of the following: retaliation, conduct unbecoming, and/or violation of law. Sergeant Maxwell's complaint and a copy of Section 112.532, Florida Statutes, was attached to the memorandum. During the March 7, 2001, meeting at the Capitol, Respondent's Inspector General advised Petitioner that he had a right to representation by counsel. After a brief discussion, Petitioner elected to seek private counsel. Later on March 7, 2001, Petitioner and his attorney returned to the Governor's suite at the Capitol. Upon their arrival, Petitioner was advised again of his rights under the law enforcement officers' and correctional officers' rights, which are codified at Section 112.532, Florida Statutes. Respondent's Inspector General and Chief Investigator Wallace then proceeded to interview Petitioner. Respondent's Inspector General inquired into the complaint against Major Tippett, performed an investigation, and issued an Executive Summary of the investigation dated March 22, 2001. This report concluded that Major Tippett's alleged violations related to conduct unbecoming, retaliation, and violation of law were unfounded. Respondent's Inspector General inquired into the complaint against Petitioner, performed an investigation, and prepared a draft report of the investigation. After consulting with the Chief Inspector General in the Office of the Governor, Respondent's Inspector General issued an Executive Summary of the investigation dated March 26, 2001. This report concluded that Petitioner had engaged in conduct unbecoming. The report also concluded that other alleged violations by Petitioner, including retaliation and violation of law, were unfounded. According to the March 26, 2001, Executive Summary, Respondent's Inspector General recommended that Petitioner be removed from his position as Director of Florida Capitol Police. The report states as follows in relevant part: This recommendation is made after carefully considering the following factors and informed by the fact that the Director serves entirely at the discretion of the secretary: The previous OIG report related to Capitol Police and the issues raised therein. (See attached) The finding of the jury in the US District Court case, filed by Officer Lisa Goldwich, that her working conditions were made so intolerable, by the defendant, that she was forced to resign. (See attached) The finding of "conduct unbecoming an employee/officer" contained in the report above. The likelihood that future retaliation will be attempted against those individuals who participated in the Goldwich trial and against those who testified in the OIG investigation reported above. The ongoing morale problem within the Florida Capitol Police. Subsequently, Respondent's Inspector General prepared a Memorandum of Investigation dated April 2, 2001. This memorandum states again that allegations against Petitioner relative to retaliation and violation of law were unfounded but that allegations relative to conduct unbecoming were founded. The April 2, 2001, memorandum cites Respondent's Policies and Procedures Manual, Section 3.27, Discipline of Career Service Employees, as it relates to conduct unbecoming a public employee. It also cites to Section 110.403(1)(a), Florida Statutes, for the proposition that Respondent's Secretary had discretion to discipline Senior Management Service employees. On or about April 3, 2001, Petitioner and Major Tippett filed a civil suit in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Case No. 01-821. This suit included an Emergency Motion for Temporary Injunctive and Declaratory Relief. It alleged violations of Sections 112.532, 112.533, and 112.534, Florida Statutes. Petitioner subsequently voluntarily dismissed this civil action. On or about April 3, 2001, the General Counsel in the Office of the Governor, requested the Florida Department of Law Enforcement (FDLE) to review and complete Respondent's internal investigation. Thereafter, FDLE's Inspector General performed an investigation into the complaint against Petitioner and Major Tippett. FDLE's Inspector General eventually prepared an undated report of its review and investigation. The FDLE report states as follows in relevant part: As mentioned previously, the OIG report concludes that the alleged violations against Major Tippett were all unfounded. The alleged violations against Colonel Meek for (1) Retaliation and (2) Violation of Law were unfounded. The violation against Colonel Meek for Conduct Unbecoming was founded. Conduct Unbecoming a public employee is a violation of DMS Policy, Section 3.27(C)(2)(e). There is no definition of "Conduct Unbecoming" in DMS' policies or administrative rules. Based upon the interview of the subordinate supervisors regarding the statements made by Colonel Meek, the conclusions rendered by OIG are reasonable. Near the completion of the OIG investigation, IG Varnado prepared a draft report and discussed it with the Chief Inspector General, Marcia Cooke. The draft report did not contain any recommendation regarding a recommended action for the founded violation of Conduct Unbecoming. CIG Cooke instructed IG Varnado to include such a recommendation. IG Varnado recommended that Colonel Meek be removed from his position and discussed the recommendation with Secretary Cynthia Henderson. This RECOMMENDATION was included in the INVESTIGATIVE REPORT dated April 2, 2001. The RECOMMENDATION contained five cited reasons to support Colonel Meek's removal. The OIG investigative report does not specifically support reasons (1), (4), and (5). However, based upon the below recommendation, further discussion of these items is rendered moot. Generally, an investigation regarding possible administrative misconduct is handled independently from the determination to impose action following a sustained finding of a violation. IG Varnado acknowledged that he does not routinely recommend action following an administrative violation. However, according to IG Varnado, the rank of the person involved led him to seek assistance from the Chief Inspector General's Office. It is recommended that the RECOMMENDATION regarding the proposed administrative action be removed from the investigative report. The determination of any action resulting from the OIG investigation should be left solely to the discretion of the Secretary for the Department of Management Services. The FDLE report also addresses Respondent's violations of Sections 112.532(1)(b), 112.532(1)(g), and 112.533, Florida Statutes, which were the subject of the civil suit filed by Petitioner and Major Tippett. The report concludes that these statutory provisions were applicable to Major Tippet but that the question whether they were applicable to Petitioner, as the head of the Florida Capitol Police, was also the subject of the civil suit. By letter dated April 30, 2001, Respondent's Secretary advised Petitioner that the investigation of Sergeant Maxwell's complaint was complete. The letter states as follows in relevant part: [B]ased on the investigation conducted by the DMS Inspector General, as reviewed and completed by the Florida Department of Law Enforcement Inspector General, it has been determined that allegations against you relating to retaliation and violation of law are unfounded, and that allegations against you relating to conduct unbecoming a public employee are founded. Attached hereto for your reference is a copy of the pertinent report of the FDLE Inspector General's Office. As set forth in the attached report (page three), the basis for the conclusions that you are guilty of conduct unbecoming a public employee is that you made statements in the days or weeks following the trial of the civil suit filed by former officer Lisa Goldwich to subordinate officers regarding the removal of duties involving Sgt. Maxwell--who testified for the plaintiff at the trial--and possible adverse action for him and others who testified. Because of this conduct unbecoming a public employee, you are hereby suspended without pay for a period of fourteen (14) days, after which you will return to your post. You are also hereby required to participate in supervisor training with (sic) ninety (90) days. Respondent's agency head, in the exercise of her discretion, made the ultimate decision to suspend Petitioner. In taking the disciplinary action, the agency head did not reference or assert any reliance on career service rules to support Petitioner's discipline. The April 30, 2001, letter was not disseminated to other agencies or to other Senior Management Service employees. The agency head's April 30, 2001, letter was an action taken exclusively regarding Petitioner. It did not affect or impact any other agency, employee, or class of employee. The administration of personnel matters regarding Respondent's Senior Management Service employees did not change following Petitioner's April 30, 2001, discipline. Respondent has not promulgated rules regarding the discipline, suspension, or termination of Senior Management Service employees because such rules are not required. Petitioner resigned his appointment as Director of Florida Capitol Police on July 31, 2001. He is no longer employed by the State of Florida.
Findings Of Fact 1. Mrs. Dunham began her employment with the Respondent School Board in 1959. When she began her first position was Accounting Clerk, Pay Grade 12. Presently, she holds the position of Accountant, Pay Grade 23. In August of 1972 the Petitioner was promoted to the position of Accounting Contract Specialist. The individual who had held this position, Mr. Ray Groseclose resigned and Petitioner was promoted to that position. While Mr. Groseclose was in that position it was classified as Pay Grade 26 with a salary of $3.90 per hour. When the Petitioner was promoted to that position she had been classified as Pay Grade 15. Shortly after the Petitioner's promotion to the Accounting Contract Specialist the position was downgraded from a Grade 26 to a Pay Grade Actually, the Petitioner was never paid at the Grade 26 level and her first increased pay check reflected the Grade 21 classification. The Petitioner contends that the failure to promote her into this position at the same pay grade that was enjoyed by her male predecessor indicates sexual discrimination against her for which she should be granted relief in the form of back pay due. The Accounting Contract Specialist position required one holding that position to monitor contracts entered into by the school board and determine that payments were made when required and that a bookkeeping system was maintained to keep track of the status of school board contracts. Ray Groseclose, who held the position prior to the Petitioner's appointment, had no formal education in the field of accounting or bookkeeping, however, he did receive some training in that area while with the Armed Forces. Likewise, the Petitioner had no accounting background, but her experience and initiative were enough for her to perform very satisfactorily in this position. All witnesses who testified regarding the Petitioner's ability stated that she did equally well, if not better, than Mr. Groseclose and assumed more duties than he had in that position. The Petitioner testified that she did not learn until September of 1973, a year after her promotion, that the position was previously classified as a Grade 26. However, when receiving her appointment papers in September of 1972, the Petitioner did sign a notice of reclassification for which indicated that the job was being downgraded. On behalf of the Respondent, testimony was received from Dr. D.J. Harrison, who was now the superintendent of the Savannah-Chatham School Board, Savannah, Georgia. Previously, between 1971 and 1973, he was employed by the Brevard County School Board and among his duties he was supervisor over the Accounting Contract Specialist. Dr. Harrison testified that while Ray Groseclose held that position he had intended to downgrade it, but had not done so before Ray Groseclose resigned. He stated that the position as originally assigned, included the administration of contracts. After Groseclose resigned it was decided to limit the job to accounting and that a Mr. Campbell would handle the administration of contracts. Other testimony, however, indicated that Ray Groseclose never handled the administration of contracts and that the Petitioner actually performed more responsibilities than were assigned to Ray Groseclose. In any case, it appears that the school board came to a realization that the Accounting Contract Specialist position could be filled by a competent individual at a Pay Grade 21 rather than Pay Grade 26 and that when Ray Groseclose resigned it appeared to be a convenient opportunity to downgrade the position. The evidence presented at this hearing does not affirmatively establish discrimination against the petitioner. It is possible the position in question was downgraded because of the petitioner's sex, but a finding of fact cannot be based on a mere possibility. All the evidence presented at this proceeding is consistent with valid administrative practiced on the part of the school board. No evidence was presented on behalf of the petitioner to indicate other examples of possible sexual discrimination on the part of the School Board which could establish a coarse of conduct. In fact, evidence was presented that the U.S. Department of Labor investigated the respondent school board and concluded, with the possible exception of the petitioner, there were no examples of sex discrimination evident. If there was any sexual discrimination practiced against the Petitioner, none was proven. All that is indicated by the evidence taken in this case is that the Petitioner was promoted from a position with the Brevard County Board from a Grade 15 to a Grade 21. The position to which she was promoted was downgraded at approximately the time of her promotion but it does not appear that the Petitioner's sex had anything to do with the downgrading of this position.
Findings Of Fact Petitioner, David J. Krasnosky, was employed by the Department of Labor and Employment Security from July l, 1973 until March 31, 1982 in its Pensacola, Florida office. He was initially employed as an employment counselor I from July l, 1973 until October, 1974. He was then promoted to an employment specialist I. He remained in that position until January, 1980 when he accepted a position in the next lower pay grade of employment interviewer. He attained permanent status for all three positions held. In late 1981 or early 1982, the Department of Labor and Employment Security suffered a loss in federal funding which required that the Department lay off a number of persons holding the position of employment interviewer. There were 23 such positions within the area, and after a layoff list was compiled, Petitioner was one of those who were laid off at the end of March, 1982. Respondent, Department of Administration, has promulgated rules governing the manner in which permanent status employees shall be ranked on a layoff list whenever layoffs are necessitated by a shortage of funds. Under a formula prescribed in Rule 22A-7.11(4)(d), Florida Administrative Code, permanent status employees in the affected class are ranked according to the number of retention points derived from seniority and performance. The formula provides that an employee shall be given one point for each month of satisfactory continuous state employment, regardless of class. The employee is also given "performance evaluation retention points" which are credited for each month of service in the affected class. These include one and one-half points for each month of service in which the employee was rated outstanding or above satisfactory, and one point for each month of service where the employee was rated satisfactory. Therefore, an employee is eligible to receive seniority points for each month of continuous state employment, regardless of class, while performance points are awarded only for those months that the employee has worked in the class affected by the layoff. The application of this formula resulted in Krasnosky receiving no performance retention points for the period of July 1, 1973 through December, 1979, since he did not work in the position of employment interviewer. Instead, he received such points only for the months of January, 1980 through March, 1982. He also received seniority points (except for several months when he took leave without pay) for all months of continuous state employment. Despite his long tenure with the State, other employment interviewers with less continuous state employment received more retention points than Krasnosky because of longer service in the class of employment interviewer. For this reason, he contends the rule is applied unfairly and conflicts with the general law that requires the Department to adopt a formula having "uniform application among all employees in the competitive area." Rule 22A-7.11 was originally adopted by the Cabinet, sitting as the Administration Commission, in 1976. It has been construed in a consistent fashion since that date. The rule has been amended on several occasions, and no objections there to have ever been filed by the Joint Administrative Procedures Committee, which reviews all rule amendments.
The Issue The issues before the Hearing Officer were defined as follows: Whether the Respondent is an Employee Organization within the meaning of Florida Statutes, Chapter 447. Whether the Petitioner is an Employee Organization within the meaning of Florida Statutes, Chapter 447. Whether there is a sufficient showing of interest as required for the filing of a representative election petition under Florida Statutes, Chapter 447. Whether the Employee Organization is a properly registered organization within the Public Employees Relations Commission. What is the appropriate unit of public employees in the cause before PERC. The Petitioner and the Employer stipulated that the Employer is a Public Employer and Petitioner is an Employee Organization within the meaning of Chapter 447, Florida Statutes. As to issue number 3, the PERC record reflects a sufficient showing of interest, and the Employer did not seek to show any fraud, misrepresentation, etc. regarding the signature cards submitted by Petitioner. Issue number 4 resulted in an admitted stipulation by the parties that the Petitioner is a registered organization. For the purposes of this brief, only issue number 5 remains to be considered.
Findings Of Fact The Employer, through witness Henry Willis, Assistant Director of Personnel, testified that the County, through its recently adopted Civil Service Career Program in September 1974 and through its Personnel Department, provided the following services countywide throughout all divisions and department, inter alia: Testing new applicants for employment. Interviewing new applicants for employment. Recommending new applicants for employment. Provides for all transfer policy. Provides for all discipline policy. Provides for all common benefits policies, such as: Common Leave policy. Common Promotion policy. Common Pay Plan. Common Insurance Plans. Common Recordkeeping (personnel files). Administers the reduction in force policy. Coordinates all inter-division and department personnel policies. Processes grievances and employee disputes. Prepares job descriptions for all County jobs, defining skills and duties for such jobs. In addition to the above, Mr. Willis testified that the County employs a category of employees (approximately 206 in all) referred to as CETA employees. This general description encompasses employees hired pursuant to federal grants and are paid from federal grant monies. CETA employees must enjoy, pursuant to the terms of the grants, all County Civil Service benefits except that they do not take the Civil Service examination, their tenure is determined by the federal grant under which they are hired, and they have no bumping rights, nor can they be bumped. If a CETA employee converts to Civil Service employment, the employee must take the Civil Service examination and tenure or time of service is computed from the date the employee becomes a Civil Service employee. CETA employees are employed in a variety of job categories to include jobs throughout the County. They are assigned to work alongside other Civil Service employees. CETA employees receive comparable pay, benefits, and have the same supervisors as Civil Service employees. CETA employees may also be designated, if qualified, to become a foreman or supervisor if such a position were approved as indicated below. It should be noted that CETA employment is dependent upon federal grant momies which are annual grants, and that although CETA employees have the same compensation package as Civil Service employees, they do not have the degree of job security but are dependent upon continued federal grants. CETA positions have to be created and generally correspond to the entry level position within Civil Service. Because of low job security and low pay, there is a higher turnover rate with CETA employees. Exhibit 1 is an organizational chart of the Broward County Government. There are seven departments under the County Administrator, and various divisions under each of these departments. The employees which Petitioner seeks to represent are all located within the maintenance division of the Department of Central Services. Exhibit 2 indicates the number and type of unskilled and semiskilled employees within the Broward County government by division. This exhibit indicates, in addition to the trades and trades helpers, all such positions with the organization of the Employer. Employer's Exhibit 2 states by name and position title the unskilled and skilled employees within each of the divisions within the county. The number of such employees in each division, as follows, was extracted from Exhibit 2: Central Warehouse 5 Motor Pool 3 Maintenance 104 Convict Camp 1 Motor Vehicle Inspection 93 Medical Examiner 5 Lot C1earing 4 Engineering Traffic 33 Mosquito Control Local 12 County pound 21 Youth Services 16 Parks and Beaches 85 Water Management 11 Agriculture 11 Airports 44 Roads and Bridges 125 Utilities - Solid Waste 64 Utilities - Waste Water 119 Witness Liaison Program 2 Mental Health Funding Agreement 13 The Petitioner seeks to represent 107 of the 764 unskilled and semiskilled employees of the County, or approximately 14 percent of the total number. There are a total of 41 CETA employees who are employed in unskilled or semiskilled positions, 26 of which are employed in trades or as trades helpers. Five such CETA employees are employed within the Maintenance Division. As indicated in Exhibit 2 and the record, the Employer employs mechanics, painters, vehicle equipment operators, carpenters, plumbers, electricians, gardeners, stock room employees, welders, locksmiths, air conditioning employees, parking lot attendants, custodians, etc., who primarily work within their own divisions within the County structure. However, there is some exchange of services between the various departments and Divisions. As an example, the Division of Roads performs work at the airport, even though the airport employs its own road crews. Likewise, the Division of Maintenance provides service for approximately ninety-four (94) County-owned or lease buildings throughout Broward County, Florida. Regarding the position of superintendents and whether they should be excluded, the record indicates that the Division of Maintenance has 160 employees, two superintendents and one director. One of the two superintendents is in charge of the mechanical trades employees and the other is in charge of the carpenters, painters, custodians, and welders. The superintendents carry out their duties through his working foreman. The superintendents have disciplinary authority and are empowered to resolve grievances, if possible, at their level. The superintendents present requests for specific equipment, tools, and personnel from which the director prepares the divisional budget. The director only has the authority to release personnel. The superintendents assign work to the various foremen for accomplishment. The superintendents constitute the level of administration between the director and the foreman. The record reflects that Broward County, at the time of hearing, had entered into collective bargaining contracts or was in the process of doing so with County fire fighters, airport police, and the employees of the Mass Transit Division. Petitioner argued, specifically with regard to the voluntary recognition of Local 1267 representing the transit workers, that this recognition was inconsistent with the Employer's position with regard to the unit under consideration, and indicated that the Employer had already recognized a divisional unit. The Employer introduced evidence and testimony that what is now the Mass Transportation Division was once a private company acquired by the County. In order to receive federal funds, pursuant to the provisions of Section 13(c) of the Urban Mass Transportation Act of 1964, the County executed two agreements (Exhibit 6A in 1972 and Exhibit 6B in 1975) which guaranteed no diminution of rights, specifically collective bargaining rights, as a result of the County acquisition of the private company. In 1975 when the contract expired, the County, being satisfied with the union's majority status as a result of a recent election, voluntarily recognized the union's majority status. The Employer argues that the voluntary recognition of what constitutes a divisional unit in mass transit is not inconsistent with its position in regard to Petitioner's proposed unit but is distinguishable on the facts. The Employer argued that the proposed unit would fragment and compartmentalize employees who share a community of interest as Civil Service or CETA employees who had virtually the same types of job classifications. Further, the Employer asserted this violates the criteria provided in Section 447.009(4), F.S. The Petitioner presented testimony that the employees of the Division of Maintenance desired representation by Petitioner, and that the history of collective bargaining showed the Employer to have recognized fire fighters, police, and transit workers units. The Petitioner indicated its desire and willingness to participate in any directed election in any unit found to be appropriate by PERC. This report respectfully submitted this 30th day of January, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Theodore P. Mavrick, Esquire Counsel for the Petitioner Joseph A. Caldwell, Esquire Counsel for the Public Employer Chairman Public Employees Relations Commission
Findings Of Fact Petitioner is a female who was born on September 6, 1930, and who resides in Tallahassee, Florida. Respondent publishes the Tallahassee Democrat (hereinafter "The Democrat") and maintains its principal place of business in Tallahassee, Leon County, Florida. Petitioner applied for employment by The Democrat as a bookkeeper and was hired on March 8, 1972. In March, 1975, she was promoted to the position of accounting supervisor. Even after that promotion, her duties consisted primarily of routine bookkeeping. Although varied, her work was not complicated and did not involve complex accounting principles or tax planning. Petitioner also supervised and trained the accounting clerks in The Democrat's accounting department. Normally, this involved supervising between eight and ten people. The only persons to whom she was subordinate in the department were the Assistant Controller and Controller. Petitioner has no formal education or training in accounting. She once enrolled in an accounting correspondence course from LaSalle Extension University but never completed the course. When Petitioner was hired, Bill McMasters was the Controller. Roger Hester became the Controller in February, 1974. The position of Assistant Controller was instituted at The Democrat in 1972. The first Assistant Controller was Gary Coates. Coates filled in as the Controller between the time McMasters left The Democrat and Hester arrived. The second Assistant Controller was Hewitt Dupont. Dupont had an accounting degree, had experience with a CPA firm, and was capable of filling in for the Controller. When Dupont was hired, his salary was $12,000 per year. When he left, his salary was $14,400 per year. The third Assistant Controller was Peggy Hively. She was qualified to fill in for the Controller. When Hively was hired, her salary was $12,500 per year. When she left, her salary was $16,400 per year. The fourth Assistant Controller was Evan Ray, who was hired in March, 1979, at a salary of $16,000 per year. All Assistant Controllers at The Democrat have had degrees in accounting and, in some cases, CPA experience as well. When Dupont was hired in 1974, Petitioner discussed with Hester the possibility of her being given the Assistant Controller position when it again became open. Petitioner asked if an accounting degree from Florida A & M university would help her secure that position. Hester advised her that he considered a degree in accounting from Florida A & M University to be of negligible benefit. However, he told Petitioner he would consider her the next time the job was vacant if she learned more about depreciation and end-of-the- month functions. Hester told Petitioner that she should take some accounting courses. However, Petitioner failed to do so. After Hively was hired as the Assistant Controller, Petitioner again discussed with Hester the possibility of her being given the Assistant Controller position the next time it became open. Hester promised her the position if she would continue to work on her depreciation skills. When an employee at The Democrat is seeking a promotion or a transfer to another department, it is not necessary for that employee to file a new application with the personnel department in order to be considered for the new position. During the time Hively held the position of Assistant Controller, she performed many clerical and bookkeeping tasks which could have been performed by the accounting clerks, such as inventories. These functions were performed by the Assistant Controller because there was a limited number of people in The Democrat's work force at that time. By the time Evan Ray was hired, many of these tasks had been reassigned to various accounting clerks. Mrs. Hively went on maternity leave in 1977. During her absence, her duties were assumed by several other persons, including Petitioner. However, Petitioner did not fill in completely for Hively. Philip Horne, Elke Allen and Mary Grabill also assisted with Hively's duties. The functions assumed by Petitioner and the accounting clerks were primarily bookkeeping functions. Hester assumed the more complicated Assistant Controller functions himself. Hively resigned from The Democrat in December, 1978, and her position was vacant for several months. During this time, the Assistant Controller duties were again assumed by several other people, including Petitioner. However, Petitioner did not fill in completely for Mrs. Hively. Philip Horne, Elke Allen and Mary Grabill took over some of Hively's functions. Hester assumed, once again, the more complicated functions of the Assistant Controller. During the years between the time Hively was hired as Assistant Controller and the time Ray was hired in that position, the operations at The Democrat expanded and became more complex. As a result, the position of Assistant Controller changed as new responsibilities were added. Hester found it necessary to rely more on the Assistant Controller for assistance with the more complicated accounting functions which he had previously done himself. Petitioner did not have the experience or technical knowledge of higher accounting to adequately perform the Assistant Controller functions as they were when Ray was hired. Hester considered Petitioner for the job of Assistant Controller when Hively left. However, he concluded she did not have the accounting skills to be able to fill the increased responsibilities of the Assistant Controller's position. He further concluded that it would have taken two to three years to train Petitioner to be able to adequately fill the position. One of the requirements for the Assistant Controller job at The Democrat was the ability to fill in for the Controller when required. Mr. Harwell, the publisher of The Democrat, told Hester that no one at The Democrat other than the person occupying the Assistant Controller position was capable of filling in for the Controller. Harwell instructed Hester that he must select someone for the Assistant Controller position who was capable of assuming the full duties of the Controller. A degree in accounting was not an absolute requirement for the position of Assistant Controller. The criteria for selection for that position were the ability to perform the complete job of the Assistant Controller and the ability to perform the complete job of the Controller when required. Petitioner was harsh when correcting employees under her supervision and displayed a weakness in her ability to effectively supervise people in her department. She corrected employees in a loud and abusive manner in front of other people often enough to cause a morale problem in the accounting department. Evan Ray, the current Controller of The Democrat, was hired as Assistant Controller on March 5, 1979. Ray holds a degree in accounting and business management information systems. He is enrolled in an MBA program. He has managerial experience and experience in computers. Ray, by virtue of his education and prior experience, was more qualified than Petitioner for the position of Assistant Controller. Assistant Controllers at The Democrat may fill in completely for the Controller and must be able to handle the Controller's duties. Coates filled in for the Controller after McMasters left The Democrat in December, 1973, until Hester arrived in February, 1974. Ray filled in for the Controller during the interim between Hester and Denise Brooks when she replaced Hester as the Controller of The Democrat. At the time when Hively left her position as Assistant Controller, Petitioner was not qualified to fill the Assistant Controller position either by experience or by education. She did not have a degree in accounting. She did not have any academic training in accounting. She had not held any position of employment wherein she dealt with any complex accounting procedures, either at The Democrat or at any other employment. In the preceding ten years, Petitioner had not taken any course work in accounting, had not engaged in any study of accounting at home, had not purchased a book in the accounting field and had not borrowed any book in the accounting field from any library. Petitioner left a prior place of employment, Mobile Home Industries, because her job had too much pressure to suit her. When she applied for employment at The Democrat, she specifically stated she did not want a job with a lot of pressure. She admits she does not want either the responsibility or the pressure of being the Controller at The Democrat. According to the 1970 Census, 19,450 of a total work force in Leon County of 43,271, or 44.9 percent, were female. According to the 1970 Census, 3,825 of a total professional work force in Leon County of 9,676, or 39.5 percent, were female. According to projections of the Florida Department of Labor and Employment Security for 1979, 16.4 percent of the managerial and administrative work force in Tallahassee was female, and 28.7 percent of the "other professional" work force in Tallahassee was female. Accountants fall within that agency's category of "other professional." Petitioner's Position at The Democrat is in the officials and management category. In March, 1980, 100 of 264 total employees of The Democrat, or 38 percent, were female; 20 of 48 professional employees, or 41.7 percent, were female; and 9 of 51 managerial and administrative employees, or 17.6 percent, were female. In the accounting department of The Democrat, more than 40 percent of the employees are female. In October, 1980, The Democrat was 2 to 3 percent below the percentage of females in the Tallahassee SMSA. In the professional and technical and in the officials and managers categories, The Democrat was several percent above the area female work force percentages. When The Democrat advertises for a position, it advertises in 13 counties in Florida and 3 in Georgia. It also notifies other papers in the Knight-Ridder newspapers chain of the opening. In 1974, the advertisement for the Assistant Controller position at The Democrat specified "degree preferred." There were 19 applicants for the position, 3 of whom, or 15.8 percent, were female. In 1975, the advertisement for the Assistant Controller position at The Democrat specified "degree preferred." Three of 5, or 60 percent, of the applicants for the position were female. In 1979, the advertisement for the Assistant Controller position at The Democrat specified "degree required." Three of 14 applicants, or 21.4 percent, were female. In 1980, the advertisement for the Assistant Controller position at The Democrat specified "degree required." Five of 20, or 25 percent, of the applicants were female. In the 4 times that the assistant Controller position at The Democrat has been advertised, 14 of 58 applicants, or 24.1 percent, have been female. When the advertisement for the Assistant Controller position specified "degree preferred," 8 of 24 applicants, or 25 percent, were female. When the advertisement specified "degree required," 8 of 34 applicants, or 23.5 percent, were female. Specification of "degree required" in the advertisement for the Assistant Controller position at The Democrat did not have an appreciable effect on the percentage of women who applied for the job or on the percentage of women who were selected. At the time Evan Ray was hired as Assistant Controller, when Petitioner alleges she was denied a promotion to that position because of her sex and age, there were four persons who had held the Assistant Controller position at The Democrat. These persons were Mr. Coates, Mr. Dupont, Mrs. Hively, and Mr. Ray. One of these 4 persons, or 25 percent, is a female. Prior to the time Evan Ray was Promoted to the position of Controller at The Democrat, there were three persons who had held the Controller position during Petitioner's employment at The Democrat. One of those persons, Denise Brooks, is a female. When Mrs. Brooks left her position as Controller, her salary was $30,000 per year. Evan Ray was promoted into that position at a salary of $25,000 per year. Petitioner does not believe that The Democrat discriminates against women in general or against women in the position of Assistant Controller. Prior to April, 1980, Denise Brooks, the Controller, and Evan Ray, the Assistant Controller, discussed with Harwell, the publisher, and Doris Dunlap, the Personnel Director, the reorganization of the accounting department at The Democrat. The reasons for the reorganization were to distribute the work load more evenly, provide cross-training within the department, relieve the lack of promotability in the department, ease the training burden on Petitioner and provide more effective training, and free Petitioner and two other long-term employees from some of their tasks so they would be able to assist in special projects. The actual reorganization took place in April, 1980, when Evan Ray was promoted to the position of Controller of The Democrat. As a result of the reorganization, the accounting department was divided into three divisions: advertising accounting, circulation accounting, and general accounting. Petitioner remained in charge of advertising accounting, and Mary Grabill and Marilyn Plaskett were promoted to Petitioner's level as supervisors of the other two divisions. Some of petitioner's previous responsibilities were assigned to Grabill and Plaskett, and Petitioner had fewer people to train and supervise after reorganization. Even after reorganization, Petitioner continued to have one of the most important positions at The Democrat in which she is responsible for recording approximately 80 to 85 percent of the company's revenue. When Grabill and Plaskett were promoted, they were given a salary increase. However, even with the increase, they continued to make less than Petitioner. Petitioner's salary was not reduced as a result of reorganization, and it remained higher than the salaries of the other supervisors on her same level. Petitioner continued to receive the third highest salary in the department with only the Assistant Controller and the Controller earning more than she. Grabill had always been in charge of the monthly payroll, which is confidential, and the quarterly payroll reports. With reorganization, she also assumed the time card payroll done by Petitioner so that one person would have the entire payroll. Petitioner was disappointed that her payroll function was taken from her, and she felt humiliated. She would like to have had certain areas of the accounting department under her responsibility after the reorganization rather than some of the areas she was assigned. Prior to reorganization, Petitioner was not able, because of time pressures, to do a good job of training new employees. Additionally, Petitioner was required to fill in for anyone who was absent in addition to performing her own duties. The reorganization of the department has helped the department to run more efficiently than before. For example, Petitioner has more time to spend with the people she is responsible for training and can do a better job of training them. The reorganization of the accounting department was not undertaken to retaliate against Petitioner in any way, but was done solely to improve the efficiency and the managerial accountability of the department.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered by the Florida Commission on Human Relations finding that Petitioner, Louise S. Forrest, was not discriminated against on the basis of her sex or age, finding that Petitioner, Louise S. Forrest, was not retaliated against for charging Respondent with discrimination, and dismissing her Petition for Relief with prejudice. RECOMMENDED this 16th day of September, 1981, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1981. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson & Traynham 1215 Thomasville Road Post Office Box 4289 Tallahassee, Florida 32303 C. Gary Williams, Esquire Charles L. Early, Jr., Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Mr. Norman A. Jackson, Executive Director Florida Commission on Human Relations Montgomery Building, Suite 100 2562 Executive Center Circle, East Tallahassee, Florida 32301
Findings Of Fact On July 7, 1978, Petitioner, Amelia M. Park (Park), was hired as District VI Legal Counsel of Respondent, Department of Health and Rehabilitative Services (Department). The position was included in the Florida Career Service System, and Park obtained permanent status in the position in January 1979. The Legislature exempted the position from the Career Service System and made it a Senior Management Service position on November 12, 1981. On the morning of November 9, 1984, Park was in Bradenton to attend a hearing for the Department in Manatee County Court. She had scheduled a meeting with Bill Presmeyer at the Manatee Health Department, but the meeting was cancelled at the last minute. Because Park had pre-approved annual leave for the afternoon, she went to her vacation home located in Holmes Beach on Anna Maria Island. Late in the morning, Park received a telephone call from her secretary, Muriel Pages, who informed Park that Assistant District Legal Counsel, Dennis Palso, who had been on the job only one week, and District Program Manager, Stephanie Watson Judd, wanted to talk to her. Park knew or should have known that the matter to be discussed was considered important by the Department staff or they would not have telephoned her at her home. Judd told Park that the Department had received a court order committing a juvenile to the Department but that they were not sure what the Department properly should do in response to the Order. Palso, who only had been on the job for one week, pointed out internal inconsistencies in the Order. The Order found the juvenile both incompetent to stand trial and not guilty by reason of insanity. The Order also cited the rules of criminal procedure instead of the rules of juvenile procedure. At the request of Carl Neill, the Department's District Administrator, Park's immediate supervisor, Judd and Palso relayed this information to Park and sought her advice on several questions: (1) whether the Order was legal; (2) whether the juvenile could be placed in a mental health facility based on the Order alone without bringing a Baker Act proceeding; and (3) whether and how the Department should take the child into custody. Park responded that the Order was sufficient for the Department to take the juvenile into custody and place him in a mental health facility. Notwithstanding the questions Park was being asked, she assumed that the juvenile was in custody because she would not have expected the judge to release such a juvenile into the community. Park told Palso that he or she would be able to clear up the internal inconsistencies and problems in the Order the following week by filing a motion in court. Park recommended that the Department's staff telephone "central admissions" in Tallahassee since Park believed that office of the Department had experience with similar orders and would know how to proceed. After talking to Park, Judd telephoned Sam Ashdown in Tallahassee to discuss the case and receive advice on how to proceed. In the course of their discussion, Judd read the Order to Ashdown over the telephone and, to her surprise, Ashdown took the position that the Order was illegal and that the Department could not act upon it. Judd informed Ashdown that Park, as District VI's legal counsel, had given the District VI staff a contrary opinion and suggested that Ashdown talk directly with Park, giving him the telephone number at Park's vacation house. Later in the afternoon of November 9, Judd telephoned Park again to inform her about Judd's conversation with Ashdown and to prepare her to receive a telephone call from Ashdown. Park became angry at Judd for having given Ashdown her telephone number. She denied ever having given a legal opinion that the Order was legal, but told Judd that there was nothing that could be done about it by the end of Friday afternoon. Park told Judd to call Ashdown back and tell him not to telephone Park about the matter. In the face of Park's tirade, Judd informed Carl Neill of what Park had said and telephoned Ashdown to relay Park's message and tell him not to call Park. Neill became very concerned about the manner in which Park handled the matter earlier in the afternoon of November 9, 1984. Although Park was a knowledgeable lawyer and able advocate for the Department, she had a history of difficulty working, relating, and communicating with certain members of the Department's District VI staff. This history included several occasions in which Park's personal relationships with Department staff deteriorated to the point of affecting Park's ability to work with or even talk to staff. Neill suspected that a recent deterioration in the personal relationship between Judd and Park may have been partially responsible for the manner in which Park handled the juvenile matter on November 9. Park's work relationship with each of the two assistant attorneys working under her before Palso had deteriorated to the point that Park could communicate with them only in writing and not very well. Park's personality and deficient interpersonal skills was at least partially responsible for those problems in District VI's legal office. Park also had a deserved reputation among District VI's staff for being unpredictable. For no apparent reason, Park would sometimes be unreasonably irritable and rude. For example: Park has chastised Joseph Tagliarini in front of other staff for operational (not legal) difficulties in dealing with the local Sheriff's Office. This rebuff was hostile and angry, inappropriate and unwarranted. On another occasion, Park refused to dis- cuss a personnel matter with Allen Mundy and William Stanley, became rude and directed them to leave her office. Personnel officer, David Stoops, had asked Mundy and Stanley to discuss the matter with Park. At a training session she was giving on child support enforcement, Park became angered by questions being asked by one of the partici- pants, became progressively more hostile and angry, and ended up yelling at the employee from the podium in the middle of the training session. James Freyfogel, one of Park's own wit- nesses, was unfairly accused by Park with having concealed information material to a real estate transaction entered into by the Depart- ment. Because of Park's conduct, Freyfogel tried to avoid any contact with her for about a year and a half. Another of Park's witnesses, Judy Wichter- man, testified that Park was "a nasty person" and that she and other counselors avoided con- tact with Park whenever possible. Park was not even aware of the effect of her personality on Freyfogel and Wichterman. The strained work relationships described in paragraph 9 above (and others) do not typify all of Park's relationships with members of the staff of the Department's District VI. Park had many good days and many positive working relationships. However, Neill was aware that Park's personality had caused several problems in work relationships at District VI and that it was not a matter of one or two isolated incidents. At least part of the blame for these problems rests with Park's personality. Problems caused by Park's personality were not limited to lower staff members whom Park intimidated. For example: Neill also was aware that Park had unknow- ingly offended Larry Overton, then Deputy As- sistant Secretary For Operations for the De- partment in Tallahassee. Overton related to Neill that Park had become hysterical during a meeting he had with her concerning problems with a nursing home in District VI. In the fall of 1984, Park insisted on be- ginning a letter to a private attorney with whom she was dealing on behalf of the Depart- ment by stating that she was "outraged" at some of the attorney's tactics and conduct. Neill had specifically requested that Park, as representative of a State agency, not express "outrage." Neill told Park that he thought this form of expression was inappropriate, and he directed that the letter be reworded. Despite Neill's direct request, Park sent the letter as originally written with the justifi- cation that she was indeed "outraged." Park also angered two judges before whom she appeared as attorney for the Department, a Judge Pope and a Judge Calhoun. In compliance with Neill's suggestion and request, Park wrote a letter of apology to Judge Pope. When Park returned to work after the weekend and Monday holiday on Tuesday, November 13, 1984, Neill asked her into his office to discuss the events of November 9. During the discussion, Neill referred to the events of November 9 as an emergency, and Park attempted without success to learn from Neill why it was an emergency. Neill explained his position that it is unacceptable for senior managers on leave to refuse to permit HRS staff to contact them to discuss matters staff believes need to be discussed. Neill stated that senior managers must be available in such circumstances. Park became very angry and upset at having been accused of less than satisfactory performance. She lost her temper in front of Neill. She stated that she was incensed that Judd had given her home telephone number to Ashdown and stated that, in the future, she would avoid this situation by not leaving a telephone number where she could be reached. Park then stormed out of Neill's office. As a result of all of the events referred to in these Findings of Fact, including Neill's meeting with Park on November 13, 1984, Neill's confidence and trust in Park was shaken. Neill did not believe he could continue to function with Park as his legal counsel. Neill did not think he could count on Park to make herself available to Neill and his staff when needed. Neill also believed he could retain competent legal counsel who would be able to get along better with a larger part of Neill's staff so that Neill's staff could function more smoothly and effectively as a whole. Neill telephoned HRS supervisors in Tallahassee for advice and was told that he had authority to terminate Park in his discretion. After spending the rest of the day and evening of November 13 making up his mind, Neill decided to terminate Park as his legal counsel. On November 14, 1984, Neill again met with Park and informed her that he intended to make a change in the position of legal counsel and asked for Park's assistance in making the transition smooth. Park interpreted Neill's comment as a request for Park's resignation, and Park responded that she could not agree to resign without giving the matter further thought and discussing it with her husband, Park's counsel in this case. Because of Park's work schedule she requested until Monday, November 19, 1984, to give Neill an answer, and Neill agreed. On November 19, 1984, Park and her husband met with Neill as scheduled at 8:30 in the morning. Neill handed Mr. Park a letter informing Park of Neill's intent to terminate Park's employment effective November 27, 1984. Mr. Park asked if the meeting was a pre-termination conference. Neill stated that he did not believe a pre-termination conference was required for senior management but that he was willing to treat the meeting as a pre-termination conference and would consider anything Mr. or Mrs. Park had to say about the matter. Mr. Park suggested to Neill that Neill was exposing himself to possible personal liability by terminating Mrs. Park but had nothing else to say about the matter. The Parks stated that they had all they needed and left Neill's office. Towards the end of the final hearing, Park stipulated that she was not dismissed for political reasons.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Health and Rehabilitative Services, enter a Final Order consistent with the previous exercise of its discretion to terminate Petitioner, Amelia M. Park, from her Senior Management Service position. RECOMMENDED this 15th day of November, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4443 Rulings on Petitioner's Proposed Findings of Fact Adopted. See Finding 1. Rejected as unnecessary, irrelevant and subordinate. As reflected in the Conclusions Of Law, the ultimate issues of fact are narrower than Petitioner perceives. Unless the subordinate facts in proposed Finding 2 persuade the finder of fact that the alleged legitimate reasons for termination of Petitioner's employment were mere fabrications, they are unnecessary and irrelevant. In any event, they are subordinate. Covered by Findings 2 through 6. Covered by Finding 12. Covered by Finding 14. Covered by Finding 15. See Paragraph 1 above. See Paragraph 1 above. Also covered in part by Findings 9 and 10. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. See Paragraph 9 above. Also covered in part by Finding 8. Covered by Findings 2 through 4. See Paragraph 8 above. Also covered in part by Findings 2 through 6. Rulings on Respondent's Proposed Findings Of Fact Covered by Finding 1. Rejected in part as being subordinate. Also covered in part by Finding 11(a). Covered by Finding 9(a).* Covered by Finding 9(b). Covered by Finding 9(c). Rejected in part as subordinate or cumulative. Covered in part by Finding 8. See Paragraph 6 above. See Paragraph 6 above. Covered by Finding 11(b). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 9. Covered by Finding 8. Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Finding 8. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. See Paragraph 12 above. Also covered in part by Finding 7. Rejected in part as subordinate. Covered in part by Finding 11(c). Rejected in part as subordinate, cumulative, and argumentative. Covered in part by Findings 8 thorough 11. See Paragraph 20 above. Covered by Finding 9(d). Rejected in part as subordinate and cumulative. Covered in part by Finding 9. See Paragraph 23 above. Covered by Finding 9(e). Rejected as subordinate, unnecessary, and argumentative. Rejected in part as subordinate, cumulative, unnecessary, and argumentative. Covered in part by Finding 10. Covered by Findings 7 through 10. Rejected as subordinate and unnecessary. 30-35 Covered b Findings 2 through 6. Covered by Finding 12. Rejected in part because Rule SM-1.09, Florida Administrative Code, is a conclusion of law, not a finding of fact. Rejected in part because there was no evidence of HRS Regulation 60-49. In part covered by the Findings 2 through 6. Covered by Finding 14. Covered by Finding 15. Covered by Finding 15. Rejected as subordinate and unnecessary. Covered by Finding 16. *It should be noted that parts of this proposed finding of fact and many others have been rejected to the extent that they contain excessive argument. COPIES FURNISHED: William M. Park, Esquire Building 501, Suite A 8001 N. Dale Mabry Tampa, Florida 33614 Jay Adams, Esquire Deputy General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Respondent must repay $558.74 for alleged salary overpayment for the period between December 14, 1990 and April 26, 1991.
Findings Of Fact At all times material to these proceedings, Respondent Allen was a career service employee with the Department who was subject to the collective bargaining agreement. Respondent was designated as the Public Assistance Specialist I who would act in a supervisory capacity during her unit supervisor's maternity leave. Respondent accepted the temporary appointment and received a higher rate of pay from the Department during the time she was filling the position, in accordance with the collective bargaining agreement. Pursuant to the collective bargaining agreement, a career service employee who performs the duties of a higher level position for a period of time more than twenty-two workdays within any six consecutive months, is eligible to receive a promotional pay increase. This pay increase should be granted in accordance with the Personnel Rules of the Career Service System, beginning with the twenty-third day. This type of temporary appointment is referred to within the Career Service System as "Out of Title" work, and is located in Article 21 of the agreement. Employees being paid at a higher rate while temporarily filling a position in a higher classification are returned to their regular rate of pay when the period of employment in the higher class is ended. Originally, Respondent's "Out of Title" status and increased pay were to be effective from June 1, 1990 until the supervisor returned from maternity leave. This time period began on June 1, 1990 and ended in some respects on December 14, 1990. The supervisor returned to work on a four-day basis, Tuesdays through Thursdays, for an additional three month period. Due to some special needs of the supervisor related to the birth of her child, the Department allowed her to continue to remain at home on Mondays after she was originally due back to work from maternity leave. This arrangement continued from December 14, 1990 to March 20, 1991. During these Mondays, Respondent continued to actively perform the duties of the higher level supervisory position for eleven consecutive weeks. In addition, Respondent acted as the unit supervisor during all other days her supervisor was unavailable for work. These additional days, however, were not arranged for in advance by the supervisor before returning to work from maternity leave, as were the consecutive Mondays. On April 29,1991, a Report of Personnel Action from the Department transferred Respondent from her higher "Out of Title" pay and status to her permanent position as a Public Assistance Specialist II [a promotion received April 12, 1991]. The effective date of the action was made retroactive to December 14, 1990, the day the supervisor on maternity leave returned to her job on a four-day a week basis. Prior to her receipt of the Report of Personnel Action on April 30, 1991, Respondent was unaware that her "Out of Title" job duties and the commensurate pay increase ceased on December 14, 1990. She had been performing supervisory duties on Mondays after that date under the belief that an overlap in position was permitted to assist the supervisor with her temporary special needs involved with childbirth and the baby's care. Respondent was not advised of the amount of the overpayment of salary the Department contends she received between December 14, 1990 and April 26, 1991, until July 25, 1991. The original amount of the salary overpayment the Department sought to recover from Respondent was $558.74. After the parties stipulated that Respondent performed supervisory functions on the eleven scheduled Mondays, the Department reduced its claim for overpayment to reflect a higher salary for Respondent on those dates. This reduced the claim for overpayment by $65.03, thus making the Department's total claim $493.71.
Recommendation Based upon the foregoing, it is RECOMMENDED: Respondent is to be notified by the Department of the grievance procedures that can be used for the settlement of this dispute between employer and employee, along with the time deadline she has to elect the procedure to be used for the dispute resolution. The pending case is to be dismissed for lack of subject matter jurisdiction, and transferred to the correct forum timely elected by Respondent, without prejudice to either party. DONE and ENTERED this 27 day of January, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE No. 91-6197 Respondent's Recommendation of Facts are addressed as follows: Rejected. Whether overpayment occurred needs to be resolved in a different forum, based on one or more of the following: an interpretation of the collective bargaining agreement; an interpretation of an overlap in position in this case; or an unfair labor practice. Accepted. See Finding of Fact #8 and Factual Stipulation #5. Rejected. Contrary to law. See Rue 3A-31.309(1)(d), Florida Administrative Code, Chapter 17, Florida Statutes. Accepted. See Factual Stipulation #7. COPIES FURNISHED: Jack Emory Farley Esq HRS District VI Legal Office Room 500 - Fifth Floor 4000 W Dr Martin Luther King Jr Blvd Tampa Fl 33614 Annie L Allen 6420 N 23rd St Tampa Fl 33610 John Slye Esq General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700 Sam Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700
The Issue The issue for determination is whether Petitioner’s position was properly reclassified by Respondent under the Service First Initiative from Career Service to Select Exempt Service.
Findings Of Fact Ms. Blow-Beasley was employed with DCFS, formerly known as Department of Health and Rehabilitative Services, hereinafter HRS, in Broward County, Florida from February 1, 1988 to June 7, 2002. From August 3, 2000 to July 2001, as part of her employment with DCFS, Ms. Blow-Beasley worked for Economic Services. On September 29, 2000, Ms. Blow-Beasley was hired as a Public Assistance Specialist Supervisor by DCFS, which was a Career Service position. From September 29, 2000 to July 2001, a Public Assistance Specialist Supervisor was a supervisory position with HRS and/or DCFS. From September 29, 2000 to July 1, 2001, in her role as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley supervised two or more employees. As part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. By letter dated June 15, 2001, Ms. Blow-Beasley was notified by DCFS that her position in Career Service was being “transferred” to SES, effective July 1, 2001. Her position in Career Service was reclassified as a SES position. Ms. Blow-Beasley informed her supervisor that she did not want to remain in SES and would accept a demotion to be in Career Service. Her request was not granted. From July 2001 to June 7, 2002, as part of her employment with DCFS, Ms. Blow-Beasley worked for the Economic Self-Sufficiency, hereinafter ESS, Program. From July 2001 to June 7, 2002, Ms. Blow-Beasley’s position title was, and she was employed as, ESS Supervisor Specialist. From July 2001 to June 7, 2002, an ESS Supervisor Specialist was a supervisory position with DCFS. As part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. Ms. Blow-Beasley does not dispute that, from September 29, 2000 to June 7, 2002, she was a supervisor and had been in both Career Service and SES as a supervisor. Ms. Blow-Beasley does not dispute that, when her position was reclassified from Career Service to SES, her duties and responsibilities did not change, but remained the same. No direct evidence was presented to demonstrate that Ms. Blow-Beasley had the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. However, an inference is drawn and a finding of fact is made that, based on her duties, she had the authority to effectively recommend the action to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. Approximately one year after the reclassification, on June 7, 2002, Ms. Blow-Beasley was dismissed from employment with DCFS. On the said date, she signed a letter acknowledging receipt of the notice of dismissal from DCFS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Ms. Sherry A. Blow-Beasley’s Career Service position was properly reclassified as a Select Exempt Service position. DONE AND ENTERED this 18th day of November 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 18th day of November, 2008.
